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2004 DIGILAW 316 (JK)

Farooq Ahmad Mir v. State Of J. &K.

2004-11-09

HAKIM IMTIYAZ HUSSAIN, S.N.JHA

body2004
Per S.N. Jha, CJ: The appellant, an Ex-Constable of the Jammu and Kashmir Armed Police, was dismissed from service in terms of proviso (b) to sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir corresponding to clause (b) of the second proviso to Article 311 of the Constitution of India. Sub-section (2) of Section 126 provides that no member of the civil service of the State or holder of a civil post under the State shall be dismissed or removed or reduced in rank except after enquiry, giving him reasonable opportunity of being heard in respect of the charges and, also, making representation on the penalty proposed. In terms of proviso (b) the sub-section "shall not apply . where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry". Invoking the said proviso, the appellant was dismissed from service without enquiry. He filed writ petition, SWP No. 628/1992. The petition having been dismissed by the learned Single Judge, he has come in letters patent appeal. The short facts of the case are that on 5th April, 1991, while he was posted as a guard at the telephone exchange Ishber Guptganga, Nishat, he proceeded on 30 days earned leave. On 20th April, 1991, he was taken into custody by the CBI in connection with a case relating to the kidnapping and murder of one Dharamvir Sharma, Inspector of Border Security Force on 26th October, 1990. FIR 105/1990 under section 302 RPC and section 3(2)(1) of Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA(P) Act] was registered at Nishat Police Station. The investigation of the case was later taken over by the CBI at the request of the State Government on 11th March, 1991 leading to registration of RC 4(S)/91-SIV/5V(SIC)-II by it. The investigation revealed that Inspector Dharmvir Sharma was posted in G. Branch of 24th Battalion of Border Sincerity Force in September, 1990. By virtue of his posting in G. Branch of 24th Battalion, it was his duty to collect information about the movement of militants. The appellant allegedly passed on information about his mission to the militants and helped them kidnap him. By virtue of his posting in G. Branch of 24th Battalion, it was his duty to collect information about the movement of militants. The appellant allegedly passed on information about his mission to the militants and helped them kidnap him. On 26th October, 1990 at about 10 a.m. when he (Dharmvir Sharma) moving in plain clothes, boarded a bus at Ishber Gupganga Nishat for Dalgate, four militants -- belonging to Hizbul Mujahideen and Kashmir Freedom Movement, kidnapped him at gun point and finally short him dead at about 7.30 pm. In course of investigation, accused Nazir Ahmad Bhat was arrested. He made confessional statement in terms of section 15 of TADA(P) Act in which he disclosed the names of his associates, including that of the appellant. He stated that he had supplied information about the nature of duty and activities of Dharmvir Sharma to the militants and helped them in his kidnapping. On the basis of the disclosure statement the appellant was arrested on 13th April, 1991. In his statement under section 15 of TADA (P) Act, he admitted his complicity in the kidnapping and eventual murder of Dharamvir Sharma. On 24th January, 1992 he was released on bail by the Designated Court, Srinagar. On 6th March, 1992, on completion of investigation, charge sheet was submitted in the TADA Court at Jammu under section 120-B read with section 364 and 302 RPC and section 3(3) of TADA (P) Act, 1987 against the appellant and others. In course of time, charges were framed against the accused, including the appellant, and the case is pending trial. In the meantime, the appellant had been placed under suspension on 3rd July, 1991. The Commandant J&K Armed Police IX Battalion, Chenani, Jammu, took the view that in view of the prevailing situation it was not reasonably practicable to hold enquiry against the appellant and, accordingly, invoking the provisions of section 126 (2) proviso (b) of the Constitution of Jammu & Kashmir, dismissed him from service on 10th August, 1991. The Commandant J&K Armed Police IX Battalion, Chenani, Jammu, took the view that in view of the prevailing situation it was not reasonably practicable to hold enquiry against the appellant and, accordingly, invoking the provisions of section 126 (2) proviso (b) of the Constitution of Jammu & Kashmir, dismissed him from service on 10th August, 1991. The learned Single Judge, repelling the challenge to the validity of the said order, held that under section 126(2) proviso (b) of the State Constitution which is akin to clause (b) of the second proviso to Article 311(2) of the Constitution of India, where the competent authority is satisfied that the prevailing situation is such in which it is not reasonably practicable to hold an enquiry against the person concerned, he may proceed to pass an order of dismissal or discharge or reduction in rank without holding the enquiry. The learned Single Judge held that the satisfaction of the authority was based on materials and there were sufficient grounds to dispense with the enquiry. He observed that the High Court cannot sit in appeal over the sufficiency of materials or satisfaction of the authority and, accordingly, dismissed the writ petition. Mr. M.A. Qayoom, learned counsel for the appellant submitted that before exercising the power in terms of section 126(2) proviso (b) it is incumbent upon the authority to record reasons for his satisfaction that it is not practicable to hold enquiry. In the instant case the Commandant passed the order without recording reasons for such satisfaction. The order was without any application of mind. Counsel submitted that notwithstanding the arrest in connection with a criminal case, or a departmental proceeding, action can be taken against the person concerned if there are materials before the authority to suggest that it is impossible, or not reasonably practicable, to hold enquiry. Except the FIR of the case, there was no other material available with the Commandant to form the basis of satisfaction. The allegation, which led to the impugned action, is immaterial. What is relevant is whether enquiry can be held or not. Counsel submitted that, may be, the valley was in a state of turmoil at the relevant time but it does not mean that no enquiry could be held in the prevailing situation. In support of the submissions Mr. The allegation, which led to the impugned action, is immaterial. What is relevant is whether enquiry can be held or not. Counsel submitted that, may be, the valley was in a state of turmoil at the relevant time but it does not mean that no enquiry could be held in the prevailing situation. In support of the submissions Mr. Qayoom placed reliance on Union of India v. Tulsiram Patel, (1985) 3 SCC 398; Satyavir Singh v. Union of India, (1985) 4 SCC 252; Jaswant Singh v. State of Punjab, (1991) 1 SCC 362, A. K. Kaul v. Union of India, AIR 1995 SC 1403 : (1995) 4 SCC 73; Gurcharan Singh v. State of J&K, 1993 SLJ 171; Constable Ghulam Mohi-ud-Din Mir v. State of J&K, 1995 SLJ 212 and State of J&K v. S. Kehar Singh, 1999 SLJ 77. Mr. M. A. Rathore, AAG, appearing for respondents, submitted that in view of the provisions of sub-section (3) of section 126 of the Constitution of Jammu and Kashmir the satisfaction of the competent authority about the practicability of holding enquiry is final and the High Court cannot go into that question as if sitting in appeal. The High Court while making judicial review of the order of dismissal etc. is supposed to consider the matter as if sitting in place of the competent authority and keeping in mind the conditions prevailing at the relevant time. He submitted that there were materials available with the authority the sufficiency of which cannot be gone into. He too placed reliance on Union of India v. Tulsiram Patel (supra), besides relying on Kuldip Singh v State of Punjab, (1996) 10 SCC 659. Before expressing opinion on the contentions advanced, it would be appropriate to mention the guidelines of the exercise of power under clause (b) of the second proviso to Article 311 of the Constitution of India containing identical provisions as section 126(2) proviso (b) of the Constitution of Jammu and Kashmir. The leading case on the subject is Union of India v. Tulsiram Patel (supra) decided by the Constitution Bench. We may straightaway refer to the relevant observations therein as under: "The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that ` it is not reasonably practicable to hold the inquiry contemplated by clause (2) of Article 311. We may straightaway refer to the relevant observations therein as under: "The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that ` it is not reasonably practicable to hold the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are `not reasonably practicable and not `impracticable. .Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of the reasonable man taking a reasonable view of the prevailing situation. . The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. .. .. .. .. .. .. .. .. .. .. .. .. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court-room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere." Mr. Qayoom did not, and could not have, take the stand that the High Court should make its own assessment on the prevailing situation. In fact, it was one of the criticisms of the judgment of the learned Single Judge that he had recorded reasons to sustain the `satisfaction of the authority. He submitted that while it may not be open to the High Court to make its own assessment or to sit in appal over the decision / satisfaction of the competent authority, in the instant case, no reason was assigned for arriving at such satisfaction and, therefore, the decision of the authority to dispense with the enquiry was in excess of the power conferred under section 126 (2) proviso (b). According to the counsel, the requisite satisfaction is required to be recorded before imposing the penalty. In support of the submission counsel referred to the following observations in Union of India v. Tulsiram Patel (supra): "The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contained detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances." The submission of the counsel is undoubtedly correct as a proposition of law and it is to be seen whether the impugned order conforms to the requirement of law or not. The impugned order of dismissal dated 10th August, 1991 may be quoted so far as relevant as under: "Whereas Constable Farooq Ahmad No. 494 of this Bn. proceeded on 30 days earned leave and during the course of leave he was arrested by CBI in case of RC 4 (S)/91/CBI/SPC/510-11. The case relates to the kidnapping and murder of one Inspector Dharmveer of B. S. F. Whereas the constable actually aided and encouraged the subversive/anti-national elements in accomplishing their objective by killing a senior officer of the para-military forces. Moreso, it amounts to grave misconduct, glaring violation of discipline and it is unbecoming of a member of the disciplined force. Whereas sin view of the prevailing situation it not reasonably practicable to hold an enquiry against the constable. Moreso, it amounts to grave misconduct, glaring violation of discipline and it is unbecoming of a member of the disciplined force. Whereas sin view of the prevailing situation it not reasonably practicable to hold an enquiry against the constable. Now therefore, in exercise of the powers conferred on me by virtue of section 126 (2) (b) of the Constitution of Jammu and Kashmir." In Kuldip Singh v State of Punjab (supra) -- a decision rendered more or less on identical facts -- the petitioner, a Head Constable in the state police force, was dismissed from service without holding enquiry. He allegedly had close links with extremist and had been helping them by providing them information of the police department, and thus indulging in activities prejudicial to the efficient functioning of the police force. Noticing these facts and recording his satisfaction that the circumstances of the case are such that it is not reasonable practicable to hold enquiry because no witness is likely to depose against him due to fear of injury of his life, the SSP proceeded to dismiss him from service exercising power under the relevant service rules read with Article 311(2) of the Constitution of India. The dismissal order was sought to be sustained on the ground that during interrogation of the case, registered as FIR 219 of 1990, the petitioner had admitted to have links with militants and making preparations to commit murder of senior police officers taking advantage of his position. In the Supreme Court plea was taken that there was no material available with the authority, which could lead to his satisfaction about the practicability of holding enquiry. On the direction of the Court the State produced the original record. The Court noticed that the record contained only two documents being copy of FIR 219 of 1990 in respect of the incident in which the jeep carrying police officers was blown up killing the occupants, including SP (Operations) Shri Harjit Singh, and the case diary containing the statement of the petitioner in which he stated about his association with certain named militants, the plot laid by them to kill Shri Harjit Singh by placing a bomb in the manner in which they carried out the plot. It was submitted on behalf of the petitioner that being a confessional statement before the police it was not admissible in evidence and, therefore, could not be regarded as material to form the basis of satisfaction. Rejecting the contention, the Supreme Court held that if the confession was relevant, the fact that it was made to the police or while in the custody of the police may not be of much consequence for the reason that strict rules of evidence Act do not apply to departmental and disciplinary enquiries. If the competent authority comes to the conclusion that the statement was voluntary and true he may well be entitled to act upon the statement. Finally, declining to interfere with the dismissal order, the Supreme Court observed that "it must be remembered that we are dealing with a situation obtaining in Punjab during the years 1990-91". Coming to the instant case, like in the case of Kuldip Singh v. State of Punjab (supra), there is a confessional statement of the appellant, besides inculpatory statement of Nazir Ahmad Bhat implicating, besides himself, the appellant in the commission of the crime. The file produced by the State counsel contains copies of these statements. In the circumstances, it cannot be said that there were no materials available with the competent authority. The only question is whether the satisfaction recorded by the authority in the impugned has nexus with the materials or not. As held in Union of India v. Tulsiram Patel (supra), in order to decide whether the reasons are germane to clause (b), "the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court-room, removed in time from the situation in question". The case against the appellant is that acting in league with the militants belonging to Hizbul Mujahideen and Kashmir Freedom Movement, he abetted the kidnapping and murder of Inspector Dharamveer Singh of Border Security Force. Whether in the situation prevailing in or about August, 1991 it was possible to hold enquiry in respect of his conduct? The case against the appellant is that acting in league with the militants belonging to Hizbul Mujahideen and Kashmir Freedom Movement, he abetted the kidnapping and murder of Inspector Dharamveer Singh of Border Security Force. Whether in the situation prevailing in or about August, 1991 it was possible to hold enquiry in respect of his conduct? The satisfaction of the authority that it was not reasonably practicable to hold enquiry in the prevailing situation cannot be said to be a mere surmise or ipsi dixit. It was based on a bona fide perception of the prevailing situation, the validity of which cannot be gone into in the now prevailing situation treating it as an ordinary case of dismissal in a departmental proceeding. It hardly need be pointed out that while considering the validity of an order of dismissal simplicitor the High Court does not sit as a court of appeal nor goes into the sufficiency or otherwise of the materials and it only examines the correctness of the decision making process and not the decision itself. In the case of Tulsiram Patel (supra) while giving illustrations of the situations in which it may not be reasonably practicable to hold enquiry, it was observed that "it would also not be reasonably practicable to hold an enquiry where the atmosphere of violence prevails and it is immaterial whether the concerned government servant is or is not a party to bringing about such atmosphere. It is the numbers which coerce and terrify, an individual may not". The decision in Satyavir Singh v. Union of India (supra) relied upon on behalf of the appellant, does not state anything different. Therein too, the Court observed that whether it was practicable to hold enquiry or not must be judged in the context of whether it was reasonably practicable to do so. To quote, "it is not a total or absolute impracticability which is required by clause (b) of the second proviso. What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of the prevailing situation that clause (3) of Article 1311 makes the decision of the disciplinary authority on this question final". The case of Jaswant Singh v. State of Punjab (supra) was decicded on peculiar facts. The appellant was earlier subjected to a departmental enquiry and dismissed from service. The Inspector General of Police, however, in revision, remanded the case with a direction to re-instatement him, re-consider the enquiry report and pass fresh order. After the appellant rejoined the post, he was immediately placed under suspension on 5th March, 1981. On 6th April, 1981 at about 11 a.m. an incident of alleged attempt to commit suicide by the appellant took place in which he sustained knife injury and was hospitalised. While he was in hospital, a show cause notice was served on him on the same day at 10 p.m. calling upon him to submit reply within ten days. Before he could submit his show cause, he was dismissed from service on the very next day i.e. 7th April, 1981 invoking clause (b) of second proviso of Article 311(2) of the Constitution of India and the relevant provisions of Punjab Police Rules. Two reasons were set out in support of the satisfaction -- that the appellant had given threats that with the help of other police employees he will not allow holding any departmental enquiry against; and second, that he and his associates would not hesitate to cause physical injury to the witnesses as well as the enquiry officer. The Supreme Court observed that, firstly, the respondents had failed to disclose to the court the material in existence at the date of the passing of the impugned order in support of the satisfaction recorded by the competent authority in the impugned order; and secondly, the earlier departmental enquiries were duly conducted without any allegation that the department had found any difficulty in examining the witnesses in the said inquiries; and finally, it was difficult to understand as to how he could have given threats etc when he was in hospital. On these grounds the impugned order was held to be not sustainable and set-aside. In Gurcharan Singh ver State of J&K (supra) the facts were that the petitioner had remained under prolonged suspension. The Court, in the circumstances, had directed the respondents to hold enquiry. Dispensing with the enquiry, an order of dismissal was passed. It was held that the employer could not dispense with the enquiry without obtaining order of the Court. In Constable Ghulam Mohi-ud-Din v. State of J&K (supra), the services of the petitioner had been terminated on the ground of absence from duty. Two grounds were assigned in the counter affidavit for dispensing with the enquiry -- chaotic condition prevailing particularly in the valley and that the entire police force was busy in curbing terrorist activities and the officers could not afford to conduct an enquiry, which involves a long process. This Court in the facts and circumstances did not approve either of the two grounds. The Court found that absence from duty was on account of hospitalisation as the petitioner had suffered injuries in a shoot out and the enquiry would not have been a lengthy affair. The Court held that the decision of the authority to dispense with the enquiry is final but subject to judicial review and in the facts and circumstances quashed the order. In State of J&K v. Kehar Singh (supra), it was again held that the decision not to hold an enquiry is open to the judicial review, and the exercise of power under section 126 (2) proviso (b) would be bad where the authority whose satisfaction is in question has totally failed to apply its mind to the relevant considerations or where the satisfaction is based on extraneous or irrelevant considerations or where the satisfaction is arrived at by applying wrong test or where it is based on materials which are of no rationally ;probative value. There should be some independent material apart from the allegations, which are being looked into to record the finding that it is not possible to hold enquiry. That was a case of dismissal from service in the interest of the security of the state in terms of proviso (c) to section 126 (2) of the Constitution of Jammu and Kashmir. The ground was recovery of some cartridges from the house of the petitioner. That was a case of dismissal from service in the interest of the security of the state in terms of proviso (c) to section 126 (2) of the Constitution of Jammu and Kashmir. The ground was recovery of some cartridges from the house of the petitioner. The Court found that earlier two private complaints were by or at the instance of a retired ASI of Police who had developed some ill-will against him. After the complaints failed he conspired with the SHO and planted the cartridges. The cases aforesaid, it would appear, were decided on their own facts and lend no help to the appellant. In the instant case, as per the record, Inspector Dharamveer Sharma of the Border Security Force was killed in a militancy related occurrence at the time when militancy in the valley was at its peak. The appellant allegedly acted as a conduit of the militants. It was on the basis of information passed on by him that Dharamveer Sharma was picked up by the militants and done to death. The confessional statement of Nazir Ahmad Bhat and the appellant himself, prima facie, lead to his complicity in the crime. His retention as a member of the police force could not, therefore, be in public interest and the decision to dismiss him from service cannot be said to be arbitrary. The only question is whether the decision to dispense with the enquiry was correct. This has to be considered by this Court placing itself in position of the disciplinary authority keeping in mind the situation then prevailing in 1991. It may be, as submitted on behalf of the appellant, that during the turmoil departmental enquiries were conducted and proceedings were carried on, but it is doubtful if in a militancy related case it would have been practicable to hold an enquiry. The Commandant -- the man on the spot -- was satisfied about the impracticability of an enquiry and this Court would not like to sit in appeal over his decision / satisfaction. Sub-section (3) of section 126 attaches finality to the satisfaction / decision of the authority on practicability of enquiry and though the decision is subject to judicial review it is not a fit case for exercise of power in favour of the appellant. Sub-section (3) of section 126 attaches finality to the satisfaction / decision of the authority on practicability of enquiry and though the decision is subject to judicial review it is not a fit case for exercise of power in favour of the appellant. The learned Single Judge declined to interfere in the matter and in letters patent appeal this Court does not find any ground to interfere. In the result finding no merit, we dismiss the appeal, but without any order as to costs. Judgment pronounced by me in terms of Rule 138(3) of J&K High Court Rules.