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2017 DIGILAW 2 (JK)

Kartar Chand v. High Court of Jammu and Kashmir

2017-01-27

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

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JUDGMENT : TASHI RABSTAN, J. 1. Through the medium of this writ petition, the petitioner is seeking quashing of imposing of minor penalty of withholding of two annual increments with non-cumulative effect by the competent authority in terms of Rule 30 of Civil Services (Classification, Control and Appeal) Rules, 1956 on the ground of committing criminal misconduct in demanding illegal gratification from the complainant, conveyed to the petitioner by respondent No. 2 vide Communication No. 3074/PSY-304 dated 17.12.2014. 2. The facts-in-brief, as averred in the writ petition, are that when the petitioner was posted as a Process Server in the Court of Principal District and Sessions Judge, Jammu in the year 2007, one Parveen Singh, complainant, filed a complaint against him alleging therein that the petitioner demanded money for effecting service of summons issued by the Presiding Officer, MACT, Kathua, and when the complainant himself effected the service, it was alleged that the petitioner refused to make a report on it, instead the petitioner tore the summons and threw it on the face of complainant. It is averred that in the preliminary inquiry, respondent No. 4 while considering that the summons-in-question were not having complete address nor the copies of petitions were enclosed therewith, observed that there was no serious dereliction of duty on the part of petitioner herein. However, in the regular inquiry conducted by respondent No. 3, he recommended for stopping of two annual increments of petitioner with non-cumulative effect. Accordingly, vide impugned communication, the petitioner was conveyed by respondent No. 2 regarding imposing of minor penalty of withholding of two annual increments with non-cumulative effect by the competent authority. 3. Learned counsel appearing for petitioner contended that the complainant had brought dasti summons from the Court of MACT, Kathua for service with incomplete address, and also the copies of petitions were not attached with the summons, as such the petitioner in absence of complete particulars was unable to effect service at the given address. He further contended that the petitioner never tore the summons nor refused or denied to effect service, rather he requested the complainant to bring the summons with complete particulars. He, thus, contended that the petitioner was never at fault nor he misconducted in any way in performing his official duties, rather the complainant has made false allegations against him. 4. He further contended that the petitioner never tore the summons nor refused or denied to effect service, rather he requested the complainant to bring the summons with complete particulars. He, thus, contended that the petitioner was never at fault nor he misconducted in any way in performing his official duties, rather the complainant has made false allegations against him. 4. Reply on behalf of respondents 1 to 4 has been filed contending therein that after giving adequate opportunity of being heard to the petitioner, he was found guilty of criminal misconduct in demanding illegal gratification from the complainant despite being a public servant 5. Heard learned counsel appearing for the parties and perused the file. 6. After minutely going through the relevant documents as well as the writ record, we are of the considered view that the writ petition requires to be allowed for the following reasons. i. That during the course of hearing of this petition, learned counsel for petitioner produced photocopies of summon-in-question which were required to be served at the given address, a perusal whereof reveals that there were totally incomplete particulars on the summons, i.e., ICICI Lombard General Insurance Company Ltd., Branch Office, Jammu. Further, learned counsel for petitioner also produced a photocopy of summons in another case, wherein complete full particulars of same company have been given for effecting service at the given address, i.e., ICICI Lombard General Ins. Co. Ltd., Room No. 301, 3rd Floor, North Block, Bahu Plaza, Jammu, through its Branch Manager. Thus, it seems the petitioner was right in asking the complainant that he was unable to serve at the given address in absence of complete particulars. Further, as per required procedure, copies of petitions were not annexed with the summons; otherwise the petitioner could certainly have the option to have complete particulars from such petitions for effecting service at the given address. Therefore, it would be wrong to presume or believe on the version of complainant that the petitioner had refused or demanded money for effecting service at the given address once the complainant had himself brought the summons with incomplete particulars. Even the complainant had failed to produce any evidence in support of his allegation of demand of money by the petitioner. ii. Even the complainant had failed to produce any evidence in support of his allegation of demand of money by the petitioner. ii. It has also come on record in the regular inquiry that the lone witness relied upon by the complainant, namely, Ajit Kumar could not be examined, as he did not turn up to support the version of complainant. Thus, except the complainant, no independent witness deposed against the petitioner. iii. That the complainant had failed to prove that the petitioner had, in fact, torn the summons and threw the torn papers on his face. The locus, if any, was on the complainant to prove his case. Therefore, in the given facts, we are unable to convince with the findings of respondent No. 3 that the petitioner had committed any dereliction of duty or indulged in misconduct of any kind. Since the complainant had failed to prove the allegations levelled against the petitioner in the complainant, we have no option but to allow the writ petition. 7. Therefore, in view of the above discussion, the writ petition is allowed and imposing of minor penalty of withholding of two annual increments with non-cumulative effect by the competent authority in terms of Rule 30 of Civil Services (Classification, Control and Appeal) Rules, 1956, conveyed to the petitioner by respondent No. 2 vide Communication No. 3074/PSY-304 dated 17.12.2014 is hereby quashed. Miscellaneous petition(s), accordingly, stands disposed of.