Muhammad Maqbool and Others vs State of J&K and Others

The petitioners through the medium of this petition pray for a writ of certiorari quashing the order No: 530 of 1987 dated 1951987, issued by

respondent No.4, order No: 404 of 1987 dated 1181987 issued by respondent No.3 and order No: 515 of 1988 dated 1061988 issued by

respondent No.2. and to command the respondents to treat the petitioners as employees of their Department and release their arrears and confer

consequential benefits upon them.

The facts in brief giving rise to the present petition are that the petitioners have a common cause and grievance against the joint orders passed by

the respondents against them and as such are filing this petition jointly to avoid multiplicity of litigation.

It is averred in the petition that the petitioner No. 1 has been appointed as Constable in the Year 1974; was promoted as Selection Grade

Constable in the year 1984 and had clear service record through his service career.

The petitioner No.2 has been appointed as constable in the year 1974 and prior to its appointment in the Police Department, he was working in

the Home Guard and Civil Defence Department and has been promoted to the post of Senior Grade Constable in the year 1984.

The petitioner No.3 has been appointed as constable in the month of July 1961 and came to be promoted to the post of Senior Grade

Constable in the year 1979 and further promoted to the post of Head Constable in the year 1982, as such, he has more than 25 years of service in

the Police Department.

It is also averred that the respondent No.5 was appointed as an enquiry officer to enquire into the alleged theft case in the police Headquarters

at Kupwara and in consequence of the aforesaid appointment of respondent No.5 as enquiry officer, charge sheet was served to the petitioners,

copies whereof have been placed on record. The charge sheets reveal that the allegations against the petitioners are identical. It is further averred

that the petitioners herein are accused of negligence of duty. It is submitted that the charge sheet has been issued by respondent No.5 who is not

the competent officer to provide punishment to the petitioners and in pursuance of the charge sheet, the petitioners filed their reply copies whereof

have also been placed on the file.

A perusal of the replies so submitted by the petitioners will make it clear that the petitioners have denied the charges and they have further

submitted that under police rules, it was obligatory upon the respondents to issue special directions to provide double security in case there was

any cash lying in the Headquarters. They further submitted that they were never informed by the Cashier with regard to the fact that there was

some cash lying in the Police Headquarters. They have also submitted that the building of S.P's office was unsafe and on the road side. There was

no negligence on their part in performing their usual duties as such, the charges against them be dropped. It was also averred that the charge sheet

did not contain any statement of allegations. The charges were vague and inconsistent. It did not mention as to what were the basis on which, same

were framed against the petitioners.

It is further averred in the petition that thereafter no enquiry is alleged to have been conducted by the respondent No.5 in as much as no witness

was ever examined nor were the petitioners allowed to produce any evidence in defence. Nobody came forward to depose before the enquiry

officer to the knowledge of the petitioners that they were not present on their duties. The petitioners gave reference of Garath book which testifies

their presence. Thereafter the petitioners did not hear anything about the facts of the enquiry and ultimately they were served with order No:530 of

1987 dated 1951987 issued by respondent No. 4 copy whereof has been annexed with the petition.

It is submitted that the enquiry officer seems to have submitted his report to respondent No.4 who ordered that annual increments of the

petitioners be forfeited for two years and the petitioners be reinstated in service with immediate effect. The period of suspension was treated on

duty. In pursuance of the aforesaid order issued by respondent No.4, the petitioners joined their duties and received the salary. It is further averred

that the respondent No.3 passed an order under No:368 of 1987 dated 2071987 wherein he proposed to enhance the punishment of the

petitioners. It is also submitted that the motive behind the enhancing of punishment was ""misconduct has been subject matter of discussions in the

Legislative Assembly"" and the petitioners were again placed under suspension.

In response to the aforesaid order, the petitioners filed their reply denying the charges against them. They were never heard in person by

respondent No.3 nor any enquiry report or any material on the basis of which, he intended to enhance the punishment was supplied to them. The

respondent No. 3, as per averments, issued an order No:404 of 1987 dated 1181987, whereby the petitioners were removed from service and

aggrieved by the said order, the petitioners had taken recourse to the departmental proceedings by resorting to appeal provisions under Article

364 of the JandK Police Rules and filed the appeal before respondent No.2. The respondent No.2 vide order No: 551 of 1988 dated 1061988

dismissed the appeals filed by the petitioners and upheld the decision of respondent No.3. The petitioners felt aggrieved of the aforesaid orders

and challenged the same interalia on the following grounds :

That the charge sheet issued by the respondent No.5 is without jurisdiction; and the charge sheet has to be issued by the punishing authority only.

The respondent No.5 is not a punishing authority and is subordinate to punishing authority, as such, the charge sheet issued by him is illegal and the

subsequent proceedings which resulted in issuance of punishment orders are illegal;

A perusal of the charge sheet reveal that the petitioners have been charged for negligence of their duties and the punishment of removal cannot be

passed on the basis of negligence of duties as this is violative of Rule 18 and 337 of the Police Rules;

The entire proceedings are violative of principles of natural justice in as much as no statement of allegations on the basis of which charge sheet has

been issued, has ever been furnished to the petitioners. Respondents never examined any witness against the petitioners nor they were allowed to

produce any evidence in their defence. The conclusions arrived at by the respondent No.5 are based on no evidence in the eye of law, as such the

orders impugned deserve to be quashed;

The respondent No.3 has proceeded on whimsical grounds and on foreign material. He has been tempted by the discussions in the Legislative

Assembly which has prompted him to take coercive measures against the petitioners. He has not passed the impugned orders on any material but

on the discussions in the Legislative Assembly. The petitioners cannot be punished on extraneous reasons and on foreign material which has never

been put to them. The respondent No. 3 has to act on the basis of record and jiot on the pressure raised by the Legislative Assembly, and thus the

entire exercise done by the respondents is illegal, unjustified and unwarranted;

The respondent No.3 has not furnished a copy of enquiry report or any other material on the basis of which he has enhanced the punishment, to

the petitioners. Thus the entire exercise done by the respondent No.3 is nullity in the eye of law;

The petitioners have been punished for no fault of theirs because of the fact that under Police Rules when any cash is lying in any place, a special

order is to be issued to the Guard and the double guard is to be provided with the rifles to protect it. No such direction had ever been given to the

petitioners, and no double security guard with rifle was provided for protection of the cash lying in the S.P's office. In the instant case it was

important because of the fact that the building in which S.P's office is housed was in a private house located on the general road with broken

windows. Prior to this occasion, the cash was never kept in the said office and as such, the petitioners could never envisage that the cash is lying in

the building. Surprisingly the Cashier has not been charge sheeted nor any enquiry has been conducted against him who was primarily responsible

for negligence of such duties. If the police rules have been violated by the officer, the poor petitioners cannot be made escape goats;

The impugned order amenated from malafides and ulterior considerations in as much as the respondents wanted to save their skin and reputation

and to shut the eyes of legislators, the poor petitioners have become the escape goats for no fault of theirs;

The orders impugned are violative of Police Rules, particularly rule 359 of the said Rules and Article 311 of the Constitution of India read with

Section 126 of the State Constitution; and so on.

The petition was admitted to hearing on 1781988. Respondent/State has been duly served and appeared through Mr. Syed Manzoor on

1741989, who was provided with the copies of the petition for all the respondents. It seems that no counter worth the name has been filed by the

respondents. Even Mr. U.K. Jalali, Sr. Additional Advocate. General appeared on 2731991 in the case. He was given four weeks last opportunity

for filing counter and thereafter it was directed that the case be listed for hearing, but it seems that no counter has been filed even then. The case

has been processed and has come up for hearing finally on 6101993 when one of the benches of this court directed the respondents to produce

the record at the time of hearing, but even then this direction has not been complied with. The petition came up for hearing on 921994 and

assurance was given that records will be produced which too has not been done.

From the perusal of the case file and the records available on the file and the observations made hereinabove, it is clearly found that the

averments made in the petition are unrebutted by the other side. So the legal and constitutional inference which flow from the averments made by

the petitioners are to be taken as true and conclusive proof of their averments.

Heard learned counsel for the parties and also perused the records.

The fact that the charge sheet initially given by an incompetent person namely respondent No.5 is admittedly a person who is not the appointing

authority of the delinquent officials viz. the petitioners. The charge sheet has not been prepared by the appointing authority. The enquiry officer may

be appointed by the appointing authority, but charge is to be initiated as per service rules and the norms, by the appointing authority. So the very

basis of the charge sheet on which enquiry seems to have been conducted is very shaky and not tenable in the eyes of law. So the whole

foundation stone of the case is on the rocky surface and no edifice whatsoever can stand thereon. Thus the very enquiry which has been conducted

without providing any supporting material and only the charges were framed or made basis of the enquiry as per averments made by the

petitioners, is also a fact which have been taken note of and it means that the enquiry has not been conducted in accordance with the provisions as

is envisaged under the mandates of the Constitution and the service rules and norms.

The norms of enquiry contemplated against the officials/ Government servants do envisage certain procedure. The allegations of acquisition are

to be furnished. The basis of such allegations are to be provided and the charge sheet is also to be provided to the person of the petitioners before

contemplating an enquiry and they are to be asked as to whether they want to inspect any documents or to produce anybody in defence and so on.

The due process of law is to be followed. However, no such process seems to have been done in the present case. Even if the enquiry is held

under the provisions of Police Manula and other laws applicable to the petitioners, but certain norms are required to be followed. Provisions of

Section 357 of JandK Police Rules provide for arrangement of departmental enquiry files, which reads as under.

Arrangement of departmental enquiry files.

(1) In all departmental cases in which the alleged offence is such as to merit major punishment is proved, a record shall be kept which shall contain

:(i) the charge, (ii) the evidence supporting the charge,

(iii) the defence of the accused officer, (iv) the statements of the defence witness

if any,

(v) the finding of the officer conducting the case,

(vi) the final order,

(2) In all cases against upper subordinates the record shall be in English throughout. In cases against lower subordinates the proceedings may be

recorded in Urdu. The finding and final order shall however be in English.

(3) The record shall be paged like an ordinary file and an index in Form 61 shall be attached to the first page.

(4) The record together with any orders passed in revision or appeal shall after the necessary entry has been made in the character roll be filed with

the personal file of the officer concerned. If the record concerns more than one officer an attested copy of the final order in the case shall be

attached to the personal file of each officer concerned"".

Nothing of that kind has been maintained in the present case. We are left to gossip as to what procedure has been followed by the officials of

the Police Department in dismissing the petitioners from their substantive posts. Their dismissal envisages remedies not only the constitutional, but

statutory also. The constitutional remedies are spelt out in the provisions of Article 311 of the Constitution of India read with Section 126 of the

State Constitution.

Section 126 of the State Constitution lays down:

Dismissal, reduction or removal of persons employed in civil capacities under the State:

(1) No person who is a member of a civil service of the State or holds Civil post under the State shall be dismissed or removed by an authority

subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the

charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such enquiry, to

impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on

the basis of the evidence adduced during such inquiry.

Provided that this Subsection shall not apply :

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

(b) Where the 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 reasonable practicable to hold such inquiry; or

(c) Where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonable to hold such inquiry as is referred to in subsection (2),

the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final

Section 311 of the Constitution of India lays down:

Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State: (1) No person who is a member

of a civil service of the Union or an all Indian

Service or a civil service of a State or holds a civil post under the Union or a state shall be dismissed or removed by an authority subordinate to

that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the

charges against him and given a reasonable opportunity of being heard in respect of those charges.

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty which be imposed on the basis of the

evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty

proposed;

Provided further that this clause shall not apply :

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

(b) Where the 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 reasonable practicable to hold such inquiry; or

(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold

such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in

Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final"".

Both the provisions do empower the State to resort to removal/dismissal of an

employee in the circumstances as envisaged under the relevant provisions.

To appreciate the provisions of the Constitution referred to hereinabove, I would like to make a passing reference to the proceeding provisions

of the respective provisions of the Constitution.

In the State Constitution Section 125 and in the Indian Constitution Article 310, the opening words of the relevant provisions are most

pertinent and deserve full appreciation in the correct and proper perspective of the Constitutional mandatory provisions.

Except as expressly provided by this Constitution"" is preceding the relevant constitutional provisions envisaged under Section 126 or Article 311

of the Constitution meaning thereby that whatever action is proposed to be initiated, it should be in accordance with the Constitutional provisions.

Section 126 of the State Constitution is as such express provision envisaging and laying down that:

(1) No person who is a member of a Civil Service of the State or holds a civil post under the State shall be dismissed or removed by an authority

subordinate to that by which he was appointed; and Clause (2) of the said constitution further provides 'No such person as aforesaid shall be

dismissed or removed or reduced in rank, except after an enquiry in which he has been informed of the charges against him and given a reasonable

opportunity of being heard in respect of these charges"".

The words ""and where it is proposed after such enquiry to impose on him any such penalty, until he has been given a reasonable opportunity of

making representation of the penalty proposed, but only on the basis of the evidence adduced during such enquiry"" seem to have been

substituted/deleted by adding a proviso under SubArticle (2) of Article 311 of the Constitution of India by way of Constitutional Forty Fourth

Amendment Act, but the said amendment has not till date been extended to the State of Jammu and Kashmir under the Constitutional Application

to Jammu and Kashmir Extension provisions as envisaged under Article 370 of the Constitution. So in this part of the country, the Constitutional

provision under Section 126 and Article 311 of the Constitution continue to be the same, and as such, the mandates laid down under both the

Constitutions i.e. the State and Union are the same.

Be that as it may, but the fact remains that under proviso 1 of Section 126 of the State Constitution which is same in Article 311 of the

Constitution of India reads :

Provided that this subsection shall not apply

Then comes the proviso (a) which does not cover the case in hand and under the consideration. The second clause in the said proviso is (b) which

reads:

(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be reduced in

writing, it is not reasonably practicable to hold such inquiry"".

So by examining the foregoing provisions of the Constitution of the State or the India, I do find that action to be taken against an employee of

the State shall not be taken 'except as expressly provided by the Constitution and the Constitution envisages and provide safeguards against

illegal/unconstitutional termination/removal. But this does not leave the functionaries of the State/ Governor with no option to dispense with the

services of an employee for his misconduct or otherwise or for the reasons and circumstances as catalogued in clause (a), (b) and (c). The

requirement of enquiry can be dispensed with.

Firstly on the count that the holding of inquiry is not ""reasonably practicable"", for the reason to be mentioned by the disciplinary authority in

writing in this behalf. But it must be borne in mind and clearly the dispensation of holding of inquiry on the satisfaction of the disciplinary authority,

for the reasons recorded is to be put to judicial scrutiny, if and when challenged by the aggrieved person. Despite the\fact that the constitution

envisages that the ascertainment of the fact that the holding of an inquiry is not reasonably practicable, the decision of the authority empowered to

dismiss or remove such person shall be final, but such finality can certainly be tested in a court of law and interfered with if the action is found

malafide or motivated by extraneous considerations is merely a [SIC] ruse to dispense with the inquiry. As rightly argued by learned counsel Mr.

Wani and while relying on AIR 1991 SC 385 and referring to the observations of their lordships of the Apex Court which reads.

The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority. When the satisfaction

of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on

certain objective facts and is not the outcome of the whim or caprice of the concerned officer

It is admittedly a fact that the persons of the petitioners who were punished for alleged unauthorised absence and a lenient view was taken by

the respondent No.4 vide order No: 580 of 1987 dated 1971987 and the petitioners reconciled with the position. However, when the

proceedings were reviewed by respondent No. 3 on the count that the punishment of the delinquent officials was not commensurate with their

misconduct and this misconduct being subject matter of discussion in the Legislative Assembly, speaks that the order of review is smaked with

extraneous considerations and not based on the legal procedure. The order, as such, is neither in accordance with the mandates of law nor the

constitution. Extraneous matters namely discussions in the Assembly and other things have influenced the mind of the reviewing authority and he has

not acted in a manner which is said to be judicious, but has acted arbitrarily in reviewing the order and in passing the impugned order No.368 of

1987 dated 2071987 of show cause and initiated the review proceedings, but at this time also, no facts and' material and any records have been

made available to the petitioners as to apprise them of the additional circumstances or the allegations which necessitated the reviewing of the order

of punishment passed by respondent No.5 and approved by respondent No.4. Though a show cause notice seems to have been issued, but there

is nothing on record to suggest other proceedings which were envisaged before passing the order No: 404 of 1987 dated 1181987, whereunder

the petitioners have been removed from service from the date of the order passed by the reviewing authority instead of order passed by

respondent No. 4 vide his order No: 530 of 1987. There is nothing on record to show that the respondent NO.3 while exercising the powers

under section 363 (2) of the Jammu and Kashmir Police Rules has made any further investigation or directed to make such investigation before

passing the impugned orders. Even the Police Rules not to speak of constitutional mandates stand violated by passing the impugned orders.

For the foregoing reasons, the petition is allowed and by a writ of certiorari, the order No: 530 of 1987 dated 1951987, order No:404 of

1987 dated 2181987 and order No:505 of 1988 dated 2061988 passed by respondents 4,3, and 2 respectively are quashed and by a writ of

mandamus, respondents are directed to treat the petitioners as employees of the Police Department with all consequent monetary benefits and to

release their arrears from the date of their removal from service. The petitioners are also entitled to the costs of Rs. 1,000/. The petition is disposed

of accordingly and be consigned to records. Mr. M.A. Wani Mr. U.K. Jalali, AAG.