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2018 DIGILAW 583 (JK)

Mohd. Rafiq Hajam v. State of J&K

2018-07-31

ALI MOHD.MAGREY

body2018
JUDGMENT : Ali Mohd. Magrey, J. 1. Through the medium of the instant writ petition, the petitioners seek the quashment of order bearing No. 410 of 2015, dated 12th November, 2015, whereby they have been removed from service by the Respondent No. 5, on the grounds, inter alia, that they were never given opportunity of being heard in the so called enquiry based on CCTV footage while passing the impugned order; the order is violative of the rules of natural justice and the rules governing the service conditions of the petitioners; though charge sheet(s) have been served upon the petitioners, which were replied by the petitioners and when the enquiry officer was not satisfied with the said reply given by the petitioners to the charge sheet(s), the enquiry officer issued a show cause notice wherein the allegations against the petitioners were maintained and were asked as to why the petitioners shall not be removed from the services of the respondent department. It is submitted that by virtue of an order dated 02.07.2015, the enquiry officer while taking into consideration charge sheet(s) issued to the petitioners and the reply submitted by them the enquiry officer came to a finding that petitioners were guilty of serious misconduct, therefore recommended their removal from services in terms of the order supra. It is submitted that whatsoever, was conducted against them is not in accordance with the rules; the order is based on extraneous considerations and the past conduct in the service of the petitioners. The petitioners have further pleaded that it is also not indicated anywhere as to when the enquiry was conducted which culminated into the impugned order nor has the record of the enquiry been made available to the petitioners, which fact makes it amply clear that the impugned order of removal from service is not the outcome of any enquiry conducted in terms of the rules. It is submitted that the impugned order appears to have been passed only on the basis of the CCTV footage obtained by the officer who alleged to have conducted the enquiry. There is also no material on record in the shape of any notice or notices requiring the petitioners to participate in the enquiry. 2. It is submitted that the impugned order appears to have been passed only on the basis of the CCTV footage obtained by the officer who alleged to have conducted the enquiry. There is also no material on record in the shape of any notice or notices requiring the petitioners to participate in the enquiry. 2. The facts as these emerge from the study of the file under consideration, briefly and as stated by the petitioners, are that the petitioners are substantively holding the posts of Constable and Selection Grade Constable respectively in the office of respondent No. 5. Their entire period of services until the year 2015 were always satisfactory and never came under the shadow of doubt for any reason whatsoever. Both the petitioners were deployed by the respondent Department on guard duties at J&K Bank Branch Kachdoora Shopian w.e.f. 07.03.2015 to 26.03.2015. Thereafter, on 29.05.2015 some unknown militants attacked the said Bank with indiscriminate firing on petitioners who were guarding the said Bank on the fateful day, the petitioners were performing their duties with vigil and while performing the duty they came under heavy and indiscriminate firing on the part of the unknown militants. The petitioners if not would have resisted the indiscriminate firing and attack on part of the unknown militants in a strategic manner, the incident would have resulted into multiple number of casualties of human life besides would have also caused loss of crores of rupees which the militants would have decamped with. It is submitted that the militants took an advantage of the large gathering of the crowd and flew from spot along with the service rifle of the petitioner No. 2. 3. The respondent department while investigating the incident placed the petitioners under suspension in terms of order dated 30.05.2015 and a departmental enquiry for conduct of the petitioners were ordered to be initiated, but due to shortage of man power the petitioners were reinstated into the service pending enquiry into their conduct in terms of an order dated 05.06.2015 and were deployed for further services of the respondent department. The enquiry was entrusted to respondent No. 5 to enquire the conduct of the petitioners services, which culminated into removal of services of petitioners in terms of the impugned order dated 12th Nov. The enquiry was entrusted to respondent No. 5 to enquire the conduct of the petitioners services, which culminated into removal of services of petitioners in terms of the impugned order dated 12th Nov. 2015, which is impugned herein, in this petition, whereby and whereunder the petitioners stand removed from service on account of their dereliction of duty on the fateful day of incident. On the above set of facts, the petitioners, have craved the indulgence of this Court in granting them the following relief(s):- "(a) Issue a writ of certiorari or any other appropriate writ, order or directions, for quashment of order of removal bearing no. 410 of 2015, dated 12.11.2015 passed by respondent no. 5 by virtue of which the petitioners have been removed from the services of the respondent-department. (b) Issue a writ of Mandamus commanding the respondents to reinstate the petitioners against the posts held by them before the order impugned came to be issued. (c) Issue a writ of Mandamus commanding the respondents to provide all the consequential service benefits to the petitioners consequent upon their reinstatement against the posts held by them." 4. In their objections, the respondents have resisted and controverted the claim of the petitioners by stating that no cause of action has arisen to the petitioners for maintaining the present writ petition. The petitioners have suppressed the material facts and have tried to mislead the Court. They have not approached the Court with clean hands, and is, therefore, not entitled to any relief. It is submitted that the petitioners have shown blatant lack of commitment in protecting the bank were they had been posted. It is submitted that the petitioners were so cowardly that the militants had even walked off with the weapon which was allotted to them. It is submitted that policemen are supposed to discharge their duties in consciousness and courageous manner, it is submitted that if the police personnel do not come up to that standard they had no right to be in the police department. It is submitted that policemen are supposed to discharge their duties in consciousness and courageous manner, it is submitted that if the police personnel do not come up to that standard they had no right to be in the police department. It is submitted that the enquiry which was conducted shows that the delinquent officials could not made any effort to prevent the militants from committing the offence and have showed cowardice, negligence and dereliction towards their duties of which they were removed from services and have not given any plausible reason as to why they conducted themselves the way they did, therefore the respondent No. 5 was left with no choice but to pass the aforesaid order of removal against the delinquent officials impugned in the petition. 5. Heard the learned counsel for the parties, perused the record and considered the matter. 6. Admittedly, the impugned order has been passed by the respondents while invoking the provisions of Rule 187 of the Jammu and Kashmir Police Rules, 1960 (hereinafter referred to as "the Rules of 1960"), which Rule provides as under: "Discharge of inefficients:- A constable who is found unlikely to prove an efficient police officer, may be discharged by the Superintendent, at any time within three years of enrolment." From the perusal of the impugned order coupled with the mandate of the provisions of the Rule 187 of the Rules of 1960, it is manifestly clear that the provisions of this rule can only be pressed into service by the Superintendent concerned against a constable/police official who has not completed three years of service in the Department. In the present case, the petitioners will not fall in that category as they had more service than provided in the Rules of 1960, on the date, order impugned was passed, therefore, Rule 187 of the Rules of 1960 could not have been invoked by the respondent-police department, to get rid of the petitioners. In fact, it is Rule 359 of the Rules of 1960 which deals with the procedure to be followed before a punishment like removal from service is inflicted on a police officer/official, who has more than three years of service. 7. Rule 359 of the Rules of 1960, running under the caption 'Procedure in Departmental Enquiries', provides as under: "359. In fact, it is Rule 359 of the Rules of 1960 which deals with the procedure to be followed before a punishment like removal from service is inflicted on a police officer/official, who has more than three years of service. 7. Rule 359 of the Rules of 1960, running under the caption 'Procedure in Departmental Enquiries', provides as under: "359. Procedure in Departmental Enquiries- (1) The following procedure shall be followed in departmental enquiries:- (a) The enquiry shall, whenever, possible be conducted by a Gazetted Officer empowered to inflict a major punishment upon the accused officer. Any other gazette officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (Vide order No. 636-C, dated 27-6-1945) may be deputed to hold an enquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable the enquiry may be conducted by an Inspector. The final order, however, may be passed only by an officer empowered to inflict a major punishment upon the accused police officer. (2) The officer conducting the enquiry shall summon the accused police officer before him and shall record and read out to him a statement summarizing the alleged misconduct in such a way as to give notice of the circumstances in regard to which evidence is to be recorded. (3) If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forth with to record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case. Whenever a serious default is reported and the preliminary enquiry is necessary before a definite charge can be framed, this is usually best done on the spot and might be carried out by the Sub-Inspector of the particular Police Station in the case of head constables and constables serving under him or by the Inspector of the circle in the case of Sub-Inspectors within his charge. At the same time it must be left to Superintendent of Police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable. At the same time it must be left to Superintendent of Police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable. When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority competent to dismiss the officer and permission should be promptly granted if that authority agrees that there is prima facie case for prosecution. (4) If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusation as is available and necessary to support the charge. Whenever possible witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to cross-examine them. The officer conducting the enquiry is empowered, however, to bring on to the record the statement of any witness whose presence cannot in the opinion if such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provided that it has been recorded and attested by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided. (5) When the evidence in support of the allegations has been recorded, the enquiring officer shall- (a) if he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him, or recommend his discharge to the Superintendent or other officer who may be so empowered, or (b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them. (6) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses together with a summary of the facts as to which they will testify. (6) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specified charge framed in which case he shall record the reason for his refusal. He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them the answers to which shall be recorded, provided that the enquiring officer may cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured without undue delay or inconvenience and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police as the enquiring offices. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees. (7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him arising out of the charge, the recorded evidence or his own written statement. (8) The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so or to forward the case with his finding and recommendations to an officer having the necessary powers. (9) Nothing in the foregoing rules shall debar a Superintendent of Police from making a causing to be made a preliminary investigation into the conduct of a suspected officer. (9) Nothing in the foregoing rules shall debar a Superintendent of Police from making a causing to be made a preliminary investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry as ordered by the Superintendent of Police or other gazette officer initiating the investigation but shall not cross-examine witnesses. The file of such a preliminary investigation shall form no part of the formal departmental record but may be used for the purposes of sub-rule (4) above. (10) This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation. (11) (1) As laid down in Section 126 of the Constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply:- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge; (b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or (c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity. (3) If any question arises whether it is reasonably practicable to give to any officer an opportunity of showing cause under clause (2) above, the decision thereon of the authority empowered to dismiss or remove such officer to reduce him in rank, as the case may be, shall be final." What comes to the fore from the above Rule is that the procedure for imposing the major penalty, i.e. the order of removal here in this case, involves: i. The delivery of a charge sheet; ii. Appointment of an enquiry officer; iii. Providing opportunity to the delinquent official to submit his defence and to be heard; iv. The enquiry where oral and documentary evidence is produced by both sides; v. The preparation of a report after the conclusion of the enquiry and forwarding of the same to the disciplinary authority (where the disciplinary authority is not itself the enquiring Authority); vi. Action on the enquiry report by the Disciplinary Authority; vii. Notice to the delinquent official to show cause on the penalty proposed; viii. Meaning of the order imposing penalty; and ix. Communication of the orders. 8. In the case on hand, no opportunity of being heard was provided to the delinquent officials, whatsoever, as provided under the rules governing the field, appears to have been conducted in the matter. The petitioners have been thrown out by an order of discharge without following the due procedure of law, with a premeditated design to divest him of his right to participate in the enquiry. An opportunity of being heard is the 'sine-qua-non' of every enquiry and in case of any discharge, reasons justifying so have to be spelt out. The principles of natural justice appear to have been violated with impunity in this case. The defense of the petitioners has been shut by deception and the conduct of a full dressed enquiry has been given a complete go by. 9. Justice is not only law and its administration, but is, in most cases, above law and is done to safeguard an individual from whatever he/she seeks protection. Our country generally and our State in particular aims at the goal of achieving a welfare State where everyone is/has to be, as far as possible, looked after. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be condemned unheard. 10. Our country generally and our State in particular aims at the goal of achieving a welfare State where everyone is/has to be, as far as possible, looked after. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be condemned unheard. 10. In AIR 2005 SC 2090 '; Canara bank v. V.K. Awasthy, the Hon'ble Apex Court, while dealing with the extent and scope of the principles of natural justice, held as under: "10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognisation of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vacate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of works, [1963] 413 ER 414, the principle was thus stated: "Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam", says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat". Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond." 11. "Adam", says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat". Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond." 11. In the case titled Jehangir Ahmad Mir v. State of J&K', reported in 1998 SLJ 134', this Court had the occasion to examine the range, limits and the scope of Rules 337 and 359 of the Jammu and Kashmir Police Rules read with Section 126 of the Constitution of Jammu and Kashmir and Article 311 of the Indian Constitution and it held as under: "It is a matter of common knowledge by now that no member of a State service or a person holding post under the State can be removed from service save otherwise in accordance with the requirements of Section 126(2) of the State Constitution read with Article 311 of the Indian Constitution which contemplates conveying the specific charges to the delinquent and providing him a reasonable and adequate opportunity of being heard and then his removal from service after an enquiry. 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. This position is supplemented by the police Rules, Rule 359 whereof prescribes procedure for conducting departmental enquiry against police personnel. Similarly Rule 336 lays emphasis on the suitability of punishment and cautions the Authority to be careful by taking in regard the character of the delinquent and his past service. Similarly Rule 337 places a constraint on the exercise of the power of dismissal and illustrates the cases though not exhaustively wherein this power was exercised, regard being had to the length of service of the offender and his claim to pension. All this pointed to the checks imposed by law for exercise of the power of dismissal against a delinquent police employee. Under Rule 359, the enquiry officer is required to summon the delinquent officer before him and read out a statement summarizing his alleged mis-conduct in such a way as to give him full notice of the circumstances in regard to which evidence was required to be recorded in the matter. Under Rule 359, the enquiry officer is required to summon the delinquent officer before him and read out a statement summarizing his alleged mis-conduct in such a way as to give him full notice of the circumstances in regard to which evidence was required to be recorded in the matter. Thereafter depending upon the denial if any made by the delinquent, the enquiry officer was required to proceed to record such evidence as would be available and necessary to support the charge. The witnesses were required to be examined in presence of the delinquent and after this he was granted an opportunity to lead his defence evidence or to file his documentary evidence and to state his own answer to the charge. The enquiry officer was then to submit the recommendations or topics order of acquittal or punishment, if he was competent to do so." 12. An almost the same view has been repeated and reiterated by this Court in the case of Ghulam Mohammad v. State of J&K', reported in 1998 SLJ 273', the relevant excerpts of which are reproduced below, verbatim et literatim: "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. 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. 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." 13. In view of the aforesaid enunciations of law, the condition precedent for initiating a disciplinary action against a police officer/official is not only the conduct of an enquiry, but it should also appear that due adherence and strict compliance to the manner and procedure as laid down under Rules 337 and 359 has been followed in its letter and spirit and any deviation thereof will render the order imposing penalty bad and liable to be set aside. 14. In Ghulam Ahmad & Ors. v. Sr. Superintendent of Police', reported in 1988 JKLR 1367 ', although a departmental enquiry was conducted into the alleged callousness in duty on the part of the petitioners, who were Police Constables, yet the Court came to the conclusion that the provisions of Rule 359 of the Rules of 1960 had not been complied with while conducting the enquiry and, therefore, the Court opined that the impugned order imposing penalty of dismissal upon the petitioners was unconstitutional, illegal and bad in law. 15. 15. In 'Bashir Ahmad Dar v. State of & Ors.', reported in 2013 (4) JKJ 264 [HC]', where a Constable, having 8 years of service to his credit, had been discharged from services in pursuance of Rule 187 of the Rules of 1960 without conducting any enquiry, the Court came to the following conclusion: "12. Perusal of record would reveal that procedure laid down in the aforementioned Rule has been observed in breach. The record does not indicate that an enquiry was directed into the matter. The officer, if any, asked to conduct enquiry, summon the petitioner, read to him the statements summarizing the alleged misconduct, record oral and documentary evidence in proof of the accusation, allow the petitioner to cross-examine the witnesses or to examine witness and produce documents in his defense. The record also does not indicate that any formal charge was framed against the petitioner and the petitioner given an opportunity to furnish the list of defense witnesses or examine such witnesses, or allowed to file written statement. The petitioner has not been given an opportunity to show cause orally and in writing against the action proposed to be taken against him. It is pertinent to point out that the petitioner was not removed on his conviction of a criminal charge nor was satisfaction recorded by the respondents that giving him an opportunity to show cause against the proposed action would not be reasonably practicable. 13. In the circumstances the procedure mandatorily to be followed before making the impugned order, was not followed by the Competent Authority. The impugned order, therefore, has been passed in a violation of mandate of Rules of 1960 and in particular Rule 359 of the Rules of 1960. The order thus cannot stand legal scrutiny." 16. Viewed in the above context, the penalty imposed upon the petitioners, being contrary to the law and reason, cannot be upheld, as a corollary to which, the petition of the petitioners are allowed in the following terms: I. The impugned orders bearing Nos. 410 of 2015, dated 12th of November, 2015, issued by the respondent No. 5 is quashed; II. The respondents are directed to allow the petitioners to resume their duty forthwith; III. The respondents shall, however, be free to hold a regular enquiry against the petitioners if they so desire strictly in accordance with the provisions of the Police Rules of 1960; IV. The respondents are directed to allow the petitioners to resume their duty forthwith; III. The respondents shall, however, be free to hold a regular enquiry against the petitioners if they so desire strictly in accordance with the provisions of the Police Rules of 1960; IV. The quashment of the impugned order, as above, shall not entitle the petitioners to claim any salary/remuneration/wages during the period they were out of service. The respondents shall deal with this issue after the final report of enquiry is received by them and shall decide the same in view of the conclusions drawn by the enquiry Officer in accordance with the rules governing the field. If enquiry is not conducted, then period shall be decided separately in accordance with rules. 17. Writ petition, alongwith connected MP(s), disposed of as above.