ALAM DIN Vs. STATE

JUDGEMENT

(1.) The facts in these two petitions are similar, therefore, these shall stand disposed of by this common judgment. The facts in brief are taken from SWP No. 248/2008.

(2.) This appears to be a case of fence eating the field. The petitioner was working as Head Constable and assigned the duty as Motor Cycles rider in the year 2006 in the main office of JKAP 4th Bn for daily official dak receiving/distributing. In view of requirement of his service, he was searched in the unit premises on 26.04.2006, but was not found and accordingly, marked absent in the Daily Diary of JKAP 4th Bn. Telephonic information was received by the then DIG (AP) Jammu from SP South Jammu and SDPO Gandhi Nagar, Jammu that petitioner has been arrested by Naka Party, Kunjwani on 26.04.2006 alongwith another Head Constable Shah Manzoor (writ petitioner in SWP No. 249/2008) for carrying liquor in Vehicle (Tata Soft-407) bearing No. 9120-JK02L which was seized/recovered and a case was registered against the petitioner vide FIR No. 38/2006 for the allegations of having committed offence under Sections 168 RPC, 48 Excise Act and 30 of Police Act on the same date i.e. 26.4.2006. He was placed under suspension by the DIG (AP) Jammu vide AROJ Order No. 114 of 2006 dated 26.04.2006. The petitioner was arrested and subsequently granted bail, but reported for the duty after an unauthorized absence of three days. In the meantime, the petitioner was transferred to IRP 5th Bn vide order dated 13.06.2006. The DIG (AP) Jammu vide order dated 17.07.2011 directed Commandant JKAP 4th Bn Jammu to conduct departmental enquiry against both the delinquent officials. Enquiry officer reverted back the case to the authority concerned on the plea that a criminal case is pending against him before the criminal court. Thereafter, another officer was directed to conduct the departmental enquiry against the petitioner by observing that there is no bar in conducting departmental enquiry against him during tendency of criminal case. On this, departmental enquiry was initiated against the petitioner. The enquiry officer made recommendations vide letter dated 8.10.2007 recommending therein that annual increments of the delinquent official be forfeited for a period two years and period of unauthorized absence i.e. w.e.f. 21.11.2006 to 10.09.2007 be treated as Dies-non and the period w.e.f. 11.09.2007 onwards be treated as on duty and he be reinstated into service till outcome of pending court verdict.

(3.) DIG Armed Range- Jammu did not agree with the recommendations made by the Enquiry Officer and issued final Show Cause Notice to the petitioner, wherein he was asked to explain his position as to why he be not removed from service. It is, this Show Cause Notice, which is called in question by the petitioner in the writ petition on the principal ground that criminal case, on same facts is pending adjudication before the trial court, so simultaneously departmental enquiry cannot be held. The petitioner accordingly prayed for issuance of writ of certiorari seeking quashment of Show Cause Notice dated 27.12.2007, alongwith notice dated 12.2.2008 and also for quashing the findings of enquiry officer dated 26.11.2007. Communication dated 12.2.2008 shows that report of the Enquiry Officer along with relevant material has been communicated to the petitioner so as to enable them to reply the final show cause notice.