FALAIL SINGH Vs. STATE

JUDGEMENT

(1.) PETITIONER was enrolled as Constable in J&K Police Department and allotted No. 156/PTC. Subsequently, he was promoted as Selection Grade Constable on 14.5.1986 and thereafter as Head Constable in June 1997. In the year 1989 the petitioner was posted and attached with Sher -I -Kashmir Police Training College, Udhampur (PTC Udhampur for short). According to the petitioner, a case was registered against him by Vigilance Organisation under FIR No. 67 of 1984 on a complaint lodged by one Ghulam Qadir Sofi. The petitioner had to attend the court of Anti -Corruption at Srinagar every month when the date was fixed and on account of this he could not attend the duties. Order No. 352 of 1989 dated 12.6.1989 came to be issued by which increment for three months of the petitioner came to be stopped. Thereafter Order No. 606 of 1989 dated 16.9.1989 came to be issued by the respondents, whereby, increment of the petitioner was stopped for a period of one year. Further, order No. 158 AP (O) dated 18.12.1989 came to be issued by the respondents whereby proceedings were ordered to be initiated against the petitioner. The increment of the petitioner for further two years was forfeited vide Order No. 117 of 1990 dated 20.2.1990. Again order No. 144 of 1990 dated 8.3.1990 was passed by the respondents by virtue of which Censure was awarded to the petitioner and the period of overstay of 9 days was treated as dies -non. Further plea of the petitioner is that every time when he had to go on leave to attend the court at Srinagar, his leave application was not considered by the respondents. The representations of the petitioner, narrating the facts in detail, including one that his son remained sick and being only male member in the family, he had to look after the child also, a reason for his overstay, did not merit acceptance. His further submission is that, punishments awarded are likely to affect his future and, as such, he has approached this Court for quashment of aforesaid orders, by invoking jurisdiction of this Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K State, for issuance of appropriate writ or direction in this behalf.

(2.) CHALLENGE to the impugned orders has been made by the petitioner on the grounds that respondents have stopped the increments of the petitioner without conducting any enquiry. No opportunity of hearing has been afforded to the petitioner before passing the impugned orders, which shows malafide intention of the respondents. The representations, filed by the petitioner, giving cogent reasons for his overstay, have not been considered. The petitioner has further pleaded violation of principles of natural justice in awarding the punishments, without proper enquiry and giving him opportunity to cross examine the witnesses.

(3.) ON the other hand, respondents in their detailed reply submitted that the petitioner, having not exhausted the statutory remedy, provided under the Police Rules, renders the writ petition not maintainable under law. The petitioner has approached the Court after nine years and the writ petition is hopelessly barred by delay and latches and on this account alone it deserves to be dismissed. On facts, the respondents submitted that, ever since his enrolment in the Police Department, the conduct of the petitioner remained under clout because of his being a habitual absentee. It is after due enquiry and affording him opportunity of being heard that disciplinary action was taken against the petitioner, which never came to be challenged by availing statutory remedy available under Police Act and Rules framed thereunder. The respondents further stated to have conducted proper enquiry under rules and petitioner also had participated in such enquiry. After affording the petitioner full opportunity of being heard the orders with regard to stoppage of increments, for different periods, were passed. The representations, stated to have been made by the petitioner against the orders impugned, were filed after a lapse of 7/8 years of the passing of the orders and that too without any justifiable grounds to modify the orders. The conduct of the petitioner had compelled the respondents to take such disciplinary action, in order to maintain discipline in the department. The procedure laid down in Rule 359 of Police Manual was strictly followed while conducting disciplinary enquiry against the petitioner and the action taken was based on such enquiry.