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2023 DIGILAW 691 (JK)

Bashir Ahmad Bhat v. State of Jammu & Kashmir

2023-11-09

ATUL SREEDHARAN, JAVED IQBAL WANI

body2023
JUDGEMENT JAVED IQBAL, J. 1. The present Letters Patent Appeal has been filed by the appellant herein against the judgment dated 13.09.2017 (hereinafter for short "the impugned judgment") whereunder the writ petition being SWP No. 2535/2011 filed by the appellant herein came to be dismissed by the writ court. 2. Before adverting to the grounds of challenge urged in the memo of appeal, the facts emerging from the record would reveal that the appellant herein while working as a Senior Grade Police Constable in the respondent department came to be discharged from service in terms of Order No. 738/2001, dated 19.11.2001, issued by respondent no. 4 herein. The said order came to be called in question by the appellant herein in the writ petition supra inter alia on the fundamental ground that the respondents before discharging the petitioner from the service did not follow the mandatory provisions of Rule 359 of the Police Rules. In the reply filed to the said petition by the respondents herein, the contentions raised and the grounds urged came to be opposed on the premise that before discharging the petitioner from service, Rule 359 of the Police Rules was duly complied with. The Writ Court after considering the writ petition supra while having regard to the pleadings of the parties inasmuch as the record of enquiry produced by the respondents dismissed the petition opining that the respondents have followed the mandate of Rule 359 of the Police Rules. Heard learned counsel for the parties and perused the record. 3. According to the counsel for the appellant the writ court failed to consider the petition of the petitioner in its true and correct perspective inasmuch as did not correctly appreciate the record of enquiry produced by the respondents, whereas on the contrary the counsel for the respondents controverted the said contention of the counsel for the appellant. 4. 3. According to the counsel for the appellant the writ court failed to consider the petition of the petitioner in its true and correct perspective inasmuch as did not correctly appreciate the record of enquiry produced by the respondents, whereas on the contrary the counsel for the respondents controverted the said contention of the counsel for the appellant. 4. In view of the rival contentions of the appearing counsel for the parties inasmuch as having regard to the nature of controversy involved in the matter it becomes imperative for us to examine the record of enquiry made available by the counsel for the respondents, however, before proceeding to examine the same, a reference hereunder to the provisions of Rule 359 and Rule 360 of the Police Rules, 1960 (for short the Rules) framed in terms of Sections 8 and 12 of the Police Act, Samvat 1983 (1927 A.D.) (for short Act of Svt. 1983) would be advantageous: "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 27.06.1945) may be deputed to hold an enquiry 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 enquiry 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 enquiry 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 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 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 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 accusation 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 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 the 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 the 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 officer 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 offices. 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 offices. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees." A bare perusal of the Rule supra suggests that before proceeding to frame a formal charge/charges in writing against a delinquent police officer in terms of sub-rule (5) of Rule 359 after the Inquiry Officer finds evidence in support of the allegations and records the same and consequently explains them to the delinquent police officer calling upon him to answer the same, an inquiry in terms of sub-rules (1) to (4) of the Rules has to be mandatorily conducted against the said delinquent police officer, requiring the Inquiry Officer to summon the accused police officer before him, record and read out to him a statement summarizing the alleged misconduct so as to give him notice of the circumstances in regard to which evidence is to be recorded and if the delinquent police officer admits the misconduct alleged against him, the officer conducting the inquiry may proceed with passing of a final order if it is within his power to do so or forward it to an officer empowered to decide the same and in the event the police officer does not admit the misconduct, the officer conducting the inquiry is bound to record such evidence (oral and documentary) in proof of the accusation as is available and necessary to support the charge further requiring the examination of the witnesses direct and in presence of the delinquent police officer providing him an opportunity to cross examine the said witnesses. Rule 360 of the Rules deals with the standard of evidence and provides that a police officer called upon to answer a charge of misconduct must be given every reasonable opportunity of proving his innocence, requiring the officer conducting departmental inquiry to follow the provisions of Evidence Act as far as possible. 5. Rule 360 of the Rules deals with the standard of evidence and provides that a police officer called upon to answer a charge of misconduct must be given every reasonable opportunity of proving his innocence, requiring the officer conducting departmental inquiry to follow the provisions of Evidence Act as far as possible. 5. Having regard to the scheme and object of the Rules supra, it is manifest that the Rules are required to be strictly complied with in the matter of holding of an inquiry against a delinquent police official without any breach, departure or deviation on the settled principle of law that if a statute prescribes a thing to be done in a particular manner such thing should be done in that manner alone and not otherwise. 6. Keeping in mind the Rules supra and the aforesaid principle of law and reverting back to the case in hand, perusal of the record of inquiry produced by the counsel for the respondents would tend to show that the summary of allegations came to be served upon the appellant by the inquiry officer on 26.07.2001 which summary of allegations was not admitted by the appellant herein, therefore, necessitating the following of sub-rule (4) of Rule 359 by the Inquiry Officer which required the Inquiry Officer to record evidence both oral and documentary in proof of the accusation as is available and necessary to support the charge and also to examine witnesses in presence of appellant herein giving him an opportunity to cross examine the witnesses, if any produced. 7. A closer examination of the inquiry record would also reveal that the inquiry officer did not proceed in the matter in line and tune with sub-rule (4) of the Rules supra and instead in utter departure thereto, proceeded in terms of sub-rule (5) of the Rules while framing a charge sheet against the appellant herein which charge sheet came to be responded to by the appellant on 15.09.2001 specifically joining an issue qua the charge of unauthorized absence stating in the said reply that he was prevented to discharge his assigned duties on account of his ailment requiring him to undertake immediate medical treatment thereof and had in this regard placed on record a medical certificate issued by the Medical Officer PHC-Trehgam, Kupwara showing the appellant herein to have been receiving treatment for the aliment w.e.f. 28.04.2001 till 18.07.2001. 8. 8. Further perusal of the record of inquiry demonstrates that the inquiry officer did not provide any chance or opportunity to the appellant herein to substantiate his response/reply filed to the charge sheet and instead proceeded to conclude the inquiry notwithstanding the breach of sub-rule (4) of the Rules, though making a recommendation for reinstatement of the appellant herein with immediate effect while summarizing his inquiry report dated 22.09.2001. However, record of inquiry reveals that the disciplinary authority in disagreement with the said recommendation of the Inquiry Officer choose to serve a notice of proposed punishment upon the appellant on 27.09.2001 followed by the order of discharge dated 19.09.2001. 9. Law is no more res integra and stands settled in a series of judgments by the Apex Court that a departmental inquiry is quasi judicial in nature in order to enable the disciplinary authority to hold an investigation into the misconduct of a delinquent officer as has been held by the Apex Court in case titled as "[1]Jagdish Prasad Saxena Vs. State of Madhya Bharat reported in AIR 1961 SC 1070 ". It is also settled position of law that a departmental inquiry is not an empty formality but a serious proceeding intended to give the delinquent officer a chance to meet the charge and to prove his innocence. Here a reference to the judgment of Apex Court passed in a case titled as "[2]Krushnakant B. Parmar Vs. Union of India & Anr. reported in (2012) 3 SCC 178 " in regard to the misconduct on account of absence from duty/unauthorized absence and the nature of departmental inquiry, would also be appropriate and relevant wherein at Paras 18 and 20, following has been observed and laid down:- 18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. 20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.V. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held: "It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." 10. In view of the of the aforesaid proposition of law and coupled with the facts and circumstances of the instant case, while risking repetition, it is evident that the breach of the Rule 359 of the Rules by the respondents in holding departmental inquiry against the appellant is writ large and in the process having miserably failed to prove the allegation of wilful unauthorized absence against the appellant herein which had formed foundation along with the past conduct of the appellant herein with the respondents for discharging the appellant from service in terms of order dated 19.11.2001. 11. A bare perusal of the impugned judgment tends to show that the writ court indisputably has failed to consider the facts and circumstances of the case in true and correct perspective and has also overlooked the purport and spirit of Rule 359 of Rules supra besides having misappreciated the record of inquiry held against the appellant herein, produced by the respondents before it, thus rendering the impugned judgment legally unsustainable. It is significant to note here that the writ court has also taken cognizance of the issue of laches/delay in the matter while dismissing the writ petition of the appellant which it could not have, after the writ petition of the appellant had been admitted to hearing, in view of the law laid down by a Division Bench of this court in this regard in case titled as "[3]Shashi Gupta (Dr.) v. Indu Kaul (Dr.) & Ors. passed in LPASW No. 62/2018, dated 11.05.2018". 12. passed in LPASW No. 62/2018, dated 11.05.2018". 12. It is also pertinent and significant to note here that the appellant herein admittedly has been appointed as a Constable in the respondent department in the year 1984, whereafter came to be discharged from service on 02.01.1998, however, subsequently came to be reinstated on 01.07.1999, whereafter the appellant allegedly remained unauthorizedly absent w.e.f. 22.09.2000 till the passing of the order of discharge dated 19.11.2001. As is noticed in the preceding paras that the disciplinary authority/respondents herein failed to prove that the appellant herein remained unauthorizedly absent from duty wilfully, as the appellant had taken a specific defence that he was prevented from attending his duties on account of his ailment, and also that the appellant has been litigating before this Court since 2011 against disciplinary proceedings and order of discharge passed against him on 19.11.2001 by the respondents, we do not deem it appropriate to remit the matter back to the respondents for continuing with the disciplinary proceedings against the appellant herein from the stage the said proceedings are found legally infirm, but deem it just and proper to direct the respondents to reinstate the appellant herein in service if he has not reached the age of superannuation. However, keeping in view the fact that the appellant has not worked for a long time, we also deem it appropriate to direct the respondents that the appellant may only be paid 50% of the back wages keeping in mind the judgments of the Apex Court passed in cases titled as "M.V. Bijlani v. Union of India & Ors., reported in (2006) 5 SCC 88 " and "[4]Krushnakant B. Parmar v. Union of India & Anr. reported in (2012) 3 SCC 178 ." 13. Viewed thus what has been observed, considered and analyzed hereinabove, the instant appeal succeeds and the impugned judgment passed by the learned single judge dated 13.09.2017 is set aside and consequently the writ petition of the petitioner being SWP No. 2535/2011 is allowed while quashing impugned order of discharge bearing No. 738/2001, dated 19.11.2001 issued by respondent no.4 commanding the respondents to reinstate the appellant/petitioner in service, if he has not attained the age of superannuation and to pay him 50% of the back wages. 14. Disposed of. 15. Record of inquiry produced by the counsel for the respondents be returned back.