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2019 DIGILAW 497 (JK)

Karamat Hussain Shah v. State of J&K

2019-11-25

SINDHU SHARMA

body2019
Judgment 1. Petitioner seeks quashing of Order No. 781 of 2003 dated 04.08.2003 and Order No. 351 of 2003 dated 13.12.2003 vide which he was removed from service and his appeal against the said order was rejected. He seeks a writ of mandamus commanding the respondents to reinstate him in service and grant him all the consequential benefits. 2. The case of the petitioner is that he was appointed as constable in the Police Department of the State of Jammu and Kashmir. He was suffering from serious ailment in the year 1993 being posted at Police Station, Darhal whereupon he remained on leave but he was marked as absent by the respondents. In the year 1999 also, he remained on leave and subsequently absent for medical treatment of his wife. He submits that respondents have been arbitrarily and deliberately punishing him without associating him with any enquiry or departmental proceedings. On 22.02.2003 he was served with a Show Cause Notice asking him to explain why he should not be removed from service. After the receipt of the Show Cause Notice, the petitioner replied to the said notice explaining all the facts with regard to his alleged absence, respondents, however, removed him from service vide Order No. 781 of 2003 dated 04.08.2003 without considering his reply. A statutory appeal under the provisions of the Jammu and Kashmir Civil Services Regulations, 1956 against the order dated 04.08.2003 was preferred by the petitioner to respondent No.3, but the same was rejected vide Order No. 351 of 2003 dated 13.12.2003. 3. Aggrieved of the orders of his removal from service dated 04.08.2003 as well as rejection of his appeal dated 13.12.2003, the petitioner has approached this Court for quashing of both the impugned orders. 4. Petitioner submits that the respondents have removed him from service without following the mandatory provisions of Rule 359 of the Jammu and Kashmir Police Manual as well as Section 126 (2) of the Constitution of Jammu and Kashmir read with Article 311 of the Constitution of India vide which he has not been provided with a reasonable and adequate opportunity of being heard. The respondents have also not complied with the principles of natural justice and violate the service regulations, therefore, this order of termination is required to be set aside. 5. The respondents have also not complied with the principles of natural justice and violate the service regulations, therefore, this order of termination is required to be set aside. 5. In their objections, respondents submits that the petitioner was afforded full opportunity of being heard and the disciplinary authority after due consideration of the facts and circumstances ordered the removal of the petitioner from service on the ground that his further continuation would affect the discipline and decorum of the Organization. 6. Heard learned counsel for the parties and perused the record. 7. Jammu and Kashmir Police Manual provides the procedure to be followed in the enquiries. Rule 359 reads 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 gazetted 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 inquiry 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 inquiry 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 inquiry shall summon the accused police officer before him and shall record and read out to him a statement summarising the alleged misconduct in such a way as to give full 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 forthwith 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. (3) If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forthwith 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. 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 accusations 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 of 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 police officer not below the rank of Inspector or 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. 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. 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 office 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 officer deems fit. 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 State, following the framing of a charge the accused shall be required to state his own answer to the charge. 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 State, 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 made 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.” While relying upon judgment passed by this Court in Ghulam Mohammad v. State of J&K, 1998 SLJ 273 has 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 5 SWP No. 2433/2003 Rule 359 of Police Rules. Perusal of the charge sheet 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 charge sheet depicts that a communication was sent to the petitioner 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. 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 said 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.” 8. In terms of Rule 359 of the Jammu and Kashmir Police Manual, the Enquiry Officer has to consider all the allegations and in case the allegation was substantiated then he has to proceed to frame formal charge or charges in writing against the delinquent officer and call upon him to answer them. The petitioner has pleaded not guilty to the charges, as such, the respondents had to proceed in accordance with Rule 359 of the Jammu and Kashmir Police Rules. Reliance is also placed in Syed Hussain v. State of J&K & others, 1988 JKLR 1047 . 9. While relying upon judgment passed by this Court in Mohd. Majnoon Mir and others v. State of J&K, 2005(3) JKJ 189 has held in Para 10 as under: “10. While taking a disciplinary action against a police official/officer not only an enquiry is required to be held but there should be strict compliance to the manner and procedure laid down by Rule 359. Any deviation will render the penalty imposed as bad in law.” 10. Perusal of the record reveals that respondents have failed to adhere to the provisions of Rule 359 as given in Jammu and Kashmir Police Manual. Any deviation will render the penalty imposed as bad in law.” 10. Perusal of the record reveals that respondents have failed to adhere to the provisions of Rule 359 as given in Jammu and Kashmir Police Manual. No opportunity has been given by the enquiry officer to produce his defence, or to cross-examine the witnesses. Petitioner has also not been provided any opportunity to show cause against the proposed penalty, therefore, the penalty imposed was against the procedure established, as such, the same cannot be sustained. 11. In view of the aforesaid, impugned Order No. 781 of 2003 dated 04.08.2003 is quashed. However, respondents are free to hold regular enquiry strictly in accordance with the provisions of the Jammu and Kashmir Police Manual. The same shall be done expeditiously as possible, quashing of the impugned order , however, would not entitle the petitioner to any salary/remuneration or wages during the period he was out of service. The same may be dealt in accordance with rules after enquiry proceedings are complete. 12. Record be returned to the learned counsel for the respondents.