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| HC quashes order, directs to treat 7 yrs dice- non period as on duty | | | Early Times Reporter
Jammu |Sep 10 - Justice YP Nargotra of J&K High Court Jammu wing, in a significant judgment, quashed the order passed by DIG Crime and Railways and directed that the period from September 5, 1994 to June 2 , 2001 shall be treated as on duty and the petitioner paid all the consequential benefits.
Petitioner Mohd Amin while working as constable in GRP P/S Kathua in the year 1994, was taken into custody by the Joint Interrogation Jammu in connection with FIR No 2/1993 u/s 3/4 TADA, 153-A RPC and 3/25 Arms Act and remained in custody from September 5, 1994 to October 31, 1998. Vide Government order dated March 20, 1995, the petitioner was dismissed from service without holding any enquiry on finding that holding of enquiry against the petitioner would not be in the interest of state. The investigation into the FIR registered against the petitioner was closed for the reason that no evidence could be found for implicating petitioner with the commission of offences and was released. After being released from custody, petitioner served a notice requesting the respondents to permit him to join on duty. However, he was not allowed. The petitioner filed a petition in the High Court; the said petition was disposed off on March 10, 2000 quashing the dismissal of the petitioner with the direction to Secretary Home and DGP to look into the matter for such conduct of respondents and take appropriate action against the defaulting officer, if required. However, the respondents initiated the departmental enquiry against the petitioner, the Enquiry Officer vide his report dated September 16, 2002, besides other findings recommended that the delinquent official may be allowed to continue his services as a regular official in the department and his period of absence may be decided accordingly. This report of the enquiry officer was considered by the DIG Crime & Railways and ordered that the period of absence of petitioner be treated as dice-non.. The petitioner challenged the order in the present petition on various grounds.
Justice Nargotra, after hearing Adv WS Nargal appearing for the petitioner and Additional Advocate General Mr. BS Salathia appearing for the state, observed that Court is not in agreement with AAG. He was pointedly asked to show any evidence on which the competent authority relied upon for holding that the petitioner was involved in the activities which were detrimental and prejudicial to the security of the state. Additional Advocate General candidly admitted that there was no evidence except the suspicion available to infer that the petitioner was involved in such activities. Thus it is the admitted case of respondents that there is no evidence available to justify the inference drawn by the competent authority that the petitioner was involved in the activities which were detrimental and prejudicial to the security of the state. In the absence of such evidence available in the enquiry proceedings against the petitioner, the competent authority was not justified in brushing aside the recommendations of enquiry officer and taking a decision that the period of absence of petitioner should be treated as dice-non.
In the approved for reporting judgment Justice YP Nargotra further observed that if the petitioner remained absent from duty, it was not because of his own choice but because of the act of the state for which he was penalized. Therefore, the order impugned cannot be legally sustained. The petition filed by the petitioner is allowed and the order dated March 1, 2005 passed by the DIG Crime & Railways is quashed with the direction to the respondents to treat the period of petitioner with effect from September 5, 1994 to June 2, 2001 as on duty with all consequential benefits. JNF
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