Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 196 (JK)

State of J&K & Ors. v. Ghulam Nabi Dar

2014-05-07

M.M.KUMAR, MUZAFFAR HUSSAIN ATTAR

body2014
M.M. Kumar; C.J.:- State of Jammu and Kashmir and its officers have filed the instant Appeal under Clause 12 of the Letters Patent challenging the judgment and order dated 24-09-2005 rendered by the learned Writ Court setting aside order No. 520 of 1993 dated 15-09-1993 passed by Superintendent of Police, Kupwara. By virtue of Order No. 520 of 1993 dated 15-09-1993, the services of the petitioner-respondent were terminated by invoking the powers under Section 126(2)(b) of the Constitution of Jammu and Kashmir read with Article 311(2)(b) of the Constitution of India. 2. The basic reason for quashing the order detailed in the impugned judgment is that in the order dated 15-09-1993, no satisfaction had been recorded by the disciplinary authority for holding that it was not reasonably practicable to hold an enquiry into the matter. According to learned Writ Court, if the enquiry was dispensed with on the ground of security of the State, then under Section 126(2)(c) of the Constitution of Jammu and Kashmir the power, in such case, was required to be exercised by the Governor and not by the Superintendent of Police. The view of the learned Writ Court is discernible from the following paras of the judgment which are set out below in extenso: A perusal of the order would show that the Superintendent of Police has invoked the powers vested in him by virtue of section 126(2)(b) of the Constitution of Jammu and Kashmir read with Article 311(2(b) of the Constitution of India. The said provision provides as under: 126. Dismissal, reduction or removal of persons employed in civil capacities under the State.- (1) no person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry. Provided that this sub-section shall not apply- (a) (b) 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. It is well settled now as has been held in a number of cases by the Apex Court as well as by this Court that an employee can be terminated from service only after holding a regular enquiry into his alleged misconduct. There is, however, an exception to this rule provided by the proviso to the said section. Clause (2)(b) of the section permits a disciplinary authority to terminate the services of an employee without holding an enquiry if the authority is of the opinion that it is not reasonably practicable to hold an enquiry into the matter. It is also well settled now that while exercising the powers vested in the said clause, the disciplinary authority has to record his satisfaction that it is not reasonably practicable to hold an enquiry into the matter. The circumstances must be such and the material should be so sufficient that the authority concerned must on consideration of the same be satisfied that it is not reasonable practicable to hold the enquiry. In the present case perusal of the order impugned would show that no such satisfaction is recorded by the disciplinary authority while dismissing the petitioner from service. The Superintendent of Police has found that the petitioner is involved with the militant activities and he is likely to be a threat to the security of the State. If the inquiry was dispensed with on the ground of section of the State, under section 126(2)(c) of the Constitution of Jammu and Kashmir, the powers in such case are to be exercised by the Governor and not by the Superintendent of Police. It is beyond the powers and jurisdiction of a Superintendent of Police to dispense with the enquiry on the ground of security of the State. It is beyond the powers and jurisdiction of a Superintendent of Police to dispense with the enquiry on the ground of security of the State. A Superintendent of Police being the disciplinary authority for a constable under the provisions of section 126(2)(b) can dispense with the enquiry provided he is satisfied on the basis of circumstances that it is not reasonably practicable to hold enquiry, but where there is no such satisfaction recorded in the impugned order, the exercise of powers under the said proviso cannot be justified. 3. Before embarking upon the legal issues raised, it would be necessary to notice few facts. The petitioner-respondent was appointed as a Police Constable in Police Department vide order No. 163/83 dated 11.04.1983. On the allegation that he was involved in militancy related activities, he was arrested by Joint Investigation Centre, (JIC) Jammu, in case FIR No. 3/91 of JIC, Jammu. Accordingly, he was placed under suspension vide order No. 355/91 dated 25.6.1991 with effect from 12.06.1991. He did not report back to resume his duties nor any information regarding his whereabouts was furnished to the appellants. The appellants allege that on account of his involvement in the militancy related activities and keeping in view the disturbed law and order conditions in the Valley in the year 1991 when the militancy was at peak, it was not found reasonably practicable to conduct a regular enquiry in the matter and, as such, the competent authority, while exercising its powers under Section 126(2)(b) of the Constitution of Jammu and Kashmir, dismissed the petitioner-respondent vide order No. 520 of 1993 dated 15-09-1993. However, the learned Writ Court has quashed the order of dismissal vide impugned judgment dated 24-09-2005. 4. Mr. R. A. Khan, learned Additional Advocate General, has argued that the enquiry against the petitioner-respondent was dispensed with on the ground that he was involved in militancy related activities and at that point of time there was extremely disturbing law and order situation in the Valley. The petitioner-respondent could not be kept on the rolls of the police for an indefinite period. According to Mr. Khan, there were good reasons which made holding of enquiry impracticable namely, gross negligence shown by the petitioner- respondent in performance of his duties and, secondly, militancy was at peak in the year 1991. 5. Mr. The petitioner-respondent could not be kept on the rolls of the police for an indefinite period. According to Mr. Khan, there were good reasons which made holding of enquiry impracticable namely, gross negligence shown by the petitioner- respondent in performance of his duties and, secondly, militancy was at peak in the year 1991. 5. Mr. Khan has made a very ambitious submission that the decision of dispensing with the enquiry fall within the power of the disciplinary authority which cannot be challenged because the authority has acted bona fidely. Moreover there was no possibility of producing witnesses against the petitioner-respondent as they were likely to suffer physical violence. Mr. Khan also submitted that the learned Writ Court ought to have permitted the appellant to hold enquiry after quashing the order dated 15-09-1993. 6. Mr. Qayoom, learned counsel for the petitioner-respondent has supported the view taken by the learned Writ Court and submitted that any order dispensing with holding of a regular departmental enquiry in pursuance of the provisions of Section 126(2)(b) must be based on some objective criteria and satisfaction has to be recorded in the order itself for dispensing with such an enquiry. 7. Having heard the learned counsel for the parties and perusing the record with the able assistance of the learned counsel, we find that the basic requirements for dispensing with the enquiry, in this case, have not been fulfilled. Article 311 of the Constitution of India and Section 126 of the Constitution of Jammu and Kashmir provide a Constitutional safeguard to a person holding a civil post from being reduced in rank, removed or dismissed from service. Both Article 311 and Section 126 have imposed constitutional limitations and restrictions on the power of the government subject to which these three major penalties could be imposed on a government servant. It is a limitation on the pleasure doctrine engrafted in Article 310 and the safeguards provided are principally procedural in character. It would be profitable to extract the provisions of Article 311 of the Constitution of India which are set out below in extenso: 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union of a State. It would be profitable to extract the provisions of Article 311 of the Constitution of India which are set out below in extenso: 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union of a State. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such enquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply (a) 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; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reasons, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) 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 inquiry. (3) if, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. A perusal of Article 311(1) of the Constitution shows that a member of a civil service of the Union or State could not be dismissed or removed by an authority subordinate to the one who had appointed him. A perusal of Article 311(1) of the Constitution shows that a member of a civil service of the Union or State could not be dismissed or removed by an authority subordinate to the one who had appointed him. According to Article 311(2), no civil servant can be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and he has been given a reasonable opportunity of being heard in respect of those charges. However, second proviso to clause (2) of Article 311 postulates three situations where holding of such departmental enquiry has not been regarded necessary, namely: (a) where an employee has been convicted of a criminal charge; (b) where the competent authority is satisfied that compliance with the rules of natural justice is not reasonably practicable; (c) the President or the Government is satisfied that holding of an enquiry is not expedient in the interests of the security of the State. In the present case, the order has been passed by invoking the provisions of Article 311(2)(b) namely, the competent authority is satisfied that compliance with the rules of natural justice is not reasonably practicable. The question, which confronts the Court, is whether the order dated 15-09-1993 fulfill the requirement of Article 311(2)(b). Accordingly, the order of dismissal dated 15-09-1993 is set out below in extenso: Whereas constable Ghulam Nabi 319/KP was appointed as constable in the Police Department vide District Police Anantnag s Order No. 163/83 dated 1.4.1983. Whereas the said constable was arrested by IC Jammu in case FIR No. 3/91 of JIC Jammu because of his militant activities. The conduct of the said constable is against the rules of the Department and also against the security of the state. On the basis of his involvement in the subversive/militant activities the said constable was placed under suspension vide Dy. Superintendent of Police DAR DPL Kupwara s office order No. 355/91 dated 25.6.1991 with effect from 12.6.1991. Whereas the said constable has not till date reported back for his duties and no information regarding his whereabouts has up till date received by this office. The constable is though involved with the militant activities and he is likely a threat to the security of the State. Whereas the said constable has not till date reported back for his duties and no information regarding his whereabouts has up till date received by this office. The constable is though involved with the militant activities and he is likely a threat to the security of the State. Now in exercise of the powers vested in me by virtue of section 126(2)(b) of the Constitution of Jammu and Kashmir read with Article 311(2)(b) of the Constitution of India Constable Gh. Nabi No. 319/KP of this district is hereby dismissed from service with effect from the date he was arrested by JIC Jammu i.e. 12.6.1991. 8. A perusal of the aforesaid order would show that in second para of the order, the Superintendent of Police makes reference to the conduct of the petitioner-respondent describing the same to be against the security of the State. A reference to the security of the State has also been made in para 3 of the order when the Superintendent of Police states that the petitioner-respondent was involved with the militant activities and is likely to be a threat to the security of the State. There is no satisfaction recorded by the Superintendent of Police in the order disclosing as to how it was not reasonably practicable to hold the departmental enquiry. 9. It is true that the subjective opinion expressed in the order dispensing with the departmental enquiry could always be subject to judicial review by the Courts. In Union of India v. Tulsiram Patel ( (1985)3 SCC 398 ) it has been laid down in categorical terms that the satisfaction must be recorded to the effect that it was not reasonably practicable to hold the enquiry. What is requisite is that the holding of the enquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. A perusal of order dated 15-09-1993 would reveal that no satisfaction within the meaning of Article 311(2)(b) of the Constitution of India read with Section 126(2)(b) of the Constitution of Jammu and Kashmir has been recorded. The only feature highlighted in the order is that the petitioner-respondent is likely to be a threat to the security of the State. In such a situation the order was required to be passed by the Governor as per the stipulation made in Article 311(2)(c) of the Constitution of India. 10. The only feature highlighted in the order is that the petitioner-respondent is likely to be a threat to the security of the State. In such a situation the order was required to be passed by the Governor as per the stipulation made in Article 311(2)(c) of the Constitution of India. 10. The Courts have gone to the extent of holding in a case where a member of the Police Force reported to have thrown threats to the effect that he with the help of other police employees would not allow holding of a departmental enquiry against him and would not hesitate to cause physical injury to the witnesses as well as to the enquiry officer, that the satisfaction recorded for dispensing with the holding of enquiry was not valid or proper. In that regard reliance may placed on the judgment rendered in the case of Jaswant Singh v. State of Punjab (1991) 1 SCC 362 . The reason for reaching the conclusion, that the satisfaction recorded for dispensing with the enquiry was not valid, was that no record was produced to show that the Police Officer had thrown threats that he and his companion would not allow holding of any departmental enquiry against him and that they would cause physical injury to the witnesses as well as to the enquiry officer if any such enquiry was held. In the absence of any material on record, their Lordships of the Supreme Court did not allow dispensing of enquiry. 11. It was incumbent on the appellants to disclose to the court the material in existence on the date of passing of order dated 15-09-1993 in support of the subjective satisfaction recorded in the said order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is evident from the observation made at page 270 of Tulsiram Patel s case supra, which is quoted below in extenso: A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department s case against the Government serving is weak and must fail. The decision to dispense with the departmental inquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by respondent 3 it is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given. Besides, it is difficult to understand how he could have given threats, etc. when he was in hospital. It is not shown on what material respondent 3 came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. (Emphasis added) 12. In the present case, the decision to dispense with the departmental enquiry in fact, rested solely on the ipse dixit of the Superintendent of Police. There is no material placed before us to support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. The basic requirements of law providing for procedural safeguards to an employee have been completely shelved, therefore, the view taken by the learned Writ Court deserves to be upheld. 13. Mr. Khan, learned Additional Advocate General, has contended that after quashing the order dated 15.09.1993, the appellants should have been permitted to hold an enquiry or pass a fresh order. We are unable to persuade ourselves to accept the aforesaid submission. We are satisfied to hold that there has not been any material on record to accept the prayer made by Mr. Khan. He has not been able to prove any record to that effect. Moreover a period of more than 20 years has passed. We are unable to persuade ourselves to accept the aforesaid submission. We are satisfied to hold that there has not been any material on record to accept the prayer made by Mr. Khan. He has not been able to prove any record to that effect. Moreover a period of more than 20 years has passed. After such a huge delay the department nor the delinquent employee would be able to project their case before the enquiry officer. It would not be possible to produce the witnesses supporting or defending the charges and the parties are likely to suffer grave prejudice in pursuing the enquiry. In our view, it would be a futile exercise. 14. The other part of the submission that the appellants may be permitted to pass fresh order is again ruled out because no material has been shown to us, which may constitute basis for recording subjective satisfaction for dispensing with the enquiry. Therefore, we have no hesitation in rejecting the submission made by Mr. Khan. 15. As a sequel to the above discussion, this appeal fails and the same is dismissed. However, keeping in view the peculiar situation which was prevailing in the year 1993, we refrain from saddling the appellants with any cost.