Srinagar: While quashing an executive order that withheld the promotion to a Board of School Education (BOSE) official for a decade the J&K High Court today observed that penalty imposed in absence of “regular enquiry” is abuse of power and an arbitrary action.
The order against Abdul Rehman Dar, senior assistant, was passed on 28th of 2009 by Secretary BOSE Srinagar. It debarred him from any further promotion for a period of two years which extended beyond ten years. The penalty so imposed was for “dereliction” of the duty against the petitioner Dar who has superannuated since long.
“The enquiry which was held in the matter was a preliminary which is always done in the cases of such incidents to find out who was responsible for the same,” said Justice M A Chowdhary.
“The findings reached by the enquiry committee, as a result of the preliminary enquiry, cannot be said to be findings made against the petitioner in a departmental enquiry initiated against him for alleged negligence of duty or violation of the statutory rules,” the bench said.
It also said “the authorities concerned took the view that the departmental enquiry into the incident was enough but that clearly is not right.”
At the departmental enquiry, the court said, nobody is accused of negligence or dereliction of duty. “It is a kind of investigation made by the department under statutory rules.”
The court held that the purpose behind holding preliminary enquiry was 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”, observed Justice Chowdhry.
On a close scrutiny of the case on hand having regard to the factual as well as legal aspects of the same, the judge came to the conclusion that the penalty of withholding promotion of the petitioner was “arbitrary and is not sustainable for the reason that no departmental regular enquiry was conducted into the alleged misconduct.”
The petitioner is stated to have superannuated and there is no question of conducting any enquiry against him at this stage, he said.
The penalty imposed on the petitioner in absence of being held guilty in regular enquiry is the abuse of power by the respondents (JKBOSE) and this arbitrary action on the part of the respondents cannot be upheld, observed Justice Chowdhary and quashed the order of Secretary BOSE.
