PER DR. SUMEET JERATH, MEMER (A):

1. Since the instant three TAs pose identical questions of facts and law, hence the same were heard analogously and decided by the present common order.

2. The instant T.As. have been filed by the Petitioners Shri Hilal Ahmad Dandroo; Shri Ghulam Mohammad Ganaie and Shri Ashaq Hussain respectively who were appointed as constables in J & K Police. These three Petitioners along with another constable Shri Syed Naveed Mushtaq were assigned duty as guards of FCI Godown at Chandipora Budgam and allotted ammunitions and SLR rifles. All the four constables were stationed in one room where they used to keep their ammunition and SLR rifles in safe custody and all used to rest there after duty hours. One of the constables viz. Shri Syed Naveed Mushtaq stole all ammunition and SLR rifles in absence of the three Petitioners; deserted and joined the militants. Thereafter, inquiry was conducted by the Sub. Divisional Police Officer (Respondent No.7) who recommended dismissal from service for all the three Petitioners. Based on the above inquiry report, the Disciplinary Authority (Superintendent of Police, District Budgam) passed order of dismissal from service for all the three petitioners. The penalty of dismissal of service was upheld by the Appellate Authority (Dy. Inspector General of Police, CKR, Srinagar). The said dismissal order along with enquiry and rejection of appeal is under challenge by the petitioners in the above mentioned T.As inter alia seeking the following relief(s):

“a) Writ of Certiorari for quashing the order of Dismissal of Petitioner from service vide order No.655 of 2017 dated 10.11.2017 passed by respondent No.6.

b) Writ of certiorari for quashing inquiry proceedings conducted by Enquiry Officer respondent No.7 of this petition along with its finding submitted vide No.SDPO/MGM/E4/2017/2131 dated 13.06.2017.

c) Further writ of Certiorari may be issued whereby order passed in an appeal filed by petitioner before respondent No.4 may be quashed.

d) Writ of mandamus commanding the respondents to treat the petitioner in service without any break,

e) Writ of Mandamus may be issued directing the respondents to release the salary of the petitioner as if the petitioner has not been dismissed.

f) Writ of mandamus may be issued commanding respondents consider the petitioner for promotion or Any other writ or direction may be issued in favour of petitioner as this Hon’ble Court may deem fit and proper.

3. The facts of the case are that the petitioners were duly selected and appointed as constables in J&K Police. Thereafter, the petitioners were posted at different places. Later the Petitioners were together deputed on Guard duty to FCI Godown Chandipora, Budgam.

4. The fourth Constable Shri Syed Naveed Mushtaq was on duty and in absence of the three Petitioners forcibly broke open the locks of the Trunk and stole the Guns and all ammunition. Thereafter, the Petitioners lodged a report to their immediate officer who placed the Petitioners on suspension. They were subsequently arrested. The Sub Divisional Police Officer (SDPO) (Respondent No.7) was appointed as Inquiry Officer. Thereafter, the Petitioners were served charge sheets by the SDPO. Thereafter, the SDPO started an inquiry and submitted the inquiry report vide SDPO/Mgm/E-4/2017/2131 dated 13.06.2017 (AnnexureP/C). After denial of charge, the Senior Superintendent of Police District Budgam(Respondent No.5) issued show cause notice dated 26.08.2017 (Annexure-P/D) to file reply within 07 days. The Petitioners filed reply to show cause notice in detail but were not considered by the respondents who passed the order of dismissal vide order dated 10.11.2017 (Annexure-P/F). Thereafter, the Petitioners filed appeal and the said appeal was rejected vide order dated 11.06.2018 (Annexure-P/H).

5. The learned counsel for the Petitioners submitted that the Petitioners were aggrieved by the procedure adopted in the preliminary inquiry conducted and the charge sheet issued by the Respondent No.7; the show cause notice for dismissal issued by Respondent No.6 and the order of dismissal by Respondent No.4. It was submitted that Jammu and Kashmir Police Manual prescribes the procedure under Rule 359 of Police Rules mentioned as to how the departmental inquiry should be conducted, which had not been followed by the SDPO (Respondent No.7). In departmental proceedings if the allegation of unauthorized absence from duty is made, the Disciplinary Authority was required to prove that the absence was wilful. This aspect had not been considered by the Inquiry Officer (I.O.) as such the order based on such inquiry was bad in law and ought to be set aside. It was further submitted that dismissal order passed by the SDPO(Respondent No.7) was against Rule 337 of Jammu and Kashmir Police Manual which provides that dismissal order can only be passed when a police officer is found to have committed fraud, dishonesty, corruption and in all offenses involving moral disgrace. The Petitioners were not provided copies of the inquiry report and such act of Respondents amounted to denial of reasonable opportunity of being heard. Hence the orders were bad in law and ought to be quashed.

6. It was further submitted that law is well settled by Hon’ble Supreme Court in Krushnakant B. Parmar vs. Union Of India & Another reported in 2012(2) SLT 141 of 144 that in departmental proceedings, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence was wilful and in absence of such finding, the absence would not amount to misconduct. Being aggrieved, the Petitioners had now filed the instant T.As with the prayer as mentioned above.

7. The learned counsel of the Respondents by filing preliminary objection vehemently opposed the claim of the Petitioners and stated that the Petitioners by their own pleadings had admitted that they had not discharged their duties as is expected of a conscientious, devoted and dedicated police official. It was submitted that the department had entrusted them with arms and ammunition to protect the same and also in the given situation ought to put them to proper and legitimate use so as to secure the life and the property of the State. The arms and ammunition allotted to the Petitioners were obviously for the purpose of guarding the FCI Godown from the elements who were inimical to the property of the State. However, instead of doing the solemn duty of protecting the interests of the State the delinquent officials far from doing their duty, remained absent and allowed the arms and ammunition to be taken away by the deserter constable. This conduct on the part of the Petitioners depicted extreme form of abdication of duty for which no other punishment was appropriate except the one which had been imposed upon them.

8. The Petitioners were placed under suspension for their sheer negligence, carelessness and dereliction of legitimate duties which was confirmed vide DPO, Budgam Order dated 20.05.2017 and departmental inquiry was ordered to be conducted. In the course of the inquiry, summary of allegations were served upon the petitioners individually in terms of Police Rule 359(2) on 25.05.2017 except for deserted constable Shri Syed Naveed Mushtaq. The Petitioners, did not plead “guilty”. Accordingly, in terms of Police Rule 359(4), oral as well as documentary evidence against the Petitioners was recorded from the witnesses in presence of the Petitioners who were provided ample opportunity to cross examine the witnesses. After conducting the inquiry on the basis of the evidence on record it was proved beyond any shadow of doubt that the delinquent officials were guilty of negligence, irresponsible behaviour and callous attitude which directly and indirectly contributed towards the weakening of the guard, providing ample opportunity to deserted constable Shri Syed Naveed Mushtaq to flee and decamp with arms/ammunitions from the guard post. The petitioners were thus held guilty of grave misconduct on account of their sheer negligence, carelessness, lack of due care and caution in respect of arms and ammunitions so issued to them as they left the guard post at the mercy of events, thus providing ample opportunity to the deserted constable Shri Syed Naveed Mushtaq to flee along with the arms and ammunition. He had joined the militancy rank and file; and the stolen arms and ammunition have fallen into the hands of antinational elements who are waging war against the State. It is as such the Inquiry Officer recommended that the Petitioners be dismissed from the service of Police Department with immediate effect.

9. It was further submitted that the order of dismissal had been passed by the authority having powers vested upon him and the said order had been passed strictly in accordance with the rules. The inquiry conducted by the Inquiry Officer had given ample opportunity and sufficient chance to the Petitioners to establish their innocence in the matter. The entire onus of proof was on the Petitioners to convince the Inquiry Officer about their innocence which they could not establish because their “unauthorised absence from duty” was not due to any compelling circumstances but wilful and they had consciously not taken appropriate measures to protect arms and ammunition allotted to them. The inquiry had been conducted as per the procedure as envisaged under Rule 359 of J&K Police Manual. The facts which unfolded during the inquiry glaringly pointed out that the Petitioners were so callous towards the discharge of their duties that the deserter constable could easily walk away with the weapons allotted to the Petitioners. The inquiry did not leave any room for the Inquiry Officer but to recommend the punishment which was ultimately imposed upon the Petitioners.

10. Heard the learned counsel of both the sides; perused the relevant documents and the judgment of the Hon’ble Supreme Court in the case of Krushnakant B. Parmar vs. Union Of India & Another (15.02.2012) quoted by the counsel of the Petitioners. The judgment inter alia states as under :-

“16. The question whether ‘unauthorised absence form duty’ amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful.

18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.

19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.”

11. However, the facts and circumstances of the extant T.As are clearly different and distinguishable from the facts and circumstances mentioned in the Hon’ble Supreme Court judgment above. There were no compelling or extenuating circumstances like illness, accident, hospitalization, etc., that all the three Petitioners had to leave their guard duty at the same time leaving their arms and ammunition behind in the sole custody of Constable Shri Syed Naveed Mushtaq who subsequently decamped with all arms and ammunition and deserted. In fact not only their absence was unauthorized and willful but also gives a strong scent of a well hatched conspiracy to remain absent from their guard duty and thereby give a golden opportunity to the fourth Constable - Shri Syed Naveed Mushtaq to decamp and desert.

12. The inquiry was conducted as per the procedure prescribed under Rule 359 of the Jammu and Kashmir Police Mannual. In the departmental proceedings the charge of unauthorized and willful absence was proved. The dismissal order is not against Rule 337 of Jammu and Kashmir Police Manual as the gravity of this offence is even greater than fraud, dishonesty, corruption and moral turpitude. All the three Petitioners were given copies of the inquiry report and reasonable opportunity of being heard. Nowhere it has been observed that the inquiry was conducted by violating the principles of natural justice.

13. The gravity of this misconduct nay height of irresponsibility – being unauthorisedly and willfully absent and leaving the custody of arms and ammunition to a colleague is so grave that “dismissal from service” is the right penalty recommended by the Inquiry Officer; awarded by the Disciplinary Authority and upheld by the Appellate Authority. It fully stands up to the test of “Principle of Proportionality” –penalty awarded is commensurate with the gravity of the changes; that there were no mitigating circumstances that could be considered to award a lesser penalty. Dismissal from service is not only the prudent penalty awarded to all the three Petitioners but also an exemplary punishment that would deter other constables and Officers of J & K Police from becoming careless, negligent and derelict in the discharge of their duties in future.

14. In the light of the above, we are of the considered opinion that the balance of convenience lies with the Respondents. All the three T.As deserve to be dismissed being devoid of merit and are accordingly dismissed with no order as to costs.