Abdul Gani Wani vs State and Others

Petitioner, a Storekeeper of Food and Supplies Department has been placed under suspension vide order no. 90DFSK of 1995 dated 631995

(Annexure P3) after the Chief Inspector Food and Supplies Department. Kupwara appointed as Inquiry Officer u/s 33(4) of Jammu and Kashmir

Classification, Control and Appeal Rules 1956 (hereafter for short CCA Rules) vide Order No. 573 DFSK of 1994dated 6101994 (Annexure

P1), gave inquiry report against the petitioner to Director Food and Supplies Department. Srinagar (Annexure P2). The order placing petitioner

under suspension and the inquiry conducted under Rule 33(4) of CCA Rules, is under challange in this petition. Petitioner is alleged to have

collected the empty gunny bags for despatch in the bag section of Gulab Bagh, Srinagar Main Office of Food and Supplies Department but failed

to deposit the bags assessed in the sum of Rs. 64, 656/. This petitioner is stated to have done, in connivance with three truck drivers deputed for

transportation of the bags after collecting same from sales outlets of Food and Supplies Department in District Kupwara. Petitioner's case is that

Director of Food and Supplies vide impugned order no. 573 DFSK of 1904 dated 6.10.1994, while appointing Chief Inspector Kupwara as

Inquiry Officer under rule 33(4) of CCA Rules to inquire into misappropriation of empty gunny bags during transit from Kupwara district to

Central Godown, Srinagar has not followed the procedure as required under law. Petitioner has not been served with articles of charge, allegation

and grounds of such charge and has not been afforded an opportunity of put his case before the authority. Petitioner has been held ""liable for

embezzlement at his back, without any show cause notice charge sheet, allegations of charge, written statement of defence etc as provided by Rule

33 of CCA Rules. Petitioner has been prejudiced and not dealt fairly in accordance with due proceduie laid down by law. Even after submitting his

report by so called Inquiry Officer (Chief Inspector Kupwara) petitioner has not been given any opportunity to put his defence before the

appointing authority. Infact the order (Annexure P3) pursuant to this inquiry report of passing any punishment petitioner has been placed under

suspension without anything further. The holding of inquiry submission of inquiry report by the Inquiry Officer and passing of final order by the

appointing authority, as in this case, fall wholly beyond pale of law and infract the deprocedure provided under law.

Respondents in their objections have not refuted the appointment of Chief Inspector Kupwara, respondent no. 4 as Inquiry Officer by Director

Food and Supplies respondent no. 2 under Rule 33(4) of CCA Rules. It is also not refuted that the procedure provided by Rule 33CA has not

been followed. However, it is contended by respondents that the petitioner in league with the Truck Drivers has misappropriated gunny bags

valued a' Rs. G4.656/ in so far as bags collected from different sale outlets of District Kupwaia for despatch to main Office at Gulab Bagh.

Srinagar, have not been so despatched/deposited and not credited in the accounts 01 the Department. Petitioner infact collected tin bags and

accompanied the vehicles enroute to Head Office Gulab Bagh. Srinagar. It was for this reason that petitioner was place'! under suspension though

after the ""Inquiry Officer complete the inquiry after complying with Rule 33 of CCA Rules"". The inquiry report is based on evidence and petitioner

has not presented himself before the Inquiry Officer.

Heard.

At the outset counsel for parties conceded that the case is governed by J and K CCA Rules, 1956.

The counsel for petitioner submits Hint Rule 33 of CCA Ryles provides Unit no adverse order shall be passed against a person who is a member

of civil service or holds civil post under State, unless such person has been informed in writing of the grounds of which authority proposes to take

action and is afforded an adequate opportunity to defend himself. The said grounds are to be in the form of different charge(s) to be communicated

to the delinquent with statement of allegations on which charge/charges is (are) based. The delinquent shall be given reasonable time to put in

writing statement of defence and in the event of delinquent denying the charges, the competent authority may decide either to proceed or not to

proceed against the delinquent. Incase the competent authority decides to proceed against the delinquent, it shall order inquiry into the charges and

an enquiry officer shall be appointed thereafter by the authority. The enquiry officer after holding enquiry on conclusion of the inquiry in accordance

with prescribed procedure and rules of natural justice shall give its report with statement of findings alongwith grounds therefor with report to the

competent authority. It is only then that the apointing authority after following prescribed procedure can take action and impose punishment.

However, in this case all these procedural safeguards and legal requirements have been thrown to the winds and the inquiry though shown made

under Rule 33(4) of CCA rules, is infact no inquiry, as inquiry report (AnnexureP2) itself shows that the inquiry was not initiated, carried and

completed in terms of Rule 33 of CCA Rules. The inquiry itself is vitiated. Therefore, the order of suspension recorded on the basis of such inquiry

and described as final report is equally vitiated and bad in law.

Respondent's counsel contends that the inquiry has been made under Rile 33(4) of CCA Rules. Sales centres as also their records were

checked. Challan for transportation of bags were also examined. Statements were taken from Storekeepers. It was on this basis that Inquiry

Officer concluded misappropriation of empty bags valued at Rs. 64.6S6/. The counsel further submits that it was on this basis that petitioner was

placed under suspension. The counsel conceds that it is not a case where petitioner has been suspended pending inquiry.

It is seen on record that the Chief Inspector Kupwara has been appointed as Enquiry Officer under Rule 33(4) of CCA Rules. No charges were

framed against the petitioner. He was not served with any charge and statement of allegations. He was not asked to put in statement of defence He

has not been given any opportunity to defend the case. Infact, he has not been associated with the inquiry. It is only after above steps, as required

by Rule 33(1) of CCA Rules are taken, that the competent authority/appointing authority may hold the inquiry in respect of the charges and

incriminating allegations or if necessary may appoint in Inquiry Officer for the purpose as laid clown by Rule 33(4) of CCA Rules. In the event of

failing to follow this mandate, the entire proceedings are vitiated from the stage of appointment of Enquiry Officer.

In Ghularn Qadir Bhat vs. University of Kashmir and others with other two writ petitions (1984 SLJ J and K 311) Dr. A.S. Anancf. acting Chief

Justice (as His Lordship then was) observed :

.... A plain reading of the Rule shows that it prescribes that the competent authority or the appointing authority shall on being satisfied on the basis

of the facts and meterial available before it, that charges are required to be framed against the delinquent officer, shall so frame definite charges and

serve the same on the delinquent concerned alongwith the statements of allegations seeking his explanation by way of written statement of defence

and further enquiring form him if he wants personal bearing, if the delinquent, on the basis of the material before it, may decide either to proceed or

not to proceed against the delinquent, should however, the competent authority decide to proceed further, it shall order an enquiry into the charges

which stand already served on the delinquent by the competent authority and an Enquiry Officer would then be appointed by the authority. The

Enquiry Officer shall thereafter hold an inquiry into these charges and conclude the enquiry in accordance with the Rules of natural justice. The

procedure adopted in all these cases, therefore, is clearly in violation of Rule 33 (Supra) and that violation itself renders not only the order of

punishment bad, illegal and invalid but also vitiates the entire proceedings from the stage Dr. Z.U. Ahmad was appointed as the Enquiry Officer. In

taking this view I am fortified by a judgment of the Calcutta High Court in 1982 Labour and Industrial cases, 1578 wherein under some what

similar circumstances identical view gas been expressed.

In Ghulam Mohiuddin vs. University of Kashmir and others 1987 (SLJ) J and K 300, it is noticed that framing and serving articles of charge

together with statement of allegation of charge, giving reasonable opportunity to delinquent to produce written statement of his defence and

affording him opportunity to lead evidence and participate in the proceedings, is the minimal requirement under rules. This is even so to abide by

the rules of natural justice. Here charge of infracting service rules providing for discipline, inquiry and control is what meets the eye petitioner's

failure to take the above prescribed steps under CCA Rules 1956, renders inquiry itself farce and illusory. Obviously, the enquiry and/or

punishment base don such inquiry is illegal and vitiated

In this case violation of statutory provisions of Rule 33 of CCA Rules vitiates enquiry against petitioner. The suspension of petitioner pursuant to

this inquiry as expressly referred in the impugned order is obviously bad. The impugned order reveals that the petitioner's suspension is by way of

punishment and not in the context of suspension under rule 31 of CCA Rules. This suspension answers none of the classes of suspension, provided

by Rules. As conceded by counsel for otherside no inquiry is pending or contemplated. Petitioner is not facing any criminal charge and is not under

investigation or trial thereto. The suspension being the result of final enquiry conducted in violation of statutory provisions of law, is obviously by

way of punishment. Once suspension is in violation and contravention of statutory provisions, then in the facts and circumstances of this case, the

suspension cannot be upheld.

In result the appointment ,of Enquiry Officer under impugned order dated 610 1994, the report of the Enquiry Officer (Annexure P2) and

impugned order dated 6 395 (Annexure P3) in the facts and circumstances of the case suffers from grave legal infirmity and have come into being

an infraction and gross violation of the statutory provisions of CCA Rules. Therefore, the proceedings from the stage of appointment of inquiry

officer under Rule 33(4) of the Rules and the subsequent proceedings pertaining to inquiry against the petitioner are quashed. In consequence of

quashing of the order as a result of error of law and jurisdiction, the petitioner shall be entitled to the consequential benefits in accordance with the

service rules applicable to petitioner. However, it is made clear that quashing of above impugned orders and report, shall not stand in the way of

Food and Supplies Department to proceed against petitioner under law. But while doing so, respondents shall follow the procedure prescribed

under law including Rule 33 of CCA Rules. The respondents shall be free to pursue remedies available to them to recover the alleged money value

of the bags assessed as Rs. 64,656/ and are also at liberty to take action thereto on criminal and/or civil side including the service rules applicable

to the delinquent.