Non-compliance with J&K Police Rules 349 (District Magistrate reference) and 359 (enquiry procedure) violates natural justice, rendering police constables' dismissal orders null; fresh enquiry permitted without backwages.

ORDER 

M.S.Latif, Member (Judl.) :-

Instant TA/SWP was initially filed before the Hon’ble High Court of Jammu and Kashmir where the case was admitted for hearing on 18.08.2017. Subsequently, the case came to be transferred to this Bench of the Tribunal vide Hon’ble High Court’s order dated 01.12.2020 and it is registered as Transferred Application (TA) No. 4525 of 2021. Petitioners herein have filed this petition praying for following reliefs–

“(a) Issue a Writ of Certiorari or any other appropriate writ, order or directions, for quashment of order of Dismissal bearing No. 339 of 2016 dated 01.11.2016 passed by Respondent No.5 by virtue of which the petitioners have been dismissed from the services of the respondent department.

(b) Issue a writ of Certiorari or any other appropriate writ, order or directions, for quashment of order No.66 of 2017 dated 02.02.2017 passed by Respondent no.4 by virtue of which the Appeal filed by the petitioners have been rejected.

(c) Issue a writ of Mandamus commanding the respondents to reinstate the petitioners against the Posts held by them before the order impugned came to be issued.

(d) Issue a writ of Mandamus commanding the respondents to provide all the consequential service benefits to the Petitioners consequent upon their reinstatement against the posts held by them

(e) Any other writ, order or direction which this Hon’ble Court may deem fit and proper also be issued in favour of the petitioners and against the Respondents.”

2. Case of the petitioners in nutshell, as stated in the TA, is as under:-

2.1 Petitioners were substantively holding the posts of Constables in the J&K Police and were deployed by the respondent department on guard duties at Residential Guard of Shri Nazir Ahmad Laway, Hon’ble Member Parliament Rajya Sabha.

2.2 On 31.08.2016 an unruly mob of about 40000 people attacked the residential house of above said Member Parliament with petrol bombs, stones and lathies resulting in damage to the property. The petitioners performing their duties with vigilance tried to protect life and property of Member Parliament but because of attack by said violent unruly mob the petitioners received serious injuries and taking advantage of the injuries of the petitioner, the unruly mob succeeded in burning the Guard room and also managed to snatch and decamp with their Service Rifles along with the ammunition, but the petitioner while performing their duties saved the life and property of Member Parliament. They retaliated the attack on part of the unruly mob with zeal and courage.

2.3 In connection with the aforesaid incident, an FIR bearing No. 199/2016 of Police Station Kulgam came to be registered under Sections 147, 148, 149, 336, 427, 436, 392, 307 RPC and 13 ULA At, 3PSS Act, 3 PEPO and the investigation was set into motion.

2.4 The petitioners were placed under suspension in terms of order no. 254 dated 01.09.2016 and a departmental enquiry for enquiring into the conduct of the petitioners’ duties on the said date was ordered for. The Dy. Superintendent of Police, District-Kulgam (respondent no.6) was entrusted to enquiry with respect to the conduct of the petitioners’ services on the day of the incident.

2.5 The Enquiry Officer (respondent no.6) served upon the petitioner a detailed charge-sheet to which the petitioner submitted a detailed reply pleading not guilty and replied to the entire questionnaire in terms of the charge-sheet served upon them. The Enquiry Officer, however, not feeling satisfied with the reply of the petitioners, submitted his findings t