Ch.Nabi Wani vs State of J & K

Ab. Qadir Parray, J.—By way of this writ petition No. 625 of 1987 dated 17.12.1987, whereunder petitioners, who were assigned

examination duty at Centre Nos. 230 and 231 at Government Higher Secondary School, Y.K. Pora were placed under suspension vide order No.

476 of 1987 dated 9.11.1987 by the respondent No. 2 for their involvement in mass copying and allowing use of unfair means at the examination

on 29.10.1987 and certain punishments were awarded to them under the impugned order. The punishments awarded are that the period of

suspension of the petitioners before this Court shall be treated as on leave whatever kind due and secondly two increments with effect of

postponement of future increments are stopped. Besides these two punishments, the Board authorities have been requested by the respondent No.

2 that the petitioners may not be assigned any examination duty in future.

The facts in brief which have given rise to the present petition are that petitioners were assigned the examination duty of Matric examination at

Centre Nos. 230 and 231 at Government Higher Secondary School, Y.K. Pora on 29.10.1987 and on a surprise visit paid by respondent No. 2

on the fateful day, he had seen that the students were busy in mass copying at the centre and they were being assisted by the inviligation staff who

were present on spot. In fact certain copying material was also being thrown out of windows at the time when the respondent No. 2 approached

the centre on the surprise visit.

It is further alleged that on entering the centre, it was found that large quantity of copying material was scattered in the hall and the said material

was seized on spot. On seeing this state of affairs, the visiting officer had seen that all the invigilation staff namely staff employed in the aforesaid

two centres have not only failed to perform their duties but they were even indulging in helping the candidates in copying and so on.

The respondent No. 2 had suspended the petitioners and pending enquiry into the conduct of the officials regarding their failure in duty to

disallow copying by the candidates in the Matriculation examination at the said centre they were attached with the District Education Officer

Anantnag and were subsequently chargesheeted separately which was served to them and they were asked to explain as to what they have to say

in their defence against the charges and as to why disciplinary action under law and rules should not be taken against them for the aforesaid

misconduct.

After the petitioners filed their respective replies/explanations, same came to be considered by the disciplinary authority and without holding

regular enquiry which in such cases is not required under the provisions of Rule 35 of the J and K Civil Services (Classification, Control and

Appeal) Rules of 1956, had passed the minor sentence as noted hereinabove.

It may be noted that it was a surprise visit paid by the respondent No. 2 (Director, School Education) at the relevant time when the

Matriculation examination was being held and the respondent No. 2 had found that copying material was being thrown out of the windows at the

fag end of the examination hours, presuming thereby that the material was retained by the persons of the examinees in connivance with the

invigilatory staff. No personal grudge, animosity or any other thing has been pleaded by the petitioners against the respondent No. 2 nor is there

any iota of evidence on that account on the file. The contention that the local Member Legislative Assembly had some grudge against the teachers

is a figment of imagination.

The petitioners instead of following alternate efficacious remedy available to them under the Rules of 1956 had knocked the doors of this Court

by taking resort to extraordinary writ jurisdiction and challenging the vires of the order and also taking following grounds of challenge :

That the impugned order is violative of fundamental rights of the petitioner and is sufficiently punitive in nature. No enquiry whatsoever has been

held in the matter and as such, same is violative of rules of natural justice.

The order impugned is arbitrary and harsh in nature.

That by passing the impugned order, the petitioners have been exposed to hostile discrimination in so far as two Assistant Superintendents who

were also on supervisory staff were exonerated and acquitted of the charge.

That the order impugned is cryptic in nature and is not a speaking one.

Though the respondents were put to notice, but they failed to file any counteraffidavit. However, at the time of hearing of petition, learned

counsel for the respondents produced records for the perusal of the Court.

Heard learned counsel for the parties at length and perused the records.

At the very outset Mr. Shukla appearing for the respondents vehemently argued that the petitioner instead of following alternative efficacious

remedy available to them under the Rules had knocked the doors of this Court by resorting to extraordinary remedy of writ jurisdiction challenging

the vires of the order.

Under the provisions of Rule 35 of the J and K Civil Services (Classification, Control and Appeal) Rules of 1956, it is clearly provided that

punishments mentioned in Rule 30 under clauses (i), (ii), (iii) and (v) (other than an order based on facts which have led to his conviction in a

criminal Court or by a Courtmartial, or an order superseding him for promotion to a higher post on the ground of his unfitness for the post) on any

Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any

representation, that he may desire to make any such representation if any, has been taken into consideration before the order is passed.

It is further provided that the requirement of this rule may, for sufficient reasons to be recorded in writing, be waived where there is difficulty in

observing them and where they can be waived without injustice to the officer concerned.

The punishments envisaged under Rule 30, of which care has been taken under Rule 35 of the Rules of 1956 mentioned hereinabove, lays

down :

``30. Punishments :

(i) censure; (ii) fine not exceeding one months' pay;

(iii) withholding of increments and/or promotion;

(iv) x x x x x x x x x x

(v) recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.''

This comes within the definition of minor punishments and can be imposed by the authority without holding enquiry as is required under the

provisions of Rule 35 of the Rules of 1956 which require full dressed enquiry and it is also envisaged that for the reasons to be recorded, the

disciplinary authority may even waive off asking for filing an explanation before imposing these minor punishments.

In the present case, petitioners have been served with the allegations of charges and they have also furnished their explanations and the

authority has awarded the punishments which are being agitated before this Court.

It may be noted and as rightly argued by Mr. Shukla that there is provision of appeal provided under Rule 36 of the Rules of 1956 to assail

such orders of imposing minor punishments under Rule 30 mentioned hereinabove passed by the disciplinary authority. The order in the present

case and impugned in this petition has been passed by the disciplinary authority and before coming to this Court in its extraordinary writ

jurisdiction, petitioners should have filed an appeal against the impugned order whereunder they have been awarded minor punishments, before the

appellate authority provided in this behalf under the rules.

It will be worthwhile to mention here that menace of copying has now gone into the very nerves of this society. Day in and day out mass

copying are being alleged which has put the career of the students at stake and it is very difficult to contain this problem. Such things are not to be

given any encouragement of whatsoever kind and requires heavy hand to curb this tendency. Only students are not to be disqualified for future

examinations or for further studies or to reappear in the examination but even invigilatory staff requires complete discipline so that society does not

suffer any more. It is but for the surprise visit of the officer on the fateful day that he had detected alleged irregularity of copying or having found

scattered copying material in the examination centre or that the copying material was being thrown out of the windows at the fag end of the

examination hours when the visiting officer approached the examination centre, alleging therein that the copying material was retained by the

students till the fag end of the examination. Whether the said material had helped out the examinees or not, is not the question for consideration

before me.

It has been brought on record that in all 83 candidates had appeared in the examination at the relevant centres and only three have been

declared successful, which apparently does not bail out the petitioners. However, this can be a consideration before the appellate forum while

considering the severity of the punishments alleged by the petitioners having been imposed on them and this may be a mitigating circumstance for

the appellate forum while considering the appeal, which if not already preferred by the petitioners till date, they are allowed to do same within three

months and the authority shall consider the same in light of all the facts and materials which have been brought on record.

For the foregoing reasons, this petition is being disposed of with the direction that in case petitioners have not filed appeal till date against the

order impugned in this writ petition, they shall do the same within a period of three months from today and the appellate authority shall consider the

same and dispose of the same within the statutory period.

However, in the peculiar circumstances of the case, parties shall bear their own costs. File be consigned to records and the records be

returned back to the Government Advocate.

Order accordingly.