GH AHMAD BANDE Vs. INSPECTOR GENERAL OF POLICE

JUDGEMENT

(1.) THIS order shall dispose of the two writ petitions under Art. 32

(2.) A of the Constitution of India, as applicable to the State read with S. 103 of the Constitution of Jammu and Kashmir filed by Ghulam Ahmad Bande and Kashi Nath Raina who were discharged from their job of wireless Sub -Inspectors by the order of the Inspector General of Police dated 17th March, 1957. It Is submitted that the order of the Inspector General of Police is void and ineffective inasmuch as no proper enquiry under R. 32 of the Kashmir Civil Services Rules was held in the case of these two Sub -Inspectors and they were removed from service without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them as required under S. 126 2 of the Constitution of the State. In the petitions it was also urged that failure to comply with the statutory requirements of R. 32 of the Kashmir Civil Services Rules and S. 126 of the State Constitution is tantamount to denial of the equal protection of the laws and equality before the laws and therefore, the fundamental right of the petitioners under Art. 14 of the Constitution is violated. On behalf of the respondent, the Inspector -General of Police, all the allegations made in the petitions were controverter. 2 We have perused the record received from the office of the respondent and we have I also heard the learned counsel for the petitioners and the Advocate -General. The learned counsel for the petitioners also at first raised the point that as the appointment of the petitioners had been made by the Home Minister and their services were terminated by the Inspector General of Police, the dismissal was illegal in view of the provision made in S. 126 1 of the State Constitution which is to the effect that no person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. On perusal of the departmental file it appeared that though the Home Ministry made the original appointment of the petitioners as Sub -Inspectors on probation for six months the Inspector General of Police confirmed them in their appointments. Under these circumstances counsel for the petitioners did not press this point. With regard to the remaining two points the facts apparent from the face of the record are that the charges which were framed against the petitioners and delivered to them were that they had disobeyed the orders and shown cowardice inasmuch as on being posted to Bodunambal post on 13 -1 -1957 as Wireless Operators they showed their reluctance and refused to proceed to the place of posting. They were then asked to show cause why they should not be punished on these counts. They were also told that they could produce defence, if any. In answer to these charges the petitioners submitted their -written statements. After considering these statements the officer Commanding First Battalion J. & K. Additional Police recommended their dismissal. The Inspector General of Police then heard the petitioners in person and discharged them from service instead of dismissing them as recommended by the Officer Commanding. On these facts the contention of the learned Advocate General is that the respondent has made a substantial compliance with the statutory and constitutional requirements. But after careful consideration of the facts of the case we are unable to accept this contention. It is absolutely clear that no enquiry as envisaged by Rule 32 of the Kashmir Civil Services Rules was held in this case. The contention of the petitioners was that they were asked to act as mere Wireless Operators and this job was not in keeping with their status as Wireless Sub Inspectors and they were asked to act under an N.C.O. Under Rule 32 of the Kashmir Civil Services Rules what was required was that the petitioners should not only have been asked to put in their written statements of their defence but they should have been also asked to state whether they desired to be heard in person and if they so desired or if the authority concerned so directed, an oral enquiry was to be held and at that enquiry oral evidence was to be heard and the petitioners were entitled to cross -examine the witnesses and give evidence in person and to have such witnesses called as they wished. The proceedings were to contain sufficient record of the evidence and the statement of the findings and the grounds thereof Vide Rule 32, K. 0. S. R. Inasmuch as the officer who held the enquiry in the case, namely, the Commanding Officer, First Battalion J. & K. Additional Police, did not ask the petitioners whether they desired to be heard in person, Rule 32 has not been complied with. Failure to ask this question from the petitioners has occasioned great prejudice to them on account of the fact that they have been thus deprived of the opportunity to cross -examine the persons who would have deposed against them and of producing their defence evidence. Merely telling them in the Charge that they could produce defence does not mean anything. The right to be asked by the enquiry officer whether a person against whom an enquiry is to be made wishes to be heard in person is obviously an important and substantive right and denial of this right to the petitioners vitiates the proceedings against them. We, therefore, hold that the order of the termination of services of the petitioners is illegal on the ground that the enquiry on which it is based -is vitiated because the petitioners were not asked whether they desired to be heard in person and as such no enquiry worth the name was held in the case. 31 The petitioners are also entitled to succeed on the second ground. The respondent before passing the order on the enquiry held by the Officer Commanding First Battalion J. & K. Additional Police, no doubt, heard the petitioners fn person but this again is not compliance with the provisions of Sub -section 2 of section 126 Of the State Constitution under which no person Who is a member of a civil service of the State or holds a civil post under the State could. Be dismissed or removed or reduced in rank until $e was given a reasonable opportunity of show cause against the action proposed to be taken in regard to him. The record does not reveal that the respondent afforded an opportunity to the petitioners to show cause against the punishment that he wanted to inflict on them. It is clear that the civil servant in question is entitled to have an opportunity of showing cause at two stages, once at the enquiry stage against the charges brought against him and again after he is found guilty and punishment is provisionally proposed against the punishment So proposed upon the finding. Section 126 of the State Constitution contemplates that the civil servant in question should have an opportunity of making representation against the punishment, which is proposed to be inflicted on him after the finding of his guilt is arrived at. This has not been1 done in the case. It is clear that the respondent heard the petitioners after he had received the report of the enquiry officer against them and before he had made up his mind as to what he should do with respect to that report. The Inspector General of Police has written a detailed order but it does not show that the petitioners were asked by him to show cause why they should not be discharged from service, namely,the punishment which eventually the respondent passed on them. 4 For the aforesaid reasons we hold that the order of the respondent discharging the petitioners from service being repugnant to Rule 32 of the Kashmir Civil Services Rules and section 126 2 of the Constitution of Jammu and Kashmir is void and ineffective. This order is, therefore, quashed and it is further directed that the petitioners shall be deemed to continue in service.