Ghulam Mohammad vs State of J & K

This writ petition is filed by the petitioner impugning the order No. 521 of 1991 dated 3031991 passed by the respondent No.4, hereinafter called as ""the impugned order', whereby the annual increment of the petitioner was withheld for a period of three months.

Briefly stated, the facts of the case are as under:

Four constables, the petitioner being one amongst them, headed by a Head Constable were deputed from District Police Lines, Srinagar to guard the bridge, know as Safakadal bridge, in the month of July, 1990. It is alleged that during the night intervening 29th and 30th of July, 1990, the bridge was set ablaze at 1115 PM. The Deputy Superintendent of Police, DAR initiated enquiry about the incident, placed the petitioner under suspension, submitted the enquiry report, consequent upon, the annual increment of the petitioner for a period of three months was withheld vide the impugned order. Being aggrieved of the said order, the petitioner filed an appeal before the respondent No ^3 who, vide his order dated 2361992, dismissed the appeal of the petitioner, thereafter the petitioner filed a representation/appeal before the respondent No.2 who also rejected it and the decision was conveyed to the petitioner through a wireless message in the month of November, 1992.

Having failed to get the relief through statutory remedies, the petitioner filed a writ petition before this court. In the writ petition it is contended that the petitioner was not on duty when the incident took place. There is a specific averment that no enquiry was conducted within the knowledge of the petitioner nor was any witness examined in his presence, and the order of punishment has been passed without associating him with the enquiry.

The writ petition came to be admitted by virtue of order dated 29101992. Respondents were put on notice to file counter and on 9994 last and final opportunity of four weeks to file the counter was granted, but no return was filed and on 4111996 the court directed to process the case for hearing and impliedly closed the right to file counter. Since the State respondents failed to file the counter, the court placed the respondents under a direction to keep the record available at the time of hearing. On 9121997 the case was taken up for hearing. The learned counsel for the parties were heard at length, but despite directions record was not made available by the learned counsel for the respondents and in the interests of justice, Mr Qadri, learned Sr. AAG, was placed under instructions to obtain the record and produce the same and it was impressed upon him that in case the record was not made available, an adverse inference was likely to be drawn against the respondents, but till date the record has not been made available. Thus, the factual averments made by the petitioner supported by an affidavit have not been refuted and failure to refute the averments by a counter affidavit, besides nonproduction of record has deprived the respondents from the right of rebuttal and such failure, undoubtedly fortifies the case of the petitioner. However, such omission of the respondents alone cannot ipso facto lead to the presumption of correctness in respect of the averments made in the writ petition, but the petitioner has to strengthen his submissions by the record which is on the file, therefore, I propose to examine the matter on the basis of the record available on the file.

5, The learned counsel for the petitioner has challenged the impugned order on several grounds. His contention is that withholding of the increment under Rule 334(2) (d) of J and K Police Rules read with clause 3 falls within the definition of 'major punishment' and the procedure to be adopted in the departmental enquiries is envisaged under Rule 359 of J and K Police Rules, 1960, hereinafter called 'the police rules'. He submits that charge sheet was sent to him and in reply he has denied all the allegations.

His main contention is that the procedure enshrined in the rules was not followed at all and he has been condemned unheard.

The factual averments made in the writ petition by the petitioner having not been denied by the respondents, despite the opportunities provided, lead this court to a conclusion that the same are correct and by such presumption it is to be presumed that the petitioner was not on duty at the relevant point of time, but in the case in hand it is irrelevant to go to this aspect. What is important and material is whether the procedure laid down in Rule 359 of Police rules has been followed and in case the reply is in negative, what is its effect. This is a question which calls for an answer and if the answer is in negative, the impugned order cannot sustain and in order to answer this question, I would like to deal with the record available on the file of the court,

The documents on the file which are relevant to the issue are; the charge sheet forming annexure P2 and the order of punishment passed by the respondent No.4 annexure P3. The annexure P3 is most relevant which required be examined so as to reach to a just conclusion and para 2 of the said annexure is reproduced hereunder for its proper appreciation.

Brief facts of the case are that during the night intervening 20/30 July 1990 SafaKadal bridge was put on fire by some miscreants. The bridge was guarded by DPL Nafri of one Head Constable and four constables strengthen I/C guard had been instructed to post two sentries simultaneously from 20.00 hrs to 0800 hrs daily for guarding the bridge. This was done toavoid any threat to the lives of police personnel so that they could perform their duties with confidence and would avoid any mischief being played by miscreants.

Since the bridge was put on fire by the miscreants, it throws light on the fact that these police personnel had not performed their duties with care and had been highly negligent. For the gross negligence and dereliction of duty, constable Gh. Mohd. No.563/S was placed under suspension by

Dy. SP DAP vide his No. 185055/DAR dated 310790.

A bare perusal of the para reveals that two constables had to be on duty at a time and it was obligatory upon the respondent No.4 to fix the responsibility on the persons who were on duty at the relevant point of time but the order does not identify them at all, so much so it does not even indicate as to whether any enquiry was initiated against other three constables and the head constable and all these facts go to show that the relevant facts have not been reflected in the order impugned and fact remains that the impugned order has been passed in a mechanical and arbitrary manner.

Rule 359 of Police Rules postulates twofold stages of the enquiry, one preliminary and another after framing the charge. As regards preliminary enquiry, the Enquiry Officer is required to follow the procedure as laid down under subrules (1) to (5) of Rule 359 of Police Rules. Perusal of the charge sheet does not depict the names of the witnesses who have been examined during the preliminary enquiry, so much so it does not even depict as to whether he was ever summoned, recording and reading out a statement of summary of allegations is, therefore, ruled out. The charge sheet depicts that a communication was sent to the petitioner was provided an opportunity to question the witnesses which he did not, but it does not indicate that the basic requirement was observed which makes it obligatory upon the Enquiry Officer to summon the petitioner and read out the statement of summary of allegations to him and after observing the said requirement question, of recording evidence would arise. Having failed to follow the mandate of rule, the preliminary enquiry vitiates, for, same has not been in accordance with the mandate of Rule 359 of Police Rules and on this count the impugned order is liable to be set aside.

The procedure which the Enquiry Officer has to follow after framing the charge is envisaged in subrules 6 and 7 of Rule 359 of Police rules. Sub rule 6 makes it obligatory upon the enquiry officer to provide an opportunity to the accused official to give a list of such witnesses whom he would like to produce in defence and record their statements. It further provides that the statements of such witnesses can be recorded even at the places of their availability, of course, for the reasons detailed in the said subrules. The said subrule further provides that even access to the files, excepting the confidential record, can also be permitted and the object is to allow sufficient opportunity of defence to the delinquent official/officer.

After receiving the evidence, oral and documentary, yet another opportunity is to be made available to the delinquent official at conclusion of the defence evidence under subrule 7 to make a statement in reply for the charge, so much so the delinquent official can seek permission to file a written statement in his defence after the conclusion of the evidence in defence.

Examining the contents of annexure P2 and P3 on the touch stone of Rule359 subrules 6 and 7, it is manifestly clear that the procedure envisaged under Rule 359 was not followed at all and the petitioner has been denied an opportunity of hearing and the respondents have violated the principles of natural justice. Thus, the answer to the question framed, being in negative, renders the impugned order violative of the statutory rules, obviously liable to be set aside.

No delinquent can claim to be above law, howsoever, high he may be, but no offender of law can be deprived of a right to defend himself properly which necessitates his participation in the enquiry proceedings held against him. Examining and cross examining the witnesses, who appear in an enquiry, is a valuable right guaranteed to a delinquent official on the strength of natural justice as well, apart from the rules governing his services. Examination of the annexure reveals that the petitioner has been deprived of the safeguards provided under the rules, hence omissions and commissions of the respondents, detailed in the preceding paras are violative of the petitioner's legal and constitutional rights.

The annexures forming part ofthe writ petition sufficiently indicate that the enquiry, as envisaged under Police rules, has not been conducted by the respondents. In this behalf reference to rule 334 of clause 1 of Police rules is relevant enough which reads as under:

No policer officer shall be departmentally punished, otherwise than as prescribed in these rules.

The language of the rule is mandatory in nature and a restraint is placed against the punishment unless the procedure as envisaged under Rule 359 of Police Rules is followed, thus, a fulldressed enquiry has to be conducted according to the mode, method and manner as is provided under the said rule, which is lacking in the case in hand.

The learned Sr. AAG has submitted at the bar that in case the court comes to the conclusion that the order is to be set aside, the right of further enquiry should not be foreclosed. I have considered this request of the learned counsel. It is well settled law that the employer has the power to conduct enquiry afresh from the stage at which the illegality in the proceedings occurs and if the respondents choose to conduct an enquiry afresh, this right cannot be foreclosed and I leave it to the respondents to decide for themselves, but the circumstances of the case are such where I feel constrained to mfeke some observations which follow hereinafter:

a) The petitioner stands promoted to the post of Head Constable vide order No. 4576/ Estt. dated 15071994 which indicates that his conduct has been found satisfactory;

b) The order impugned had provided for with holding of the annual increment for three months and not for forfeiture, since the increment remained with held, thus the respondents have achieved the object;

c) The petitioner had to prosecute his writ petition for half a decade;

d) The petitioner is at the verge of his retirement, as submitted at the bar by Mr. Qureshi.

Considering the matter on the strength ofthese facts, I hope and trust that the respondents will accord due consideration to these facts while examining as to whether or not they should hold an enquiry afresh against the petitioner.

For the foregoing reasons, this petition is allowed. By issuance of a writ of certiorari the order bearing No.521 of 1991 dated 3031991 passed by the respondent No.4 is quashed to the extent of withholding of increment of the petitioner. No order as to costs.