Srinagar, June 07: The High Court of Jammu & Kashmir and Ladakh ruled that holding departmental proceedings and recording finding of guilt against any delinquent and imposing punishment for the same, is quasi-judicial function and not administrative function.
Quashing an order issued by Secretary J&K State Board of School Education (BOSE) Srinagar against the petitioner, Abdul Rehman Dar who was working as Senior Assistant in the Board, the court noted that the penalty of withholding promotion of the petitioner from the date he becomes due for next promotion, is arbitrary and is not sustainable for the reason that no departmental regular enquiry was conducted into the alleged misconduct.
Hearing a plea of Dar, Justice M.A Chowdhary recorded that the penalty imposed on the petitioner in absence of being held guilty in regular enquiry is the abuse of power by the respondents and this arbitrary action on the part of the respondents cannot be upheld.
The court noted that only preliminary enquiry had been conducted and the purpose behind holding preliminary enquiry is only to take prima facie view as to whether there can be some substance in the allegations made against an employee, which may warrant regular enquiry.
"The evidence recorded in the preliminary enquiry cannot be used in regular departmental enquiry, as the delinquent is not associated with it and opportunity to cross examine the persons examined in such enquiry is not given," Justice Chowdhary recorded.
Citing Supreme Court directives in a case titled "Amalendu Ghosh Vs. North Eastern Railway(By The District Traffic Superintendent)" the court recorded that the government servant cannot be punished on the findings of preliminary enquiry without holding a disciplinary enquiry after serving a charge sheet.
According to the respondents, the petitioner while posted at Branch Office Kulgam in the year 2008 allowed one Mohammad Yaseen Magray to fill the examination form of SSE (10th Class) Session-2008 Bi-Annual at late stage and entertained it notwithstanding the fact that the said candidate had already passed the SSE in the year 2003.
The form of the said candidate was accepted by the petitioner without checking the previous record.
It was submitted that the respondents constituted a Fact Finding Committee to probe and fix the responsibility of the erring official.
The respondents stated that the Committee held the said candidate guilty of unfair means and also held the petitioner responsible for the said irregularity.
Respondents further stated that the Committee, so constituted, had considered the matter and decided to take a lenient view and only withheld the promotion of the petitioner for two years.
Perusing the material on record, the court noted that it is crystal clear that no disciplinary committee was constituted by the respondents to conduct regular enquiry into the charges against the petitioner.
The court recorded that the committee, so constituted, had been asked to pinpoint and probe into the irregularity committed by the officials of the Sub Office Kulgam including the petitioner, and to fix responsibility of the Principal HSS Devsar, Section Officer, and the petitioner.
It underscored that the committee had also recommended action to be taken against the then Principal HSS Devsar, the then S.O, who was warned to be careful in future, whereas the petitioner was recommended to be penalized by withholding his next promotion for a period of two years.
"Respondents acted upon the afore-stated report without conducting the disciplinary enquiry to look into the charge against the petitioner," the court said.
Justice Chowdhary pointed out that as per the Service Law Jurisprudence, the official having committed misconduct during his service is to be charge-sheeted by framing articles of charge and to lead evidence before the enquiry officer as appointed, where the delinquent official must have a right to cross examine the witnesses and also lead evidence in his defense.
"Here in this case it appears that the respondents have said goodbye to this established procedure and have hastily rushed to impose penalty, as was recommended by the committee, which was just holding preliminary enquiry to pinpoint and probe the role of the different officials including the petitioner herein," the court noted.
The bench recorded that it was incumbent upon the respondents to appoint an enquiry officer, serve charge sheet upon the petitioner as delinquent, lead evidence in support of the charge of misconduct and allow him to bring evidence in his defense.
"Respondents have thus committed grave irregularity by not conducting regular enquiry and imposing penalty of withholding next promotion of the petitioner for the period of two years from the date he becomes due for next promotion," the court said.
Allowing the plea, the bench recorded that the petitioner is stated to have superannuated and there is no question of conducting any enquiry against him at this stage.
While quashing the order, the court held that the order issued by the Board having been passed in arbitrary manner without conducting disciplinary enquiry into the alleged misconduct against the petitioner, is not sustainable.