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Judgment
The facts culled from the instant petition are that the brother of the petitioner named Ghulam Mohammad Chopan, was serving as a follower in the
police organization. He was posted in IRP 9th Battalion. He was a disciplined official and had helped the security and law enforcing agencies in
curbing the subversive activities as a result of which his presence in the police organization was not liked and tolerated by the subversive elements and
ultimately he was killed by the militants on 27.08.2001, while he was in service. In this connection an FIR came to be registered at Police Station
Magam. The deceased was the only source of survival for the members of his family. On his death, the petitioner applied for his absorption in the
police organization in terms of SRO 43 of 1994. The respondents after examining and analyzing the eligibility of the petitioner accorded the benefit of
SRO 43 to him and he came to be appointed as a sweeper in the respondent organization vide an order bearing No. 352 of 2003 dated 29.10.2003.
The petitioner joined the post and started working with great zeal and zest. He too became the target of the militants. They threatened to eliminate
him. His name figured in the hit list of a number of militant organizations. His movements were being watched. He lived under the constant threat
of the militants of the area which prevented him to move out of his house to discharge his normal duties. He conveyed the same to the higher
authorities, but to his dismay no security was provided to him. The respondents instead of appreciating the difficulties of the petitioner having already
lost his young brother at the hands of the militants, disallowed him to resume his duties for no reason. Thereafter, the petitioner filed a petition before
this court and it was only on the intervention of the court that the petitioner was provided with a copy of the order of discharge on 25.08.2007 about
which he had no prior knowledge. It is further mentioned in the petition that the petitioner again approached the respondents through umpteen
representations and letters. The respondents assured the petitioner that his grievances will be settled very soon and asked him to wait. The petitioner
waited for the final outcome of his representations, but nothing positive was conveyed to him. He was verbally informed by the respondents that his
discharge order will not be modified and he will not be permitted to perform his duties. The respondents maintained the order of discharge bearing No.
484 dated 08.07.2004 issued by respondent no.3.
On the set of facts detailed above, the petitioner has implored for the grant of the following reliefs in his favour:
i.A writ of certiorari be issued thereby the order impugned bearing No. 48/2004 dated 08.07.2004 Annexure A-1 issued by respondent No. 3 be
quashed. ii.By issuance of writ of mandamus the respondents be commanded to reinstate the petitioner with all consequential benefits attached to his
post which includes the payment of back wages.
In their objections, the respondents have resisted and controverted the petition of the petitioner on the grounds, inter alia, that the petitioner was
approved for appointment as a follower in JKAP under SRO 43 of 1994 vide PHQ order No. 2432 of 2003 dated 11.07.2003 and adjusted as a
sweeper in IRP 9th Bn. vide APHQ order No. APHQ/Pros/Appt-3/2003/15187-95 dated 14.08.2003. He was finally appointed as a Sweeper vide
IRP 9th Bn. Order No. 352 of 2003 dated 29.10.2003, as a corollary to which, he joined the unit on 29.10.2003. The petitioner absented himself w.e.f
11.01.2004 to 12.01.2004 and his period of absence was treated as dies non vide IRP 9thBn order No.103 of 2004 dated 28.02.2004. The petitioner
again absented himself unauthorizedly w.e.f 21.2.2004 and never reported back for duties. He was informed through the concerned police station to
report back for duty, but all in vain. A show cause notice through SHO P/S Magam Budgam, was served upon the petitioner for his continuous
absence and it was also published in a local daily newspaper running under the name and style of “The Rehmat†whereunder he was asked to
submit his reply, which he failed to do. The petitioner acknowledged the receipt of the show cause notice sent to him through the SHO concerned in
presence of the witnesses. However, the petitioner never reported at the Headquarter personally nor did he submit his reply. In view of these facts
the petitioner was removed from services w.e.f 21.02.2004 vide IRP 9th Order No. 484 of 2004 dated 8.7.2004. In the end, the respondents have
prayed that in view of what is stated in the objections, the writ petition be dismissed with costs.Â
Heard and considered.
Annexure “A-I†attached to the petition is an order dated 08.07.2004 (impugned herein this petition), issued by the Commandant, Headquarters
IRP9th Battalion Zewan, Srinagar, whereby the services of the petitioner have been terminated. It provides that since the petitioner absented from
duties unauthorizedly w.e.f. 21.02.2004, without seeking proper permission from his immediate officer, therefore, action in accordance with rule 359
J&K Police Manual and Section 128 of J&K CSR(I) is warranted to be taken against him. It further states that his absence from service tantamounts
to the loss of appointment. It also states that a notice was served upon the petitioner, whereby he was called to file the reply within seven days, which
he did not do within the period stipulated and, therefore, it is presumed that he is not interested in serving any more and will be discharged from the
services w.e.f. the date of his absence, i.e. 21.02.2004. The order impugned as is reiterated herein has been passed on 08.07.2004.
From the perusal of the record, which has been made available to this Court, it can be seen from a naked eye that no enquiry, whatsoever, as
provided under the rules, has been conducted in the matter. The petitioner has been shown the exit by an order of discharge without following the due
procedure of law, with a premeditated design to divest him of his right to participate in the enquiry. The petitioner appears to have made all attempts to
persuade the authorities that his absence from duty was not willful and deliberate, but was motivated by the reasons spelt out by him in the
representations. These representations of his have not been given any consideration nor did these have any impact on the authorities concerned. An
opportunity of being heard is the ‘sine-qua-non’ of every enquiry and in case of any departure, reasons justifying so have to be spelt out. The
principles of natural justice appear to have been violated with impunity in this case. The defence of the petitioner has been shut by deception and the
conduct of a full dressed enquiry has been given a complete goby.
Justice is not only law and its administration, but is, in most cases, above law and is done to safeguard an individual from whatever he/she seeks
protection. Our country generally and our State in particular aims at the goal of achieving a welfare State where everyone is/ has to be, as far as
possible, looked after. The principles of natural justice are imbibed from the Constitution itself. These are of paramount importance and nobody can be
condemned unheard.Â
In ‘AIR 2005 SC 2090’, Canara Bank v. V. K. Awasthy, the Hon’ble Apex Court, while dealing with the extent and scope of the
principles of natural justice, held as under:
“10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body
embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well
settled. The first and foremost principle is what is commonly known as audi alter am par tem rule. It says that no one should be condemned unheard.
Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet.
Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such
reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any
adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The
concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of
this principle found its way into the “Magna Cartaâ€. The classic exposition of Sir Edward Coke of natural justice requires to “vacate
interrogate and adjudicateâ€. In the celebrated case of Cooper v. Wandsworth Board of Works, [1963] 413 ER 414, the principle was thus stated:
“Even God did not pass a sentence upon Adam, beforehe was called upon to make his defence. “Adamâ€, saysGod, “where art thou has
thou not eaten of the treewhereof I commanded thee that though should not eatâ€.
Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept,
like polishing of a diamond.â€
9.Rule 359 of the Jammu and Kashmir Police Manual, lays down the Procedure in Departmental Enquiries. It is under the cover of this rule that the
petitioner has been discharged from services. It reads as under:
“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 gazette officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (Vide order No. 636-
C dated 27-6-1945) 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
summarizing 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 forth with to
record a final order if it is 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 SubInspectors 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 if 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 a 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 supply of copies of documents
to the accused shall be subject to the ordinary rules regarding copying fees.
(7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused
shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one
week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him
arising out of the charge, the recorded evidence or his own written statement.
(8) The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so or to forward the case with his finding
and recommendations to an officer having the necessary powers.
(9) Nothing in the foregoing rules shall debar a Superintendent of Police from making a causing to be made a preliminary investigation into the conduct
of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally
enquired into. The suspected police officer may or may not be present at such preliminary enquiry as ordered by the Superintendent of Police or other
gazette officer initiating the investigation but shall not cross-examine witnesses. The file of such a preliminary investigation shall form no part of the
formal departmental record but may be used for the purposes of sub-rule (4) above.
(10) This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of
probation.
(11) (1) As laid down in Section 126 of the Constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate
to that by which he was appointed.
(2) 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 regard to him, provided that this clause shall not apply :-
a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge,
b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that
authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or
c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity.
(3) If any question arises whether it is reasonably practicable to give to any officer an opportunity of showing cause under clause (2) above, the
decision thereon of the authority empowered to dismiss or remove such officer to reduce him in rank, as the case may be, shall be final.â€Â
What comes to the fore from the above rule is that the procedure for imposing the major penalty, including the order of discharge as passed herein this
case, involves:
i. The delivery of a charge sheet; ii. Appointment of an enquiry officer;Â
iii. Providing opportunity to the delinquent official to submit his defence and to be heard;
iv. The enquiry where oral and documentary evidence is produced by both sides;
v. The preparation of a report after the conclusion of the enquiry and forwarding of the same to the disciplinary authority (where the disciplinary
authority is not itself the enquiring Authority);
vi. Action on the enquiry report by the Disciplinary Authority; vii.Notice to the delinquent official to show cause on the penalty proposed;
viii.Meaning of the order imposing penalty; and ix.Communication of the orders.
10.In case titled ‘Jehangir Ahmad Mir v. State of J&K’, reported in ‘1998 SLJ 134’, this Court had the occasion to examine the range,
limits and the scope of Rules 337 and 359 of the Jammu and Kashmir Police Rules read with Section 126 of the Constitution of Jammu and Kashmir
and Article 311 of the Indian Constitution and it held as under:
“It is a matter of common knowledge by now that no member of a State service or a person holding post under the State can be removed from
service save otherwise in accordance with the requirements of Section 126(2) of the State Constitution read with Article 311 of the Indian Constitution
which contemplates conveying the specific charges to the delinquent and providing him a reasonable and adequate opportunity of being heard and then
his removal from service after an enquiry. Section 126(2) of the State Constitution provides for an additional safeguard of a second show cause notice
regarding the proposed punishment to be imposed.
This position is supplemented by the police Rules, Rule 359 whereof prescribes procedure for conducting departmental enquiry against police
personnel. Similarly Rule 336 lays emphasis on the suitability of punishment and cautions the Authority to be careful by taking in regard the character
of the delinquent and his past service. Similarly Rule 337 places a constraint on the exercise of the power of dismissal and illustrates the cases though
not exhaustively wherein this power was exercised, regard being had to the length of service of the offender and his claim to pension. All this pointed
to the checks imposed by law for exercise of the power of dismissal against a delinquent police employee.Â
Under Rule 359, the enquiry officer is required to summon the delinquent officer before him and read out a statement summarizing his alleged mis-
conduct in such a way as to give him full notice of the circumstances in regard to which evidence was required to be recorded in the matter.
Thereafter depending upon the denial if any made by the delinquent, the enquiry officer was required to proceed to record such evidence as would be
available and necessary to support the charge. The witnesses were required to be examined in presence of the delinquent and after this he was
granted an opportunity to lead his defence evidence or to file his documentary evidence and to state his own answer to the charge. The enquiry officer
was then to submit the recommendations or topics order of acquittal or punishment, if he was competent to do so.â€
An almost identical view has been taken by this Court in the case of ‘Ghulam Mohammad v. State of J&K’, reported in ‘1998 SLJ
273’, the relevant excerpts of which are reproduced below, verbatim et literatim:
“Rule 359 of Police Rules postulates two-fold stages of the enquiry, one preliminary and another after framing the charge. As regards preliminary
enquiry, the Enquiry Officer is required to follow the procedure as laid down under sub-rules (1) to (5) of Rule 359 of Police Rules. Perusal of the
chargesheet does not depict the names of the witnesses who have been examined during the preliminary enquiry, so much so it does not even depict
as to whether he was ever summoned, recording and reading out a statement of summary of allegations, is therefore, ruled-out. The chargesheet
depicts that a communication was sent to the petitioner and was provided an opportunity to question the witnesses which he did not but it does not
indicate that the basic requirement was observed which makes it obligatory upon the enquiry officer to summon the petitioner and read out the
statement of summary of allegations to him and after observing the said requirement question, of recording evidence would arise. Having failed to
follow the mandate of rule, the preliminary enquiry vitiates, for, same has not been in accordance with the mandate of Rule 359 of Police Rules and on
this count the impugned order is liable to be set aside.Â
The procedure which the Enquiry Officer has to follow after framing the charge is envisaged in sub-rules 6 and 7 of Rule 359 of Police Rules. Sub
rule 6 makes it obligatory upon the enquiry officer to provide an opportunity to the accused official to give a list of such witnesses whom he would like
to produce in defence and record their statements. It further provides that the statements of such witnesses can be recorded even at the places of
their availability, of course, for the reasons detailed in the sub-rules. The said sub-rule further provides that even access to the files, excepting the
confidential record, can also be permitted and the object is to allow sufficient opportunity of defence to the delinquent official/ officer.
After receiving the evidence, oral and documentary, yet another opportunity is to be made available to the delinquent official at conclusion of the
defence evidence under sub-rule 7 to make a statement in reply for the charge, so much so the delinquent official can seek permission to file a written
statement in his defence after the conclusion of the evidence in defence.â€
In view of the aforesaid enunciations of law, the condition precedent for initiating a disciplinary action against a police officer/ official is not only
the conduct of an enquiry, but it should also appear that due adherence and strict compliance to the manner and procedure as laid down under Rules
337 and 359 has been followed. Any deviation thereof will render the order imposing penalty bad and liable to be set aside.Â
In ‘Ghulam Ahmad & Ors. v. Sr. Superintendent of Police’, reported in ‘1988 JKLR 1367’, although a departmental enquiry was
conducted into the alleged callousness in duty on the part of the petitioners, who were Police Constables, yet the Court came to the conclusion that the
provisions of Rule 359 of the Jammu and Kashmir Police Manual had not been complied with while conducting the enquiry and, therefore, the Court
opined that the impugned order imposing penalty of dismissal upon the petitioners was unconstitutional, illegal and bad in law.Â
In ‘Syed Hussain v. State of J&K & Ors.’, reported in ‘1988 JKLR 1047’, where a Head Constable had been removed from
services after conducting an enquiry, but without issuing the show cause notice to him against the proposed punishment, the Court came to the
following conclusion:
“10. From the reading of this rule petitioner was to be given an opportunity of showing cause against the proposed action against him. This course
can be dispensed with if he was found guilty on a criminal charge which led to his conviction or the officer competent to punish him could have
recorded in writing that it was not reasonable to give the person an opportunity of showing cause or when it is not practicable for the security and
interest of the state.
In the instant case petitioner was not convicted by a criminal court nor had the punishing authority recorded his reasons as to why he did not give
show cause notice against the proposed punishment nor was it mentioned that it is not in the interest and the security of the state. Therefore, he was
entitled to be given a show cause notice against the proposed punishment under Rule 359 (11) (2) of the J&K Police Manual Vol. II that has not been
given. As such order of dismissal suffers from serious infirmity and cannot be sustained in the present form.â€
The record produced by the respondents before this Court does not make even a whisper to state that any inquiry was conducted into the matter.
There is no evidence on record to state and show that the statement summarizing the alleged misconduct on the part of the petitioner has been read
over and explained to him. Not even a murmur has been made to state that any evidence was recorded in the case. The procedure laid down to
conduct an enquiry in the rule cited above does not appear to have been followed at any stage. The record produced before this Court depicts and
conveys that in addition to the official notings and communications made, a single notice dated 10.04.2004 has been served on the petitioner which
reads as follows:
“I B. A. Malla-SSP (IPS) Commandant No. F-61/IR-9th Bn S/o Late Abdul Ahad Chopan R/o Sanoor Kalipora Beerwah Distt. Budgam to show
cause on the following counts:-
Whereas you were provisionally appointed as sweeper vide this office order No. 352 of 2003 dt. 29.10.2003
Whereas you absented un-authorizedly from duty w.e.f. 11.01.2004 to 12.01.2004 and your absence was treated as Diesnon vide order No. 103 of
2004 dated 28.02.2004.
Whereas you again absented un-authorizedly w.e.f. 21.02.2004 and continue to be still absent.
The above said act on your part at a stage when you are on the very threshold of probation speaks that you are unlikely to prove a good police officer
and under section 187 J&K Police Manual, you are liable for your discharge from services and under article 128 J&K CSR, you will lose your
appointment for your absence.
You are therefore called upon to show cause as to why you may not to be removed from services in view of the above stated facts. Your reply should
reach this office within seven days positively after the publication of this show cause notice in the state daily newspapers, i.e., Alsafa and Greater
Kashmir.
Sd/-
Commandant,
IR-9th Bn Zewan
Srinagar
DIPK No. 149 Dated:
10.04.2004
No charge sheet has been delivered to the delinquent. No Inquiry Officer has been appointed. No communication has been sent to the petitioner to
submit his defence. No opportunity of being heard has been given to him. No oral and documentary evidence has been produced by either side except
for the aforesaid notice. No Inquiry Report has been laid in the matter. No notice has been issued to the delinquent to show cause on the penalty
proposed and to crown it all even the order of discharge has also not been sent to him. Therefore, the impugned order of discharge cannot survive and
sustain in the eyes of law.
Viewed in the above context, the penalty imposed upon the petitioner, being contrary to the law and reason, cannot be upheld, as a consequence of
which, the impugned order bearing No. 48 of 2004 dated 08.07.2004, is quashed.
The Respondents shall, however, be free to hold a regular enquiry against the petitioner strictly in accordance with the provisions of the Jammu
and Kashmir Police Manual and if the respondents decide to hold any such enquiry, the same shall be initiated and brought to its logical conclusion, as
far as practical, within a period of three months from the date the copy of this order is served on them. The quashment of the impugned order as
above shall not entitle the petitioner to claim any salary/ remuneration or wages during the period he was out of service. The respondents shall deal
with this issue after the final report of the enquiry is received by them and shall decide the same in view of the conclusions drawn by the enquiry
Officer.Â
The writ petition alongwith connected MP(s) is disposed of as above.Â
Record be returned back.