JAVED HUSSAIN DAR Vs. STATE AND ORS

JUDGEMENT

(1.) By the medium of this writ petition, a writ of Certiorari is sought for dismissal of order bearing No. 2256 of 2005 dated 10-10-2005, issued by respondent No.3 Senior Superintendent of Police, Srinagar, and order No. 182/2006 dated 07-06-2006, issued by the respondent No.2 Inspector General of Police, J & K, Srinagar, in an appeal filed by the petitioner. Mandamus is also sought to command the respondents to re-instate the petitioner in the respondent department with all consequential benefits as admissible under rules.

(2.) The brief facts, essential for arriving at a just conclusion in the matter, are that the petitioner was initially appointed as a Constable in the J & K Police Department vide order No. 757 of 1998 dated 29-10- 1998. It is stated that the petitioner was discharging his duties with utmost dedication. However, the respondents, without following the provisions as envisaged under the J & K Police Rules and without providing him an opportunity to defend himself, removed the petitioner from service vide order No. 2256 of 2005 dated 10-10- 2005.

(3.) The orders impugned have been challenged on the grounds inter alia that the same have been passed without appreciating the relevant facts and the legal provisions in their proper perspective. The petitioner has further stated that the orders aforesaid have been passed without following the mandatory provisions of Rule 359 of the Police Rules. No evidence was recorded in presence of the petitioner after he denied the summary of allegations. The petitioner was not even provided the opportunity to cross examine the witnesses nor was his reply to the Charge Sheet entertained and appreciated. It is further stated that since the petitioner was a permanent employee of the respondent department, he could not have been discharged from service without holding an enquiry in accordance with the rules and law. The petitioner has further stated that since he had pleaded not guilty to the summary of allegations served upon him, therefore, it was incumbent upon the Enquiry Officer concerned, in terms of Rule 359(4) of the Police Rules, to record the evidence if any available against him. The petitioner had also to be provided an opportunity to cross examine the witnesses. But unfortunately neither any evidence was recorded nor was any opportunity provided to him to cross examine the witnesses. It is further stated that the Enquiry Officer has not followed the mandatory provisions of Rule 5 of the Police Rules and has arbitrarily and without recording any evidence, as mandated by sub rule 5 of Rules 359 of the Police Rules, framed the charge sheet against the petitioner. It is also contended that in terms of Rule 359(6)(7) of the Police Rules, sufficient opportunity had to be provided to the delinquent official to produce defence evidence but no such option was given to the petitioner. Even the provisions of the Evidence Act had to be seriously followed by the Enquiry Officer while holding the enquiry as the same is mandatory in terms of Rule 360 of the Police Rules. However, the punishment of termination of service was imposed upon the petitioner without recording any evidence and without providing him the opportunity of hearing to prove his innocence. The petitioner goes further to say that the appeals filed against the order of termination have been dealt with arbitrarily and without giving due consideration to the facts and legal aspects of the matter. The petitioner has further stated that his alleged absence, constituted an offence punishable under section 30 of the Police Act, and sanction of the District Magistrate was, thus, to be obtained before initiating the Departmental enquiry against him, which has also not been done in the case on hand. In this view of the matter, it is prayed that since the orders impugned have been passed in hot haste and without application of mind, the writ petition deserves to be allowed and the orders impugned herein need to be set aside & quashed.