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2016 DIGILAW 136 (JK)

Abdul Gani Wani v. State of J&K

2016-03-28

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Petitioner seeks quashment of two orders:- (i) Order No. 113 of 2000 dated 21.02.2000 whereby petitioner has been demoted to the rank of Warder and (ii) Government Order No. Home-42 (Jail) of 2002 dated 28.01.2002 whereby first order (i) dated 21.02.2000 has been upheld. Further also seeks quashment of the entire enquiry proceedings; Seeks issue of mandamus so as to command respondents to release all consequential benefits including the monetary benefits in favour of the petitioner. 2. Precise factual matrix: Petitioner was Selection Grade Warder posted at District Jail Baramulla in the month of October, 1997. He was night duty officer on the intervening night of 19/20th October, 1997. It is during the said intervening night of 19/20th October, 1997 one undertrial prisoner namely Abdul Malik S/o Syed Shahid Malik, R/o Karachi, Pakistan lodged in the District Jail Baramulla in connection with case FIR No. 45/1997 under Section 45 F.A, P/s Kupwara escaped from the custody allegedly due to negligence of the jail officials which included the petitioner. 3. Regarding occurrence, case has been registered as FIR No. 213/1997 against four officials of the jail including the petitioner. The investigation of the case culminated in filing the charge-sheet (challan) for commission of offences punishable under Section 224, 223 RPC. On the arrest of the petitioner alongwith other officials in connection with the said case, was placed under suspension by the Deputy Controller of Prisons Camp Baramulla vide Order dated 24.10.1997 4. During the trial of the accused which include the petitioner before the Court of Judicial Magistrate 1st Class (Sub Judge Baramulla), respondent No. 3 Deputy Controller of Prisons was appointed as Enquiry Officer. He had supplied the summary of allegations to all the four officials which include the petitioner to the effect that the petitioner was to perform the duty of Night Duty officer on the intervening night of 19/20th October, 1997, as such was responsible for safe custody of all prisoners from lock up to lock out. Having failed to take all necessary measures when light went off at 5.35 AM, the accused managed to come out from bark No. 2 while walking through compound in full view of all jail guard climbed the main boundary with the help of electrical wire as such escaped. Having failed to take all necessary measures when light went off at 5.35 AM, the accused managed to come out from bark No. 2 while walking through compound in full view of all jail guard climbed the main boundary with the help of electrical wire as such escaped. The petitioner had failed to raise alarm or alert guards when sound of jumping was heard by CRPF guards as well as by him. On the basis of preliminary enquiry and statement of jail staff, it surfaced that the accused (escapee) managed to escape due to gross negligence and dereliction of duty. 5. To the said summary of allegations, the petitioner had pleaded not guilty. As a result, whereof charge sheet had been framed and the petitioner had been asked to explain his position within a period of seven days. Petitioner had submitted his explanation on 12.11.1997 6. The enquiry officer respondent No. 3 is stated to have submitted the enquiry report to the disciplinary authority (Additional Director General of Prisons and Fire Services) who in turn had issued show cause notice to all the delinquent officials which include petitioner. In show cause notice, it has been mentioned whether the said employees are guilty of abetting or aiding the escapee would be looked into by police during investigation of the case as registered. However as regards their negligence is concerned, during the departmental enquiry, same has been adequately established, therefore, all the said employees including petitioner had been called upon to show-cause as to why they be not dismissed from service. Explanation was to be submitted within two weeks which the petitioner had submitted. Finally, the Additional Director General of Prisons and Fire Services vide Order No. 113 of 2000 dated 21.02.2000 has demoted the petitioner from the rank of SG Warder to the rank of Warder, so to be treated as fresh recruit in the rank of Warder. 7. The trial against the accused including the petitioner regarding the same occurrence ended in acquittal of the accused as is clear from the detailed judgment passed by the Trial Court i.e. Judicial Magistrate 1st Class (Sub Judge Baramulla) dated 14.06.1999 8. Petitioner aggrieved by the order No. 113 of 2000 dated 21.02.2000 whereby he had been reduced in rank from SG Warder to Warder challenged the same by medium of SWP No. 783/2000. Petitioner aggrieved by the order No. 113 of 2000 dated 21.02.2000 whereby he had been reduced in rank from SG Warder to Warder challenged the same by medium of SWP No. 783/2000. The said petition was sought to be withdrawn by the counsel for the petitioner with liberty to the petitioner to file representation before Respondent No. 1 therein i.e. Principal Secretary to Government of J&K, Home Department, J&K Srinagar. The petition was disposed of accordingly vide Order dated 29.05.2000 with the direction that in case representation is filed on or before 30.06.2000, Respondent No. 1 therein shall dispose of the same on or before 31.10.2000 with a further condition that in case petitioner makes a prayer for being heard in person, such a hearing would be afforded to him by the respondents. Thereafter such a representation be decided by a speaking order by Respondent No. 1 therein. 9. The petitioner filed a detailed representation before the Principal Secretary to Government, Home Department, J&K, Srinagar against a proper receipt dated 19.06.2000, who was required to dispose of the same by or before 31.10.2000 but the same was not done. As a result whereof petitioner submitted number of applications to the Principal Secretary to Government, Home Department, J & K dated 11.12.2000, 11.01.2001, 04.04.2001 requesting for disposal of his representation. When there was no response, he laid the motion for initiating contempt of court proceedings under J&K Contempt of Court Act, 1997 on 20.08.2001 It is only thereafter, respondent No. 1 issued Government Order No. Home-42(jail) of 2002 dated 28.01.2002 in terms whereof the punishment awarded by the Addl. DG Prisons vide Order No. 113 of 2000 dated 21.02.2000 has been upheld. Confronted with this position, petitioner filed the instant petition seeking quashment of both the orders i.e. order dated 28.01.2002 disposing of the representation of the petitioner as well as Order No. 113 of 2000 dated 21.02.2000 whereby he was reduced in rank. 10. It is contended that Order dated 28.01.2002 has been passed in an arbitrary manner as then respondent No. 1 appears to have got irritated in view of repeated reminders followed by initiation of contempt proceedings. In the process, the real object of representation has remained to be addressed. 10. It is contended that Order dated 28.01.2002 has been passed in an arbitrary manner as then respondent No. 1 appears to have got irritated in view of repeated reminders followed by initiation of contempt proceedings. In the process, the real object of representation has remained to be addressed. Buttressing the submission, it is stated that respondent No. 1 has not said anything in the order about the acquittal of the petitioner pursuant to judgment of the Court of Judicial Magistrate 1st Class dated 14.06.1999 In addition thereto, an important aspect i.e. as to whether on conclusion of the departmental enquiry, the copy of enquiry report was furnished to the petitioner when in the representation it has been specifically mentioned in Para 15 that the enquiry officer did not supply the copy of enquiry report/his findings to the applicant for making an effective representation against it. 11. According to petitioner during enquiry, neither any witness was examined nor petitioner was given opportunity of being heard and thereafter copy of the report of enquiry had not been furnished to him. Respondents vide Order dated 11.12.2015 were directed to produce the record relating to supply of copy of enquiry report to the petitioner. 12. Learned AAG produced the copy of communication addressed to him by Deputy Inspector General for Director General of Police Prisons Department J&K Jammu dated 22.12.2015 which stands taken on record. Same suggests that the file pertaining to the petitioner was washed out in the floods of September, 2014 however copies of show cause notice/summary of allegations, Order No. 113 of 2000 dated 21.02.2000 where-under punishment was imposed upon the petitioner, Government Order Home-42(jail) of 2002 dated 21.1.2002 whereunder punishment imposed to the petitioner was upheld, the copy of charge sheet and connected papers were available as sent to the Additional Advocate General. 13. Considered the submissions of learned counsel for the parties as well as record. 13. Considered the submissions of learned counsel for the parties as well as record. Pursuant to Order of this court passed in SWP No. 783/2000 dated 29.05.2000, the petitioner had filed the representation on 19.06.2000 The mandate of the order was that on filing of the representation before 30.06.2000, respondent No. 1 would dispose of the same before 31.10.2000 That has not happened and even has not happened after repeated reminders of the petitioner dated 11.12.2000, 11.01.2001 and 4.4.2001 When contempt proceedings were initiated on 20.08.2001, it is only thereafter respondent No. 1 has considered the representation and has issued the order No. Home-42(jail) of 2002 dated 28.01.2002 means instead of disposing of the representation before 31.10.2000 has been decided on 28.01.2002 Quite disgusting as time schedule has not been followed. Again disgusting as the disposal of the representation is nothing but an eye-wash simply to show that the Order dated 29.05.2000 rendered in SWP No. 783 of 2000 has been complied with which in effect has not been complied with. It appears the then Principal Secretary to Home has made petitioner to run from pillar to post. Finally only to negate the impact of contempt proceedings has passed the order dated 28.01.2002 which in fact exhibit irresponsible approach and violation of the directions so issued really condemnable. 14. All along the petitioner right from the day of his reduction in rank pursuant to Order No. 113 of 2000 dated 21.02.2000 passed by Additional Director General of Prisons and Fire Services, has been projecting that the enquiry has been conducted in deviation to normal process as neither any witness has been examined nor petitioner has been given opportunity of being heard and finally he has not been supplied the copy of enquiry report, as a result whereof he has been deprived of reasonable opportunity of making effective representation. 15. Petitioner in Para-22(v) of the memo of the petition has specifically pleaded that the copy of enquiry report prepared by respondent No. 3 (enquiry officer) has not been furnished to him infringing the right to make effective representation against the enquiry report. In the reply by the respondents, said position has not been controverted. 16. 15. Petitioner in Para-22(v) of the memo of the petition has specifically pleaded that the copy of enquiry report prepared by respondent No. 3 (enquiry officer) has not been furnished to him infringing the right to make effective representation against the enquiry report. In the reply by the respondents, said position has not been controverted. 16. Learned counsel for the petitioner while relying on the judgment rendered in the case of Managing Director ECIL Hydrabad v. B. Karunakar (1993) 4 SCC 727 contended that opportunity of making representation on the report of the enquiry officer has to be considered before the disciplinary authority would arrive at its conclusion with regard to guilt or innocence in respect of the charge. The principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert all allegations before he is condemned. Denial of fair opportunity to the employee i.e. to consider the finding recorded by third party like enquiry officer without giving the employee an opportunity to reply to it negates the tenets of justice. It shall be quite advantageous to quote Para-29 and 30(iii) and (iv) of the referred judgment: “29. Hence, it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is breach of the principles of natural justice. 30(iii) Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him. (iii) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceedings or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him.” 17. The respondents have not been able to show from the records that the copy of the enquiry report was ever supplied to the petitioner. It being so, he has been deprived of making an effective representation which in turn amount to denial of fair opportunity and would amount to defeat the tenets of justice. 18. Applying the law as laid down by the Hon'ble Apex court in the judgment (supra), both the orders impugned i.e. Order No. 113 of 2000 dated 21.02.2000 passed by respondent No. 2 and the order No. Home-42(jail) of 2002 dated 28.01.2002 passed by respondent No. 1 are quashed. As a result whereof respondents shall be at liberty if they so chose to initiate fresh enquiry and in such eventuality shall strictly adhere to the rules and shall give reasonable opportunity to the petitioner of participation in the entire disciplinary proceedings. In case respondents will not chose for any reason more particularly in view of position they have projected i.e. record were washed out in the devastating floods of September, 2014 then they shall consider the case of the petitioner i.e. to restore his rank and to grant him all consequential benefits as shall be permissible under rules. In case respondents will not chose for any reason more particularly in view of position they have projected i.e. record were washed out in the devastating floods of September, 2014 then they shall consider the case of the petitioner i.e. to restore his rank and to grant him all consequential benefits as shall be permissible under rules. The whole exercise shall be undertaken and completed without any default or excuse within a period of four months from today. 19. Petition succeeds shall accordingly stands disposed of.