Gh.Mohi-ud-Din Mir, Constable vs State of J&K and Others

The petitioner, a constable in Jammu and Kashmir Police, has, by means of the present writ petition, challenged the order dated December 12,

1990 passed by the Senior Superintendent of Police, Srinagar by which his services were terminated on the ground of unauthorised absence from

duties. The order was passed after dispensing with the requirements of holding an enquiry under Section 126(2} (h) of the Jammu and Kashmir

Constitution.

From the facts set out in the writ petition, it appears that the petitioner while on duty at Lai Bazar, Srinagar on November 5, 1989 was injured in

cressfiring and had to be admitted in Bone and Joint Hospital, Srinagar where he remained till November 15, 1989. It was because of the above

injuries that the petitioner could not attend to his duties and proceeded on medical leave after due information as would appear from the Daily

Register of the Police Lines, extract from which have been filed as annexures P2 and P3 to the writ petition.

On recovery form illness, when the petitioner reported for duty and wanted to sign the ""Roznamcha"", he was informed that his services were

terminated by the impugned order dated December 12, 1990 a copy of which has been filed as annexureP5 to the writ petition. This order is

challenged on the grounds interalia, that the same was passed not only in violation of section 126 of the Constitution of Jammu and Kashmir, but

also in violation of Rule 359 of Jammu and Kashmir Police Manual 1960.

The opposite party has filed counteraffidavit in which they do not dispute that the petitioner was on duty on November 5,1989 and has

sustained injuries and that he had to be admitted in the Hospital from where he was discharged on November 15, 1989. What is contended by the

opposite party is that as soon as the petitioner had received injuries and was admitted in the Hospital it was his duty to inform the concerned

authorities. The opposite party contends that although petitioner had made entry in the police diary that he was proceeding on leave, it was made

without proper permission form the Deputy Superintendent (Dar) or any other officer commanding the force in District Police Lines which

constituted an act of indiscipline on the part of the petitioner. The opposite party has further contended that the petitioner, in any case, absented

himself from duty unauthorisedly with effect from December 17, 1989 and did not report for duty inspite of several notices having been served

upon him and, therefore, his services were terminated after dispensing with the enquiry the holding of which in the particular circumstances of the

case, was not reasonably practicable.

Section 126 of the Jammu and Kashmir Constitution provides certain safegaruards to a person employed by the State namely:

(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

by subordinate to that by which he was appointed and that no such person 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.

Proviso to subsection (2) of Section 126 of the Jammu and Kashmir Constitution speaks of three situations where the enquiry contemplate by

subsection (2) can be dispensed with. These situations are:

(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 removed 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"".

SubSection (3) of Section 126 of the Jammu and Kashmir Constitution provides as under:

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonable to hold such inquiry as is referred to in subsection (2),

the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

Similar provisions are also contained in Rule 359 of the Jammu and Kashmir Police Manual 1960.

The proviso to Section 126 (1) of the Jammu and Kashmir Constitution contemplates a departure from the normal rule of holding an enquiry into

the charges against the government servant.

Section 126 of Jammu and Kashmir Constitution is equivalent to Art. 311 of the Constitution of India. While the proviso to section 126 (2) is

equivalent to the second proviso to the Article 311{2) of the Indian Constitution.

The Constitutional provisions referred to above require that an enquiry shall be held against a Government servant into charges of misconduct

for which he is sought to be removed from service and that in that enquiry he shall be afforded an opportunity of hearing which necessarily includes,

inter alia, the right to file a reply to the charges and to lead evidence in support of the reply and also the right to crossexamine the witnesses if any

produced against him in that enquiry.

The quantum of enquiry required in a given case or the procedure which has to be followed in the enquiry is not under my consideration as the

enquiry itself in this case was dispensed with and therefore, the question whether the enquiry was properly dispensed with is one of the question on

which the fate of this petition hinges.

As pointed out earlier, a Government servant is entitled to the protection contemplated by Art311 (2) and therefore, he cannot be dismissed

from service unless he has been given an opportunity of hearing. The rule of exception is contained in the proviso to Art. 311 (2) which is akin to

proviso to sec. 126(2) of the Jammu and Kashmir Constitution.

A perusal of clause (b) of the proviso would indicate that before an enquiry is dispensed with, two conditions have to be satisfied namely:

i) The authority competent to dismiss or remove or reduce in rank an employee is satisfied that it would not be reasonably practicable to hold the

enquiry,

ii) There are reasons for such satisfaction and those reasons are recorded by that authority in writing.

The decision of the authority concerned to dispense with the enquiry is final under clause (3) of Section 126 of the Jammu and Kashmir

Constitution. Subsection (3) speaks of the ""decision"" which decision is obviously referable to the decision to dispense with the enquiry under clause

{b) of the proviso in which two conditions set out above are contained. It, therefore, follows that the finality will be available to only that decision

which complies with the two requirements contemplated by clause (b) of the proviso. If the authority has neither recorded the satisfaction nor has

he recorded the reasons for such satisfaction, the decision to dispense with the enquiry will not be final even under subsection (3) of Section 126.

Two questions immediately arise: (1) Whether the order dispensing with the enquiry is open to judicial scrutiny and (2) what is the effect of

finality contemplated by Sec. 126 (3) in respect of the aforesaid order.

The answers to both the questions are not far to seek as both the questions stand answered by a number of decisions of the Supreme Court.

In Union of India Vs Tulsi Ram Patel 1985 (3) SCC 398 AIR 1985 SC 1416, the Supreme Court after reviewing the entire case law observed as

under :

A disciplinary authority is not excepted to dispense with the disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to

avoid the holding of an inquiry 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 enquiry as also the order imposing penalty......

The effect of the above decision is that although the decision of the displinary authority to dispense with the enquiry is final, the court still retains

its power of judicial review and therefore, it can, in appropriate cases, investigate whether the constitutional prerequisites in dispensing with the

enquiry have been complied with or not and whether the reasons for which the enquiry has been dispense with could reasonably [SIC] constitute

the basis of satisfaction of that authority.

The rule of justiciability as laid down in Tulsiram's Patel case (Supra) was reiterated in Satyavir Singh Vs Union of India and others AIR 1986

SC 555, and Jaswant Singh Vs State of Punjab and others 1991 (!) SCC 362. In the last case it was laid down that the decision to dispense with

the departmental enquiry cannot be rested solely on the ipsedixi of the authority concerned. It was also laid down that 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 authority.

Mr. U.K.Jalali appearing on behalf of the opposite party has also relied upon the decision of the Supreme Court in Satyaveer Singh Vs. Union

of India and others {supra} and has contended that the rule to dispense with the enquiry was made in public interest. This is not disputed by the

petitioner on whose behalf only question raised is that the order dispensing with the enquiry was passed in violation of the express provisions of

clause (b) of the proviso to Section 126 (2) of the Jammu and Kashmir Constitution. It is contended that the authority has to record its satisfaction

and the reasons which constitute the basis of satisfaction have also to be recorded. These requirements, it is contended, have not been complied

with.

Opposite party has filed the counter affidavit and through that counter affidavit an attempt has been made to justify the order dispensing with

the enquiry. The reasons why the enquiry was dispensed with have been set out in para 5 and 8 (c) of the counter affidavit. The relevant portions

of the above paras are extracted below :

Para No. 5. In reply to the contents of para 5, it is respectfully submitted that the petitioner did not inform the department in any way about his

sustaining injuries till he was discharged from the hospital. It is submitted that the petitioner entered into Police Diary (DPL) without seeking any

permission to proceed on leave from the Deputy Superintendent (Dar) or any other officer commanding the force in District Police Lines, that too

was indiscipline on part of the petitioner. In Police department its first and foremost basic principle for the force personnel is to maintain discipline

in all fields including while proceeding on leave. The petitioner, however, did not seek any permission from the concerned authority to proceed on

leave. The absence of the petitioner was unauthorised and intentional. Otherwise also the petitioner absented himself from 17.12.1989 and did not

report despite serving of notice upon him. The continued absence of the petitioner was adversely affecting the department on account of

maintaining discipline, so the SSP passed an order under section 126 {2} (b) of J and K Constitution and the services of the petitioner were

terminated. It is pertinent to mention here that the notices were served upon the petitioner asking him to join his duties before passing the order

impugned in the writ petition. The SSP. Srinagar was satisfied that it would not be possible to conduct an enquiry into the conduct of the petitioner

due to the caortic conditions prevailing in general in the Jammu and Kashmir State and particularly in the Valley.

Para 8. {c)... As is dear from the order impugned itself that it would not be possible rather it was not considered practicable by the then SSP,

Srinagar to hold an inquiry into the conduct of the petitioner because of the situation prevailing in the State of J and K. As a matter of fact, as has

already been stated, the whole police force is extremely busy in curbing the terrorist activities in the Valley and the Officers can not afford to

conduct an enquiry at this critical juncture which is a long process. It is further submitted that the petitioner was absent from the duty even after he

was discharged from hospital and did not inform the authorities about his whereabouts despite the fact that notices were issued and served upon

him asking him to join back his duties which the petitioner did not do. Neither it was possible to hold an enquiry because of the reasons that the

petitioner himself did not present in the office despite notices and was continuously unauthorisedly absent as such his services were dispensed

with.

From the above specially the underline portions it will be seen that the enquiry was dispensed with on account of {i} the chaotic conditions

prevailing in general in the Jammu and Kashmir State particularly in the Valley; (ii) The whole Police Force was busy in curbing the terrorist

activities in the valley and the Officers could not afford to conduct an enquiry which involves a long process.

Now, the chaotic conditions in the Valley and the entire Police Force being busy in curbing terrorism constitute the basis of satisfaction of the

Officer concerned for dispensing with the enquiry on the ground that it will not be reasonably practicable to hold it.

The dispensing with the enquiry on the above ground cannot be justified. The Police force may have had a tough time in combating terrorism

but the entire police force was not to hold the enquiry. Only one Officer, namely, SSP, Srinagar, was to hold the enquiry. The averment in the

counter affidavit that the officer could not afford to hold a lengthy enquiry is also no ground for dispensing with the enquiry. Whether the enquiry in

a particular case will be a lengthy enquiry or a short enquiry depends upon many factors including the nature of allegations against the government

servant.

In the instant case, the petitioner was injured in a shoot out and was admitted in the hospital from where he proceeded on medical leave. This

fact was mentioned by the petitioner in the Police Diary but the entry is questioned by the opposite parties on the ground that it could have been

mentioned only after leave was sanctioned. The existence of entry is not disputed. The enquiry would, therefore, not have been a lengthy affair.

It is also pleaded in the counter affidavit that the petitioner did not report for duty even after he was discharged form the hospital and did not inform

the authorities about his whereabouts. It is also pleaded that it was not possible to hold the enquiry as the petitioner did not respond despite service

of notice upon him. This, according to the opposite parties, constitutes another ground for not holding the enquiry,

This ground is based on pleadings which are self contradictory. It is said that the petitioner did not inform the authorities about his ""whereabouts"" .

In the same breath it is said that notices were issued and ""served"" upon the petitioner. Now, notices could have been served only if the authorities

were aware of the ""whereabouts"" of the petitioners who, on he contrary, maintains that when he went to join his duties after availing of the medical

leave, he was informed that his services have been dispensed with. [SIC]

From the above discussion it is clear that the enquiry was dispensed with on grounds which were not sufficient to constitute the basis for the

satisfaction of the authority concerned that it was not reasonably practicable to hold the enquiry which in my opinion was dispensed with contrary

to the express term of the proviso to Section 126 (2) of the Jammu and Kashmir Constitution.

The petition is therefore allowed and the impugned order dated 12.12.1990 contained in annexure P5 is quashed with the direction that the

petitioner shall be put back to duty with all consequential benefits, including arrears of salary. Petitioner will also be entitled to his costs.