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2013 DIGILAW 394 (JK)

Tota v. State of J&K

2013-07-11

DHIRAJ SINGH THAKUR, HASNAIN MASSODI

body2013
JUDGMENT : Dhiraj Singh Thakur, J.:- 1. This Letters Patent Appeal is preferred by the appellants against the judgment and the order dated 20th May, 2005, passed by the learned Writ Court in SWP No. 2044/1992, whereby the writ petition challenging the order of dismissal of the petitioner from service has been dismissed. With a view to understand the controversy in its correct perspective, it is necessary to, briefly, state the material facts as they emerge from the records of the case: SWP No. 2044/92 was filed by one Mohammad Shaft Wani challenging the order dated 31st December, 1991, issued by the respondents, whereby he was dismissed from service by dispensing with the enquiry under Section 126(2)(C) of the Constitution of J & K. The allegation against the petitioner was that while he was posted as Station House Officer at Police Station, Nowhatta on 29th October, 1991, when Nowhatta area was under crackdown by the para-military forces, he was found travelling in a police Jeep along with driver, two constables Mohammad Saleem Khan and Mushtaq Ahmad and one militant from whom arms and ammunition was recovered. The order of dismissal, which was impugned in the writ petition, issued vide Government order No. Home/88/ISA of 1991 dated 31.12.1991, reads as under: “Whereas the Governor of Jammu and Kashmir is satisfied that the conduct and activities of Sub-Inspector Mohd. Shaft No. 624/NGO, SG. Const. Mushtaq Ahmad No. 222/s and Const. Mohd. Saleem Khan No. 1941/S are detrimental and prejudicial to the security of the State and, therefore, it is necessary that the said persons 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 above said person Sub-Inspector Mohd. Shafi No. 624/NGO, SG. Const. Mushtaq Ahmad No. 222/s and Const. Mohd. Saleem Khan No. 1941/5. Now, therefore, the Governor in accordance with the provisions of section 126 of the Constitution of Jammu and Kashmir read with article 311 of the constitution of India hereby dismiss the said Sub-Inspector Mohd. Shafi No. 624/NGO. S.G. Const. Mushtaq Ahmad No. 222/S and Const. Mohd. Const. Mushtaq Ahmad No. 222/s and Const. Mohd. Saleem Khan No. 1941/5. Now, therefore, the Governor in accordance with the provisions of section 126 of the Constitution of Jammu and Kashmir read with article 311 of the constitution of India hereby dismiss the said Sub-Inspector Mohd. Shafi No. 624/NGO. S.G. Const. Mushtaq Ahmad No. 222/S and Const. Mohd. Saleem Khan No. 1941/S from services with immediate effect.” The aforementioned order of dismissal came to be challenged by the petitioner before the learned Writ Court who, upon perusal of the relevant record, came to a conclusion that there was sufficient material before the Governor on the basis of which a decision for dispensing with the enquiry in terms of Section 126(2)(c) of the Constitution of J & K had been taken and, therefore, held that the order impugned in the writ petition did not suffer from non-application of mind. The learned Writ Court, therefore, while confining itself on this aspect, refused to enter into any factual arena as had been projected by the petitioner that on the said date i.e. 29th October, 1991, upon being requested by a lady who claimed that she was undergoing labour pain and that she was required to be shifted to a hospital, he came forward to help the said lady and on the way to hospital, the security forces intercepted the jeep and arrested the person, who claimed to be the brother of the lady, from the said jeep on the ground that he was a militant. The Writ Court, consequently, dismissed the writ petition and hence the present Letters Patent Appeal. During the pendency of the writ petition, petitioner Mohammad Shafi died and in his place his legal representatives, namely, Mst. Tota (Widow), Aurfee (daughter), Kaisar Ahmad Wani and Parvez Ahmad Wani (sons) were brought on record as petitioners. 2. Before this Court, the counsel for the appellants challenges the judgment and the order of the Writ Court on the following grounds: i) Firstly, that there was no material on the basis of which the Governor could have arrived at a satisfaction that in the interests of security of the State, it was not expedient to hold an enquiry. 2. Before this Court, the counsel for the appellants challenges the judgment and the order of the Writ Court on the following grounds: i) Firstly, that there was no material on the basis of which the Governor could have arrived at a satisfaction that in the interests of security of the State, it was not expedient to hold an enquiry. It was urged that in absence of there being any material before the Governor, the exclusionary clause (c) to the proviso to Section 126(2) of the Constitution of J & K could not be invoked against the petitioner and, therefore, the satisfaction purported to have been expressed by the Governor suffered from arbitrariness and non-application of mind. Reference was made to A.K. Koul v. Union of India ( AIR 1995 SC 1403 ). ii) The second ground urged by the petitioner was that the same order dated 31st December, 1991 was also challenged in a writ petition by other two Constables who were travelling in the jeep on the said date, which was allowed by another Single Bench of this Court by holding that there was no material before the Governor on the basis of which satisfaction could have been arrived at that it was inexpedient to hold an enquiry in the interest of security of the State. Learned counsel thus urged that the Writ Court in the judgment and order impugned could not have returned a finding that there was, in fact, material before the Governor on the basis of which he had arrived at a conclusion regarding dispensation of enquiry. iii) Thirdly, learned counsel urged that the petitioner had been subjected to a trial, which itself clearly suggested that the satisfaction arrived at by the Governor regarding dispensation of enquiry in terms of Section 126(2)(c) was unjustified and erroneous in law. 3. Learned counsel for the respondents, on the other hand, drew the attention of the Court to the objections filed by the State before the Writ Court, wherein it was highlighted that on 29th October, 1991, the security forces, during the crackdown operation, stopped the police jeep which was being driven by the petitioner and along with him Selection Grade Constable Mushtaq Ahmad, Constable Mohammad Saleem Khan and one militant were also found in the said jeep and that one AK56 rifle, one magazine and 20 rounds were seized from the possession of the petitioner. 4. 4. It was further stated in the objections that the activities of the petitioner brought a bad name to the entire police force and further that his activities, collusion, support, cooperation and help to Pak trained militants had serious implications. 5. It was further stated in the objections that during his interrogation, he made certain revelations before the concerned authorities which were relevant for deciding whether he had to be retained in service or not. 6. Attention of the Court was drawn by the learned counsel for the State to the averments made in the writ petitioner (now deceased). In particular, averments made in paragraph 8(b) were highlighted, which are reflected as under: “b) That the order has been passed by the Governor who in turn has based his opinion on the report submitted by the various agencies including C.I.K. The various Heads of the Departments were leading various agencies for collecting the information or investigating or interrogating the arrested persons were of Hindu community who in turn believe that every Kashmiri Muslim is a terrorist and that every Kashmiri Muslim is involved directly or indirectly in the activities, therefore, without any proof a dossier is framed on surmises involving the petitioner so that the petitioner is dismissed from the services. This being the reason the petitioner has been dismissed from the services. This fact is further fortified that the State has miserably failed in establishing the involvement of the petitioner in FIR No. 53 of 1991. The Designated Court was compelled to grant the bail to the petitioner in spite of the provisions relating to the bail under the TADA Act.” 7. Heard the learned counsel for the parties and perused the records. 8. The Constitutional right as enshrined under Section 126(2) of the J & K Constitution envisages that no person shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges, is subject to the exclusionary clauses (a), (b) and (c) of the Proviso to sub-section (2). While Clause (a) envisages that sub-section (2) would not be applicable where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, clause (b) envisages the exclusion of sub-section (2) 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 enquiry. Clause (c), which is relevant for purposes of the present case, envisages exclusion of sub-section (2), where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such enquiry. 9. The scope of the aforementioned clauses can easily be deduced as under: I) The exclusionary operation of clause (c) of second proviso to Article 311(2) is the same as those of the other two clauses, it is different in content from them: II) Under clause (b), the satisfaction has to be with respect to whether it is reasonably practicable to hold the enquiry and this satisfaction has to be of the disciplinary authority. However, under clause (c), the satisfaction has to be that of the President or Governor of the State, as the case may be, and the satisfaction has to be with respect to whether or not it is expedient in the interest of State to hold the enquiry. III) While clause (b) expressly requires that the reasons for dispensing with the enquiry should be recorded in writing, clause (c) does not reflect it, either expressly or impliedly. 10. In Union of India and another v. Tulsiram Patel ( AIR 1985 SC 1416 ), while dealing with the expressions “law and order”, “public order” and “security of the State”, the Apex Court held that the situations which affect “security of the State” are graver than those which affect “public order” and “law and order. It was held that, in fact, the matters which affect “security of the State” were of the gravest nature. While enumerating various matters which could affect the “security of the State”, the Apex Court highlighted those were State secrets or information relating to defence production or similar matters, could be passed on to other countries, whether inimical or not to our country. While enumerating various matters which could affect the “security of the State”, the Apex Court highlighted those were State secrets or information relating to defence production or similar matters, could be passed on to other countries, whether inimical or not to our country. There could also be situations where secret links could be established with terrorists. The judgment also envisaged that “security of the State” could be affected, either by open or clandestine manner. Disaffection in the Armed Forces or Paramilitary Forces, is likely to induce including persuading either members of the forces not to discharge their duties properly and to commit acts of indiscipline, insubordination and disobedience etc. were some of the situations which could be said to affect the security of the state. While highlighting the role of Police Force, entrusted with the duty of maintaining law and other and public order, it was held that the members of the Police Force stood on the same footing as those of the Armed and para-military forces. It also highlighted the need for such forces to maintain discipline. 11. Article 33 of the Constitution of India was elaborately discussed to show that the need to maintain discipline in these forces was so important and vital to the Country that, in order to ensure that, the Parliament had been given power by law to determine to what extent any of the rights conferred by Part 3, in their application, inter alia, to the members of the Armed Forces or the Forces charged with the maintenance of public order, were to be restricted or abrogated. 12. It is also settled law that the satisfaction arrived at by the President or the Governor, as the case may be, is subjective and that it would not be open to the Courts to go into the question as to whether it was expedient or inexpedient, in the circumstances of the case, to dispense with the enquiry nor is it open to the Courts to go into sufficiency or otherwise of the material before the President or the Governor, as the case may be. The only requirement is that there should be material having some co-relation with the decision, which the Governor may take, for purposes of arriving at a satisfaction that in the interests of security of the State it is not expedient to hold an enquiry (A.K. Koul v. Union of India, AIR 1995 SC 1403 ). 13. Expediency is not to be confused with the practicability, as envisaged under clause (b) of the Proviso to Section 311(2). The Apex Court in Union of India v. Tulsiram Patel (supra), in paragraph 141 held as under: “.......Expediency involves matters of policy. Satisfaction may be arrived at as a result of secret information received by the Government about the brewing danger to the security of the State and like matters. There may be other factors which may be required to be considered, weighed and balanced in order to reach the requisite satisfaction whether holding an inquiry would be expedient or not. If the requisite satisfaction has been reached as a result of secret information received by the Government, making known such information may very often result in disclosure of the source of such information. Once known, the particular source from which the information was received would no more be available to the Government. The reasons for the satisfaction reached by the President or Governor under clause (c) cannot, therefore, be required to be recorded in the order of dismissal, removal or reduction in rank nor can they be made public.” 14. While dealing with the case of the police personnel of Madhya Pradesh Special Armed Force who had been dismissed under the orders of the Governor of Madhya Pradesh under Article 311(2)(c), against whom there were allegations that the dismissed police personnel had been carrying an active propaganda against the Government, holding secret meetings, disturbing leaflets and inciting the constabulary in these places to rise against the administration as a body in protest against the action taken by the Government against some of their colleagues, the Apex Court held as under: “.........The police normally oppose the grant of bail to an accused but here we have the paradoxical situation of some of the highest police and district officers going at midnight to the Magistrate’s house to apply for bail for the accused. The police are the guardians of law and order. The police are the guardians of law and order. They stand guard at the border between the green valleys of law and order and the rough and hilly terrain of lawlessness and public disorder. If these guards turn lawbreakers and create violent public disorder and incite others to do the same, we can only exclaim with Juvenal, “Quis custodiet ipsos! Custodes?” “Who is to guard the guards themselves?” (Satires, VI 347). These facts leave no doubt that the situation was such that prompt and urgent action was necessary and the holding of an inquiry into the conduct of each of the petitioners would not have been expedient in the interest of the security of the State. All these four petitions, therefore, deserve to be dismissed.” 15. The facts in the present case, however, on the face of it, appear to be more alarming in nature. The records produced by the learned counsel for the State, on the face of it, would show that there was enough material which had a direct co-relation with the satisfaction recorded by the Governor, as reflected in the order impugned. The material was very much relevant for purposes of arriving at a conclusion as envisaged under Section 126(2)(c) of the Constitution of J & K. 16. We are concerned with the facts of the present case and the records that have been produced before us. The fact that in a similar petition filed by other two Constables another Single Bench had come to a conclusion that there was no material on record on the basis of which the Governor could have arrived at a satisfaction to dispense with the enquiry, cannot be binding on us. We are satisfied that the order dated 31st December, 1991, was perfectly legal and cannot be said to be arbitrary or bad on account of non-application of mind. 17. The argument of the counsel for the appellants that the satisfaction recorded by the Governor is belied on account of the fact that the petitioner had been put to trial, also does not convince us, inasmuch as the powers exercisable under Section 126(2)(c) are not subject to any such esters. 17. The argument of the counsel for the appellants that the satisfaction recorded by the Governor is belied on account of the fact that the petitioner had been put to trial, also does not convince us, inasmuch as the powers exercisable under Section 126(2)(c) are not subject to any such esters. The fact that the other two Constables have since been reinstated on account of the fact that the Government had accepted the Writ Court judgment passed in their case, also does not form a good precedent to persuade us to hold in favour of the appellants ignoring the facts of the case and the legal position on the subject. 18. For the reasons mentioned above, the appeal is found to be without merit and is, accordingly, dismissed.