Ab. Ahad Rather vs State of J&K

Mr. Mohammad Yaqoob Mir, J. - Disciplinary authority (Deputy Inspector General of Police), invoking the powers under proviso 'b' to Sub-

Section 2 of Section 126 of the Constitution of J&K, has removed the petitioner from services with effect from 1st June, 2003 as his activities

were found prejudicial and anti national. Hence the instant petition.

The star ground questioning the legality of the order is that the enquiry as was required has not been conducted. A short cut method has been

adopted by having recourse to the Proviso 'b' to Sub-Section 2 of Section 126 of the Constitution of J&K. The said power is available only when

the authority records satisfaction on valid reasons to the effect that it shall not be reasonably practicable to hold the enquiry. The words employed

'reasonably practicable' assumes greater importance i.e. such a power is available for meeting the extraordinary situation.

Admittedly, petitioner was posted as Station House Officer (SHO) Police Station Sogam in the year 2000. In an attack carried out by the

militants on the then Minister of Law and Parliamentary Affairs of Jammu and Kashmir, Late Mushtaq Ahmad Lone, Minister along with three

police personnel lost their lives. A Magisterial enquiry had been ordered, as a result whereof petitioner's involvement was established i.e. allegedly

he had links with the anti national elements, therefore, case was registered against him as FIR No. 14/2005 Police Station Lalpora for the

commission of offence punishable under Section 4/5 Explosive Substance Act. Furthermore, he was also detained under provisions of Public

Safety Act.

In connection with the killing of the Minister, a separate case was registered as FIR No. 58/2002 P/S Sogam but in that case petitioner was not

as an accused.

Now the question is as to whether it was impracticable for the competent authority to hold the enquiry, answer has to be in negative.

According to the learned AAG, the petitioner had links with the LeT, other militant organisations and was involved in subversive activities,

therefore, it was deemed appropriate not to hold enquiry. In case, any enquiry would have been held that would have given rise to risk to so many

persons including witnesses who were to be examined but this submission loses its significance as the case had been registered against the

petitioner, he was arrested, detention order was passed against him. He has faced the trial in connection with case FIR No. 14/2005, he has

earned acquittal Detention order as against him has been quashed. When in connection with trial or in connection with detention, there was no

threat to anyone including the witnesses, how it could be said that it was impracticable to hold the requisite enquiry then to dispense with the same.

In the background of the allegations levelled against the petitioner, what was normally required to be done was that he was to be proceeded in

accordance with Rule 359 of the Police Rules which provide for departmental enquiry. Rule 359 (11) (2) also provides that no police official shall

be dismissed of removed or reduced in rank until he has been given reasonable opportunity of showing cause orally and also in writing.

Applicability of this clause is saved by the proviso which is para materia with proviso to Sub-Section 2 of Section 126 of the Constitution of J&K.

Holding of departmental enquiry would provide an appropriate opportunity to the petitioner to plead and to show cause as against the

allegations levelled against him, the way he has been able to plead and prove his innocence while facing the trial in connection with the case

registered as FIR No. 14/2005 wherein he has earned acquittal vide judgment dated 25th February, 2005 passed by the Court of Principal

Session Judge, Baramulla.

It is settled that following of principles of natural justice shall not be for the sake of empty formality but in the present case, adherence to the

principles of natural justice was imperative. The right guaranteed under the Constitution cannot be negated on unfounded grounds. The authority, if

at all, had any reasonable cause available, then it had to record the same in writing and then to derive satisfaction that it is reasonably impracticable

to hold the enquiry. The narration of the facts and acts as made mention of in the order impugned do not provide any solid foundation so as to

authorize the competent authority to invoke the powers under proviso 'b' to Sub-Section 2 of Section 126 of the Constitution of J&K. As a result

whereof, the order impugned is rendered unsustainable so has to be quashed. Quashment of the order will not preclude the respondent authorities

in proceeding against the petitioner in accordance with Rule 359 of the Police Rules that course shall still be available to the respondent authorities

if they so chose. It has been pointed out that the petitioner has already reached the age of superannuation.

Viewed thus, petition allowed. Order impugned set aside with liberty to the respondent authorities to initiate disciplinary proceedings as shall

be warranted otherwise the petitioner having already reached the age of superannuation be formally retired. For the intervening period, in such

eventuality, no pay shall be paid to the petitioner, however, the period he has remained out of service shall be counted for the pensionary benefits.

Petition accordingly disposed of along with connected CMPs.