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2015 DIGILAW 357 (JK)

State of J&K v. Mohammad Ramzan

2015-07-27

HASNAIN MASSODI, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, C.J.:- 1. This application is filed by the State Home Department as well as the Director General of Police and the Commandant, seeking to condone delay of 9 years and 152 days in filing the appeal. 2. It is stated in the application seeking condone delay that the learned Single Judge has passed an order in SWP No. 1255/1993 on 16.09.2005 and Hon’ble the Supreme Court in Special Leave to Appeal (C) No. 8372-8373/2014 having granted liberty to the State to file Letters Patent Appeal against the order of the learned Single Judge dated 16.09.2005, the appeal is filed with condone delay and the same may be condoned. The learned AAG was permitted to argue the merits of the matter also. 3. The application is opposed by the learned counsel appearing for the respondent by stating that respondent filed SWP No. 1255/1993 challenging the removal order passed on the ground that the respondent had participated in the police agitation due to which he has not reported for duty without conducting enquiry. 4. It is the case of the respondent that he was appointed as a Police Constable in JKAP on 15.03.1984 in 9th BN and was initially posted at Jammu for three years. The respondent was thereafter transferred to Kashmir Province and after serving at Zewan Srinagar for about 4 years he was again transferred to Jammu for two years and thereafter again transferred to 9th BN of JKAP at Srinagar. Under the advice of the Physician the respondent sent a telegram to the 3rd appellant on 13.04.1993 as he was unable to go from Bandipora to Srinagar and he prayed for extending his leave. During his leave period the policemen went on indefinite strike and in the strike period he having not reported for duty from 13.04.1993, he was removed from service on 07.05.1993. It is stated in the order that he was served with a notice on 22.04.1993 and 01.05.1993 through Station House Officer, Bandipora, seeking to report back to duty within two days otherwise he will be removed from service. According to the respondent he was not informed about the said notices by the Station House Officer. The said order of removal was passed without conducting enquiry and opportunity of hearing. According to the respondent he was not informed about the said notices by the Station House Officer. The said order of removal was passed without conducting enquiry and opportunity of hearing. The respondent challenged his removal order before this Court by filing SWP No. 1255/1993 which was allowed by the learned Single Judge and the order of removal was set aside on 16.09.2005. 5. As against the order dated 16.09.2005, LPA No. 162/2006 was filed and the said appeal was dismissed by the Division Bench on 17.09.2007 with liberty to the appellants to file review petition before the Writ Court. The appellants thereafter preferred Review Petition along with Condone delay petition No. 2610/2007. The application to condone the delay was dismissed for want of prosecution on 14.10.2008. Thereafter an application for restoration of the condone delay petition was filed and the learned Single Judge after allowing restoration, dismissed the review petition as well as the condone delay application on 12.07.2011 by holding that there is no error apparent on the face of the record. The dismissal of the review petition was again challenged by the appellants before the Division Bench in LPA No. 26/2012 along with condone delay petition No. 47/2012. The appeal was dismissed at the stage of condone delay by order dated 09.04.2012. After dismissal of the said LPA the respondent filed contempt petition No. 503/2012 which was disposed of on 28.08.2012 giving directions to comply with the order and file a report before the Registry within four weeks. The Home Department by order dated 03.10.2012 directed the 2nd appellant to implement the order of the learned Single Judge, however, Special Leave to Appeal (C) No. 8372-8373/2014 was filed which was withdrawn by the appellants on 21.07.2014 with liberty to file LPA against the original order dated 16.09.2005 passed by the learned Single Judge in SWP No. 1255/1993. The appellants have filed this COD No. 315/2014 along with LPA No. 199/2014, seeking condonation of 9 years and 152 days delay. 6. Mr. B.A. Dar, learned AAG has argued that the learned Single Judge was not right in allowing the writ petition on the ground that Superintendent of Police has no jurisdiction and the Deputy Inspector General of Police is the competent authority to remove a Constable from service. 6. Mr. B.A. Dar, learned AAG has argued that the learned Single Judge was not right in allowing the writ petition on the ground that Superintendent of Police has no jurisdiction and the Deputy Inspector General of Police is the competent authority to remove a Constable from service. The learned Single Judge has relied on the Police Manual where there was a printing mistake and inspite of arguing the said fact the same was not appreciated. 7. Learned counsel for the respondent opposed the application seeking condonation of delay and also made submissions on merits. He has contended that assuming that the Superintendent of Police has got the jurisdiction to pass the order of removal, the respondent having been removed from service on the ground of un-authorized absence for about 22 days, regular enquiry should have been conducted in terms of Article 311 of the Constitution of India read with Section 126(2) of the Constitution of J&K and if the enquiry has to be dispensed with, reasons are to be recorded in writing by the competent authority before proceeding in the matter. The impugned order dated 07.05.1993 though refers to Section 126(2)(b) of the Constitution of Jammu and Kashmir read with Article 311(2) of the Constitution of India, no reason is mentioned to dispense with the enquiry and therefore, the order of the learned Single Judge is justified on merits. Learned counsel also submitted that the respondent was having a justified reason of illness for not reporting to duty. It is also urged that the respondent has been harassed by the appellants-applicants inspite of getting a favourable order as early as on 16.09.2005 by filing repeated appeals/review petitions etc and inspite of the directions given by the Home Department to the Director General of Police to comply with the order as early as on 03.10.2012 and 07.10.2013, the 2nd respondent is evading to comply with the order. 8. We have considered the rival submissions, noticed the entire sequence of events mentioned above including the order of removal passed against the respondent. 9. The facts narrated above clearly establish one aspect that the learned Single Judge has allowed the writ petition on 16.09.2005 wherein the respondent has challenged the order of removal from service on the ground of un-authorized absence. Letters Patent Appeal preferred against the order was disposed of on 17.09.2007 with liberty to file review before the Writ Court. 9. The facts narrated above clearly establish one aspect that the learned Single Judge has allowed the writ petition on 16.09.2005 wherein the respondent has challenged the order of removal from service on the ground of un-authorized absence. Letters Patent Appeal preferred against the order was disposed of on 17.09.2007 with liberty to file review before the Writ Court. Review petition was also bearing Review Petition No. 25/2011 with condone delay application was filed, which was dismissed for non-prosecution on 14.10.2008 and restoration application was allowed on 12.07.2011 and the review petition was finally dismissed on merits. The order passed in the review petition was again challenged in LPA No. 26/2012 with condone delay application which was dismissed on 09.04.2012. Only after the contempt petition was filed by the respondent that appellants choose to approach Hon’ble the Supreme Court by filing SLP (C) No. 8372-8373 of 2014. The said SLP was withdrawn on 11.07.2014 with liberty to file LPA against the original order dated 16.09.2005, as if the order dated 16.09.2005 was not challenged. As already stated the order dated 16.09.2005 was challenged in appeal, in review, and again the rejection order of review was challenged in appeal which also was dismissed. In such circumstances, there is no bonafide on the part of the appellants in filing the application seeking condonation of 9 years and 152 days delay. 10. On merits also no reason was stated to dispense with the enquiry against the respondent. Article 311(2)(c) of the Constitution of India mandates that for dispensing with the enquiry, which is necessary under Article 311(2), the President of the Governor, as the case may be, shall record satisfaction that in the interest of the security of the State it is not expedient to hold such an enquiry. Section 126(2)(b) of the Constitution of Jammu and Kashmir also mandates that if the authority empowered to dismiss or remove a person is satisfied that for some reason, to be recorded by that authority in writing that it is not reasonably practicable to hold such enquiry, the enquiry can be dispensed with. In this case no such reason is recorded by the competent authority. When the matter was argued before this Court, the learned Additional Advocate General was directed to produce the files to establish the fact regarding recording of satisfaction by the competent authority to dispense with the enquiry. In this case no such reason is recorded by the competent authority. When the matter was argued before this Court, the learned Additional Advocate General was directed to produce the files to establish the fact regarding recording of satisfaction by the competent authority to dispense with the enquiry. The learned Additional Advocate General submits that file relating to the order dated 07.05.1993 ordering dispensing with the enquiry is not available. The respondent asserts that he had not reported for duty due to his illness and no opportunity having been given by the appellants to prove the fact that his absence was not willful the removal order passed is liable to be set aside. Hence we are not persuaded to interfere with the order of the learned Single Judge on merits. 11. The condone delay application as well as the Letters Patent appeal are dismissed. 12. No costs.