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2011 Supreme(J&K) 577
JAMMU & KASHMIR HIGH COURT
Hasnain Massodi, J.
Kunj Lal -Appellant
Versus
State of J&K & Ors. -Resopndent
SWP No. 1581/2008
Decided On : 15-12-2011
Mr. O. P. Thakur, Adv. for Petitioner.
Mr. Gagan Basotra, AAG for Respon#31;dents.
Procedural breaches, including the failure to provide an opportunity for cross-examination and the failure to furnish the enquiry report to the petitioner, can vitiate departmental enquiry proceedings and render the imposed punishment invalid.
Headnote:
J&K Police Act - Departmental Enquiry - Section 340, Rule 359 - The court quashed the orders imposing punishment on a police officer due to procedural breaches, including failure to provide an opportunity for cross-examination and failure to furnish the enquiry report to the officer, as required by the J&K Police Rules.
Fact of the Case:
The petitioner, a police officer, was subjected to a departmental enquiry and subsequently imposed with a major punishment of stoppage of annual increment for a year. The petitioner challenged the orders on the grounds of procedural breaches and non-adherence to the J&K Police Act and Rules.
Finding of the Court:
The court found that the departmental enquiry did not adhere to the prescribed procedure, including the failure to provide an opportunity for cross-examination and the failure to furnish the enquiry report to the petitioner. These breaches vitiated the proceedings and the outcome.
Issues: The issues revolved around the procedural irregularities in the departmental enquiry, non-adherence to the J&K Police Act and Rules, and the failure to provide the petitioner with a fair opportunity to respond to the proposed punishment.
Ratio Decidendi: The court held that the procedural breaches, including the failure to provide an opportunity for cross-examination and the failure to furnish the enquiry report to the petitioner, rendered the orders imposing punishment invalid.
Final Decision: The court allowed the writ petition and quashed the orders imposing punishment on the petitioner. As a result, the withheld increment was directed to be released unless a fresh enquiry was proposed in accordance with the rules.
2. The petitioner on the strength of averments made in the petition seeks following reliefs:-
i. Writ of Certiorari quashing or#31;der No. 121 of 2008 dated 09.07.2008 and Order No. 146 of 2008 dated 17.9.2008.
ii. Writ of Mandamus commanding the respondents to release incre#31;ment in favour of the petitioner from the date it has become due.
3. The petition has been filed against the following factual backdrops:
4. The petitioner is holding the post of Selection Grade Constable on permanent basis in Jammu and Kash#31;mir Police Department. On 30th Janu#31;ary, 2008 was posted as Moharir Con#31;stable (Munshi) in Police Post, Tikri. On the aforesaid date Shri Alok Puri, Deputy Inspector General of Police, Udhampur - Reasi Range - Respondent no.3 herein made a surprise visit to Police Post, Tikri and allegedly found the petitioner absent from duty. On examining the record of the police post, the petitioner was allegedly found to have left both sides of page 97 of Daily Register (Roznamcha) blank and not have got Daily Register (Roznamcha) signed by Incharge Police Post w.e.f. 03.12.2007 i.e. the date the Daily Register (Roznamcha) was opened. The omis#31;sions and commissions alleged to have been committed by the petitioner, re#31;sulted in a departmental enquiry con#31;ducted by Additional Superintendent of Police, Udhampur. The petitioner was charge sheeted on 02.04.2008 and re#31;ply 'to the charge was filed on 05.05.2008. The petitioner's Enquiry Officer not satisfied with the reply sub#31;mitted by the delinquent official, held the charged to have been proved and vide Letter No.877 dated 03.03.2008 submitted his enquiry report recom#31;mending punishment of Censure against the petitioner. However, on go#31;ing through the enquiry report, a Denovo enquiry was ordered. The Enquiry Of#31;ficer served a fresh charge sheet on the petitioner and after recording evidence submitted his report vide No.2960 dated 02.06.2008. However, Enquiry Officer once again "keeping in view the length of service with neat and clean record and future career" recommended a lenient view to be taken against the pe#31;titioner and suggested punishment of Censure to be imposed upon the peti#31;tioner. The Deputy Inspector General of Police - respondent No.3 herein on receipt of the enquiry report issued show cause notice to the petitioner vide Letter No. Estt/3581-UR dated 11.06.2008, requiring him to show cause as to why the punishment sug#31;gested by the Enquiry Officer may not be enhanced. The respondent no.3 ob#31;viously did not agree with the award of minor punishment as recommended by the Enquiry Officer and proposed to im#31;pose punishment more than that sug#31;gested in the enquiry report. The re#31;spondent no.3 after going through the response to the show cause notice ar#31;rived at the conclusion that in view of the mis-conduct proved against the pe#31;titioner, he deserved major punish#31;ment, and accordingly, directed stop#31;page of annual increment for a period of one year.
5. The petitioner filed a review pe#31;tition against the order dated 09.07.2008 whereby major punishment was imposed on the petitioner. The re#31;view petition did not find favour with the reviewing authority - respondent no.3. The respondent no.3 observing that no new facts and circumstances of the case warranting reconsideration of the im#31;pugned order were produced and that there was no error or mistake appar#31;ent on the face of the record, rejected the review petition vide order No. Estt/08/5201-UR dated 17.09.2008.
6. The petitioner assails the or#31;ders dated 09.07.2008 and 17.09.2008 in the present petition on the grounds detailed in the petition. It is pleaded that enquiry was conducted by the Enquiry Officer unmindful of mandate of J&K Police Act and Rules made thereunder and that because of non adherence to the
