AB MAJID Vs. DY COMMISSIONER

JUDGEMENT

(1.) AS Inspector Food and supplies. Unit Leh, respondent No. 1 issued a show cause notice against the said Inspector, who is petitioner in this writ petition, on 22 -8 -1977. It was alleged against the petitioner that in the capacity of Inspector, he was incharge of Store No. 1 and Store No. 2. Sh. Stobges, Storekeeper -incharge Store No. 1 is said to have been transferred on 28 -2 -1977. At the time of handing over the charge there was shortage in the stocks which were handed over by the said storekeeper and attested by the petitioner in the capacity of Inspector. The petitioner is said to have been incharge of supervision also and he is said not to have brought these shortages to anybodys notice and because of his negligence and lack of supervision shortages in the stocks had occurred, within five days he was asked to explain his negligence and lack of supervision. This letter was replied by the petitioner in which be had denied the charges and had also stated that there was no effective arrangement for storing the stocks, the stocks were put in a haphazard manner due to shortage of accomodation. It was difficult for him to verify the stock position every now and then. On 1 -10 -1977, on the receipt of his reply another communication was addressed to him by respondent No. 1 wherein it was stated that his explanation was not found satisfactory. A charge sheet seems to have been framed by this communication against the petitioner and in the charge sheet itself he was asked as to why due to the petitioners negligence and lack of effective supervision value of the shortages mentioned in the charge sheet may not be recovered from the petitioner as arrears of land revenue. In the charge sheet itself punishment was provided and respondent No 1 seems to have formulated an opinion against the petitioner about his guilt. Seven days time was given to him to file the reply. This communication was also replied by the petitioner on 10 -10 -1977, in which he had explained the position and denied the charges levelled against him. His reply was found unsatisfactory and he was again asked to explain by a communication dated 12 -1 -1978. To this communication he again replied and explained his position. On this an order dated 20 -1 -1978 came to be passed by respondent No. 1 holding the petitioner guilty of being negligent and lacking in supervision as a result of which a serious loss was caused to the stocks in Leh and the petitioner was demoted the next lower grade of 220 -430 purportedly in pursuance of Rule 30 of the J&K civil Services (Classification, Control and Appeal) Rules, 1956 with effect from 19 -1 -1978. Aggrieved against the punishment the petitioner seems to have filed an appeal before the Govt. After having failed to get justice from the Govt. he has approached this court through the medium of this writ petition to quash the impugned order of his demotion dated 19 -1 -1978. It may be stated here that appeal filed by him had remained pending before the authorities for about two years. It was not even considered Therefore he was compelled to file the writ petition. Respondent No. 1 has filed his reply affidavit in which he has justified the impugned order and has asserted that the said order was passed under rules. It is averred that since the petitioner had filed an appeal, therefore the writ petition was not maintainable unless departmental remedy was exhausted. The pleas asserted in the writ petition are denied.

(2.) I have heard learned counsel for the parties. Learned counsel for the petitioner has submitted that after the charge was framed against the petitioner, it was required that an enquiry as provided under rules should have been held against him, Prior to the framing of charge contends the counsel for the petitioner, a preliminary enquiry seems to have been held by informing the petitioner about the accusations and his reply was obtained. After he had denied the Accusation s, a charge sheet was framed and in the charge sheet itself punishment was proposed. After the framing of charge sheet, guilt of the accused, if any could be enquired into only after a proper enquiry in accordance with the provisions of statutory rules and principles of natural justice. My attentions was drawn to rule 33 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and it is contended that a major penalty could not be awarded on the basis of no evidence. If the explanation offered by the petitioner was not satisfactory, of necessity, enquiry was to be held into accusations. The punishment having been awarded without enquiry at the back of the petitioner, is therefore, vitiated. This position, however, is controverted by Miss Shaista appearing for Mr. H. M. Sadiq. Her contention can be formulated as under: i ) The petitioner has filed an appeal against the punishment. Therefore, unless he exhausts departmental remedy, writ petition will be barred, the said appeal according to her is still pending: ii) However, the petitioner having admitted his guilt, no enquiry was required to be held: iii) That writ petition raised disputed questions of fact which cannot be gone into by this court ; iv) That departmental enquiry was held and it was not necessary for the department to follow the procedure which is followed in regular trials by the Courts.

(3.) SO far the first concerned, it is devoid of merit. It is true that the petitioner has filed a departmental appeal. That appeal is filed some where in 1978 itself. After about one year and nine months the said Appeal was not decided one way or the other. The writ petition was filed before the High Court on 8 -10 -1980. Pendency of writ petition would not have prevented the authorities from taking a decision in the appeal. Even during the pendency of the writ petition till date that appeal has not been decided nor is it explained as to what had happened to that appeal. The appeal is now said to be pending before the. Authorities for last about six years and has remained undecided. There is a provision in the rules that statutory appeals filed against punishment or against an order which causes grievance to an employee is to be decided within three months from the date of the receipt of the appeal. Having failed to decide the appeal within three months respondents cannot now contend that the petitioner should have pursued the departmental remedy and suffered further agony because of lack of attention of the respondents. Respondents cannot take advantage of their own wrong. They have failed to get the appeal of the petitioner decided within the statutory period and have caused inordinate delay in the disposal of the appeal, Therefore the petitioner cannot be said to be without remedy and the writ petition will not be barred because of doctrine of exhaustion of alternative remedy. The alternative remedy pursued by the petitioner has almost become futile and redundant because of the inaction of the authorities. It is not permissible in law that on the one hand, in breach of rules, the department will be in active in decided the fate of an employee and on the other hand they will contend that the writ petition is barred for want of bonafides of the authorities. I therefore, hold that the writ petition is not barred and the petitioner has a remedy in view of the peculiar circumstances of this case by invoking discretionary and extra ordinary jurisdiction of this court. The authorities, cited at the bar by the respondents are not at all applicable to the facts of this case.