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2007 DIGILAW 216 (JK)

Shakeel Ahmad Shall v. State of J&K

2007-10-08

AFTAB ALAM, VIRENDER SINGH

body2007
JUDGMENT : Aftab Alam, J. 1. This appeal is directed against the judgment and order dated May 25, 2007 by which a learned Single Judge dismissed the writ petition, SWP No. 729/2005, filed by the appellant (writ petitioner) challenging the order of his dismissal from service as a police constable. The appellant was dismissed from service by Govt. Order No. Home 91 (ISA) of 1995, dated March 20, 1995 issued under Section 126(2)(c) of the State's Constitution read with Article 311 of the Constitution of India. In the dismissal order it was stated that the appellant's activities were detrimental and prejudicial to the security of the State and, therefore, it was necessary that he should be dismissed from service in public interest. It was further observed that the Governor was satisfied that in terms of Clause (c) of the proviso to sub-section (2) of Section 126 of the Constitution of J & K, in the interest of security of the State, it was not expedient to hold any enquiry against the appellant. 2. Though the order was passed in 1995, the appellant came to challenge it before the Court in the year 2001. As explanation for coming to the Court after such a long time, it was stated on his behalf that the impugned order was never served on him. It was further stated that though he was not getting any salary, the superior authorities kept assuring him that the matter would be regularized and further that during this period he was a member of the team of the J & K Armed Police in different Volley Ball tournaments. The Writ Court, however, was not satisfied with the explanations furnished by the appellant and took the view that the writ petition was liable to be dismissed on grounds of delay and latches. In taking that view, the Writ Court was, naturally, also influenced by its finding that on merits either the case of the appellant (writ petitioner) was completely untenable. 3. In the judgment coming under appeal, the Writ Court reproduced the impugned order. It also referred to the Supreme Court decisions in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 , and in A.K. Koul v. Union of India, AIR 1995 SC 1403 . 3. In the judgment coming under appeal, the Writ Court reproduced the impugned order. It also referred to the Supreme Court decisions in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 , and in A.K. Koul v. Union of India, AIR 1995 SC 1403 . Finally, it dismissed the writ petition observing as follows:- "Before invoking the provisions of Section 126(2)(c) of the Constitution of Jammu and Kashmir read with Article 311 of the Constitution of India the competent authority sought a report of Criminal Investigation Department. The said report reveals that the petitioner was arrested by the local police on March 26, 1994 in FIR No. 432 under Section 3/4 TADA, 307 RPC, Police Station Pacca Danga. This report also reveals that the petitioner joined the militant out fits and he motivated the youths for arms training. On the basis of his report, the competent authority satisfied himself and passed the impugned order. The petitioner has not alleged any mala fide, biased or the said order has been passed on extraneous or irrelevant consideration." 4. Mr. Qureshi, learned counsel appearing on behalf of the appellant, submitted before us that though the Writ Court took note of the fact that the appellant was arrested by the local police on March 26, 1994 in connection with FIR No. 432/1993 of Police Station Pacca Danga under Sections 3/4 TADA and Section 307 RPC, it missed to take into consideration certain other very relevant facts. Learned counsel invited our attention to a communication dated February 17, 1998 from the Superintendent of Police (CID) to the Special Public Prosecutor, Designated Court, Jammu (Annexure O). In this communication, it is stated that on September 29, 1996 the appellant was released under Section 169 of the Code of Criminal Procedure as approved by the Inspector General of Police (CID), J & K, Srinagar. Mr. Qureshi also referred to Annexure 'P', which is the photocopy of a report of Police Station, Pacca Danga, Jammu, dated July 2, 1997, stating that the appellant was not wanted in any case in the Police Station. Mr. Qureshi submitted that since the appellant was released under Section 169 Cr.P.C., the very basis on which the order of dismissal was passed became non-existent and, therefore, the order of dismissal was wholly untenable in law. 5. In view of the submissions made on behalf of the appellant, Mr. Mr. Qureshi submitted that since the appellant was released under Section 169 Cr.P.C., the very basis on which the order of dismissal was passed became non-existent and, therefore, the order of dismissal was wholly untenable in law. 5. In view of the submissions made on behalf of the appellant, Mr. Salathia, learned Additional Advocate General, appearing for the State, submitted that he would produce the original record of the case. He did so on September 14, 2007. 6. The file begins with a communication bearing No. CID/BR/2980-81, dated December 9, 1994 from the Additional Director General of Police, CID, J & K, Camp Srinagar to the Additional Chief Secretary (Home), J & K Government, Camp Srinagar. In the letter, it is stated that the appellant was arrested on March 26, 1994 in case FIR No. 434/1993 of Police Station Pacca Danga under Sections 3/4 TADA and Section 307 RPC and was referred to JIC, Jammu on April 5, 1994 for sustained interrogation. During interrogation, he admitted to have come in contact with certain militants. The letter concluded with the request to take necessary action under Section 126 of the State's Constitution read with Article 311 of the Constitution of India, since the activities of the appellant were not only prejudicial to the security of the State, but were also violative of the Civil Service Conduct Rules, stating further that it was not expedient to hold a regular departmental enquiry against him due to the prevalent situation. 7. On this letter a note was put up with the recommendation to accept the proposal of the CID and 'to issue orders accordingly". The note was approved at different levels and finally on March 15, 1995 it was directed 'issue orders', following which the impugned dismissal order was issued on March 20, 1995. Surprisingly, the dismissal order is in a cyclostyled form in which the blanks for order number, date, name of the employee etc. have simply been filled up. That is all the record. The rest of the papers relate to the period after the filing of the writ petition before this Court. 8. From the record it appears that in the letter of Additional Director General of Police, CID, J & K 'prevalent situation' is cited as the reason to dispense with the normal disciplinary proceeding. That is all the record. The rest of the papers relate to the period after the filing of the writ petition before this Court. 8. From the record it appears that in the letter of Additional Director General of Police, CID, J & K 'prevalent situation' is cited as the reason to dispense with the normal disciplinary proceeding. Thereafter, not a single authority, before whom the matter was placed, seems to have given any thought to the reason for dispensing with the proceeding; everyone simply put his initials under the note, 'may be approved'. The order of dismissal thus suffers from the fatal flaw. 9. Moreover, the involvement of the appellant in the criminal case that was made the ground for his dismissal lost all force as he was released under Section 169 Cr.P.C. 10. In the aforesaid facts and circumstances, we find it very difficult to sustain the impugned order of dismissal and we are of the view that the Writ Court overlooked certain very material facts and circumstances of the case and erred in dismissing the writ petition filed by the appellant. 11. Having regard to the facts of the case, we are of the view that it would not be just and fair to completely deny relief to the appellant for coming to the Court after long delay. We, accordingly, allow the appeal, set-aside the judgment and order coming under appeal and quash the impugned order of dismissal. But, since the appellant (writ petitioner) came to the Court after great delay, he shall not be allowed any back wages.