GUL KHAN Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner, a constable in the State Police Force Las been dismissed from service by respondent No. 2 vide his order No. 354 of 1976 dated 15 -5 -1976. He seeks annulment of the said order, that is why this writ petition.

(2.) TWO attache -cases were found unclaimed on 14 -11 -1974 on the tarmac at Srinagar Airport. These attache -cases contained Charas and were seized by two Police officers namely Dy. S. P. Makhan Lal Shera and Inspector Mohammad Afzal who were posted on the said date at the Airport. These Officers brought these attache -cases to Police Station Saddar where F.I.R. No. 245/74 was registered under sections 7/13 of the Dangerous Drugs Act and section 48 of the Excise Act on 14 -11 -1974. The S.H.O of Police Station Saddar namely Shah Nawaz Khan being on leave on the said date, the investigation of the case was entrusted to one Ghulam Mohi -ud -Din, Circle Inspector Police by the D. I. G. Vide his order No. 2844 -45/s dated 15 -11 -1974. Inspector Ghulam Mohi -ud -Din on preliminary investigation found three persons namely Nissar Qazi, Mohammad Yousuf both residents of Bombay and Mohd Maqbool Bhat of Srinagar responsible for smuggling out the Charas contained in the two attache -cases from the State of Jammu and Kashmir. He accordingly arrested the first mentioned two persons and could not arrest the third one namely Mohd Maqbool Bhat as he had by then absconded. These two attache -cases were taken by Inspector Ghulam Mohi -ud -Din to Tehsildar, Executive Magistrate, Srinagar on 19 -11 -1974 for being opened in presence of the Magistrate so that the samples thereof could be taken for being sent to an Expert. These attache -cases were accordingly opened in presence of the Executive Magistrate, samples of the Charas contained in the attache -cases were taken and the attache -case resealed in presence of the Magistrate. In the meantime Inspector Gh. Mohi -ud -Din was transferred and posted as S.H.O. Police Station Maharaj Gunj on 27 -11 -1974. During Investigation it was revealed that one Feroz -ud -Din Sansi was also involved in the crime who was said to be a notorious smuggler of Charas and other contraband goods. He was accordingly detained on 4 -2 -1975 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 vide order No. 3 -Home/ISD dated 28 -1 -1975 issued by Secretary to Government, Home Department. While he was in detention he was interrogated by one R. Tickoo the then A. S. P - Srinagar. During interrogation Feroz -ud -Din is stated to have made a disclosure that the Charas contained in the two attache cases had been replaced by Inspector Gh. Mohi -ud -Din with the active connivance of the petitioner with some spurious stuff. (A. S. P) R. Tickoo reported this matter to the S. P - who, in turn directed him to register a case against Inspector Gh. Mohi -ud -Din and the petitioner and investigate the same himself. Accordingly F. I. R. No. 73 of 1975 was registered on 20 -2 -1975 at Police Station Sherghari against the petitioner and Inspector Gh. Mohi -ud -Din under sections 409, 201,161 and 120 -B R. P. C. and section 5(2) of the Prevention of Corruption Act. The petitioner and Inspector Gh. Mohi -ud -Din were immediately placed under suspension by the S. P. Srinagar on the same day i.e. 20 -2 -1975. (A. S - P.) R. Tickoo started investigating the case as a consequence of which the petitioner was arrested on 31 -3 -1975, and was later on released on bail by City Magistrate, Srinagar on 4 -4 -1975. At the conclusion of the investigation (A. S. P) R Tickoo submitted the result of his investigation to the prosecution branch for its opinion with regards to the outcome of the case in the event of the accused being challenged in a court of law - The prosecution branch being however of the opinion that the case was likely to fail in a court of law, the Investigating Officer namely R. Tickoo submitted the entire record to the D.I.G. respondent No. 3 herein with his recommendation that the case against the petitioner and Inspector Gh. Mohi -ud -Din be nevertheless challenged in a court of law and in case the case failed, the accused may be proceeded against departmentally. Respondent No. 3 being however of the opinion that it would not be advisable to proceed departmentally against the delinquent after they had been acquitted by a court of law, in turn submitted the papers to respondent No. 2 herein giving his own opinion that instead of proceeding against the delinquent in a court of law they should be straightaway proceeded against departmentally. He made his recommendation to respondent No. 2 on 12 -8 -1975. Respondent No. 2 being in agreement with the view expressed by respondent No. 3 accordingly ordered departmental proceedings against the petitioner and Inspector Gh. Mohi -ud -Din on 13 -8 -1975 and further directed that the enquiry should be held by the D. I. G. himself. The D.I.G. made an application to the District Magistrate. Srinagar on 19 -8 -1975 seeking his permission to make departmental enquiry against the petitioner and Gh Mohi -ud -Din. This prayer was readily granted by the District Magistrate on the same day vide his order No. 1090 DM dated. 19 -8 -1975. Summary of allegations was accordingly supplied to the petitioner by respondent No. 3 on 11 -9 -1975 to which the Petitioner pleaded not guilty - The petitioner was thereafter called by respondent No. 3 to be present on 17 -11 -1975 in the premises of Central Jail, Srinagar. On preliminary enquiry a charge sheet was served by respondent No. 3 on the petitioner on 19 -12 -1975. This charge sheet was denied by the petitioner through a written representation made on 26 -12 -1975. Respondent No. 3 thereafter recorded the statements of a few persons said to be acquainted with the facts and circumstances of the case and made a report to respondent No. 2 on 6 -1 -1976 holding the charges against the petitioner proved. As a consequence show cause notice was served upon by respondent No. 2 on the petitioner on 16 -1 -1976. Written reply to the said show cause notice denying therein the findings of the enquiry officer as well as the punishment imposed was given by the petitioner on 12 -2 -1976. Respondent No. 2 on consideration of the reply sent by the petitioner come to the conclusion that there was nothing much in the reply and the charges against the petitioner stood amply proved, passed the impugned order on 15 -5.1976 dismissing the petitioner from the service. To this extent there is no dispute on facts between the parties.

(3.) THE petitioner has further gone to state that he having declined to appear as a witness against Inspector Mohi -ud -Din had been falsely implicated in the case that he was not provided adequate opportunity to defend himself and to engage a counsel on his behalf, that even though he had challenged the competence and jurisdiction of respondent No. 3 to hold departmental enquiry against him, yet the enquiry was hold, that he was innocent and the impugned order passed against him was malafide, and that in any event the impugned order having been passed in violation of Rules 338(4) and 349 of the Police Rules, 1960, was clearly invalid and ineffective.