AI Structured Summary
Not yet generated for this judgment
Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)Quashing the order No. 331 of 2013 dated 27-5-2013 passed by respondent No. 5 whereby the applicant has been awarded the punishment of Censure and the period of 22 days with effect from 19-10-2010 to 9-11-2010 has been treated as on leave without allowances and period with effect from 16-3-2011 to 24-3-2011 and 21-5-2011 to 23-5-2011 has been treated as on leave whatever kind was due to him.
b)Quashing the order No. 328 of 2013 dated 31-10-2013 passed by respondent No. 4 whereby the appeal filed by the applicant has been rejected.
c)Quashing the order No. 41 of 2018 dated 24-1-2018 passed by respondent No. 3 whereby the appeal/ representation filed by the applicant has been rejected being not maintainable and devoid of merit.
d)Quashing the order dated 23-4-2019 passed by respondent No. 2 in an appeal No. 7/2018 whereby the appeal/ representation filed by the applicant has been rejecting without communicating the order to him; as being unconstitutional, illegal and void being without jurisdiction.
e)Directing the respondents to promote the applicant to the rank of Selection Grade Constable with effect from 31-8-2013 and as Head Constable (executive police) with effect from 01.11.2020 Central Administrative Tribunalwith all consequential benefits.
The facts of the case as averred by the applicant in his pleadings, are as follows: -
The brief facts, as projected by the applicant, are that he was appointed as a Constable in the Jammu and Kashmir Police on 02.07.1998 and was allotted Constabulary No. 626-D under PID No. EXJ/986526. According to him, throughout his service he discharged his duties diligently and was awarded the DGP Police Medal/Commendation Medal in the year 2002 besides cash rewards for his performance. He remained posted at SPO Post Varnhal from 2003 to 2008 and was thereafter transferred to Police Station Assar, Doda in the year 2009.
The controversy arose in the year 2010 when, while the applicant was posted at Police Station Assar, he accompanied the Investigating Officer and other police personnel in connection with investigation of FIR No. 39/2010. During the course of investigation, one Parshotam Singh, who had been arrested and was in police custody, allegedly escaped from the custody of the applicant. It was further alleged that while being chased, the said accused slipped/fell into a Nallah/Dhadal and died at the spot. Consequently, FIR No. 40/2010 under Sections 304-A/223 RPC was registered against the applicant. He was arrested and subsequently released on bail, and a charge-sheet was ultimately presented before the Court of learned Chief Judicial Magistrate, Doda.
Consequent upon the aforesaid incident, the applicant was placed under suspension vide Order Book No. 866 of 2010 dated 21.10.2010. A departmental enquiry was also initiated vide Order Book No. 874 of 2010. The first Inquiry Officer submitted his findings, whereafter the Superintendent of Police, Doda, not being in agreement with the same, ordered a de novo enquiry vide communication dated 29.12.2011 and entrusted the same to the Additional Superintendent of Police, Bhaderwah.
On completion of the de novo enquiry, respondent No. 5 passed Order No. 331 of 2013 dated 27.05.2013, imposing upon the applicant the punishment of Censure. Certain periods of absence/suspension were also ordered to be treated as leave without allowances or leave of the kind due, as specified in the said order. The applicant alleges that the enquiry was conducted in violation of the prescribed procedure and principles of natural justice, particularly Rule 359 of the Police Rules, as neither the enquiry report/findings nor statements of witnesses were supplied to him and no adequate opportunity of hearing was afforded before imposition of punishment. According to him, despite his application dated 09.07.2013 seeking copies of the relevant documents, only the punishment order was supplied, whereas the enquiry findings and statements of witnesses were withheld.
Aggrieved by the punishment, the applicant preferred an appeal before respondent No. 4, which came to be rejected vide Order No. 328 of 2013 dated 31.10.2013. He thereafter approached respondent No. 3 by way of appeal/representation, which was rejected vide Order No. 41 of 2018 dated 24.01.2018 as being not maintainable and devoid of merit. A further appeal/representation registered as Appeal No. 7/2018 was preferred before respondent No. 2. According to the applicant, its fate was never communicated to him and only upon approaching the office on 01.03.2021 did he learn that the same had already been rejected on 23.04.2019.
In the meantime, the criminal proceedings arising out of FIR No. 40/2010 culminated in acquittal of the applicant by the learned Chief Judicial Magistrate, Doda in December, 2016. The applicant contends that the departmental proceedings themselves were without jurisdiction in view of Rule 338(2) of the Police Rules, since a criminal case concerning the same incident had already been registered and a charge-sheet presented before the competent criminal court. According to him, once the material disclosed commission of a cognizable offence, the departmental authority was required to stay its hands and refer the matter to the Inspector General of Police in accordance with the said Rule.
The applicant further contends that the impugned punishment and pendency of the criminal proceedings adversely affected his promotional prospects. He claims that he was otherwise due for promotion as Selection Grade Constable in the year 2013. Vide Order No. 399 of 2013 dated 31.08.2013, 471 Constables were promoted as Selection Grade Constables, including several persons junior to him, whereas his case was not considered on account of the criminal case and the punishment of censure. The applicant has specifically referred to similarly recruited/junior officials including Mushtaq Ahmed and Imtiyaz Ahmed, who were promoted under the said order.
The applicant further pleads that vide Order No. 24 of 2021 dated 08.01.2021, 389 Selection Grade Constables were promoted as Head Constables (Executive Police) with effect from 01.11.2020, and several persons junior to him also secured such promotion. He, therefore, attributes his non-promotion first as Selection Grade Constable and thereafter as Head Constable to the impugned departmental proceedings and punishment. He accordingly seeks quashing of the punishment order dated 27.05.2013 and the subsequent appellate/revisional orders and a consequential direction for his promotion as Selection Grade Constable with effect from 31.08.2013 and as Head Constable with effect from 01.11.2020, along with consequential benefits.
The respondents have filed their reply statement wherein they have averred as follows: -
The respondents have contested the Original Application and justified the departmental proceedings as well as the punishment imposed upon the applicant. Their case is that while the applicant was performing official duties in connection with FIR No. 39/2010, an accused who had been entrusted to his custody escaped and, while fleeing, slipped/fell into a Dhadal and died. According to the respondents, the incident occurred on account of negligence and carelessness on the part of the applicant. Consequently, FIR No. 40/2010 was registered against him and a charge-sheet under Sections 223/304-A RPC was presented before the learned Chief Judicial Magistrate, Doda.
The respondents state that departmental proceedings were separately initiated vide DPO Doda Order No. 874 of 2010 dated 22.10.2010. The applicant was reinstated in service vide Order No. 289 of 2011 dated 01.07.2011 pending enquiry. The initial Inquiry Officer recommended stoppage of one annual increment, but the competent authority did not agree with the same and consequently ordered a de novo enquiry. The Additional Superintendent of Police, Bhaderwah was appointed as Inquiry Officer and, after completion of the enquiry, submitted his findings to the competent authority. Upon consideration thereof, the SSP, Doda imposed the punishment of Censure upon the applicant for negligence and carelessness in discharge of his official duties.
The respondents specifically deny the applicant’s allegation that the departmental enquiry was conducted without affording him an opportunity of hearing. According to them, the proceedings remained under consideration for about two years and seven months and the applicant was afforded sufficient opportunity to defend himself and disprove the allegations, but failed to do so. They, therefore, maintain that the punishment of censure was imposed only after the charge of dereliction of duty stood established in the departmental enquiry.
As regards the departmental remedies availed by the applicant, the respondents submit that his appeal against the order dated 27.05.2013 was duly examined by respondent No. 4 after calling for and considering the enquiry record. The finding of negligence was found to be justified and the punishment order was upheld. His subsequent appeal/representation before respondent No. 3 was rejected vide Order No. 41 of 2018 dated 24.01.2018 as not maintainable and devoid of merit, while the further appeal/representation preferred before respondent No. 2 was also rejected on 23.04.2019 and the earlier order was upheld.
With regard to the criminal proceedings, the respondents admit that the applicant was acquitted by the learned Chief Judicial Magistrate, Doda in the criminal case arising out of FIR No. 40/2010. They, however, contend that the acquittal was on the basis of benefit of doubt and would not efface the findings recorded independently in the departmental enquiry, wherein the charges of negligence, carelessness and dereliction of duty stood proved.
On the question of promotion, the respondents submit that when promotions were made in the year 2013, the criminal case against the applicant was still sub judice and the departmental proceedings were also pending/relevant to his service record; hence, his case was not considered for promotion in accordance with the applicable Police Rules. They further state that the applicant was transferred to District Ramban vide RPHQ Batote Order No. 13 of 2013 dated 05.02.2013 and relieved on 28.02.2013 and that his subsequent claim for promotion could not be considered because of the punishment of censure standing against him.
The respondents thus maintain that the departmental proceedings were validly conducted, that the charges against the applicant stood established independently of the criminal proceedings, and that the punishment of censure continued to remain in force despite the various appeals preferred by him. According to them, his non-consideration/non-promotion to the higher ranks was the consequence of the subsisting punishment and the applicable Police Rules and does not confer upon him any enforceable right to retrospective promotion. They have, accordingly, prayed for dismissal of the Original Application.
Heard learned counsel for the parties and perused the pleadings and material available on record. The controversy essentially revolves around three issues: firstly, whether the departmental proceedings culminating in the punishment of censure can be sustained in the light of Rule 338 of the Police Rules; secondly, whether the procedure adopted in the departmental enquiry satisfies the requirements of Rule 359 and the principles of natural justice; and thirdly, what consequential relief, if any, can appropriately be granted in respect of the applicant's claim for promotion.
There is no serious dispute regarding the basic sequence of events.
FIR No. 40/2010 was registered against the applicant in relation to the escape and subsequent death of an accused who had allegedly been entrusted to his custody. A criminal prosecution followed. Simultaneously, departmental proceedings were initiated arising out of the same incident, culminating in the punishment of censure dated 27.05.2013. The criminal proceedings subsequently ended in acquittal.
The applicant has placed substantial reliance upon Rule 338(2) of the Police Rules. The provision, as reproduced in the pleadings, stipulates, inter alia, that where evidence against a police officer prima facie discloses commission of a cognizable offence, the authority conducting the departmental enquiry shall stay its hands and refer the matter to the Inspector General of Police to be dealt with in accordance with law.
Central Administrative Tribunal7. The significance of Rule 338(2) cannot be diluted by applying, without qualification, the general proposition that criminal and departmental proceedings may proceed simultaneously. The applicant belongs to a disciplined force governed by a specific statutory framework. Where the governing rules themselves prescribe the manner in which departmental action is to be dealt with upon disclosure of a cognizable offence, the authorities are required to act within that framework.
The Hon’ble High Court of Jammu and Kashmir, while considering Rule 338(2), has held that where the departmental enquiry and criminal case concern the same set of charges and the statutory conditions under Rule 338(2) stand attracted, the mandate contained in the Rule cannot be ignored. In Wali Mohd. Ganai v. State of J&K and others, the Court emphasised that the general principles governing simultaneous criminal and departmental proceedings have to be read subject to the specific statutory mandate contained in Rule 338(2).
In the present case, the respondents themselves acknowledge that FIR No. 40/2010 was registered against the applicant and a charge-sheet under Sections 223/304-A RPC was presented before the competent criminal court. The departmental proceedings were also founded upon the applicant’s alleged negligence in relation to the escape and consequential death of the same accused. The respondents have not satisfactorily demonstrated from their pleadings how the statutory requirement under Rule 338(2) was dealt with before the departmental proceedings were carried to their conclusion.
The matter assumes further significance because the applicant has raised a specific plea regarding violation of Rule 359 of the Police Rules. Rule 359 prescribes a detailed procedure for departmental enquiries against police personnel. It contemplates notice of the alleged misconduct, recording of evidence in the presence of the delinquent, opportunity to meet the evidence and defend the charge, consideration of the enquiry findings by the disciplinary authority and observance of the prescribed procedure before imposition of punishment. Judicial decisions interpreting Rule 359 have consistently treated observance of the prescribed procedure as an important safeguard in disciplinary proceedings against police personnel.
Indeed, the High Court has explained that an enquiry under Rule 359 proceeds through identifiable stages, including communication of the alleged misconduct, recording of supporting evidence, opportunity of cross-examination, framing of formal charge where warranted, defence evidence and consideration of the findings by the competent authority. Whether Rule 359 has been complied with must therefore be determined from the actual record of the enquiry and not merely from a general assertion that sufficient opportunity was afforded.
In the present case, the applicant specifically pleaded that the findings of the Inquiry Officer and statements of witnesses were not supplied to him and that even after his written request dated 09.07.2013, he was supplied only a copy of the punishment order. The respondents have broadly stated that adequate opportunity was provided to him; however, the reply, as placed before this Tribunal, does not satisfactorily answer the specific allegation regarding supply of the enquiry findings and relevant material or demonstrate strict compliance with the procedure prescribed under the Police Rules.
At this stage, it is necessary to clarify that this Tribunal is not proceeding on the premise that acquittal in a criminal case automatically wipes out departmental misconduct. The standard of proof in criminal proceedings is different from that applicable to departmental proceedings, and an acquittal, particularly one founded on benefit of doubt, would not by itself invalidate a disciplinary finding. The present case, however, stands on a different footing because the applicant has challenged the very legality and procedure of the departmental action with reference to the specific statutory provisions governing members of the J&K Police.
The respondents cannot sustain the impugned action merely by pointing out that the applicant was ultimately awarded only the punishment of censure. The gravity of the penalty does not cure a foundational procedural or jurisdictional defect. Once disciplinary proceedings are required to be conducted in a particular manner under the governing Rules, the prescribed safeguards have to be observed.
The appellate orders also do not improve the position. An appellate authority exercising statutory power is expected to consider the material grounds raised against the disciplinary action, particularly a plea going to the competence and legality of the proceedings. The applicant specifically raised the issue concerning Rule 338 and his subsequent acquittal. Yet the material before this Tribunal does not disclose a satisfactory consideration of these foundational objections. The successive rejection of representations, therefore, cannot by itself validate an otherwise unsustainable disciplinary action.
Taking the totality of the circumstances into consideration, this Tribunal is of the considered view that the punishment order dated 27.05.2013 and the consequential orders rejecting the applicant’s appeals/representations cannot safely be sustained.
This brings the Tribunal to the second limb of the relief sought by the applicant. The record shows that vide Order No. 399 of 2013 dated 31.08.2013, a large number of Constables were promoted as Selection Grade Constables. The applicant has specifically identified officials recruited along with him and bearing PID numbers junior to his who were included in the promotion order.
Likewise, vide Order No. 24 of 2021 dated 08.01.2021, 389 Selection Grade Constables were promoted as Head Constables (Executive Police) with effect from 01.11.2020. The applicant has identified, inter alia, Imtiyaz Ahmed bearing PID No. EXJ/986659 and Mushtaq Ahmed bearing PID No. EXJ/986666 as persons junior to him who were granted the benefit of promotion.
The respondents themselves have substantially linked the non-consideration of the applicant’s promotion with the pendency of the criminal proceedings and the punishment of censure. They have specifically pleaded that his case for promotion was not considered in view of the punishment inflicted upon him. Once the disciplinary action which constituted the impediment to his consideration is found unsustainable, fairness requires that his promotional claim be revisited.
At the same time, promotion cannot be granted mechanically merely because the punishment order is being set aside. Promotion to a higher rank depends upon satisfaction of the applicable eligibility conditions, seniority position, availability of vacancy, suitability and other requirements prescribed under the relevant rules. The Tribunal would, therefore, refrain from issuing a mandamus directly promoting the applicant with retrospective effect.
The appropriate course would be to restore the applicant to the position in which he would have stood had the impugned punishment not operated against him and to direct the competent authority to consider his case from the date his immediate junior was considered/promoted. Such consideration shall be undertaken on the basis of the rules and criteria applicable on the relevant dates and by ignoring the punishment of censure and the consequential orders which are being set aside by this judgment.
If upon such consideration the applicant is found otherwise eligible and fit for promotion as Selection Grade Constable from the date his immediate junior was promoted, the respondents shall grant him such promotion notionally from the corresponding date. His case for further promotion to the rank of Head Constable (Executive Police) shall thereafter also be considered from the date his immediate junior in the relevant cadre/category was promoted, subject again to his satisfying the eligibility and suitability requirements applicable at the relevant point of time.
As regards consequential monetary benefits, considering that the applicant did not actually discharge duties on the promotional posts during the retrospective period, it would not be appropriate to direct automatic payment of the entire arrears of salary attached to the higher posts. However, if the applicant is found fit and is notionally promoted, his seniority and pay shall be notionally refixed from the respective dates and the consequential effect thereof shall be given for future pay, pension and other retiral/service benefits, as admissible under the applicable rules.
Ordinarily, where a disciplinary order is set aside for procedural infirmity, liberty may be reserved to the employer to proceed afresh from the stage at which the defect occurred. The facts of the present case, however, warrant a different course. The incident pertains to the year 2010; more than a decade and a half has elapsed; the criminal trial has already culminated in acquittal; and the departmental proceedings themselves resulted only in the punishment of censure. In these peculiar circumstances, directing a fresh departmental enquiry at this distant point of time would serve little useful purpose and would merely prolong a dispute which has remained alive for several years. Therefore, no liberty for a fresh enquiry is considered necessary in the peculiar facts of the present case.
In view of the discussion made hereinabove, the Original Application is partly allowed in the following terms:
Order No. 331 of 2013 dated 27.05.2013, whereby the punishment of Censure was imposed upon the applicant, is hereby quashed and set aside. The consequential orders dated 31.10.2013, 24.01.2018 and 23.04.2019 rejecting the applicant’s appeals/representations shall also stand quashed.
The respondents shall review/reconsider the case of the applicant for promotion to the rank of Selection Grade Constable from the date his immediate junior in the relevant cadre/category was promoted pursuant to the promotion process/order dated 31.08.2013, by ignoring the aforesaid punishment and the orders which have been set aside.
In the event the applicant is found eligible and fit, he shall be granted notional promotion as Selection Grade Constable from the date his immediate junior was promoted. Consequent upon such consideration, his case for promotion as Head Constable (Executive Police) shall also be considered from the date his immediate junior was promoted to the said rank, subject to fulfilment of the applicable eligibility and suitability criteria.
If found entitled to either/both promotions, the applicant shall be accorded consequential notional seniority and notional fixation of pay from the respective due dates. Such fixation shall be taken into account for determining his future pay and admissible pensionary/retiral benefits. Actual arrears of salary for the period during which the applicant did not discharge duties on the promotional posts shall, however, not follow automatically and shall be regulated in accordance with the applicable rules.
The entire exercise shall be completed by the competent authority within a period of three months from the date of receipt of a certified copy of this order, by passing an appropriate reasoned order and communicating the same to the applicant.
It is clarified that this Tribunal has not expressed any opinion regarding the applicant’s comparative merit or suitability for promotion. The direction is for fair and lawful consideration from the dates on which his juniors were considered/promoted, without permitting the punishment and consequential orders quashed herein to operate to his prejudice.
The O.A. stands disposed of in the aforesaid terms. There shall be no order as to costs.