Surinder Paul vs State of Jammu & Kashmir

O.P. Sharma, J.—All these petitions involve common question of law because what arise for consideration is whether the penalty of

reduction to a lower post could be imposed without affording an opportunity to the petitioners of defending themselves after they had denied the

charge of dereliction of duty. The admitted facts of the case are that all the petitioners were charged for dereliction of duty in not detecting the theft

of Deodar Sleepers loaded in truck Nos. DLIGB3192, DLIGA4158, JK02D6817 and JK02B1701 on 03/09/1990 at Check Post Kunjwani.

Articles of charge were served on the petitioners for the aforesaid dereliction of duty. All of them it is admitted replied the chargesheet denying

their negligence. After considering their reply, the Disciplinary Authority it is admitted did not give them any opportunity to defend themselves. On

the contrary a notice was issued asking them to show cause why they should not be demoted from the post held by them for serious dereliction of

duty in not detecting the clandestinely loaded Deodar Sleepers in the trucks. Subsequently, vide order dated 28/04/1909 passed by respondent

No. 4 all the petitioners were demoted from the post of Forester to the post of Deputy Forester.

It is this order which the petitioners have challenged on the ground that neither any inquiry was held nor opportunity of hearing afforded to them

to prove their innocence.

The stand of the respondents is that charges were framed and their replies considered before giving them notice to showcause why they should

not be demoted. It was only after considering their reply that the order impugned has been passed. So the petitioners it is further pleaded have

been heard before passing the impugned order.

The contention of learned counsel appearing for the petitioners is that demotion is a major punishment and, therefore, unless an opportunity of

hearing was given, the same could not be imposed. Since no inquiry was held, the question of affording opportunity did not arise and as such the

order is not sustainable.

The contention of Mr. Anand appearing for the respondents is that right of hearing does not include right to hold an inquiry when evidence is not

to be recorded. Since Articles of charge were framed against the petitioners and their reply considered before imposing punishment no further

hearing was necessary.

The question involved is whether punishment of reduction to a lower rank could be imposed after considering the reply to the Articles of charge

or showcause notice. Ordinarily when the Article of charge is framed and the same is denied, the allegation can be proved only by holding an

inquiry. It is not disputed that petitioners have denied the allegations of dereliction of duty and this is evident from the reply to the chargesheet in

which it is stated that the Deodar Sleepers were not found loaded in the vehicles at the time the trucks crossed kunjwani Checkpost. This

explanation was, however, disbelieved by the Inquiry Officer. It was thus necessary for him to hold an inquiry to find out whether Deodar Sleepers

were loaded before the vehicles crossed the Kunjwani checkpost or thereafter. It was a question of fact to be proved by producing such evidence

as may be available with the Department. Since the allegations were denied, the holding of inquiry was mandatory. It is conceded by Mr. Anand

that no formal inquiry was held to prove the allegation. So the fact is that eventhough the Articles of charge were framed against the petitioners but

noinquiry was held when the allegation had been denied. The question, therefore, is whether the order of demotion can be sustained when no

inquiry was held Punishments which can be imposed on a government servant are defined in Rule 30 of the J&K Civil Service (Classification,

Control and Appeal) Rules, 1956. The reduction in rank is a major punishment. Under Rule 33 the punishment of reduction in rank can be

imposed only after the delinquent is afforded adequate opportunity of defending himself.

Since the petitioners have denied the charge of dereliction of duty, it was mandatory for the Disciplinary Authority to either appoint Inquiry

Officer or himself hold the inquiry. This course has not been followed. The punishment imposed, is therefore, illegal as it is based on no evidence.

In the circumstances these petitions are allowed and the order impugned dated 28.4.1999 passed by the Divisional Forest Officer are quashed.

The petitioners shall be restored the original posts from which they were demoted with all consequential benefits.