CAT overturns dismissal of policemen

Srinagar, Sep 03: The Central Administrative Tribunal (CAT) in Srinagar Monday set aside an order whereby the authorities had dismissed from service three policemen for “dereliction” of duties including the one who had questioned his dismissal in his plea.

“The authorities were required to conduct the enquiry strictly in accordance with Rule 359 of the J&K Police Manual which has not been done in the instant case. Apart from that the respondents have failed to adhere to Rule 349 of the Police Rules, 1960,” a division bench of M S Latif, Member (J), and Prasant Kumar, Member (A), said quashing the dismissal of Shahnawaz Ahmad Teli.

Teli had petitioned against Order No 528/2017 dated May 24, 2017, whereby he along with PSOs Ghulam Nabi and Sajad Ahmad, was dismissed from service with immediate effect for their “carelessness, negligence, and cowardice towards their legitimate duties”.

Teli along with the two were deployed as PSOs to Advocate Javid Ahmad Sheikh of the Peoples Democratic Party (PDP) at Dialgam, Anantnag.

His contention before the tribunal was that on September 18, 2016, Sheikh allowed him to go to his home to prepare himself to proceed to Jammu along with him the next morning.

However, he said, during the September 8 night, in an ambush at Sheikh's residence, some unknown gunman decamped with arms including the weapon issued to the Teli. A case FIR No 258/2016 under Section 457, 307, and 392 of the Ranbir Penal Code (RPC) and 7/25 of the Arms Act to this effect was registered at Anantnag Police Station.

Immediately thereafter, Teli was placed under suspension for his “carelessness, negligence and cowardice” along with other PSOs which eventually led to their dismissal from service.

The authorities’ contention before the court was that on September 18, 2016, the terrorists attacked the residence of Advocate Sheikh and took away the weapons from their trunk without facing any resistance. They said that Teli, along with others deployed as PSOs, were supposed to keep their weapons with them and be ready to retaliate against any attack.

“Instead they dumped their weapons in their personal trunks and fled away from duty which is a gross violation of the instructions,” the authorities said.

“The departmental inquiry was initiated against the petitioner in view of gross negligence and carelessness and dereliction towards his duties and chargesheet was served on him and he was given full opportunity to participate in the enquiry and produce evidence if any but he failed to produce any cogent and reliable evidence.”

On the other hand, Bhat Fayaz, counsel representing Teli submitted that the “order of dismissal was based on an inquiry which had been conducted by “Superintendent of Police, Anantnag, in violation of Rule 349 of the J&K Police Rules.”

He submitted that a perusal of the rule would show that whenever the Superintendent of Police receives a complaint against a Police officer who during his duties has committed an offence as defined in the RPC, the substance of the complaint should be reported immediately to the District Magistrate who will decide whether the investigation of the complaint should be conducted by a Police officer or by a Magistrate.

“In the present case no such reference was made to the District Magistrate as such, the dismissal order was bad as Rule 349 of the J&K Police Rules 1960 had not been complied with,” he said.

“When an inquiry has not been conducted in the manner as prescribed under Rule 359 of J&K Police Rules, the order of dismissal does not survive for the test of law,” the tribunal said relying on a judgment of J&K High Court.

“The present case attracts applicability of failure of principles of natural justice and violation of Rule 359 of the Police Rules, 1960,” it said.

Allowing the petition, the tribunal set aside the order dated May 24, 2017, dismissing Teli from service along with the other two SPOs.

“However, this should not prevent the respondents from conducting a fresh inquiry against the petitioner (Teli) associating him with the enquiry and in accordance with the rules,” the court said.

While the court ordered that the setting aside of the dismissal order should not entitle Teli to the salary for the period he had remained out of service, it said: “However, the intervening period should be decided by the respondents on the basis of the findings of the inquiry, if held, only for pensionary benefits in accordance with the rules.”

The court said that the respondents should conduct a fresh inquiry into the matter within a period of four months in accordance with the law.

The court while reminding the respondents of their legal responsibility not to deal with cases of like nature in a casual or careless manner said: “Once there are serious allegations levelled against the delinquent employee which have the propensity of not only threatening the public order but also the security of the country, in such a situation, the respondents are expected to act with utmost care, diligence and caution.”