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2016 DIGILAW 469 (JK)

Mohd. Ashraf v. State of J&K

2016-09-22

N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This writ petition is filed praying to quash the enquiry proceedings conducted by Respondent No. 4 against the petitioner along with the charge memo and recommendations made by the Enquiry Officer with further direction to the respondents not to stop the annual increments of the petitioner and not to recover the amount of Rs. 1.61 lacs from him. It is the case of the petitioner that he was assigned the job of collecting Registration Certificates of two Ambulance Cars from SSP Security Kashmir, by movement order dated 25.11.2002. Accordingly, the petitioner proceeded from Jammu to Srinagar in vehicle No. 9176/JK02-G which was driven by SGCT named Manzoor Ahmad. It is further stated that while on official duty on 30.11.2002, due to break failure, the aforesaid vehicle met with an accident at Soura Bus Stand and FIR was lodged in P/S Soura. It is further submitted that Respondent No. 3 directed Dy. Inspector General of Police Armed Range Kashmir Srinagar to assess the vehicle through the Constituted Board for Condemnation. Departmental enquiry was ordered in the matter. Petitioner pleaded not guilty to the charges framed against him. It is the petitioners case that after framing of the charge sheet the petitioner was not allowed to participate in the enquiry and was not given an opportunity of being heard. Finally the Respondent No. 3, on the basis of the enquiry report submitted by respondent No. 4 passed the impugned order dated 02.07.2003, and held that the petitioner is responsible for damage to the vehicle and inflicted the punishment of stoppage of annual increment for a period of three years and recovery of an amount of Rs. 1.60 lacs in twenty equal instalments starting from the month of July, 2003 on account of damage charges in terms of Rule 346 [346. Recovery front pay of the whole or part of any pecuniary loss caused to Government by the negligence or breach of order:- Such recovery shall be ordered after responsibility for the loss of Government property etc. is established on enquiry. The extent of recovery will be determined according to the circumstance of the case] of J & K Police Manual and the petitioner shall not be assigned any important independent post during his service. The said order is challenged in this writ petition. 2. is established on enquiry. The extent of recovery will be determined according to the circumstance of the case] of J & K Police Manual and the petitioner shall not be assigned any important independent post during his service. The said order is challenged in this writ petition. 2. In the reply filed by the respondents, it is stated that vehicle in question met with an accident at Soura when it was being driven by petitioner himself and not by the driver of the vehicle because the petitioner had taken away the vehicle from APCR without the knowledge of driver as also without the permission of the competent authority and he was not assigned any duty to be performed by him at Soura. Further it is stated that petitioner is a resident of Ganderbal and was on his way to home when at Soura the vehicle driven by him illegally and without permission met with an accident. It is submitted that the enquiry was conducted in the matter in accordance with the rules and petitioner was given sufficient opportunity of hearing. 3. Rule 334(2)(j) [Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order] of J & K Police Rules, contemplates imposition of punishment of recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order. Rule 334(3) of the said Rules, defines the major punishment [The term "Major Punishment" shall be held to mean any authorised punishment of dismissal, removal, compulsory retirement, withholding of increments, fine, reduction, recovery from pay and forfeiture of increment.] which includes recovery from Pay. 4. The impugned order states that the amount of Rs. 1.61 lacs be recovered in instalments and the petitioner being in Government service as Constable, it goes without saying that recovery is to be made from his salary. Thus the punishment inflicted is a major punishment. As per the above quoted Rule, when a major punishment is to be imposed the concerned person has to be heard so as to observe the principles of natural justice. In the instant case the said procedure has not been followed and the disciplinary authority without calling for objections from the petitioner with regard to proposed penalty has imposed the major punishment of recovery of Rs. 1.61 lacs from his salary. 5. In the instant case the said procedure has not been followed and the disciplinary authority without calling for objections from the petitioner with regard to proposed penalty has imposed the major punishment of recovery of Rs. 1.61 lacs from his salary. 5. The Hon'ble Supreme Court of India in the judgment reported in (1998) 7 SCC 84 (Punjab National Bank & Ors. v. Kuni Behari Misra etc.) considered the said issue and in paragraph-19 has held thus: "19.....The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." The same view was expressed by the Hon'ble Supreme Court in the case reported in (1999) 7 SCC 739 (Yoginath D. Bagde v. State of Maharashtra) and in paragraph 31 it is held thus: "31....If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution." In the decision reported in 2004 (8) SCC 653 (J.A. Naiksatam v. Prothonotary & Senior Master, High Court of Bombay & Ors.), the said proposition is reiterated. 6. In the light of the judgments cited supra and no opportunity was given to the petitioner with regard to the punishment before passing of the order, the recovery order to recover amount of Rs. 1.61 lacs is set aside granting liberty to the disciplinary authority to issued notice with regard to the proposed recovery, call objections from the petitioner and after considering his objections pass fresh orders. If such an order is proposed to be passed the same shall be passed within a period of twelve weeks from the date of receipt of copy of this order. The writ petition is allowed with above liberty. No costs.