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2015 DIGILAW 166 (JK)

Arshad Hussaim Koul v. State of J&K

2015-04-08

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J. 1. The petitioner was appointed as Sectional Officer (Electrical), later re-designated as Junior Engineer, in the State Power Development Department vide Government Order No. DC/PD/Adm-1/268 of 1986, dated 19.11.1986. Somewhere in the year 1990, he was detained under the provisions of J&K Public Safety Act. While the petitioner was in detention. Government issued Order No. 530-GRof 1990, dated 07.03.1990 dismissing him from service with immediate effect in terms of the provision of Section 126 of the Constitution of J&K State. However, the petitioner's detention was quashed by this Court. Thereafter, he challenged his dismissal from service in writ petition, SWP No. 1204/1991, which was allowed by the learned Writ Court by judgment dated 20.05.2005. The order of dismissal impugned in the writ petition was set aside. It was, however, observed in the judgment that the State may hold a regular enquiry in the case in accordance with the rules. The judgment of the learned Writ Court was challenged in Letters Patent Appeal which was dismissed by the Letters Patent Bench by judgment dated 16.08.2007. The judgment was not implemented. Petitioner had to file contempt Petition No. 372/2006. Consequent thereupon, the Government issued Order No. 293-PDD of 2007, dated 05.10.2007, to the following effect: "Now, therefore, pursuant to the aforementioned directions of the Hon'ble Court in this case, Shri Arshad Hussain Koul (petitioner) is hereby directed to report to Chief Engineer, EM&RE Kashmir forthwith for further posting without prejudice to the regular enquiry, which the Home Department may hold in this case. The CE (EM&RE) Kashmir, shall also release the wages in favour of the petitioner as are earned by him. The order regarding treatment of the intervening period of the officer shall be issued separately". 2. Subsequent to the aforesaid, the Government issued Order No. Home-787-ISA (WP) of 2008, dated 14.11.2008, according sanction to appointment of Shri Farooq Ahmad Peer, IAS, Secretary, Home Department, as Inquiry Officer to conduct enquiry into the matter and furnish his findings with definite recommendations to the Government with regard to treatment of intervening period of the petitioner within a period of one month positively. 3. 3. Pursuant to the aforesaid order, the Enquiry Officer, after conducting the enquiry into the matter, made a detailed report concluding as under: "In conclusion it is stated that in absence of any records related to the booking of Shri Koul under PSA and his subsequent dismissal from service his culpability cannot be framed. The absence of any record lends credence to the presumption that Shri Arshad Hussain Koul had been booked under PSA and subsequently dismissed from service surreptitiously. He has already been re-instated. The period of dismissal has not been decided yet. In the light of what has been stated above there is no choice but to take a favourable view of the matter." (Highlighting supplied) 4. The grievance of the petitioner in this writ petition, filed on 06.08.2012, is that though the enquiry report was furnished by the enquiry officer three years back, but the respondents have not passed the consequential orders with regard to the intervening period of the petitioner. Resultantly his salary for the intervening period has not been paid to him, his seniority has remained unsettled and he is being deprived of his other service benefits which accrue to him on the post by virtue of his seniority, including promotions to the next higher posts. The petitioner has, therefore, sought a direction to the respondents to treat the petitioner's intervening period as on duty, to release his salary from the date of his dismissal till he was re-instated in service in 2007, and to release all consequential service benefits in his favour, including promotions and seniority. 5. The respondents in their reply have stated that the case of the petitioner was submitted to the Home Department vide OM No. PDD/1-28/2002, dated 15.04.2008 for placing the same before the Screening Committee constituted vide Government Order No. 1608-GAD of 2004, dated 17.12.2004. The said Committee, vide their No. Home/PB-V/Gens/03/II, dated 19.06.2012, had sought certain information regarding the service particulars of the petitioner and that the requisite information has been furnished by UO dated 23.10.2013. It is stated that the matter is being duly processed and that final decision can be taken only after receipt of the recommendation/advice from the Home Department. 6. I have heard learned counsel for the parties and considered the matter. 7. It is stated that the matter is being duly processed and that final decision can be taken only after receipt of the recommendation/advice from the Home Department. 6. I have heard learned counsel for the parties and considered the matter. 7. It is seen that the matter stands concluded by the judgment dated 20.05.2005 passed by the learned Writ Court in the petitioner's earlier writ petition, SWP No. 1204/1991. Once the order of dismissal of the petitioner was quashed, it has to be treated as if such order was not at all passed. The learned Writ Court had only reserved the discretion of the Government to hold a regular enquiry against the petitioner in accordance with the rules. The Government vide order dated 14.11.2008 appointed Shri Farooq Ahmad Peer, Secretary, Home Department, as Inquiry Officer to conduct an enquiry into the matter and furnish his findings with definite recommendations. He has duly conducted the requisite enquiry and found that the petitioner had been surreptitiously booked under PSA and dismissed from service. The Enquiry Officer in his report has observed that the petitioner has already been re-instated and the period of dismissal has not been decided yet. Accordingly, he has recommended that in light of what has been stated by him in the report, there is no choice but to take a favourable view of the matter. Favourable view would mean a decision which would redress the long pending grievance of the petitioner. That being the finding and recommendation recorded by the Enquiry Officer, appointed by the Government, nothing remains to be gone into by any other authority or Committee, especially any Screening Committee. In fact, the concerned respondents, in implementation of the judgment dated 20.05.2005 ought to have passed the consequential orders immediately after receipt of the aforesaid Enquiry Officer. They have instead slept over the matter and sought to sit in appeal over the said judgment by referring the petitioner's case to the Screening Committee. Once the dismissal order was quashed, there was no question of referring the petitioner's case to the Screening Committee to decide about his intervening period. It is reiterated that the effect of quashment of an order is that it is to be treated as if it had not at all been passed. The Court had only given discretion to the respondents to hold a regular enquiry. It is reiterated that the effect of quashment of an order is that it is to be treated as if it had not at all been passed. The Court had only given discretion to the respondents to hold a regular enquiry. That having been conducted and the petitioner having been absolved of the allegations, nothing more was required to be done. 8. In view of the above, this writ petition deserves to be allowed and is, as such, allowed. 9. The respondents are directed to treat the petitioner on duty for the entire intervening period, pay him the salary for the period together with increments etc., determine, accord and restore him his due place of seniority on the basis of his date of appointment, and accord him all consequential service benefits, including promotions which he would have otherwise earned in normal course had he not been 'surreptitiously' detained under the provisions of the J&K Public Safety Act and dismissed from service. The needful shall be done by the respondents within a period of three months from the date a certified copy of this judgment is served on Respondent No. 3 by the petitioner. No order as to costs.