B.S. Walia, J. - (1.) This Letters Patent Appeal has been filed against the dismissal of SWP No. 2085/1998, by the learned Single Judge wherein the appellant/petitioner had sought quashing of impugned Order No. 423 of 1998, dated 06.05.1998 as also the issuance of Writ of Mandamus commanding the respondents to allow him to continue in service with all consequential benefits from the date of passing of the impugned order. Learned counsel for the appellant contends that the order passed by the learned Single Judge is liable to be set aside and writ petition be allowed, inter alia, on the ground that the enquiry was not fair and proper as: i) Same was conducted at the back of the appellant and he was not permitted to cross -examine the witnesses; ii) Appellant was not given copies of the documents relied upon by the enquiry officer; iii) Appellant was not permitted to adduce defence evidence; iv) Termination order was not served on the appellant and the same was provided to him on 19.05.1998 only on his applying for certified copy of the same; v) Request by the appellant for production of officers and constables posted at Jammu as defence witnesses was refused; vi) Enquiry was conducted in a biased manner and appellant was rot permitted to examine the officers and police personnel with whom he remained at Jammu from 19.10.1997 to 24.10.1997; vii) Charge sheet could not be issued by enquiry officer and the charges levelled being of criminal nature were required to be investigated by conducting a trial, therefore, enquiry could not have been conducted; viii) Harsh punishment was given to the appellant while no such punishment was given to the constable on guard duty with the same vehicle; x) There was no proper application of mind and respondent No. 4 was not competent to appoint the enquiry officer who conducted the enquiry.
(2.) That on the other hand learned counsel for the respondents contended that the learned Single Judge was correctly of the view that as per record the appellant was guilty of grave misconduct on account of misuse of the government vehicle for personal gains w.e.f. 19.10.1997 to 25.10.1997 while working as a driver, that a proper summary of allegations was served on the appellant and enquiry conducted as per guidelines under the J & K Police Manual, that the enquiry officer recorded statements of the witnesses who had deposed against the appellant, that the enquiry revealed that sufficient opportunity had been provided to the appellant to cross -examine the witnesses and further that the appellant was given due opportunity to rebut the evidence against him. He further contended that on conclusion of the enquiry proceedings, a show cause notice about the proposed punishment was also issued to the appellant to which he gave reply, denying the charges levelled against him and took up the plea mainly of personal rivalry of some employees of the Bn. who were bent upon implicating him in a false case so as to lower him in the eyes of his officers. Learned counsel further highlighted that the learned Single Judge was pleased to observe that as per reply to the show cause notice, the appellant had not taken the plea of not having been provided an opportunity to participate in the proceedings. On the basis of the same, learned counsel contends that the learned Single Judge was of the view that the enquiry had been conducted in accordance with law, the impugned order was comprehensive, no illegality or irregularity had been committed qua the same and in view thereof challenge to the order of dismissal was rejected and the writ petition dismissed.
(3.) Brief facts of the case necessary for the adjudication of the instant Letters Patent Appeal are that: - The petitioner constable while working as driver with the J & K Armed Police, 5th Bn. Anantnag was deputed for government duty on Truck No. JK01A -8534, vide office movement order dated 13.10.1997 whereupon the petitioner along with other officials proceeded to Jammu on the same day and returned to Bn. Headquarter on 26.10.1997. Pursuant to the return of the appellant in Bn. Headquarters it came to the notice of the senior officers that the appellant had misused the government vehicle for his personal gains w.e.f. 19.10.1997 to 25.10.1997 and had maliciously with intention to commit fraud with the department undertaken an unauthorised trip from Jammu to Srinagar and vice versa by carrying private goods/contrabands items for remuneration. The appellant was placed under suspension and departmental enquiry was ordered, on conclusion of which, charges were found to be proved whereupon vide Order No. 423 of 1998, dated 06.05.1998 the appellant was dismissed from service by the Commandant, JKAP 5th Bn. Anantnag.;