Gh.Mohammad Lone vs State of Jammu and Kashmir

Syed BashirudDin, J.—Petitioner, a Constable of Jammu and Kashmir Police, was dismissed from service w.e. from 17.5.1993 after

dispensing with the enquiry under Section 126(2)(b) of J&K Constitution (Annexure P1). This order is under challenge in this writ petition.

Three hardcore militants named in the impugned order escaped from Police Hospital at Srinagar, while petitioner with other Police personnel

was on guard duty. FIR 186/93 was registered against these Police personnel at Police Station Batmaloo. A Committee was also constituted to

inquire into the matter but nothing incriminating was found against the petitioner. Yet petitioner was dismissed without any enquiry as required

under provisions of Section 126 of the J&K Constitution. No reason for dispensing with the enquiry is given, and on record. Merely saying ""due to

prevailing circumstances in the Valley a regular enquiry is dispensed with"" would not and cannot be a reason to dispense with the enquiry. The

authorities have not fulfilled their constitutional obligations and proceeded in the matter in conformance with the Constitutional provisions. The

order is mala fide in so far as the petitioner has been sacked only because three militants escaped without looking into the involvement, if any, of

the petitioner in the matter. The petitioner is not involved in any manner in the escape of the militants. The impugned order does not fall within the

parameters of fundamental law as laid down by the Constitution.

Despite repeated opportunities, the reply or counter has not been filed by the respondents. Obviously, the uncontroverted petition allegations

have compulsorily to be taken as correct and legally deemed true. [See also 1994 SLJ 15(4), 1998 SLJ 206(208)].

The counsel for the parties have been heard.

Mr. Wani submits that alongwith the petitioner seven other police constables were on guard duty on the material date in the Police Hospital

when three named hardcore militants are stated to have given them slip and escaped. All these constables filed writ petitions and by a common

judgment these writ petitions (SWP No. 113, 114, 115, 116, 117, 118 and SWP 141/94) have been decided on August 8, 1997, after following

the judgment of the Division Bench of this Court in Shaffi Saydan's case (1997 SLJ 178). By the above judgment and order of August 8, 1997,

the impugned order has been set aside and stipulated time period has been given to the Competent authority to hold enquiry, (if it so choose) and

to take such action as warranted under law.

The record available on the file of the above Writ Petitions shows that the Court has passed said judgment/order of August 8, 1997 in the Writ

Petitions in terms as under :

The impugned orders removing the petitioners from service are quashed. But it shall be open to the Competent Authority to conduct a

departmental enquiry against the petitioners which is required to be completed within six months from the date of receipt of this order. If no enquiry

is conducted against them within the stipulated period, they shall be entitled to reinstatement in service. They shall also be so entitled prospectively

and without any back wages, where they succeed in the enquiry. But, if they fail and charges are proved against them, the disciplinary authority

shall be free to take any action against them including their removal from service.

Petitioner's case, being identical with the cases of other seven constables, cannot be treated differently and the above order of August 8, 1997

given in said other cases, should obviously govern this case also, as in the facts and circumstances of the case, the former cases and judgment

covers the grievance projected and relief sought by the petitioner of this writ petition. In fact the questions of fact and law raised in this petition are

common and identical to such raised questions in the said decided cases. There is complete identity of issues raised in this case and other bunch of

said cases.

Mr. Wani, further submits that on the fateful day, petitioner was not even on duty and was not in any way involved in the incident of escape of

the said militants. This averment as already stated is uncontroverted and not denied. The allegations shall have to be deemed legally as not untrue.

If so, the case of the petitioner is placed at a higher pedestal than the seven writ petitioners in the above referred case, whose discharge from

service has been set aside in terms of order and Judgment of August 8, 1997 of this Court. This judgment has attained finality in so far as no appeal

is filed against the judgment nor any judgment/order of this Court in any manner alters or amends the said judgment/order.

In Jaswant Singh v. State of Punjab, 1991(1) SCT 125 (SC) : (AIR 1991 SC 385) , it has been observed :

... Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3

thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that

they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on

the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective

satisfaction recorded by respondent No. 3 in the impugned 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 clear from

the following observation at P. 270 (of 1985 (Supp) 2 SCR 131) : (at P. 1479 of AIR 1985 SC 1416) of Tulsi Ram's case...

In this case in the impugned order the reason for dispensing with the enquiry under Section 126(2)(b) of the Jammu and Kashmir Constitution is

that ""in view of present prevailing situation in J&K in general and the Valley in particular, I am satisfied that it is not reasonably practicable to hold

enquiry into the conduct of the delinquent"". This ground as already stated has been pronounced upon in the above judgment. Merely citing

prevailing situation in the State as reason, if it could be at all called a reason, in omnibus terms without any material or documents before court

justifying dispensing with the enquiry under Section 126 of the Constitution hardly supplies legal justification to dispensation of inquiry in question.

Merely because the law and order or public order conditions in the valley are worst does not per se make one to conclude that enquiry

whatsoever, against a Police constable already facing investigation in a regularly registered criminal case cannot be practically held. Mere ipse dixit

of the appointing authority cannot serve as basis to dispense with the enquiry and to byepass the Constitutional requirement of holding of enquiry

against the delinquent employee while removing, dismissing or reducing him in rank.

Mr. Qadri, Sr. AAG, submits that the prevailing situation in the Valley cannot be a ground to dispense with the enquiry and cites Barkat

Hussain v. State of J&K, 1998 SLJ 328 : 1999(2) SCT 115 (J&K) . However, the authority is not applicable to the facts and circumstances of

this case for the simple reason that it is not specifically given as to what the prevailing situation is that made the authorities to conclude that it is

reasonably impracticable to hold the enquiry in this case. No militancy or other reason for dispensing with the enquiry is given, somuchso, that even

reply has not been filed to show that the satisfaction of dispensing with enquiry is based on some circumstances, facts and material placed before

the competent authority. Obviously, the satisfaction cannot be in ipse dixit of the appointing authority without placing any material, document or

even counter before the court in this case.

Mr. Qadri has also cited Chandigarh Administration v. Ajay Manchanda, AIR 1996 SC 3152 : 1996(2) SCT 555 (SC) Para 13. His

submission is that one has to keep in mind the situation obtaining in the State in the year 1993 and the order of dismissal should be appreciated in

that context. No doubt the Supreme Court has in terms laid down that in view of the situation obtaining in the State of Punjab at the relevant time,

decision of the disciplinary authority is final and conclusion of authority that it was not reasonably practicable to hold enquiry against the delinquent

was justified. But the fact remains that without having to deviate from the legal principles laid down in Chandigarh Administration case (supra), the

order in the facts and circumstances of that case was passed by the Apex Court in the facts and circumstances of number of other cases which

have no parallel with the facts of this case, where except petitioner the other seven Constables on duty with petitioner on material date, have been

reinstated in service after the impugned order couched in the very language and terms, was set aside. Not only so, even as already stated, no

material/documents, whatsoever, is placed on record despite opportunities to enable the court to judge if the disciplinary authority had material

before it to come to the conclusion that it was not reasonably practicable to hold the enquiry.

For the aforesaid reasons, the Writ Petition is allowed. The impugned order dismissing petitioner from service is quashed. The

appointing/disciplinary authority shall be free to conduct departmental enquiry which shall be completed within a period of six months unless on

cause shown period is extended. In case no enquiry is conducted within the above stipulated period, petitioner shall be entitled to reinstatement in

service and in such eventuality emoluments for and treatment of the period he has been actually out of service shall be determined by competent

authority. In case on enquiry the charge is proved against the petitioner, the disciplinary authority is free to take such action as may be permissible

under law.

Writ Petition disposed of in terms as above.