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2023 DIGILAW 358 (JK)

Koshalya Devi v. Government of UT of J&K

2023-08-07

ATUL SREEDHARAN, MOHAN LAL

body2023
JUDGMENT : Atul Sreedharan, J 1. The present appeal has been preferred by the appellant (wife of the delinquent officer) against the order dated 20-09-2019 passed by the learned Single Bench in WP(C) No. 509 of 2007, whereby the delinquent officer was discharged from service vide order dated 28.01.1999 which was originally challenged in the aforementioned writ petition by the delinquent officer himself. However, he tragically lost his life in an animal attack and thereafter was substituted by his wife Koshalaya Devi. 2. The writ petition filed by the delinquent officer challenging the order of termination dated 28.01.1999 which discharged the petitioner from service w.e.f 05.03.1998, was dismissed by the learned Single Judge by way of a speaking order. The same has been challenged before this Court in the present appeal on the ground that the learned Single Judge erred in law and on facts by holding that the petition filed by the petitioner was barred by laches as more than two years and eight months had passed from the date of cause of action (as per the admission made by the petitioner himself). The petition was also considered and dismissed on merits. 3. Learned Senior Counsel, appearing for the appellant while challenging the aforesaid order, has submitted that the delinquent officer, who was a Constable in J&K Police was purportedly away on leave w.e.f. 05.03.1998 to 28.04.2004. It was stated in the writ petition that the appellant came to know about his termination after he recovered from alleged mental ailment of fits for which he was under treatment for nearly six years. It is submitted that the learned Single Judge grossly erred in considering the delay in filing the petition and making that as one of the grounds for dismissal of the petition as it is trite law that once the petition is admitted, the issue of delay cannot be considered in final hearing as the same is deemed to have been condoned at the time of admission. 4. As regards the facts of the case, learned counsel for the appellant submits that the delinquent officer was under treatment at the Psychiatric Hospital, Amphalla, Jammu while he was posted as Constable in 12 Bn Batmaloo, Srinagar. 5. 4. As regards the facts of the case, learned counsel for the appellant submits that the delinquent officer was under treatment at the Psychiatric Hospital, Amphalla, Jammu while he was posted as Constable in 12 Bn Batmaloo, Srinagar. 5. Learned Single Judge, in paragraph (4) of the impugned order, has recorded the submission put forth by the learned counsel for the respondents-Union Territory and took the written objections into consideration and arrived at the finding that the appellant absented un-authorisedly from duty w.e.f 05.03.1998 and that he was repeatedly notified to resume the duty and also sought to be served through SHO, however, he failed to resume his duties. Thereafter, he was placed under suspension and attendance notice was also published in Kashmir Times asking the petitioner to résumé his duties. Thereafter, as the petitioner did not turn up and resume the duty, an ex parte decision of discharging the petitioner was taken and the same was also served upon him. 6. Learned Senior Counsel for the appellant has drawn attention of this Court to Rule 359 of the Police Rules applicable to the Union Territory, with specific reference to sub-Rule (2) of Rule 359 which provides that the officer, conducting the enquiry, was required to summon the accused police officer before him and was required to 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. Learned counsel has also referred to Rule 359(11)((2) which 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 against him. Thereafter learned counsel for the appellant has also referred to Rule 337 of the Police Rules which relates to dismissal and provides that the same shall be awarded only for the acts of misconduct, fraud and dishonesty corruption and offence involving moral disgrace. In addition thereto, it must be proved that the officer was incorrigible and complete unfit for the police service. In addition thereto, it must be proved that the officer was incorrigible and complete unfit for the police service. Therefore, learned counsel for the appellant submits that the act of the appellant of being away without leave does not constitute a misconduct as the same must be restricted to what has been given in Rule 337 of Police Rules i.e fraud, dishonesty, corruption or offence having moral turpitude. 7. As regards the question of notice to the delinquent officer as has been observed by the Single Judge in paragraph (4) of the impugned judgment, learned counsel for the appellant submits that ‘Kashmir Time’ is not a newspaper having wide circulation in the area where the appellant was residing. She further submits that as the appellant was under treatment for mental health, he was not in a position to know his rights. 8. Learned counsel for the respondents-UT, on the other hand, has submitted that adequate attempts were made by the respondents to serve notice upon the delinquent officer as is reflected in paragraph (4) of the impugned order. She further submits that as is reflected in paragraph 11 of the impugned order, neither in the petition nor during the course of arguments, the petitioner ever pleaded that he had ever applied for leave before proceeding to his home in March 1998. The said paragraph also records that it has not been pleaded in the petition that during the period, the petitioner was at his home w.e.f 05.03.1998 to 28.04.2004, he had ever applied for leave by registered post or by any other means or had apprised his Department regarding his illness. The absence of such facts was sufficient for the learned Single Judge to draw a conclusion that the petitioner unauthorisedly absented himself from duty for the years mentioned hereinabove. 9. Further, learned counsel for the respondents has drawn attention of this Court to paragraph 12 of the impugned order which reflects that the learned Single Judge has observed that the delinquent officer never filed any documents pertaining to his treatment for the entire period that he was allegedly under treatment and has only annexed a copy of certificate of one Dr. N.C.Sharma who was having clinic at Amphalla, Jammu certifying the petitioner to be under his treatment w.e.f. 05.03.1998 to 28.04.2004 which reflected that delinquent officer had been routinely coming to Jammu to get himself medically checked up and that the Headquarter of J&K Armed Police 12th Bn was at Jammu. It begs the question as to why the delinquent officer did not go to his Headquarter at Jammu to apply for leave or submit the medical documents when he had been coming to Jammu to get himself treated during the aforesaid period. It is also relevant to mention here that there is a Police Hospital at Jammu specifically for treatment of police personnel. Besides this, there is also a specialty Hospital of the Government for treatment of psychiatric cases. The delinquent officer never went to the Police Hospital or get a reference from there for treatment at the Specialized Government Hospital for psychiatric cases. 10. On the aforesaid basis, learned Single Judge has arrived at the conclusion that the certificate of Dr. N.C.Sharma is also a managed document. Further, attention of this Court has been drawn to paragraph 13 of the impugned order which reflects that the respondents in their objections had averred the fact that the petitioner was repeatedly notified to resume the duty and the same was also sought to be served through SHO P/S Kishtwar and it was only when the petitioner did not turn up, he was placed under suspension. It was also observed by the learned Single Judge that the attendance notice was also published in the Kashmir Times asking him to résumé duty and it is only thereafter when the Department had left with no option, discharged the petitioner from service. 11. Heard learned counsel for the parties and perused the documents filed along with the appeal and also examined the impugned order passed by the learned Single Judge. 12. Rule 359 (1)(a) of the Police Rules, applicable to the Union Territory, requires that the enquiry shall, whenever possible, be conducted by a gazetted officer empowered to inflict a major punishment upon the accused officer. 12. Rule 359 (1)(a) of the Police Rules, applicable to the Union Territory, requires that the enquiry shall, whenever possible, be conducted by a gazetted officer empowered to inflict a major punishment upon the accused officer. Rule 359 (2) of the Police Rules, as has been referred to and relied upon by learned counsel for the appellant requires the principle of natural justice to be applied where the officer conducting the enquiry was required to summon the accused police officer before him and shall record and read out to him a statement summarizing the alleged misconduct which would have been sufficient enough to give notice of the circumstances to which the evidence is to be recorded. Thereafter, Rule 359(11)(2) 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 against him. These are broadly the principles of law which have been relied upon by learned counsel for the appellant. 13. Learned counsel for the respondents, on the other hand, has relied upon Rule 359(11)(2)(b) which provides that, where an authority empowered to dismiss or remove the delinquent officer or to reduce him in rank is satisfied that, for reasons to be recorded in writing, it was not reasonably practicable to give to that person an opportunity of showing cause. Relying upon the same, learned counsel for the respondent has argued that where the situation is covered by Rule 359(11)(2)(b), not resorting to conducting an enquiry would not vitiate the dismissal. Learned counsel has also referred to Rule 364 which provides for right of appeal and submits that the petition itself was not maintainable as there was an alternate remedy provided in the Rules to which the delinquent officer could have resorted to if he was aggrieved by the order passed by the Department discharging him from service. The said argument, however, does not appeal to this Court as, not resorting to an alternative remedy provided in the statute, does not necessarily close the doors of a party aggrieved to approach the Court under Article 226 of the Constitution. The said argument, however, does not appeal to this Court as, not resorting to an alternative remedy provided in the statute, does not necessarily close the doors of a party aggrieved to approach the Court under Article 226 of the Constitution. However, before a party approaches the Court under Article 226 of the Constitution where an alternate remedy is also available, it is for the party to demonstrate how resort to an alternate remedy was not equally efficacious. It is only thereafter that the writ court may entertain the petition under Article 226 of the Constitution. An alternative view that the provision of alternate statutory remedy is no bar to file a petition under Article 226 of the Constitution will negate the requirement of resorting to alternative remedy altogether. Such was not the intention of the Courts while laying down the law that the availability of alternate remedy would not be a bar to sustain a petition under Article 226 of the Constitution. 14. Facts disclosed in this particular case reflect that the delinquent officer left his battalion without seeking leave, remained without leave for six years and that he has not placed on record before the learned Single Judge such documents that could have made the Single Judge believe that he was suffering from mental ailment and was under treatment. We are in agreement with the learned Single Judge that the certificate issued by a private Doctor that the delinquent officer was under his treatment during the said period was a procured document as no supporting documents in the nature of medical process, medication or the number of days the petitioner admitted in hospital were ever filed with the writ petition. 15. As regards the contention of learned counsel for the appellant that the appellant could not have been discharged/dismissed from service in light of Rule 337 which relates to dismissal only in case of fraud, dishonestly, corruption or an offence involving moral turpitude and that, admittedly, this was not a case where any of these facets would apply to the appellant, upon reading of Rule 337 of Police Rules, we are of the opinion that the very use of the term ‘example of fraud, dishonesty, corruption and offence involving moral turpitude’ which would provide for dismissal, is illustrative and not restrictive. In other words, dismissal cannot be restricted only where allegations of fraud, dishonesty corruption and offence having moral turpitude have been proved. Being away without leave, that too, without any justifiable cause would be a misconduct especially when it relates to a personnel of the Armed Force. Therefore, the contention put forth by learned counsel for the appellant that the appellant should not have been awarded the extreme punishment of discharge from service in light of Rule 337, is rejected. 16. In view of what has been heard, considered and held by us hereinabove, we do not find any perversity in the impugned order passed by the learned Single Judge calling for any interference by us as the jurisdiction in a Letters Patent Appeal is highly restrictive. Therefore, the appeal is dismissed. Parties to bear their own costs.