Javid Ahmed vs State Of Jammu & Kashmir And Others

The petitioner has been punished by reducing his rank from Havaldar to SG (Constable). Aggrieved by the order of the punishment dated 31.03.2017 and rejecting his appeal vide order dated 01.06.2017. The petitioner has approached this Court for quashing the orders.

By a common order No. 87 of 2017 dated 31.03.2017, the Deputy Inspector General of Police (Armed), Kashmir Range awarded different punishments to 07 persons and warning to the 8th while the 9th was not proceeded as he had superannuated on 31.01.2014. Javid Ahmed, Petitioner is one of the nine persons, who admittedly was posted Company Quarter Master Havaldar (CQMH) when all of them were posted in Law and Order J-Company of IRP, 18th Bn at APC Zewan from 07.03.2012 to 23.04.2013.

The petitioner submits that he had not pleaded guilty to the allegations, no enquiry was held and he was not given opportunity to prove his innocence. The respondent No. 4 without considering the reply filed by him passed the order impugned reducing him in rank and he challenged this order in an appeal as provided under rules but that was summarily dismissed.

Para 5 of the summary of the allegations against the petitioner is that he facilitated the absence of Hilal Ahmed to remain absent as he never reported his absence to the senior officer or commandant with the result, the constable Hilal Ahmed was absent for 386 days out of 408 days and was found to have spent this period of absence in Sopore and its surrounding areas till he was arrested on 20.05.2013 and FIR No. 99 of 2013 was registered against him u/s 3/25 of the Arms Act.

In reply to these allegations, the petitioner replied that as CQMH he was not supposed to mark the attendance of the person who took meals at the dining hall. His duty was only to make arrangements to provide food for everybody in the mess. Supervision of the police personnel in the mess was not a part of his duty. This reply is in consonance with the reply, he submitted to the show cause notice issued by the Dy. Inspector General of Police, Armed, Kashmir Range, Shri Alok Kumar ( IPS).

There is no reference to the finding of the inquiry officer or his report. The show cause is merely is that the petitioner being posted as CQMH from 07.03.2013 to 23.04.2013 has failed to report the absence of constable Hilal Ahmed to his senior, with the result he remained absence for 386 days, out of 408 days and spent this period in Sopore and its adjacent areas as indicated from the details of his cell phone.

The petitioner in reply to the show cause notice has reiterated that it was not a part of his duty to report the absence who was not taking meals because he was not supposed to mark the attendance of those who took the meals out of the total number of persons there, some used to be absent also.

The moot question is whether he was given the opportunity to prove and was there any provision as to whose duty it was to mark the attendance of the personnel at Zewan.

The order indicates that warning was issued to PSI, Showket Hussain while ASI, Mohd. Sarwar had retired on 31.01.2014, so no inquiry was initiated against him.

The question is who was responsible for the roll call of personnel posted at Zewan as it cannot be a case where no daily roll call was taken in the evening which is the normal practice in every belt force. There is nothing in the summary of allegation about nature of duties assigned to Quarter Master Havaldar, Incharge Mess. It is not the allegation that he was to take roll call before serving meals in the evening.

In any case, the petitioner should have been allowed to defend himself against the allegation that he facilitated the absence of Hilal Ahmed, mere inference is not sufficient. All the constables named in the order were aware of the absence but they did not report the absence to the senior. If the petitioner was to take the roll call that should have been the main summary of the allegation against him and charge as well. Mere allegation that he was expected to report absence does not constitute facilitating his absence for alleged illegal activities. It is not necessary to go into the details of the case because the Coordinate Bench of this Court already passed a judgment in SWP No. 1524/2017, titled, Baldev Raj vs State & Ors. holding in paragraph No. 13 that

"Having held thus, the only question which is left to be determined is as to what course should be adopted in the instant case and what relief should be granted to the petitioner. As noted above, the whole inquiry is vitiated right from the very beginning and as such, this Court left with no option but to quash the proceedings including the order impugned. Accordingly, this writ petition is allowed, the charge sheet, the enquiry proceedings as also the Order dated 31.03.2017 and the Order dated 01.06.2017 are quashed. The petitioner is held entitled to all the consequential benefits which would accrue to him upon quashing of the orders impugned. This, however, does not mean that the respondents cannot initiate denovo inquiry against the petitioner in accordance with provisions of the Rule 359 of the Police Rules and in consonance with the principles of natural justice".

Since Baldev Raj, Head Constable is also one of the Head Constables figuring at S. No. 2 who was also punished by the same order, these findings apply to this case also.

As such, this writ petition is allowed. The charge sheet, enquiry proceeding order dated 31.03.2017 and order dated 01.06.2017 are quashed. The petitioner is held entitled to all the consequential benefits which would accrue to him.

Record of the enquiry is returned back to the learned counsel for the respondents.

Disposed of as above along with connected IAs.