FATEH MOHD LONE Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a petition under S. 103 of the Constitution of Jammu and Kashmir by Shri Fateh Mohd Lone and six others for issue of a writ of certiorari quashing respondent No. 2s order No. 180 -90/74 dated April 11, 1974, discharging the petitioners from service and for a writ of Mandamus directing the respondents to treat the petitioners as continuing in service.

(2.) IT appears that on March 31, 1974, the Incharge Commandant, Home Guards, Baramulla, made a report to the Divisional Commandant, Home Guards and CD, Kashmir, respondent No. 2 herein, complaining that the petitioners, (who were serving in the Jammu and Kashmir Home Guards) had instigated the Home Guard personnel stationed at District Headquarters Home Guards, Baramulla Lines, to indulge in certain acts of indiscipline on March 30, 1974, by misrepresenting the facts to them. On receipt of the report, the Divisional Commandant directed respondent No. 3 to make a thorough inquiry into the matter. Pursuant to this direction respondent No. 3 prepared a summary of the allegations and read over the same to the: petitioners on April 2\1974: to which they pleaded not guilty, Thereafter respondent No. 3 recorded the statements of the petitioners, charge -sheeted them for the aforesaid acts, recorded the statements of some witnesses and on the petitioners stating that, they did not want to adduce any defence evidence, made a report to respondent No. 2 observing that the explanation tendered by the petitioners was far from satisfactory, that their own statements established their guilt of organizing a hunger strike and raising subscriptions in an attempt to launch a violent campaign of vilification and ill -will against the Department. On receipt of this report respondent No. 2 issued notices to the petitioners calling upon them to show cause why they should not be discharged from the Home Guards Orgnisation as their action amounted to grave indiscipline, breach of trust and challenge to the administrative set up. On the petitioners making written submissions on the show cause notices themselves on April 11, 1974, the respondent No. 2 issued the impugned order against which the present petition is directed. The impugned order has been challenged by the petitioners, inter alia, on the following grounds,: (i) That they have not been given just and fair opportunity of defending themselves and proving their innocence as required by S. 126 of the State Constitution. (ii) That during the course of the inquiry, they requested the Inquiry Officer, i.e. respondent No. 3. to furnish them with copies of the complaint, summary of allegations, statements of witnesses and the charge sheet, but he failed to accede to their request. (iii) that despite their request they were not furnished even with a copy of the report made by respondent No. 3 and the order whereby they were discharged from service. (iv) That the Inquiring Officer who was highly prejudiced against them did not act objectively, fairly and impartially and did not conduct the inquiry in accordance with the procedure laid down in the relevant rules. (v) That the impugned order of discharge has been passed by respondent No. 2 whereas it ought to have been passed by - the Commandant or Jt. Commandant General as per rule 11 of the Jammu & Kashmir Home Guard Rules, 1963. (vi) That the petitioners were not afforded an opportunity of adducing defence evidence to prove their innocence and were in fact condemned unheard. (vii) That the impugned order was prepared without application of mind and before the service of the show notice.

(3.) A notice in regard to the petition was given to the respondents who filed a very vague, laconic and perfunctory affidavit in reply thereto. In the course of the affidavit it has not been denied by the respondents that they did not furnish copies of the complaint, summary of the allegations and statements of the witnesses, charge sheet as requested by the petitioners. They have also not denied that the copy of the report of respondent No. 3 was not supplied to the petitioners. In fact in para 13 of the reply affidavit, it has been stated that the copies were handed over to the Advocate of the petitioners on May 3, 1974, i.e. long after the impugned order was passed. 5. I have heard the learned counsel for the parties. Appearing on behalf of the petitioners Mr. Lone has vehemently contended that the impugned order is bad and cannot be sustained as sufficient opportunity of defending themselves and proving their innocence has not been afforded to the petitioners as required by S. 126 of the Stare Constitution. Elaborating his submission he has urged that the impugned order is vitiated because of the fact that the copies of the complaint, summary of allegations and statements of witnesses and the report of respondent No. 3 were not supplied to the petitioners despite the request made by them. He has further submitted that sufficient opportunity to tender their explanation to the show cause notice was also not afforded to the petitioners and respondent No. 3 made them to scribble some writing on the show cause notices themselves on the very day they were shown to them i.e., on April, 11, 1974. He has also reiterated that the impugned order is ultra vires as it could have been issued not by respondent No. 2 but by the Commandant or by the Joint Commandant General.