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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
B.S. Walia, J.
Janki Nath and Others – Appellants
Versus
State and Others – Respondents
SWP No. 2226 of 2010 and M.P. No. 3149 of 2010
Decided On : 25-05-2016
Certiorari - Service Matter - Govt. Order No. 70 of 1993 - Summary Dismissal - Enquiry Report - Violation of Natural Justice
Fact of the Case:
The petitioners, ex-servicemen, were recruited as constables in the Police Department. Their status was changed, and they were paid a consolidated salary. They challenged the change in status, and an interim order was passed directing to keep the transfer order in abeyance. Despite this, a departmental enquiry was initiated, and the petitioners were disengaged from service.
Finding of the Court:
The court found that the petitioners were prejudiced as they were not supplied with a copy of the enquiry report and were not given an opportunity to file objections. The court set aside the impugned order and ordered the reinstatement of the petitioners with liberty to proceed with the enquiry.
Issues: Violation of natural justice, prejudice caused to the petitioners, failure to supply enquiry report, and denial of opportunity to file objections.
Ratio Decidendi: The court held that the denial of the supply of the enquiry report caused grave prejudice and avoidable injustice to the petitioners, violating the principles of natural justice. The court emphasized the importance of providing a reasonable opportunity for the delinquent to defend themselves effectively and efficaciously.
Final Decision: The impugned order was set aside, and the petitioners were ordered to be reinstated with liberty to proceed with the enquiry. The court left the decision on back-wages and other benefits to the Disciplinary Authority.
B.S. Walia, J.
1. Prayer is for the issuance of a writ of Certiorari for quashing Order No. 756 of 2010, dated 09.09.2010, Mandamus for directing the respondents to allow the petitioners to resume duty forthwith as also to release their salary, past and future as also to initiate a probe into the conduct of respondent No. 4 for non-compliance with the directions of this Court as also for harassing the petitioners. That as per averments in the writ petition, the petitioners as ex servicemen came to be recruited as constable's in the Police Department during the peak of militancy. Subsequently their status was changed and instead of the salary attached to the post of constable, they were paid consolidated salary of Rs. 1500/- per month which was enhanced from time to time and at the time of filing of the writ petition, they were being paid salary of Rs. 3000/- per month. It is also averred that the duty of the petitioners is the same as that of Constables in the police department.
2. Aggrieved against the change of status in service, the petitioners filed a writ petition before this Court, but this Court did not decide the status of the petitioners which compelled them to invoke the writ jurisdiction of the Hon'ble Supreme Court. However, the same was disposed of with a direction to the petitioners to agitate their grievance's before the High Court. Pursuant thereto, SWP No. 1271/2010 was instituted and vide order Annexure P-1 dated 20.05.2010, the respondents were directed to maintain the status of the petitioners as Constables by taking note of the contention that the status of the petitioners as defined in Govt. Order No. 70 of 1993, dated February 12, 1993 as constables had been changed to SPO. It is further averred that despite the order having been served upon the respondents, respondent No. 4, became very harsh and inimical to the petitioners and eventually, passed Order No. ST/TRF/10/25364-71, dated 30.07.2010 i.e. Annexure P-2 not in public interest but solely on account of the petitioners having filed petitions before the Court for redress of their grievances.
3. That on the petitioners challenging the order of transfer, Annexure P-2 dated 30.07.2010 by way of SWP No. 1942/2010 interim order Annexure P-3 dated 13.08.2010 was passed directing that till further orders, in case the petitioners had not reported at present place of posting, impugned transfer order be kept in abeyance.
4. That another grievance is that in furtherance of the inimical attitude harboured by respondent No. 4, Fard-ilzam i.e. Annexure P-4 was issued to the petitioners for not having maintained discipline by not acting upon the transfer order. The petitioners denied the charge leveled in the Fard-ilzam by submitting that vide Court order Annexure P-3, dated 13.08.2010, the order transferring the petitioners i.e. Annexure P-2 dated 30.07.2010 had been kept in abeyance by the Hon'ble High Court, therefore the question of compliance with the order of transfer did not arise.
5. That it is contended that the bias of respondent No. 4 is evident from the appointment of the Additional SP Bhaderwah as Enquiry Officer to conduct an enquiry against the petitioners. Pursuant to conduct of enquiry, the enquiry officer held the charges against the petitioners proved by holding that the delinquents had deliberately avoided performing duty by absenting unauthorisedly, besides, disobeying the orders of superiors and that the same amounted to grave misconduct. The Enquiry Officer also recommended that the delinquent's be disengaged from service.
6. That it is contended that the bias of respondent No. 4 was further evident from the fact that instead of obeying the order of this Court Annexure P-3 dated 13.08.2010, respondent No. 4 issued order Annexure P-6 dated 09.09.2010 passing order of termination of service of the petitioners pursuant to the departmental enquiry initiated by him against the petitioners whereas in view of the order of this Court Annexure P-3
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