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JAMMU & KASHMIR HIGH COURT
Hasnain Massoodi, J.
Abdul Sattar Lone -Appellant
Versus
State of J&K & Ors. -Resopndent
SWP No. 889/2007, LA. No. 1543/2007
Decided On : 24-10-2011
J&K Police Rules 1960 - Rule 359 lays down the procedure to be followed in departmental enquiries. The procedure includes recording statements, summoning the delinquent officer, framing charges, giving an opportunity to the delinquent officer to respond to the charges, allowing the delinquent officer to call defense witnesses, and providing an opportunity to show cause against the proposed punishment. Rule 334(2) provides for dismissal from service as a punishment for misconduct.
Fact of the Case:
The petitioner, a Head Constable/Cashier, was arrested and placed under suspension for alleged embezzlement. The petitioner challenged the departmental proceedings and remained absent from duty. The petitioner was dismissed from service during the pendency of the case. The petitioner challenged the dismissal order on various grounds.
Finding of the Court:
The court examined the procedure to be followed in departmental enquiries as per J&K Police Rules 1960. It found that the procedure was not meticulously followed in this case. The court also found that the dismissal order violated the petitioner's right to show cause against the proposed punishment. The court further noted that the inquiry was conducted while a writ petition and a Letters Patent Appeal were pending, which raised doubts about the validity of the inquiry.
Ratio Decidendi: The court held that the dismissal order was invalid due to procedural irregularities and violation of the petitioner's rights. The court set aside the dismissal order and allowed the petitioner to resume duty, subject to the outcome of any ongoing or future inquiries. The respondents were given the liberty to initiate a fresh inquiry in accordance with the rules.
Result: The writ petition is allowed and the dismissal order is set aside. The petitioner is allowed to resume duty, subject to any ongoing or future inquiries. The respondents are permitted to initiate a fresh inquiry if necessary.
2. The allegation leveled against the petitioner was that he while posted as Head Constable/Cashier in 8th Battalion JKAP fraudulently prefixed/ added digit 9 to an arrear bill in the amount of Rs. 3, 51, 563 and on the strength of forged document with-drew Rs. 93, 51, 563 from the State Treasury and misappropriated an amount of Rs. 90 lacs on 10lh March 2006.
3. Summary of allegation was served on the petitioner by Adjutant JKAP 8th Bn. Channi Himmat, Jammu—respondent No. 8 herein. The petitioner pleaded not guilty. Resultantly, the petitioner was served with the charge sheet on 11th March, 2006. Though the petitioner submitted his reply to the charge sheet, yet he questioned departmental proceedings in SWP No. 1058/ 2006 (High Court Wing, Jammu).
4. The petitioner's case was that as sum and substance of charge sheet was same as the accusation in case FIR No. 46/2005 Police Station Crime Branch, Under Section 409 RPC, the departmental proceedings were not to be taken ahead till the criminal trial was concluded. The proceedings wer stayed vide order dated 7th June, 200f till next date of hearing.
5. The respondent No. 8 vide notice No. Adjit/AP-8th/2006/8268-69 dated 17.04.2006 asked the petitioner to report at B. Headquarters and reminded the petitioner that in the event of his failure to report to the Bn., action under law would be taken against him. The petitioner did not obey the notice and continued to stay away from his office. The respondent No. 8 accordingly on 28th June, 2006, issued a summary of allegations alleging that the petitioner by misuse of Rs. 90 lacs and also remained unauthorizedly absent from Battalion Headquarter. The petitioner contested the summary of allegations on the grounds detailed in his reply. The respondents nonetheless decided to hold enquiry and vide order No. CS/8th/06/ 15488-90 dated 8th July, 2006 Appointed respondent No. 8 as an enquiry officer. The order dated 08.07.2007 was followed by fresh summary of allegations. The allegations now were restricted to "unauthorized absence" obviously for the reason that enquiry as regards alleged embezzlement was stayed in SWP No. 1058/ 2006. The petitioner was asked to give his response to the summary of allegations. The summary of allegations allegedly was not served on the petitioner in person but its copy pasted on the door of his residence. The summary of allegations was followed by formal charge sheet dated 11th July, 2006. The respondents on 4th August, 2006 and thereafter on 11th August, 2006, issued notices to the petitioner to respond to the summary of allegations in affirmative or negative and also informed that in the event response was not so filed action warranted under rules would be taken against the petitioner.
6. The petitioner approached this Court with a writ petition registered as SWP No. 1163/2006 questioning competence of respondent No. 8 to ask him to attend the office. The Writ Court on 31st August, 2006 directed notice asking the petitioner to attend office/Bn. Headquarters, to remain in abeyance. The writ petition was dismissed on 18.04.2007. The Writ Court was of the opinion that the petitioner while under suspension, though not required to attend the official work was nonetheless under duty to remain available in the office to facilitate enquiry. The Writ Court judgment dated 18.04.2007 was questioned in a Letters Patent Appeal.
7. However, while Letters Patent Appeal was pending and the Deputy Inspector General Channi Himmat, Jammu-respo
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