Srinagar: The Jammu and Kashmir High Court today directed the Union Ministry of Defence to reinstate a Sashastra Seema Bal (SSB) constable dismissed from service on charges of unauthorised absence from duty in 2008.
In a writ petition by Nazir Ahmad Najar of Utterpos Beerwah Budgam versus Union of India through Ministry of Defence and Director General SSB and others, Justice M A Chowdhary allowed the petition and said “no structured enquiry requiring serving the articles of charge, so as to satisfy the requirement of natural justice of being heard, was not provided to the petitioner.”
The court said that the respondent-Commandant, Commandant Officer, Training Centre Kumar SSB, Simla Himachal Pradesh, just after recording unauthorized absence and desertion at the back of the petitioner, ordered his removal from service.
“The order of removal of the petitioner from service cannot be sustained in law. In consequence thereof, the impugned order, striking off the petitioner from the service as well, cannot be sustained,” it said.
The petitioner said that his termination order was passed in clear and brazen violation of the provisions of Central Reserve Police Force, Act 1949 and Rules 1955 framed thereunder. “Neither enquiry was conducted in the matter nor principles of natural justice were followed while removing the petitioner from service,” his lawyer argued.
The petitioner was appointed as constable in 2008 and asked to report at Training Centre SSB, Sapri Himachal Pradesh. It was amidst his training in 2008 Amarnath land row agitation erupted in the constable’s home state in Jammu and Kashmir. The petitioner’s family back at home was threatened of dire consequences by the “antinational elements”, he stated.
The petitioner wanted to visit his family at home in J&K and accordingly requested for leave to his superiors, which was turned down. This compelled the petitioner to leave the training halfway to visit his family in J&K only to let them have some sense of security, the lawyer said, adding he then reported back for re-joining the service but was disallowed without affording hearing to him.
The petitioner was informed that he has been removed from service, but no termination/removal order was ever supplied to him, the lawyer said.
The respondents countered “the petitioner was aware of the said order of removal and has not deliberately challenged the said order and on this count alone the writ petition is liable to be dismissed. It is the further stand of the respondents that the order impugned has been passed at Kangra Himachal Pradesh, as such, cannot be challenged in the present petition, as this court lacks the territorial jurisdiction to entertain the said petition.” It added that without invoking the remedy of appeal, the petitioner has directly approached this court.
The respondents stated that the allegations of the petitioner were false and fabricated just to mislead the court.
After hearing the contending parties, Justice Chowdhary observed “since the petitioner had resided within the territorial jurisdiction of this court, being permanent resident of district Budgam, after his alleged desertion from his Unit and the removal/termination order was served upon him at his permanent address, the petitioner is competent to maintain his writ petition before the J&K High Court.”
He said the provisions of Rule 14 of CCA Rules 1965 were not followed by the authorities though they claimed to have conducted enquiry in the case of the petitioner under the provisions of the said Rule 14 of CCA while passing the dismissal order.
He opined “in case of imposing major punishment in departmental proceedings, appointment of presenting officer is must”. Admittedly, in the present case, no presenting officer was appointed, the entire departmental proceedings get vitiated and are liable to be set aside.”
The instant case, the judge said, “is a clear case of abuse of natural justice wherein the petitioner had to undergo the departmental enquiry when he was not in a position to participate in the said enquiry. He was in a mental trauma as his whole family back home in J&K was under threat of anti-national elements, while undergoing training in Himachal Pradesh, and in such a situation he could not be expected to have made a valid defence for him.”
The punishment of removal from service is disproportionate to the alleged charge and is not warranted by the law, said the judge.
He directed the respondents “to reinstate the petitioner in service…..till a decision taken by the Competent Authority whether or not any departmental proceedings need to be initiated against him”.
