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2000 DIGILAW 155 (JK)

Mohd. Amin Dar v. State

2000-08-04

SYED BASHIR-UD-DIN

body2000
1) Identical common questions of fact and law are involved in these two clubbed writ petitions. This judgment will govern both the cases. 2) Mohammad Amin Dar, writ petitioner of SWP no. 52571987, a teacher in High School Chatoosa (Rafiabad) Tehsil Sopore appointed on substantive basis in the Education Department was dismissed from service under Government Order 10-GR of 1986 dated 27-2-1986. 3) Abdul Khaliq Sofi. writ petitioner of SWP 526/ 87 again a teacher in Government Middle School Haran, appointed on substantive basis in the Education Department was dismissed from service under Government Order No. 5 GR of 86 dated 27-2-1986. These orders have been passed under Section 126(2) (c) of the State Constitution by the Governor after recording that he is satisfied that it is not expedient to hold an enquiry in the matter in the interest of security of the State. Both these orders are under challenge in these writ petitions. 4) The counsel for petitioners submit that the petitioners were holding civil posts under the State and therefore, could not have been dismissed except on enquiry, as envisaged under law. Section 126 of the State Constitution itself prescribes the procedure therefor. Without holding an enquiry in which delinquent is informed of the charges against and given a reasonable opportunity of being heard in respect of the charges and where penalty is proposed after being given an opportunity of rebutting the proposed penalty, he dismissal cannot be ordered, though exception to this propounded proposition of law can be inter-alia on the satisfaction of the Governor sterming from the interest of security of the State so that the Governors satisfaction is of non-expediency to hold such enquiry based on the interests of security of the State. However, in this case it is further submitted that there was no material whatsoever, for consideration with the Governor while passing the impugned order. In absence of the material touching security of the State and expediency to dispense with the enquiry qua the delinquent petitioners, the impugned orders have been passed on colourable assumption of satisfaction with regard to the expediency of not holding the enquiry in the interest of security of the State. The satisfaction of the Governor is amenable to judicial scrutiny. In absence of the material touching security of the State and expediency to dispense with the enquiry qua the delinquent petitioners, the impugned orders have been passed on colourable assumption of satisfaction with regard to the expediency of not holding the enquiry in the interest of security of the State. The satisfaction of the Governor is amenable to judicial scrutiny. Such satisfaction in absence of any material available with the Governor to derive satisfaction as to the expediency of not holding such enquiry in the interest of the security of the State is not there and consequent dismissal of petitioners is arbitrary and ultravires the law. 5) The respondents/ State Government has failed to file reply during last over a decade despite opportunities. Even, record is not produced despite opportunities spreading over last two years. Mr. Hussain tenders statement that the record is untraceable from the Government files/ repository. Mr. Hussain further submits that notwithstanding that counter has not been filed and record is not available, the dismissal of both these teachers of Education Department is ordered by the Governor in exercise of powers under Section 126(2) (c) of the Constitution. Both the petitioners have been dismissed under Clause (c) of proviso to sub-section 2 of Section 126 of the State Constitution. The question of Governors satisfaction of inexpediency to hold enquiry in the interest of security of the State, is a matter for the Government. The satisfaction as to the question of not holding enquiry for the reason as same is not expedient in the interests of security of the State, is a matter for Government and not for the Court to determine. The satisfaction of the Governor cannot be examined by the writ court as if it sits in appeal over the impugned order and the court cannot substitute its satisfaction for the satisfaction of the Government. The order is based on the circumstances which have a bearing on the security of the State. 6) Section 126 of the Constitution of Jammu and Kashmir (corresponding to Article 311 of India Constitution) provides that the Doctrine of Pleasure of the Governor in the matter of holding of office in the Government service shall be subject to exercise of the pleasure on the condition as laid down in the Section. 6) Section 126 of the Constitution of Jammu and Kashmir (corresponding to Article 311 of India Constitution) provides that the Doctrine of Pleasure of the Governor in the matter of holding of office in the Government service shall be subject to exercise of the pleasure on the condition as laid down in the Section. One of the conditions is that the dismissal or removal or reduction in rank cannot be ordered without enquiry into the charges against the employee and without affording him an opportunity of showing cause against the action proposed to be taken against him. However, the dismissal or reduction in rank of Government employee in whose case the Governor is satisfied that the interest of security of the State holding of an enquiry is not expedient, has been expressly excluded from the applicability of the above mandatory conditions. No member of the service of the State or a person holding civil post under the State can be dismissed or removed except in accordance with the above constitutional provision where dismissal or removal or reduction in rank has to be made after an enquiry in which the person is to be heard and afforded reasonable opportunity. But all the same under clause (c) of the proviso to sub-section (2) of Section 126 of the Constitution of J&K has been made this enquiry provision not applicable to cases where dismissal or removal or reduction in rank is based on the satisfaction of the Governor that in the interest of the security of the State holding of such enquiry is not expedient. 7) But all the same, the Governors satisfaction is to arise from some material. It is to prop up on some basis. Where the order of dismissal is challenged for lack of material or irrelevancy of the material available with the Government, the State Government is under obligation to produce the record for judicial scrutiny of the court, more so, when in the petition allegations of non-availability of the record go unrebutted and no counter or reply is filed to rebut such allegation. Once the Governors satisfaction of inexpediency to hold enquiry in the interest of security of the State is justicable and amenable to judicial scrutiny, obviously the material, circumstances and record the basis of such satisfaction is to be made available to the Court. This is not the case here. Once the Governors satisfaction of inexpediency to hold enquiry in the interest of security of the State is justicable and amenable to judicial scrutiny, obviously the material, circumstances and record the basis of such satisfaction is to be made available to the Court. This is not the case here. 8) The very dismissal of the petitioners in question, in absence of such record/ material is rendered bad in law. See Union of India and Anr. Vs. Tulsi Ram Patel with other 5 Civil Appeals (AIR 1985 SC: 1416). 9) In Jaswant Singh vs. State of Punjab and Others (AIR 1991 SC: 385), in the context of dispensation of enquiry in terms of Article 311(2), paramateria with Section 126(2) of the State Constitution, His Lordship, Justice A.M. Ahmadi, speaking for the Court observed: - ".... The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipsi dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer...." 10) In Bashir Ahmad Sofi vs. State of J&K and others writ petition 539 of 87 decided on 8-7-97, a learned Single Judge of this court held order passed under Section 126(2) (c) of State Constitution qua dismissal of petitioner, a teacher of State Education Department as invalid and quashed it as the State Government failed to put any defence to the motion and did not produce record before the Court. 11) In Mohd. Shaffi Mirvs. State (1997 SLJ: 164) where a police Sub-Inspector was dismissed under Section 126(2) (c) of the State Constitution, the Court set aside the dismissal order for the reason that the State failed to put in defence and did not produce the record thereto. 12) In A.K. Koul and Anr. 11) In Mohd. Shaffi Mirvs. State (1997 SLJ: 164) where a police Sub-Inspector was dismissed under Section 126(2) (c) of the State Constitution, the Court set aside the dismissal order for the reason that the State failed to put in defence and did not produce the record thereto. 12) In A.K. Koul and Anr. vs. Union of India (AIR 1995 SC : 1403) the court observed : ".....That an order passed under Clause (c) of the second proviso to Article 311(2) is subject to judicial review and its validity can be examined by the Court on the ground that the satisfaction of the President or the Governor is vitiated by malafides or is based on wholly extraneous or irrelevant grounds within the limits laid down in S.R. Bommai. (1994 AIR SCW 2946)". It is further observed: - "Where the validity of an order passed under Clause (c) of the second proviso to Article 311(2) is assailed before a court or a tribunal it is open to the court or the tribunal to examine whether the satisfaction of the President or the Governor is vitiated by malafides or is based on wholly extraneous or irrelevant grounds and for that purpose the Government is obliged to place before the Court or the Tribunal the relevant material on the basis of which the satisfaction was arrived at subject to a claim of privilege under Section 123 and 124 of the Evidence Act to withhold production of a particular document on record. Even in cases where such a privilege is claimed, the Government concerned must disclose before the court or tribunal the nature of the activities in which the Government employee is said to have indulged in€¦�. 13) As already observed, that neither the record nor the relevant material, the basis of the satisfaction of the competent authority under Clause (c) of the proviso of sub-Section 2 of Section 126 of the Constitution has been produced in Court. The documents are not even claimed to be privileged so as to withhold from Court. The circumstances and nature of the activities in which the petitioners are alleged to have indulged to attract the dismissal order under Section 126(2) (c) is not even indicated. There is no counter or reply to rebut or counter petition allegations, Infact, State has put forth no defence in this case. The circumstances and nature of the activities in which the petitioners are alleged to have indulged to attract the dismissal order under Section 126(2) (c) is not even indicated. There is no counter or reply to rebut or counter petition allegations, Infact, State has put forth no defence in this case. There is nothing to show that petitioners indulgence in any activities had the nexus with or endangered the security of the State. In the facts and circumstances of the case, the court in absence of material/ record is not able to determine of the satisfaction of the competent authority was actually based on relevant considerations and some material supporting the State Government claim of dismissal of the petitioners in the manner and mode, as done in this case. 14) In Union of India and Anr. vs. Balbir Singh and Anr. (AIR 1998 SC: 2043) in para 8, it is said: - "If an order passed under Article 311(2) Proviso (c) is assailed before a court of law on the ground that the satisfaction of the President or the Governor is not based on circumstances which have a bearing on the security of the State, the Court can examine the circumstances on which the satisfaction of the President or the Governor is based, and if it finds that the said circumstances have no bearing whatsoever on the security of the State, the Court can hold that the satisfaction of the President or the Government which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations". 15) Here the satisfaction of the Governor is based on grounds and circumstances relateable to the security of the State. Obviously, the material/ basis of the satisfaction is but to be scrutinised and examined by the Court. However, the same cannot be done here, as the record/ material/ circumstances are not placed before the Court for reasons good or bad. Even the pleaded allegation of arbitrariness, non-existence of the circumstances and irrelevancy of considerations having a bearing on the question of satisfaction of competent authority not to hold inquiry in the interest of security of State, as it is not expedient to hold such an inquiry, are not rebutted or even replied. Even the pleaded allegation of arbitrariness, non-existence of the circumstances and irrelevancy of considerations having a bearing on the question of satisfaction of competent authority not to hold inquiry in the interest of security of State, as it is not expedient to hold such an inquiry, are not rebutted or even replied. Obviously, it cannot be said whether there was material available with the competent authority to show that dispensation of enquiry-was expedient in the interest of security of the State. It is a case where no relevant material is available. It is equally a case where no defence is put up by the State Government. In absence of proof or material to show indulgence of petitioners in activities prejudicial to the security of the State, the impugned order of dismissal cannot be upheld. 16) In result, the impugned orders of dismissal of petitioners Mohd. Amin Dar and Abdul Khaliq Sofi are invalid and legally bad. These orders are quashed. The respondents are directed to re-instate the petitioners. However, it is left to the State Government to hold enquiry against the petitioners, if it so intends in-accordance with the constitutional provisions and law and to pass appropriate orders thereto including whether petitioners are to be paid consequential benefits from the date of impugned order or till the order of re-instatement. The enquiry, if any, be conducted and shall be completed within a period of six months from the date of this order unless for the cause shown, the period is extended. The treatment of the period and emoluments for the period when petitioners were out of service consequent 0n the above impugned orders which stand as above set aside, is a matter for the competent authority to determine in accordance with law and rules, as applicable to this case. Disposed of.