Jammu & Kashmir High Court – Srinagar Bench
Ghulam Ahmad Ganie vs Union Territory Of J&K Th. Pr. Secretary on 5 March, 2026
Author: Justicejaved Iqbal Wani
Bench: Justicejaved Iqbal Wani
IN THE HIGH COURT OF JAMMU& KASHMIR AND LADAKH
AT SRINAGAR
.......
WP(C) No. 3037/2024
Pronounced on:- 05.03.2026.
Uploaded on:- 09.03.2026.
Ghulam Ahmad Ganie.
S/O Mohammad Ganie.
R/O Mulshulla Beerwah, District, Budgam.
....... Petitioner(s)
Through: Mr. Hakim Suhail Ishtiaq, Advocate.
Versus
1. Union Territory of J&K th. Pr. Secretary
to Govt. Housing and Urban Development Department
J&K,Civil Sectt. Srinagar/Jammu.
2. Managing Director J&K, Housing Board, Srinagar/ Jammu.
3. Director Finance J&K Housing Board, Srinagar/Jammu.
4. Deputy General Manager 1st J&K Housing Board, Srinagar,
Kashmir.
......Respondent(s)
Through:- Mr. Bikrmdeep Singh, Dy. AG.
CORAM: HON'BLE MR. JUSTICEJAVED IQBAL WANI, JUDGE
JUDGMENT
05.03.2026.
1. Petitioner in the instant petition filed under Article 226 of the Constitution
has prayed for the following reliefs:-
a. By issuance of writ, order or direction one in the
nature of certiorari, the order No. 124 of 2024
dated 24-10-2024 issued by Respondent No. 2
be quashed.
b. By issuance of writ, order or direction one in the
nature of mandamus, the respondents be
commanded to reinstate the petitioner and allow
him to discharge his duties as Khilafwarzi
Inspector.
c. By issuance of writ, order or direction, one in the
nature of mandamus, the respondents be
commanded to pay full salary to the petitioner
w.e.f, 18-01-2021 till 24-10-2024.
2. Facts emanating from the pleadings and the material on record reveal that
certain complaints were lodged before the Divisional Commissioner,
Kashmir with regard to illegal sale of migrant property being plot No. 57,
situated at Housing Colony Baghi-Mehtab, Srinagar, whereupon the
Divisional Commissioner, Kashmir appointed one Dr. Bashir Ahmad Lone
(KAS), the then Vice Chairman of Srinagar Development Authority as an
Inquiry Officer for holding a preliminary enquiry not only with regard to
the sale of said plot of land but also about the execution of a power of
attorney as also with regard to plot No. 170 situated at Government
Housing Colony, Sanat Nagar, Srinagar, as well as the involvement of
land mafia and the officials of the Jammu and Kashmir Housing Board
(For short “the Board”), including the role of the petitioner therein.
3. In the said enquiry, the Inquiry Officer collected records from the Board as
well as contacted the original plot holder/allottee of plot No.57, namely
Shri A. K. Chakoo, whereafter, it got revealed that plot No. 57 had been
allotted to said A. K. Chakoo, by the Board vide allotment order dated 16th
February, 1985 and that a purported irrevocable power of attorney, dated
10th March, 2016, had been registered before the Sub-Registrar, Jammu in
favour of one Abdul Latief Mir S/O Mohammad Abdullah Mir R/O
Chewdara Tehsil Beerwah, Budgam, authorizing him to deal with the said
plot No. 57 and the said power of attorney had been a fraudulent document
as the allottee of the plot namely A. K. Chakoo, had denied to have
executed the said power of attorney and had alleged that someone else had
impersonated on his behalf while executing the said power of attorney and
that the marginal witnesses named in the said power of attorney were not
known to him.
The Inquiry Officer in the said enquiry also recorded the statement of
said Abdul Latief Mir (Attorney Holder), who had stated before the Inquiry
Officer that he intended to purchase the said plot of land and had
WP(C) No. 3037/2024 2|Page
approached the petitioner herein in this regard whom he knew and that it is
the petitioner who showed him various plots of land including plot No. 57,
and, that he agreed to purchase the said plot of land for an amount of Rs.
22.00 lacs and that he in furtherance of the said agreed sale deposited
approximately an amount of Rs. 16.00 lacs in the bank account of
petitioner herein and his son namely Imtiyaz Ahmad Ganie, on different
dates and that one of his neighbour namely Mohammad Yousuf had shown
interest in purchasing of said plot of land and that he got shocked upon
receiving a notice from the court, issued in a suit filed by Shri A. K.
Chakoo, against the power of attorney in question and, as such, felt
cheated and demanded back the money paid to the petitioner and his son
which was not returned back.
The Inquiry Officer had further during the course of the said enquiry
recorded the statement of the petitioner who had denied to have any role in
execution of the power of attorney in question or else the sale of plot of
land in question. The petitioner however, had stated before the Inquiry
Officer with respect to money, stated to have been paid by said Abdul
Latief Mir, into his bank account that he had no connection with said Abdul
Latief Mir.
During the course of the enquiry, the Inquiry Officer had also examined
one Bashir Ahmad Mir, Corporator of the Ward, Baghi-Mehtab, Srinagar,
who had stated that the petitioner had approached him and had offered to
facilitate the sale of plot of land in question and that during this period he
met one Mohammad Yousuf Shah, who resides in the adjacent plot No. 58
and had been entrusted the responsibility to look after the plot No. 57 by
Mr. A. K. Chakoo and according to the said Bashir Ahmad Mir, the said
WP(C) No. 3037/2024 3|Page
Mohammad Yousf Shah, had informed him that Shri A. K. Chakoo, had
never authorized any person through any power of attorney to sell the plot
of land in question.
With respect to plot No. 57, the Inquiry Officer after concluding and
opined that the petitioner is prima-facie involved in attempting to transact
with the said plot and had also been a facilitator in preparation and use of
documents regarding the said plot of land and that substantial monetary
transaction with respect to the said plot of land had been made by the
petitioner and his son and based upon the said conclusion, the Inquiry
Officer recommended that the matter be handed over to the Crime Branch,
Srinagar, for thorough investigation as he had not been able to track the
monetary transactions or else to determine genuiness or fakeness of power
of attorney.
In the said enquiry, with respect to plot No. 170, situated at Housing
Colony, Sanat Nagar, Srinagar, the Inquiry Officer observed that the said
plot had been allotted to one Shri J. N. Sathu S/O Ragu Ram Sathu R/o
Pratab Park, Srinagar, vide order dated 30th September, 1978, who
however, had not completed the necessary formalities and that one Salam-
ud-din Bajar-retired Assistant Director, Doordarshan Kendra, Srinagar,
had sought allotment of the said plot of a land, being the member of
scheduled tribe category and had obtained certain orders from the civil
court in this connection and that the plot No. 170, claimed by the said
Salam-ud-din Bajar, was subject matter of litigation.
4. The Divisional Commissioner, Kashmir on receipt of the said report
forwarded the same to respondent 1 herein and recommended the
WP(C) No. 3037/2024 4|Page
suspension of the petitioner and also forwarded a copy of the said enquiry
report to respondent 2 for registration of a case through the Crime Branch.
5. Thereafter the petitioner was placed under suspension vide order dated 18th
January, 2021, and was attached in the office of Collector Land
Acquisition of the respondent Board at Jammu and simultaneously,
disciplinary proceedings were initiated against the petitioner and in
furtherance thereof was served copies of charge sheet, statement of
imputation of misconduct and a copy of the preliminary report, calling
upon him to file reply thereto.
6. In the charge sheet served upon the petitioner, the first charge levelled
against the petitioner was that while functioning as Khalifwarzi Officer in
the Board, he, the petitioner misused his position in connection with plot
No. 57, situated at Housing Coloney Baghi-Mehtab, Srinagar, and had
financial dealings with respect to the said plot of land with one Abdul
Latief Mir, who purportedly was holding a fake power of attorney in
respect of the said plot of land allegedly executed by the allottee of the
plot, Shri A. K. Chakoo. It had also been alleged in the said charge that
certain money transactions had been entered into between the petitioner
and his son in respect of the said plot of land and based upon the said
charge(s), the petitioner was accused of having committed misconduct as
well as abused his official position including to have failed to have
absolute integrity.
7. Subsequently, respondent 1 vide order dated 29th March, 2021, appointed
Mr. Tufail Mathoo, the then Vice Chairman Lakes and Waterways
Development Authority (LAWDA) as the Inquiry Officer in the matter,
WP(C) No. 3037/2024 5|Page
besides appointing one Shri Rizwan Ahmad, Collector LAWDA as the
Presenting Officer.
8. Upon completion of the said enquiry by Mr. Mathoo, a report was
submitted before the respondent 1 on 10 th August, 2022, concluding
therein that the petitioner had tried to justify the financial transactions
between him and the above named Abdul Latief Mir, in a very vague and
suspicious manner and that there no involvement of the petitioner in the
preparation of the alleged power of attorney with respect to plot of land in
question yet the Inquiry Officer concluded that the charges framed against
the petitioner are established beyond doubt.
9. During the course of holding of the aforesaid enquiry with respect to plot
No. 57, another complaint had been filed against the petitioner with respect
to plot No. 170, situated at Housing Colony Sanat-Nagar, Srinagar and a
charge sheet consequently, also served upon the petitioner along with
statement of imputation of misconduct on 23 rd March, 2022, which the
petitioner denied in his reply dated 6 th April, 2022, whereafter one Shri
Mushtaq Ahmad-Collector of the Board came to be appointed as an Inquiry
Officer by respondent 2 and one Shri Yougash Sharma, Senior
Programmer of the Board as the Presenting Officer and in the said
enquiry, the complainant-namely, Syed Showkat Saleem Andrabi, who had
filed the complaint were summoned along with the petitioner for recording
of their statements and though the petitioner appeared before the Inquiry
Officer for recording of the statement, the said complainant did not appear
before the Inquiry Officer, however, the said complainant got his statement
virtually recorded and had stated therein the said statement that the
WP(C) No. 3037/2024 6|Page
petitioner is known to him and that the petitioner facilitated the sale of the
plot of land in question with one Ghulam Mohi-ud-din Dar.
Upon conclusion of the said enquiry, the Inquiry Officer concluded that
the petitioner had violated the Jammu and Kashmir Government
Employees Conduct Rules of 1971), as he had entered into financial
transaction with respect to the plot of land in question bearing No. 170.
10. Based upon the reports of the aforesaid two enquiries conducted against
the petitioner, pertaining to plot No. 57 and the plot No. 170, a show cause
notice dated 11.08.2022, came to be issued to the petitioner by the
respondent-Board, calling upon him as to why action be not taken against
him.
11.The petitioner in the meantime, during the pendency of the aforesaid
enquires had approached this Court through WP(C) No. 1725/2021,
challenging his suspension as also had prayed for the release of the
subsistence allowances and this Court in the said petition in terms of order
dated 6.05.2021, directed the respondents to consider his case for payment
of subsistence allowances in accordance with the rules.
12. During the pendency of the aforesaid petition, the respondent-Board
issued the impugned order dated 24th October, 2024, dismissing the
petitioner from service.
13.Petitioner has challenged the impugned order on multiple grounds,
fundamentally on the ground that the dismissal order owes its origin to two
enquiries which were conducted in breach and violation of law as well the
principles of nature justice, in that, the petitioner was never permitted to
cross- examine the complainant’s whose instances the enquiries had been
initiated as also the witnesses examined during the course of the said
WP(C) No. 3037/2024 7|Page
enquires and that in the said enquiries held against the petitioner, the
record and findings of the preliminary enquiry earlier held came to be
relied upon by the respondents with respect to plot No. 57, although in
respect of plot No. 170, the petitioner had not been found involved therein.
14.Objections to the petition have been filed by the respondents wherein the
petition is being opposed and the order of dismissal justified, inter-alia on
the premise that the petitioner had been involved in serious irregularities
in discharge of his duties in the Board, besides having committed blatant
illegalities qua various properties of the Board, necessitating holding of
departmental enquiries against the petitioner, while stating further that
upon receipt of the complaints as also findings of the preliminary
enquiry(s), the petitioner was placed under suspension and the matter was
also placed before the Board of Directors which had directed that the
matter be taken to its logical conclusion in accordance with law. It is
further stated in the objections that the petitioner was served with a show
cause notice, calling upon him to explain his position viz-a-viz, the findings
of the Inquiry Officer and after considering the entire material, the
Competent Authority ordered dismissal of the petitioner from the service
in terms of the order under challenge and that the dismissal of the
petitioner has been lawful, justified and ordered in the interest of
maintaining the administrative discipline in the Board. The respondents
have lastly in the objections filed to the petition pleaded for dismissal of
the petition, being devoid of any merit.
Heard counsel for the parties and perused the record available on the
file as also the record produced by counsel for the respondents in
compliance to the previous directions of this Court.
WP(C) No. 3037/2024 8|Page
15.According to Mr. Hakim Suhail, appearing counsel for the petitioner, the
Board during its 48th Board of Directors meeting had been apprised about
the status of the petitioner as well the proceedings initiated against him
whereupon the Board of Directors in the said meeting advised the
respondent-Board to take the matter to its logical conclusion. Mr. Hakim
also invited the attention of this Court to 47th Board of Director’s meeting,
held on 22nd October, 2019, at Agenda 47.09 and would contend that the
suspension matter of the petitioner had been considered for his alleged
involvement in the encroachment of land by the Board of Directors and
also a charge sheet came to framed against the petitioner on 19th June,
2012. Attention of the Court was also invited to 42nd Board of Directors
meeting by Mr. Hakim Suhail, pertaining to the proposed action to be
taken against the petitioner as to whether the petitioner’s services be
terminated or any major penalty be imposed upon him, wherein the Board
of Directors had resolved to terminate the services of the petitioner.
Mr. Hakim Suhail, would further contend that feeling aggrieved of the
said decision, the petitioner preferred SWP No. 2306/2013, before this
Court wherein this Court in terms of an interim order dated 27th
November, 2013, stayed the suspension order of the petitioner with further
directions to the respondents not to terminate the services of the petitioner,
as a consequence whereof the respondents withdrew the suspension order
in terms of order dated 20th October, 2014, and the case of the petitioner
was placed before 43rd Board of Directors meeting for release of the
grade in favour of the petitioner wherein the Board resolved that an
Establishment Committee be constituted for scrutiny of recommendation
of the establishment cases, whereafter in the 47th Board of Directors
WP(C) No. 3037/2024 9|Page
meeting, respondent 2 came to be called upon to reject the case of the
petitioner with regard to the promotion/release of grade.
Mr. Hakim also invited the attention of this Court to the 48 th Board of
Directors meeting having been referred in the impugned order at Agenda
47.09, which required the respondent 2 to take the matter to its logical
conclusion and that the Agenda 48.02, required the respondent 2 to reject
the case of the petitioner for promotion/release of grade.
Mr. Hakim Suhail, also referred to the minutes of the Review
Committee held on 22nd of July, 2024, wherein the case of the petitioner
had been recommended by the internal committee held in its meeting on
28th August, 2023, for compulsory retirement of the petitioner, however,
the Review Committee observed that Board of Directors in its 42nd
meeting had already resolved that the services of the petitioner be
terminated and, therefore, called upon the Board to re-examine the case of
the petitioner as to why the decision to terminate him from service had
not been implemented.
According to Mr. Hakim, the respondent-Board did not withdrew the
suspension order of the petitioner pursuant to the orders passed in SWP
No. 2306/2013, on 27.11.2013, however, the same was withdrawn in view
of recommendations of the Committee constituted by the Board on 12th
August, 2014, which had recommended reviewing of the suspension case
of the petitioner in light of the findings of the said Committee, as
according to Mr. Hakim, had the respondents withdrawn the suspension of
the petitioner pursuant to the orders of the Court, same would have been
withdrawn immediately after passing of the order on 27 th November,
2013.
WP(C) No. 3037/2024 10 | P a g e
Mr. Hakim, would lastly contend that prima-facie reading of the
enquiry reports conducted in the matters against the petitioner would
tend to show that the same had been conducted in perfunctory manner
in breach and violation of norms settled for holding such enquiry in the
departmental proceedings inasmuch as, in violation of principles of
natural justice and that the petitioner had been held guilty for
misconduct in respect of which no charge had been framed and also
irrespective of the fact that the Inquiry Officer had observed and
opined that there has been no evidence found against the petitioner, qua
the allegations in respect of plot No. 57.
16. On the contrary Mr. Bikramdeep Singh, Dy. AG, while opposing the
submissions and contentions made and urged by counsel for the petitioner
would defend the order of dismissal passed against the petitioner and in
this regard heavily relied upon the reply affidavit filed to the petition as
well as record appended thereto, besides the record produced before the
Court during the course of hearing of the case.
17. Before proceedings further in the matter, it is significant to mention here
that the dismissal order issued against the petitioner essentially had been
founded upon three enquiries, one conducted at the instance of the
Divisional Commissioner, Kashmir and two others by the respondent-
Board.
18. It is noteworthy here that in law the purpose of holding a preliminary
enquiry is only to find out that there exists sufficient material to initiate a
disciplinary enquiry against a delinquent employee and that the findings
recorded in such preliminary enquiry cannot constitute an evidence unless
such an evidence is produced and subjected to cross-examination during
WP(C) No. 3037/2024 11 | P a g e
the regular departmental enquiry. A reference in this regard to the
judgment of the Apex Court, heavily relied upon by the counsel for the
petitioner titled as ” State of Uttar Pradesh through Principal Secretary,
Department of Pancyayati Raj, Lucknow vs. Ram Prakash Singh, reported in
2025 SCC online, SC 891″ would be appropriate and advantageous
wherein, at paragraphs 12 to 14 and 17, following has been observed:-
12. Bareilly Electricity Supply Company Limited v. The Workmen and Others is
a decision arising from an award under the Industrial Disputes Act, 1947. Law
has been laid down therein as follows:
“9. … Innumerable statements, letters, balance-sheet, profit and loss
account and other documents called for or otherwise were filed on behalf of the
appellants. It cannot be denied that the mere filing of any of the aforementioned
documents does not amount to proof of them and unless these are either
admitted by the respondents or proved they do not become evidence in the case.
14. … But the application of principle of natural justice does not imply that
what is not evidence can be acted upon. On the other hand what it means is that
no materials can be relied upon to (1971) 2 SCC 617 establish a contested fact
which are not spoken to by persons who are competent to speak about them and
are subjected to cross- examination by the party against whom they are sought to
be used. When a document is produced in a Court or a Tribunal the questions
that naturally arise is, is it a genuine document, what are its contents and are the
statements contained therein true. When the appellant produced the balance-
sheet and profit and loss account of the company, it does not by its mere
production amount to a proof of it or of the truth of the entries therein. If these
entries are challenged the appellant must prove each of such entries by producing
the books and speaking from the entries made therein. If a letter or other
document is produced to establish some fact which is relevant to the enquiry the
writer must be produced or his affidavit in respect thereof be filed and
opportunity afforded to the opposite party who challenges this fact. …
(emphasis ours)
13. In Roop Singh Negi v. Punjab National Bank and Others, it was held that an
officer conducting an enquiry has a duty to arrive at findings in respect of the
charges upon taking into consideration the materials brought on record by the
parties. It has also been held therein that any evidence collected during
investigation by an investigating officer against the accused by itself could not be
treated to be evidence in the disciplinary proceedings.
WP(C) No. 3037/2024 12 | P a g e
14. What follows from a conjoint reading of the above two decisions is and what
applies here is that, „materials brought on record by the parties‟ (to which
consideration in the enquiry ought to be confined) mean only such materials can
be considered which are brought on record in a manner known to law. Such
materials can then be considered legal evidence, which can be acted upon.
Though the Indian Evidence Act, 1872 is not strictly applicable to departmental
enquiries, which are not judicial proceedings, nevertheless, the (2009) 2 SCC
570 principles flowing there from can be applied in specific cases. Evidence
tendered by witnesses must be recorded in the presence of the delinquent
employee, he should be given opportunity to cross- examine the witnesses and no
document should be relied on by the prosecution without giving copy thereof to
the delinquent – all these basic principles of fair play have their root in such Act.
In such light, the documents referred to in the list of documents forming part of
the annexures to the chargesheet, on which the department seeks to rely in the
enquiry, cannot be treated as legal evidence worthy of forming the basis for a
finding of guilt if the contents of such documents are not spoken to by persons
competent to speak about them. A document does not prove itself. In the
enquiry, therefore, the contents of the relied-on documents have to be proved by
examining a witness having knowledge of the contents of such document and
who can depose as regards its authenticity. In the present case, no such exercise
was undertaken by producing any witness.
17. Next, the decision in Nirmala J. Jhala v. State of Gujarat and
Another18 deserves consideration where the concept of preliminary enquiry
being distinct from a regular enquiry was noticed and discussed. Paragraphs 45
and 51 from such decision read as follows:
“42. A Constitution Bench of this Court in Amalendu Ghosh v. North
Eastern Railway, AIR 1960 SC 992, held that the purpose of holding a
preliminary inquiry in respect of a particular alleged misconduct is only for the
purpose of finding a particular fact and prima facie, to know as to whether the
alleged misconduct has been committed and on the basis of the findings recorded
in preliminary inquiry, no order of punishment can be passed. It may be used
only to take a view as to whether a regular disciplinary proceeding against the
delinquent is required to be held.
43. Similarly in Champaklal Chimanlal Shah v. Union of India, AIR 1964
SC 1854, a Constitution Bench of this Court while taking a similar view held
that preliminary inquiry should not be confused with regular inquiry. The
preliminary inquiry is not governed by the provisions of Article 311(2) of the
Constitution of India. Preliminary inquiry may be held ex parte, for it is merely
for the satisfaction of the Government though usually for the sake of fairness, anWP(C) No. 3037/2024 13 | P a g e
explanation may be sought from the government servant even at such an inquiry.
But at that stage, he has no right to be heard as the inquiry is merely for the
satisfaction of the Government as to whether a regular inquiry must be held.
45. In view of the above, it is evident that the evidence recorded in
preliminary inquiry cannot be used in regular inquiry as the delinquent is not
associated with it, and opportunity to cross- examine the persons examined in
such inquiry is not given. Using such evidence would be violative of the
principles of natural justice.”
What emanates from the above principles and position of law
laid down by the Apex Court in the judgment (supra), is in a
departmental enquiry only that material can be considered which
was brought on record in a manner known to law and such
material in legal parlance can said to be “Legal Evidence” which
alone can be acted upon. Though it is equally settled law that the
provisions of the Evidence Act 1872 are not applicable mutatis
mutandis in the departmental enquiry which enquiry is not a
judicial proceeding, nonetheless the principles flowing therefrom
can be applied in specific cases and evidence tendered by a
witness during such departmental enquiry must be recorded in
presence of the delinquent employee who has to be given an
opportunity to cross-examine or rebut such evidence/witnesses,
thereby manifestly suggesting that if a documentary evidence is
relied upon in a departmental enquiry against a delinquent
official not only the contents of the said documentary evidence
are to be proved by examining a witness thereof having
knowledge of the contents of said documentary evidence but the
delinquent employee also is to be provided opportunity to cross
examine such witness.
WP(C) No. 3037/2024 14 | P a g e
A further reference in regard to the ambit and scope of a
preliminary enquiry laid down by the Apex Court in case titled as
“Nirmala J. Jhala v. State of Gujrat and Another, (2013) 4 SCC 301,
would also be relevant, wherein at paragraphs 42 to 45 following has been
held:-
“42. A Constitution Bench of this Court in Amalendu Ghosh v.
North Eastern Railway [AIR 1960 SC 992] , held that the purpose of
holding a preliminary inquiry in respect of a particular alleged
misconduct is only for the purpose of finding a particular fact and
prima facie, to know as to whether the alleged misconduct has been
committed and on the basis of the findings recorded in preliminary
inquiry, no order of punishment can be passed. It may be used only to
take a view as to whether a regular disciplinary proceeding against the
delinquent is required to be held.
43. Similarly in Champaklal Chimanlal Shah v. Union of India [AIR
1964 SC 1854] a Constitution Bench of this Court while taking a
similar view held that preliminary inquiry should not be confused with
regular inquiry. The preliminary inquiry is not governed by the
provisions of Article 311(2) of the Constitution of India. Preliminary
inquiry may be held ex parte, for it is merely for the satisfaction of the
Government though usually for the sake of fairness, an explanation
may be sought from the government servant even at such an inquiry.
But at that stage, he has no right to be heard as the inquiry is merely
for the satisfaction of the Government as to whether a regular inquiry
must be held. The Court further held as under : (AIR p. 1862, para
12)
“12. … There must therefore be no confusion between the
two enquiries and it is only when the government proceeds to
hold a departmental enquiry for the purpose of inflicting on
the government servant one of the three major punishments
indicated in Article 311 that the government servant is
entitled to the protection of that article [, nor prior to that].”
44. In Narayan Dattatraya Ramteerthakhar v. State of
Maharashtra [(1997) 1 SCC 299 : 1997 SCC (L&S) 152 : AIR 1997
SC 2148] this Court dealt with the issue and held as under:
“… a preliminary inquiry has nothing to do with the enquiry
conducted after issue of charge-sheet. The preliminary enquiry isWP(C) No. 3037/2024 15 | P a g e
only to find out whether disciplinary enquiry should be initiated
against the delinquent. Once regular enquiry is held under the Rules,
the preliminary enquiry loses its importance and, whether
preliminary enquiry was held strictly in accordance with law or by
observing principles of natural justice of (sic) nor, remains of no
consequence.”
45. In view of the above, it is evident that the evidence recorded in
preliminary inquiry cannot be used in regular inquiry as the delinquent is
not associated with it, and opportunity to cross-examine the persons
examined in such inquiry is not given. Using such evidence would be
violative of the principles of natural justice.
19. Having regard to the aforesaid position of law and reverting back to the
case in hand, examination of record of enquiry reveals that several
statements of the witnesses have had been relied upon in the enquires
reports by the Inquiry Officer in respect of which statements, the
petitioner has not been given an opportunity to cross examine the said
witness and admittedly the said statements had been examined during the
holding of the preliminary enquiry against the petitioner and ironically
relied upon in the regular departmental enquiry by the Inquiry Officer that
too without providing an opportunity to the petitioner to rebut the same by
cross examination.
20. It is significant to note here that even in respect of the enquiry held by the
Inquiry Officer qua the plot No. 57, though the Inquiry Officer had opined
that there is no evidence showing the involvement of the petitioner in the
preparation of the alleged fake power of attorney, yet the Inquiry Officer
has concluded that all the charges drawn and framed against the petitioner
stand established beyond doubt. Such a finding by the Inquiry Officer ex-
facie is inconsistent, raising serious doubts about the mode and manner in
which the said enquiry had been conducted against the petitioner which
WP(C) No. 3037/2024 16 | P a g e
ultimately had resulted into issuance of the impugned order of dismissal
against the petitioner. The Inquiry Officer seemingly has proceeded on
surmises and conjectures without there being any legal evidence on record
and has, recorded findings perverse to the evidence.
21. This Court is mindful of the position of law that the scope of judicial
review in matters arising out of departmental proceedings is limited as the
Court would not sit in appeal over the said proceedings however, it is
equally beaten position of law that where a decision making process itself
is vitiated by the breach of principles of natural justice or on the ground
of perversity or non-availability of legal evidence, the court would be
justified in displaying indulgence and interfering in such matters. A
reference in this regard to the judgment of the Apex Court passed in case
titled as “Parvin Kumar vs. Union of India and others, reported in 2020
(9) SCC 471″, would be relevant and advantageous wherein at paragraph
26, following has been laid down:-
“26…………..Judicial review is not an appeal from a
decision but a review of the manner in which the decision is
made. Power of judicial review is meant to ensure that the
individual receives fair treatment and not to ensure that the
conclusion which the authority reaches is necessarily
correct in the eye of the court. When an inquiry is conducted
on charges of misconduct by a public servant, the
Court/Tribunal is concerned to determine whether the
inquiry was held by a competent officer or whether the
inquiry was held by a competent officer or whether rules of
natural justice are complied with. Whether the findings or
conclusions are based on some evidence, the authority
entrusted with the power to hold inquiry has jurisdiction,
power and authority to reach a finding of fact or conclusion.
But that finding must be based on some evidence. …….. If
the conclusion or finding be such as no reasonable person
would have ever reached, the Court/Tribunal may interfereWP(C) No. 3037/2024 17 | P a g e
with the conclusion or the finding, and mould the relief so as
to make it appropriate to the facts of each case.”
22.Viewed thus, for what has been observed, considered and analyzed
hereinabove, the only inescapable conclusion that can be drawn is that the
disciplinary proceedings initiated by the respondents against the petitioner
having culminated into issuance of impugned order suffers from serious
legal infirmities, as a result whereof, the instant petition deserves to be
allowed.
23. Accordingly, the petition is allowed and the impugned order No. JKHB-
124 of 2024 dated 24.10.2025, is quashed, however, the respondents shall
be at liberty to hold a fresh enquiry against the petitioner qua the
allegations in the matter which enquiry shall be held and conducted
strictly in accordance with the applicable rules and principles of law,
preferably within a period of two months from the date of passing of this
judgment and order. In the event of failure of respondents to hold and
conduct any such enquiry against the petitioner, the respondents shall be
deemed to have forfeited the said liberty granted in this regard. Further the
payment of salary and other emoluments payable to the petitioner shall
remain subject to the holding of the enquiry if the respondents chose to
conduct the same as provided above.
24.Disposed of along with connected CM(s).
(Javed Iqbal Wani)
Judge
Srinagar
05.03.2026.
“Ab. Rashid PS”
Whether the judgment/order is speaking; Yes/No
Whether the judgement/order is reportable; Yes/NoWP(C) No. 3037/2024 18 | P a g e
