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Judgment
Both these petitions are outcome of order no 216 of 2003 dated 26th June, 2003 passed by SP Awantiporarespondent No. 3, whereby and
whereunder Abdul Qayoom Ganai came to be dismissed from the service and Jalaluddin came to be discharged.
Feeling aggrieved, petitioners have questioned the said order by the medium of these writ petitions. This judgment/order will govern both the
writ petitions.
The main ground of attack raised by the petitioners is that the impugned order came to be passed without hearing them and without providing
opportunity to them as was required in terms of Rule 359 of the Jammu & Kashmir Police Rules, 1960 (For short the Rules). It is also averred in
the petitions that they have filed the application whereby request was made to Enquiry Officer for supplying to them the necessary material details
of which are given in annexureC. The Enquiry Officer has failed to provide said documents thereby petitioners were not in a position to defend
their cases.
The allegation against the petitioners are that they were performing duties as PSO's of Late Abdul Aziz Mir, who was contesting the Assembly
Election at the relevant point of time as PDD candidate, was attacked by unknown militant(s) from close range and succumbs to injuries at
Srinagar Hospital.
It appears that the incident occurred on 20th December, 2002 and Sh. Layeek Ahmad, Senior Prosecuting Officer came to be appointed as
Enquiry Officer. Charge sheet came to be framed on 9th May, 2003 and recommendations came to be made on 19th June, 2003 meaning thereby
that enquiry was completed within forty (40) days, from the date of framing of charge. Thereafter SP, Awantipora passed the impugned order on
26th June, 2003 just after seven (7) days from the date of making recommendation. It appears that the Enquiry Officer as well as SP, Awantipora,
have not given sufficient opportunity to the petitioners to defend their case as was required in terms of Rule 359 of Police Rules. There is nothing
on the file suggesting the fact the documents were supplied to the petitioner despite of the fact that specific demand was made by the petitioners in
terms of annexureC.
Petitioners have specifically averred in the writ petition that they came to be arrested on 20th December, 2002 and where in lockup till they
came to be released in terms of court order passed by Judicial Magistrate after passing of the impugned order. The petitioners have annexed with
the writ petition cutting of Alsafa Newspaper and other documents in support of their plea. There is nothing on the file suggesting the fact that when
they came to be arrested and when they came to be released. There is also nothing on the file suggesting the fact that whether petitioners were
allowed to engage the service of lawyer though a specific submissions was made.
In terms of Rule 359 of the Police Rules the Enquiry Officer was under legal obligation to cause appearance of Police OfficersPetitioners before
him. There is nothing on the file suggesting the fact that petitioners/Police Officers were summoned by the Enquiry Officer before him. It is apt to
reproduce Sub Rule2 of Rule 359 here in under:
The officer conducting the enquiry shall summon the accused police officer before him and shall record and read out to him a statement
summarizing the alleged misconduct in such a way as to give notice of the circumstances in regard to which evidence is to be recorded.
This Rule, as discussed herein above, has also been observed in breach.
In terms of Subrule (2) of Rule359, the competent authoritySP Awantiporarespondent No. 3 had to provide a reasonable opportunity(ies) to
the petitioners to show cause orally or in writing why the action proposed be not taken against them.
This Rule has also been observed in breach for the simple reason that show cause notice came be to issued by SP Awantipora on 19th of
June, 2003 commanding the petitioners to show cause within three (3) days. It is not known that when the said notice was served upon them and
when it was received by them.
In the given circumstances I deem it proper to quash the impugned order with a liberty to the respondents to conduct fresh enquiry. It is made
clear that if enquiry is not conducted the petitioners are not entitled to pay/salary dues right from the date of suspension till today. However, the
period shall qualify for other service benefits. If enquiry is conduct, be concluded within six months from the date the order is conveyed to SP
Awantipora. The said period shall be subject to finding of the enquiry officer and the order(s) of the competent authority.
Writ petitions disposed of along with all connected CMPs. Registry to send copy of this judgment/order to SP, Awantipora for compliance.