Nishat Ahmad vs State

I. By medium of this writ petition, the order No. 768/89, dated 17589 annexure 'A' thereto, dismissing the petitioner from his service is challenged

on various grounds. Allegedly, he was so dismissed without any proper inquiry, without any chargesheet and without giving him any opportunity of

leading his defence as provided under law.

II. The petitioner was a constable in the police department and he along with some other police personnel were detailed on guard duty, in the

S.M.H.S Hospital Srinagar, where one Ahsan Dar, an accused arrested in some case, was admitted for treatment. Allegedly, due to their

negligence, he escaped from their custody. The police personnel on his guard were all placed under suspension and an inquiry instituted in the

mater, resulting in their dismissal. The petitioner was not aware of the order of his dismissal and he filed a writ petition in the High court, whereupon

the respondents produced the order impugned, and he came to know about it for the first time. The court then gave him the liberty to file the

present petition challenging the said order.

III. It is alleged in the petition that the petitioner was not on duty at the time of occurrence, as mentioned even in the 'Roznamcha' of 4th April

1989. The charge sheet was not given to him by the competent authority. The mandate of Police rules for conducting the inquiry has not been

allegedly followed. It is further averred in the petition that the petitioner was arrested soon after the escape of the accused and was kept in an

interrogation centre, where he was tortured. During the course of his custody in the interrogation centre, some inquiry was held against him which

allegedly was done under coercion and therefore not fair and lawful. It is stated that the petitioner was not allowed to consult any lawyer and nor

the prosecution witnesses allowed to be crossexamined. He was not allowed to produce any defence witnesses. The petitioner was .allegedly

forced to give replies as desired by the enquiry officer. The enquiry report and the inquiry proceedings or the evidence recorded were not supplied

to him, thereby depriving him of his right to offer an explanation against the proposed punishment. Allegedly the petitioners case was considered

along with other four constables jointly, which caused great prejudice to him.

IV. The counter was filed to the petition beyond the stipulated period, as fixed by the Court. However, it has been taken on record with the

consent of the learned counsel for the petitioner. The said counter has not however been filed by the officer who passed the order impugned but by

the present SSP the affidavit filed by him in support of the counter states that the factual averments made in the counter are based on his

knowledge. It is not stated that the counter is based on any record.

V. In the counter it is stated that the inquiry was held in presence of the petitioner and he was given an opportunity of being heard. It is also stated

that that chargesheet was framed against the petitioner and served upon him. The petitioner allegedly filed his reply to the show cause notice also. It

is impliedly admitted in the counter that the petitioner was not on duty at the time of occurrence as reflected in the Roznamcha. However allegedly

the leave was not granted to him by the competent officer. It is denied that the petitioner was torture. Nothing however has been stated in the

counter about his detention in interrogation center during the course of inquiry. It is stated that he was allowed to crossexamine the witnesses.

Nothing has been stated in the counter about the allegation in the petition that the inquiry report or the record of proceedings and the evidence

recorded, was not furnished to him, so as to file his reply to the show cause notice.

VI. I have heard the learned counsel for the parties at great length. I have gone through the file thoroughly.

It may be stated at the very outset that during the course of arguments the court felt it necessary to examine the record of the inquiry proceedings.

Some specific allegations were made in the petition that he was not given sufficient opportunity to defend himself. It was also alleged that the

chargesheet was not framed against him at all. It was also alleged that during the course of inquiry he was kept in detection in an interrogation

centre. It was also alleged that he was not allowed to crossexamine the witnesses. It was also alleged that he was not allowed to lead the defence

evidence. Many more allegations of the same nature are made in the petition and therefore the court wanted to examine the inquiry record to satisfy

itself as to whether the inquiry has been at all conducted impartially and fairly, and whether or not a reasonable opportunity has been given to the

petitioner to defend himself. The Government Advocate was given numerous opportunities to produce the record and despite taking about six

months time, he failed to produce the same. For the failure of the respondents to produce the record, the court would be legally justified to draw all

the required presumptions, against them. Not only that, it also renders the counter filed by the respondents as redundant and unreliable. It is not

found based on any record. Admittedly the record was not available with the respondents when the counter was prepared. Even in the counter

affidavit it is no where stated that it is based on his knowledge, How he got its knowledge is not stated any where. Admittedly the deponent is not

the officer who passed the impugned order of dismissal. Then how he got the knowledge of the factual averments as made in the counter is not

known. The court has therefore no alternative but to presume that the counter is without any substance. It is based neither on any record and nor

on the knowledge. It has been prepared on the bais of the details as given in the order impugned in the petition. No other record is available with

the respondents from which the counter could be prepared. In this view of the matter the court would presume that the allegations made in the

petition on an affidavit have remained unrebutted and un"" controverted. In other words the said allegations are to be taken as correct. After all in

the writ petitions, the court has to determine the controversial points on the basis of valid affidavits filed by the parties on the record produced by

them. Admittedly, under law, they were the custodians of the record, if at all prepared and maintained by them.

They were obliged to produce the same when the court wanted to examine it.

VII. For determining the controversy involved in this case as to whether the inquiry was held in accordance with law or not the court has to take

recourse to and se the order impugned itself, as this is the only record available before it, besides of course, the specific allegations of the petitioner

supported by an affidavit, and the invalid counter affidavit not based on any record and filed by an incompetent officer. It is to be kept in mind at

the same time that after specific allegations are made, assailing an order, the court cannot take that order as a gospel truth unless such allegations

are legally and properly repelled.

VIII. In this background of the case, now I would critically examine and appreciate the points involved, so as to arrive at a just conclusion. In Rule

334 of the J&K Police Manual 1960, authorised departmental punishments are provided. In Rule 335 the authorities competent to impose

punishments are given. The Superintendent of Police is competent to dismiss constable.

In Rule 337 it is provided that the punishment of dismissal shall be awarded only for the act of misconduct e.g. fraud and dishonesty, corruption

and all offences involving moral disgrace as the (SIC) cumulative effect of continued misconduct proving (SIC) and complete unfitness for police

service.

In subrule (2) of Rule 338 it is provided that the procedure prescribed for the trail of summons cases shall apply mutatis mutandis to the

departmental inquiries.

In Rule 359 the procedure has been provided for the departmental enquiries. In subrule (1) (a) it is provided that the enquiry shall, whenever

possible be conducted by a gazetted officer empowered to inflict a major punishment upon the accused officer.

In subrule (2) the plea of guilt is to be recorded of the accused as is done in a summons case. In case of pleading guilty, he is to be convicted

interms of subrule (3) if he pleads not guilty, then in subrule (4) evidence of the prosecution is to be recorded, in the same manner as in a summons

case.

In subrule (5a) the accused is to be discharged if the allegations are not substantiated. In subrule (5a) a formal charge

sheet is to be framed in writing, to be explained to the accused officer, calling upon him to answer them. In subrule (6) the accused officer is

required to state the defence witnesses and their statements to be recorded.

In subrule (7) it is provided that at the conclusion of the defence evidence, the accused shall be required to state his own answer to the charge. He

may also be permitted to file a written statement. In subrule (8) the procedure is given for passing of the order of punishment or acquittal.

IX. Now it is to be seen as to whether the procedure as provided under law has been followed in the present case is not.

1) As already stated, for failure of the respondents to produce the record the court has been deprived of an opportunity to examine and appreciate

the same. However, from the perusal of order impugned it appears that the procedure as provided for trail of summons cases has not been

followed. Whether the statement of allegations were read out to him or not as provided in 359 (2) is not clear from the order impugned. It only

says he pleaded not guilty.

Even in section 242 of the criminal procedure code it is provided that substance of accusation is to be stated to accused. When the charge is stated

to the accused, his answer recorded to it is equivalent to the plea taken to a formal charge omission to apprise the accused of the substance of the

charge renders the trail illegal,

In view of the specific allegations made in the petition and for the failure of respondents to rebut them in a legal manner, by a vailid affidavit or

production of record, the court has no alternative but to presume that the substance of the allegations was not read over and explained to the

petitioner, which prejudice him to defend his case.

2) It is specifically alleged that no chargesheet was framed against the petitioner by the competent authority. In the impugned order it is stated that

chargesheet was framed and replies of the accused obtained. As the respondents have failed to produce the record or to file the affidavit by the

Enquiry officer, the court has to presume that the chargesheet was' not framed by any competent officer.

In this regard rule 359 (a) envisages the framing of the charge sheet by the officer empowered to inflict a major punishment on the accused. This is

also the mandate of section 126 of the constitution of Jammu & Kashmir.

In the present case admittedly the inquiry was conducted by some Dy. S.P. whether he had framed any chargesheet or not is not established. Even

if he had framed it, that too is not legal. The Dy. S.P. is not competent to impose the major punishment on a constable and nor is he his appointing

authority, and, therefore he could not frame the chargesheet.

No doubt rule 359 (a) provides that ""whenever possible"" the inquiry be conducted by the officer competent to inflict a major punishment. The

words ""whenever possible"" used therein when read with the mandate of section 126 of the constitution, it would mean that the chargesheet is

necessarily to be framed by the appointing authority or any authority higher in rank, to it, and none else. The inquiry however can be conducted

either by that authority itself or by such officer as appointed by that authority in that behalf. As a matter of fact the officer empowered to impose

punishment has to conduct inquiry himself unless when not available.

In the present case the charge sheet, if at all framed has been framed by the Dy. S.P. himself and the inquiry too conducted by him. No reasons

have been stated in the order impugned as to why the chargesheet was not framed by the competent authority or inquiry .conducted by him.

In this view of the matter the whole inquiry is vitiated on this ground.

From the perusal of order impugned it appears that the inquiry officer held the petitioner guilty only for dereliction of duty and negligence, and

had, therefore recommended his discharge from service. The SSP did not agree with the enquiry officer so far as the quantum of punishment was

concerned. According to him the allegations were of serious nature and, therefore, he issued a notice for enhancement of punishment to dismissal.

Now the question is as to whether the SSP took into consideration only the seriousness of allegations or the evidence also. Mere seriousness of

allegations is not sufficient to enhance punishment unless there is sufficient evidence also to do so. On his own and without any evidence the SSP

has accused the petitioner of his connivance also in the escape of the subject. He has not stated that there was any evidence on record to implicate

the petitioner in this charge also. Moreover this is a separate and distinct charge. The petitioner has not been charged on this count. He was

charged for dereliction of duty. In that view of the matter convicting the petitioner on this charge without charging him on this count, is illegal under

law. Not only that the SSP has purportedly issued notice to the petitioner for enhancement only, He has not issued any show cause notice on the

proposed punishment. As the record is not available for the default of the respondents the court could not examine the show cause notice as to

whether it was a joint notice for enhancement and proposed punishment. In any case it has definitely caused serious prejudice to the petitioner and

is also violative of rule 359 (7), and, therefore on this ground also the order impugned is vitiated.

From the perusal of order impugned it also appeared that the enquiry officer issued some questionaire to the Medical Superintendent Jail also to

Dy. Medical Superintendent S.M.H.S Hospital Srinagar . He has considered their replies also in arriving at his conclusion regarding the guilt of the

petitioner. Admittedly the said replies have influenced his findings. He has not put that evidence to the petitioneraccused and without giving him any

opportunity or rebutting the same or production any defence evidence against it, he has relied upon that evidence. He could not do so under law

and therefore has prejudiced the case of the petitioner. On this ground also the order impugned is vitiated.

It is specifically alleged in the petition that the petitioner was not on duty when the occurrence took place. He had taken leave from the Head

constable, incharge of the guard at that time. In the counter impliedly it is admitted that the Head constable had allowed the petitioner to go. It is

contended however, that the H. Constable was not competent of grant leave to him. Whether the H. Constable was competent or not, the question

is, the petitioner was not on duty at the time when the alleged occurrence took place. He could not be, therefore held guilty for the said

occurrence. At the most he could have been proceeded against for proceeding on leave without proper permission. This aspect of the case of the

petitioner has not been considered by the SSP in its right perspective and has arbitrarily and unfairly awarded the extreme punishment of dismissal

on him.

In rule 336, it is provided that the punishment should fit the default and be different without being haresh.

In rule 337, the punishment of dismissal can be awarded for such acts of misconduct like fraud and dishonesty corruption and offences involving

moral disgrace etc.

The SSP has given a complete go by to these provisions of policeManual and awarded the harshest punishment on the petitioner, more so, losing

sight of the fact that at the time of occurrence he was not on duty. The said punishment is, therefore, violative of rules 336 and 337 besides being

unreasonable, unfair and arbitrary, and, therefore bad in law.

It is specifically alleged in the petition that the petitioneraccused was not given any opportunity of leading his defence, which prejudiced his case,

resulting in his conviction.

From the perusal of the order impugned it is manifest that the petitioner was not given any opportunity of leading his defence. Not a word is

mentioned therein about the right of the petitioner to lead his defence. It is clearly laid down in rule 359 that the accused has a right to defend

himself. Not only that, it is his constitutional right to defend himself as provided under Art 311 of the constitution of India and section 126 of the

constitution of J&K. He is to be given a reasonable opportunity of being heard for defending himself.

Reasonable opportunity of being heard presupposes giving of reasonable opportunity to the accused to lead his defence evidence in rebuttal to the

prosecution evidence.

It appears that the respondents have made the inquiry a one sided affair, as if it was to bed or exparte. They have not thought it fit to allow the

petitioner accused to lead his defence. The inquiry as also the punishment awarded on the petitioner is, therefore unconstitutional, illegal and

arbitrary and, therefore not sustainable under law.

It is specifically alleged in the petition that the petitioner was not given any copy of the findings of the enquiring officer or the copy of the order of

punishment SIC and not even the copy of the inquiry proceedings, which has prevented him from giving any explanation or reply to the show cause

notice with regard to enhancement of punishment or proposed punishment.

The question is as to how could the petitioner file a written statement in absence of any copies of the inquiry proceedings and the statements of

witnesses. This was not possible for him without any material being furnished to him. Providing all such facilities to him is included in the

requirement of affording a reasonable opportunity of being heard. Admittedly, he has not been given any such opportunity and it is, therefore

manifest that he was condemned unheard.

On this ground also the order impugned is liable to be quashed.

In these circumstances of the case, the court has come to the conclusion that the principles of natural justice have been flagrantly violated while

conducting the inquiry against the petitioner accused. The enquiry has not been made in accordance with the procedure as laid down in the relevant

provisions of the police Manual or in accordance with the procedure as laid down for the trail of summons cases in the criminal procedure code.

The petitioner has not been afforded a reasonable opportunity of being heard in accordance with law. He has not been given any opportunity of

defending himself at all. The enquiry has been conducted against him in an unreasonable, unfair and arbitrary manner.

For these reasons, I allow this petition and by a writ of certiorari quash the order impugned. It is directed by a writ of mandamus that the petitioner

shall be treated in continuous service without any break giving him all the consequential benefits including back wages, as if the order impugned

was never passed against him, the same being held as inoperative, He galand bad in law. The petitioner is also held entitled to costs assessed at Rs.

2000/.