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2001 DIGILAW 183 (JK)

Gh. Nabi Gundha v. State Of J. &K.

2001-09-03

S.K.GUPTA

body2001
1. Petitioner, Ghulam Nabi Gundha, seeks indulgence of the Court for issuance of a writ of certiorari for quashing the order of his dismissal from service dated: 09-10-1990 and further issuance of a writ of mandamus commanding upon the respondents to reinstate the petitioner forthwith and pay all the emoluments and service benefits to which the petitioner is entitled. 2. The case of the petitioner depicted in narration is that, he was working as teacher in the Education Department of the State posted in Government High School Kishtwar and maintained an unblemished record of service. However, on 16-11-1989, petitioner alongwith one Dr. Sajad Hussain (physician specialist) was placed under suspension, but this order of suspension and attachment stood challenged before the Honble High Court in writ petition No. 1693/89, CMP No. 5053/89 and the attachment was stayed. Some people died in Kishtwar on 13-04-1990, which lead to a mass resentment and the petitioner came to be arrested on 20-04-1990 and sent to joint interrogation centre, Jammu wherefrom subsequently stood shifted to Central Jail, Jammu. The Petitioner was, however, ordered to be released on bail by TADA Court vide its order dated: 17-08-1990 and instead of releasing the petitioner on bail, the Government of Jammu and Kashmir ordered his detention under the provisions of Public Safety Act. His detention, however, came to be challenged before the High Court in Habeas Corpus writ petition No. 297/90 and the order of detention stood quashed vide order dated: 25-03-1991, and the petitioner was released in consequence thereof. By then an order came to be passed on 09-10-1990 by the State Government in exercise of powers conferred under Section 126 (2) (c) dismissing the petitioner from service with immediate effect. This order is subject matter of challenge by means of this writ petition before the Court. For facility of reference, the order is being reproduced hereunder:- "Copy of order No: 992-GR of 1990 dated: 09-10-1990 received vide Commissioner/ Secretary to Government General Administration Department, J&K endorsement No: GAD (Adm) 6/90-Home-I dated: 09-10-1990. This order is subject matter of challenge by means of this writ petition before the Court. For facility of reference, the order is being reproduced hereunder:- "Copy of order No: 992-GR of 1990 dated: 09-10-1990 received vide Commissioner/ Secretary to Government General Administration Department, J&K endorsement No: GAD (Adm) 6/90-Home-I dated: 09-10-1990. Whereas the Governor is satisfied that the conduct and activities of Shri Ghulam Nabi Gundha S/o Shri Ghulam Rasool Gundha R/o Jamia Masjid, Kishtwar Doda posted as teacher, Government High School Kishtwar are detrimental and prejudicial to the security of the State and therefore, it is necessary that the said Shri Ghulam Nabi Gundha should be dismissed from service, and Whereas the Governor is further satisfied in terms of clause (c) of the proviso of sub-section (2) of the section 126 of the Constitution of Jammu and Kashmir and sub-clause (c) of proviso of clause (2) of Article 311 of the Constitution of India that in the interest of security of the State it is not expedient to hold an enquiry against the said Shri Ghulam Nabi Gundha. Now, therefore, the Governor in accordance with the provisions of section 126 of the constitution of Jammu and Kashmir and Article 311 of the Constitution of India hereby dismisses the said Shri Ghulam Nabi Gundha from service with immediate effect. By order of the Governor. Office of the District Magistrate, Doda. No: 1466-67/89 Dated: 26-10-1990." Copy of the above forwarded to the:- 1. District Education Officer, Doda. 2. Principal, Hr. Secondary School, Kishtwar (Boys) for information and necessary action. Sd/- District Magistrate, Doda." 3. Petitioner challenged the above order on the following grounds:- a) That the Government has passed the order of dismissal against the petitioner on the ground that the interest of the security of the State is secured, but this has not been able to stand the test of law and order of termination of the petitioner from service based on this ground is void ab-initio. b) Respondent have not disclosed the reasons relating to the activities of the petitioner detrimental and prejudicial to the security of the State, and thus the order of dismissal of petitioner from service is tainted with malafides. b) Respondent have not disclosed the reasons relating to the activities of the petitioner detrimental and prejudicial to the security of the State, and thus the order of dismissal of petitioner from service is tainted with malafides. c) That the petitioner has not been provided the facts and documents collected against him so as to afford an opportunity of rebutting before passing the order of dismissal of the petitioner from service, which is liable to be quashed. d) By not providing a reasonable opportunity of being heard to the petitioner and making a representation against the proposed order of dismissal rendered the order bad in law. e) That it was incumbent upon the respondents to disclose the grounds and the material upon which the satisfaction has been arrived at before the passing the order of dismissal in terms of Section 126 (2) (c) of the State Constitution and place the same before the Court for judicial security and assess the said satisfaction of the State as otherwise the guaranteed rights of the petitioner are violated. f) That the facts, which could have been the basis of satisfaction when exploited by the respondents, could not resort to Constitutional provisions and claim privilege for initiating a proper enquiry, thereby denied the constitutional guarantees to the petitioner. 4. Respondents, in controverting the contentions of the petitioner, submitted in their counter that the petitioner alongwith others indulged in subversive activities being a Government employee and tried to disturb the tranquti atmosphere in Kishtwar town by taking out a procession on 27-10-1989 and created a tense situation leading to imposition of curfew in order to maintain law and order. The District Authorities intimated the Divisional Commissioner, who in turn communicated with the Government with regard to the involvement of the petitioner and others in subversive activities, besides registration of a case under FIR No. 154/89 under the provisions of Ranbir Panel Code in Police Station, Kishtwar. The petitioner alongwith others came to be arrested in November 1989. The District Authorities intimated the Divisional Commissioner, who in turn communicated with the Government with regard to the involvement of the petitioner and others in subversive activities, besides registration of a case under FIR No. 154/89 under the provisions of Ranbir Panel Code in Police Station, Kishtwar. The petitioner alongwith others came to be arrested in November 1989. That it was on the basis of confidential records, the competent authority examined the case of the petitioner and after recording satisfaction about the involvement of the petitioner in subversive activities and that it is inexpedient to hold enquiry against the petitioner in the interest of the security of the State, passed an order of dismissal of the petitioner from the service in accordance with the provisions of Section 126 of the Constitution of Jammu and Kashmir corresponding to Article 311 of the Constitution of India. It was further submitted that the satisfaction of the Governor under the Constitutional provisions cannot be a subject matter of judicial security and the material, which formed the basis of the satisfaction of the Governor himself in respect of the involvement of the petitioner in subversive activities, cannot be placed before the Court in the interest of the security of the State and in respect of which the Government claimed privilege. It was, however, not denied that the petitioner was granted bail by the Special Court, but submitted that since he was booked under Public Safety Act and taken into custody under the law. It is also admitted by the respondents that the detention of the petitioner was quashed by the High Court, but pleaded that it was on technical grounds. Lastly, it was contended that the order of dismissal was passed by the competent authority after application of mind and satisfaction of the involvement of the petitioner in subversive activities based on the materials which have bearing on the security of the State. 5. Mr. Lastly, it was contended that the order of dismissal was passed by the competent authority after application of mind and satisfaction of the involvement of the petitioner in subversive activities based on the materials which have bearing on the security of the State. 5. Mr. M.A. Qayoom, advocate, appearing for the petitioner has challenged the correctness, validity and propriety of the order of dismissal of the petitioner from service on the following grounds:- 1) That the respondents have not come forward with the record to defend the impugned action; 2) That there did not exist any material on record on the basis of which a decision of the satisfaction of the Governor that it was inexpedient to hold an enquiry of the State could be arrived at; and 3) That the order passed under clause (c) of second proviso to Article 311 (2) of the Constitution of India corresponding to Section 126 (2) (iii) of the Jammu and Kashmir Constitution by the competent authority is subject to judicial review and its validity can be examined by the Court on the ground that the satisfaction of the Governor is vitiated by malafides or is based on extraneous and irrelevant considerations and misleading, within the limits provided in case of S.R. Bommai and others etc. etc. Vs. Union of India and others etc. etc., AIR 1994 SC 1918. 6. Mr. M.I. Hussain, learned counsel appearing for the respondents, in dispelling the contention of the petitioner submitted that mere reading of the order by which the service of the writ petitioner was brought to and make it clearly manifest and Governor of the State had come to the conclusion after taking into account all the facts and circumstances of the case that it is inexpedient to hold an enquiry and the holding of the enquiry will not be in the interest of the security of the State that the order impugned in the writ petition showing the door to the writ petitioner passed by the competent authority squarely falls within the ambit of Section 126 (2) (c) of the Constitution of Jammu and Kashmir and, thus, does not suffer from any infirmity legal or factual. 7. 7. A dichotomy of the record indicates that despite various opportunities, respondent-State did not choose to produce the record on the basis of which the Governors satisfaction had to be provided that it is inexpedient to hold an enquiry in the interest of the security of the State. The record was not even made available during the course of arguments which asked to be produced by the Government advocate appearing for the respondents. Therefore, whatever is stated in the counter with regard to the nature of activities of the petitioner and the material delineated therein which formed the basis of the satisfaction of the Governor in taking such an extreme step of passing an order of dismissal of the petitioner from service to do away with the enquiry as not expedient in the interest of the security of the State, remains to be considered to examine validity of the ground on which the satisfaction of the Governor proceeded in exercise of its powers of judicial review. 8. For an effective exercise of power of judicial review of the Court under clause (c) of Article 311 (2), the Court must have the necessary material before it to determine whether satisfaction of the President or the Governor, as the case may be, has been arrived at in accordance with the law and is not vitiated by malafide or extraneous or irrelevant factors. Then the question arises, whether the Government is obliged to place such material before the Court. Clause (c) of the second proviso does not prescribe the recording of the reason for the satisfaction. But absence of such requirement for the satisfaction does not dispense with the obligation on the part of the concerned Government to satisfy the Court if an order passed under clause (c) of the second proviso to Article 311 (2) is challenge before such Court for the satisfaction so arrived at after taking into account relevant facts and circumstance and was not vitiated by malafides and not based on extraneous or irrelevant considerations. In case of such circumstances, material is not placed before the Court, it cannot be possible for the concerned employee/petitioner to establish his case that the satisfaction was vitiated by malafide or was based on extraneous or irrelevant considerations. In case of such circumstances, material is not placed before the Court, it cannot be possible for the concerned employee/petitioner to establish his case that the satisfaction was vitiated by malafide or was based on extraneous or irrelevant considerations. As laid down in S.R. Bommais case (AIR 1994 SC 1918), the said provisions do not permit the Government to withhold production in the Court of the material on which the satisfaction of the President or the Governor, as the case may be, has proceeded that it is inexpedient to hold such an enquiry in the interest of the security of the State. This is, however, subject to the claim of privilege under Sections 123 and 124 of the Evidence Act. The said claim, of privilege will have to be considered by the Court on its own merit, but for upholding of such a claim will not stand in the way of the concerned Government to disclose the nature of the activities of the petitioner, which formed the basis of satisfaction of the President or the Governor in arriving at a conclusion for a purpose of drawing up an order under clause (c) of the second proviso of Article 311 (2) so as to enable the Court to determine whether the said activities could be regarded as having reasonable nexus with the interest of the security of the State. The Court would be handicapped to determine whether the satisfaction arrived at on the basis of relevant considerations. It is pertinent to point out that the nature of activities in which the petitioner is stated to have indulged must be distinguished from the material, which supports his having indulged in such activities. It is only when the claim of privilege is upheld that the non-disclosure of such a material would be permissible. The claim of privilege, however, by any stretch of reasoning, would not extent to the disclosure of the nature of the activities as such disclosure would not involve the disclosure of any information connecting the employee with such activities or the course of such information. 9. The claim of privilege, however, by any stretch of reasoning, would not extent to the disclosure of the nature of the activities as such disclosure would not involve the disclosure of any information connecting the employee with such activities or the course of such information. 9. It, therefore, follows that where the validity of the order of dismissal passed by the Governor under clause (c) of the second proviso to Article 311 (2) is challenged before the Court, the Court in exercise of its power to judicial review can examine whether the satisfaction of the President or the Governor is vitiated by malafides or is based on wholly extraneous and/or irrelevant grounds and for the purpose of achieving the object, the Government is under an obligation to place before the Court the relevant material which formed the basis of satisfaction, of course, subject to the claim of privilege under the Evidence Act to withhold particular document or record, the Government concerned must disclose before the Court the nature of activities in which the Government employee is said to have been indulged Hleven in in case where privilege under Section 123 of the Evidence Act is claimed, as is held by the Apex Court in A.K. Koul and another Vs. Union of India and another, AIR 1995 SC 1403, based on earlier decision of the same Court in S.R. Bommai Vs. Union of India, 1994(3)SCC1. 10. What is to be seen in the present case in the light of settled position of law is whether the material and circumstances disclosed by the respondents in their reply could be said to be relevant and germane to dispensing with the enquiry on the ground that it was inexpedient in the interest of the security of the State. Undoubtedly, the Court is not required to sit in judgment on the satisfaction derived by the Governor in the matter nor the Court would be competent to go into sufficiency, adequacy of otherwise, but certainly the Court in exercise of its judicial review within its boundaries to examine whether the material available on record is germane for discarding the enquiry and provides a nexus with the object. It all, as such, boils down as to whether the satisfaction of the Governor has proceeded on the basis of relevant material for doing away with the enquiry, where such basis are irrelevant or extraneous in proximity to the object, viz, not expedient for holding an enquiry, the action of the Governor is rendered legally unsustainable. 11. In this case, the only material provided by the respondents in their reply to prove the involvement of the petitioner in subversive activities prejudicial to the interest of the security of the State is that the petitioner alongwith others has disturbed the peaceful at mosphere and indulged in disturbing the tranquti atmosphere at Kishtwar by taking out a procession alongwith others on 27-10-1989. The document referred to in Annexure-R2 is a communication from the District Magistrate, Doda to the Divisional Commission, Jammu also revealed the petitioner alongwith others to be amongst front line leaders of the mob and enforcing bandh as well as provocation one community against the other. The Divisional Commission in its turn addressed a communication to the Chief Secretary (Annexure-Rl) recommending immediate suspension and adjustment of the petitioner and others. The Government also registered case against the petitioner and others in FIR No. 154 of 1989 under the provisions of RPC with Police Station, Kishtwar without stating anything about the fate of the FIR. It is further borne out from respondents reply that the petitioner was detained under Public Safety Act, but detention was quashed by the High Court in Habeas Corpus petition No. 297/90 vide its order dated: 25th March, 1991 with a direction to set the petitioner at liberty forthwith. The petitioner when came out from detention found himself to have been dismissed from the service vide order date: 09-10-1990, passed under clause (c) proviso 2 ofSection 126 of the Constitution of Jammu and Kashmir in parameteria with clause (c) proviso 2 of the Article 311 of the Constitution of India in the interest of security of the State, issued by the Governor, who felt satisfied that it is inexpedient to hold such an enquiry in the interest of the security of the State. It is also not denied that the petitioner was bailed out by Special Judge in FIR No. 163 of 1989 of Kishtwar Police Station under Section 3 and 4 of the Prevention of Terrorist and Disruptive Activities Act on the basis of having not found the name of the petitioner in the FIR registered first in point of time and lack of material connecting the accused with the subversive activities. This position emerging out of the reply has not been disputed by Mr. H.I. Hussain during the course of his debate. This is, in my view, a case where there is no relevant material where the Governor would feel satisfied that it is inexpedient to hold an enquiry in the interest of the security of the State and necessitated the passing an order of dismissal of the petitioner from service under Article 311 (2) (c) of the Constitution. 12. In the case of President of India Vs. Kunjapan, 1985 (1) SLR 494, the Court, while upholding the decision of Kerala High Court reported in (1984) 2 SLR 68, observed: "A learned Single Bench of the Kerala High Court quashed the dismissal of an employee from service which was brought about by invoking proviso (c) to Article 311 (2) of the constitution of India on the ground that the petitioner believed in the philosophy of violence and was also an accused in a murder case and the commission of murders was a part of his philosophy. It was held that there was nothing to show that holding of an enquiry into the conduct of the petitioner was reasonably linked with the interest of security of the State." The Court further observed that: "The High Court has the power to ascertain whether the opinion formed by the authority has any factual basis and the conditions precedent to its formation were there. In this case the President of India, has no doubt powers under Clause (c) of the second proviso to Article 311 (2) of the Constitution to dismiss a member of the civil service of the Union without an enquiry if and only if he satisfied that in the interest of the security of the State it is not expedient to hold an enquiry into the charges against him. So, two conditions must exist, namely, (i) the security of the State is involved, and (ii) in view of that it is inexpedient to conduct enquiry." 13. The scope of this provision was also considered in Ghulam Ahmad Paul Vs. State and another, 1998 SLJ 131. 14. In the absence of any record made available by the respondents to the Court to examine the circumstances on which the satisfaction of the President or the Governor is based it is difficult to hold that the circumstances narrated in the counter without describing the nature of the activities and the indulgence of the petitioner in such activities so as to call them subversive have any bearing whatever on the security of the State. It also cannot be held on such circumstances as portrayed in the counter without any record produced in the Court despite opportunities provided to the respondents that the satisfaction of the Governor required for passing an order of dismissal was based on material, which is not wholly extraneous or irrelevant having any bearing of whatsoever on the security of the State. Nor in the circumstances, it can be held that the Governor had valid basis distinct from irrelevant or frivolous for coming to a conclusion that it is not expedient to hold an enquiry in the interest of the security of the State. The circumstances narrated by the respondents and vouched by Mr. Hussain during debate, in my opinion, do not mention the activities of the petitioner prejudicial so far as the security of the State is concerned. The material/circumstances, which do not demonstrate the nature of activities of the petitioner so serious having bearing on the security of the State, cannot be held to form basis for the satisfaction of the Governor that it is not expedient to hold an enquiry against the petitioner necessitating dismissal of the petitioner from service. 15. From the aforesaid discussion, inevitable conclusion reached is that there existed no material on the basis of which the Governor felt satisfied that it is inexpedient to hold an enquiry against the petitioner in the interest of the security of the State and passed an order of his dismissal from service on 09-10-1990. The impugned order in dismissing the petitioner from service is, therefore, quashed. The impugned order in dismissing the petitioner from service is, therefore, quashed. But, it shall be open to the respondents to conduct a departmental enquiry against the petitioner, which shall be completed within a period of six months unless cause shown the period is extended. In case no enquiry is conducted within the aforesaid period, the petitioner shall be entitled to reinstatement in service and in that eventuality, emoluments for and treatment of the period during which the petitioner had remained out of service shall be determined by the competent authority. In case charges are proved against the petitioner on enquiry, the disciplinary authority shall be free to take appropriate disciplinary action against the petitioner under rules, which may even involve his removal from service. In view of the above, the writ petition is disposed of.