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2001 DIGILAW 244 (JK)

State Of J. &K. v. Mohd. Afzal Lone

2001-10-06

B.L.BHAT, H.K.SEMA

body2001
Per H.K. Sema: CJ: 1. This appeal is directed against a judgment and order dated July 24th, 1997 passed by the learned Single Judge in SWP No: 94 of 1993, allowing the writ petition filed by the petitioner. This appeal has been preferred by the State. 2. We have heard Mr. M.H. Attar, learned Addl. Advocate General, as well as Mr. M.A. Qayoom, learned Advocate for the respondent-writ-petitioner. 3. Facts leading to filing of the present appeal may be summarily recited. Respondent-writ petitioner was working as a Junior Assistant in Law Department and was attached with Director Litigation, Kashmir. He was arrested on 26th of March, 1992 in connection with FIR No: 50 of 1992 registered with Police Station Bakshi Nagar, Jammu, under Sections ¾-TADA and 3/5 ESA. In course of investigation it was revealed that respondent-writ petitioner was a locally trained militant of "Hizbul Mujahidin Outfit" and designated as Nazir Platoon. It was also revealed that he was involved in killing of a Partwari, a BSF Jawan, and a Taxi driver. It was also alleged that he had collected Rs. 38,000- from innocent people, which was utilized for meeting the requirements of the outfit and purchase of arms and ammunition. This secret information was despatched by the Additional Director General of Police, C.I.D., J&K, Srinagar, vide his letter dated: 04-09-1992 to Additional Chief Secretary Home, J&K Government. The aforesaid information was processed at various levels and after obtaining approval of the Governor, the services of the respondent-writ petitioner were terminated by order dated: 24-11-1992, which was assailed in the writ petition. The order dated: 24-11-1992 reads:- "Government of Jammu and Kashmir General Administration Department. Subject- Termination of services of Shri Mohd Afzal Lone S/O Abdul Rehman Lone R/O Village Hanjan (Kulgam) District Anantnag working as Junior Assistant in Law Department. Government Order No: 1101-GADofl992 Dated: 24-11-1992. The order dated: 24-11-1992 reads:- "Government of Jammu and Kashmir General Administration Department. Subject- Termination of services of Shri Mohd Afzal Lone S/O Abdul Rehman Lone R/O Village Hanjan (Kulgam) District Anantnag working as Junior Assistant in Law Department. Government Order No: 1101-GADofl992 Dated: 24-11-1992. Whereas the Governor is satisfied that the conduct and activities of Shri Mohd Afzal Lone S/O/ Abdul Rehman Lone R/O Hanjan (Kulgam) working as Junior Assistant in the Law Department (Director of Litigation, Kashmir) are detrimental and prejudicial to the security of the State and therefore, it is necessary that the said Shri Mohd Afzal Lone 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 Section 126 of the Constitution of Jammu and Kashmir and Clause (c) of proviso of Sub-Section (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 Mohd Afzal Lone. 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 dismiss the said Shri Mohd Afzal Lone from service with immediate effect (emphasis supplied) By order of the Governor. Sd/(S.D. Singh) Commr/Secretary to Government General Administration Department." 4. The learned Single Judge, after hearing counsel of both sides quashed the impugned order dated: 24-11-1992. As would appear from the judgment and order, the Government failed to produce the relevant record at the time of hearing of writ petition resulting in allowing the writ petition. The operative portion of the judgment of the learned Single Judge is reproduced :- "Clause (c) permits dispensing with such inquiry where the Governor feels satisfied that it is inexpedient to hold such inquiry in the interests of the security of the State. But the Governors satisfaction is to proceed on some material or basis. Where his action is questioned on the lack of material or its irrelevance or frivolousness, the Government is obliged to produce the record to satisfy the Court that the requisite satisfaction was not drawn in air and if Government defaults in doing so, it would only render the action vulnerable to quashment. Where his action is questioned on the lack of material or its irrelevance or frivolousness, the Government is obliged to produce the record to satisfy the Court that the requisite satisfaction was not drawn in air and if Government defaults in doing so, it would only render the action vulnerable to quashment. (See AIR 1985 SC 1416, AIR 1995 SC 1403, AIR 1991 SC 385,1995 SLJ19 and 1993 SLJ171)." Clause (c) of Sub-Section(2) of Section 126 of the Constitution of Jammu and Kashmir is in parameteria with Clause (c) of Sub-Section (2) of Article 311 of the Constitution of India. It reads:-"(C) Where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry." Under Clause (c) of Sub-Section (2) of Section 126, the Governor is empowered to dismiss a Government servant, if he is satisfied, in the interest of security, that it is not expedient to hold such inquiry. Under the said Clause, the Governor need not to give any reasons but his satisfaction must be based on the material collected and placed before him. 5. In A.K. Koul and another Vs. Union of India and another, reported as (1995) 4 SCC, 73, the Apex Court while examining the scope of judicial review in the order of dismissal passed under Article 311 (2) (c) has held that the judicial review is permissible within the limits laid down in S.R. Bommais case. 6. Before us, the learned Additional Advocate General has produced the relevant records including the secret information on the basis of which the Governor based his satisfaction that it is not expedient to hold an inquiry. Before we deal with the record, we may at this stage refer to the few decisions of the Supreme Court dealing with the similar question of law. 7. In S.R. Bommai Vs. Union of India (1994) 3 SCC 1, the Apex Court pointed out that order passed under Article 311 (2) (c) by the President or the Governor as the case may be, can be examined to the extent to ascertain whether such order is vitiated either by malafide or is based on wholly extraneous and/or irrelevant grounds. It was pointed out by the Apex Court that the Court cannot, however, sit in appeal over the order or substitute its own satisfaction for the satisfaction of the President. It was pointed out by the Apex Court that the Court cannot, however, sit in appeal over the order or substitute its own satisfaction for the satisfaction of the President. It was further pointed out that so long there is some material before the President or the Governor, which is relevant for arriving at his satisfaction, the Court, would be bound by the order so passed. The Apex Court enumerated the scope of judicial review of the satisfaction of the President or the Governor, as the case may be, for passing an order under Article 311 (2) (c) of the Constitution as under:- 1. That the order would be open to challenge on the ground of malafide or being based wholly on extraneous and/or irrelevant grounds. 2. Even if some of the material on which the action is taken is found to be irrelevant the Court would still not interfere so long as there is some relevant material sustaining the action. 3. The truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President/the Governor. 8. The view taken in S.R.Bommais case (supra) was reiterated in Union of India and another Vs. Balbir Singh and another, reported in AIR 1998 SC 2043. 9. Keeping in view the law laid down in the background, we will now proceed to examine the materials placed before the Governor, from which he derives satisfaction that in the interest of security of the State, it is not expedient to hold the inquiry. 10. As already said, the Additional Director General of Police, CID, J&K, has submitted a secret report that the respondent-writ petitioner while working as Junior Assistant in the Law Department, attached with Director Litigation, Kashmir, enrolled himself in Militant organisation and locally trained in such organisation and was designated as Nazir Platoon and involved in killing of a Patwari, a BSF Jawan, and a Taxi driver and other subversive activities, was proceeded by the Home Department and recommended to the Governor to take action under Clause (c) of Sub-Section (2) of Section 126 of the Constitution of Jammu and Kashmir. The fact that respondent-writ petitioner was a locally trained militant while in Government service, that too in the Law Department of the State, attached with Director Litigation, would definitely to have satisfied the Governor that it is not expedient to hold the inquiry in the interest of the security of the State. We are clearly of the view that if the documents./material collected, on the basis of which the Governor formed his satisfaction, had been placed before the learned Single Judge, he ought to have taken a different view. 11. The Governor, after examining the recommendations of the State Home Department and perusal of the documents on the basis of which recommendations had been made, passed the following order on 17-11 -1992, which is available in File No: GD(Adm) 15/92-Home(I):-"I have carefully considered the relevant facts and grounds for action against Shri Mohammad Afzal Lone S/0 Shri Abdul Rehman Lone R/O Hanjan (Kulgam), Junior Assistant in the Law Department, placed before me. I am satisfied that the conduct and activities of the said Shri Mohammad Afzal Lone are detrimental and prejudicial to the security of the State and, therefore, it is necessary that the said Shri Mohammad Afzal Lone should be dismissed from service. I am further satisfied that in terms of Clause (c) of proviso of Sub-Section 2 of Section 126 of the Constitution of Jammu and Kashmir and Sub-Clause (c) of the proviso of Clause (C) of Article 311 of the Constitution of India that in the interest of the security of the State it is not expedient to hold an enquiry against the said Shri Mohammad Afzal Lone. Therefore, in accordance with the provisions of Section 126 of the Constitution of Jammu and Kashmir and Article 311 of the Constitution of India, I hereby dismiss the said Shri Mohammad Afzal Lone, Junior Assistant, Law Department from service with immediate effect." 12. A cursory reading of the order would clearly show that there was materials on the basis of which the Governor formed his satisfaction that in the interest of the security of the State it is not expedient to hold an enquiry. From the genesis of the order it would also clearly demonstrated that the satisfaction of the Governor was derived at after the application of the mind on the materials placed before him. 13. From the genesis of the order it would also clearly demonstrated that the satisfaction of the Governor was derived at after the application of the mind on the materials placed before him. 13. It is now well settled principle of law that judicial review is not a review against the decision. It is a review against the decision making process. Once it is found by the Court that the decision making process is validly made, it is not the function of the Court to make a roving enquiry into adequacy and inadequacy of the materials before the Governor, on the basis of which he derives his satisfaction, and substitute the conclusions arrived at by the authority by its own conclusions. This would amount to encroachment of the field meant for the other organs. As already pointed out, judicial review is limited to exercise of power based on malafide or wholly on extraneous or irrelevant considerations. In the instant case, we are, after the perusal of the record placed before us, clearly of the view that there was sufficient materials for the Governor to have arrived at the subjective satisfaction that in the interest of the security of State it is inexpedient to hold an enquiry. The satisfaction of the Governor is subjective satisfaction and such satisfaction is derived from the materials placed before him and once it is found that there was some materials from which the Governor derived his satisfaction, the adequacy and inadequacy of such materials, on the basis of which the Governor derives his satisfaction, cannot be questioned by the Court in exercise of judicial review. 14. In view of what has been stated above, the judgment and order dated July 24th, 1997, passed by the learned Single Judge in SWP No: 94 of 1993 is hereby quashed and set aside. This appeal is allowed. SWP No: 94 of 1993 filed by the respondent-writ petitioner shall stand dismissed. No order as to costs.