JUDGMENT : Oswal ‘J’ 1. The appellant was posted as Assistant Accounts Officer in the Sericulture Department of Government of J&K and vide order dated 19.10.2016, the respondent No.1 by invoking clause (b) of proviso to sub-section (2) of Section 126 of the Constitution of erstwhile State of J&K, dismissed the appellant from the service with immediate effect. 2. The appellant had assailed the aforesaid order of his dismissal by way of a writ petition bearing SWP No.2227/2016 inter alia on the grounds; that the order impugned was not passed in accordance with the provisions contained in clause (b) of proviso to sub-section (2) of Section 126 of the Constitution of erstwhile State of J&K that the name of the appellant did not figure in FIR No.39/2016 and that the order of dismissal was passed for extraneous considerations. 3. The respondents filed their response before the learned Writ Court stating therein that the appellant was found involved in anti-national activities such as taking active part in causing disturbance and disorder to the public peace, intimidation to general public, shopkeepers to observe shut down amid calls given by separatists and instigating youth to indulge in stone pelting as reported in the dossier submitted by the Additional Director General of Police, CID, J&K, Srinagar, vide communication dated 22.09.2016 along with other related documents. It was also reported that on 05.08.2016, the appellant had taken active part in anti-social, anti-national activities with the intention of creating law and order situation and exposing human life to threat, pelted stones upon the police as well as CRPF personnel at Alamdar Colony near P/S Cherar-e-Sharief, as a result of which the police officers/officials and CRPF personnel sustained injuries. The appellant was booked in FIR No.39 of 2016 under Sections 147, 148, 149, 336, 332, 427 of RPC registered with Police Station, Cherar-e-Sharief. The appellant being a government employee was not expected to indulge in the aforesaid activities and rather was supposed to maintain absolute integrity, devotion to duty and do nothing which was unbecoming of Government employee. The activities of the appellant were not only aimed at questioning the sovereignty and integrity of India but were also in violation of Rule 14 and 20 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971. The activities of the appellant were not only aimed at questioning the sovereignty and integrity of India but were also in violation of Rule 14 and 20 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971. In view of the prevailing situation and the charged atmosphere including threat perception to witnesses, it would not have been feasible for the witnesses to depose in case of an enquiry thereby rendering the possibility of procuring attendance of the witnesses impossible and in view of that situation, the competent authority was satisfied to dispense with the enquiry, as holding of enquiry against the appellant was not practicable in the given facts and circumstances. The competent authority as such by invoking power under clause (b) of the proviso to sub-section (2) of Section 126 of the Constitution of erstwhile State of Jammu and Kashmir, dismissed the appellant from service. The stand of the respondents is that all the constitutional requirements have been duly followed by them while issuing the impugned order of dismissal. 4. After considering the rival submissions made by the learned counsel for the parties, the learned Writ Court vide judgment dated 23.10.2019 dismissed the writ petition preferred by the appellant. 5. Aggrieved of the judgment dated 23.10.2019 passed by the learned Writ Court, the appellant has assailed the same on the following grounds: (I) That the impugned judgment deserves to be set aside as the Writ Court has not appreciated the unblemished service record of the appellant; (II) That the judgments relied upon by the learned Writ Court were not applicable in the facts and circumstances of the case as there is fundamental difference between the position of the members of the Armed Forces and that of members of civil services and the constitutional protection has been provided to the persons holding civil posts; (III) That the constitutional mandate of Section 126 of the Constitution of erstwhile State of Jammu and Kashmir has not been followed while issuing the order of dismissal of the appellant but this aspect of the matter has not been considered by the learned Writ Court; 6. Mr. Mr. Ateeb Kanth, learned counsel for the appellant, submitted that the learned Writ Court has fallen in to error of law by relying upon the judgments which were not applicable in the present case and solely on the basis of FIR in which the appellant was subsequently acquitted, the respondents could not have passed the order of dismissal of the appellant. He strenuously submitted that the respondent No.1 has arbitrarily exercised the power under clause (b) of the proviso to sub-section 2 of section 126 of the constitution of erstwhile state of J&K while dismissing the appellant, thereby ignoring the unblemished 37 years of service record of the appellant. He has placed reliance upon the judgment of the Hon’ble Supreme Court of India in Union of India and another vs. Tulsiram Patel, (1985) 3 SCC 398 . 7. Per contra, Mr. D. C. Raina, learned Advocate General, submitted that the conduct of the appellant was unbecoming of Government Employee and taking into consideration his illegal activities duly reported in the dossier submitted by the ADGP, CID, the appellant was dismissed from service by invoking the power contained in clause (b) of proviso to sub-section (2) of section 126 of the Constitution of erstwhile State of Jammu and Kashmir. He further submitted that the competent authority was only required to record reasons in writing that the conduct of enquiry was not reasonably practicable on the basis of some material and once the constitutional mandate has been followed by the respondent No.1, the order of dismissal of appellant from service cannot be set aside. He further supported the reasons assigned by the learned Writ Court while dismissing the writ petition preferred by the appellant. 8. We have heard learned counsel for the parties and perused the record. 9. The perusal of the order 19.10.2016 reveals that ADGP, CID forwarded a copy of the dossier and other related documents in respect of the activities of the appellant and after perusing the same, the respondent No.1 observed that the appellant has been found involved in anti-national activities including taking active part in causing disturbance and disorder to the public peace, intimidation to general public/shopkeepers to observe shutdown amid calls given by separatists and instigating the youth to indulge in stone pelting. Simultaneously, the fact was also taken note of by the respondent No.1 that on 05.08.2016, the appellant along with other anti-social/anti-national elements with the intention of creating law and order situation, pelted stones on the police as well as CRPF personnel at Alamdar Colony near P/S Cherar-Sharief, due to which police officers/officials and CRPF personnel sustained injuries and Government property got damaged. In that regard, FIR No.39/2016 was also registered. The respondent No.1 further observed that the appellant was not expected to indulge in such activities being a Government employee and has further made an observation that any delay in proceeding against the appellant will provide him an opportunity to further carry out his anti-national activities which may endanger the security of the State and under the prevailing charged atmosphere including threat perception to witnesses, it would not be feasible for the witnesses to depose in case of any enquiry. After making the abovementioned observations, the respondent No.1 recorded its satisfaction that the enquiry against the appellant was not practicable in the given facts and circumstances and, accordingly, by invoking the power under clause (b) of proviso to sub-section 2 of section 126 of the constitution of erstwhile state of J&K, dismissed the appellant from service. 10. In order to appreciate the contention raised by the appellant, this Court deems it proper to extract Section 126 of the Constitution of erstwhile State of J&K 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. 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 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 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 further that this sub-section 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 reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the Governor 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 reasonable to hold such inquiry as is referred in sub-section (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” 11. The perusal of the Section 126 (supra) reveals that 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. The perusal of the Section 126 (supra) reveals that 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. Further as a general rule laid down in sub-section (2) of section 126 (supra), no such person, as mentioned above, shall be dismissed, 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 but clauses-(a),(b) and (c) of the proviso to sub-section 2 of section 126 of the constitution of erstwhile state of J&K operate as exceptions to the above mentioned general rule and under the circumstances envisaged under clauses-(a),(b) and (c) of the proviso to sub-section 2 of section 126 of the constitution of erstwhile state of J&K, the delinquent employee can be dismissed, removed or reduced in rank without enquiry, as mentioned above. 12. It is appropriate to observe that though sub-section (3) of Section 126 (supra) grants finality to the decision of the competent authority in respect of dispensing with the holding of enquiry on account of its being reasonably not practicable but the constitutional courts while exercising the power of judicial review can always examine whether the competent authority while doing so has acted arbitrarily or not. 13. The appellant has not disputed at all the competence of the respondent No.1 to pass the order but the appellant has contended that the order of his dismissal from the service was not passed in accordance with the mandate of section 126 (supra). So far as the present case is concerned, the respondent No.1 has recorded its satisfaction that it is not reasonably practicable to hold enquiry, which is duly substantiated by the reasons in writing. The reasons recorded by the respondent No.1 are that that because of the charged atmosphere at the relevant point of time and threat perception to the witnesses, it is not practicable to hold inquiry. Not only this, the competent authority i.e. respondent No.1 has taken note of the dossier and other connected material submitted to it, for the purpose of recording its satisfaction. 14. In Union of India vs. Tulsiram Patel, (1985)3 SCC 398 , the Hon’ble Apex Court held as under: 130. Not only this, the competent authority i.e. respondent No.1 has taken note of the dossier and other connected material submitted to it, for the purpose of recording its satisfaction. 14. In Union of India vs. Tulsiram Patel, (1985)3 SCC 398 , the Hon’ble Apex Court held as under: 130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are “not reasonably practicable” and not “impracticable”. According to the Oxford English Dictionary “practicable” means “Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible”. Webster's Third New International Dictionary defines the word “practicable” inter alia as meaning “possible to practice or perform : capable of being put into practice, done or accomplished: feasible”. Further, the words used are not “not practicable” but “not reasonably practicable”. Webster's Third New International Dictionary defines the word “reasonably” as “in a reasonable manner: to a fairly sufficient extent”. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. 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 servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India [ (1984) 2 SCC 578 ] is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter. xxxxxxxxxxxxxxxxxxxxx 133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. xxxxxxxxxxxxxxxxxxxx 138. Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court-room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere. (emphasis added) 15. Further the Hon’ble Supreme Court of India in Indian Rly. Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579 , has held as under: 12. It is fairly well settled that the power to dismiss an employee by dispensing with an enquiry is not to be exercised so as to circumvent the prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the court to substitute its view for that of the disciplinary authority as if the court is sitting as an appellate authority over the disciplinary authority. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. What the High Court was required to do was to see whether there was any scope for judicial review of the disciplinary authority's order dispensing with the enquiry. The focus was required to be on the impracticability or otherwise of holding the enquiry. (emphasis added) 16. Thus, it is evident that while exercising the power of judicial review to examine the validity of the decision of the competent authority to arrive at a decision that holding of inquiry is not reasonably practicable, the court cannot sit as a court of appeal over the decision of the competent authority but at the same time the court can examine as to whether the decision of the competent authority is arbitrary/fanciful or not. In the instant case, the respondent No.1 has categorically stated about the dossier and the connected material to arrive at a conclusion that that holding of enquiry is not reasonably practicable due to surcharged atmosphere in the year 2016 and threat perception to the witnesses at the relevant point of time. After having examined the reasons furnished by the competent authority for arriving at such conclusion, this court is of the considered view that the decision of the competent authority to dispense with the inquiry holds good on the parameters of law as discussed above and no fault can be found with the action of the respondent No.1. In Sahadeo Singh v. Union of India, AIR 2003 SC 1568 , it has been held as under: 6. We have heard learned counsel for the parties and perused the records. Having done so, we find it difficult to accept the argument of the learned counsel for the appellants. Before the disciplinary authority decided to dispense with the inquiry exercising the power under Rule 47 of the Rules, three internal enquiries were conducted by the officials of the Railway Protection Force. A perusal of these enquiry reports clearly shows that though there were witnesses who had seen the incident of theft of rice bags from the goods train in question to which the appellants and others were parties, none of them was willing to either give a statement in writing or give evidence apprehending danger to his life. A perusal of these enquiry reports clearly shows that though there were witnesses who had seen the incident of theft of rice bags from the goods train in question to which the appellants and others were parties, none of them was willing to either give a statement in writing or give evidence apprehending danger to his life. The facts narrated in these internal reports clearly go to show that these appellants were in league with certain desperate miscreants, therefore, the locals who witnessed the theft were not willing to come forward to give any evidence, therefore, the disciplinary authority, in our opinion, rightly came to the conclusion that it would be impracticable for the Railways to hold an enquiry wherein witnesses could be examined to establish the misconduct of the appellants. From the preliminary reports, it is clear that these appellants were involved in the theft of the rice bags from 733 UP goods train on 25-2-1983 and in view of the apprehension expressed by the witnesses, the Railways was not in a position to hold a proper enquiry. In these circumstances, in our opinion, the authorities rightly invoked Rule 47 of the Rules. (emphasis added) 17. Before the learned Writ Court, the case projected by the appellant was that his name did not figure in FIR No.39/2016 and taking note of that contention, the respondents were directed to file status report and after perusal of the status report, the learned Writ Court has returned a categoric finding that the name of the appellant did figure in FIR 39/2016. Not only the factum of registration of FIR but the other acts of the appellant as mentioned above were also taken note of by the competent authority while passing the order of the dismissal of the appellant from the service. 18. It was also urged by the learned counsel for the appellant that in the FIR No. 29/2016, the appellant was subsequently acquitted. This court is of the considered view that subsequent acquittal in the FIR would not tilt the scale in favour of the appellant for the purpose of interfering with the order of his dismissal. 18. It was also urged by the learned counsel for the appellant that in the FIR No. 29/2016, the appellant was subsequently acquitted. This court is of the considered view that subsequent acquittal in the FIR would not tilt the scale in favour of the appellant for the purpose of interfering with the order of his dismissal. In a case titled “Ved Mitter Gill v. UT, Chandigarh, (2015) 8 SCC 86 , the competent authority had invoked clause (b) of the second proviso under article 311(2) of the constitution of India against the delinquent government employee and besides raising other issues, it was contended by the delinquent employee that regular trial was going on against him and others in respect of FIR and if witnesses can appear in open court proceedings before trial court, then on same set of allegations they could have easily appeared in departmental proceedings as well. The Hon’ble Supreme Court of India negated the said contention of the delinquent employee by holding as under: 33. Insofar as the holding of a trial, and the appearance of witnesses therein is concerned, yet again, the analogy invoked by the learned counsel representing the appellant/petitioners is wholly misconceived. Whilst in a criminal prosecution proof is strict, and must be based on cogent and acceptable evidence. In a criminal case, there is no alternative but to establish guilt of an accused based on acceptable evidence. The evidence is to be produced before the court trying the criminal case. There is no way the same can be exempted as in the case of a departmental proceeding. Insofar as the present controversy is concerned, there is a constitutional provision creating an exception. Clause (b) of the second proviso to Article 311(2) of the Constitution of India, is the exception in question, which authorises the course adopted by the respondents. The reasons for dispensing with the departmental enquiry cannot be dependent upon the holding or not holding of criminal proceedings against the appellant/petitioners. Once the parameters stipulated in clause (b) of the second proviso to Article 311(2) of the Constitution of India are satisfied, the submissions advanced at the hands of the learned counsel for the appellant/petitioners would not arise. (emphasis added) 19. Once the parameters stipulated in clause (b) of the second proviso to Article 311(2) of the Constitution of India are satisfied, the submissions advanced at the hands of the learned counsel for the appellant/petitioners would not arise. (emphasis added) 19. It was also contended by learned counsel for the appellant that unblemished service record of the appellant was not taken note of by the competent authority while passing the order of his dismissal from service. This can hardly be a ground to show indulgence for the purpose of upsetting a well-reasoned order passed by the competent authority as the performance of official duties by the appellant is one aspect and his conduct of indulging in activities threatening public order and peace by intimidating general public /shopkeepers to observe shutdown amid calls given by the separatists and instigating young generation to indulge in stone pelting is another aspect, which conduct is in fact unbecoming of government employee and once the competent authority has come to the conclusion that the activities of the appellant are unbecoming of government employee, then the standard of performance of government employee in discharge of his official duties would not have any bearing upon the decision arrived at by the competent authority. 20. This Court has examined the judgment passed by the learned writ court and this Court is of the considered view that the learned Writ Court has rightly dealt with the issue and we do not find any reason to interfere with the same. The present appeal is found to be without merits and the same is, accordingly, dismissed