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2015 DIGILAW 274 (JK)

Nazir Ahmad Baroo v. State of J&K

2015-05-29

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J. 1. Theft of the manuscript of holy Quran, bearing seal of Mughal Emperor, Aurangzeb, from the Sri Partap Singh (SPS) Museum, Srinagar, during day time on 11.09.2003, led to registration of FIR No. 106/2003 at Police Station Rajbagh under Sections 454, 380 RPC against the concerned officials of the Museum, including, the petitioners herein. Respondent No. 2, by order No. DAMA-242 of 2003 dated 13.09.2003, also constituted an enquiry committee to enquire into the episode. Simultaneously, on the recommendations of the Curator, SPS Museum, Srinagar, respondent No. 2, by order dated 13.09.2013, placed the petitioners under suspension. Whereas the enquiry committee constituted by respondent No. 2 made its report on 02.12.2003, i.e., within three months, the aforesaid FIR was closed as untraced in 2006 and an intimation to that effect was given to respondent No. 2 by Superintendent of Police, Crime Branch on 25.07.2006. 2. The enquiry committee constituted by respondent No. 2, in its report dated 02.12.2003, made various recommendations, including a suggestion to impose penalties on the concerned officials. However, no formal departmental enquiry was initiated or conducted against the petitioners. Nonetheless, the petitioners continued under suspension even after receipt of letter dated 25.07.2006 from the SP, Crime Branch. Constrained by the inaction of the respondents, the petitioners approached this Court in writ petition, SWP No. 1317/2007, against their continued suspension. That writ petition was disposed of on 04.10.2007 with a direction to the concerned respondent to take a decision in the petitioner's case. Non-implementation of the Court order also resulted in filing of contempt petition by the petitioners. Ultimately, relying on the report made by the enquiry committee constituted vide order dated 13.09.2003, the matter appears to have culminated into issuance of Government order No. 141-Edu (Tech) of 2007 dated 22.10.2007 imposing the following penalties on the three employees for their carelessness and dereliction of duties: "i. Censure and withholding of one annual increment against Jamsheed Ahmad, Curator; ii. Censure and withholding of one annual increment against Nazir Ahmad Baroo, Museum Assistant; and iii. Withholding of two annual increments against Mtr. Shamima Bano, Attendant." However, while issuing the aforesaid Government order, petitioners were neither re-instated, nor any decision regarding the period of their suspension was taken. Three months and ten days thereafter, the Director, Archives, Archaeology and Museums, issued order dated 01.02.2008 ordering reinstatement of the two petitioners. Withholding of two annual increments against Mtr. Shamima Bano, Attendant." However, while issuing the aforesaid Government order, petitioners were neither re-instated, nor any decision regarding the period of their suspension was taken. Three months and ten days thereafter, the Director, Archives, Archaeology and Museums, issued order dated 01.02.2008 ordering reinstatement of the two petitioners. The period of suspension was again not decided. It was left to be decided separately. 3. The petitioners filed yet another writ petition, SWP No. 1109/2008, before this Court challenging the order dated 22.10.2007 imposing penalty on them. In the said petition, they also sought a direction to the respondents to decide the petitioner's suspension period and release their arrears of dues. However, the petitioners did not press for the first prayer made in the aforesaid writ petition seeking quashing of the penalty order. The writ petition was disposed of with direction to the respondents to consider the case of the petitioners and settle the period of suspension under rules. This was followed by filing of contempt petition No. 286/2010. Thereafter, the respondents issued order dated 24.12.2010 whereunder the period of suspension of the petitioners has been treated on leave whatever due. 4. The petitioners have now filed this writ petition challenging order No. 141-Edu(Tech) of 2007 dated 22.10.2007 as well as order No. DAMA-121 of 2010 dated 24.12.2010 and have prayed for a direction to the respondents not to act upon the said orders. 5. The respondents have filed their reply wherein they have contested the contentions raised by the petitioner. 6. I have heard learned counsel for the parties, perused the material on record and considered the matter. 7. The writ petition insofar as it challenges the Government order No. 141-Edu (Tech) of 2007 dated 22.10.2007, whereby certain punishments were imposed on them, as mentioned above, is not maintainable inasmuch as, on their own showing, they opted not to press this prayer in their earlier writ petition, SWP No. 1109/2008. Once a prayer is made in the earlier writ petition and is not pressed, and no liberty is reserved to repeat the prayer in a subsequent writ petition, if need be, it will be deemed to have been heard and decided against the party not pressing the relief. Once a prayer is made in the earlier writ petition and is not pressed, and no liberty is reserved to repeat the prayer in a subsequent writ petition, if need be, it will be deemed to have been heard and decided against the party not pressing the relief. The issue with regard to the legality of the order dated 22.10.2007 was consciously taken in the earlier writ petition between the same parties, and not pressed by the petitioners. The cannot be allowed to raise the challenge now and again. The petitioners are precluded from raising the very same challenge in the present writ petition. The situation would have been different had the petitioners sought liberty to challenge the aforesaid order and seek the relief afresh at a later stage. That having not been the case, this petition in so far as the said relief is concerned is hit by the principle of res judicata. The general rule is that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. The law on the point is settled. Reference in this connection may be made to the Supreme Court decision in Forward Construction Co. v. Prabhat Mandal, (1986) 1 SCC 100 wherein it has been held as under: "... Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. v. Prabhat Mandal, (1986) 1 SCC 100 wherein it has been held as under: "... Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided...." 8. In view of the settled position of law, the petition insofar as it relates to the challenge to order dated 22.10.2007 is held to be barred by constructive res judicata. 9. Coming to the impugned order dated 24.12.2010, the operative portion thereof suggests that the same has been passed without application of mind and in a mechanical manner and, consequently, the petitioners have been dealt with unfairly. The operative part of the order is quoted hereunder: "Now, therefore, in compliance to the Hon'ble High Court directions dated. 3.4.2010 passed in SWP No. 1109/2008 and as per rules and taking into consideration failure of the officials to discharge their legitimate duties, the period of suspension of Shri Nazir Ahmad Baroo, Ex-Museum Assistant and Mtr. Shamima Akhter, Attendant. SPS Museum, Srinagar is treated as on leave whatever kind due to them." The only ground relevant to the order of suspension taken by the petitioners is that treatment of the period of suspension of 4 1/2 years tantamount to double jeopardy. 10. The facts and circumstances of the case suggest that the plea of the petitioners is not wholly untenable and baseless. 10. The facts and circumstances of the case suggest that the plea of the petitioners is not wholly untenable and baseless. In this connection, it is note worthy that the petitioners were placed under suspension in terms of order No. DAMA-243 of 2003 dated 13.09.2003 issued by respondent No. 2. Prior to issuance of the aforesaid order, on the very same day, respondent No. 2, vide order No. 242 of 2003 dated 13.09.2003, constituted an enquiry committee, to conduct an enquiry into the matter. The enquiry committee so constituted completed the enquiry and made its recommendations just within three months vide No. DAMA/1277/2003 dated 02.12.2003, Respondent No. 2 did not act upon the enquiry report so submitted by the Enquiry Committee. He instead chose to sleep over the matter without any reason. One could imagine that respondent No. 2 might have been waiting for the result of the FIR registered in connection with the incident of theft. But the records reveal that the Superintendent of Police Crime Branch, Srinagar vide his communication No. CR/FIR/106/03-356 dated 25.07.2006 intimated to the Director that the investigation of the case against the petitioners in FIR No. 106/2003 had been closed as untraced. Therefore, there was no reason for respondent No. 2 to have sat over the matter. This despite the fact, as averred in the petition, the petitioners had approached respondent No. 2 to reinstate them in view of the case having been closed as untraced against them. But that was not to be; respondent No. 2 was not moved. Constrained, the petitioners had to file writ petition, SWP No. 1317/2007 seeking quashing of the order of suspension. The writ petition was disposed of by order dated 04.10.2007 with direction to take a decision in the matter. Even then, the respondent did not act. The petitioners had to file contempt petition No. 469/2007. It is only then that the Government vide order No. 14I-Edu(Tech) of 2007 dated 22.10.2007 proceeded to act upon the report of the enquiry committee dated 02.12.2003. For almost four years from the date of the said report and the date of the aforesaid order, the respondents slept over the matter and no reason, whatsoever, is coming forth for such inordinate delay in finalising the matter. For almost four years from the date of the said report and the date of the aforesaid order, the respondents slept over the matter and no reason, whatsoever, is coming forth for such inordinate delay in finalising the matter. Even, while passing the aforesaid order, imposing punishments on the petitioners, the respondents totally forgot that the petitioners were under suspension and that some orders had to be passed. It was more than two months thereafter on 01.02.2008 that the petitioners were reinstated and it was ordered that the period of suspension will be decided separately. The petitioners were constrained, again, to approach this Court seeking, inter alia, a direction to the respondents to settle their period of suspension. The writ petition was disposed of with direction to settle the same within three months. Failure on the part of the respondents to implement the said Court direction resulted in filing of contempt petition No. 286/2010 by the petitioners. It was only then that the order dated 24.12.2010 was passed treated the petitioners' period of suspension as on leave whatever kind due to them. It is note worthy that one of the petitioners, namely, petitioner No. 1 retired in the meanwhile. 11. It becomes axiomatic from the aforesaid facts, that the respondents have unnecessarily prolonged the suspension of the petitioners, and I must say that, they have acted arbitrarily and without any justification in the matter. Had the respondents not acted in the matter with extreme apathy, the matter could have been finalised, at least, immediately after receipt of the report of the Superintendent of Police, Crime Branch on 25.07.2006. It is reiterated that the enquiry committee had submitted its report in 2003 itself. There was. no justification or reason, much less a plausible justification or a cogent reason for the respondents to have slept over the matter and prolonged the suspension of the petitioners. Obviously, as becomes clear from the operative portion of the impugned order dated 24.12.2010, the respondents seem to have been induced and influenced to prolong the agony of the petitioners by their perceived extraneous considerations. The gravity of charge or guilt could be taken note of only while imposing the penalty on the petitioners. Obviously, as becomes clear from the operative portion of the impugned order dated 24.12.2010, the respondents seem to have been induced and influenced to prolong the agony of the petitioners by their perceived extraneous considerations. The gravity of charge or guilt could be taken note of only while imposing the penalty on the petitioners. It is another thing that neither any charge was levelled against the petitioners, nor they have been proven guilty in any departmental enquiry, nor any departmental enquiry has been held against them in accordance with the mandate of Article/311 of the Constitution of India. The petitioners to that extent have suffered on account of their own folly, may be by reason of a wrong legal advice, inasmuch as having challenged the order imposing penalty on them without enquiry, they have not pressed the prayer for quashing the same. 12. It is also relevant to mention here that a perusal of the impugned order reveals that the Administration Department of the Directorate, vide their OM No. Cul/Arch/17/2009 dated 15.4.2009, had again referred the matter to Home Department for re-investigation of the case through Crime Branch to arrive at a logical conclusion as, according to them, the case was of highly sensitive nature. In response, the Inspector General of Police, Crime, vide letter No. CBH/FIR-106/2003/CBK-11871 dated 21.12.2010, conveyed to the Department as under: "In this connection it is requested that investigation of case FIR no, 106/2003 Police Station Raj Bagh has been closed as untraced. During the investigation of the case it has surfaced that dealing hands namely Nazir Ahmad Baroo, Shamima Akhter the then Curator of SPS Museum/Watch and ward staff who were present on the date of occurrence on the gallery where theft has taken place were found in negligence of attending their duties. Accordingly, I have been directed to request you that departmental enquiry be conducted against the delinquent officials for their negligence of duties and outcome of the enquiry be shared with this headquarters." It becomes axiomatic that the Crime Branch has been unable to resolve the crime. And what is astonishing, departmental enquiry has been suggested when the petitioners had already been imposed punishment, professedly, in terms of Rule 30 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, though no enquiry as envisaged by Rules was conducted. And what is astonishing, departmental enquiry has been suggested when the petitioners had already been imposed punishment, professedly, in terms of Rule 30 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, though no enquiry as envisaged by Rules was conducted. Thus, the respondents have acted in the matter in a slipshod manner, in reality being unmindful about the sensitivity involved in the matter. 13. In light of the peculiar facts and circumstances of the case, as narrated above, the judicial conscious constrains this Court to hold that the respondents have given a totally unfair deal to the petitioners and have acted in the matter in a perfunctory and arbitrary manner. The impugned order dated 24.12.2010 treating the petitioners' entire suspension period as on leave of whatever kind due to them, therefore, deserves to be quashed. 14. This petition to the extent indicates above, is accordingly allowed. The impugned order No. DAMA- 121 of 2010 dated 24.10.2010 is quashed with direction to the respondents to pass fresh order in the matter keeping in view the fact that the petitioners have not been found guilty in any regular, legitimate and lawful enquiry, coupled with the fact that they have not been found connected to the commission of the crime of theft by the Crime Branch during the investigation of the FIR No. 106/2003 of P/S Rajbagh. The needful shall be done within two months from today. No order as to costs.