Amarjit Kour @APPELLANT@Hash State And Ors

Through the medium of instant writ petition, petitioner seeks the following reliefs:-

i.“To quash order No. 773 of 1999 dated 03rd July, 1999 issued by the Commandant I.R. 04th Batallion Reasi, by which the petitioner was

removed from service, w.e.f., 18th February, 1999 and also to quash the ex-parte inquiry proceedings and charges, if any, framed against the

petitioner by issuance of writ of Certiorari and ii.To issue direction to the respondents to consider the case of the petitioner for reinstatement and to

allow the petitioner to resume the duty on the post of Constable on which the she was appointed and performing the duties and to pay the salary and

other consequential benefits to the petitioner, for which the petitioner is entitled and also to treat the period from the date of dismissal to the date the

petitioner re-join the duty as „ on duty‟ by issuance of writ of Mandamus; and

iii.To issue direction to the respondents, restraining them to implement the order No. 773 of 1999 dated 03rd July, 1999 and restraining the respondents

to fill up the post of petitioner by making appointment or adjustment and also restraining the respondents to treat the petitioner from the date of

dismissal to the date the petitioner re-join the duty as „ break in service‟ by issuance of writ of prohibition; and

iv. To issue direction to the respondents to produce all the original record of the departmental inquiry proceedings before this Hon‟ble Court by

issuance of writ of mandamus; and

v. To declare the order No. 773 of 1999 dated 03rd July, 1999 and ex-parte inquiry proceedings and charges, if any, framed against the petitioner as

ultra vires, unconstitutional and contrary to the provisions of law and Police Rules by issuance of writ of mandamus;â€​

The facts, as these emerge from the study of the file under consideration are that the petitioner, who was appointed as Constable on 07th June,

1990 has earned number of awards from the Director General and there are more than 5/6 awards including cash rewards and also Commendation

Certificate (Annexure-A) from the Director General and Sr.Superintendent of Police.  In the year 1998, the petitioner was

posted in 04th Batallion located at Reasi, and applied for one month leave, as the husband of the petitioner was serving in MES Department and was

posted in Manali (Himachal Pradesh). The atmosphere of Manali was not suited to the petitioner and she seriously fell ill and also suffered from

BronAsthama. The petitioner had sent Telegram from time to time for extension of leave, as she did not recover from illness. The petitioner has

also sent the Medical Certificate, which is annexed as Annexure-C to the writ petition. She was under this impression that the leave is extended, as

she has sent the Telegarms.

It is pleaded in the writ petition that after recovering from illness, when the petitioner came to join the duties, she came to know that her services

have already been terminated vide order (Annexure-D) dated 03rd July, 1999. The order has not been served on the petitioner even till today and

the petitioner with great difficulty has got the Photostat Copy of the order. The order was passed by the Commandant I.R. 04th Batallion, Reasi.Â

It is also pleaded that the respondents have not served any notice on the petitioner, as the petitioner had duly applied for leave. She has neither

received any notice nor was she aware about any notice published in Newspaper, as in Manali, the local Newspapers are not available. The

respondents have not appreciated that the petitioner has sent the Telegrams and it is in the knowledge of the respondents that the petitioner fell ill and

it is only because of that reason that the petitioner could not resume her duties. The respondents have not served the order while the petitioner has

made number of representations. The petitioner has also approached the respondents and also reported to I.G.P and Additional D.G. for allowing

her to join the duties. Despite the representations having been filed by the petitioner, the same have not been considered by the respondents till date.

It is also pleaded in the instant writ petition that the respondents have not conducted any inquiry, which is required under the provisions of law, as

she is governed under the provisions of Police Manual Rule 359. The respondents without conducting proper inquiry, without affording an

opportunity of being heard, without following the provisions of law and without verifying the fact as to whether the petitioner is ill or not, passed the

order, while under the provisions of Rule 359, the respondents have to conduct the proper inquiry because as per this Rule, no police officer or police

Constable can be ousted, removed or dismissed from service without conducting/holding proper inquiry and without serving any show cause notice.Â

In this factual backdrop, petitioner has approached this Court by way of instant writ petition.

Objections have been filed on behalf of respondent No.7. The stand taken therein is that the writ petition raises disputed question of facts, which

cannot be adjudicated upon under Article 226 of the Constitution of India read with Section 103 of the Jammu and Kashmir Constitution. None of

the fundamental, statutory or legal right of the petitioner has been violated. As per service records of the petitioner, her performance was also not

good as mentioned in the writ petition, whereas the Commendation Certificate is for specific duty event and annual remarks are the overall

performance; that the petitioner applied for thirty days’ earned leave on the plea that her son was ill and he needed treatment at GMC, Jammu.Â

She never disclosed that the petitioner was proceeding to Manali, which is mandatory for the official to mention in the leave application. No

telegram was received by this office and the petitioner did not bother to inquire about her leave and pay. The petitioner never applied for any copy of

document to this office. Â

It is also stated in the objections that five notices were served to the petitioner on her home address and as per record it has been received by the

mother-in-law as well as father-in-law. Even no family member present at home ever disclosed whereabouts of the petitioner. Similarly, the notice

has also been published in Daily Excelsior dated 25th March, 1999. Moreover, it is also a misleading fact that the respondent was in the knowledge

of the illness of the petitioner whereas the petitioner has applied leave for treatment of her son, that too at Government Medical College, Jammu.Â

The notice was properly served to the mother-in-law of the petitioner and ample opportunity was given to the petitioner by way of serving notice and

publishing notice in Daily Excelsior- a leading Newspaper. The petitioner having such a long service and education, knows the means of other

communication, i.e., by way of phone, by sending application, by registered post, to which she failed, which clearly shows that she was not interested

in service.Â

Learned counsel for the petitioner relies upon a decisions of this Court rendered in cases titled, “Mohd. Majnoon Mir vs. Stateâ€, reported in

2005(3) JKJ 189and “Nazir Ahmad (Constable vs. State andorsâ€​.,reported in 2012 (4) JKJ 127.

On the other hand, learned counsel for the respondents rely upon a judgment of this Court rendered in case titled, “Mohammad Iqbal vsState of

J&K and orsâ€​, reported in 2004(3) JKL 234.Â

I have considered the rival contentions.

Admittedly in the case, major and harsh punishment of dismissal from service has been awarded against petitioner due to absence from service

without leave. From the perusal of impugned order of dismissal, it would reveal that petitioner after availing of E/L was to report back on 08.02.1999,

which she failed. Thereafter various notices were issued, but all in vain.

Finally on 17.06.1999 a show cause notice was issued and served at home of petitioner through W/SGCT Mohinder Kour No.199, which was

handed over to mother-in-law of petitioner; in this notice it was asked to petitioner to resume her duty within three days from receipt of notice, failing

which she will be removed. Thereafter, she was removed vide order dated 03.07.1999.

Section 126 of Constitution of Jammu and Kashmir reads as under:-

“126. (1) No person who is a member of a civil service of the State or holds a civil post under the State shall be distressed or removed by an

authority subordinate to that by which he was appointed.Â

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause

against the action proposed to be taken in regard to him: Provided that this sub-section shall not apply:Â

(a) where a person is dismissed or removed or reduced in rank on the ground of con-duct which has led to his conviction on a criminal charge;Â

(b) where an authority empowered to dismiss or remove a person 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; orÂ

(c) Where the Sadar-i-Riyasat is satisfied that in the interests of the security of the State it is not expedient to give to that person such an

opportunity.Â

(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under sub-section.Â

(4) The decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.Â

This section is para-materia to that of Article 311 of Constitution of India. Bare perusal of this section, it is evident that it provides for protection

to public servant from punitive action being taken against them by an authority subordinate to one who appointed him, or without holding an inquiry in

accordance with law. Exceptions to this are contained in second proviso in the nature of clauses (a), (b) & (c)Â which provide that the said inquiry

shall not apply to employees who have been punished for conviction in a criminal case or where inquiry is not practicable to be held for reasons to be

recorded in writing or where the President or Governor, as the case may be, is satisfied that such an order is required to be passed without holding an

enquiry in the interest of security of the State.

The Constitution of J&K through Section 126, thus protects and safeguards the rights of civil servants in Government service against arbitrary

dismissal, removal and reduction in rank. Such protection enables the civil servants to discharge their functions boldly, efficiently and effectively. The

judicial norms and constitutional provisions are helpful to strengthen the civil service by giving civil servants sufficient security of tenure. But there

may arise instances where these protective provisions are used as a shield by civil servants to abuse their official powers without fear of being

dismissed. Disciplinary proceedings initiated by Government departments against corrupt officials are time consuming. The mandate of ‘reasonable

opportunity of being heard’ in departmental inquiry encompasses the Principles of Natural Justice which is a wider and elastic concept to

accommodate a number of norms on fair hearing. Violation of Principles of Natural Justice enable the courts to set aside the disciplinary proceedings

on grounds of bias and procedural defects.

The petitioner was police employee and rules 334 (1), 334(2) and 359 of Police Rules deal with the subject. Rule 334(1) of Police Rules provide

that no police officer shall be punished otherwise than prescribed in these Rules. Rule 334(2)(b) provides that ‘removal’ of employee is

one of the authorized departmental punishments.

Rule 359 is reproduced as under:-

“RULE 359 PROCEDURE IN DEPARTMENTAL INQUIRIESâ€​

(1) The following procedures shall be followed in departmental inquiries:-

(a)Â The Inquiry 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 27.6.1945) may be deputed to hold an inquiry or may institute an inquiry 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 inquiry may be conducted by an Inspector. The final order,

however, may by passed only by an officer empowered to inflict a major punishment upon the accused police officer.Â

(2) The officer conducting the inquiry 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 full notice of the circumstances in regard to which evidence is to be recorded.Â

(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 is within his power to do so or a finding to be forwarded to an officer empowered to decide the case.Â

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. Â

When the preliminary inquiry 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.Â

(4) If the accused police officer does not admit that misconduct the officer conducting the inquiry shall proceed to record such evidence oral and

documentary in proof of the accusations 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 inquiry 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 police officer not below

the rank of Inspector or 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.Â

(5) When the evidence in support of the allegations has been recorded, the enquiring officer shall:Â

(i) 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, orÂ

(ii) Proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.Â

(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 answer to which shall be recorded, provided 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 officer deems fit. The supply of copies of documents

to the accused shall be subject to the ordinary rules regarding copying fees.Â

(7) At the conclusion of the defence evidence or if the Inquiry Officer so directs at any earlier State, 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 made an oral statement in answer to all questions which the Inquiry Officer may see fit to put to him

arising out of the charge, the recorded evidence or his own written statement.Â

(8) The Inquiry 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 or causing to be made a preliminary investigation into the

conduct of a suspected officer. Such an inquiry 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 gazetted officer initiating the investigation but shall not cross-examine witnesses. The file of such a preliminary investigation shall form

not 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 & 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 causes orally and

also in writing against the action proposed to be taken in regard to him provided that this Clause shall not apply.Â

(A) Where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction 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; orÂ

(C) Whether 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. Â

(3)If any question arises whether it is reasonably practicable to give to any officer an opportunity of showing cause under Clause (ii) above the

decision thereon of the authority empowered to dismiss or remove such officer or to reduce him in rank, as the case may be, shall be final.â€​

This rule provides a complete and exhaustive procedure of conducting inquiry. Any breach of this rule would amount to termination or dismissal,

illegal. In terms of rule 359(11)(2) it is mandate of law that delinquent officer has to be given reasonable opportunity of being heard before his

removal.

Both the provisions are mandatory in nature and departure is only in cases given in clause 2 of section 126 of Constitution of State. In present

case, admittedly no inquiry as per Rule 359 of J&K Police Rules has been conducted. It is not the case of respondents that petitioner was

dismissed on the ground of conduct which has led to his conviction on a criminal charge and there is no satisfaction recorded by that

authority in writing that it is not reasonably practicable to give to that person an opportunity of showing cause. Â

The argument of counsel for respondents that petitioner was not traceable and even notices sent were served through her relatives, so inquiry was

not required to be conducted. This argument is not tenable, because holding of enquiry is mandate of law; even after starting of inquiry, if

petitioner did not come or traceable, inquiry has to be concluded in exparte. But there is no such inquiry ever conducted as per Rule 359 of Police

Rules.

20 In “Mohd. Majnoon Mir vs. Stateâ€, reported in 2005(3) JKJ 189 and “Nazir Ahmad (Constable) vs. State and orsâ€., reported in 2012

(4) JKJ 127, ( supra) it has been held that the holding of inquiry in terms of Rule 359 of Police Rules, before terminating the service of

employee, is mandatory. I have gone through the citation produced by counsel for respondents;Â in this case cited though it has been held that Rule

359 has no universal application, but writ petition was allowed due to non-holding of inquiry.Â

In view of above discussion, I am of the considered opinion that order No.773 of 1999 dated 03rd July, 1999 issued by the Commandant I.R. 04th

Batallion Reasi, by which the petitioner was removed from service, w.e.f., 8th February, 1999, has been passed in clear violation of mandatory

provision of law. It is quashed accordingly.Respondents are given liberty to initiate enquiry in accordance with Rule 359 of Police Rules. They shall

conclude enquiry within two month from the date of receipt of this order. Payment of salary to the petitioner from the date of alleged unauthorized

absence till today shall be determined in accordance with law. Petition is allowed in the aforesaid terms.

Disposed of.Â