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2015 DIGILAW 32 (JK)

Altaf Hussain Mir v. Bank of India

2015-02-19

B.L.BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J.:- 1. The petitioner has filed the instant amended writ petition invoking the writ jurisdiction of this Court seeking writ of certiorari for quashing the inter office memorandum bearing No. ZO.PERS.AKK:346 dated 17.04.2007, with further prayer to release all other consequential benefits on the grounds taken in the writ petition. The case set up by the petitioner is that while working as Cashier-cum-Clerk in the Respondent-Bank, he was arrested by the police on 05.04.2003 and FIR came to be registered bearing FIR No. 91/2003, Police Station, Sadder, Srinagar. Despite bail order granted on 05.06.2003 by the learned Judicial Magistrate, Chadoora, the petitioner was not released but was detained under the provisions of Jammu & Kashmir Public Safety Act vide order dated 17.07.2003 passed by the District Magistrate, Budgam, and was lodged in Central Jail, Kotbalwal, Jammu. It is pleaded that the petitioner challenged the order of detention through medium of habeas corpus petition bearing HCP No. 141/2003, which was allowed on 28.09.2004. The petitioner was released and he reported back on duty but instead of allowing him to join he was served with suspension order dated 13.11.2004 by the Chief Manager, Ludhiana Zone. He filed a writ petition bearing SWP No. 409/2006 for quashing of the suspension order dated 13.11.2004 Same was disposed of in terms of order dated 15.09.2006 with direction to the respondents to expedite the enquiry against the petitioner and complete the same, as far as practicable, within a period of two weeks by virtue of the same order, it was further directed that on completion of enquiry the respondents shall take a final decision in the matter within one week thereafter. The respondents conducted the enquiry into the matter, on completion whereof order dated 20.01.2007 came to be passed, by virtue of which, the petitioner was exonerated of the charges and it was held that for the period of his suspension he will be granted full pay and allowances for which he would have been otherwise entitled to, had he not been suspended However, this order did not take care of the period preceding the petitioner's date of suspension, forcing the petitioner to file a representation on 20.03.2007 claiming arrears of salary for the period from 06.04.2003 to 12.11.2004, However, respondents passed an order dated 17.04.2007 informing the petitioner that since he remained absent from duties w.e.f. 06.04.2003 to 12.11.2004, such period will be treated as his absence from duty resulting in loss of pay and allowances and will not count for annual increment or terminal benefits. The petitioner filed an appeal against the aforesaid order before the Zonal Manager, Ludhiana Zone. Meanwhile, he was served with an order of termination dated 10.07.2007 on the basis of a communication dated 13.03.2007 received from the Home department of Jammu & Kashmir Government advising the Bank to dismiss the petitioner from services of the Bank, inter alia, on the ground of his involvement in terrorist and subversive activities. The petitioner challenged the aforesaid order through medium of a writ petition (SWP No. 1103/2007), which was allowed in terms of the judgment and order dated 22.12.2008. While quashing the order of dismissal liberty was given to the respondents to conduct an enquiry against the petitioner, if so warranted. However, no enquiry was conducted by the respondents thereafter. Criminal case registered against the petitioner under FIR No. 91/2003 came to be dismissed on 17.12.2011 and the petitioner was acquitted of the charges levelled against him. Petitioner again filed a representation for release of salary and other monetary benefits for the period commencing 06.04.2003 to 30.01.2007. Since the representation evoked no response from the respondents the petitioner filed another representation on 01.08.2012 for release of salary and other benefits. This also did not evoke any response The petitioner claimed to have served legal notice dated 26.09.2012 upon the respondents but his grievance was not redressed. 2. Since the representation evoked no response from the respondents the petitioner filed another representation on 01.08.2012 for release of salary and other benefits. This also did not evoke any response The petitioner claimed to have served legal notice dated 26.09.2012 upon the respondents but his grievance was not redressed. 2. Now the grievance of the petitioner in the writ petition at hand is that once he was exonerated of all the charges by the Court of competent jurisdiction in terms of its judgment and order dated 17.12.2011 and that previously his order of detention dated 17.07.2003 was quashed by this Court vide order dated 18.09.2004, the period spent by the petitioner under detention from 06.04.2003 to 12.11.2004 has to be treated as on duty and the petitioner has to be paid salary for the aforesaid period besides other monetary benefits like lunch/compensatory allowances and medical aid. 3. The respondents have not disputed the factum of petitioner being placed under suspension vide order dated 13.11.2004 and of being reinstated and exonerated of the charges levelled against him in the charge sheet. It is pleaded that the petitioner was treated absent from duties with effect from 06.04.2003 to 12.11.2004 under the provisions of the bipartite settlement dated 10.04.2002, disentitling the petitioner to salary and other benefits for the period of his absence from duty. It is further pleaded that the services of the petitioner were terminated after receipt of the communication dated 13.03.2007 from the Home Department of Jammu & Kashmir Government as the petitioner was involved in terrorist and subversive activities. However, it is admitted that the order of termination was quashed by this Court in terms of judgment dated 22.12.2008 rendered in SWP No. 1103 of 2007. At the same time, the respondents reiterated the plea that the petitioner was not entitled to any salary and other benefits for which he remained absent from duty w.e.f. 06.04.2003 to 12.11.2004. 4. I have heard rival sides and perused the record. Facts relating to detention of petitioner; quashment of detention order by this Court; termination of services of the petitioner after he was exonerated of the charges and held entitled to full pay and allowances and subsequent quashment of the dismissal order are not in controversy. 4. I have heard rival sides and perused the record. Facts relating to detention of petitioner; quashment of detention order by this Court; termination of services of the petitioner after he was exonerated of the charges and held entitled to full pay and allowances and subsequent quashment of the dismissal order are not in controversy. It is also not disputed that the petitioner has been acquitted by the competent criminal court of the charges framed under Sections 121, 120-B RPC and 10-13 Unlawful Activities Act and the judgment rendered by the Learned Principal Sessions Judge, Srinagar, dated 17.12.2011 has attained finality. The effect of the finding of innocence recorded by the competent criminal court is that the petitioner stands cleared of the charges relating to waging of war against the State and being a collaborator in crime of subversive activities punishable under Unlawful Activities Act. It is also not disputed that subsequent to setting aside of the order of dismissal of the petitioner by this Court, no enquiry has been conducted by the respondents. Admittedly, the petitioner was exonerated of the charges in terms of the order dated 20.01.2007 and he was granted full pay and allowances for the period of his suspension. However, this order did not take care of the period interceding date of petitioner's detention under the provisions of the Jammu & Kashmir Public Safety Act and the date of his release from custody subsequent to the quashment of the detention order, i.e., from 06.04.2003 to 12.11.2004. The stand taken by the respondents that the petitioner will be treated as absent from duties involving loss of pay and allowances and the period will not count for annual increment or terminal benefits cannot be countenanced in view of the fact that the preventive detention order qua the petitioner was quashed by this Court Criminal trial launched against the petitioner culminated in his acquittal of charges relating to waging of war against the State or engaging in any unlawful activities and the fact that no enquiry was conducted against him. Undisputedly, the petitioner stands exonerated of all the charges levelled against him and the impugned communication from the Home Department of Jammu & Kashmir Government cannot be made the basis for denying the petitioner the benefit of salary and other benefits for the aforesaid period; more so, as the judgment of the acquittal pronounced by the competent criminal court has attained finality. The impugned communication from the State based on the same FIR or other material not put to the petitioner for his explanation and any statements relied upon by the State for forwarding the communication to the respondents not having been subjected to cross examination by the petitioner cannot be used as evidence to deprive the petitioner of his legitimate right to salary, allowances and other terminal benefits, to which he would have been entitled but for being taken in preventive custody under the detention order since quashed. It is well settled that preventive detention is not equivalent to conviction by criminal court. It is also well settled that even in regard to employees detained under the preventive detention law, if after their release the State wanted to take disciplinary action against them on the ground that they were guilty of misconduct it was absolutely essential that the State should have held a proper enquiry wherein reasonable opportunity should have been given to the employees to show cause and before reaching its conclusion the State was bound to lead evidence giving them reasonable opportunity to test the said evidence by cross examination and also allow them to lead evidence. Such an enquiry is prescribed by the requirement of natural justice besides being the requirement of statutory law. I am fortified in this view by the law laid down by the apex Court in D.L. Board, Calcutta v. Jaffar Imam reported in AIR 1966 SC 282 . Having regard to the judgment supra, I have no option but to toe the line. 5. In the aforementioned backdrop, this writ petition merits acceptance. I do so accordingly. Writ petition is allowed. Impugned order bearing No. ZO.PERS.AKK:346 dated 17.04.2007, is quashed. As a corollary, the petitioner is held entitled to all the consequential benefits, including salary for the period he was taken into preventive detention, and the respondents are directed to release the same in favour of the petitioner. 7. Disposed of alongwith connected CMPs. Writ petition is allowed. Impugned order bearing No. ZO.PERS.AKK:346 dated 17.04.2007, is quashed. As a corollary, the petitioner is held entitled to all the consequential benefits, including salary for the period he was taken into preventive detention, and the respondents are directed to release the same in favour of the petitioner. 7. Disposed of alongwith connected CMPs. There will be no order as to costs.