IMPORTANT POINT : : (1) To conduct departmental enquiry against a Government servant is not a casual exercise – It cannot be conducted with a closed mind – Enquiry officer has to be unbiased.
(2) Evidence recorded in preliminary enquiry cannot be used in regular departmental enquiry,

JUDGMENT

M.A. Chowdhary, J. – Petitioner, through the medium of instant writ petition, seeks quashment of the Order No.538-B of 2009 dated 28.07.2009 (for short ‘impugned order’) issued by the Secretary J&K State Board of School Education Srinagar (respondent No.2 herein), whereby the petitioner was debarred from any further promotion for a period of two years with effect from the date he becomes eligible for the next promotion.

2. Briefly stated facts of the case are that the petitioner, who was working as Senior Assistant in the J&K State Board of School Education, had been served the show cause notice dated 24.04.2009 for accepting the examination application form of an ineligible candidate for secondary school examination Session-2008 Bi-annual. The said notice was replied by the petitioner, wherein it was admitted that he had accepted the admission form without assessing the previous attempts made by the said candidate. However, respondents, after examining the reply to the show cause notice, found the same not satisfactory and passed the impugned order, whereby the petitioner was awarded the punishment debarring him from further promotion for a period of two years, compelling the petitioner to file the instant petition.

3. It would be worth to mention here that earlier this Court, vide order dated 26.08.2009, dismissed the said petition. An appeal bearing LPA No.188/2009 came to be filed against the said order of dismissal dated 26.08.2009. The Division Bench after hearing the said LPA, set aside the order dated 26.08.2009 passed by the Single Bench, vide its order dated 16.04.2013, remanding back the matter to the Writ Court with the request to decide the writ petition after hearing both the parties. Accordingly, the Writ Court heard the matter afresh and admitted the Writ Petition to hearing.

4. Thereafter, in terms of the order dated 24.06.2020, the Writ Court while observing that the matter falls within the definition of ‘service matters’ as contained in Section 3(q) of the Administrative Tribunals Act, 1985 which had become applicable to the Union Territories of Jammu and Kashmir and Ladakh after coming into force of the Jammu and Kashmir Re-Organization Act, 2019 with effect from 31.10.2019, and Section 29 of the said Act provides for transfer of the pending cases of such nature to the Central Administrative Tribunal, transferred the matter to the Central Administrative Tribunal Jammu Bench. However, the learned Tribunal sent back the matter with an observation that the Tribunal has no jurisdiction over the Jammu and Kashmir Board of School Education.

5. Respondents have filed their counter affidavit, wherein it is stated that the petitioner, while posted at Branch Office Kulgam in the year 2008 allowed one Mohammad Yaseen Magray to fill the admission/examination form of SSE (10th Class) Session-2008 Bi- Annual at late stage and entertained it notwithstanding the fact that the said candidate had already passed the SSE in the year 2003 under Roll No.610509. The form of the said candidate was accepted by the petitioner without checking the previous record. Respondents constituted a Fact Finding Committee to probe and fix the responsibility of the erring officer/official. The Committee held the said candidate guilty of unfair means and also held the petitioner responsible for the said irregularity. Respondents further stated that the Committee, so constituted, had considered the matter and decided to take a lenient view and only withheld the promotion of the petitioner for two years. It is further stated that the petitioner was given an opportunity of being heard during the course of probe, also was served the show cause notice, to which he had replied and the same was considered by the respondents but was found not convincing. Respondents in their counter affidavit had stated that none of the rights of the petitioner have been violated. The punishment imposed on the petitioner was only for dereliction of his official