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2007 DIGILAW 231 (JK)

State Of J. &K. v. Ab. Majid Dar

2007-10-18

AFTAB ALAM, NISAR AHMAD KAKRU

body2007
Per Aftab Alam, ACJ: 1. This appeal by the State is directed against the judgment and order, dated April 27, 2005 by which a learned Single Judge allowed the writ petition (SWP no. 1460/1999) filed on behalf of the respondent and set-aside the order of his dismissal from service as Sg. Constable passed by the disciplinary authority in exercise of the powers under section 126(2)(b) of the Constitution of the State of Jammu & Kashmir. The Writ Court, interfered with the impugned dismissal order, as it found that no reason was assigned for dispensing with the departmental enquiry. It, however, left open to the authorities to proceed in the case in accordance with the rules and to conduct a regular enquiry as required in the circumstances of the case. It also directed that the quashing of the order would not entitle the respondent (writ-petitioner) to claim any back-wages/pay/salary from the appellants. 2. The respondent (writ-petitioner), who was a Sg. Constable in the J&K Armed Police, was dismissed from service by order no.777 of 1999 issued by the Inspector General of Police, Armed, J&K, Srinagar on August 17, 1999. The dismissal order was passed in exercise of powers under section 126(2)(b) of the J&K Constitution that allows the competent authority to dismiss a person from service without following the normal procedure as provided under sub-section (2) on being satisfied that for some reason(s), to be recorded in writing, it was not reasonably practicable to hold the enquiry. 3. In the dismissal order, it is stated that for unauthorized absence from duty from April 2, 1999 the respondent was placed under suspension by order dated April 24, 1999. On May 26, 1999 he was arrested and two pistols of Chinese make and two magazines were recovered from his possession. The recovery of arms led to institution of FIR no. 114/1999 under Sections 121 and 122 of the Ranbir Penal Code and 7/27 of the Indian Arms Act. In course of interrogation, he made some further startling disclosures. He admitted that in the year 1994 he had crossed over to POK for obtaining training in handling of sophisticated arms and ammunition with the intent to join hands with the militants operating in the Valley and to launch a Jihad in order to liberate the State of J&K from the Union of India. He admitted that in the year 1994 he had crossed over to POK for obtaining training in handling of sophisticated arms and ammunition with the intent to join hands with the militants operating in the Valley and to launch a Jihad in order to liberate the State of J&K from the Union of India. He came back in November, 1994 and joined the outlawed organization, Lashkar-i-Toiba, holding the rank of self-styled Platoon Commander. The dismissal order pointed out that the aforementioned organization was operating in the Valley against the State with the intention to overawe the Government established by law and thereby secede the State of J&K from Indian Union. The dismissal order further stated that the admission made by the respondent during the interrogation was corroborated by his service record from which it appeared that on September 1, 1994 he had proceeded on 10+2 days leave. Though he was due to return back on September 14, 1994, he finally came back on November 14, 1994 after remaining absent for 61 days. At that time he took the plea of illness and produced a medical certificate that he was somehow able to manage from Medical Officer, Sub-District Hospital, Beerua. 4. Having thus described the charges against the respondent, the competent authority (in paragraph 5 of the dismissal order) observed that he had applied his mind to the facts and circumstances of the case, and had also examined the interrogation report, the FIR and the recovery memo, and he was satisfied that the retention of the respondent in government service would prove highly detrimental to the security. After observing thus, he gave the reason for the decision to dispense with the departmental proceeding in paragraph 6 of the dismissal order which is as follows: "Whereas in view of the nature of misdemeanour including his having gone across for training to Pakistan, it is not reasonably practicable to enquire into as envisaged under the rules." 5. The competent authority then invoked the provision of section 126(2)(b) of the States Constitution and dismissed the respondent from service with effect from the date of his unauthorized absence, i.e., April 2, 1999 and directed that a copy of the order be served on the respondent who was in custody at that time. 6. The competent authority then invoked the provision of section 126(2)(b) of the States Constitution and dismissed the respondent from service with effect from the date of his unauthorized absence, i.e., April 2, 1999 and directed that a copy of the order be served on the respondent who was in custody at that time. 6. Before the Writ Court, a counter affidavit was filed on behalf of the State in which some additional reasons were stated for dispensing with the departmental enquiry, apart from the one mentioned in the dismissal order (quoted above). In paragraph 4 of the counter affidavit, it was stated that the departmental enquiry was dispensed with in accordance with the provisions of the Constitution (of the State) and in terms of Clause 2(b) of Sub-rule 11 of Rule 359 of the J&K Police Rules. In paragraph 6, it was further stated that it was not practicable to produce the evidence to prove that the delinquent had crossed over the border, received training in arms there and on coming back joined the outlawed Lashkar-i-Toiba and, therefore, the competent authority thought fit to dismiss the respondent from service without holding any enquiry. 7. The Writ Court on hearing counsel for the parties and on consideration of the materials, found and held that the reason(s) stated for dispensing with the departmental enquiry was quite untenable and practically there was no good reason for the competent authority for doing away with the normal departmental enquiry. It, accordingly, set aside the dismissal order, subject to the liberty given to the State, as noted above. 8. Mr. Rathore, learned AAG appearing on behalf of the State, submitted that the learned Single Judge was in error in interfering with the dismissal order. He submitted that the respondent was an anti-national element and he was guilty of waging war against the State; charges against him were of the gravest nature. Moreover adequate reasons were assigned for dispensing with the departmental enquiry both in the dismissal order and in the counter affidavit filed on behalf of the State. Mr. Rathore referred to the dismissal order where it as stated that, in view of the nature of misdemeanour, it was not reasonably practicable to enquire (into the charges) as envisaged under the rules. Mr. Rathore referred to the dismissal order where it as stated that, in view of the nature of misdemeanour, it was not reasonably practicable to enquire (into the charges) as envisaged under the rules. He also submitted that, in the facts and circumstances of the case, the departmental enquiry would have been an exercise in futility as no witness would be available to depose that the respondent had crossed the border for receiving training in handling of sophisticated arms across the border and of joining the outlawed organization, Lashkar-i-Toiba on his coming back to the State. 9. Mr. Z.A. Qureshi on the other hand submitted that no reason was assigned for dispensing with the enquiry either in the dismissal order or in the counter affidavit. Learned counsel submitted that the competent authority, on his own showing, had decided to dispense with the enquiry `in view of the nature of respondents misdemeanour and not because no witness would be available to prove the alleged misdemeanour. Learned counsel further submitted that the respondent was arrested, while under suspension he was attached to the Police Lines, by the Special Operation Group (SOG) of the Police. Learned counsel further submitted that all the charges against the respondent were based on his so-called confession made in course of interrogation by the officers of the SOG and, as a matter of fact in the impugned dismissal order it was observed that the competent authority arrived at his satisfaction on going through the interrogation report, the FIR and the recovery memo. 10. On hearing Mr. Rathore and Mr. Qureshi, counsel appearing for the State and the sole respondent, respectively, and on going through the materials on record, I find that the facts of the case in hand are quite similar to the facts in the decision of the Supreme Court in Kuldip Singh v State of Punjab, (1996) 10 SCC 659. In the Supreme Court decision, a Head Constable on interrogation during investigation into the murder of an SP admitted to have links with terrorists and to work for them. The admission was made before Police officers and it was, therefore, not admissible in a court of law. In the Supreme Court decision, a Head Constable on interrogation during investigation into the murder of an SP admitted to have links with terrorists and to work for them. The admission was made before Police officers and it was, therefore, not admissible in a court of law. Nevertheless, it was held that if found to have been made voluntarily by the disciplinary authority, it could be rightly acted upon and it was not open to the Court to examine the correctness of the opinion of the disciplinary authority. In Kuldip Singh it was further held that having regard to the situation in Punjab during 1991, the disciplinary authority was justified in taking the view that holding of departmental enquiry was not reasonably practicable as no witness was likely to .depose against the delinquent Head Constable for fear of injury to life. 11. The decision of the Supreme Court (paragraph 10 and 11) applies to the facts of this case on all fours and fully supports the submission of Mr. Rathore. 12. Further, in a Bench decision of this Court in Farooq Ahmad Mir v State of J&K, 2001 SLJ 182, in paragraph 15 it was held and observed as follows: "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-face, 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. 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. The learned Single Judge declined to interfere in the matter and in letters patent appeal this Court does not find any ground to interfere." 13. The decision in Farooq Ahmad Mir also supports the submission made by Mr. Rathore. On a careful consideration of the matter, therefore, I find substance and merit in the submissions made on behalf of the State and, in my view, the Writ Court was in error in interfering with the order dismissing the respondent (writ petitioner) from police service. I, accordingly, allow the appeal, set aside the order of the Writ Court and dismiss the writ petition.