Mohammad Ramzan Khandey vs State of J & K

S.K. Gupta, J.—Petitioner, Mohammad Ramzan Khanday, was appointed as constable in J and K Armed Police, VIIIBattalion on

11.04.1983 and subsequently stood transferred to VIIBattalion in the same year. He allegedly absented himself when proceeded on night

permission on 03.05.1989 and reported back on 16.06.1989 after an absence of 43 days. Petitioner again, when sent to undergo basis Recruit

Training Course on 23.07.1989 to 13th Battalion at Sheeri, Baramulla, absented himself from Training Centre, on 02.08.1989 and reported back

on 15.01.1990 after an authorized absence of 166 days; He further proceeded on 5+2 days casual/station leave on 04.06.1990 to 12.06.1990

and reported back on 17.06.1990 after overstaying on unauthorized absence of six days, which led to the passing of the impugned order No. 514

of 1990 dated 29.08.1990 dismissing the petitioner from service after having been provided from the enquires initiated envisaged under Police

Rules that the petitioner is habitual absentee and least interested in his service and a parasite on the department.

Petitioner's case is that he had fallen ill seriously, approached the CHM for giving a sick report, but denied. His request to the Commandant

when approached for referring him to the hospital was also denied. He remained under treatment of a private doctor in respect of which he also

produced a medical certificate issued by the said doctor and after recovering from his ailment reported for duty, but not allowed. Later, he was

served with a charge sheet, enquiry allegedly conducted in contravention of the provisions of the Regulation 359 (6) and (7) of the Police Manual

and dismissed from service by respondent No. 3.

Respondents stand is that the persistent unauthorized absence of the petitioner on three different occasions for 43 days, 166 days and six days

led to the initiation of disciplinary enquiries contemplated under Rule 359 of the Police Manual and despite various reminders, the petitioner did not

reply to the charge sheet for a long time and produce any evidence, and on the completion of the enquiry by the Enquiring Officer, show cause

notice giving him a reasonable opportunity to explain against the action proposed to be taken in regard to him and on the receipt of the reply, the

petitioner was dismissed from service. It is also pointed out that the enquiry has been conducted strictly in accordance to the producer laid down

and Rule 359 of the Police Rules. The habitual absence on different occasion of the petitioner was inducing factor for passing the order of

dismissal.

Mr. A.M. Dar, appearing for the petitioner vehemently urged that the procedure for holding of departmental enquiries has been laid under Rule

359 of the Police Rules, where regular procedure is prescribed as to how the enquiries are to be held against the guilty police personnel. His

further contention is that the officer conducting enquiry is required to first give summary of allegations to the delinquent constable and in case the

delinquent constable does not admit the misconduct alleged against him, the office conducting enquiry may proceed forthwith next to frame charge

and serve it upon the delinquent officer calling upon him to answer the state defence witnesses whom he proposes to examine and then at the

conclusion of the defence evidence, send an enquiry report with his recommendations to an officer heaving the necessary powers, who shall serve

show cause notice upon the delinquent official giving him a reasonable opportunity showing cause against the action proposed to be taken in regard

to him before passing an order of dismissal or removal from the service. But in the instant case, according to petitioner's advocate, Mr. Dar, the

mandatory procedure under the Rule 359 of Police Manual has not been followed by the Enquiring Officer as the framing of the charge has to be

confined only to the allegations of misconduct in order to secure explanation / answer in respect thereof that in the said charge the petitioner could

not be asked to produce the defence, if any, in support of his written reply to the charge. The delinquent official is required to be asked separately

under Rule 359 (6) to state the defence witnesses and not in the charge itself where the accused officer could not be called upon to reply the

charge, and is, thus, clearly violative of the mandatory procedure prescribed for disciplinary enquiry under Rule 359 of the Police Rules. His further

contention is that the petitioner was never required to state his own answer to the charge nor was asked to make an oral statement in answer to all

questions, which the Enquiring Office may have put to him arising out of the charge envisaged under Rule 359 (7) of the Police Rules, thus denied

the principles of natural justice and rendered the impugned order based on such enquiry to be set aside by the court in exercise of its writ

jurisdiction.

Mr. M.I. Qadiri, appearing for the respondents has however, strenuously debated that the order of dismissal of the petitioner from the service

passed by the competent authority, on account of his habitual absence at different occasions and his noncompletion of the training, through deputed

twice, proved from the disciplinary enquiries conducted strictly in accordance with the procedure laid down in Rule 359 of the Police Rules, is legal

and valid. That the petitioner had participated in the enquiry, was given the summary of allegations and thereafter served a charge sheet on him

calling upon to reply the charge and produce defence witnesses in support of his reply. His further contention is that though various reminders were

given and despite waiting for a long, no reply to the charge was given by the petitioner nor led any evidence in defence leaving no option with the

Enquiring Officer but to conclude it and submit its report with its recommendations to the competent authority (respondent No.3), who after giving

a notice to the petitioner to show cause about the action proposed to be taken in regard to him and no the receipt of the reply passed the order of

dismissal from service induced by his persistent unauthorized absence leading to a grave misconduct, least interested in his service and a parasite

on the department.

It is by now settled that the Constitution provides certain guarantees and safeguards to an employee, who is a member of civil service or holds a

civil post under the State. He cannot be dismissed or removed from service or reduced in rank by any authorities subordinate to the appointing

authority and without any enquiry in which he is to be informed of the charges against him and also to be afforded by reasonable opportunity of

being heard in respect of such charges. These safeguards are contained in Article 311 of the Federal Constitution and Section 126 of the State

Constitution. The latter section provides of an additional safeguard of giving second show cause notice to the delinquent employee informing him of

the punishment proposed to be imposed on him. This position is supplement by the Police Rules, Rule 359 were of prescribes procedure for

conducting departmental enquiries against the police personnel. All that remains to be seen in the case in the light of the settled legal position was

whether the disciplinary enquiry conducted before passing the impugned order was in accordance with procedure laid down in rule 359 of the

police rules being the chief ground of challenge to the correctness of the impugned order in the writ petition.

When an employee is dismissed or removed from service in pursuance of a departmental enquiry conducted in accordance with rules and

regulations, to require the delinquent employee, in the charge served upon him, also to state defence witnesses whom he wishes to call in support

of reply to the charge instead of asking him after the reply to the charge is furnished, whether has prejudiced the delinquent employee gravely and

thereby deprived him of reasonable opportunity and violated the principles of natural justice. It is pertinent to point out that by referring to the

pleadings of the petitioner, it is no where pointed out that asking him to state the defence witnesses to be examined in support of the charge in the

charge sheet served on him has occasioned any prejudice to him. The petitioner in the instant case has not even cared to reply to the charge though

various reminders were given as found in the counter filed by the respondents, which remained unrefuted nor examined any witness. The theory or

reasonable opportunity and the principles of natural justice has been evolved to uphold the rule of law and to assist the individual to vindicate his

just rights. They are not incantations to be invoked nor rites to be performed on all or sundry occasions. Whether, in fact, prejudice has been

caused to the employee or not on account of asking him to state the defence witnesses in support of the charge on the charge sheet served has to

be considered on the facts and circumstances of each case. Where, therefore, even after the charge is served upon the delinquent employee

requiring him to reply the charge and thereafter requiring him to state the defence witnesses on the receipt of the reply, no different consequence

would have followed, it would be a perversion of justice to permit the employee to resume duty and get all the consequential benefits. It amounts to

rewarding the delinquent employee and, thus, to stretching the concept of justice to illogical and exasperating limits. It amounts to an unnatural

expansion of doctrine of natural justice. In this case, by not requiring the petitioner to state the defence witnesses after furnishing reply to the charge

sheet served on him has made no difference to the ultimate findings and punishment given because the petitioner had neither, made a reply to the

charge, nor examined the witnesses in defence so as to result into a breach of principles of natural justice. There would be neither the breach of

natural justice nor denial of reasonable opportunity, nor a violation of the mandate for the procedure causing prejudice to the petitioner. In case

State Bank of Patiala vs. S.K. Sharma reported in 1997 KLJ (SC) 1, the matter pertaining to violation of procedural provision came up, for

consideration and it was held as under:

.... In the case of violation of a procedural provision, the position is this; procedural provisions are generally meant for affording a reasonable and

adequate opportunity to the delinquent officer/ employee. They are generally speaking, conceived in his interest. Violation of any and every

procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no notice, no opportunity

and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether

such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so

prejudiced appropriate orders have to be made to repair an remedy the prejudice including setting aside the enquiry and / or the order of

punishment. If no prejudice is established to have resulted thereform, it is obvious, no interference is called for...."" Again the court held :

... To repeat, the test in one of prejudice, i.e., whether the person has received a fair hearing considering all things...

The delinquent, in the instant case, was not prejudiced on failure of the Enquiring Officer and also requiring him to state the defence witnesses in

support of the charge in the charge sheet itself served upon him instead of asking about the witnesses examined in defence separately after the reply

is received, because no reply had been filed nor witnesses examined or evidence produced for a long time though various reminders given in this

behalf. This is further manifest from the fact that neither there is any recital in the writ petition nor the reply to the show cause notice by the

disciplinary authority against the proposed action to be taken against him that there has been violation of the mandate of the procedure by the

Enquiring Officer and not asking him separately to state defence witnesses whom he wishes to call and examine the produce evidence after the

reply to the charge by the delinquent employee requiring him in the charge sheet itself to state the defence witnesses whom he wishes to examine

the produce evidence has occasioned grave prejudice to the petitioner so as to amount the denial of opportunity of being heard and violation of

principles of natural justice.

In Kshirode Behari Chakravarty vs. The Union of India, 1970. S.L.R. (SC) 321, The Apex Court held as under:

The enquiry under Article 311 is a domestic enquiry, and the Court is not concerned with the question whether on the evidence before the officer

or authority passing the order against the civil servant, there was sufficient evidence to justify the order. The guarantee under Article 311 is of the

regularity of the enquiry. If the enquiry is not vitiated on the ground of any procedural irregularity the court is not concerned to decide whether the

evidence justified the order.

It was further held by the Apex Court that opportunity of tendering the reply given but not availed of by the delinquent official, the enquiry is

not vitiated. It is further reiterated by the Apex Court in Deokinandan Sharma vs. Union of India and others, AIR 2001 SC 1767.

The petitioner has not been able to show from record that after the charges were served on him requiring him to make reply, opportunity to

state the defence witnesses and produce the evidence was not given. The only grievance was that instead of requiring him to state the defense

witnesses and produce evidence separately after reply to the charges in terms of Rule 359 (6), the delinquent petitioner was asked in the charge

sheet itself to state the defence witnesses and produce evidence. This would, however, not vitiate the enquiry in view of the judgements of Apex

Court referred to supra, unless grave prejudice is pleaded and established, which is the prime test, i.e., whether the person has received a fair

hearing. The petitioner had not even replied to the charge and produced evidence for a long though filed medical certificate issued by a private

doctor with regard to his ailment alongwith his reply to the notice under Rule 359 (11) (2). In reply to the show cause notice dated 15.08.1990,

the petitioner categorically sought the condition of his absence from Training Centre, Sheeri, Baramulla for a period effective from 2.8.1989 to

14.01.1990, which comes to 166 days on the ground that he fell ill and he had to undergo treatment, but no where explained his absence of 43

days on one occasion and six days on the other in his reply to show cause notice. The delinquent petitioner has stated least about the

noncompliance by the Enquiring Officer in not affording an opportunity of being heard or violating the principles of natural justice. Test of

noncompliance of the procedure is the prejudice to be pleaded and proved by the delinquent petitioner, which has not been done in this case. The

delinquent constable, therefore, could not succeed in providing that there had been any violation of the procedural provisions in the departmental

enquiry which occasioned prejudice to him in defending himself properly and effectively nor could show denial of opportunity of being heard or

violation of principles of natural justice at any stage of the enquiry. Apart from that, when the delinquent does not reply to the charge sheet served

upon him and avail adequate opportunity of defending himself in examining the witnesses and producing the evidence, the penultimate must follow.

In the circumstances, deriving support from the ratio of the judgements of the Supreme Court referred to above and also rule position

contained in the Police Rules, the conclusion reached is that the order of dismissal founded on habitual unauthorized absence does not suffer from

any infirmity so as to invite interference of this Court in exercise of its writ jurisdiction. The petition is, therefore, dismissed as without merit with no

order as to costs.

Record perused and returned to Mr. M.I. Qadri, Senior Additional Advocate General.