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2012 DIGILAW 210 (JK)

Khurshid Ahmad Shah v. State & Ors.

2012-05-02

MANSOOR AHMAD MIR

body2012
1. The subject matter of the writ petition is Order No. 1763 of 2008 dated 30th May, 2008 passed by respondent No. 2, and is challenged on the grounds taken in the writ petition. 2. Respondents have filed the reply and resisted the same. 3. Petitioner came to be appointed as Constable in the year 1983 and was promoted to senior grade constable in the year 1997. 4. An advertisement notice came to be issued on 20th May, 1998, inviting applications from in-service graduate Senior Grade Constables for their induction in the Ministerial Executive Cadre as Head Constables. 5. Petitioner being eligible applied for the same and came to be promoted as Head Constable Ministerial Executive Cadre and is in position. 6. A complaint was lodged before the Vigilance Commissioner-respondent No. 3, to the effect that petitioner has produced fake B. A. Certificate and in consequence whereof, Mr. P. L. Bhat, Dy. S.P, was appointed as Enquiry Officer, who conducted enquiry and made recommendation for exoneration of the petitioner. 7. Respondent No. 2 made a communication dated 7th August, 2001 to the Controller Examinations, University of Kashmir for verification of the certificate and obtained report which is annexed with the writ petition as Annexure D. 8. All the certificates were produced by the petitioner before the Enquiry Officer and thereafter Enquiry was closed-Annexure A. 9. Further it is contended that respondent No. 2 without any enquiry and without hearing the petitioner issued impugned order whereby, petitioner came to be demoted 10. Heard counsel for the parties. 11. The contention of the petitioner is that respondent No. 2 has inflicted punishment upon him without there being any basis for doing so-Annexure F, and has questioned'the same on the ground that it has been imposed for unknown reasons and without an opportunity of hearing afforded to him in this behalf. 12. The respondents have filed reply and have not denied the fact of enquiry having been conducted against the petitioner and thereafter his exoneration. However, it is contended that complaint filed against him was made basis for passing the impugned order. The record of the earlier enquiry has also been produced. 13. The perusal of the record reveals that a complaint was made against the petitioner which raised finger of suspicion against the petitioner's academic qualification after his promotion to the post of Head Constable. 14. The record of the earlier enquiry has also been produced. 13. The perusal of the record reveals that a complaint was made against the petitioner which raised finger of suspicion against the petitioner's academic qualification after his promotion to the post of Head Constable. 14. Enquiry was ordered in the matter to ascertain the genuineness or otherwise of the complaint which culminated into exoneration of the petitioner. The exoneration of the petitioner in a full dressed trial, implies, that me authenticity of the academic certificate produced by the petitioner, was upheld. There is otherwise copy of communication, of the Kashmir University, made in reply to the letter seeking verification of the certificate, which does demonstrate that, the certificate in question is valid. 15. The perusal of the impugned order reveals it to have been issued on the basis of same complaint for which enquiry was ordered and initiated. To put it more specific, it needs to be emphasized that the enquiry in the matter was concluded in the year 2001 and the impugned order of demotion has been issued in the year 2008, meaning thereby that after seven years had passed in between. For all these years, neither the respondents choose to question the report/communication of Kashmir University-Annexure D, nor did they opt for second enquiry. If at all the respondents were in disagreement with the recommendations of the Enquiry Officer and findings recorded, they could have sought the appropriate remedy, but they treated it closed instead, therefore accepted the decision of the Enquiry Officer. In such situation, what influenced the respondents to issue such an erroneous order, after lapse of more than seven years, is still but a mystery. 16. The impugned order, in the given backdrop, is held to be voilative of principles of natural justice therefore, cannot be allowed to operate. 17. The respondents are even estopped to initiate second enquiry in the matter in view of ratio laid down by the Hon'ble Apex Court in a case reported as AIR 2012 SCW 1791 titled Nand Kumar Verma v. State of Jharkhand and others, wherein, their Lordships have held second enquiry, to be impermissible. 18. In the given circumstances, the writ petition succeeds and impugned order passed at the back of petitioner is quashed.