1. This petition has been filed by the petitioner praying for a writ of mandamus and certiorari or any other appropriate writ, order or direction, for
quashing the impugned order dated 22.2.1981.
2. The facts giving rise to the present petition are that the petitioner was Storekeeper in the Food and Supplies Department and as such was
deployed to Chokibal, Kashmir. During the night intervening 28th/ 29th September 1979, fire broke out in Chokibal main Bazar, where the food
grains belonging to the Food and Supplies Department were stored in some shops which were also engulfed by fire. The loss was assesses by
Departmental officials and the Government was approached for writing off the amount of loss caused by fire.
3. It is averred in the petition that during the enquiry regarding fire loss, it was alleged that the petitioner had not entered one of the Challans for 82
quintals of rice in his books and that 6100 empty bags kept in the store of the contractor had also not been properly entered in the stock register.
The petitioner as per letter No. SOD/3320679 dated 18.12.1979 issued by Deputy Director, Food and Supplies Department that enquiry was
proposed against him under Rule 33 of the J&K Civil Service Classification, control and Appeal Rules and the grounds for which enquiry was
proposed were given in the annexures 1 and 2 to the writ petition. On receipt of the annexures 1 and 2, the petitioner submitted his reply in respect
to the charges brought against him.
It is further averred by the petitioner that after submitting his explanation, as envisaged under Rule 33 of J&K Civil Service, Classification, control
and appeal Rules, no enquiry was held in presence of the petitioner. In fact that petitioner was ordered to maintain another centre during the period
and was on active service throughout after the breakout of the fire. The petitioner received order bearing No: 2574753 dated 28.1.1981 placing
him under suspension, it was further ordered that the petitioner should be charge sheeted and explanation obtained. It was also ordered that the
notice should be served upon the petitioner and his surety to make good the shortage within a fortnight failing which, he was threatened that the
case will be referred to the revenue agencies for launching recoveries as arrears of land revenue.
4. The impugned order forming annexureP4 to the writ petition is being challenged on the count that it is illegal, arbitratory, against rules and
principles of natural justice; that the order has been passed without any enquiry as envisaged under Rule 33 of the J&K Civil Service Classification
Control and Appeal Rules.
5. As no enquiry was held with the participation of the petitioner and no finding arrived at, the impugned order is liable to be quashed.
6. The impugned order envisaged fresh enquiry without any reference to the previous show cause notice. There is no indication in the impugned
order about the fact as to how the proceedings have been arrived at in the impugned order. Accordingly the order is vague, indefinite, and
unsustainable in the eyes of law. The impugned order is full of contradictions.
7. In one breath the enquiry authority envisage a fresh enquiry and at the same time envisages recovery of cost of alleged loss and this amounts to
putting the cart before the horse. The petitioner has been condemned unheard.
8. The order impugned has been passed by an unauthorized person who is not competent to pass such an order. There is no order passed by
respondent No.2 nor a copy of the said order has been furnished to the petitioner. The petitioner has been placed under suspension by the
respondent No.3 who is not his appointing authority. In fact what unilateral enquiry was conducted, the petitioner wasn't associated with the said
enquiry despite the fact that he had prayed for the same.
9. In the counter affidavit filed by the respondents, it is submitted that the petitioner was duly charge sheeted and article of charge dated
19.12.1979 were served to him and a committee constituted for taking stock of the facts about the loss caused as also the reply submitted by the
petitioner, who was associated with the enquiry, submitted its final report on 6.2.1980,
10. Heard learned counsel for the parties at length and also perused the material OK record. The written arguments submitted by Mr. Ghulam
Mustaffa have also been perused.
11. At the very outset, it may be brought on record that from records it seems that the petitioner while submitting his explanation quoted names of
witnesses, whom he wanted to examine in support of his contentions. No mention in the enquiry report visavis any witness of the defence or of the
prosecution statements were made available to the petitioner when he had given explanation to the charge sheet and also submitted that he heard in
person and M/S Ghulam Nabi, Abdul Gaffar, Mohammad Yasin Lone and Mohammad Jamal Dar be allowed to depose as witnesses of
petitioner, the enquiry conducted by the enquiry officer is from the very records unilateral. There is no participation of the petitioner established.
No where the enquiry officer has deposed like that in his enquiry and the manner in which enquiry has been conducted is unknown to the
procedure muchless N J&K Civil Service Classification, Control and Appeal Rules and is covered under clause V of Rule 30, which reads:
Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders"".
Under Rule 34 and 35 of the above referred rules, the delinquent officials is to be provided with the copy of the proceedings prepared under Rule
33 by the enquiry officer and asked to show cause why the penalty proposed should not be imposed on him. Rule 35 of the J&K Civil Service
Classification, Control and Appeal also reads as under :
35. Without prejudice to the provisions of Rule 33, no order imposing the penalty specified in clauses (i), (ii), (iii) and (v) of rule 30 afterthan an
order based on facts which have led to his conviction in a criminal court or by a court martial, or an order superseding him for promotion to a
higher post on the ground of his unfitness for that post or any Government servant to whom these rules are applicable shall be passed unless he has
been given an adequate opportunity of making any representation, if any, has been taken into consideration before the order is passed;
Provided that the requirements of this rule may, for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing
them and where they can be waived without injustice to the officer concerned.
12. On the other hand, from the perusal of the impugned order, it seems that after concluding the enquiry penalty has been imposed on the person
of the petitioner and he is being asked to make good the loss caused to 82 quintals of rice alongwith 205 empty bags and 6100 empty bags, failing
which coersive order of recovery will be made. In fact the petitioner has given full explanation to the loss caused and how the loss has occurred
and also the account of 82 quintals of rice which were received by him. The enquiry which has been conducted is not only illegal, but
unconstitutional and no penalty can be imposed on the person of the petitioner on the basis of the said enquiry.
13. The argument that alternative efficacious remedy by way of an appeal under the provisions of classification, control and Appeal Rules of 1956
being available and without availing of such remedy, the writ petition is not maintainable, is not correct appreciation of the matter in controversy.
The order imposing of punishment without following due procedure envisaged under law is an order nonexistent in the eye of law and abolition is
illegal and untenable. So the remedy to declare such order as nonest is only by way of a writ and not by way of an appeal. Appeal is preferred
against the grievances on factual material and appreciation thereof and rarely on legal connotations. Rule 39 of the J&K Classification, Control and
Appeal Rules reads as Under:
39. In the case of an appeal against an order imposing any penalty specified in rule 30, the appellate authority shall consider:
(a) Whether the facts on which the order was based have been established;
(b) Whether the facts established afford sufficient grounds for taking action; and
(c) Whether the penalty is excessive, adequate or inadequate and after such consideration, shall pass such order as it thinks proper:
Provided that no penalty shall be enhanced unless an opportunity is given to the person concerned to show cause why such penalty should not be
enhanced.
In any case in which the appellate authority enhances penalty, the appellant shall be entitled to submit a second appeal to the next higher authority.
The second appeal will, however, be admissible only in respect of the additional punishment awarded by the appellate authority"". 15. So the scope
of the appeal provisions make it amply clear that it is only on factual aspect. The legal/constitutional aspect of the impugned order can be
challenged and projected only in a writ. Moreover when the order is an order nonexistent in the eye of law on the legal and constitutional touch
stone, to quash and declare such order as a nullity, the writ is the speediest and immediate remedy and writ of certiorari takes care of such
eventualities and not the appeal under the relevant provisions of classification, control and Appeal Rules. The appeal is neither the efficacious nor
suitable alternative remedy available. The arguments of learned counsel for the state as such is not tenable.
14. From the above discussions, I am the considered opinion that the order impugned bearing No.:2574753 dated 28.2.1981 being illegal and bad
in law, cannot stand the light of the day. The writ petition is accordingly allowed and by a writ of certiorari, the order impugned is quashed.
However, in the circumstances of the case, the parties shall bear their own costs.
