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2006 DIGILAW 159 (JK)

State Of J. &K. v. Shabir Ahmed Bhat

2006-06-09

B.A.KHAN, J.P.SINGH

body2006
Per J.P.Singh, J. 1. State-appellants have appealed to us to question writ Court judgment dated 14.08.1997 of a learned Single Judge of this Court quashing Government Order No.625-GR of 1990 dated 04.05.1990 whereby, respondent- Shabir Ahmed, who had been working as Junior Engineer in Public Health Engineering Department was dismissed from service under Section 126(2) of Constitution of Jammu & Kashmir. 2. To put briefly, facts leading to the filing of this appeal may be stated, thus; 3. A writ petition OWP No. 363/1990 was filed in this Court saying that the respondent-writ petitioner, who had been working as Junior Engineer on ad hoc basis in the Hydraulic Wing of-the Engineering Department of the State, was appointed as Junior Engineer vide Government Order No. PW-412 of 1988 dated 10.06.1988. His services were later terminated vide Order No. 625-GR of 1990 dated 04.05.1990 on the ground that the Governor of the State of J&K had been satisfied that the activities of the writ petitioner were detrimental and prejudicial to the security of the State, which warranted his dismissal from service. 4. The order aforementioned was questioned in the writ petition on the ground that there was nothing adverse against the writ petitioner in the police records and that neither any show-cause had been issued nor inquiry held before terminating his services. The writ petitioner alleged that the Governor of the State had acted arbitrarily and in derogation of the principles of natural justice in passing the order impugned in the writ petition. Dispensation of inquiry by the Governor, too, was questioned by the petitioner. The appellants did not file any counter affidavit to the writ petition. They, however, appear to have been satisfied with the production of records alone. 5. A learned Single Judge of this Court raised three questions for deciding the issues raised by the parties. These questions read, thus;- "(i) Is the power exercisable by the Governor ill terms of clause (c) of sub-sec (2) of sec. 126 of the Constitution of Jammu & Kashmir open to judicial review? (ii) Is the material available against the petitioner, of such nature as not to allow an inquiry to be conducted in the case? (iii) Is the material relevant and sufficient to lead to a conclusion that the petitioners activities are prejudicial to security of the State?" 6. 126 of the Constitution of Jammu & Kashmir open to judicial review? (ii) Is the material available against the petitioner, of such nature as not to allow an inquiry to be conducted in the case? (iii) Is the material relevant and sufficient to lead to a conclusion that the petitioners activities are prejudicial to security of the State?" 6. After discussing Article 311(2) of Constitution of India, Tulsi Ram Patels case reported as AIR 1985 SC 1416; a Division Bench decision of this Court in `Rais Ahmed Gazi v. State and ors. reported as 1997 SLJ 178 and various other aspects of the matter, the learned Single Judge held that the judicial review was permissible in the case and question of sufficiency of material on which the Governor had acted, could be gone into by the Court. The learned Single Judge went to the extent of saying that the Court can also see for itself as to whether or not the material against the petitioner was such, which would be prejudicial to the security of the State. 7. The learned Single Judge, accordingly, after evaluating the merits of the case, held that the allegations against the writ petitioner, per se, were wearing thin of their credibility. Learned Single Judge held that the Governor had not applied his mind in recording the satisfaction while directing the removal of the writ petitioner. It would be apt to quote what had been held by the learned Single Judge, on facts, to annul the satisfaction recorded by the Governor. This finding reads thus:- "The allegation as reflected above against the petitioner is that he was arrested in FIR No. 69/88 under sec. 3/4 TADA P/S Rajbagh. During the course of interrogation, according to the dossier he disclosed that he had motivated two others to undergo training in Pak-occupied Kashmir. It is clear that he has not gone for training himself and was not formally detained under the provisions of Public Safety Act. The allegation emanates out of his own statement, which ordinarily could not be read against him and there is no other material against him. Even if this statement is believed to be an admission then also the prejudicial act he has committed is that of motivating two persons to go and receive arms training in P.O.K. It is not know as to who those two persons were. Even if this statement is believed to be an admission then also the prejudicial act he has committed is that of motivating two persons to go and receive arms training in P.O.K. It is not know as to who those two persons were. It is also not borne out by any testimony as to whether or not those two persons had while acting upon the advice of the petitioner gone to P.O.K. for arms training. The allegations on their own construction are so trifling that even ordinary law of the land would have take care of them. The petitioner has never been detained under P.S.A. and as shown by the certificate issued by the Sub-Divisional Police Officer Shergarhi (annexure P3 to the writ petition) petitioner was taken into police custody for questioning purposes only and nothing adverse against him was found during the investigations. The question that attracts out attention is whether this material was sufficient to terminate (he services of the petitioner. I find it was not. I cannot resist the temptation of reflecting upon the nature of (his material for determining its potential to endanger the security of the State. 1 fail to understand as to how could an inquiry into the aforementioned conduct of the petitioner be prejudicial to the security of the State. The allegations against the petitioner per-se are wearing thin of their credibility. The assertion of the Governor that it would not be expedient to hold the inquiry is a stand, which falls down like a house of cards when thrashed on the touchstone of judicial scrutiny. Not only that, the examination of the file reveals that the style in which satisfaction of the Governor has been recorded lacks application of mind also." 8. In so far as the question of recording of satisfaction by the Head of the State in respect of dispensing with the inquiry was concerned, learned Single Judge proceeded to hold as follows:- "That being so, I find that the material against the petitioner in the present case is not only insufficient but also irrelevant. The satisfaction recorded by the Head of the State in respect of dispensing with inquiry is wayward and malafide. I call it mala fide because there is absolutely no basis on which such satisfaction could have been recorded." 9. This appeal has arisen in the above stated background. 10. Sh. Mohd. The satisfaction recorded by the Head of the State in respect of dispensing with inquiry is wayward and malafide. I call it mala fide because there is absolutely no basis on which such satisfaction could have been recorded." 9. This appeal has arisen in the above stated background. 10. Sh. Mohd. Amin Rathore, learned Additional Advocate General appearing for the State, submits that the learned Single Judge had exceeded his jurisdiction in going into the sufficiency or otherwise of the material, on the basis whereof, His Excellency the Governor of the Slate had recorded his satisfaction that the activities of the writ petitioner were detrimental and prejudicial to the security of the State. Learned counsel submits that there was sufficient material before the Governor for dispensing with the inquiry before removing the writ petitioner from service. 11. Sh. Abdul Bari, learned counsel for the respondent-writ petitioner, on the other hand, submits that the impugned judgment records cogent and sufficient reasons and there is no scope for interference with the findings returned by the learned Single Judge because there was no material on records to justify the satisfaction recorded by the Governor. Learned counsel submits that there was no material before the Governor on the basis whereof power under Section 126(2) could be exercised by the Governor. 12. We have considered the submissions of learned counsel for the parties. We have gone through the original records made available to us by learned counsel for the appellants as also the judgments relied by the learned counsel. 13. In order to deal with the respective contentions of learned counsel for the parties, concept of judicial review needs to be looked at. The question of judicial review came up for consideration before a nine judges Bench of the Supreme Court of India in `S. R. Bommai v. Union of India reported as (1994) 3 SCC 1. 13. In order to deal with the respective contentions of learned counsel for the parties, concept of judicial review needs to be looked at. The question of judicial review came up for consideration before a nine judges Bench of the Supreme Court of India in `S. R. Bommai v. Union of India reported as (1994) 3 SCC 1. The majority view in that case was as follows:- "(i) the satisfaction of the President while making a Proclamation under Article 356(1) is justifiable; (ii) it would be open to challenge on the ground of mala fides or being based wholly on extraneous and/or irrelevant grounds; (iii) even if some of the materials 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; (iv) 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; (v) the ground of mala fides takes in, inter alia, situations where the Proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power; (vi) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Union Council of Ministers are the best Judge of the situation and that they are also in possession of information and material and that the Constitution has trusted their judgment in the matter; and (vii) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive." 14. The Supreme Court of India, while dealing with `A.K. Kaul v. Union of India reported as 1995 AIR SCW 2075, held as "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 mala fides or is based on wholly extraneous or irrelevant grounds within the limits laid down in AIR 1994 SC 1918." 15. Almost an identical question came up for consideration before the Supreme Court of India in `Union of India v. Balbir Singh reported as AIR 1998 SC 20.43, when it was observed as under:- "In the case of A.K. Kaul v. Union of India (1995 AIR SCW 2075) (supra) this Court has examined the extent of judicial review permissible in respect of an order of dismissal passed under second proviso (Clause (c) of Article 311 (2) of the Constitution. This Court has held that the satisfaction of the President can be examined within the limits laid down in S.R. Bommai v. Union of India (1994) 3 SCC 1 (1994 AIR SCW 2946). The order of the President can be examined to ascertain whether it is vitiated either by mala fides or is based on wholly extraneous and/or irrelevant grounds. The Court, however, cannot sit in appeal over the order, or substitute its own satisfaction for the satisfaction of the President. So long as there is material, before the President, which is relevant for arriving at his satisfaction as to action being taken under Clause (c) to the second proviso to Article 311(2), the Court would be bound by the order so passed. This Court has enumerated the scope of judicial review of the Presidents satisfaction for passing an order under Clause (c) of the second proviso to Article 31 1(2). The Court has said, (1) that the order would be open to challenge on the ground of mala fides 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) (he truth or correctness of the material cannot be questioned by the Court nor will I go into the adequacy of the material and it will also not substitute its opinion for that of the President; (4) the ground of mala fides takes in, inter alia, situations where the proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power...." ........................................... "8. "8. 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 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 Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations" 16. In view of the law laid down by the Supreme Court of India, as extracted hereinabove, we would like to take the view that although Court cannot sit in appeal over the order or substitute its own satisfaction for the satisfaction, of the Governor, when he acts under Section 26(2) of Constitution of J&K, yet it would be within the limits of its jurisdiction of judicial review to see as to whether or not there was any material before the Governor which may be relevant for arriving at his satisfaction as to the action, taken against him under Section 126 (2) (c) of the Constitution of J&K. The truth or correctness of the material before the Governor cannot be questioned by the Court nor will it go into the adequacy of the material for substituting its opinion for that of the Governor. This was as regards the sufficiency or otherwise of the material on the basis whereof the action was taken by the Governor. 17. We would like to add that the Court would have vast jurisdiction and power to see the action of the Governor, if it had been challenged on the ground of mala fides or being based wholly on extraneous or irrelevant grounds. 18. After having settled the law as to the limits of the jurisdiction of judicial review of the Court, we would now deal with the submissions of learned counsel for the parties regarding the view taken by the learned Single Judge in the matter. 19. It is no doubt true that the mala fide exercise of power by an authority, whosoever high it may be, goes to the root of the matter and vitiates the exercise of power by such authority. 19. It is no doubt true that the mala fide exercise of power by an authority, whosoever high it may be, goes to the root of the matter and vitiates the exercise of power by such authority. Mala fide exercise of power by an authority casts a stigma as well on the person exercising such authority. It is for this reason that Courts had been insisting for a very strong proof of mala-fides before an order may be dubbed as mala-fide. 20. We have gone through the writ petition of the respondent to find out as to how had the mala-fides been pleaded by the writ petitioner. 21. We could not, however, find even a whisper of mala-fides in the writ petition. We are, thus, at loss to appreciate as to on what basis could the learned Single Judge held the satisfaction recorded by the Governor as wayward and mala fide. We do not appreciate as to how the learned Single Judge could refer the order as mala fide only because he had not found any basis on which the satisfaction could have been recorded by the Governor, the following finding of the learned Single i.e. "That being so, I find that the material against the petitioner in the present case is not only in sufficient but also irrelevant. The satisfaction recorded by the Head of the State in respect of dispensing with inquiry is wayward and malafide. I call it mala fide because there is absolutely no basis on which such satisfaction could have been recorded", is, thus, unjustified besides being unwarranted and in excess of jurisdiction. We would, therefore, up set this finding of learned Single Judge. 22. We are further not satisfied with the finding of learned Single Judge, whereby he had in exercise of power of judicial review, recorded that the material on records was not sufficient to terminate the services of the petitioner. This finding of the learned Single Judge, too, in view of our earlier finding as regards scope of judicial review, is beyond the jurisdiction of the Court. This finding, too, is, thus, set aside. 23. We, however, find that the Governor had dispensed with the holding of inquiry without there being any material on records, on the basis whereof, it could be held that in the interest of security of State, it was no expedient to hold an inquiry. 24. This finding, too, is, thus, set aside. 23. We, however, find that the Governor had dispensed with the holding of inquiry without there being any material on records, on the basis whereof, it could be held that in the interest of security of State, it was no expedient to hold an inquiry. 24. We have seen the office note, which was sent to the Governor, for dispensing with the holding of inquiry. Except saying that the Governor had the power to dispense with the inquiry under Section 126(2) (c) of the Constitution of J&K, concerned officer had not referred to any material on the basis whereof the Governor would consider that it was not expedient to hold an inquiry. Further examination of the records, indicates that no such note could have been prepared by the concerned officer because the case had not been processed on these lines that it was inexpedient to hold inquiry against the respondent on the basis of some or other material. 25. We are, thus, of the opinion that the power exercised by the Governor in dispensing with the holding of inquiry in exercise of power under Section 126(2)(c) of the Constitution of J&K, was unjustified and unwarranted as there was no material worth the name for justifying such conclusion. This renders the impugned i order unsustainable being in violation of Section 126(2)(c) of the Constitution of J&K. We, therefore, while up-setting the findings of learned Single Judge on all the issues except the finding of there being no materials on records to justify the order of Governor to dispense with the inquiry in terms of Section 126(2)(c) of the Constitution of J&K, would allow the writ petition by directing the reinstatement of the respondent. Relief allowed to the respondent by the writ Court as regards back wages is declined for the present. 26. The State Government is left free to proceed against the respondent if it wishes so to do, after holding requisites inquiry in this behalf. The question of entitlement of the respondent-writ petitioner to back wages would be subject to the result of the inquiry that may be held against him by the appellants. 27. This appeal is, accordingly, disposed of on above terms.