Ghulam Mohd.Qureshi vs State of Jammu & Kashmir

Petitioners personnel of JKAP, were deployed at Punjab National Bank Branch Dalgate, Srinagar for guarding the bank building and its staff. It

appears that militants broke open in the bank on 9.9.1991 and kidnapped its manager one K.C. Gupta.

Petitioner were charged of cowardice and dereliction of duty and were dismissed from service by order No. 850 of 1991 dated 12.9.1991

passed in exercise of powers under Sec. 126(2)(b) of the State Constitution by respondent No.4. They assail this order in generalised terms as

being arbitrary, unconstitutional and passed in colourable exercise of the power in hot haste, by passing the provisions of the Constitution and

based on no foundation.

In the reply filed by the respondents it is submitted that the petitioners were dismissed from service by respondent No.4 after being satisfied that

it was not practicable to hold regular inquiry against them because of highly disturbed conditions in the valley and nonavailability of witnesses. It is

also pointed out that they had ""exhibited extreme cowardice, dereliction of duty and had offered no resistance to the kidnappers of the bank

manager and had accordingly failed in their duty.

It is elementary that the Constitution provides certain guarantees and safeguards to an employee who is a member of the civil service or holds a

civil post under the State. He cannot be dismissed or removed from service or reduced in rank by any authority subordinate to the appointing

authority and without an inquiry in which he is to be informed of the charges against him and is to be afforded a reasonable opportunity of being

heard in respect of such charges. These safeguards are contained in Article 311 of the Federal Constitution and Section 126 of the State

Constitution. The latter section provides an additional safeguard of giving a second show cause notice to the delinquent employee informing him of

the punishment proposed to be imposed on him.

Clauses(a), (b) & (c) of Sec. 126(2) provide certain exceptions to this general rule and allow doing away with the inquiry in certain cases. Cl.(b)

permits so where it is impracticable to hold such inquiry but for this the Comeptent Authority is required to record reasons to show that it was not

practicable to hold inquiry in the facts and circumstances of the case. Where the Authority fails to do so, the action taken cannot sustain and would

be invalidated.

Cl. (c) permits dispensing with such inquiry where the Governor feels satisfied that it is inexpedient to hold such inquiry in the interests of the

security of the State. But, the Governor's satisfaction is to proceed on some material or basis. Where the action is questioned on the lack of

material or its irrelevance or frivolousness, the Government is obliged to produce the record to satisfy the court that the requisite satisfaction was

not drawn in air and if Government defaults in doing so, it would only render the action vulnerable to quashment. (See AIR 1985 SC 1416, AIR

1995 SC 1403, AIR 1991 SC 385, 1995 SLJ 19 and 1993 SLJ 171).

All that remains to be seen in the present case in light of the settled legal position was whether reason disclosed by respondent No.4 in the

impugned order and in the reply could be said to be relevant reasons germane to dispensing with the inquiry on the ground that it was impracticable

to hold it.

It is true that the court is not required to sit in judgement on the satisfaction reached by the disciplinary authority in the matter. Nor would it be

competent to go into its sufficiency or otherwise. But, the court in exercise of its judicial review, would certainly be within its boundaries to

scrutinize and examine whether the recorded reasons are relevant and germane for discarding the inquiry and whether these furnish a nexus with the

object. If the reasons, given are extraneous and are the outcome of any caprice or ipsidixit of the authority, the court would certainly interfere to

strike down the action. As such it all comes to whether reasons advanced disclose the relevant basis fordoing away with the inquiry. Where such

basis lack, in relevance or proximity to the object viz. impracticability of holding an inquiry the action cannot sustain.

The disciplinary authority may advance whatever reason but that by itself is not enough to validate the action unless it is further shown that such

reason emanated from a valid basis rendering the holding of the inquiry impracticable.

Applying this to the present case, it does not require much effort to point out that the reasons recorded by respondent No.4 are couched in

generalised terms and are based on conjectures. It could as well be that general conditions in the valley were disturbed at the relevant time but that

by itself could not be constituted a basis for doing away with the constitutional guarantee of inquiry, because, by that logic any law and order or a

public order situation could be put up as justification for removing a Govt. employee from service without inquiry. The prevailing conditions of a

place must have proximity and nexus with the impracticablity of holding an inquiry against the delinquent employee. As such the authority is

required to disclose a valid basis for dispensing with the inquiry and not seek shelter under the prevailing general conditions which may undoubtedly

be disturbed or untoward.

Same holds true about the other reasons related to nonavailability of witnesses. It is firstly not known whether any witnesses were required in

inquiry to establish the petitioners dereliction of duty and, if so, on what basis could it be assumed that they were not available. It is not the case of

respondent No.4 that the employees of the Punjab National Bank had resolved not to depose as witnesses in case of inquiry, which situation could

have justified the action. But, it is no good to put up a justification that the witnesses would not be available in the event an inquiry was held.

Therefore, on both counts, reasons recorded by the competent Authority does not stand the test. In the circumstances it is difficult to hold that

respondent No.4 had valid reasons for dispensing with the inquiry.

In any case, it all comes to holding or otherwise of the inquiry, it is not that petitioners could not be ousted in any event or circumstances. They

were surely liable to be thrown out but on satisfying the requirements of the constitutional guarantees availalbe to them. Therefore, it would be still

open to the authority concerned to proceed against them in accordance with law.

In the result this petition is disposed of on the analogy of other identical petitions by providing as follows:

The impugned order No.850 of 1991 dated 12.9.1991, shall stand quashed. But, it shall be open to the competent authority to decide to reinstate

the petitioners in service and to place them under suspension with a view to subject them to a departmental inquiry, if any, intended into the

charges/allegations against them, in accordance with law and rules. This is in tune with the view taken by a Division Bench of this Court lately in

Riaz Ahmed Gazi's case (1997 SLJ 178). Any such inquiry initiated shall be concluded within 6 months from the date of receipt of this order. If

petitioners succeed in it and come out unscathed or where no inquiry is held, they shall be reinstated in service retrospectively without any back

wages. But, if they are again found in the dock, respondents shall be free to taken appropriate disciplinary action against them under rules which

may even involve their removal from service.