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2018 DIGILAW 315 (JK)

Assadullah Bhat v. State of JK

2018-05-17

M.K.HANJURA

body2018
JUDGMENT : 1. The petitioner, by the medium of this writ petition, seeks a writ of Certiorari for quashing the order bearing No. 1732/90 dated 12th of December, 990, passed by respondent No.3 – Senior Superintendent of Police (SSP), Srinagar. A writ of mandamus is also sought for commanding the respondents to reinstate the petitioner on the post of Constable from the date of his termination and pay him all consequential benefits. 2. The facts that are essential for arriving at a just conclusion in this matter are that the petitioner was initially appointed as a Constable in the J&K Police vide order dated 16th of June, 1982. It is stated by the petitioner that while rendering the service to the absolute satisfaction of the immediate authorities, he came to be arrested by the Security Forces on 8th of February, 1990, on false and frivolous charges and was kept in illegal custody of the respondent – State for more than 5 years, without disclosing the whereabouts during the entire period of his illegal custody. It is further stated that the petitioner was subjected to repeated interrogations in different interrogation centers during the period of his disappearance and ultimately, on the intervention of various Human Rights Organizations and International Red Cross Committee, his whereabouts were disclosed by the respondents. It is further stated that the respondents revealed that the petitioner was booked in F.I.R Nos. 29/97 & 11/95 and was detained, subsequently, under the provisions of the Public Safety Act (PSA), 1978. In the year 2005, the petitioner was released from the preventive custody. Immediately thereafter the petitioner approached to the respondent No.3 for joining his duties but he was not allowed to join his services and instead he was informed that his services stand already terminated. It is stated further that when repeated requests, for providing the copy of the order of termination to the petitioner, did not yield any result, he was compelled to approach this Court by medium of writ petition (SWP 238/2005), seeking a direction to the respondents to command them to provide the copy of the order of termination to the petitioner. the Hon’ble Court was pleased to allow the prayer of the petitioner vide its order dated 30th of March, 2005 and the respondents were directed to furnish a copy of the order of termination to the petitioner. the Hon’ble Court was pleased to allow the prayer of the petitioner vide its order dated 30th of March, 2005 and the respondents were directed to furnish a copy of the order of termination to the petitioner. It is further stated that due to the continuous detention of the petitioner coupled with the delay on the part the respondents to provide the copy of termination order to the petitioner, he could not approach the Court in time to assail the order of termination of his service impugned herein. The petitioner has stated that the delay caused in challenging the said order is neither deliberate nor intentional but it happened due the unavoidable circumstances which were beyond his control. 3. The order of termination is challenged, inter alia, on the grounds that it is illegal, unlawful and unconstitutional as the same has been passed under art. 126(2)(b) of the J&K Constitution on the plea of gross misconduct. The allegation of gross misconduct, being a serious allegation, requires to be determined by conducting a proper enquiry ordained by law. The order of termination having been passed without holding proper enquiry in the matter, is violative of the principal of natural justice and the mandate of article 311 of the Constitution of India. It is further stated that dispensing with the requirement of holding an enquiry on the ground that the prevailing conditions in the State of J&K, more particularly, in the valley of Kashmir, do not warrant to exhaust such a necessary option, is totally unjustified and uncalled for as the fact remains that anyone, who was terminated by the respondent department on the ground of misconduct right from 1990 till date, was given an opportunity of being heard by holding proper enquiry into the respective allegations levelled against them. However, the petitioner has been deprived of the benefit of the procedure established by law and has been singled out with mala fide designs by the respondent No.3. It is reiterated by the petitioner in the petition that his conduct from the time of his inception into the service till date has remained flawless and quite satisfactory and nothing incriminating has ever been found against him. It is reiterated by the petitioner in the petition that his conduct from the time of his inception into the service till date has remained flawless and quite satisfactory and nothing incriminating has ever been found against him. This aspect of the matter, in the case of the petitioner, has been given a complete go bye, which amounts to violation of the mandate of article 14 of the Constitution of India and, therefore, the impugned order of termination is patently illegal and deserves to be quashed. It is further stated that the rights and interests of the petitioner have been put to prejudice as there was no material available before the respondents to reach to the harsh conclusion of terminating his services. It is further stated that barring the allegation of being absent from duties from February, 1990, on account of his arrest, there was no other charge, at all, against the petitioner. 4. The petitioner has further stated that the respondents have, on the one hand, terminated his services on the ground of being unauthorizedly absent and, on the other hand, the order of termination has been based on the allegation of gross misconduct of the petitioner. Thus, it is manifestly clear that there has been clear non-application of mind on the part of the respondents while issuing the impugned order of termination. The petitioner has further stated that no ‘Show Cause Notice’ was ever issued to him nor was he served the charge sheet to explain his position with respect to his absence or for that matter to answer the allegation of misconduct. He has further stated that his absence from duty has neither been willful nor deliberate. It is further stated that the impugned order of termination is based on no material of whatsoever nature and the satisfaction of not holding an enquiry cannot be assumed unless there is cogent material before the competent authority to arrive at a conclusion that the enquiry is not practicable in the circumstances of the case. In the end, it is prayed that in view of what has been stated above, the writ petition be allowed and the impugned order, being violative of the procedure established by law, be quashed and the respondents be further directed to reinstate the petitioner in service and pay him all the consequential benefits. 5. In the end, it is prayed that in view of what has been stated above, the writ petition be allowed and the impugned order, being violative of the procedure established by law, be quashed and the respondents be further directed to reinstate the petitioner in service and pay him all the consequential benefits. 5. The respondent No.3 has filed the counter affidavit, wherein the maintainability of the writ petition itself has been questioned. It is stated in the objections that the petitioner has assailed the order of termination after more than 14 years of its issuance. The petitioner has failed to avail an alternate efficacious remedy of review or appeal available to him against the termination order. It is contended in the objections that no cause of action has accrued to the petitioner against the impugned order and, therefore, he has no right or locus standi to challenge it. It is further stated that the writ petition raises disputed questions of fact, which cannot be adjudicated upon by this Court. The order impugned does not suffer from any illegality as it has been issued by the competent authority strictly under law. It is further stated that the petitioner was appointed by the respondent – department in the year 1986 and not in the year 1982 as contended by the petitioner. He was placed under suspension vide order No. DAR/8/98858-62 dated 17th of May, 1990, when he absented himself from duty unauthorizedly. The respondents had no knowledge about the involvement of the petitioner in any criminal case nor did they knew anything about his arrest or release from the custody of security forces. The respondents have strongly pleaded the ground of latches and have stated that the petitioner has not been able to explain the delay by production of any material in support of his assertions. Respondents have further stated that the petitioner has absented himself at a time when his services were required the most for fighting the menace of militancy and the militancy which was at its peak in the valley, the holding of enquiry was not reasonably possible or practicable, therefore, same was dispensed with by the competent authority in exercise of powers vested in him. Besides no intimation or information was ever furnished to the respondent department by the relatives of the petitioner about his disappearance. Besides no intimation or information was ever furnished to the respondent department by the relatives of the petitioner about his disappearance. In the end it is prayed that there being no legal infirmity in the impugned order of termination, the writ petition be dismissed. 6. Heard and considered. 7. The petitioner, after rising from a deep slumber, has knocked at the doors of this Court in the year 2005, while as the impugned order, by virtue of which his services were terminated, was passed on 12th of December, 1990. The petitioner had a remedy in the form of review and appeal as provided under rule 364 of the Jammu & Kashmir Police Services Rules, 1960, which he has failed to avail. Sub-rules (1) and (2) of Rule 364 of the Jammu & Kashmir Service Rules, 1960, read thus: “364. Right of Appeal—(1) Every police Officer shall be entitled to appeal as hereinafter provided, from an order passed by any authority imposing upon him any of the penalties specified in clauses (a), (b), (c),(d), (f), (g), (j) and (k) or sub-rule (2) of Rule 334, provided that no appeal shall lie against the order made by the Government. No appeal shall also lie against the punishment of extra drill and confinement to quarters. (2) Appeals shall lie: – a. from an original order of punishment of a subordinate officer to the next higher officer; b. from an original order of punishment of a Head of Department to the Minister-in-charge; c. from an order of punishment of a Minister-in-charge to the Government.” 8. Applying the ratio of the above rule position, governing the services of the petitioner, what comes to the fruition is that the petitioner had an alternate remedy available to file an appeal before the competent authority in terms of sub-rules (1) and (2) of Rule 364 of the Jammu & Kashmir Police Services Rules, 1960, which he has not preferred to avail. 9. This Court in the decision dated 23rd of November, 2017 passed in OWP No.1619/2017, titled “Azad Ahmad Ganai & Ors. v. Debts Recovery Tribunal-III & Ors.”, while dealing with a similar question of law, held as under: “11. On the dimensions of the provisions of ‘The Act’, detailed herein before the petitioners had a right to file an appeal, against the order impugned in this petition. v. Debts Recovery Tribunal-III & Ors.”, while dealing with a similar question of law, held as under: “11. On the dimensions of the provisions of ‘The Act’, detailed herein before the petitioners had a right to file an appeal, against the order impugned in this petition. Learned counsel for the petitioners has not been able to persuade this Court as to how and in what manner this writ petition can be entertained on the anvil of the availability of an alternative remedy in the form of filing a statutory appeal under the statute. No reasons have been put forward in brushing aside the right to exhaust the alternative remedy available to the petitioners and to file this writ petition against the order impugned. There can be no denial of the fact that the existence of an alternative remedy does not ipso facto curtail or bar the jurisdiction vested in the High Court under Article 226 of the Constitution of India. The remedy under Article 226 is in general a discretionary one and the High Court has the power to refuse to grant it where the alternative remedy which is equally efficient and adequate is in existence unless there are good grounds therefor. The rule of exhaustion of alternative remedy is a rule of discretion but it is difficult to comprehend as to why this Court should entertain the petition filed under section 226 of the Constitution of India and pass the orders thereon by remaining oblivious to the fact that the petitioners have the right to file an appeal provided by the legislation/statute in which a detailed mechanism has been evolved. On the face of the existence of the provision of appeal incorporated in ‘The Act’, the Court has to exercise circumspection, care and caution in the exercise of discretion in attending to such matters. It is true that in peculiar cases, if the petitioners is/are able to show that his/their case falls on the pedestal of the exceptions carved out to this rule, the Court can pass appropriate orders. However, in the present petition, the petitioners have not been able to bring their case within the canons of the exceptions chiseled out in various judicial pronouncements.” 10. However, in the present petition, the petitioners have not been able to bring their case within the canons of the exceptions chiseled out in various judicial pronouncements.” 10. In view of the above position of law, the petition of the petitioner is disposed of with a direction to the petitioner to avail the remedy as may be available to him under rules and, if such a course is adopted by the petitioner, the competent authority shall consider the same expeditiously on merits, of course, in case the claim of the petitioner is within time. 11. Writ petition disposed of as above.