JUDGMENT
Virender Singh, J.
1. Petitioner, Jai Krishan, was a constable in Jammu & Kashmir Police. Vide Order No. 33 of 2001 dated 30.01.2001 (Annexure-A) passed by Principal, SPS Police Training School Kathua (respondent No. 5), he has been removed from service. Through the instant petition, he prays for quashing of the said order with a further prayer in the nature of writ of mandamus commanding the respondents to give all consequential benefits, which include arrears of unpaid salary and other admissible dues, considering him to be in continuation of service throughout.
2. Although the allegations against the petitioner are set out in the impugned order itself, yet I feel the necessity of reproducing them once again in brief.
3. On 30.01.2001, a lady recruit Constable-Vidhya Devi No. 822/IR 2nd on appeared before respondent No. 5 and moved an application alleging that on the night intervening 11th/12th January, 2001, the petitioner while working as D.I. (Outdoor) entered her room after climbing the wall of first floor of NGO Block where lady trainees were putting up. The trainees putting up in the said room got up and made a noise and thereafter, the petitioner jumped out of the window of room No. 132 and ran away. The other lady trainees, besides aforesaid Vidhya Devi, complainant, who were putting up in the said room were; (i) Tanveera Akhatar No. 984/BD/PTS No. 50, (ii) Zahida Ahad No. 3723/S PTS No. 49, (iii) Zubeda Akhatar No. 651/S 48 PTS, and (iv) Veena Kumari No. 453 IR 2nd PTS No. 46.
4. Respondent No. 5 entrusted the enquiry to AP (Admn.), who recorded the statement of Vidhya Devi and other trainees staying in Room No. 132. Thereafter, summary of allegations was served upon the petitioner, to which he pleaded guilty, confessing that he had entered room No. 132 through window on the night intervening 11th/12th January, 2001 at about 2400 hours, but not with bad intention of molesting any lady constable. Vidhya Devi stated before the enquiry officer that few days back, the petitioner had written a letter to her, which was delivered to her by one lady Constable, Parveza Akhtar No. 651/S-PTS No. 58. The contents of the said letter were that he wanted to marry her. She had ultimately destroyed the said letter. The enquiry officer thereafter recommended the case of the petitioner for dismissal from service on the ground that he had attempted to fulfill his lust of sex by making false promise of marriage and entered room No. 132 through window on first floor after climbing the wall mid night. Respondent No. 5 agreed with the recommendation and consequently passed the impugned order, which is subject matter of challenge in the instant petition.
5. The petition stands admitted way back on 12.10.2001. Respondents have filed the return by way of counter affidavit signed by respondent No. 5. However, no rejoinder has been filed to the objections. Pleadings are, thus, complete.
6. I have heard learned Counsel for both the sides at length and perused the records. Enquiry file of the petitioner has also been produced by Mr. Salathia for perusal of this Court.
7. Mr. Sharma contends that the petitioner stands victimized in this case and has been removed from service by following a procedure which is unknown to the law. The impugned order has been passed in a hasty manner, in as much as, lady constable-Vidhya Devi had appeared before respondent No. 5 on 30.01.2001 only and the impugned order was passed on the very next day. Learned Counsel then submits that no charge-sheet was ever served upon the petitioner and the evidence was recorded in his absence. Therefore, no opportunity was afforded to him to cross-examine the witnesses. According to Mr. Sharma, a major penalty has been imposed upon the petitioner without following the procedure as laid down in Rule 359 of Jammu & Kashmir Police Manual, Volume-11 (For short hereinafter referred to as ‘Manual’), relating to the procedure to be adopted in departmental enquiries. Mr. Sharma then submits that may be the petitioner had confessed before the enquiry officer that he had entered the room of constable Vidhya Devi, but at the same time had also projected his bona fides and, therefore, his confession in the aforesaid terms was not sufficient to dismiss him from service. Had the petitioner been afforded an opportunity to cross-examine the witnesses especially constable-Vidhya Devi, the entire picture would have been very clear. Therefore, this harsh punishment is not only bad in the eyes of law, but against the principles of natural justice also.
8. Mr. Sharma also submits that there is a considerable delay in making the complaint before respondent No. 5 as the occurrence had allegedly taken place on 11.01.2001, whereas the complaint was made on 31.01.2001. This indicates that Vidhya Devi was not inclined to show her grouse against the alleged act of the petitioner and has been instigated or forced by some outer agency within the department to depose against him. This also smacks of ulterior motives.
9. Mr. Sharma then submits that the impugned order is not sustainable, yet on another ground that it has been passed by an incompetent authority as respondent No. 5 (Principal, SPS Police Training School, Kathua) was neither an appointing authority of the petitioner nor has been delegated with such power to terminate the petitioner from service.
10. On the aforesaid submissions, Mr. Sharma seeks for the relief sought herein.
11. Mr. Salathia, while controverting the submissions, submitted that the petitioner belonged to a disciplined force and he entered the room of lady constables in the night hours with a bad intention and, therefore, his case calls for dismissal on this short ground despite other allegations.
12. Mr. Salathia then submits that the petitioner himself had admitted his fault and, therefore, there was no need of holding a detailed enquiry, affording him an opportunity to cross-examine the witnesses. According to Mr. Salathia, even if the enquiry conducted in this case is said to be strictly not in accordance with the rules envisaged in the Manual, still in this particular case at least the same would not cause any prejudice to the petitioner, lie then submits that no hasty step has been taken by the punishing authority, as the dignity of the Institution was at stake and, therefore, a specific direction was given to AP (Adm.) to complete the enquiry without any delay.
13. Mr. Salathia lastly submits that the appointing authority of a constable in the police department is the Superintendent of Police and in the present case the order of dismissal has been passed by the Superintendent of Police, who was officiating as Principal, SPS Police Training School, Kathua. Therefore, the petitioner cannot derive any advantageby taking the plea that it has been passed by an incompetent authority.
14. Mr. Salathia, thus, prays for dismissal of the present petition.
15. In the frame work of present set of circumstances and after considering the rival contentions of either side, the material question that arises for the consideration of this Court is, whether the major punishment of removing him from service slapped upon the petitioner, co-relates with his alleged misconduct or not. At the same time, the other point debatable would be as to whether a regular enquiry, as envisaged under Rule 359 of the Manual, should have been adhered to before passing the impugned order, especially when the petitioner himself had admitted his fault to some extent. The fate of the petitioner depends upon the answer to those main points.
16. This case, in fact, has peculiar facts. The petitioner has candidly confessed that he had entered Room No. 132, as alleged, but with a specific plan that his intentions were not bad and he did not make any attempt to molest any lady Constable. On the other hand, the enquiry conducted by Assistant Principal (Adm.) (Respondent-5), had recommended his case of dismissal from service on two grounds; firstly, that his act brought a bad name to the Institution as well as J & K Police; secondly he had committed a trespass by entering into Room No. 132 (Ladies’ Compartment) with a desire to fulfill his lust for sex. In his findings, he has referred to the statements of certain other lady recruits recorded by him. The Punishing Authority, ultimately, agree with the said report as it is and passed the impugned order.
17. From the aforesaid factual position, at least one fact is very clear that the petitioner has been removed from service, primarily, on the ground that he had entered the room of Lady Recruits in the mid night with bad intentions of fulfilling his sexual lust. This allegation, according to petitioner, has taken a serious turn. Whether this fact is borne out from the record of the enquiry file or not, needs appreciation. So, in this exercise, I have minutely perused the enquiry file.
18. In the initial complaint moved on 30-01-2001 by Vidhya Devi (the star witness), she did not say a word about any attempt made by the petitioner to molest her. She simply stated that when the petitioner had entered her room on 11th of January, 2001 at about 12 O’clock (mid night), he asked her as to who had disclosed her (Vidhya Devi), the factum of his being married. She responded to it saying that he should not come after her being a married person. In her complaint, she had also referred to a letter earlier written by the petitioner to her, which she received through some other lady recruit Constable showing his desire to get married with her. She had informed about this proposal to her parental side also. This fact she had also stated before the Inquiry Officer. In her statement before the Inquiry Officer, Constable Meena Kumari, who too was staying with Vidhya Devi in the room, had categorically stated that when she got up after hearing some whisper, the petitioner was sitting by the side of Vidhya Devi on a trunk, and she told Vidhya Devi that it would bring bad name to them. From all this factual backdrop, one fact is apparently clear in that no doubt the petitioner had entered the room on the fateful day, as alleged, but he had certainly no intention at all to molest or at least to make an attempt to outrage the modesty of any lady Constable. He went there to talk to Vidhya Devi on a particular issue. Statement of Vidhya Devi recorded by the Inquiry Officer further indicates that there was a tiff between the petitioner and her in the room on the issue of marriage to which she had responded and after that wordily duel, the petitioner left the room.
19. One glaring flaw of which this Court cannot lose sight of is that the finding by the Inquiry Officer to the effect that the petitioner had entered into the room with the intention to satisfy his sexual lust, which, undoubtedly, has resulted in the passing of the impugned order, is, in fact, beyond the case of complainant or the witnesses examined in support of the allegations. The Inquiry Officer has, thus, crossed the crease and the same fault is repeated by the Punishing Authority, may be in a haste considering that the reputation of the Institution was at stake. Be that as it may, the fact remains that the finding is against the facts on record. The outcome is very grave. Otherwise, in the present set of circumstances, it could possibly be a case of lesser dose of punishment.
20. Another material fact, relevant for the purposes of consideration, is that in his findings, Assistant Principal (Adm.), recorded that after the petitioner pleaded guilty, the statements of lady trainees (recruits), who were present in the room along with Vidhya Devi, were recorded, and an opportunity of cross-examination to the delinquent was given. This finding again runs contrary to the facts. Perusal of the enquiry file indicates that, in fact, no opportunity was granted to the petitioner to cross-examine the lady witnesses. Statement of the petitioner is recorded on the back of the summary of allegations, which is on the basis of the complaint wherein also certain facts were imported by the Inquiry officer and the petitioner candidly admitted his entry into the room, but refuted the other allegations vehemently. This, in fact, is the grievance of the petitioner that the cross-examination of the witnesses would have made his position clear, and in that eventuality, his fate would have been otherwise. In my view, the stand of the petitioner is justified.
21. Arguments of Mr. Salathia that since the petitioner himself had admitted his fault, therefore, there was no need of holding a regular enquiry, as envisaged in Rule 359 of the Manual, apparently, appeared to me some what attractive, but when appreciated in its right perspective on the basis of the facts on record, the position is entirely different.
22. Rule 359(3) of the Manual provides that if the accused police officer is apprised of the summary of alleged misconduct and he, at that stage, admits the misconduct alleged against him, the officer conducting the enquiry may proceed forthwith to record a final order if it is within his power to do so or forward the finding to the officer empowered to decide the case. In the present case, the Inquiry Officer did not consider it to be a case of that type and thought of recording the statement of certain witness, may be on the pretext that the accused police officer (petitioner herein) had not admitted the misconduct totally and had rather refuted it on certain aspects by projecting his bona fides. So, the Inquiry Officer, in my view, had entered into arena of Rule 359(4) and, therefore, it was incumbent upon him to record the statement of the witnesses in the presence of the petitioner and he should have also been afforded an opportunity to cross-examine them.
23. Admittedly, this is not done in this case. For reference, Rule 359(4) of the Manual reads thus:
359(4). If the accused police officer does not admit that misconduct the officer conducting the enquiry shall proceed to record such evidence oral and documentary in proof of the accusations as is available and necessary to support the charge. Whenever possible witnesses shall be examined direct and in the presence of the accused who shall be given opportunity to cross-examine them. The officer conducting the enquiry is empowered however to bring on to the record the statement of any witness whose presence cannot in the opinion of such officer be produced without undue delay and expense or inconvenience if he considers such statement necessary and provided that it has been recorded and attested by a police officer not below the rank of Inspector or by a Magistrate and is signed by the person making it. The accused shall be bound to answer questions which the enquiring officer may see tit to put to him, with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided.
24. In view of the above, it can safely be said that the enquiry has not been held in accordance with rules and this has caused a grave prejudice to the petitioner. In other words, a short shrift enquiry has resulted into passing of the harsh punishment of removal from service of a regular Police Officer, which, in my considered view, cannot sustain on the touch-stone of fair play.
25. There is certainly a delay in making a complaint by Vidhya Devi to SSP with regard to the incident and the petitioner wanted to make capitol out of it, but, in my view, he cannot derive any benefit from the same for a very simple reason that he himself had admitted his entry in the room on that very night, (i.e., at 12 O’clock on 11th of January, 2003). Rather, on the other hand, Vidhya Devi tried to cover this delay part in her statement before Inquiry Officer on the pretext that the petitioner was holding some threat to her. This fact, however, does not find mentioned in the original complaint moved by her on 30th of Jamuary, 2001. So, this aspect does not help either side.
26. I am conscious of the fact that the petitioner being from disciplined force and the Incharge of the ladies platoon as their being Drill Inspector had made entry in the room of the Ladies’ Block in the night hours, which is not only morally and ethically wrong, but also brings a bad name to the entire Institution, but at the same time, the punishment awarded to him in the present set of facts and circumstances, in my considered view, does not synchronize with his act of wrong doing. A fair enquiry should have been held in this case to elicit the true facts, especially when the petitioner himself had very candidly confessed his entering into the room, but with explanation. The short cut procedure adopted in this case before passing the impugned order is not being appreciated by me and I find difficult to sustain the same.
27. Since I am quashing the impugned order on the basis of the aforesaid reasoning, I do not feel the necessity of delving into the other aspects of the matter, as projected in support of the case of the petitioner. The net result is that the impugned order No. 33/2001 dated 30-01-2001 (Annexure-A) is hereby quashed and the petitioner shall be entitled to reinstatement with all consequential benefits. It is made clear that the respondents, however, are left free to hold a fresh enquiry into the allegation against the petitioner in accordance with law and to take a decision thereafter. Enquiry file be returned to Mr. Salathia at once.
