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2011 DIGILAW 87 (JK)

Tahira Akhter v. State & Ors.

2011-03-01

MANSOOR AHMAD MIR

body2011
JUDGMENT Hon'ble Mr. Justice Mansoor Ahmad Mir, Judge 1. The case on hand has a chequered history. The petitioner has become victim of respondents for no fault of her. The petitioner submits that she came to be appointed as a Constable in the Respondent-Department on 4th of November, 1993 and was nominated for undergoing basic recruitment training course which was later on cancelled. Thereafter on 16th of May, 2000, she was again deputed to undergo the basic recruitment training course which she could not attend because she fell ill and was advised by the Police Medical Officer, Police Hospital, Anantnag, to have a complete bed rest for four days which constrained her to approach to respondent No. 6 for grant of four days casual leave in her favour, who in turn forwarded the same to respondent No. 5 on the same day. Respondent No. 5 without any inquiry and show cause notice discharged the petitioner from services with effect from 17th of May, 2000 vide Order No. 388/2000 dated 25.05.2000. The petitioner invoked the appellate jurisdiction by way of filing an appeal which was rejected. Subsequently, she filed second appeal which too got the same fate. Ultimately, she approached this Court by filing a writ petition (SWP No. 1270/2002), questioning therein the order of discharge and orders passed by the appellate court passed against her favour. The writ Court while allowing the writ petition held, operative part of which may be noticed: Under the rule a Police Official can be discharged from service on the ground that he/ she is unlikely to prove an efficient officer within a period of three years from the date of his/ her enrolment. The 0power given to a Sr. Superintendent of Police to discharge an police official under the said rule is required to be exercised within three years of the enrolment of the officer. The power cannot be exercised beyond the period of three years. Admittedly the petitioner has been appointed in the year 1993 as such the Sr. Superintendent of Police had no jurisdiction to discharge the petitioner from services by exercising the powers under the rule. The order impugned is therefore, clearly in violation of the police rules as such cannot sustain. The order is hereby set aside and the petition is allowed. Order accordingly. 2. Superintendent of Police had no jurisdiction to discharge the petitioner from services by exercising the powers under the rule. The order impugned is therefore, clearly in violation of the police rules as such cannot sustain. The order is hereby set aside and the petition is allowed. Order accordingly. 2. Respondent No. 4 upon scrutiny of the judgement aforementioned passed Order No. 42 of 2006 dated 02.03.2006, whereby the petitioner came to be reinstated and fresh departmental inquiry came to be ordered. Additional Superintendent of Police, Anantnag (for short ASP) was appointed as an inquiry officer. During the inquiry, the petitioner was placed under suspension till finalization of the inquiry. Inquiry Officer after conducting the inquiry submits its finding. Agreeing with the inquiry report, Respondent No. 4 after examining the record of the departmental inquiry and finding of the ASP Anantnag (Inquiry Officer) passed Order No. 102 of 2006 dated 10.05.2006. It is apposite to reproduce the relevant portion of the order, which reads as follows: d. That keeping in view the record available on file the delinquent official has not absented herself to avoid the BRTC willfully. The documents submitted by the lady Constable Tahira Akhter clearly establishes a prima facie case in her favour and her absence was because of the circumstances which were beyond her control as is evident from the records. In view of the above observations it is hereby ordered that: i. The lady constable Tahira Akhter Ex-839/A is fully exonerated from the charges, as the period of discharge up to reinstatement is proved to be the fault on the part of authorities of relevant time and not on the part of the lady constable. ii. The period of discharge i.e. w.e.f. 17.05.2000 to 04.03.2006 is treated as on duty in terms of rule 108(B) of J&K CSR. iii. The official is reinstated into service with immediate effect and the period of suspension w.e.f. 04.03.2006 till date is treated as on duty. iv. She should be deputed for BRTC immediately if any batch is under training in anywhere in valley Kashmir. 3. From perusal of the above said reproduction, it reveals that the petitioner came to be reinstated and pursuant to such order she resumed her duties. The competent authority-Respondent 4 in categorical terms held that absence of the petitioner was beyond her control and she came to be discharged from service without any justification. 3. From perusal of the above said reproduction, it reveals that the petitioner came to be reinstated and pursuant to such order she resumed her duties. The competent authority-Respondent 4 in categorical terms held that absence of the petitioner was beyond her control and she came to be discharged from service without any justification. Admittedly, no one has questioned the order passed by respondent No.4 and has been acted upon but Respondent No. 2 passed an Order No. 3824 of 2006 dated 07.12.2006 whereby he has set aside the order dated 10.05.2006 passed by respondent No. 4, and ordered for Denovo Inquiry. Aggrieved by the said order, the petitioner has chosen to invoke the writ jurisdiction of this Court and questioned the same on the averments made in the writ petition. 4. Respondents have filed the detailed reply and have opposed the writ petition. The petitioner has also filed the rejoinder wherein she has refuted the averments made in the reply. 5. I have heard learned counsel for the parties at length and perused the record made available to the Court by Mr. A. M. Magray, Sr. AAG. 6. The most crucial issue which arises for consideration in this writ petition is as to whether the Respondent No. 2 has power, competence and jurisdiction to pass the impugned order in question. It needs a mention here that while going through the judgement of the writ Court there is no where held to conduct inquiry afresh against the petitioner and then how respondent No. 4 has ordered inquiry and placed the petitioner under suspension is not forth coming from the reply of the respondent and record produced by them. However, it is not the subject matter of this writ petition, therefore, I refrain from expression of opinion in this regard. 7. Admittedly, the order passed by respondent No. 4 is in terms of Police Regulations contained in chapter 11 of the Jammu & Kashmir Police Manual. The departmental inquiry came to be conducted in terms of regulation 359 and petitioner came to be exonerated. Conversely, no award / punishment have been inflicting upon the petitioner. Had there been any punishment against the petitioner she was within her rights to challenge the same by way of appeal but no order was against her, so question of filing an appeal is out of question. Conversely, no award / punishment have been inflicting upon the petitioner. Had there been any punishment against the petitioner she was within her rights to challenge the same by way of appeal but no order was against her, so question of filing an appeal is out of question. Regulation 363 provides that Inspector General or Deputy Inspector General of Police may examine the records of 'award' made by the subordinate and can confirm, modify, reduce or enhance the same. The order dated 10.05.2006 whereby the petitioner came to be exonerated has been passed by the Inspector General of Police. No award or punishment stands passed. It is appropriate to reproduce Regulation 363 of the Jammu & Kashmir Police Manual, which reads as follows: 363. Power to Review Proceedings:- (1) The Inspector General or a Deputy Inspector General of Police may call for the records of award made by their subordinates and confirm, enhance, modify or annul the same or make further investigation or direct such to be made before passing orders. (2) In all cases in which officers propose to enhance an award they shall before passing final order give the defaulter concerned an opportunity of showing cause, either personally or in writing why his punishment should not be enhanced. 8. On a plain reading of the aforesaid regulation, one comes to the irresistible conclusion that this provision can be pressed into service only when award/ punishment is made against the delinquent official and if the Inspector General/Deputy Inspector General (Competent Authority) is of the view that order is to be annulled or propose to enhance of the award, in that eventuality, as per order show cause notice either personally or in writing to the delinquent official is must. This rule is not applicable to the instant case, for the simple reason that no award stands passed. 9. Regulation 377 of the Jammu & Kashmir Police Manual provides that the Government may, of its own motion or otherwise, call for the record of any case. It is advantageous to reproduce the said proviso, which reads: 377. This rule is not applicable to the instant case, for the simple reason that no award stands passed. 9. Regulation 377 of the Jammu & Kashmir Police Manual provides that the Government may, of its own motion or otherwise, call for the record of any case. It is advantageous to reproduce the said proviso, which reads: 377. Notwithstanding anything contained in these rules, the Government may, of its own motion or otherwise, call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules, and: (a) confirm, modify or reverse the order passed by such authority; or (b) direct that a further inquiry be held in the case; or (c) reduce or enhance the penalty imposed by the order; or (d) make such other order in the case as it may deem fit. 10. There is nothing on the file or record indicating the fact that the Government has delegated the power to the Director General of Police. How respondent No. 2 has exercised his power is not coming forth. 11. For what is said hereinabove, impugned order of discharge merits to be quashed, for the simple reason that it came to be passed at the back of the petitioner and a proper opportunity of hearing was not afforded to her, thus condemned unheard. Accordingly, Writ petition is allowed. Order No. dated is quashed. Record made available to the Court by Mr. Magray is returned to him in the open Court. 12. Disposed of along with CMPs. No order as to costs.