Nazir Ahmed Bhat @APPELLANT@Hash State Of Jammu & Kashmir And Ors

Case of the petitioner is that he was appointed in respondent-department and later was promoted as Head Constable on 06.10.2005. He proceeded on earned leave for a period of 30 days and was required to report back for his duties on 06.11.2005 which he could not due to his severe ailment. In this regard, the medical certificate has been issued by the Doctor, which is annexed with the writ petition as Annexure - A, wherein it is stated that the petitioner was suffering from bilateral sciatica and was under treatment with effect from 22.11.2005 to 22.12.2007 for his acute ailment and was fit to discharge his duty with effect from 23.12.2007.

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It is further submitted that when the petitioner approached the respondents to resume his official duties, he was told that he was removed from his services and in this behalf impugned Order bearing No. 115 of 2006 dated 27. 03.2006 was issued by the respondent No. 4 without following the mandate of law provided under J&K Police Rules and CSR, where-under the petitioner was removed from services with effect form 06.11.2005 i.e the date supposed to resume duties after availing leave.

It is also submitted that the petitioner was removed from service without conducting any departmental enquiry and without following the mandate of law under Rule 364 of the Police Manual Rules. Neither the charge sheet was framed nor the petitioner was given right of hearing in terms of the procedure of departmental enquiry and Respondent No. 4 while dealing with the said removal order has not bothered to take recourse of any law. The copy of the order dated 27. 03.2006 impugned herein has been annexed with the petition.

Respondents have filed their reply stating therein that the petitioner proceeded on 30 days earned leave and was due to report back for duty on 07.11.2005 but failed. He was informed/directed vide signal dated 08.02.2006 to resume his duties immediately otherwise action under rules will be initiated but instead of resuming his duties he preferred to remain absent unauthorizedly and consequently was suspended vide order No. 128/06 dated 21.02.2006. Further, a letter was received from SP Kupwara vide his office No. CS/1/06/824 dated 07.03.2006 intimating thereunder that the petitioner has crossed the LOC and is presently in POK at the time of issuance of the letter under reference. It is further submitted that the petitioner has committed serious misconduct as he has remained unauthorizedly absent from his duties and did not come forward to face enquiry making it impossible for the authorities to initiate regular enquiry against the petitioner. Action taken in terms of |Article 126 of CSR and Rule 359 of Police Rules was warranted under such circumstance, according to them. Petitioner being police personnel, ought to have requested for treatment in the Police Hospital or in a Government Hospital, which he had not and had managed a certificate which has no legal sanctity at all.

Learned counsel for the petitioner while making reference of grounds projected in the petition contended that Rule 359 J&K Police Manual read with Article 126 of the J&K CSR did not permit such an order to be passed. To substantiate his arguments, he placed reliance on the judgments of this court reported in SLJ 1994 462 HC, Khair Din vs. State of J&K and SLJ 1994 372 HC, State of J&K and Ors. vs. S. Qamar Ali.

Per contra, Sr. AAG submitted that the order has been passed properly and the petitioner was informed in terms of the signal to resume his duty but he declined to appear before the respondents.

Considered the rival arguments and perused the material on record.

It is evident from the records that respondent no. 4 has discharged the petitioner from service for remaining unauthorizedly absent from duties. For this, the respondent No.4 has taken recourse to Section 126 of Constitution of J&K.

In their response, respondents have admitted that the petitioner joined Police Service. The period of absence is also delineated in the said response. Earned leave is stated to have been taken by the petitioner from 06.10.2005 for 30 days and he having not reported back has been informed through concerned Police Station but same did not yield any response. It is not the case of respondent that on non-appearance of the petitioner, they initiated any enquiry or prepared any charge sheet, copy whereof was transmitted to the petitioner. It is also not being stated that the enquiry so contemplated was dispensed with, in exercise of any power conferred in this regard. The legal character of the petitioner of being a Member of Civil Service and as such, his entitlement to protection under constitution too is not denied. The action taken in terms of impugned order is admittedly a punishment so the norms fixed for imposition of same under Constitution or Rules had to be given proper weight.

Section 126 of the Constitution of J&K provides that no person who is a member of Civil Service of the State or holds a civil post under the State shall be dismissed or removed except after an enquiry in which he has been charged and given a reasonable opportunity of being heard in respect of those charges. It would be proper herein to quote Sub Section (2) of the said Section 126:

"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 inquiry, 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 evidence adduced during such inquiry:

Provided that his sub section 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 reasonably 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.

The mechanism delineated under Rule 33 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 for removal or dismissal of Public Servant or a Member of Civil Service may also need a mention here to appreciate the merit of the petition. For reference, same is reproduced as under:

"Issue of an order of dismissal, removal or reduction in rank. without prejudice to provisions of the Public Servants Inquiries Act, 1977, no order (other than an order based on facts which had led to his conviction in a criminal court or by a court-material) of dismissal, removal, or reduction in rank (which includes reduction to a lower post and /or lower time-scale, and /or to a lower stage in time scale) but excludes the reversion to a lower post of a person, who is holding a higher post temporarily shall be passed on a person who is a member of a Civil Service, or holds a civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged, together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person, if he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be heard as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish; provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings are the grounds thereof."

Article 128 of J&K Civil Service Regulations lays down absence without leave or after the end of leave involves loss of appointment but having regard to the legal position noted above, same is to be read subject to safeguards as put forth under Section 126 of the Constitution of J&K and Rule 33 of J&K Civil Services (Classification, Control and Appeal) Rules 1956. Reliance in this regard can be place on various judgments of this Court and Apex Court.

In the judgment reported as AIR 1966 SC 492, Jai Shankar vs. State of Rajasthan, the Hon'ble Apex Court has held:

"The removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the service Regulation that any individual who absents himself without, permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority........

A discharge from service of an incumbent by way of punishment amounts to removal from service, and the constitutional protection of Article 311 cannot be taken away from him by contending that under the service Regulations the incumbent himself gives up the employment and all that the Government does is not to allow the person to be reinstated....."

A Division Bench of this Court in case titled Mushtaq Ahmed Khan vs. Stated of J&K & Others reported in 2004 (11) SLJ 445 has held as under:

"As is often said, rules of natural justice are not strait-jacket formula to be applied uniformly in all cases. Its application varies from case to case depending upon the facts and circumstances of the particular case. In other words, what shall be the extent of requirement of rules of natural justice would depend on the facts of a particular case. While in one case mere opportunity of hearing may satisfy the requirement of the rules, in another case, a full-fledged enquiry may have to be held depending on the rules, if any. It would also depend, among other things, on the response of the delinquent the nature of defence, if any taken by him and nature of action proposed. No hard and fast rule can be laid down. What is of essence is that he should be given a reasonable opportunity to offer defence. The requirements of rules of natural justice are; firstly, that the employee should know the nature of the charge or accusation against him. Secondly, that opportunity should be given to him to state his case, and thirdly, that the employer should act in good faith, that is to say, the action of the employer should be fair and reasonable. Proceeding on the assumption that on account of absence from duty beyond the prescribed, he would be deemed to have abandoned his job and, accordingly, treated as out of employment would amount to acting on a presumption that he has no defence to offer. There may be genuine cases in which the person remained away from duty for good reasons, such as, law and order situation, illness or incarceration. Unless an opportunity is given to him to state his case, he cannot explain his absence ....."

In case Mohammad Ishaq Bhat vs. State of J&K and Ors. reported in 2000 KLJ 274, the Division Bench of this Court has observed:

"(i) Mere absence from duty is not perse misconduct.

(ii) Where an employee proceeds on leave and does not resume duties even then some enquiry is required to be held. Service tenure cannot be brought to an end without compliance of principles of natural justice.

(iii) Even in the presence of some service regulation visualizing concept of automatic termination in case of absence an enquiry is required to be held,

(iv) The order of termination has to be preceded by hearing and the order so passed has to be reasoned one.

(v) When order of reinstatement is passed then preponderance of view is that back wages are not to be allowed.

(vi) The Competent Authority should be left free to decide as to whether it wishes to leave the matter as it is or wants to hold further enquiry where order of termination is set aside."

The Division Bench of this Court in Khair Din's case after discussing the scope of Rule 334 and 339 of Police Rules, observed in Para 10, 14 and 18 as:

In the case on hand it is apparent that the appellant has been removed from service under Order No. 1024 of 1988 that the appellant after proceeding for thirty days leave absented from service and the authorities tried to secure his presence with regard to which matter was referred to SHO Police Station Udhampur and the copy was addressed on his home address as well. He was subsequently served with a notice vice No. OASI/14342 dated 27.09.1988, failing which it was desired that ex parte decision would be taken against the appellant. After that a Final Notice under No. 15607-9 dated 15.10.1998 was served upon the appellant directing him to resume his duty in the office of the Vice Principal Police Training College, Udhampur failing which he would lose his job. As the appellant did not join even upto a period of two months thereafter, it was presumed that he was not interested to serve the Department and was accordingly removed from service.

It appears that no enquiry as envisaged by the aforesaid Police Rules, has been conducted by the authorities concerned and without a formal enquiry having been conducted against the appellant, he has been removed from service. The representation of the appellant was also rejected, although the respondents could re-open the matter and could also allow the appellant to participate in the enquiry, which could be conducted against him at that stage as well.

We have already held in the case titled State vs. S. Qamar Ali (Supra) that the grounds on which the respondents propose to take action against the appellant was not reduced in the form of a definite charge or charges, which were to be communicated to the appellant together with a statement of allegations on which each charge was based or any other circumstance, which was proposed to take into consideration for passing the removal order. If it was found by the respondents that the appellant was absent from duty they could have formulated a charge or the charges against the appellant, along with the statement of allegations, and if those could not be served upon him for want of his address, they could publish it in a local paper. Thereafter, if the appellant was not available, the respondents could then pass an order of removal against him, as envisaged in the Police Rules."

Quite apposite, it may be to quote Rule 334, 339 and 359 of Police Rules.

(1) No police officer shall be departmentally punished otherwise than a prescribed in these rules.

(2) Authorized departmental punishments: - The following punishments may be inflicted department tally on police-officers of and below the rank of Inspector: -

(a) Dismissal (bar to re-employment in Government service).

(b) Removal (not a bar to re-employment in Government service in another department)

(c) Compulsory retirement before attainment of the age of superannuation.

(d) Withholding if increments

(e) Confinement to quarters for a period not exceeding 15 days (for constables only)

(f) Fine not exceeding one month's pay.

(g) Reduction to a lower rank, grade or time scale or to a lower stage in the same time scale.

(h) Punishment drill, extra guard or other duty not exceeding 15 days (for constables only)

(i) Censure

(j) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of order.

(k) for feature of increment.

(3) For the purpose of these rules the term"Major Punishment" shall be held to mean any authorized punishment of dismissal, removal, compulsory retirement, withholding of increments, fine, reduction, recovery from pay and forfeiture of increment. The term "Minor Punishment" shall mean all other authorized punishments.

Explanation - Stopping a police officer of and below the Rank of Inspector at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increment or promotion within the meaning of this rule.

339 Removal

Removal should be the penalty in all cases where it is not thought necessary to bar future re-employment under Government in another department for which the person may be suited, and an order of removal should not be accompanied by any subsidiary orders which would operate as such a bar or otherwise prejudice the person in question:

Explanation: The discharge -

(a) Of a person appointed on probation, before the termination of his period of probation;

(b) Of a person appointed otherwise than under contract to hold a temporary appointment on the expiration of the period of the appointment;

(c) Of a person engaged under contract in accordance with the terms of his contract; Does not amount to dismissal or removal within the meaning of these rules.

359 Procedure in department enquiries.

(1) The following procedure shall be followed in departmental enquiries:-

(a) The enquiry shall, whenever, possible be conducted by a gazette officer empowered to inflict a major punishment upon the accused office. Any other gazette officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (vide order No. 636-C dated 27.06.1945) may be deputed to hold an enquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable the enquiry may be conducted by an Inspector. The final order, however, may b passed only by an officer empowered to inflict a major punishment upon the accused police officer.

(2) The officer conducting the inquiry shall summon the accused police officer before him and shall record and read out to him a statement summarising the alleged misconduct in such a way as to give notice of the circumstances in regard to which evidence is to be recorded.

(3) If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forthwith to record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case. ...............

(4) If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusation as is available and necessary to support the charge. Whenever possible witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to cross examine them. The officer conducting the enquiry is empowered however to bring on to the record the statement of any witness whose presence cannot in the opinion of such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provided that it has been recorded and attested by a police officer not below the rank of Inspector or by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided.

(5) When the evidence in support of the allegations has been recorded, the enquiring officer shall :

(a) if he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him or recommend his discharge to the Superintendent or other officer who may be so empowered, or

(b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.

(6) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specified charge framed in which case he shall record the reason for his refusal. He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them the answers to which shall be recorded, provided that the enquiring officer may cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured without undue delay or inconvenience and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police as the enquiring officer deems fit. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.

(7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier stage, following the framing of a charge the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one week for its preparation but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him arising out of the charge, the recorded evidence or his own written statement.

(8) The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so, or to forward the case with his finding and recommendations to an officer having the necessary powers."

It is clear thus beyond that the action taken by respondents in terms of impugned order is dehors to the rules. Major Punishment in the form of Removal has followed without taking recourse to the provision of law, as a sequel of which same is to be treated non-est.

For this and what has been stated above, the impugned order dated 27.03.2006 is held to be bereft of legal force and, as such, is required to be quashed. Same is done and the order quashed. The respondents would not be barred, however, to conduct enquiry in which petitioner shall be heard and the decision therein be taken within three months from the date copy of this order is made available to the respondents.

Petition is accordingly disposed of.