Malook Khan vs State and Others

Mohd. Yaqoob Mir, Judge

Petitioner has been dismissed from service vide order No.490 of 2003 dated 10.9.2003. The grievance projected against the said order is to

the effect that same has been passed by an incompetent person i.e. respondent No.3, secondly has also been passed in derogation of the

applicable rules as the petitioner has been absolutely deprived of being heard. Through the instant petition quashment of the said order is sought

and also issuance of command for reinstatement of the petitioner with payment of all service benefits including emoluments.

In opposition it has been projected that the order has been passed by the competent person. Furthermore while dismissing petitioner from

service rules have been substantially complied with. It is also projected that the petition is hit by latches as the order has been passed on 10.9.2003

while as writ petition has been filed on 24.2.2005.

Petitioner admittedly at the time of dismissal from service was working as Head Constable. The petitioner in the capacity of Head Constable

was performing his duties with Executive Member of J&K Peoples Democratic Party. He has been arrested along, with his associates in

connection with case FIR No.222/2001 for commission of offence punishable under Sections 3, 4, 5 POTA read with Section Explosive

Substance Act, 120-B RPC P/S Nowabad Jammu on 23.12.2001, while in custody had been ordered to be detained under the provisions of

Public Safety Act and finally has been released from custody in the month of December, 2004, while in custody in connection with case FIR

No.222/2001 had been placed under suspension vide order No.959 of 2001 dated 26.12.2001.

The short question for consideration is as to ""whether order of dismissal impugned has been passed in consonance with law"".

The first contention raised that the order has been passed by an incompetent person i.e. respondent No.3, is without substance because in terms

of Rule 335 of the Police Rules punishments can be inflicted on the officers of various ranks by the superior officers as mentioned in the said Rule

or by any officer of higher rank. The petitioner being Head Constable Junior Grade so punishment of dismissal can be awarded by Superintendent

of Police. The respondent No.3 being the Superintendent of Police has inflicted the punishment of dismissal which he was competent to do.

The next contention that the order has not been passed in accordance with the rules, has to be answered in affirmative because admittedly order

has been passed at the back of the petitioner. He has not been given an opportunity of being heard. Rule 30 of the Jammu and Kashmir Civil

Services (Classification, Control and Appeal) Rules (for short the CCA Rules) provides for infliction of penalties which include dismissal from

service but for inflicting such penalties procedure as prescribed under Rule 33 of the said Rules has to be followed which provides that the grounds

on which punishment is proposed shall be reduced in writing and then reasonable opportunity has to be afforded for defence. From the records it is

clear that neither the grounds had been reduced in the form of definite charge nor have been communicated to the petitioner nor petitioner has been

heard. Rule 33(2) of the CCA Rules would provide that the requirement of providing an opportunity of showing cause against the proposed action

can be waived by the enquiry officer provided the person against whom action is proposed has absconded or for other reasons it shall be

impracticable to communicate with him or where it is in the interests of security of the State. It is no where forthcoming from the record as has been

produced that the petitioner was absconding or that it was impracticable to communicate with him. Rightly so because such situations were not

available as the petitioner had not absconded. He was in custody in connection with case FIR No.222/2001 and then in custody under the

provisions of Public Safety Act and admittedly has been released in the month of December, 2004.

Now the third situation as provided by sub-rule 2 of Rule 33 is that when it is in the interests of the security of the State, the enquiry officer can

waive the requirement but said situation cannot be read in isolation. It has to be read with proviso to sub-section 2 of Section 126 of the

Constitution of Jammu & Kashmir and has also to be read in consonance with Rule 359 of the Police Rules. Section 126 of the Constitution of

Jammu and Kashmir provide for dismissal, reduction in rank or removal of persons employed in civil capacity under the State. Sub Section 2

provides that no such person shall be dismissed or removed or reduced in rank except after an enquiry 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 thereafter if penalty is proposed, same shall

not be imposed until such person is given an opportunity to make representation on the penalty proposed but only on the basis of the evidence

adduced during such enquiry. This position is controlled by the proviso i.e. sub-section shall not apply in three situations which are reproduced

here under:

(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;

(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 interests of the security of the Slate, it is not expedient to hold such inquiry.

Rule 359(11)(1)(2) is also in conformity with proviso to sub-section 2 of Section 126 of the Constitution of j&K State. Said Rule reads as

under.

11(1) As laid down in section 126 of the Constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate

to that by which he was appointed.

(2) No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally

and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply:

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge;

(b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded bv that

authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) where the Sadr-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity.

The three situations as envisaged by proviso to sub-section 2 of Section 126 of the Constitution of J&K State as well as by proviso to sub-rule

2 of Rule 11 of Rule 359 of the Police rules provide that the requirement of giving opportunity can be waived, one where a person has been

convicted on a criminal charge, second where the authority is satisfied, for reasons to be recorded in writing, that it is reasonably impracticable to

give that a person an opportunity to show cause and third where the Governor is satisfied that in the interests of security of the State it shall not be

expedient to give to that officer such an opportunity.

Now coining to the instant case, admittedly the petitioner as yet has not been convicted, admittedly the authority concerned has not recorded

any satisfaction so as to indicate that it was reasonably impracticable to provide petitioner any opportunity of showing cause. Then the third

situation provides that in the interest of security of the State Governor can waive the requirement provided he feels that it shall not be expedient to

give the person concerned such an opportunity. Admittedly the case for dismissal has not been processed so as to be submitted to the Governor

for inflicting the proposed punishment. So in short if the dismissal was to be ordered without any enquiry or without providing petitioner any chance

of hearing, then it was for the Governor to record satisfaction and to pass such order. In the instant case admittedly order of dismissal has been

passed by the Commandant who could waive the requirement in the first two situations. First situation was not available as no conviction has

followed. Second situation was available but no such satisfaction has been recorded that it shall be impracticable to give the person an opportunity

of showing the cause. The order of dismissal on the face of it is bereft of legal sanctity as having been passed in violation of Section 126 of the

Constitution of Jammu & Kashmir read with Rule 359 of the Police Rules and also read with Rule 33(2) of the CCA Rules. Rule 33(2) is

absolutely controlled by proviso to sub-section 2 of Section 126 as well as sub-rule 11 of Rule 359 of the Police rules.

Learned counsel for the respondents, Mr. Magray, while confronted with the legal position was fair enough to state that record as produced

does not indicate that any satisfaction has been arrived at by the competent authority in dispensing with the enquiry against the petitioner.

The contention of learned counsel for the respondents that the petition is hit by latches is not tenable as admittedly the petitioner has been

arrested in connection with the case referred above on 23.12.2001 and then has been detained under the provisions of Public Safety Act and

finally has been released in the month of December, 2004 and immediately after two months i.e. on 24.2.2005 petition has been filed, so no

indolence or slackness in having resort to the remedial measures is attributable to the petitioner. This contention is accordingly repelled.

The impugned order of dismissal for the stated reasons cannot sustain, as such, is quashed. It shall be open for the respondents, if they so

choose, to initiate enquiry against the petitioner or to have recDurse to other measures available for proceeding against the petitioner. In case no

such enquiry or any other action is initiated, the petitioner shall not be entitled to the wages for the period he has remained out of service but such

period shall count for pensionary benefits.

Petition accordingly succeeds so is disposed of on afore stated terms.

The record as has been produced be returned back to learned counsel, Mr. Magray.