All Naqi vs State and Ors.

Petitioner was a Store Keeper in the Department of Food & Supplies and posted in District Kargil in the year 1982. The case of

missappropriation of the store articles entrusted to the petitioner was registered with Police Station Kargil. He was placed under suspension in the

year 1985 vide Order No. DDCK/SS202/PF (AN) 8283 dated 29.3.1985 by respondent No. 2 District Development Commissioner Kargil.

Further case of the petitioner is that trial was conducted in the Chief Judicial Magistrate, Kargil and on its conclusion he was acquitted vide

judgment and order dated 9.10.1987. Vide orderdated 6.8.1988 the petitioner was reinstated by respondent No. 2. This order however, is further

to have been superceded by the respondent No. 2 by another order dated 1.9.88 in directing the enquiry would be conducted to determine the

shortages. One Mohd. Sadiq, Dy. Registrar Cooperative, was appointed as an Enquiry Officer. The petitioner further stated that neither any

enquiry started nor any charge sheet was served to the petitioner. However, respondent No. 2 by another orderdated 26.4.89 directed the

pending Departmental Enquiry, the department will start recovery from the petitioner at the rate of 50% of his gross pay which became the subject

matter of the challenge by the petitioner by filing the writ petition in seeking its quashment and further direction to the respondents to settle the claim

of the petitioner with regard to salary/suspension allowance for a period from March 1985 to Sept. 1988 when he remained under suspension and

further refund of the deductions made from his pay in pursuance of the order impugned in the writ petition by issuance of an appropriate writ in

exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and

Kashmir.

No counter has been filed by the respondents despite various opportunities. Heard the arguments and considered the rival contention of the

parties at length.

It is not in dispute that the petitioner was reinstated after his acquittal by the criminal court in case of alleged missappropriation by him during his

tenure as Store Keeper in the Food and Supplies Department at Kargil. However, a departmental enquiry was ordered by respondent No. 2

relating to the shortages, one Mohd. Sadiq Dy. Registrar Cooperative Kargil, was appointed as Enquiry Officer to submit his report within a

period of month.

The main grievance of the petitioner, reflected in the writ petition, according to its averments, are two fold: Firstly, that the pending Depart

mental Enquiry, recovery has been ordered by respondent No. 2 at the rate of 50% from his gross pay and secondly that neither salary nor any

suspension allowances has been paid during the period he remained under suspension.

Mr. T. Khawaja, learned counsel for the petitioner, vehemently urged that neither any enquiry nor any charge sheet was served upon the

petitioner by the Enquiry Officer appointed by the respondent No. 2 to determine the Shortages of the food articles during the period the petitioner

remained posted as Store Keeper at Kargil. His further contention is that unless the enquiry is conducted and concluded and finding returned by

the Enquiry Officer to determine the shortages against the petitioner, no recovery could be ordered. That the order impugned, directing the pending

enquiry, is in violation of the Rules 30 and 35 of the Jammu and Kashmir (Classification, Control and Appeal) Rules 1956 and thus cannot be

sustained in law.

Mr. M.A. Wani, Dy. AG, appearing for the respondents however, has not been able to project either from the record or otherwise that the

enquiry though ordered by the respondents to determine the shortages was ever conducted by the Enquiry officer and charge sheet served upon

the petitioner in case any enquiry was conducted, what was the finding of the Enquiry Officer and whether any shortages are determined during the

period petitioner remained posted as Store Keeper so as to impose penalty upon him in accordance with the above referred J&K CCA Rules.

Mr. Wani, Dy. AG, however, expresses his ignorance with regard to the conduct of the enquiry against the petitioner, if any, by the Enquiry

Officer. He also could not show whether any shortages of food articles from the store has been determined during the period of the petitioner.

Learned counsel appearing for the respondents, Mr. Wani, further admitted that without a finding of the Enquiry Officer with regard to the

shortages found and the loss caused to the Department by the petitioner, he could not be asked to make good the loss and no recovery can be

deducted from his gross pay. He also did not dispute that pending enquiry any penalty could be imposed and recovery ordered from the gross pay

of the petitioner on shortages which is yet to be determined.

Another limb of argument put across by Mr. Wani, Dy. AG, is that writ petition is not maintainable as the petitioner has approached the Court

without availing alternate efficacious remedy by way of appeal under the provisions of J&K Civil Services (Classification, Control and Appeal

Rules) 1956. It is pertinent to point out that the order of recovery pending enquiry by way of penalty without following due procedure envisaged

under law is an order nonest in the eyes of law and contention is illegal void abinitio and untenable. So the remedy to declare such order as nonest

is only by way of writ and not by way of appeal. Appeal is preferred only to vouch the grievances on the factual material and apprehension thereof.

But where the order is patently illegal, the remedy available is by way of writ petition to seek its quashment. In other words, only factual aspect can

be assailed in an appeal under Rule 39 of J&K Classification, Control and Appeal Rules 1956 (CCA Rules) whereas legality of the impugned

order can be assailed in writ which is the speediest and immediate remedy. The argument of the learned counsel, though appears to be attractive

cannot be accepted for the aforesaid reasons.

Mr. Khawaja, learned counsel for the petitioner further contended that when there was substantial acquittal of the petitioner of a criminal charge

of misappropriation by the Court, there should not be any departmental proceedings against the petitioner under law in respect of the same charges

and on same facts. His further submission is that such departmental enquiry is held only when there is a technical ground. It may be pointed out in

this context that the order of acquittal passed by Criminal Court does not debar the departmental enquiry on the same charges. It is for the

Government to decide what action should be taken against its employee for misconduct. There is nothing illegal for the Government to initiate

departmental proceedings against the petitioner even after the close of the criminal proceedings.

I do not find any substance in the submission of petitioner's counsel thus, cannot be accepted.

In view of the facts and circumstances discussed above, the order impugned No. DCK/SupI/89 dated 26.4.89, passed by respondent No. 2,

in my considered opinion, is illegal and bad in law and thus cannot be sustained. The writ petition is, accordingly, allowed and order No.

DCK/Sup1/89 dated 26.4.89 is quashed. Any recovery made during the period when the impugned order came to be passed and till the date such

order was stayed by the Court, is directed to be refunded by respondent No. 2. It is further directed that the claim of the petitioner with regard to

salary/suspension allowance for the period he remained suspended shall be settled by the respondents within a period of two months from the date

certified copy of this order is made available by the petitioner to the respondents. If it is not done within the stipulated period and if it was ultimately

found due to the petitioner, the same shall be payable with interest at the rate of 12% per annum by the officer on whose account delay is caused.

Disposed of accordingly.