Bashir Ahmad Shah & Ors vs State Of J&K And Ors
2021 Latest Caselaw 1614 j&K/2

                                                                                   S. No.24
                                                                                   Regular List

                HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                              AT SRINAGAR

                                               CM No.5629/2020 c/w
                                               CCP(S) No.134/2021 in SWP No.1353/2013


                Bashir Ahmad Shah & Ors
                                                                                .....Petitioner(s)
                                             Through: Mr. Shakir Haqani, Advocate
                          V/s
                State of J&K and Ors
                                                                                ..... Respondent(s)

                                             Through: Mr. Irfan Andleeb, Dy.AG
                CORAM:
                          HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                                 ORDER

15.12.2021

1. By this order, the Contempt Petition filed by the petitioners as also

the application filed by the respondents seeking extension of time

in holding and concluding the inquiry against the petitioners in

terms of judgment of the Writ Court dated 25.07.2019, are

proposed to be disposed of.

2. Petitioners had filed the writ petition bearing SWP No.1353/2013

before this Court and the same came to be disposed of in terms of

judgment and order dated 25.07.2019 passed by the Writ Court.

The operative portion of the judgment is reproduced as under:-

"28. Viewing the case of the petitioners for grant of relief in terms of above legal position, it is deemed proper to dispose of this petition with the following directions:

The respondent No.2 (Chief Engineer) shall hold an enquiry with regard to nature of allegations levelled against each of the petitioners. Each petitioner shall be individually made conversant with the accusations. It shall be seen by the said respondent as to how far it would be practicable to hold separate enquiry or joint enquiry against the petitioners SARVEEDA NISSAR herein under rules. The petitioners are directed to render all 2021.12.20 17:05 I attest to the accuracy and necessary assistance in taking the said enquiry to its logical integrity of this document

CM No.5629/2020 c/w CCP(S) No.134/2021in SWP No.1353/2013

conclusion and if the respondents deem it proper to call any information or document, which to their belief is in custody of the petitioners, the petitioners shall make the same available to the respondents.

In particular, the below mentioned tabulated information, unless the respondents do not deem it necessary to be procured from the petitioners, shall be provided by the petitioners to the respondents with regard to the enquiry directed to be held and for taking it to its logical conclusion:

(i) Individual details regarding date, month, year and how they got engaged,

(ii) When they became entitled for regularization,

(iii) Name and designation of the officer/officers under whose immediate subordination the petitioners have worked from time to time along with the details of the assignment held and the manner in which, according to the petitioners, work was elicited from them by the respondent department, year, date and month when order of their regularization was issued,

(iv) Name of the officer who prepared their service book,

(v) Details of salary/remuneration paid for each month from the date of their engagement and the mode of payment.

29. This exercise shall be undertaken and completed within a period of four months from the date copy of this order is served on the respondents. In case of failure to do so, without any reasonable cause, the enquiry shall lapse and the petitioners shall be held entitled to get salary and other service benefits, which they were receiving before stoppage of salary, under rules. Default/lapse shall be at the peril of the concerned authority/officer who will be personally liable to reimburse the State for the loss caused. Service benefits including salary unpaid if any and release of annual increments if any due, have to be released accordingly if the entry of the petitioners in the department is found genuine or has to be treated genuine by not taking the enquiry to logical conclusion in the aforesaid manner. In case during enquiry, respondents feel necessity to go through the record which is stated to be in custody of Vigilance Organization, they shall approach the said Organization who shall be bound to render necessary assistance and making available record either for perusal or otherwise required for taking the enquiry to its logical conclusion. The respondents, in case need is felt, may seek extension for concluding the enquiry referred above.

30. Disposed of as above."

3. A bare perusal of the afore quoted directions reveals that the

inquiry was to be completed by the respondents within a period of

four months from the date copy of the Writ Court judgment was

SARVEEDA NISSAR 2021.12.20 17:05 served upon them and in default certain consequences as indicated I attest to the accuracy and integrity of this document

CM No.5629/2020 c/w CCP(S) No.134/2021in SWP No.1353/2013

in the judgment of the Writ Court were to follow. However, it was

kept open to the respondents to seek extension in time for

concluding the inquiry.

4. It appears that the respondents could not complete the inquiry

within the stipulated time and on 21.11.2020 they filed CM

No.5629/2020 before this Court seeking extension of time in

holding and concluding the inquiry. On 17.12.2020 an order came

to be passed in the said application directing the respondent-Chief

Engineer Public Health Engineering Department, Srinagar to file

his personal affidavit indicating therein the steps taken on receipt

of the judgment regarding compliance qua holding of inquiry. The

requisite affidavit came to be filed by the Chief Engineer on

31.12.2020. Petitioners also filed their reply to the application of

the respondents seeking extension of time.

5. While the aforesaid proceedings were going on, the writ

petitioners filed the Contempt Petition on 29.03.2021. In the said

Contempt Petition the petitioners have contended that the

respondents have not concluded the inquiry within the time

stipulated by the Writ Court, as such, the consequences of default

indicated in the said order have to follow. The petitioners,

therefore, seek implementation of the subsequent directions and

they have also sought action against the respondents for having

violated orders of the Court.

6. The respondents have filed statement of facts in response to the

Contempt Petition in which the respondents have contended that SARVEEDA NISSAR 2021.12.20 17:05 I attest to the accuracy and integrity of this document

CM No.5629/2020 c/w CCP(S) No.134/2021in SWP No.1353/2013

the inquiry in terms of the judgment of the Writ Court stands

concluded and after inquiry it was found that the petitioners have

managed fraudulent engagement/appointment orders in the PHE

Department and it has been recommended that necessary

recoveries be made from the petitioners for the period they have

been paid. The disciplinary action against the officers/officials who

had issued fraudulent engagement/appointment orders in favour of

the petitioners has also been recommended in the report. A copy

of the report has been annexed with the compliance report.

7. I have heard learned counsel for the parties and perused the record

of the case.

8. In the application seeking extension of time to hold and conclude

the inquiry, respondents have submitted that for conducting the

inquiry records are required to be procured and perused which is

going to take some time, as such, extension in time for concluding

the inquiry is required to be granted.

9. In the affidavit filed by the Chief Engineer pursuant to order dated

17.12.2020, it is indicated that the certified copy of the Writ Court

judgment was received in the office of respondents on 10.2.2020.

It is averred in the affidavit that immediately thereafter the

Superintendent Engineering, PHE Mechanical Circle (North)

Srinagar, who is the Departmental Vigilance Officer, was asked to

conduct the fast track inquiry into the subject matter in terms of the

directions of the Writ Court. However, due to the outbreak of

Covid-19 infection and consequent lockdown no progress in the SARVEEDA NISSAR 2021.12.20 17:05 I attest to the accuracy and integrity of this document

CM No.5629/2020 c/w CCP(S) No.134/2021in SWP No.1353/2013

inquiry could be achieved and ultimately when the Covid-19

situation eased out the necessary documents were procured from

different quarters. According to the Chief Engineer all these

factors contributed to delay in conclusion of the inquiry.

10. There is no dispute to the fact that the respondents have not

completed the requisite inquiry within the time stipulated by the

Writ Court. Even if it is assumed that the respondents received the

copy of judgment on 10.02.2020, the inquiry as per time frame

given by the Writ Court, should have been concluded in June

2020.The question arises whether there is any justification for not

completing the inquiry within the stipulated time and consequent

extension of time in holding the same.

11.It is a fact of common knowledge that there was a massive

outbreak of Covid-19 infection in the year 2020 which engulfed

the whole world including India. As a consequence of outbreak of

the pandemic the country was put under lockdown for several

months and even when the conditions of lockdown were eased,

there were restrictions in functioning of offices, inasmuch as, some

offices were directed to work in online mode and in some cases

only 50% of the staff was permitted to attend the offices. These

conditions prevailed almost throughout the year 2020. Even the

Supreme Court in the case in Miscellaneous Application

No.665/2021 SMW(C) No.3/2020 In Re Cognizance For

Extension of Limitation vs. XXXX was compelled to issue

directions extending the period of limitation for filing of SARVEEDA NISSAR 2021.12.20 17:05 I attest to the accuracy and integrity of this document

CM No.5629/2020 c/w CCP(S) No.134/2021in SWP No.1353/2013

proceedings before various Court. Even the orders and directions

came to be issued for automatic renewal of driving licences, other

licences and documents pertaining to vehicles etc. In such a

scenario the justification for not completing the inquiry within the

time stipulated by the Writ Court, as has been given by the

respondents, appears to be plausible and acceptable. Even when

the situation improved the respondents were required to analyze a

host of documents and record pertaining to petitioners, which they

had to procure from various offices including Vigilance

Organization. It was an exercise of enormous nature, which

needed reasonable time to conclude. Thus the request of

respondents for extension of time in concluding the inquiry

appears to be justified.

12. For the foregoing reasons the application for extension in holding

the inquiry pursuant to the orders of the Writ Court is allowed and

the inquiry report filed by the respondents alongwith compliance

report filed in response to the Contempt Petition is taken on record.

13. The application stands disposed of.

CCP(S) No.134/2021:

In view of the fact that the respondents have been permitted

extended period of time in completion of inquiry, the inquiry

report submitted by the respondents is required to be taken into

consideration. The respondents have concluded the inquiry and

filed their report, whereby, it has been found that the appointment

of the petitioners is fraudulent in nature. Thus the other SARVEEDA NISSAR 2021.12.20 17:05 I attest to the accuracy and integrity of this document

CM No.5629/2020 c/w CCP(S) No.134/2021in SWP No.1353/2013

consequences of default would not follow in this case. The

judgment of the Writ Court, as such, stands complied with.

Therefore, no case for initiating proceedings against the

respondents is made out. The contempt petition shall stand

dismissed. However, it shall be open to the petitioners to avail

appropriate remedy as may be available in law to them as regards

the report of inquiry.

(SANJAY DHAR) JUDGE SRINAGAR 15.12.2021 Sarveeda Nissar

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

SARVEEDA NISSAR 2021.12.20 17:05 I attest to the accuracy and integrity of this document