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2018 DIGILAW 710 (JK)

Mohd. Akber Wagay v. State of J&K

2018-09-17

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : Dhiraj Singh Thakur, J. 1. Order dated 28.04.2011 passed by the Additional Commissioner, Kashmir, Srinagar, in purported exercise of its revisional powers, has been challenged by the petitioner in the present petition on the ground of jurisdiction. However, with a view to understand the background in the present controversy as arisen, it is necessary to give few material facts in brief. 2. An enquiry came to be ordered in regard to certain acts of misconduct against the private respondent No. 9, which was conducted by the Tehsildar, Doom. The allegations levelled against the said respondent No. 9 were that, while discharging his duties as Chowkidar, under the Jammu and Kashmir Chowkidari Act, 1956, he had been charging money for signatures on the applications required to be processed for State Subject/Ration cards and Identity cards. 3. The said respondent No. 9 was placed under suspension. The Additional Deputy Commissioner, Anantnag vide his order dated 19.02.2008, however, found that the allegations levelled against the said respondent No. 9 had been proved beyond any reasonable doubt and, thus, keeping in view the gravity of the matter, Tehsildar concerned was directed to take recourse to the relevant rules and do away with the services of respondent No. 9 as Chowkidar with immediate effect. He also ordered appointment of a substitute in place of the dismissed Chowkidar. The Tehsildar, Dooru, accordingly, treating the order dated 19.02.2008, passed by the Additional Commissioner, Kashmir, Srinagar, as an order of dismissal and recommended the case of the petitioner for engagement as Chowkidar. 4. It needs to be mentioned here that Tehsildar, Dooru in his order dated: nil, which forms Annexure-A to the writ petition, noticed the fact that the respondent No. 9 had filed an appeal before the J&K Special Tribunal, Srinagar against the order passed by the Additional Deputy Commissioner, Anantnag dated 19.02.2008 which was dismissed. Subsequently, vide order dated 27.06.2009 passed by Tehsildar, Dooru, petitioner herein was appointed as Chowkidar, Batagund Panzwah for the smooth functioning of the Government/public work. 5. From a perusal of the record on the file, it appears that respondent No. 9 had preferred two revision petitions challenging the orders dated 19.02.2008, 12.01.2008 and 27.07.2009. The Additional Commissioner, Kashmir, Srinagar, by virtue of the order dated 28.04.2011 allowed both the revision petitions and set aside the orders impugned dated 21.01.2008, 19.02.2008 and 27.07.2009. 6. 5. From a perusal of the record on the file, it appears that respondent No. 9 had preferred two revision petitions challenging the orders dated 19.02.2008, 12.01.2008 and 27.07.2009. The Additional Commissioner, Kashmir, Srinagar, by virtue of the order dated 28.04.2011 allowed both the revision petitions and set aside the orders impugned dated 21.01.2008, 19.02.2008 and 27.07.2009. 6. The basis of the order passed by the Additional Commissioner, Kashmir, Srinagar was that the impugned orders were a nullity in law, as no formal order had been found issued on the file, pertaining to the termination of respondent No. 9 herein. 7. Heard counsel for the parties. 8. Petitioner challenges the order passed by the Additional Commissioner, Kashmir, Srinagar, mainly on the ground that the said authority had no jurisdiction vested in him to exercise the revisional powers. 9. On perusal of the order impugned dated 28.04.2011, it appears that an objection was raised by the petitioner herein before the Additional Commissioner, Kashmir, Srinagar on the issue of jurisdiction. The objection has even been recorded by the Additional Commissioner, Kashmir, Srinagar in the order impugned, however, while allowing the revision petitions, the same has not at all been dealt with. 10. On perusal of the Jammu and Kashmir Chowkidari Act, 1956, in particular Section-9 thereof, pertaining to appeals, it can be seen that against the order passed by Tehsildar, Dooru under the said Act, an appeal is envisaged before the Deputy Commissioner, whose orders would be final. Section-9 of the Jammu and Kashmir Chowkidari Act, 1956, for facility of reference, is reproduced hereunder:- "9. Appeals- (1) An appeal against an order passed by the Tehsildar under this Act shall lie to the Deputy Commissioner whose orders shall be final: Provided that the Deputy Commissioner may either dispose of such appeal himself or may transfer it for disposal to an Assistant Commissioner subordinate to him. (2) In disposing of an appeal transferred to him under sub-section (1) the Assistant Commissioner shall exercise all the powers of the Deputy Commissioner." 11. No response has been filed to the writ petition. However, counsel appearing for respondent No. 9 frankly admitted that there is no power to revision vested in the Additional Commissioner, and, therefore, the revisional jurisdiction could not have been exercised by him. No response has been filed to the writ petition. However, counsel appearing for respondent No. 9 frankly admitted that there is no power to revision vested in the Additional Commissioner, and, therefore, the revisional jurisdiction could not have been exercised by him. Even otherwise the scheme of the Jammu and Kashmir Chowkidari Act, 1956 does not prescribe a specific remedy of revision under the Act. 12. The assertions of the petitioner as contained in Paragraph-4 of the writ petition that the revision petition had also been preferred before the J&K Special Tribunal, Srinagar by respondent No. 9, has also remained un-rebutted. It, therefore, is clear that the order impugned dated 28.04.2011 passed by the Additional Commissioner, Kashmir, Srinagar, exercising the revisional jurisdiction, is erroneous and unsustainable in law. 13. Counsel for the private respondent No. 9 stated that practically all the authorities which have dealt with the matter and passed orders including Tehsildar, Dooru, Additional Deputy Commissioner, Anantnag, as also the Additional Commissioner, Kashmir, Srinagar, have exercised their jurisdiction illegally especially in view of the finding recorded that there is no formal order of termination at all existing against the respondent No. 9. However, urged that the said respondent No. 9 would be deemed to have been in place and, therefore, the order of engagement of the petitioner as Chowkidar would be non-est in the eyes of law. It was, thus, urged that to set the matter and the record straight, a direction be issued to the concerned authorities to go through the matter afresh and if there is any enquiry, which is to be conducted into the conduct of private respondent No. 9, same be conducted in accordance with rules and the procedure prescribed. 14. Notwithstanding the suggestion made by the learned counsel for the respondent No. 9, in my opinion it would not be absolutely necessary to issue such a direction. If the respondent No. 9 was aggrieved of the order dated 19.02.2008 passed by Additional Deputy Commissioner, Anantnag or the order passed by Tehsildar, Dooru, as a consequence thereof, then it was open to him to challenge the said orders before the appropriate authority within time prescribed. It appears that the remedy availed by respondent No. 9 before the J&K Special Tribunal, Srinagar resulted in dismissal, while the remedy availed by him before the Additional Commissioner, Kashmir, Srinagar was a remedy which was not at all available. It appears that the remedy availed by respondent No. 9 before the J&K Special Tribunal, Srinagar resulted in dismissal, while the remedy availed by him before the Additional Commissioner, Kashmir, Srinagar was a remedy which was not at all available. In the meantime, the petitioner stands appointed/engaged as Chowkidar. He would have a right to continue as such till the said order was challenged in appropriate proceedings. Having remained un-challenged, it is not open to the said respondent No. 9 to claim issuance of a direction as has been prayed for hereinabove. 15. Be that as it may. 16. Petition is allowed. Resultantly, the order impugned dated 28.04.2011 passed by the Additional Commissioner, Kashmir, Srinagar, is hereby quashed. 17. Disposed of as above along-with all connected IAs.