GH MOHI-UD-DIN Vs. STATE OF J&K

JUDGEMENT

(1.) IN this writ petition the petitioner challenges an order issued by the Inspector General of Police, respondent No: 2 herein, on 15 -5 -1976 dismissing the petitioner from service as also the departmental proceeding which are the basis of the said impugned order.

(2.) BRIEFLY stated, his case is that in capacity of a police officer the petitioner was involved in a criminal case which was registered against him in terms of F.I.R 78/79 by Police Station Sherghari under various sections of the penal code and under section 5(2) of the Prevention of Corruption Act. Before that the was placed under suspension. In connection with the said case he was arrested also - The investigation was completed in the case and a challan was to be presented before a competent court: but before the challan was presented he received summary of allegations respondent No: 3. The petitioner submitted his reply to the said summary of allegations and denied the charges, He asserted that since a criminal case was registered against him and investigation was complete, therefore, Departmental proceedings cannot be initiated against him. Despite the petitioners objections in respect of Departmental proceedings, he was informed to be present in Central Jail, Srinagar, on 21 -10 -1975 by respondent No:3 in connection with the departmental enquiry. The petitioner again made a representation that the departmental enquiry was misconceived and could not be held as the same was without jurisdiction. Ultimately on the basis of the departmental enquiry the petitioner came to be dismissed from service vide the impugned order, The challenge to his dismissal from service in pursuance of the departmental enquiry is based on a number of grounds, it is submitted that when a criminal case was registered, departmental enquiry could not be held under Rule 338(4) of the J&K Police Rules - The departmental enquiry could be held only if the conditions laid down in Rule 338 could warrant taking of departmental action It is also submitted that Rule 33 of the Jammu & Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956, was violated and the impugned order is, therefore, liable to be struck down. Respondent No:3s action in holding the enquiry is also stated to be without Jurisdiction.

(3.) REPLY affidavit has been filed on behalf of the respondents by Mr, P. A. Rosha, the then Inspector General of Police. In his reply he has stated that a criminal case was registered against one Feroz -ud -Din and others, and investigation of that case was entrusted to the petitioner and some Charas weighing about 23 Kgs. was seized in connection with the said criminals, which was subsequently replaced by some sporious material and that during the departmental enquiry it was established that the petitioner in connivance with one Gulla Khan constable had replaced the Charas by a sporious material. Initiation of departmental enquiry was admitted and it is asserted that there is competence to hold departmental enquiry and the criminal case registered against the petitioner would not stand in the way of departmental enquiry. Other pleas raised in the petition are denied. Mr. Raina appearing for the petitioner has submitted that the petitioner was charge sheeted by Deputy Inspector General of Police who was not his appointing authority and the charge was in respect of allegations which were the subject matter of a criminal case registered against the petitioner by the police. The departmental enquiry was ordered after registration of the criminal case against the petitioner. He has invited my attention to Rule 338 (4) of the Police Rules which reads as under: "(4) When a criminal charge against a police Officer has failed solely for technical reasons: or when the court notes the facts as suspicious,and gives the accused the benefit of doubt or records the opinion that witnesses for the prosecution have resiled through the exercise of influence upon them, or when, though an acquittal is ordered on the main charge, facts are brought to light in the course of the trial which justify a separate departmental charge, the Judicial acquittal shall not in itself be a bar to departmental action nor shall It ordinarily be considered to be an honourable acquittal for the purposes of article 108 -b(i) of the State Service Regulations