RAJESH KUMAR Vs. STATE OF J&K THROUGH COMMISSIONER

JUDGEMENT

(1.) PETITIONER has approached the Court to seek the quashing and setting aside of the order dated 10.11.2000 passed by respondent -2, whereby annual increment of the petitioner is stopped for a period of three months with effect from the date next falls due to him, to serve him as a corrective in future and period of unauthorized absence for 12 hours is treated as EL for one day in reinstating the petitioner into the service with immediate effect and leaving the suspension period to be decided separately after securing report from the L.O., DPL, Udhampur regarding his attendance, by issuance of a writ of certiorari also with a further command to the respondents to consider the petitioner for promotion to the next higher rank in issuance of a writ in the nature of mandamus. Petitioner is a Constable in the Police Department and was posted in Police Post, Mansar, in the year 2000. According to petitioner, a joint operation was launched in Mansar area on 7th May, 2000 and three foreign mercenaries were killed at Ludni Galla, Mansar and huge cache of arms/ammunition was recovered. The senior Police Officers of the Police Department appreciated the gallant and great effort of the team and cash award of Rs. 10,000 was given to the team. It is also stated that award amount was paid to Surdip Singh, Incharge, Police Post, Mansar. The petitioner alongwith others, who participated in the operation, persisted with their demand for a share in the cash award. This, however, irked the Incharge, Police Post, Surdip Singh, as he was not inclined to share the award money with the participants in the operation including the petitioner. It was on 23.5.2000, when a Selection Grade Constable Madan Lal under the influence of liquor started quarrelling with the petitioner. The said Madan Lal was medically examined, which confirmed that Madan Lal, Driver, had consumed liquor, but Surdip Singh, Sub -Inspector, however, is alleged to have made a report regarding the incident to his immediate Officer and the departmental enquiry was ordered. It was further stated that Abdul Qayoom Raina, Deputy Superintendent of Police, DAR, Udhampur, was appointed as the Inquiry Officer. The departmental enquiry was not conducted, however, in accordance with the rules, but punishment of censure came to be recommended by the Inquiry Officer. The disciplinary authority, however, did not agree with the recommendation of the Inquiry Officer and passed the impugned order, whereby annual increment of the petitioner for a period of three months was stopped and the alleged absence on 23.5.2000 was treated as earned leave, which became the subject matter of challenge in this writ petition.

(2.) THE respondents were put to notice and filed detailed objections in stating therein that, in fact, both petitioner and Madan Lal, under the influence of liquor when found quarrelling, Surdip Singh, Incharge, Police Post, Mansar, sent a docket for medical examination, the petitioner disappeared from the Police Post and avoided the medical examination. He entered the report in the daily diary and its extract sent to the Deputy Superintendent of Police, Udhampur. it is also stated that both the petitioner and Madan Lal were placed under suspension and enquiry was ordered to be conducted by Deputy Superintendent of Police, DAR Udhampur, appointed for the abode purpose. it is also stated that the enquiry was held in accordance with rules, in which the petitioner was afforded all opportunities to defend himself besides leading evidence. That the petitioner never asked for an enquiry report and which was not provided to him. The prejudice, if any , has to be pleaded and established by the petitioner, to have been caused to him by having not been provided with the enquiry report. It is also stated that the disciplinary authority was well within its right to disagree with the recommendation of the Inquiry Officer with regard to the punishment awarded. It was lastly submitted by the respondents that the writ petition is not maintainable, as the petition having been filed without availing alternative remedy of appeal/revision against the impugned order, under the provisions of Jammu and Kashmir Act and Rules framed thereunder, and the petitioner is not entitled to any relief claimed thereunder.

(3.) I have heard the rival contentions of the learned counsel appearing for the respective parties and also perused the material on record, meticulously.