To

The
Principal Secretary to Govt
Health and Medical Education
Deptt Civil Secretariat
Srinagar/Jammu.

Reference – HME-HRN/2/2021-02 DATED 10-05-2022, memorandum

of article of charges
And

IN THE MATTER OF: -

reply/statement of defence on behalf of Shri

Sudesh Kumar Senior Assistant Health and
Medical Education Department.

MAY IT PLEASE YOUR HONOUR;

Respondent most humbly submits reply to the article of charges

as under-

Preliminary objections-

1. That the departmental enquiry may kindly be kept pending in

view of the fact that on similar set of allegations FIR No. 12 of
2020 police station ACB Jammu was registered on 30-07-2002
on the complaint of one Dr Bodh Raj Kundal, Professor
(Neurology) Govt Medical College, Jammu.

2. That The complainant has made allegations against one Shri

Javed Ahmed, Senior Assistant regarding demand and
acceptance Rs 25 thousand as an illegal gratification thereby
misusing and abusing his official position. There is no direct or
indirect allegations of demand offer and acceptance so far as
answering respondent Is concerned however he too has been
arrayed as a Co-accused in terms of sec 120-B RPC which is
denied.

3. That the answering respondent submits that once similar facts

and similar set of evidence forms bases of criminal
investigation/criminal prosecution, the law is settled that in
order to prevent prejudice to be caused to the delinquent official,
the departmental enquiry must be kept pending awaiting result
of the criminal prosecution. The Honable Supreme Court in the
number of judgements has reiterated this position. For facility of
 reference, a two judge bench judgment in case titled Avinash
Sadashiv Bhosale (D) Thr.LRs. V/s Union of India and Ors.
reported in 2012 legal eagle (SC) 483 has summed up the legal
position in para 44 (iv) as under –
(i) Departmental proceedings can go on
simultaneously with the criminal trial
except where both the proceedings are
based on the same set of facts and the
evidence on both the proceedings is
common.

4. That as both the proceedings are based on the same set of facts
and the evidence in both the proceedings is common, complex
questions of facts and law are also involved, hence it is prayed
that your honour may be pleased to stay the departmental
proceedings till the criminal prosecution/trial is concluded. for
the said reason the charges need to be dropped at this stage as it
shall cause serious prejudice to the defence of the respondents in
the criminal trial.

5. That the memo contains imputation which in fact is not based on

any complaint constituting offence of criminal misconduct within
the meaning of sec 5(2) of Prevention of Corruption Act, where
three elements needs to be established beyond all reasonable
doubt i.e.

a) Demand of illegal gratification by the accused.

b) In consequence of the demand offer of illegal gratification by the
complainant
And
c) In consequence of offer by the complainant, acceptance of illegal
gratification by the accused.

In the instant case the complainant has nowhere alleged that

respondent ever demanded illegal gratification for himself, and
same was offered by the complainant and accepted by the answering
respondent. Thus it is presumptuous to infer that answering
respondent has been party to the act of another employee against
whom specific allegations are made. It is not within the reach and
competence of the answering respondent being an employee at the
lowest ladder of service to reinstate the complainant or to facilitate his
reinstatement and for that to demand and share the illegal gratification.
The complainant himself being head of the deptt and a highly educated
person is also fully aware of the position of the answering respondent
being a low paid employee unable to do any favour to the complainant
in his departmental enquiry. Thus the allegations levelled forming basis
of the charge sheet on the face of it are improbable, baseless, untrue,
hence denied.

6. That the statement for imputation for detailed reasons herein above
are also denied.

Without prejudice to the foregoing submissions, detailed

reply to the charge sheet is submitted as under.-

1. That the charge sheet is not reduced into definite statements of

allegations but is served in a long narration intermingling the facts
making this long narration difficult for the undersigned to reply
definite articles of charges under definite set of allegations. The
framing of charge sheet is therefore not in accordance with rules
and needs to be withdrawn.

2. As regards the allegations contained in ANNEXURE-1 the

answering respondent submits that it is correct, he is appointed in
the year 1997 and thereafter by his hard work and sincerity, he
has earned promotion up to the level of Senior Assistant, it is also
correct that he remained posted in legal section in health and
Medical Education Deptt.

3. It is correct that an ex-party verification was conducted by ACB

on the basis of a complaint lodged by Dr Bodh Raj Kundal which
should have been enclosed in the Article of charges so as to enable
the answering respondent to give an effective reply, in absence of
the complaint of Dr Bodh Raj Kundal, applicant is seriously
prejudiced to effectively reply the same. It is however stated that
there is no definite allegations against the answering respondent in
writing or in oral statements by the complainant against
answering respondent. It is incorrect and denied that answering
respondent at any point of time demanded or accepted any illegal
gratification from the complainant or extended any promise for
completion of departmental enquiry initiated against the
complainant. In fact the very conduct of complainant itself is
reflected in FIR 114-2017 under Sec 354 RPC which itself make
the statement of the complainant doubtful and unworthy of credit.
4. Contents of para 3 of ANNEXURE-1 do not pertain to answering
respondent, hence needs no reply and are denied.

5. Contents of para 4 are incorrect and denied, the allegations

against answering respondent regarding demand and acceptance
is not levelled by the complainant or made during the course of
investigation. The statement of Article of charges is contrary to
the record, hence denied.
6. That allegations made in para 5 of Article of charges are incorrect
and denied. The alleged amount has been found deposited in the
bank account of Shri Masood Ahmed friend of Sheikh Javed
Ahmed. At no point of time, the answering respondent has been
part of any such transaction either with the complainant or with
Shri Masood Ahmed and Sheikh Javed Ahmed. It is incorrect and
denied that answering respondent remained in constant contact
with complainant or with Sheikh Javed Ahmed. It is also
incorrect and denied that answering respondent abused his
official position or obtained Rs. 25000 thereof by demanding and
accepting the illegal gratification for early reinstatement of the
complainant. The answering respondent being a Senior Assistant
has no legal competence to reinstate professor of GMC Jammu or
to extend any assistance in this regard.

7. The complainant has made the answering respondent a scapegoat

to malign the officials of the department with a view to wreck
vengeance for his prolonged suspension not attributable to any act
of the answering respondent.

8. It is denied that answering respondent has committed any offence

of criminal misconduct or he has abused his official position or he
has entered into any criminal conspiracy with any other employee.

9. Contents of para 6 are correct up to the extent of registration of

FIR. It is however denied that on the bases of the said FIR, any
competent court has held the answering respondent guilty. Under
law, every accused is presumed innocent till he is found guilty by a
competent court in a legal trial.

10. In reply to para 7 of the article of charges, same are denied as

baseless and false. This part of the allegations is subject matter of
criminal investigation/trial and same cannot be accepted as true
 until the answering respondent has the occasion to cross-examine
the Noddle Officer Reliance Jio and other prosecution witnesses to
test their veracity. It is incorrect and denied that answering
respondent caused any information to the complainant as alleged.
It is also denied that there has been any connivance as of
answering respondent with co-accused Shri Javed Ahmed as
alleged.

11. Contents of allegations as contained in para 8 of the charge sheet

are incorrect and denied, answering respondent never demanded
any amount from complainant nor he has taken any amount from
Shri Sheikh Javed Ahmed or Shri Masood Ahmed as alleged.

12. Allegations levelled in para 9 of the article of charges do not

pertain to answering respondent, hence denied.

13. That answering respondent may be given opportunity to cross

examine these witnesses during enquiry to test their veracity.
Even their statement made during investigation under Sec-161
CrPC is not admissible in evidence till the maker of such
statement is not subjected to cross-examination by the accused.
Hence the statement of Masood Ahmed and few other witnesses
whose name are not disclosed nor there statement is given to the
answering respondent with this article of charges cannot be
effectively replied, hence denied. It is submitted that in absence
of the relevant record the allegations are vague, hence denied.
The answering respondent submits that in order to enable him to
file a comprehensive reply, the statement of Masood Ahmed and
other witnesses along with complaint of complainant needs to be
furnished to the answering respondent so that he is in a position
to file an effective response. It is incorrect and denied that the
allegations of offer and acceptance of illegal gratification is
established against the answering respondent.

14. That the allegations made in para 10 of the article of charges are
incorrect and denied. It is submitted that the statement of
complainant under Sec 161 CrPC is part of the charge sheet in
absence whereof answering respondent is unable to make any
effective reply and seeks its supply so that after going through
the same an effective reply can be filed. It is further submitted
that at no point of time answering respondent conveyed anything
to the complainant regarding his reinstatement.
15. Contents of para 11 of the charge sheet are incorrect and denied,
no conclusion can be drawn at this stage once the same
allegation is a subject matter of investigation/trial. Thus the
disciplinary authority cannot conclude that whatever has been
alleged during investigation, same is true and is admissible in
evidence in deptt proceedings. The legal position is well settled
that any statement made before police is inadmissible in evidence
unless same is proved during the trial in accordance with
evidence act.

16. Contents of para 12 are denied, it is submitted that since all

these statement pertain to the criminal investigation/trial hence
same cannot be commented in these proceedings as it can cause
serious prejudice to the defence of the accused during the
criminal trial and for the said reason these proceedings need to
be stayed as complex questions of law and fact are to be
determined by the criminal trial.

17. Contents of para 13 are incorrect and denied. At the cost of

repetition the answering respondent submits that he has neither
demanded nor accepted any illegal gratification from the
complainant. It is also incorrect and denied that answering
respondent abused or misused his official position.

18. Last para of the article of charges are denied, the answering
respondent submits that he has put in about 25 years of service
without any blame to the entire satisfaction of his superiors. The
deptt proceeding in view of complicated question of facts and law
being subject matter of criminal investigation/trial thus needs to
be stayed till the outcome of criminal trial in terms of the
judgement of the Honable Supreme Court as referred to and as
relied upon by the answering respondent and quoted on the
preliminary part of this reply.

The answering respondent submits that disciplinary proceedings as

contemplated may kindly be kept pending till the outcome of
criminal trial in FIR no. 12/2020 dated 30-07-2020.

Answering respondents may be afforded opportunity of hearing

and leading of evidence as well if further proceedings are
contemplated/initiated.
In the premises,
it is most humbly prayed that article of charges may be dropped.
Departmental proceedings may kindly be kept pending till outcome of
the criminal trial based on the judgment of Honable Supreme Court of
India in view of the identical set of allegations and evidence in the deptt
proceedings as well as criminal proceedings.
For this act of kindness, i shall feel highly obliged.

With regards

Yours Faithfully

Date -
Place -
Answering respondent
Sudesh Kumar.