Mr. Ali Mohammad Magrey, J. - Petitioner was terminated from service vide Order No. 120 of 2006 dated 01.08.2006, same was challenged by medium of SWP No. 1480/2008, decided on 18.03.2014, order of termination has been quashed. Respondents were given liberty to initiate enquiry and to conclude the same within a period of three months. In compliance whereof, petitioner is shown to have joined on 4th June, 2014, as is clear from the order dated 04.06.2014, issued by Senior Superintendent of Police, PTWS, Srinagar. Subsequent thereto, Enquiry officer has issued the Charge Sheet and finally has concluded the enquiry, based on which again order of termination impugned dated 23.06.2014 has been issued.

2. It is projected by the learned counsel for the petitioner that de hors the rules the entire process has been initiated in haste, jeopardizing the guaranteed rights of the petitioner. The enquiry has not been conducted in accordance with settled norms.

3. The petitioner is aggrieved of so called enquiry, charge sheet, second show cause notice dated 17.06.2014 and order of dismissal dated 23.06.2014 issued by respondent no. 2 on the grounds detailed out as under:

a) "That the perusal of the charge sheet, show cause notice as also the impugned order would, ex facie, suggest that the respondents have failed to adhere to rules and regulations to which the petitioner is subject to, namely, J&K Police Manual wherein a full-fledged mechanism is prescribed for conducting and holding of departmental enquiries and infliction of authorised departmental punishments. Rule 334 of the Police Manual provides that no police officer shall be departmentally punished otherwise than as prescribed in these rules. In terms of sub-rule (2) of Rule 334, dismissal (bar to re-employment in Government service) has been held to be a major punishments. Rule 337 envisages that dismissal shall be awarded only for the acts of misconduct, for example, fraud, dishonesty, corruption and all the offences involving moral disgrace as the cumulative effect of the continued misconduct proving incorrigibility and complete unfitness for police service. Rule 359 being pivotal of all fundamental importance in the controversy provide the procedure for holding of departmental inquiries. Perusal of the entire material referred to in the petition qua the issuance of charge sheet, show cause notice as also the impugned order read with rules in general and Rule 359 in particular would, ex-facie, suggest that the respondents, ironically, have conducted the so-called departmental enquiry before the issuance of charge sheet and then served a charge sheet upon the petitioner drawing conclusions enquiry therein the said charge sheet. The impugned so-called enquiry, charge sheet, show cause notice also the impugned order on this score alone is liable to be set aside.

b) That assuming though not admitting that the enquiry in question was conducted by the respondents No. 3 in line, pace and tune with the provisions of Police Manual yet the perusal of the order impugned would, ex-facie, demonstrate that the same has been issued mechanically without application of mind in breach and violation of rules and regulations occupying the field, in as much as in violation of legal, statutory and fundamental rights of the petitioner. Therefore, the so-called enquiry, charge sheet, show cause notice also the impugned order on this score alone is liable to be set aside.

c) That the impugned order has the effect of brushing aside the long service career of the petitioner which he has rendered in the respondent-department malafidely, arbitrarily and in a whimsical fashion. Assuming though not admitting that the petitioner has been unauthorisedly absent, same was only for a short duration which in the facts and circumstances of the case never warranted dismissal of service has snatched away his rights to livelihood of his person and the family is disproportionate to the allegation levelled in the impugned order. The impugned order on this score also is liable to be set aside.

d) That the impugned order is palpably illegal in as much as has the effect of violating the legal, statutory and fundamental rights of the petitioner guaranteed to him under the Constitution.

e) That the respondents in law required in the matter of service to treat the petitioner justly and fairly, more particularly when they sought in inflict and fairly, more particularly when they sought to inflict a major punishment upon him involving him into serious civil and penal consequences. The respondents have, in fact, discriminated against the petitioner by denying him equal protection of law and equal treatment in the matter of service. Under law, any action i.e. antithetic to the norms of fairness is unsustainable as being violative of Article 14 and 16 of the Constitution.

f) That the perusal of the aforesaid facts and circumstances would reveal that the entire process and exercise undertaken by the respondents beginning from the issuance of impugned order of dismissal has been undertaken illegally, unauthorisedly and in breach and violation of rules and regulation occupying the field, without competence and jurisdiction. The respondents, in fact, have arrogated unto themselves a power during the enquiry process which did not vest in them in terms of the rules governing and regulating service conditions of the petitioner. The respondents having directed themselves in a manner contrary to one envisaged under rules, as such, have acted illegally and in breach and violation of the legal, statutory and fundamental rights of the petitioner."

4. The petitioner has filed the writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K. It is alleged that the termination order passed on him is unconstitutional, illegal and without any legal force. The main ground to assail the order both in the writ petition as well as before this court during the arguments by learned counsel for the petitioner that the order impugned has been passed without conducting any enquiry as provided by Rules. It is alleged that Charge Sheet has been framed and issued but the Enquiry Officer had pre-determined to conclude the enquiry against the petitioner which is evident from the Charge Sheet and the relevant clauses of the Charge Sheet reflecting in such decision are extracted as below:

"xi) Whereas, you did not plead guilty to the summary of allegations, served upon you, vide no. Enq/ P case/4900, dated 04-06-2014.

xii) Whereas, during the course of enquiry, the copies of documents viz. signals/notices and press cuttings of notices served upon you, were procured and the documents so procured, substantiates your wilful absence beyond any shadow of doubt.

xiii) Whereas, during the course of enquiry, the statements of the witnesses were recorded in your presence, where you were given ample opportunity to cross examine the witnesses.

xiv) Whereas, from the perusal of the documents and the statements of witnesses it has been established that you abandoned your lawful duties and left your place of duty without any reason and rhyme and also without seeking prior permission from your superiors. Moreover, it also established that not only you indulged in gross acts of indiscipline, you also lack moral courage as your deny (knowingly, making false statements,) everything, even in the presence of insurmountable evidence, viz. pasting of notice at your residence, publication in local newspapers etc."

5. On notice, respondents have filed reply in which the contentions of petitioner have been vehemently denied. While submitting that the petitioner has been terminated from service without taking his plea before passing the termination order, submits that due procedure has been followed in the matter.

6. Heard learned counsel for the parties, perused the record and considered the matter.

7. Learned counsel for the petitioner submits that perusal of Charge sheet, show cause notice as also the impugned order would ex-facie suggest that the respondents have failed to adhere to the rules and regulations to which the petitioner is subjected to, namely J&K Police Manual wherein a full-fledged mechanism is prescribed for conducting and holding of departmental enquiries and infliction of authorised departmental punishments.

8. Rule 359 of J&K Police Manual, provides procedure to be followed in such enquiries. It provides:

"359 Procedure in Departmental Enquiries

- (1) The following procedure shall be followed in departmental enquiries:-

(a) The enquiry shall, whenever, possible be conducted by a gazette officer empowered to inflict a major punishment upon the accused officer. Any other gazetted officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (vide order No. 636-C, dated 27.6..1945) may be deputed to hold an inquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable the inquiry may be conducted by an Inspector. The final order, however, may by passed only be an officer empowered to inflict a major punishment upon the accused police officer.

(2) The officer conducting the inquiry shall summon the accused police officer before him and shall record and read out to him a statement summarising the alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded.

(3) If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forthwith to record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case. Whenever a serious default is reported and the preliminary enquiry is necessary before a definite charge can be framed, this is usually best done on the spot and might be carried out by the Sub-Inspector of the particular Police Station in the case of head constables and constables serving under him or by the Inspector of the circle in the case of Sub-Inspectors within his charge. At the same time it must be left to Superintendent of Police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable.

When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority competent to dismiss the officer and permission should be promptly granted if that authority agrees that there is prima-facie case for prosecution.

(4) If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusations as is available and necessary to support the charge. Whenever possible witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to cross-examine them. The officer conducting the enquiry is empowered however to bring on to the record the statement of any witness whose presence cannot in the opinion of such officer be produced without undue delay and expense or inconvenience if he consider such statement necessary and provide that it has been recorded and attested by a police officer not below the rank of Inspector or by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions which the enquiring officer may see fit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided.

(5) When the evidence in support of the allegations has been recorded, the enquiring officer shall:-

(a) If he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him, or recommend his discharge to the Superintendent or other officer who may be so empowered, or

(b) Proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.

(6) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time in no case exceeding 48 hours to prepare a list of such witnesses together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specified charge framed in which case he shall record the reason for his refusal. He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them the answer to which shall be recorded, provided that the enquiring office may cause to be recorded by any other officer not below the rank of Inspector the statement of any such witness whose presence cannot be secured without undue delay or inconvenience and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers except such as form part of the record of the confidential office of the Superintendent of Police as the enquiring officer deems fit. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.

(7) At the conclusion of the defence evidence or if the enquiring officer so directs at any earlier State, following the framing of a charge the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time not exceeding one week for its preparation but shall be bound to made an oral statement in answer to all questions which the enquiring officer may see fit to put to him arising out of the charge, the recorded evidence or his own writ ten statement.

(8) The enquiring officer shall then proceed to pass orders of acquittal or punishment if empowered to do so or to forward the case with his finding and recommendations to an officer having the necessary powers.

(9) Nothing in the foregoing rules shall debar a Superintendent of Police from making or causing to be made a preliminary investigation into the conduct of a suspected officer. Such an inquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry as ordered by the Superintendent of Police or other gazetted officer initiating the investigation but shall not cross-examine witnesses. The file of such a preliminary investigation shall form not part of the formal departmental record but may be used for the purposes of sub-rule 4 above.

(10) This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation.

(11) As laid down in Section 126 of the Constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed."

9. From this rule it is evident that the procedure for imposing major penalty involves:

(i) The delivery of a charge sheet;

(ii) Appointment of an enquiry officer;

(iii) Providing opportunity to the delinquent official to submit his defence and to be heard;

(iv) The enquiry where oral and documentary evidence is produced by both sides;

(v) The preparation of a report after the conclusion of the enquiry and forwarding of the same to the disciplinary authority (where the disciplinary authority is not itself the enquiring Authority);

(vi) Action on the enquiry report by the Disciplinary Authority;

(vii) Notice to the delinquent official to show cause on the penalty proposed;

(viii) Meaning of the order imposing penalty.

(ix) Communication of the orders.

In Jehangir Ahmad Mir v. State of J&K 1998 SLJ 134, this Court had the occasion to examine the ambit and scope of the provisions of Rule 337 and 359 of J&K Police Rules read with Section 126 of the Constitution of Jammu and Kashmir. The Court held:-

"It is a matter of common knowledge by now that no member of a State service or a person holding post under the State can be removed from service save otherwise in accordance with the requirements of Section 126(2) of the State Constitution read with Article 311 of the Indian Constitution which contemplates conveying the specific charges to the delinquent and providing him a reasonable and adequate opportunity of being heard and then his removal from service after an enquiry. Section 126 (2) of the State Constitution provides for an additional safeguard of a second show cause notice regarding the proposed punishment to be imposed."

10. This position is supplemented by the Police Rules, Rule 359 whereof prescribes procedure for conducting departmental enquiry against police personnel. Similarly Rule 336 lays emphasis on the suitability of punishment and cautions the Authority to be careful by taking in regard the character of the delinquent and his past service. Similarly Rule 337 places a constraint on the exercise of the power of dismissal and illustrates the cases though not exhaustively wherein this power was exercised, regard being had to the length of service of the offender and his claim to pension. All this pointed to the checks imposed by law for exercise of the power of dismissal against a delinquent police employee.

11. Under Rule 359, the enquiry officer is required to summon the delinquent officer before him and read out a statement summarising his alleged misconduct in such a way as to give him full notice of the circumstances in regard to which evidence was required to be recorded in the matter. Thereafter depending upon the denial, if any, made by the delinquent, the Enquiry officer was required to proceed to record such evidence as would be available and necessary to support the charge. The witnesses were required to be examined in presence of the delinquent and after this he was to be granted an opportunity to lead his defence evidence or to file his documentary evidence and to state his own answer to the charge. The enquiry officer was then to submit the recommendations or topics order of acquittal or punishment, if he was competent to do so.

12. Similarly in Gh. Mohammad v. State of J&K 1998 SLJ 273, the Court, while discussing Rule 359 held:-

"Rule 359 of Police Rules postulates twofold stages of the enquiry, one preliminary and another after framing the charge. As regards preliminary enquiry, the Enquiry officer is required to follow the procedure as laid down under sub-rules (1) to (5) of Rule 359 of Police Rules. Perusal of the charge sheet does not depict the names of the witnesses who have been examined during the preliminary enquiry, so much so it does not even depict as to whether he was ever summoned, recording and reading out a statement of summary of allegations is, therefore, ruled out. The charge sheet depicts that a communication was sent to the petitioner was provided an opportunity to question the witnesses which he did not, but it does not indicate that the basic requirement was observed which makes it obligatory upon the enquiry officer to summon the petitioner and read out the statement of summary of allegations to him and after observing the said requirement question, of recording evidence would arise. Having failed to follow the mandate of rule, the preliminary enquiry vitiates, for, same has not been in accordance with the mandate of Rule 359 of Police Rules and on this count the impugned order is liable to be set aside.

The procedure which the Enquiry Officer has to follow after framing the charge is envisaged in sub-rules 6 and 7 of Rule 359 of Police rules. Sub-rule 6 makes it obligatory upon the enquiry officer to provide an opportunity to the accused official to give a list of such witnesses whom the would like to produce in defence and record their statements. It further provides that the statements of such witnesses can be recorded even at the places of their availability, of course, for the reasons detailed in the said sub-rules. The said sub-rule further provides that even access to the files, excepting the confidential record, can also be permitted and the object is to allow sufficient opportunity of defence to the delinquent official/officer.

After receiving the evidence, oral and documentary, yet another opportunity is to be made available to the delinquent official at conclusion of the defence evidence under sub-rule 7 to make a statement in reply for the charge, so much so the delinquent official can seek permission to files a written statement in his defence after the conclusion of the evidence in defence."

13. While taking a disciplinary action against a police official/officer not only an enquiry is required to be held but there should be strict compliance to the manner and procedure laid down by Rule 359. Any deviation will render the penalty imposed as bad in law.

14. In Gh. Ahmad and Ors. v. Sr. Superintendent of Police 1988 JKLR 1367, though departmental enquiry was conducted into the alleged slackness in duty committed by the petitioners-who were police constables but the court found that the enquiry had not been conducted in accordance with the provisions of Rule 359 of J&K Police manual, the Court held the order impugned imposing penalty of dismissal upon the petitioners was unconstitutional, illegal and bad in law. The court observed:-

"Rule 359 is an all comprehensive provision and gives the complete procedure for holding of departmental inquiry against a police office. First of all the Enquiry officer has to summon the accused police officer before him and record his statement summarising the alleged mis-conduct in such a way as to give full notice of the circumstances, in regard to which evidence is to be recorded. This statement is just like the one as recorded Under Section 242 of the Cr. P.C, when the plea of the accused is to be recorded. If he pleads guilty, he is to be punished there and then by the competent authority. If he does not plead guilty, then the evidence of the department is to recorded against him and full opportunity of cross examination to be given. When the evidence in support of the allegations has been recorded, the enquiry officer shall discharge him if the allegations are not substantiated or recommend the same to the competent authority. If the charge stands substantiated, then he has to frame a formal charge in writing, explain them to him and calla upon him to answer them. Thereafter, the accused officer has to be required to state the defence witnesses, whom he wishes to call and may be given time to prepare a list of such witnesses. On production of such witnesses the Enquiry officer has to record their statements. At the conclusion of the defence evidence, the accused shall be required to state his own answers to the charge. He may be permitted to file a written statement. The Enquiry officer shall the proceed to pass orders of acquittal or punishment, if empowered to do so, or the forward the case with his findings and recommendations to an officer having the necessary powers.

28. The procedure mentioned above is to be followed in every departmental inquiry against a police officer, as it is mandatory in character. As this procedure has not been followed in the case in hand, it vitiates the whole proceedings before the Enquiring officer and also the proceedings taken by the S.S.P. The result is that the order impugned passed by the S. S. P, is unconstitutional, illegal and bad in law."

Rule 359 not only provides that the delinquent police official shall be given opportunity to meet the charge(s) against him but sub-rule (2) of the rule specifically provides such official has to be given a reasonable opportunity of showing cause orally and also in writing against the proposed penalty. It provides:-

(2) No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply:-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge;

(b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or

(c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity."

15. In Syed Hussain v. State of J&K and Ors. 1988 JKLR 1047, where a Head-constable had been removed from services, though on an enquiry but without a show cause notice to him against the proposed punishment, the court held in paras 10 and 11:

"10. From the reading of this rule petitioner was to be given an opportunity of showing cause against the proposed action against him. This court can be dispensed with if he was found guilty on a criminal charge which led to his conviction, or the officer competent to punish him could have recorded in writing that it was not reasonable to give the person an opportunity of showing cause or where it is not practise able for the security and interest of the state.

11. In the instant case petitioner was not convicted by a criminal court nor had the punishing authority recorded his reasons as to why he did not give show cause notice to him against the proposed punishment nor was it mentioned that it is not in the interest and the security of the state. Therefore, he was entitled to be given a show cause notice against the proposed punishment under Rule 359(11) (2) of the J&K Police Manual Vol. II. That has not been given. As such order of dismissal suffers from serious infirmity and cannot be sustained in the present form."

16. There can be no doubt that absence from duty without a proper permission or overstaying on leave without any valid and justified reason is the gravest type of misconduct particularly for a member of the disciplined force from whom strict adherence to the rules is expected. Earlier in State of Punjab v. Parkash Chand 1992 (1) SLR (P&H) High Court took the view that absence from duty was not the gravest type of misconduct but now the Apex Court has held that absence of a police constable from duty without leave was a grave charge. In State of U.P. v. Ashok Kumar Singh AIR 1996 SC 736 the Supreme Court did not appreciate the view of the High Court that absence of a police Official was not a grave charge and observed (at para 8):

"We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we were unable to appreciate the High Courts observation that his absence from duty would not amount to such a grave charge. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that the punishment does not commensurate with the gravity of the charge."

17. The Apex Court found that there was no justification for the High Court to interfere with the punishment of dismissal. Absence from duty for a police constable amounts to grave charge which may involve even the extreme penalty of dismissal/removal from service is settled now. Reference in this behalf may also be made to State of Punjab v. Bakshish Singh 1997 (4) SLR 590 , State of Punjab v. Constable Sarwan Singh 1996 (1) Supreme Today 636 and S.G. Chakraborty v. State of Tripura AIR 1989 SC 1321 .

18. Learned counsel for the petitioner in support of his contentions further referred to and relied upon, 1999 SLJ 354, titled Mohd. Muzaffar Shah v. Kamraz Rural Bank; 1999 SLJ 557, titled Bashir Ahmad Bihaqi v. State Road Transport Corp and 1999 SLJ 560, titled Gh. Ahmad Bhat v. State of J&K.

19. Perusal of the records reveal that the respondents have not followed the procedure and the Enquiry Officer had pre-determined to conclude the enquiry against the petitioner, therefore, action taken is de hors the rules.

20. In view of above discussions, I find that the penalty imposed upon the petitioner, cannot stand. The impugned orders dated 17.06.2014 and dismissal order dated 23.06.2014 are hereby quashed. However, the respondents are at liberty to initiate enquiry in the matter and conclude the same in terms of judgment passed in SWP No. 1480/2008, dated 18.03.2014 titled "Ajit Singh v. State and Anr."

Disposed of along with all connected MPs.

Final Result : Disposed Of