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2023 DIGILAW 302 (JK)

Sharaz Hussain Shah v. State of J. &K.

2023-07-26

ATUL SREEDHARAN, JAVED IQBAL WANI

body2023
JUDGMENT : (Javed Iqbal Wani, J.) 1. The present Letters Patent Appeal has been filed against judgment dated 03.8.2018 (hereinafter referred to as impugned judgment) passed in case titled as “Sharaz Hussain Shah versus State of Jammu and Kashmir and others” being SWP 2905/2016 whereunder the writ petition filed by the appellant herein came to be dismissed. 2. The facts giving rise to the filing of the instant appeal would reveal that the appellant herein got engaged as Special Police Officer (for short SPO) by the respondents in the year 2013 and was allotted belt no. 1353/SPOJ and, thereafter, deployed in District Rajouri vide ZPHQ order no. PS/SPO/AH-Trf/2012/1192-95 dated 5.6.2013 after being relieved from District Jammu vide District Police Headquarter, Jammu no. OSI/RLV/1324951/62/APOJ dated 6.6.2013. 3. The appellant upon reporting for his duties in District Rajouri joined in the office of respondent 3 and came to be allotted belt no. 1134/SPO-R, and consequently directed to report to District Police Lines Rajouri and subsequently attached with respondent 3 and deputed with Deputy Superintendent of Police, DAR as driver, whereafter the appellant came to be deployed with SHO P/S Manjakote as driver. 4. The appellant while working as such came to be disengaged by respondent 3 along with some other police officers/SPOs on the ground of having links with bovine smugglers during their posting at naka points Kaller, Salani Bridge, Khandi Bridge and Darhali Bridge. 5. Aggrieved of his disengagement by the respondents, the petitioner appellant herein filed SWP 2905/2016 supra challenging the said order therein inter alia on the following grounds: a) That the order impugned have been passed in gross violation of principles of natural justice and brushing aside all the norms and rules enshrined in the act regulating the terms and conditions of the petitioner’s service. b) That the order impugned on the face of it speaks volumes about the mala fide and arbitrariness on the part of the respondents. c) That it is worthwhile to mention here that the petitioner was never ever been posted/deployed on the naka points mentioned in the order impugned and remained in active services as driver, which otherwise gives no chance to the petitioner to have any link or conversation with the Bovine Smugglers or to facilitate them. c) That it is worthwhile to mention here that the petitioner was never ever been posted/deployed on the naka points mentioned in the order impugned and remained in active services as driver, which otherwise gives no chance to the petitioner to have any link or conversation with the Bovine Smugglers or to facilitate them. d) That the petitioner has never been served any show cause notice neither any opportunity of being heard have been granted to the petitioner and the so called enquiry have been conducted at the back of the petitioner, which is gross violation of fundamental rights and specifically of Article 311 of the Constitution of India. e) That the petitioner was disengaged in the month of January, 2014, but unfortunately and the reasons better known to the respondents, the copy of the order was not provided to the petitioner till November, 2016. f) That one of the SPO namely Faiz Mohd. No. 746/SPO-R have been re-engaged/re-instated by the petitioner, who as per the enquiry was posted on the Nakas mentioned in the Order impugned. g) That the respondents seems to have been blowing hot and cold through the same breath and are adopting double yard stick as the respondents have reinstated/re-engaged their blue eyed persons, whereas the petitioner is made to run from pillar to post. h) That the petitioner made number of requests to the respondents to redress his grievance, but the respondent No. 3 either on one pretext or the other have not paid any heed to the requests of the petitioner, as such, the petitioner is constrained to approach this Hon’ble Court, through the medium of instant writ petition. i) That the petitioner is an innocent person have never been posted or deployed on the Naka Points mentioned in the order impugned and the call details of the petitioner are also available with the respondents, which transpires nothing about the involvement of the petitioner with the Bone Smugglers. j) That the order impugned have been passed at the back of the petitioner and the petitioner have been deprived of his legal as well as fundamental right of opportunity of being heard and moreso, the respondents have not adopted the mandate of law. The order impugned have been passed in gross violation of the provisions of Rules and Regulations governing the services of the petitioner. The order impugned have been passed in gross violation of the provisions of Rules and Regulations governing the services of the petitioner. k) That the petitioner have not conspired or facilitated the Bovine Smugglers and the petitioner, who has also participated in recoveries while deployed as Driver with SHO P/S Manjakote and for the same, the petitioner have been rewarded. l) That the petitioner have performed his duties with due diligence, obedience and always respected the law of land and have also made sincere efforts while performing his superiors’ orders. 6. In addition to the grounds supra urged in the petition, the petitioner averred in the petition that he was neither supplied with a copy of the disengagement order by the respondents nor any notice was served upon him and that the said order came to be furnished to the petitioner appellant herein by the respondents in the month of November 2016 after facing great difficulties. 7. The respondents herein filed objections to the petition wherein it came to be stated by the respondents that the challenge thrown to the disengagement order by the petitioner is ill-founded and the petition is devoid of any merit. The respondents in the objections further stated that the impugned order is an offshoot of a detailed enquiry which has not been challenged by the petitioner and that the said enquiry came to be conducted by the Disciplinary Authority strictly in conformity with Rule 359 of the Police Rules. It came to be further stated in the objections by the respondents that the misconduct of the petitioner and other police officers involved therein came to be proved in the said departmental enquiry held against them strictly as per the rules and that the disengagement came to be ordered by the Competent Authority after accepting the recommendations made by the enquiry officer. It came to be further stated in the objections that the writ petition is barred by delay and laches as the petitioner questioned the disengagement order after a period of three years without explaining the delay. It came to be further stated in the objections that the writ petition is barred by delay and laches as the petitioner questioned the disengagement order after a period of three years without explaining the delay. It came to be further stated in the objections by the respondents that the petitioner appellant herein did not appear before the respondents for obtaining the copy of the disengagement order for two-and-a-half years and he applied only in the month of November 2016 for a copy of the same, which came to be provided to him without any delay. The respondents in their objections while admitting the fact of engagement of the petitioner as SPO and his consequent transfer and deployment, have also admitted that the appellant herein came to be granted a commendation certificate with the reward of Rs.100/- by the Superintendent of Police, City North, Jammu. It is also admitted by the respondents in their objections that though the petitioner has not remained posted at naka points in question, but he has had telephonic conversation with one constable Shabir Ahmad posted at said naka points and a departmental action had been taken against him. Heard learned counsel for the parties and perused the record. 8. Learned counsel for the petitioner appellant while making his submissions would reiterate the contentions raised in the memo of appeal and would pray for setting aside of the impugned judgment and quashing of the impugned order dated 23.1.2014, whereas on the contrary the counsel for the respondents would pray for dismissal of the appeal and upholding of disengagement order dated 23.1.2014 and consequent judgment dated 3.8.2018 placing reliance on judgment dated 05.6.2014 of the Division Bench of this court passed in LPA no. 153 of 2012 titled as “State of J&K and others versus Mohammad Iqbal Mallah”. 9. Before proceeding to advert to the controversy involved in the case, it would be significant to refer hereunder to Sections 18 and 19 of the Police Act Samvat 1983 (1927 A.D.) [for short the Act of 1983] being relevant herein: 18. 153 of 2012 titled as “State of J&K and others versus Mohammad Iqbal Mallah”. 9. Before proceeding to advert to the controversy involved in the case, it would be significant to refer hereunder to Sections 18 and 19 of the Police Act Samvat 1983 (1927 A.D.) [for short the Act of 1983] being relevant herein: 18. Special Police officers.–– When it shall appear that any unlawful assembly, or riot or disturbance of the peace has taken place, or may be reasonably apprehended, and that the Police force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants and the security of property in the place where such unlawful assembly or riot or disturbance of the peace has occurred, or is apprehended, it shall be lawful for any Police officer not below the rank of Inspector to apply to the nearest Magistrate to appoint so many of the residents of the neighbourhood as such Police officer may require to act as Special Police officers for such time and within such limits as he shall deem necessary; and the Magistrate to whom such application is made shall unless he see cause to the contrary comply with the application. 19. Powers of Special Police Officers.–– Every special Police Officer so appointed shall have the same powers, privileges and protection, and shall be liable to perform the same duties and shall be amenable to the same penalties, and be subordinate to the same authorities as the ordinary officers of Police. What emerges from a plain reading of section 18 of the Police Act is that an SPO could be appointed thereunder, and every such SPO so appointed is vested with same powers, privileges, protection and duties to perform as do an ordinary officer of police inasmuch as to be amenable to the same penalties and be subordinate to the same authorities as the ordinary officers of police. 10. It is an admitted fact that the respondents while disengaging the petitioner appellant herein are stated to have taken recourse to Rule 359 of the J&K Police Rules of 1960 (for short the Rules of 1960), which provides for procedure in Departmental Enquiries. Before referring to the Rule 359 supra being germane herein, a reference to Rule 334 of the Rules of 1960 also becomes imperative herein, which reads as under: 334. Before referring to the Rule 359 supra being germane herein, a reference to Rule 334 of the Rules of 1960 also becomes imperative herein, which reads as under: 334. (1) No police officer shall be departmentally punished otherwise than a prescribed in these rules. (2) Authorized departmental punishments: - The following punishments may be inflicted departmentally on police-officers of and below the rank of Inspector: (a) Dismissal (bar to re-employment in Government service). (b) Removal (not a bar to re-employment in Government service in another department) (c) Compulsory retirement before attainment of the age of superannuation. (d) Withholding if increments (e) Confinement to quarters for a period not exceeding 15 days (for constables only) (f) Fine not exceeding one month’s pay. (g) Reduction to a lower rank, grade or time scale or to a lower stage in the same time scale. (h) Punishment drill, extra guard or other duty not exceeding 15 days (for constables only) (i) Censure (j) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order. (k) For feature of increment. (3) For the purpose of these rules the term “Major Punishment” shall be held to mean any authorized punishment of dismissal, removal, compulsory retirement, withholding of increments, fine, reduction, recovery from pay and forfeiture of increment. The term “Minor Punishment” shall mean all other authorized punishments. Explanation - Stopping a police officer of and below the Rank of Inspector at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increment or promotion within the meaning of this rule. 11. Rule 359 of Rules of 1960, as noticed above, provides for procedure in Departmental Enquiries and envisages that the officer conducting an enquiry shall summon the accused police officer before him and 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 and if the accused police officer at this stage admits the misconduct alleged against him, the enquiry officer has to record a final order if it is within his power to do so or else forward the same to the officer empowered to decide the same. However, in the event the accused police officer does not admit the misconduct, the enquiry officer has to proceed to record such evidence, oral and documentary, in proof of the allegation as is available and necessary to support the charge, and has to record such evidence in presence of the accused police officer providing him an opportunity to cross-examine. The enquiry officer thereafter considering the evidence so recorded and if opining the allegations having not been substantiated, either discharge the accused police officer himself if he is empowered or else recommend his discharge to the Superintendent of Police or other officer authorized in this regard, or if the Enquiry Officer holds the allegations to have been substantiated against the accused police officer proceed to frame formal charge or charges in writing explaining them to the accused police officer and call upon him to answer the same. The Rule supra further provides that the accused police officer has to be called upon by the enquiry officer to state the defence witnesses whom he wishes to call, whereafter upon conclusion of the defence evidence the inquiry officer may proceed to pass orders of acquittal or punishment, if empowered to do so, or forward the case with his findings and recommendations to an officer having the necessary powers. The Rule supra further provides that 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 the regard to him albeit with a caveat vis-a-vis those police officers who are dismissed or removed or reduced in rank owing to the conviction in a criminal case or that the empowered authority is satisfied that it is not reasonably practicable to give to such an accused police officer an opportunity of showing cause or where the Sadr-e-Riyasat (i.e. the Governor) is satisfied that in the interest of security of state it is not expedient to give such an accused officer such an opportunity. 12. 12. Having regard to the mode, method and mechanism provided in Rule 359 supra inasmuch as in presence of a specific, explicit and definite stand taken by the respondents before the writ court that the petitioner appellant was disengaged after following the procedure provided in Rule 359 supra, it becomes imperative for this court to examine the record of enquiry produced by the counsel for the respondents on asking of the court. 13. Perusal of the record of inquiry produced by the counsel for the respondents tends to show that in terms of order dated 8.8.2013, the Dy.SP headquarter Rajouri conducted a preliminary inquiry against the police personnel posted at naka points Kaller, Salani Bridge, Khandi Bridge and Darhali Bridge for being allegedly in contact with bovine smugglers facilitating smuggling of bovine animals out of the District and during the course of the said preliminary inquiry, the said Dy.SP had questioned one Ct. Mohammad Maqbool, no. 868/R who had deposed that he was in contact with smugglers/drivers namely Rafiq, Imran, Papu, Showkat besides in contact with SPO Mohammad Iqbal, SPO Mohammad Razaq, SPO Tahir Hussain, SPO Mohammad Riyaz, Const. Mohammad Shabir, SPO Sharaz Shah and SPO Raju Kumar and would facilitate the smuggling of the animals. Record of the enquiry shows that upon completion of the said preliminary enquiry the said Dy.SP recommended suspension of the accused police constables and disengagement of the accused SPOs. 14. A further perusal of the record of enquiry would demonstrate that upon receipt of the said preliminary inquiry report the accused police constables were placed under suspension and a departmental inquiry came to be ordered against them including the accused SPOs along with the petitioner appellant herein and consequently in terms of order no. 742 of 2013 dated 24.8.2013, the said departmental inquiry was entrusted to Dy.SP DAR Rajouri. The said enquiry officer however served summary of allegations upon Ct. Mohd. Shaban and Ct. Mohd Maqbool only, to which they did not plead guilty as a consequence whereof a charge sheet came to be issued to them in response to which a reply came to be filed by the said constables. No summary of allegations or else charge sheet has been served and issued against the other accused police officers/SPOs including the petitioner appellant herein. 15. No summary of allegations or else charge sheet has been served and issued against the other accused police officers/SPOs including the petitioner appellant herein. 15. Further perusal of the record of enquiry reveals that the enquiry officer recorded the statements of the individual SPOs including that of the petitioner appellant herein during the holding of enquiry against the above named Ct. Mohd. Shaban and Ct. Mohammad Maqbool and seemingly connected the SPOs including the petitioner appellant herein in the alleged misconduct on the basis of the mobile phones, SIM cards and call details of the accused police officers holding that a well-knit nexus of the police officers with known bovine smugglers is established and consequently opined that the accused police officers have committed grave misconduct. The enquiry officer, therefore, recommended disengagement of all SPOs including the petitioner appellant herein and forfeiture of annual increment of Ct. Mohd Shabir as also annual increments for three years of Ct. Mohd. Hussain. 16. The plea and contention of the official respondents that the petitioner appellant herein came to be disengaged after holding an enquiry in accordance with Rule 359 supra patently and factually is found to be incorrect and without any basis. The judgment referred and relied upon by the counsel for the respondents passed in case “State of J&K and Ors Vs. Mohammad Iqbal Mallah”, supra wherein the Division Bench has held that in the matter of disengagement of an SPO there is no requirement of law to hold an enquiry for complying with the rules of principle of natural justice for being not holding a post, is manifestly distinguishable and not applicable to the instant case for the sole reason that the respondents themselves have admitted in the reply filed before the writ court that a departmental enquiry in conformity with Rule 359 supra was conducted whereafter the petitioner was disengaged. The judgment supra thus would not lend any support to the respondents. 17. The judgment supra thus would not lend any support to the respondents. 17. Insofar as the question of delay and laches urged by the respondents in rebuttal to the maintainability of the petition of the petitioner appellant and accepted by the Writ Court is concerned, it needs to be reminded that in law there is no specific period of limitation prescribed for approaching to the High Court under Article 226 of the Constitution and that it is equally settled law that in a petition for Certiorari where the order complained of is manifestly erroneous or without jurisdiction, the High Court would be loath to reject a petition under Article 226 of the Constitution simply on the ground of delay. Having regard to the aforesaid analysis, it cannot, but be said, that the delay and laches had no application to the facts and circumstances of the case of the petitioner appellant herein. The writ court seemingly has overlooked this basic, fundamental and settled law and in the process without any justifiable reason has even declined to accept the explanation offered by the petitioner appellant herein for approaching the court against the disengagement order in the year 2018, immediately after the respondents furnished him a copy of the said disengagement order. 18. As a sequel to the above discussion, the instant appeal succeeds and the impugned judgment of the learned Single Judge dated 03.8.2018 is set aside, consequently the impugned disengagement order no. 37 of 2014 dated 23.1.2014 issued by respondent 3 is quashed. The respondents are commanded to reinstate the petitioner appellant herein as SPO and extend him all service benefits he is entitled to minus the monetary benefits. 19. Disposed of.