OM SHARMA Vs. STATE AND ORS.

JUDGEMENT

(1.) The petitioner-warder in Jammu and Kashmir Prisons Department was shown the door by an order of termination of his service for having smuggled two charas cigarettes into the Sub Jail, Hiranagar, District Kathua on 29.09.2000 and supplied to a detenue. The order of termination was challenged by medium of writ petition (SWP No.51/2001) which succeeded, consequently order of termination quashed vide judgment dated 22.03.2004 because of non adherence to the rules 33,34 and 35 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 with liberty to the respondents to hold an inquiry afresh. In compliance with the judgment supra, the petitioner was reinstated by the respondent-Director General vide order No.349 of 2004 dated 06.07.2004 entrusting inquiry into his conduct to the Dy. Inspector General of Prisons. Inquiry so initiated clinched in a recommendation to treat his period of absence w.e.f. 26.12.2000 to 06.07.2004 as dies non and a warning to be careful in future. The recommendation was accepted by the Director General of Police Prisons, J&K, accordingly following punishment imposed: -

(2.) In this second round of litigation, it is the above referred order of punishment which is questioned mainly and essentially on the ground of denial of opportunity of hearing by the inquiry officer, on which count, Mr. Gupta learned AAG is unable to assist the court because of non-availability of the record which would mean adjournment of the case, to which course of action Mr. Sharma is averse because it will protract the proceedings and aiming at a speedy disposal of the lis, he contended that let the warning remain intact but treatment of dies non is not justified, for, the petitioner did not opt for absence on his own but it was because of order of termination of his services and the punishment of dies non could not be imposed without following the procedure established by law which is wanting. In all fairness Mr. Gupta concedes to the factual aspect, consequently a consensus between the learned counsel for the parties to do away with the treatment of dies non. Consensus apart, the challenge against punishment of dies non otherwise also merits acceptance because rules have been observed in breach by the respondents. Regarding challenge to the warning, it shall be deemed to have been given up in view of the statement of learned counsel for the petitioner indicated above.

(3.) In the aforementioned backdrop, writ petition succeeds partly. Thus, direction to the following effect: -