Abdul Rashid Lone vs State and Others

Mohammad Yaqoob Mir, J.—Petitioner has been dismissed from the civil services of the State vide Govt., order No. 365-GAD of 2007

dated 2.4.2007 as his conduct and activities were found to be detrimental and prejudicial to the security of the State. Proviso (c) to Section 126(2)

of the Constitution of J & K has been invoked so holding of enquiry has been dispensed with.

It is trite that an employee who holds civil post in the State has certain safeguards guaranteed under the Constitution, therefore, dismissal or

removal from service or reduction in rank without an enquiry and without providing reasonable opportunity of being heard in respect of the charges

leveled is impermissible except for the situation covered by Clause (c) of proviso to Sub-Section 2 of Section 126 of the Constitution. The said

power is not unfettered. The authority concerned is required to record reasons so as to show holding of enquiry in the facts and circumstances is

impracticable.

It is also settled that the Governor need not to give reasons for dispensing with the enquiry where he feels satisfied that in the interests of the

security of the State holding of enquiry shall be inexpedient but satisfaction is to be derived on the material supporting such circumstances. Where

dispensing with the enquiry is extraneous or irrelevant, action will get vitiated.

The Petitioner was appointed as casual labour in Power Development Corporation (PDC), so has also participated in conduct of Assembly

Elections in the year 1996. In lieu of such participation in accordance with Government policy, the services of the Petitioner were regularized as

Helper in Power Development Corporation vide order dated 18.4.1998 issued from the office of Chief Engineer, Civil Constructions PDC,

Bemina Srinagar. In connection with case FIR No. 21/2004 P/S Sheeri, Petitioner was arrested as allegedly he was connected with militant

activities. Arms and ammunition were recovered by the security forces from Sheeri area. Petitioner was admitted to bail by the Court of Sessions

Judge, Baramulla on 28.9.2004 but was taken into custody pursuant to detention order No. DMB/PSA/2941 dated 31.7.2004. The said

detention order stand quashed vide judgment dated 14.9.2005 rendered in HCP No. 197/2004. During the said period of detention, Petitioner

was placed under suspension. Vide order dated 6.12.2004, subsistence allowance to the extent of 50% for a period of six months was drawn and

disbursed in favour of the Petitioner. After the quashment of detention order, vide order dated 6.3.2006, issued by Executive Engineer, Petitioner

was reinstated in service and the period of suspension stand treated as under:

(1) 1.4.2004 to 30.7.2004 (earned leave)

(2) 31.7.2004 to 01.11.2005 (treated on duty.)

Subsequently in the year 2007, impugned order of dismissal has been passed.

During the pendency of this petition, the case as was registered against the Petitioner, after trial, culminated in a clean acquittal of the Petitioner.

The witnesses who appeared on behalf of prosecution in categoric terms did not, in any way, connect the Petitioner with the commission of

offence, more particularly, with the recovery of arms and ammunition from Sheeri area.

It is the contention of learned Counsel for the Petitioner that the Petitioner earned clean acquittal. Neither benefit of doubt has been awarded to

him nor on the basis of proof beyond doubt acquittal has been earned. Instead witnesses who appeared, have not stated anything against the

Petitioner.

Learned Counsel further submitted that it is recovery of said arms and ammunition and allegedly his connection with militants, Petitioner's

activities have been stated to be prejudicial to the security of the State. The moot question for consideration is as to whether such activities, which

have got no basis, could be made base for deriving requisite satisfaction.

Buttressing the submission, learned Counsel for the Petitioner, placed reliance on the judgment captioned G.M. Tank Vs. State of Gujarat and

Another, .

In the reported judgment, the departmental proceedings and the criminal case were based on similar and identical set of facts. Charge in

departmental case and the charge before the criminal case were one and the same. It was held:

In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of

difference, the Appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis

of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be

valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the

dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed

by the Appellant deserves to be allowed.

In opposition learned Counsel for the Respondents placed reliance on the judgment reported in AIR 1999 SC 1514, wherein it has been ruled

that the nature and scope of criminal case are very different from those of a departmental proceedings and an order of acquittal cannot conclude

departmental proceedings. This is so because in a criminal case the charge is to be proved by standard of proof beyond reasonable doubt while in

departmental proceedings the standard of proof for proving the charge is preponderance of probabilities.

The said judgment, with respects, is not applicable to the facts of the present case as in the present case there has been clean acquittal.

Witnesses did not connect the accused at all with the commission of offence, so such situation is covered by the judgment reported in G.M. Tank

Vs. State of Gujarat and Another, .

Contention of the learned Counsel for the Respondents is that the material relating to the activities of the Petitioner prejudicial to the security of

the State was fully examined and it is only then dismissal of the Petitioner from service was recommended. When it is so, Court cannot substitute its

own opinion about the sufficiency or insufficiency of the material.

Buttressing the submission, learned Counsel for the Respondents placed reliance on the judgment rendered in Union of India and Another Vs.

Balbir Singh and Another, . Para 8 is relevant

If an order passed under Article 311(2) Proviso (c) is assailed before a Court of law on the ground that the satisfaction of the President or the

Governor is not based on circumstances which have a bearing on the security of the State, the Court can examine the circumstances on which the

satisfaction of the President or the Governor is based; and if it finds that the said circumstances have no bearing whatsoever on the security of the

State, the Court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by

wholly extraneous or irrelevant considerations.

It is quite apt to quote para 11 of the judgment rendered in A.K. Kaul and another Vs. Union of India and another, so as to indicate what is

the power of judicial review:

It is, therefore, necessary to deal with this question in the instant case. We may, in this context point out that a distinction has to be made

between judicial review and justiciability of a particular action. In a written Constitution the powers of the various organs of the State are limited by

the provisions of the Constitution. The extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions

of the Constitution. Since the task of interpreting provisions of the Constitution is entrusted to the Judiciary, it is vested with the power to test the

validity of an action of every authority functioning under the Constitution on the touchstone of the Constitution in order to ensure that the authority

exercising the power conferred by the Constitution does not transgress the limitations placed by the Constitution on exercise of that power. This

power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power

of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular

field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which

are not susceptible to the judicial process. Such matters are regarded as nonjusticiable. In other words, during the course of exercise of the power

of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on

account of want of judicially manageable standards and are, therefore, not justiciable.

In the backdrop of aforesaid law and the circumstances, now what emerges is as to whether the material was satisfactory for the purposes of

deriving satisfaction about dispensing with the holding of enquiry by invoking the power under Proviso (c) to Section 126(2) of the State

Constitution.

Learned Counsel for the Respondents has produced the record file pertaining to the Petitioner wherein reference is made to Govt., order No.

1608-GAD of 2004 dated 17.12.2004, in pursuance whereof recommendation for dismissal has to be supported by the copy of interrogation

report and other collateral evidence so as to justify the dispensing with holding of enquiry in the interests of security of State. The interrogation

report, as available on record, on perusal shows as to what were the activities of the Petitioner. In the interests of safety of the Petitioner, it shall

not be appropriate to make mention of the same. Nothing cogent is forth coming to show that any of the act attributable to him has been prejudicial

to the security of the State so as to warrant dismissal from service in absence of enquiry.

In addition to the interrogation report, no collateral evidence, which is a requirement in terms of Govt., order No. 1608-GAD of 2004 to

justify dispensation of holding of enquiry, is available on records as produced.

When activities of a person are detrimental and prejudicial to the security of the State, same have to be dealt with iron hand which include

dismissal of a person from service but exercise of power vis-a-vis dismissal from service carries with it the risk of pushing an individual along with

his family to an inconvenient situation which is impermissible in the larger interests of the welfare but if grounds are such, same becomes

permissible. Applying that yardstick to the facts and circumstances of the present case in the light of what has been held in the judgment captioned

S.R. Bommai and others Vs. Union of India and others etc. etc., , the grounds made base for dismissal, in absence of enquiry, are

extraneous/irrelevant. It shall be relevant to quote as to what has been majority view in the reported judgment:

(i) the satisfaction of the President while making a Proclamation under Article 356(1) is justiciable;

(ii) It would be open to challenge on the ground of mala fides or being based wholly on extraneous and/or irrelevant-grounds;

(iii) even if some of the material on which the action is taken is found to be irrelevant, The Court would still not interfere so long as there is some

relevant material sustaining the action;

(iv) the truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not

substitute its opinion for that of the President;

(v) the ground of mala fides takes in, inter alia, situations where the proclamation is found to be a clear case of abuse of power or what is

sometimes called fraud on power;

(vi) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Union Council of

Ministers are the best Judge of the situation and that they are also in possession of information and material and that the Constitution has trusted

their judgment in the matter; and

(vii) this does not mean that the President and the Council of Minister are the final arbiters in the matter or that their opinion is conclusive.

Learned Counsel for the Petitioner in support of his case has also relied upon various judgments rendered by this Court in the case's captioned

as Mohammad Shafi Najar v. State and Ors. SWP No. 460/2007, Ghulam Qadir Mir v. State and Anr. 1997 KLJ 346, Irshad Ahmad Masoodi

v. State and Ors. KLJ 1997 338 and Mushtaq Hussain Shah v. State and Ors. KLJ 1997 185.

In the backdrop of afore-stated circumstances, impugned Govt., order No. 365-GAD of 2007 dated 2.4.2007 is liable to be quashed, as

such, is quashed leaving it open to the Respondents, if they so choose, to hold the regular enquiry against the Petitioner wherein he may have

opportunity of explaining his position and then to pass such order as shall be warranted.

Petitioner shall be reinstated but for the period with effect from 2.4.2007 till he is reinstated, he shall not be entitled to any salary and the said

period will count only for pensioanry benefits.

Petition accordingly succeeds.

The record as was produced by the learned Counsel for the Respondents in the open court, after perusal was kept in sealed cover, same be

returned to the learned Counsel in the open court.