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2016 DIGILAW 571 (JK)

Jugal Kishore Sharma v. State of J&K

2016-10-28

JANAK RAJ KOTWAL

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JUDGMENT : Janak Raj Kotwal, J. 1. Petitioner, an Executive Engineer in Urban Local Bodies, Jammu, was served Memorandum No. HUD/Lit/178/2011-DULBJ, dated 15.07.2013 informing that he has manipulated/tampered his date of birth as recorded in his original academic certificate/Higher Secondary School Examination certificate issued by the J & K Board of School Education, Jammu and that it was contemplated to impose the major penalty, that is, removal from the service of the State and was given opportunity in terms of Rule 33(i) of J & K Civil Services (Classification, Control and Appeals) Rules, 1956 to give in writing his defence within fifteen days. Relevant in this memorandum is culled out: "Now, therefore, in pursuance to Rule No. 30 of J & K Classification, Control and Appeal Rules, 1956, it is contemplated to impose the major penalty i.e., removal from service of the state which does not disqualify him from future employment with immediate effect. Therefore, before the disciplinary action as warranted under J & K CCA Rules, 1956 is taken, you are given an opportunity in terms of Rule 33(i) of J & K CCA Rules, 1956 to give your statement in writing in your defence or to appear in person before the undersigned within 15 days from the issuance of this memo, failing which it will be presumed that you have nothing to say in your defence." The aforementioned memorandum is assailed by the petitioner in SWP No. 1618/2013. On this writ petition coming up on 26.07.2013, this Court stayed the operation of memorandum dated 15.07.2013, however, keeping it open for the respondents to conduct inquiry as per the rules occupying the field. Pursuant to the order passed by this Court on 26.07.2013 in SWP No. 1618/2013, the Administrative Secretary, Housing and Urban Development Department, herein Respondent No. 1, claims to have served the petitioner with fresh article of charges vide No. HUD/Lit/178/2011-DULBJ, dated 01.08.2013 along with the statement of imputation for showing cause 'as to why the major penalty be not imposed on him.' Thereafter Respondent No. 1 vide Govt. Order No. 227-HUD of 2013, dated 23.08.2013 removed the petitioner from service of the State. Order No. 227-HUD of 2013, dated 23.08.2013 removed the petitioner from service of the State. Relevant from this order is culled out: "Whereas, in compliance to the Hon'ble High Court directions dated 26/07/2013, fresh article of charges vide No. HUD/Lit/178/2011-DULBJ, dated 01.08.2013 along with statement of imputation was served upon the Officer to show cause within 10 days as to why the major penalty be imposed on him.; Whereas the fresh Article of Charges dated 01.08.2013 was served upon the Officer and was handed over to him on the same date, but he stated that he has already received the same on 27.07.2013, which clearly indicates that he has mislead the competent authority; Whereas the competent authority is fully satisfied that Shri Jugal Kishore Sharma is guilty of grave mis-conduct by tampering his date of birth; Now, therefore, on the recommendations of the Inquiry Officer and after careful consideration of all relevant material Shri Jugal Kishore Sharma Technical Officer to Commissioner Secretary, H & UDD is hereby removed from the service of the State, which does not disqualify him from future employment, with immediate effect as per the provisions of Rule 33(i) of J & K Classification, Control and Appeal Rules, 1956. It is further ordered that the date of birth of the officer shall be recorded as 17.06.1956 instead of 17.06.1958. By Order of the Government of Jammu and Kashmir. (underlining by me) Sd/- (Jeet Lal Gupta) IAS Commissioner Secretary to Government, Housing & Urban Dev. Department. Dated:- 23.08.2013" 2. The removal order dated 23.08.2013 is assailed by the petitioner in SWP No. 2827/2013. 3. Heard learned counsel for the parties and perused the record. 4. Petitioner assails the removal order dated 23.08.2013 on the ground that the communication dated 01.08.2013 (supra) was never served upon him. He was served with a memorandum dated 15.07.2013 on 07.08.2013 and was asked to issue a receipt in regard to communication dated 01.08.2013, which he had refused. It is contended that no inquiry pursuant to communication dated 01.08.2013, was conducted and he was not served with show cause notice against the purposed penalty. The impugned order, therefore, is void ab initio, illegal, arbitrary and violative of Articles 14, 16 and 311 of the Constitution of India and Section 126 of the State Constitution. 5. It is contended that no inquiry pursuant to communication dated 01.08.2013, was conducted and he was not served with show cause notice against the purposed penalty. The impugned order, therefore, is void ab initio, illegal, arbitrary and violative of Articles 14, 16 and 311 of the Constitution of India and Section 126 of the State Constitution. 5. The impugned removal order on its plan reading reflects the hasty decision of Respondent No. 1/2 having been taken without application of mind and in derogation of constitutional and legal provisions. The article of charges is said to have been served on the petitioner vide communication dated 01.08.2013 and the impugned order has been passed on 23rd day thereafter on 23.08.2013. The order does not show that after service of the article of charges on the petitioner the Disciplinary Authority, that is, the Respondent No. 1 had appointed any inquiry officer and inquiry as contemplated under Article 311 of the Constitution read with Section 126 of the State Constitution and Rule 33 of Civil Services (Classification, Control and Appeals) was conducted. The Disciplinary Authority, as per the impugned order, after the alleged service of the article of charges and memorandum vide No. HUD/Lit/178/2011-DULBJ, dated 01.08.2013 on the petitioner undoubtedly seems to have jumped over to recording his satisfaction and finding of guilt of mis-conduct against him and passing the removal order. 6. Record of the Departmental proceedings has not been produced before the Court. What is evident from the impugned removal order dated 23.08.2013 is clearly made out from the objections filed on behalf of the respondents. Petitioner's plea that no inquiry was conducted against him after order dated 26.07.2013 passed by this Court in SWP No. 1618/2013, is not denied. It is not the respondents' say in their reply that after serving the memorandum and the statement of imputation vide communication dated 01.08.2013 an inquiry officer for conducting the inquiry was appointed and any inquiry was conducted. Rather it is stated in paras 25 to 26 of the reply that the article of charges along with statement of imputation was duly served on the petitioner asking him to show cause within ten days as to why the major penalty should not be imposed against him. Petitioner, however, chose not to respond. Rather it is stated in paras 25 to 26 of the reply that the article of charges along with statement of imputation was duly served on the petitioner asking him to show cause within ten days as to why the major penalty should not be imposed against him. Petitioner, however, chose not to respond. I cull out reply to Para 25 to 26: "25 to 27 In reply to the facts stated in paras-25, 26 and 27 of the writ petition, it is respectfully submitted that the article of charges along with the statement of imputation was duly served on the petitioner asking him to show cause within 10 days as to why the major penalty should not be imposed against the petitioner. The petitioner, however, did not choose to respond to the same. The allegations of malafide leveled against the respondent No. 2 can best be replied by that respondent." 7. It is thus undisputable that pursuant to the order dated 26.07.2013 passed by this Court in SWP No. 1618/2013, Respondent No. 1 vide his No. HUD/Lit/178/2011-DULBJ, dated 01.08.2013 issued fresh article of charges along with statement of imputation to the petitioner. Petitioner admits that this communication was served upon him on 07.08.2013 but the memorandum attached thereto was dated 15.07.2013 which had earlier been received by him on 23.07.2013. Be that as it may, after service of the memorandum and the statement of imputation vide No. 01.08.2013, respondent neither appointed any inquiry officer nor conducted any inquiry and straightway issued the impugned order of removal from service. 8. The procedure adopted by Respondent No. 1/2 was totally illegal and in derogation to Article 311 of the Constitution of India read with Section 126 of the State Constitution and the procedure provided under Rule 30 read with Rule 33 of the Civil Services (Classification, Control and Appeals) Rules, 1956. Section 126 of the Constitution of the Jammu and Kashmir, which is in tune with the Article 311 of the Constitution of India, provides constitutional protection to a Government servant against his dismissal, or removal from service or reduction in rank. Sub-section (1) of Section 126 of the State Constitution provides that no person who is member of the civil services of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Sub-section (1) of Section 126 of the State Constitution provides that no person who is member of the civil services of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Sub-section (2) of Section 126 provides that no such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Not only that, where it is proposed after such inquiry to impose on him any such penalty, he shall be given a reasonable opportunity of making representation on the penalty proposed. Section 126, thus, reflects and mandates observations of the principle of audi alteram partem which is one of the important principles of Natural Justice. 9. To say precisely and sum up, the impugned removal order dated 23.08.2013 has been passed without conducting the Departmental proceedings (inquiry) as required under Article 311 of the Constitution read with Section 126 of the State Constitution and Rule 30 read with Rule 33 of J & K Civil Services (Classification, Control and Appeal) Rules, 1956 and is, therefore, illegal. The order violates the principles of Natural Justice. Petitioner has been deprived his Constitutional right of hearing before removing from his service. Impugned order, therefore, cannot sustain. 10. Viewed thus, this writ petition is allowed and by issue of writ of Certiorari, the impugned order is quashed. Disposed of.