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Judgment
Hasnain Massodi, Judge
The petitioner, appointed as constable in the J&K Police Department vide order No. 860 of 1997 dated 13.11.1997, has been removed from
service w.e.f 30.5.2007 vide order No. 173 of 2007 dated 25.6.2007 read with order No. 174 of 2007 dated 28.6.2007. The aforestated orders
were questioned in appeal before Dy. Inspector General of Police, Police Range Anantnag. The Appellate Authority dismissed the appeal and
upheld the removal order passed by Superintendent of Police Awantipora.
The order Nos. 173 of 2007 and 174 of 2007 dated 25.6.2007 and 28.6.2007 as also order of the appellate authority dated 26.2.2008 (order
79 of 2008) are questioned in this writ petition on the grounds that the Inquiry Officer did not comply with the mandate of Rule 359, J&K Police
Rules, 1960 (for short ""Police Rules"") and section 126 Constitution of J&K while conducting inquiry against the petitioner and that the orders
impugned in the petition, resultantly were liable to be set aside.
The respondents opposed the writ petition on the ground that the petitioner raised disputed question of facts that cannot be dealt with in exercise
of writ jurisdiction. It is pleaded that the petitioner has suppressed material facts and is not entitled to an equitable relief. The respondents deny that
any of the petitioner's Constitutional or Statutory rights has been infringed while passing impugned orders. The respondents emphatically deny that
the procedure laid down under Rule 359 of the Police Rules, have not been adhered to while conducting inquiry in the matter. It is pleaded that the
petitioner, by unauthorisedly absenting himself from duty, has lost right to continue in service.
I have gone through the pleadings and the record available on the file. I have also heard Ld. Counsel for the parties.
From perusal of record it transpires that the petitioner while posted in Police Division Kulgam, allegedly remained unauthorisedly absent w.e.f
1.7.2005 and was placed under suspension vide order No. 263 of 2005 dated 10.10.2005. A departmental enquiry was ordered and conducted
by Dy. S.P Operations, Kulgam. The petitioner was repeatedly asked to resume his duty and a notice was also got published in a local daily. The
petitioner appeared before the Dy. Inspector General of Police, Police Range Anantnag, who vide order No. 45 of 2006 dated 6.3.2006
reinstated the petitioner, pending enquiry to his unauthorised absence and transferred the petitioner from Police Division Kulgam to Police Division
Awantipora. The enquiry against the petitioner was entrusted to Sub Divisional Police Officer, Awantipora. The Inquiry officer got served the
Summary of Allegation on the petitioner. The petitioner pleaded not guilty whereafter charge sheet was issued to the petitioner and the petitioner
asked to file his reply to the charge sheet. The reply was accordingly filed on 8.7.2005. The petitioner sought to explain the reasons that compelled
the him to stay away from his duty after he, with the permission of his immediate officer, went to his residence to deliver his monthly salary to his
dependents. However, the explanation tendered, did not find favour with the Inquiry Officer and the Inquiry Officer recommended the period of
absence to be treated as dies non and annual increment to be stopped for two years and the petitioner to be asked to remain vigilant in future. The
Disciplinary Authority on going through the report of the Inquiry Officer and the previous service record of the petitioner, did not agree with the
recommendations made by the Inquiry Officer and instead proceeded to remove the petitioner from the service vide order impugned in the petition.
After a brief survey of background facts, focus is now to shift to the petitioner's case and effort to find out whether the Inquiry Officer,
Disciplinary Authority and thereafter Appellate authority have adhered to the procedure laid down under J&K Police Rules 1960, while removing
the petitioner from service.
Chapter X J&K Police Rules 1960 deals with the punishment that may be imposed on a police officer subject to Police Act and the Rules made
thereunder, if found to have been guilty of misconduct. Removal from service in terms of Rule 334(2) is one of the punishment that may be
imposed on a Police Officer. However, the punishment is to be imposed only after an enquiry is conducted into the alleged misconduct and the
officer given an opportunity to project his case, refute the allegations levelled and convince the Inquiry Officer and the Disciplinary Authority that
the allegation levelled, are devoid of any substance. Rule 359 of the Police Rules lays down the procedure to be followed by in departmental
enquiries. It would be advantageous to summaries the mode and manner in which the enquiry is to be conducted step by step without going to the
text of Rule 359.
(7) Whenever a definite complaint of misconduct is received against a 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.
(8) 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.
(9) 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 witnesses unless he is of the opinion that the presence of
the witness can not 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.
(10) When the evidence is recorded and it is found not to substantiate the accusation or recommend his discharge to the Superintendent of Police
or other officer so empowered. However, if the evidence collected substantiate the acquisition 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.
(11) The Inquiry officer after the charge/charges are framed in writing explain it to the delinquent officer, ask the delinquent police officer to furnish
list of the defence witnesses whom he wishes to call alongwith summary of the facts as to which such witnesses are testified. The Inquiry 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 to 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. The Inquiry
Officer has 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.
(12) The Inquiry officer after the delinquent police officer closes his case and answers questions, if any, put by the Inquiry officer, shall 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.
(13) The punishment of dismissal, removal or reduction in rank is not to be imposed unless a delinquent police officer has been given a reasonable
opportunity of showing cause orally and also in writing against the action proposed to be taken against him unless he is dismissed, removed or
reduced in rank of his convicting of criminal charge or the authority is of the opinion that it is 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.
(14) The authority competent to order dismissal, removal or reduce in rank, the delinquent police officer 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.
In the case in hand, perusal of record reveals that the procedure envisaged under Rule 359 of Police Rules was ignored with impunity and
observed in breach. The record does not indicate that the Dy. S.P Operations Kulgam and thereafter Sub Divisional Police Officer, Awantipora
recorded the evidence in presence of the petitioner or afforded the petitioner an opportunity to cross examine the witness. True that the Inquiry
officer is not under statutory obligations invariably to record statements of witnesses in presence of the delinquent police officer or allow such
officer to cross examine each and every witness, yet in case the Inquiry Officer decided to depart from usual procedure least that is expected to
him, is to record reasons in support of such decision. The record also does not indicate that the petitioner after the charges were framed by Sub
Divisional Police Officer Awantipora vide No. SDPO/06/Enq/766 dated 1.7.2006 asked the petitioner to furnish list of defence witnesses whom
the petitioner proposes to call or did as a matter of fact record statement of any witnesses. The petitioner was not also informed that he was free to
file documentary evidence, if any, in his defence or that he was competent to make a statement in reply to the charge immediately after the charges
were framed or after the defence evidence was concluded. The record also does not reveal that the disciplinary authority while serving final show
cause notice vide No. Estt/13194 dated 4.10.2006 furnished the petitioner a copy of the enquiry report or copies of relevant documents, so as to
enable the petitioner to convince the Disciplinary Authority that the punishment proposed, was unwarranted, disproportionate and uncalled for in
the facts and circumstances of the case. The duty to provide copy of the enquiry report and other relevant material to the petitioner was more
onerous in the present case in as much as the Inquiry Officer did not recommend petitioner's removal from service and the Disciplinary Authority
ignoring the recommendations made by the Inquiry Officer, decided to impose major punishment on the petitioner. The petitioner in case he was
provided copy of the enquiry report and copies of relevant material, would have been in a better position to persuade the Disciplinary Authority to
agree that the Inquiry Officer was in better position to appreciate the material collected during the enquiry and his recommendations deserved to be
accepted.
For the reasons discussed, neither the enquiry has been conducted in accordance with Rule 359 J&K Police Rules nor do the orders impugned
in the writ petition- outcome of the enquiry conducted, stand legal scrutiny.
So viewed, the petition is allowed and the order No. 173 of 2007 dated 25.6.2007 and order No. 174 of 2007 dated 28.6.2007 quashed.
Resultantly the respondents shall permit the petitioner to resume his duty. Needless to mention the respondents would be at liberty to initiate fresh
enquiry in the alleged misconduct in accordance with the Rules. The period w.e.f the date of impugned removal order till the petitioner is allowed to
resume his duty, shall be dealt with having regard to the outcome of enquiry, if any, conducted and subject to rules. Disposed of.