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2019 DIGILAW 416 (JK)

Mumtaz Ahmad Lone v. State of J&K

2019-09-18

SANJEEV KUMAR

body2019
JUDGMENT : 1. Impugned in this petition are the orders of Deputy Superintendent of Police, Baramulla, being Order No. 483 of 2011, dated 07.07.2011, whereby the period of absence of petitioner No. 2 on account of his removal/discharge w.e.f 27.04.2002 to 13.12.2007 has been treated as 'dies-non' by applying the principle of 'no work no pay' and Order No. 484 of 2011, dated 07.07.2011 treating the period of absence of petitioner No. 1 on account of his removal/discharge w.e.f 27.04.2002 to 21.01.2011 as 'dies-non' by applying the principle of 'no work no pay'. The petitioners also assail the findings of Enquiry Officer, i.e. respondent No. 6, which have been made the basis of the impugned orders. 2. Briefly stated, the facts leading to the filing of this writ petition are: The petitioners while working as Constables and posted in District Baramulla were deputed to District Jails Kathua/Udhampur to bring the detenues. They were part of escort party which was entrusted the job of bringing six detenues from the aforesaid jails for their production in the Court of learned Sessions Judge Baramulla. As per the version of the respondents, on 2nd of October, 2001, at 2120 hours, the Bus, in which the escort party as well as the detenues were travelling, slowed down at a speed breaker. Two detenues, who were properly handcuffed, managed to jump from the window of the Bus and escaped from the custody of the escort party. The petitioners were placed under suspension and later on, removed vide Order No. 317/2002, dated 27.04.2002 for negligence, carelessness and dereliction of duty etc. The petitioners agitated the matter before this Court. They succeeded before this Court and were reinstated into service vide Order No. 723/2007, dated 13.12.2007 and Order No. 20/2011, dated 21.01.2011 respectively. Respondent No. 6 was, however, nominated as Enquiry Officer to conduct the fresh enquiry. On the basis of the report submitted by respondent No. 6 and accepting his recommendations, respondent No. 5 treated the period of suspension of petitioner No. 1 w.e.f 03.10.2001 to 26.01.2002 as on duty and the period of removal/discharge w.e.f. 27.04.2002 to 21.01.2011 as 'dies-non'. Respondent No. 6 was, however, nominated as Enquiry Officer to conduct the fresh enquiry. On the basis of the report submitted by respondent No. 6 and accepting his recommendations, respondent No. 5 treated the period of suspension of petitioner No. 1 w.e.f 03.10.2001 to 26.01.2002 as on duty and the period of removal/discharge w.e.f. 27.04.2002 to 21.01.2011 as 'dies-non'. Similarly, in the case of petitioner No. 2, on the basis of the recommendations of the Enquiry Officer, respondent No. 5 treated the period of suspension w.e.f 03.10.2001 to 26.01.2002 as on duty and the period of removal/discharge w.e.f 27.04.2002 to 13.12.2007 as 'dies-non' by applying the principle of 'no work no pay'. For the escape of two detenues, FIR bearing No. 124/2007 had also been simultaneously registered in the Police Station Pattan. The said Police Station investigated the matter and produced the challan before the Court of Judicial Magistrate First Class, Pattan (for short 'trial Court'). After fullfledged trial, the trial Court acquitted both the petitioners on the ground that the prosecution had failed to establish anything against them beyond any reasonable doubt. 3. The petitioners are aggrieved of the impugned orders in so far as they treat the period of absence of the petitioners on account of their removal/discharge as 'dies-non' by applying the principle of 'no work no pay'. 4. The main plank of argument of the petitioners, who were heard in person, is that the respondents have neither found them guilty of any carelessness or negligence, nor there is any finding recording by the Enquiry Officer with regard to any dereliction of duty and, therefore, respondent No. 5 could not have arbitrarily treated the period of their absence which was on account of their illegal removal/discharge as 'dies-non'. The petitioners claimed that they were also tried before the competent criminal Court, but were acquitted for want of evidence against them. It is further contended that 'dies-non' is neither one of the punishments provided under the Police Act and the Rules framed thereunder nor the same is enumerated as one of the penalties under the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. 'Dies-non', it is claimed, is regulated by Article 163 of J&K Civil Service Regulations, which, in the instant case, is not applicable at all. 5. 'Dies-non', it is claimed, is regulated by Article 163 of J&K Civil Service Regulations, which, in the instant case, is not applicable at all. 5. Having heard the petitioners and learned counsel for the respondents and perused the record, I am of the view that the orders impugned are not wholly sustainable in law. As is evident from the documents placed on record by the petitioners and the reply affidavit filed by the respondents, the petitioners were part of escort party headed by ASI Ghulam Mohd., which was entrusted to bring the detenues from Kathua/Udhampur Jails, to be produced in the Court of learned Sessions Judge, Baramullah. On 2nd of October, 2001 at 2120 hours, two detenues, who were foreign nationals and were involved in FIR No. 263/1999 and FIR No. 10/1999 for committing heinous offences, escaped from the custody of the escort party. It is the explanation of the petitioners that when the vehicle, they were carrying the detenues in, was proceeding towards Baramulla and had reached Hanjiwera Bridge, it slowed down at a speed breaker and the detenues took the benefit of the low speed of the vehicle and jumped out of the vehicle. It is stated that it was 9.30 in the evening and, therefore, the detenues took the advantage of the darkness. Be that as it may, the authorities immediately swung into action and registered FIR in the Police Station Pattan and also conducted the Departmental enquiry. The petitioners were found negligent in the performance of their duties and, therefore, they were immediately placed under suspension. The Enquiry Officer, after conducting the enquiry, recommended removal of both the petitioners and, accordingly, vide Order No. 317/2002, dated 27.04.2002, both the petitioners were removed from service. 6. The order of removal of the petitioners became subject matter of challenge in two separate writ petitions i.e SWP No. 763/2002 and SWP No. 1161/2002. Both the petitions came to be decided in favour of the petitioners and order of their removal was set aside. The respondents-authorities were, however, given liberty to hold a regular departmental enquiry against the petitioners. The order of removal of the petitioners became subject matter of challenge in two separate writ petitions i.e SWP No. 763/2002 and SWP No. 1161/2002. Both the petitions came to be decided in favour of the petitioners and order of their removal was set aside. The respondents-authorities were, however, given liberty to hold a regular departmental enquiry against the petitioners. So far as petitioner No. 1 is concerned, his petition i.e., SWP No. 1161/2002 was decided after the writ petition filed by petitioner No. 2 i.e. SWP No. 763/2002 had already been disposed of vide judgment dated 18.07.2005, the operative portion whereof reads thus : “In view of these circumstances that the penalty imposed upon the petitioner cannot stand. This petition is therefore allowed and the impugned order is set aside. Quashment of the impugned order, however, shall not prevent the authorities from hold a regular enquiry against the petitioner. This order shall also not entitle the petitioner to any wages/pay or salary for the period he remained out of service. Such period may be decided by the authorities on the basis of the findings arrived at in the enquiry”. 7. The State-respondents had assailed the judgment of the learned Single Judge dated 18.07.2005 before Division Bench of this Court in LPA No. 279/2006 which was disposed of by a Division Bench of this Court vide judgment dated 04.10.2007, the operative portion whereof reads as under : “We, accordingly, clarify that the judgment of the Writ Court will not stand in the way of the concerned authorities if they want to proceed further in the matter and in that event, they would be free to proceed from the stage of issuance of second show cause notice to the respondent (writ petitioner) in terms of Rule 359(2) of the Police Manual. In short, both the petitioners succeeded before this Court and the impugned orders of removal were set aside leaving it open to the respondents to hold a fresh regular departmental enquiry”. 8. It appears that in pursuance of the directions passed by this Court in the writ petitions of the petitioners, a fresh enquiry was instituted against both the petitioners and respondent No. 6 was appointed as Enquiry Officer. The enquiry was conducted by the Enquiry Officer. 8. It appears that in pursuance of the directions passed by this Court in the writ petitions of the petitioners, a fresh enquiry was instituted against both the petitioners and respondent No. 6 was appointed as Enquiry Officer. The enquiry was conducted by the Enquiry Officer. The Enquiry Officer, however, could not return any conclusive finding against the culpability of the petitioners, but recommended that period of their removal/discharge be treated as 'dies non' on the principle of 'no work no pay'. The enquiry report was considered by respondent No. 5, who, vide impugned orders, accepted the recommendations of the Enquiry Officer, and, therefore, treated the period of absence of the petitioners on account of their removal/discharge as 'dies non' by invoking the principle of 'no work no pay'. 9. In the backdrop of aforesaid factual background, we need to examine the impugned orders. Admittedly, 'dies non' is neither penalty or punishment provided under the Police Act and the Rules framed thereunder nor it is one of the penalties enumerated in Rule 30 of the J&K Civil Services (Classification, Control & Appeal) Rules, 1956. That being the position, the contention of the petitioners that they have been penalized without following the due procedure of law cannot be accepted. Undoubtedly, and without there being any dispute, the petitioners have remained out of action because of their removal/discharge. Whether during the period of absence, the petitioners remained idle or were gainfully employed is anybody's guess. There is no factual foundation laid down by the petitioners in this regard in this petition. In the absence of any specific averment made in this regard, the Court is left with no option, but to presume that the petitioners during the period of their absence on account of their removal/discharge were, somewhere, gainfully employed. The onus to show that they were not gainfully employed and forced to remain idle during the period of their removal, is on the delinquents. [See: Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalya (2013) 10 SCC 324 ]. 10. It is now well settled that rule of reinstatement with back wages propounded in 1960s and 1970s has been considerably diluted and the Courts/Tribunals cannot direct the payment of back wages as a matter of course in each and every case of wrongful termination of service. 10. It is now well settled that rule of reinstatement with back wages propounded in 1960s and 1970s has been considerably diluted and the Courts/Tribunals cannot direct the payment of back wages as a matter of course in each and every case of wrongful termination of service. If the Court/Tribunal, as the case may be, finds that the termination/removal/discharge of an employee is contrary to law or vitiated due to violation of principle of natural justice, the order of payment of back wages cannot be issued, unless the employee concerned not only pleads, but also proves that during the intervening period, he/she was not gainfully employed anywhere. It is, thus, now consistently accepted that the Courts/Tribunals while directing the reinstatement are required to apply their judicial minds to the facts and circumstances of each case to decide, whether 'continuity of service' and/or 'consequential benefits' should also be directed which ultimately turns on the facts of each case. In some cases, the Court may be inclined to pay whole of the back wages; in some cases, part of the back wages and in inappropriate cases, even denial of back wages would be permissible in law. [See also: U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479 ]. 11. On examination of the case of the petitioners in the light of the facts and circumstances of the case in hand, it is quite discernible that the petitioners have managed their reinstatement by exploiting the technicalities of law. The judgments of this Court accepting the writ petitions of the petitioners and setting aside their removal/discharge are not on merits, but on the technical ground that the respondents had not conducted enquiry as per the laid down procedure and had not issued the mandatory prior show cause notice of proposed penalty and, thus, violated Rule 359 of Police Manual. No-doubt, the Court granted the liberty to the respondents to take action strictly as per the rules, but the respondents once again faultered and did not proceed from the stage of issuance of show cause notice of the proposed penalty. No-doubt, the Court granted the liberty to the respondents to take action strictly as per the rules, but the respondents once again faultered and did not proceed from the stage of issuance of show cause notice of the proposed penalty. Some sort of enquiry was got conducted from respondent No. 6, who could not reach any definite finding of guilt or otherwise of the petitioners and recommended that the period of absence of the petitioners on account of their removal/discharge be treated as 'dies non' on the principle of 'no work no pay'. Accepting the recommendations of the Enquiry Officer, respondent No. 5 treated the period of suspension of the petitioners as on duty and the period of discharge as 'dies non'. It is in these circumstances, it cannot be contended that the petitioners have been able to completely wipe out their culpability in the escape of two foreign nationals, who were accused of serious offences. It is a different matter that prosecution even failed to establish the charges against the petitioners, who were ultimately acquitted by the trial Court once again giving them the benefit of doubt. It is, thus, quite clear that exoneration of the petitioners from the charges is not on merits, but on the technicalities of law and if that being the situation, I find it a fit case where the period of absence on account of discharge of the petitioners is required to be treated one not qualifying for any wages. The principle of 'no work no pay' is attracted in the case on hand. To that extent, I find no illegality in the orders impugned. However, looking to the provisions of Article 163 of J&K Civil Service Regulations, the period of absence aforesaid cannot be treated as 'dies non'. 12. From the perusal of Government instructions appended to Article 163 of J&K Civil Service Regulations, it is abundantly clear that it is only the period of unauthorized absence that can be treated as 'dies non'. Admittedly, for the period the petitioners remained absent on account of their removal/discharge, cannot be held to be unauthorized absence. They were out of action because of their termination/discharge which was ultimately found to be illegal by this Court. It is true that the respondents were given liberty to proceed in the enquiry in accordance with law and pass appropriate orders, but the respondents failed to do so. They were out of action because of their termination/discharge which was ultimately found to be illegal by this Court. It is true that the respondents were given liberty to proceed in the enquiry in accordance with law and pass appropriate orders, but the respondents failed to do so. They conducted some enquiry in the matter, but could not establish any dereliction of duty on the part of the petitioners. In such circumstances, it would not be justified to call the period of absence of the petitioners as a period of unauthorized absence, to be declared as 'dies non'. Accordingly, the impugned orders in so far as these treat the period of removal/discharge of the petitioners as 'dies non' are quashed and set aside. However, the petitioners, for the reasons stated above, shall not be entitled to any wages/salary for the period of their absence on the principle of 'no work no pay'. Other than this, the aforesaid absence would not adversely affect the other service benefits of the petitioners. 13. The Writ petition is partly allowed in the aforesaid terms. 14. Record be returned to the concerned.