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2018 DIGILAW 203 (JK)

Mohammad Saleem v. State of JK

2018-04-03

M.K.HANJURA

body2018
ORDER : M.K. Hanjura, J. 1. The crux of the petition of the petitioner is that he was involved in two cases- one bearing FIR No. 5/2004 of P/S Kunzer, Baramulla, for the commission of offences punishable under Section 279, 304-A RPC and the other related to FIR No. 40/2002 of P/S Crime Branch, Srinagar, for the commission of offences punishable under Sections 302, 468, 120-B RPC. During the pendency of these cases, an inquiry was initiated against the petitioner for his unauthorized absence from service which was entrusted to the Deputy Director Prosecution, Traffic Headquarters J&K, Srinagar, by the Inspector General of Police, Traffic J&K, Srinagar. The Inquiry Officer laid his report on the 7th of October, 2010. The petitioner has further stated in the petition that these cases are sub judice in the Court, but during the pendency of the writ petition, the petitioner placed on record the copies of the judgments by which he has been acquitted in both these cases, the consequence of which will be detailed hereinafter. The petitioner was served with an order of dismissal bearing No. 216 of 2010 dated 15th of November, 2010, which is attached to the petition as Annexure-D. 2. The petitioner has challenged the vires of the order of dismissal chiefly on the grounds that the Police Rules and the Police Manual require that before directing any departmental inquiry, prior permission of the District Magistrate is mandatory, which has not been sought in the instant case and, therefore, no inquiry could have taken place. It has also been stated that in the case of 'Ghulam Mohi ud Din v. State', this Court has held that if a criminal case is pending against the delinquent, no departmental inquiry can take place. It is further stated that since the Inspector General of Police (IGP) was informed that two criminal cases are pending against the accused before the Courts of competent jurisdiction, therefore, no departmental inquiry could take place, the Inspector General of Police (IGP) did not pay any heed to such a request. It is further stated that the show cause notice issued against the petitioner portrays a closed mind. The delinquent official tendered his reply to the show cause notice. The accused, it is pleaded, is presumed to be innocent unless and until his guilt is proved. It is further stated that the show cause notice issued against the petitioner portrays a closed mind. The delinquent official tendered his reply to the show cause notice. The accused, it is pleaded, is presumed to be innocent unless and until his guilt is proved. It is further submitted that the petitioner was involved in a false criminal case and no opportunity to lead evidence in defence was given to him by the disciplinary authority, who was influenced by one Reyaz Ahmad, In-charge Establishment Branch, IGP, Traffic, who had abused the petitioner and was demanding Rs. 30,000 from him as hush money, when no charge sheet was framed against him by the Inquiry Officer. Therefore, all the proceedings are illegal. The learned counsel for the petitioner further pleads that there is no substance in the fact that the absence of the petitioner was unauthorized. It is stated that he was under detention at the time when he was shown to be absent from the duties. In the end, the petitioner has prayed that the order No. 216 of 2010 dated 15th of November, 2010 (Annexure-D) and order No. 207 of 2012 dated 19th of January, 2012 (Annexure-D1) may be quashed and he may be reinstated in service with all consequential benefits. 3. In their reply, the respondents have stated that the petitioner was involved in case FIR No. 5/2004 under Section 279, 304-A RPC etc., of P/S KunzEr, and FIR No. 40/2002 under Section 302, 468, 120-B RPC, P/S Crime Branch, Kashmir. It is stated that the petitioner was placed under suspension by the then SSP Traffic vide order No. 31 of 2004 dated 4th of February, 2004, for his unauthorized absence and arrest. He remained absent for a period of 18 days. He submitted an application on 7th of February, 2004, for permission to resume duties and the same was allowed. The petitioner again deserted with effect from 14th of February, 2005 and this unauthorized absence on his part was recorded vide DD report No. 02 dated 14th of February, 2005 of TPL, Srinagar and, in spite of wireless messages, the petitioner neither resumed his duties nor did he submit any reason for the same. It also came to limelight that the petitioner is in judicial custody in case FIR No. 40/2002 under Sections 302, 468, 120-B RPC, P/S Crime Branch, Kashmir, with effect from 31st of March, 2006. It also came to limelight that the petitioner is in judicial custody in case FIR No. 40/2002 under Sections 302, 468, 120-B RPC, P/S Crime Branch, Kashmir, with effect from 31st of March, 2006. The petitioner finally sought permission to resume his duties on 29th of July, 2009 and the same was granted and recorded vide DD report No. 40 dated 29th of July, 2009 of TPL, Srinagar. In view of the desertion of the petitioner by way of unauthorized absence, that too, for years together on various occasions and his subsequent involvement in heinous criminal cases, a 'Departmental Inquiry' was ordered and conducted against him and he was given full opportunity of being heard and to defend himself. During the course of inquiry proceedings, the delinquent cross examined the witnesses and on the completion of the 'Departmental Inquiry' a show cause notice' as required under rules' was also served upon the petitioner to which he submitted a detailed reply. The disciplinary authority' after going through the inquiry papers and the reply to the show cause notice submitted by the delinquent, passed the impugned order whereunder the petitioner was dismissed from the service as the same was found suitable in the circumstances of the case. The appeal filed by the appellant before the Inspector General of Police, Traffic, J&K, Jammu, was considered and disposed of by PHQ vide impugned order No. 207 of 2012 dated 19th of January, 2012, after examination/due consideration, in which the order dated 15th of November, 2010, was found to be a reasonable one and based on facts. 4. Heard and considered. 5. The main limb of the argument of the learned counsel for the petitioner is that since the criminal cases were pending against the petitioner, therefore, the 'Departmental Inquiry' could not have been initiated against the petitioner. The law is that the criminal cases and the departmental proceedings are two different species. Legally there is no bar to initiate and conduct a 'Departmental Inquiry' during the pendency of a criminal case, as has been held in a catena of judicial pronouncements. Learned counsel for the respondents is right in saying that the 'Departmental Inquiry' and criminal proceedings can run simultaneously. The points of reference and the procedure in the criminal proceedings and the 'Departmental Inquiry' are altogether different. Learned counsel for the respondents is right in saying that the 'Departmental Inquiry' and criminal proceedings can run simultaneously. The points of reference and the procedure in the criminal proceedings and the 'Departmental Inquiry' are altogether different. While the 'Departmental Inquiry' is initiated with a view to ascertain whether an employee is guilty of such conduct as would merit his removal and dismissal from the service or any other major or lesser punishment, as the case may be. In criminal cases, the Court has to find out whether the ingredients of the offences with which the accused has been charged are, or, are not, made out and, whether, on the basis of the evidence that has been collected during the trial, a judicial process can be issued. The purpose to be achieved in an inquiry is distinct from a criminal trial. The outcome of either of the proceedings cannot affect the other. However, in the case on hand, the inquiry was initiated not only for the unauthorized absence of the petitioner from his duty, but also for his involvement in the two criminal cases, in which he was facing the trial, which is a specific charge against the petitioner and, what shall be its effect and fallout on the case, will be detailed hereinafter at the appropriate place. 6. Interpreting the provisions of the law, under the cover of which the petitioner has been discharged from service, this Court in case titled "Ghulam Mohammad v. State of JK", reported in "1998 SLJ 273", had the occasion to examine the range, limits and the scope of Rules 337 and 359 of the Jammu & Kashmir Police Rules read with Section 126 of the Constitution of Jammu & Kashmir and Article 311 of the Indian Constitution and it held as under: "Rule 359 of Police Rules postulates two-fold stages of the enquiry, one preliminary and another after framing the charge. As regards preliminary enquiry, the Enquiry Officer is required to follow the procedure as laid down under sub-rules (1) to (5) of Rule 359 of Police Rules. Perusal of the chargesheet does not depict the names of the witnesses who have been examined during the preliminary enquiry, so much so it does not even depict as to whether he was ever summoned, recording and reading out a statement of summary of allegations, is therefore, ruled-out. Perusal of the chargesheet does not depict the names of the witnesses who have been examined during the preliminary enquiry, so much so it does not even depict as to whether he was ever summoned, recording and reading out a statement of summary of allegations, is therefore, ruled-out. The chargesheet depicts that a communication was sent to the petitioner and was provided an opportunity to question the witnesses which he did not but it does not indicate that the basic requirement was observed which makes it obligatory upon the enquiry officer to summon the petitioner and read out the statement of summary of allegations to him and after observing the said requirement question, of recording evidence would arise. Having failed to follow the mandate of rule, the preliminary enquiry vitiates, for, same has not been in accordance with the mandate of Rule 359 of Police Rules and on this count the impugned order is liable to be set aside. The procedure which the Enquiry Officer has to follow after framing the charge is envisaged in sub-rules 6 and 7 of Rule 359 of Police Rules. Sub rule 6 makes it obligatory upon the enquiry officer to provide an opportunity to the accused official to give a list of such witnesses whom he would like to produce in defence and record their statements. It further provides that the statements of such witnesses can be recorded even at the places of their availability, of course, for the reasons detailed in the sub-rules. The said sub-rule further provides that even access to the files, excepting the confidential record, can also be permitted and the object is to allow sufficient opportunity of defence to the delinquent official/officer. After receiving the evidence, oral and documentary, yet another opportunity is to be made available to the delinquent official at conclusion of the defence evidence under sub-rule 7 to make a statement in reply for the charge, so much so the delinquent official can seek permission to file a written statement in his defence after the conclusion of the evidence in defence." 7. On the analogy of the law laid down above, the charge sheet, which is a part of the record produced before this Court, does not spell out the names of the witnesses who deposed against the petitioner nor has the petitioner been informed about it. On the analogy of the law laid down above, the charge sheet, which is a part of the record produced before this Court, does not spell out the names of the witnesses who deposed against the petitioner nor has the petitioner been informed about it. Section 126(2) of the State Constitution provides for an additional safeguard of a second show cause notice regarding the proposed punishment to be imposed on the delinquent. The term "proposed punishment" would mean and convey the punishment that has to be imposed on the delinquent, i.e. the dismissal in the instant case. It had to be specifically communicated to the petitioner in the second show cause notice that the respondents propose to dismiss the petitioner from service. The dictionary meaning of the word "proposed" is advanced, advised, arranged, considered, contemplated, determined, intended, etc., and, therefore, the punishment to be inflicted on the delinquent had to be determined in the show cause notice and had to be conveyed to the delinquent, which has not been done herein this case, on the basis of which it can be said that the adherence to the rules in the strict sense of the term is lacking in the instant case. 8. Looking at the instant petition from another perspective, the inquiry has been conducted against the accused for his unauthorized absence from duty from 20th of January, 2004 to 7th of February, 2004 and from 14th of February, 2005 to 29th of July, 2009. In the counter affidavit, the respondents have stated that the petitioner was allowed to join his duty on both the occasions. It has been stated by the respondents that the petitioner was placed under suspension by the then SSP Traffic, Kashmir, vide order No. 31 of 2004 dated 4th of February, 2004, for his unauthorized absence, arrest, etc. The petitioner, after remaining absent for a period of 18 days, as stated, submitted an application on the 7th of February, 2004, seeking permission to resume duties, which was granted to him. With regard to the second spell of the absence of the petitioner, it has been pleaded that he sought permission to resume duties on the 29th of July, 2009, which was granted in his favour vide DD Report No. 40 dated 29th of July, 2009, of the Traffic Police Lines, Srinagar. With regard to the second spell of the absence of the petitioner, it has been pleaded that he sought permission to resume duties on the 29th of July, 2009, which was granted in his favour vide DD Report No. 40 dated 29th of July, 2009, of the Traffic Police Lines, Srinagar. Since the petitioner has been allowed to join his duty after both the aforesaid spells of absence, it mitigates the effect of his absence from duty and no such inquiry could have been directed once he was allowed to join by the respondents after his absence. The only inference that can be drawn under the circumstances is that he offered a plausible explanation for his absence and the competent authority, after taking a stock of the same, allowed him to join his duties. The conduct of the inquiry, after the petitioner having been allowed to join his duty, reflects an appalling lack of the application of mind on the part of the competent authority, as a corollary to which, the impugned orders are set aside. 9. Testing the case of the petitioner on the touchstone of the two cases having been registered against him, wherein he has, subsequently, been acquitted, it has been the contention of the respondents that the inquiry did not relate to these charges, which does not hold true on the basis of the record produced before this Court. In the summary of the allegations, it has been a specific charge against the delinquent that the case FIR No. 40/2013 under Section 302, 468, 120-B was registered by Police Station, Crime, Kashmir, against him and he was detained in judicial custody w.e.f. 31st of March, 2016, and later on vide DD report No. 40 dated 29th of July, 2009, he resumed his duties after a long absence. The same has been repeated and reiterated in the charge sheet issued to the petitioner and, in reply to the charge sheet issued against the delinquent, he has pleaded that since two criminal cases have been registered against him which are pending trial, therefore, if he offers his defence that will prejudice him. Looking at the entire record of the inquiry, the charge relating to the pendency of two criminal cases against the delinquent has always been there in substance throughout the inquiry. 10. Looking at the entire record of the inquiry, the charge relating to the pendency of two criminal cases against the delinquent has always been there in substance throughout the inquiry. 10. During the pendency of the petition before this Court, the petitioner has been acquitted for his involvement that surfaced against him in both the cases. In case FIR No. 5/2004, registered in Police Station, Kunzer, Baramulla, the Court has come to the conclusion that the prosecution has produced only one witness out of 15 witnesses listed in the charge sheet to prove its case and the witness produced and examined before the Court has neither supported the case of the prosecution nor has he deposed anything against the accused, as a result of which, the prosecution has failed to prove its case which is, accordingly, dismissed. In case bearing FIR No. 40/2002, registered in Police Station, Crime, Kashmir, the accused has been acquitted by giving him the benefit of doubt and the relevant excerpts of the judgment of the Court of learned Additional Sessions Judge, Srinagar, which have a bearing on the subject, read as follows: "Hence there are two versions in the prosecution case one version of occurrence as per the statements of ocular witnesses and the other as per that expert medical forensic evidence the scrutiny of which does not completely rule out death by poisoning due to suicide, the circumstances not incompatible with innocence of the deceased ( AIR 2010 SC 762 ). It is not safe to construe that oral evidence depicts the correct version of the occurrence. It means there is a case of conflict between the oral ocular evidence and medical evidence confirming cause of death of poisoning only, leading to two stories one in favour of the prosecution and another in favour of the accused. Thus, when two parallel interpretations are possible on the basis of the same evidence put forth by the prosecution, one favouring the prosecution and another favouring the accused. It is the interpretation in favour of the accused which is to prevail and it carves out parallel story placing a reasonable doubt on the case propounded by the prosecution. The benefit of the doubt goes to the accused and not the prosecution. ( AIR 2011 SC 2328 ). The prosecution case therefore fails the same is hereby dismissed the accused are acquitted by giving them benefit of doubt. The benefit of the doubt goes to the accused and not the prosecution. ( AIR 2011 SC 2328 ). The prosecution case therefore fails the same is hereby dismissed the accused are acquitted by giving them benefit of doubt. Their bail bond shall stand discharged. The file shall go to the records after due completion." 11. The apex Court of the country, in the case of 'Union Territory, Chandigarh, Administration & Ors. v. Pradeep Kumar & Anr.', reported in (2018) 1 SCC 797 , has analyzed the scope and effect of a judgment of acquittal earned by a member of the police force and has left it open for the 'Screening Committee' to take a call in such matters. The relevant paragraphs of this judicial precedent which are germane to the issue read as under: "15. From the above details, we find that the screening committee examined each and every case of the respondents and reasonings for their acquittal and taken the decision. While deciding whether a person involved in a criminal case has been acquitted or discharged should be appointed to a post in a police force, nature of offence in which he is involved, whether it was an honourable acquittal or only an extension of benefit of doubt because of witnesses turned hostile and flaws in the prosecution are all the aspects to be considered by the Screening Committee for taking the decision whether the candidate is suitable for the post. As pointed out earlier, the Screening Committee examined each and every case and reasonings for their acquittal and took decision that the respondents are not suitable for the post of Constable in Chandigarh Police. The procedure followed is as per guideline 2 (A) (b) and object of such screening is to ensure that only persons with impeccable character enters police force. While so, the court cannot substitute its views for the decision of the Screening Committee. 16. On behalf of the respondents, much reliance was placed upon Joginder Singh v. Union Territory of Chandigarh and Others, (2015) 2 SCC 377 . While so, the court cannot substitute its views for the decision of the Screening Committee. 16. On behalf of the respondents, much reliance was placed upon Joginder Singh v. Union Territory of Chandigarh and Others, (2015) 2 SCC 377 . In the said case, the appellant thereon was charged under sections 148, 149, 323, 325 and 307 IPC but acquitted by the trial court holding that the prosecution has failed to prove the charges leveled against him since complainant as well as injured eye witnesses failed to identify the assailants and the complainant had stated that his signature was obtained on a blank sheet by the investigating officer. The case involved was a family dispute. In such facts and circumstances, this Court held that acquittal of appellant Joginder Singh was an honourable acquittal and hence, he should not be denied appointment to the post in question. The decision in Joginder Singh case does not advance the case of the respondents herein. 17. In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference. The Tribunal and the High Court, in our view, erred in setting aside the decision of the Screening Committee and the impugned judgment is liable to be set aside." 12. In view of the law laid done above, the respondents are directed to constitute a 'Screening Committee', if not already in place, in order to find out whether the continuance of the petitioner in the police force as a Constable is suitable. The 'Screening Committee' shall examine whether the retention of the petitioner in the police service is warranted under the circumstances. The 'Screening Committee' shall pass an order on that count within a period of three months from the date this order is conveyed to them. The 'Screening Committee' shall examine whether the retention of the petitioner in the police service is warranted under the circumstances. The 'Screening Committee' shall pass an order on that count within a period of three months from the date this order is conveyed to them. The 'Screening Committee', after returning a finding on the suitability or otherwise of the retention of the services of the petitioner in police force, shall decide the claim of salary/remuneration or wages to be paid to the petitioner during the period he was out of service. 13. Writ petition disposed of as above. 14. Registry to return the record of the case to the learned counsel for the respondents with utmost dispatch.