Abdul Gani War vs State and others

Syed Bashiruddin, J.—Petitioner, a StoreKeeper of Food and Supplies Department has been placed under suspension vide order No.

90DFSK of 1995 dated 6.3.1995 (annexureP3), 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

1994 dated 6.10.1994 (annexureP1), gave inquiry report against the petitioner to Director, Food and Supplies Department, Srinagar

(annexureP2). The order placing petitioner under suspension and the inquiry conducted under Rule 33(4) of CCA rules, is under challenge 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 1994 dated 6.10.1994, while

appointing Chief Inspector Kupwara as Inquiry Officer under rules 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, allegations and grounds of such charge and has not been afforded an opportunity to 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

procedure laid down by law. Even after submitting his report by socalled Inquiry Officer (Chief Inspector Kupwara) petitioner has not been given

any opportunity to put his defence before the appointing authority. In fact the order (annexureP3) pursuant to this inquiry report is equally vitiated

under law, insofar as instead 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 in fact the due procedure provided under law.

Respondents in their objections have not refuted the appointment of Chief Inspector of 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 33 CCA

has not been followed. However, it is contended by respondents that the petitioner in league with the Truck Drivers, has misappropriated gunny

bags valued at Rs. 64,656/, in so far as bags collected from different sale outlets of District Kupwara of despatch to Main Office at Gulab Bagh

Srinagar, have not been so despatched/deposited and not credited in the accounts of the Department. Petitioner in fact collected the bags and

accompanied the vehicles enroute to Head office Gulab Bagh Srinagar. It was for this reason that petitioner was placed under suspension though

after the ""Inquiry Officer completed 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 concede that the case is governed by J&K CCA Rules, 1956.

The counsel for petitioner submits that rule 33 of CCA Rules provides that 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 on 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. In case 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 appointing 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 in fact 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 rule 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. 64,656/. The counsel further submits that it was on this basis that petitioner was

placed under suspension. The counsel concedes 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 Inquiry 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. In fact 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 an Inquiry Officer for the purpose as laid down 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 inquiry officer.

In Ghulam Qadir Bhat v. University of Kashmir and others with other two writ petitions (1984 SLJ J&K 311) Dr. A.S. Anand, 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 material 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 statement of allegations seeking his explanation by way of written statement of defence

and further enquiring from him if he wants personal hearing, 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 Inquiry 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. Ahmand was appointed as

the Enquiry Officer. In taking this view I am fortified by a judgement of the Calcutta High Court in 1982 Labour and Industrial cases 1578 wherein

under somewhat similar circumstances identical view has been expressed..........

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

with statement of allegations 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 sustenance. Here of 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 based on 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 other side, 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 inquiry officer under impugned order dated 6.10.94, the report of the Inquiry Officer (annexureP2) and impugned

order dated 6.3.95 (annexureP3) in the facts and circumstances of the case suffer from grave legal infirmity and have come into being on 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.