Mohammad Akbar vs State of J. & K.

Tashi Rabstan, J.—Petitioner, appointed in 1996 as Constable in Police Department, has been removed from service vide Order No. 126 of

2007 dated 24""' January, 2007, issued by Senior Superintendent of Police, Srinagar. There-against, appeal preferred by petitioner was, vide order

No. 31 of 2011 dated 24th January, 2011, issued by Deputy Inspector General of Police, Central Kashmir Range, Srinagar, rejected.

Writ petition on hand throws challenge to Dismissal Order bearing No. 126 of 2007 dated 24th January, 2007 and Rejection Order bearing

No. 126 of 2007 dated 24th January, 2007 on the ground that petitioner’s services are governed by J&K Police Rules, 1960 and in terms of

Rule 334 no police officer is to be departmentally punished otherwise than as prescribed in the Police Rules of 1960. Rule 359(2) of the Rules of

1960, according to petitioner, provides that no police officer shall be dismissed or removed or reduced in rank until he is given a reasonable

opportunity of showing cause orally and also in writing against the action proposed to be taken. It is averred that in terms of Rule 359(1) of Rules

of 1960 a set procedure is to be followed, by virtue of which before imposing major penalty charge-sheet is to be delivered; enquiry officer is to

be appointed; delinquent official is to be provided opportunity to submit his defence and to be heard; oral and documentary evidence is to be

produced by both sides during enquiry; report is to be prepared on conclusion of enquiry and the same is to be forwarded to disciplinary authority

and that the disciplinary authority should not be itself the enquiring authority; disciplinary authority is to take action on the enquiry report; delinquent

is to be informed and notice served upon him to show-cause as regards proposed penalty; meaning of the order imposing penalty is to be read

over delinquent official; orders are to be communicated. It is next urged that member of State service cannot be removed from service except

otherwise in accordance with requirements of Section 126(2) of State Constitution read with Article 311 of the Constitution of India that provides

conveying of specific charges to the delinquent and affording of opportunity of being heard. Section 126(2) of the State Constitution, as stated by

petitioner, provides for additional safeguard of a second show cause notice concerning imposing of proposed punishment. It is averred that

impugned removal order has been issued without conducting any enquiry and without providing an opportunity of being heard to petitioner before

passing order of removal and that petitioner has not been provided opportunity to justify his absence. It is contended that application was made by

petitioner for grant of leave in view of ailment of mother and wife, which for undisclosed reasons remained unattended. Insofar as case FIR No.

240/2006 under sections 161, 165, RFC P/S Saddar is concerned, petitioner states that petitioner has been acquitted by court of law form the

said case and that this important aspect of the matter has totally been ignored by respondents while passing impugned removal order and

subsequently rejection order. Petitioner on the edifice of averments made in writ petition on hand, seeks following relief:

(i) By writ of certiorari, quashing order No. 126 of 2007 dated 24.01.2007 issued by respondent No. 4;

(ii) By writ of certiorari, quashing order No. 31 of 2011 dated 24.01.2011 issued by respondent No. 3 rejecting the petitioner’s appeal;

(iii) By writ of mandamus, commanding respondents to allow petitioner to resume his duties as Constable in Police Department and treat and deem

the petitioner in continuous service irrespective of the passing of the impugned order;

(iv) By writ of mandamus, commanding respondents to grant all service benefits to petitioner including treating the period of absence of petitioner

as on duty;

(v) By writ of mandamus, commanding respondents to release all consequential benefits in favour of petitioner including salary, appropriate

placement in the seniority and consequent promotion against higher post on the basis of seniority.

Reply has been filed by respondents. Respondents state that as per records petitioner absented unauthorisedly from service w.e.f. 21.10.2006

and did not seek any kind of permission and thereafter did not inform the department about his whereabouts and subsequently he came to be

arrested in case FIR No. 240/2006 under section 161, 165 RPC P/S Sadder. In view of said FIR, petitioner was placed under suspension vide

DPO order No. 2597 of 2006 dated 8th November, 2006 and Department Enquiry was initiated against him. During pendency of departmental

enquiry, according to respondents, petitioner moved an application before the Senior Superintendent of Police, Srinagar, through Superintendent of

Police South, seeking permission to resume duties and that petitioner’s request was acceded to and he was permitted to resume his duties vide

DPO order No. 2939 of 2006 dated 23.12.2006. However, he choose not to resume his duty and continued to remain absent despite he having

been permitted to resume duties. It is insisted that petitioner also did not co-operate with enquiry officer and he applied again for permission to

resume duties after a gap of almost one month, after having been previously permitted to resume duties. Contention of respondents is that petitioner

is a habitual absentee and has earned various punishments including dies non for a period of 74 days. Respondents aver that after taking a

wholesome view of the facts and circumstances attend to the subject-matter, petitioner was removed from services. It is contended that petitioner

was not associating himself with enquiry and was making a mockery of permission to resume his duties and it was impracticable to conduct

enquiry. The appeal preferred by petitioner is said to have been rejected after due consideration. The respondents seek dismissal of writ petition.

I have heard learned counsel for the par ties and considered the matter. I have perused the record made available by respondents.

Respondent No. 4 has dismissed petitioner from service on the allegation that he remained unauthorisedly absent from duties. It is well settled

that adherence to principles of natural justice is of supreme importance and that one should not be condemned unheard is a universal principle. The

Hon’ble Supreme Court in Canara Bank v. V.K. Awasthy reported in AIR 2005 SC 2090 has held :

The adherence to principles of natural justice as recognised by all civilised 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 alteram partem 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 Carta"". The classic exposition of Sir Edward Coke of natural justice requires to ""vocate

interrogate and adjudicate"". In the celebrated case of Cooper v. Wands-worth Board of Works. (1963) 143 ER 414. the principle was thus

stated :

Even God did not pass a sentence upon Adam, before he was called upon to make his defence. ""Adam"" says God, ""where art thou has thou not

eaten of the tree whereof I commanded, thee that though should not eat"".

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.

The Supreme Court has further held :-

What is meant by the term principles of natural justice is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local

Government Board, (1914) 1 KB 160 at p. 199 : 83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of

Medical Education & Registration of U.K. v. Sanckman, (1943) AC 627: [1948] 2 All ER 337. Lord Wright observed that it was not

desirable to attempt ""to force it into any procusteam bed’ and mentioned that one essential requirement was that the Tribunal should be

impartial and have no personal interest in the controversy, and further that it should give ‘a full and fair opportunity’, to every party of being

heard.

In P.D. Dinakaran (1) v. Judges Inquiry Committee and others reported in 2011 (8) SCC 380: (AIR 2011 SC 3711, paras 22,23), it

is held in paras 31 and 32 as under :-

The consideration of the aforesaid question needs to be prefaced by a brief reference to the nature and scope of the rule against bias and how

the same has been applied by the courts of common law jurisdiction in India for invalidating judicial and administrative actions/orders. Natural

justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are ""basis

values "" which a man has cherised throughout the ages. Principles of natural justice control all actions of public authorities by applying rules relating

to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice.

Rules of natural justice are indeed great assurances of justice and fairness. The underlying object of the rules of natural justice is to ensure

fundamental liberties and rights of subjects. They thus serve public interest. The golden rule which stands firmly established is that the doctrine of

natural justice is not only to secure justice but to prevent miscarriage of justice.

The traditional English Law recognised the following two principles of natural justice :-

(a) Nemo debert esse judex in propria causa : No man shall be a judge in his own cause, or no man can act as both at the one and the same time

a party or a suitor and also as a Judge, or the deciding authority must be impartial and without bias; and

(b) Audi altera partem: Hear the other side, or both the sides must be heard, or no man should be condemned unheard, or that there must be

fairness on the part of the deciding authority.

However, over the years, the courts throughout the world have discovered new facets of the rules of natural justice and applied them to judicial,

quashijudicial and even administrative actions/decision. At the same time, the courts have repeatedly emphasised that the rules of natural justice are

flexible and their application depends upon the facts of a given case and the statutory provisions applicable, if any, nature of the right which may be

affected and the consequences which may follow due to violation of the rules of natural justice.

The Supreme Court in Mohd. Yunus Khan v. State of Uttar Pradesh and others, reported 2010 (10) SCC 539 : (2010 AIR SCW

6089, para 15), held :-

We have to proceed keeping in mind the trite law that holding disciplinary proceedings against a Government employee and imposing a

punishment on his being found, guilty of misconduct under the statutory rules is in the nature of quasi judicial proceedings. Though, the technical

rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Evidence Act, 1872 do not apply in a domestic

enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably

and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It

cannot be an ipse dixit of the enquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of

natural justice. ...

After discussing above law, let us have a glance of the present case. Record made available by respondents emphatically show that respondents

have not conducted any enquiry into the allegations levelled against petitioner. Worth to be seen is finding of enquiry officer dated 29th January,

2007. It reveals that during pendency of inquiry, petitioner was removed from service in terms of impugned removal order. The enquiry officer, in

view of petitioner having been removed from service, concluded that the ""enquiry is of no use in this office and may kindly be dropped

accordingly"". It is pertinent to point out that Rule 334, Chapter-XI of the Rules of 1960 lays down the punishments that may be inflicted

departmentally on a Police Officer. Rule 359 in the same Chapter deals with procedure to be followed before such punishment is departmentally

inflicted on a Police Officer. This Court in Abdul Satar Lone v. State of J&K and others JKJ (HC) (4) 2011, 587 summarised the procedure

so laid down step by step in paragraph 15 of the judgment. It reads :

(a) Whenever a definite complaint of misconduct is received against Police officer, the officer receiving the complaint is to immediately record

statements, if any, in support of the complaint and through usual channels forward the complaint with the statements, if any, to the Superintendent

of Police or other Gazetted Officer under whose immediate control the officer receiving the complaint, is serving. The police or other officer if

satisfied that a prima facie case for enquiry is made out is to entrust the enquiry as far as possible to a Gazetted Officer empowered to inflict a

major punishment upon the delinquent officer.

(b) The officer conducting the enquiry is to summon the delinquent police officer, read out to him the statements summarising the alleged

misconduct so as to give notice to such police officer of the circumstance in regard to which evidence is to be recorded. In case the delinquent

police officer admits the misconduct alleged against him, the officer conducting enquiry may then and there record a final order if it is within his

power to do so or forward the matter to an officer empowered to pass a final order.

(c) If the delinquent police officer does not admit the alleged misconduct, the enquiry officer is required to record such evidence oral and

documentary in proof of accusation as is available and necessary to support the charge. Whenever possible, witnesses are to be examined in

presence of the delinquent police officer and such officer given opportunity to examine the witness unless he is of the opinion that the presence of

the witness cannot be secured without undue delay and expense or inconvenience. In later case the statement of the witness recorded and attested

by Magistrate, may be considered though not recorded in presence of the delinquent officer and without opportunity to cross-examine the witness

to such officer.

(d) When the evidence is recorded and it is found not to substantiate the accusation, the officer is to recommend his discharge to the

Superintendent of Police or other officer so empowered. However, if the evidence collected substantiates the accusation of misconduct, the officer

is to frame a formal charge/charges in writing, explain the charges to the delinquent police officer and call upon him to answer the charge.

(e) The enquiry officer after the charge/ charges are framed in writing is to explain it to the delinquent officer, and ask the delinquent, police

‘officer to furnish list of the defence witnesses whom he wishes to call along with summary of the facts as to which such witnesses are to testify.

The enquiry officer thereafter has to record the statement of the defence witnesses whom he decides to admit, in presence of the delinquent police

officer, who is also to be allowed address/put questions to the witnesses as he may deem fit. The delinquent police officer is also to be given

opportunity to file documentary evidence and in this regard to have access to official files and papers except such as form part of the confidential

record.

(f) The Inquiry Officer, after the defence is concluded, is to allow the delinquent police officer to make a statement in reply to the charge and if he

so chooses to file his written statement. The Inquiry Officer independent of the option exercised by the delinquent police official to file a written

statement, would be competent to put all such questions to him which he may see fit to be put arising out of the charge.

(g) The Inquiry Officer after the delinquent police officer, closes his case files his written statement and answers questions, if any, put to him, is to

pass order as may be warranted under facts and circumstances of the case or forward the case with his recommendations to an officer empowered

to pass such order. However, no officer is to be dismissed or removed by an authority subordinate to that by which he was appointed.

(h) The punishment of dismissal, removal or reduction in rank is not to be imposed unless delinquent police officer is given a reasonable opportunity

of showing cause orally and also in writing against the action proposed to be taken against him. However such right may be denied if the delinquent

officer is dismissed, removed or reduced in rank on his conviction on a criminal charge or the authority is of the opinion that, it is not reasonably

practicable to give the delinquent police officer an opportunity of showing cause or where the Governor is satisfied that in the interest of the

security of the State it is not expedient to give that officer such an opportunity.

(i) The Authority competent to order dismissal, removal or reduction in rank, is not merely to give an opportunity to the delinquent police officer to

show-cause against the proposed action but provide the officer copy of the enquiry report and the record, so as to enable the delinquent police

officer to exercise his right to show-cause against the proposed action in a meaningful manner.

Perusal of record reveals that procedure(s) laid down in the aforementioned Rule(s) have been observed in breach. The record divulges that

enquiry was not conducted into the matter. The enquiry officer, asked to conduct inquiry, has not summoned petitioner, read to him statements

summarising alleged misconduct, record oral and documentary evidence in proof of the accusation, allow petitioner to cross-examine witnesses or

to examine witness and produce documents in his defence. The record also does not indicate that any formal charge was framed against petitioner

and the petitioner given an opportunity to furnish the list of defence witnesses or examine such witnesses, or allowed to file written statement.

Petitioner has not been given an opportunity to show-cause orally and in writing against action proposed to be taken against him. It is pertinent to

point out that petitioner was not removed on his conviction of a criminal charge nor was satisfaction recorded by respondents that giving him an

opportunity to show cause against proposed action would not be reasonably practicable.

In the circumstances the procedure mandatorily to be followed before making impugned order(s), was not followed by the Competent

Authority. The impugned orders, therefore, have been passed in violation of mandate of Rules of 1960 and in particular Rule 359 of the Rules of

1960. The orders, thus, cannot stand legal scrutiny.

For the reasons discussed, the writ petition is allowed. Order No. 126 of 2007 dated 24th January 2007, issued by Senior Superintendent of

Police, Srinagar and Order No. 31 of 2011 dated 24,h January 2011, issued by Deputy Inspector General of Police, Central Kashmir Range,

Srinagar, are quashed. Respondents to conduct enquiry against petitioner in accordance with Rule 359 of J&K Police Rules, 1960, within a period

of two months from the date copy of this order is served upon respondents. The further course of action as regards resumption of duty by

petitioner or otherwise, shall be dealt with in accordance with rules and having regard to the outcome of enquiry, if any, ordered against petitioner.

Disposed of.

Record be returned to counsel for respondent.