Ghulam Mustaffa vs State of J&K : D.I.G.Police, Jammu

This matter involves petitioner's removal from service in exercise of power under sec. 126 (2) (b) of the state constitution corresponding to Art

.311 (2) (b) of the Federal Constitution. Even though reply stands filed by the official respondents, their counsel had prayed for three days time to

produce the relevant record/material to indicate the basis for dispensing with the inquiry against the petitioner in tune with the established legal

position on the subject matter .He failed to do so even within one week. In the circumstances this petition is decided in the absence of any material/

record produced by the official respondents.

Petitioner was a selection grade constable in the Police Department. He figured along with some other in FIR No. 3/90 under Sec. 302 R.P.C.

registered in connection with a custodial death. He was placed under suspension and later removed from service vide order No. 470 of 1990

dated 3081990 in exercise of power under Sec. 126(2) (b) of the State Constitution and the ground that ""he was evading his presence by being

absent and it was not reasonably practicable to hold an inquiry into his absence from duty as well as his involvement in antinational activities.

Petitioner's primary grievance is that the ground taken by the disciplinary authority for dispensing with the inquiry was factually incorrect. It is

submitted in this regard that he was posted in police line Doda when he was placed under suspension on 19.1.1990 where after he remained

present in the police line all along till he was removed from service vide impugned order dated 30.8.1990 till his removal from service vide

impugned order dated 30.8.1990. He was paid subsistence allowance till his removal which stands corroborated by the a quittance rolls, cash

book etc. In the circumstances it could not be said that it was impracticable for the concerned authority to hold an inquiry against him because of

his alleged absence. It is also made out that upon the reading of the impugned order, the concerned authority had taken note of his alleged

antinational activities including his challenge to the accession of the state with the country which was suggestive of the fact that his removal was

connected with the activities which were alleged to be against the interests of the Security of the State. That being so, respondent No.2 was

incompetent to remove him from service under Sec. 126(2) (b) and in that case he could have been removed only by the Governor in excise of

power under Sec. 126(2) (c) of the State Constitution. It is further contended that the order impugned was arbitrary, unreasonable and vitiated by

male fides.

In the counter filed by respondents 2 & 3 it is pointed out that a case was registered against the petitioner in connection with the death of a person

in police custody during investigation. He was placed under suspension along with some other vide order dated 31.1.1990. It is denied that one

Inspector Moh'd Safdar Pir, also charged along with, was later promoted to the rank of Dy. S.P. It is but asserted that the impugned order was

passed on due application of mind by the competent authority and on the ground that the petitioner was indulging in antinational, illegal and unlawful

activities prejudicial to the security of the State. It is also alleged that the petitioner absented himself from duty and on being placed under

suspension, never reported back.

R '; At this stage, it would be advantageous to reproduce the relevant provisions of Sec. 126(2) (b) of the State constitution which are in para

materia with Article 311(2) (b) of the Federal Constitution:

dismissal, reduction or removal of persons employed in civil capacities under the State :

(1) x x x

(2) No such person as aforesaid 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 and where it is proposed, after such inquiry, to

impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on

the basis of the evidence adduced during such inquiry:

Provided that this sub section shall not apply :

(a)

(b) Where the authority empowered to dismiss or remove 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 reasonable practicable to hold such inquiry: or

It is elementary that Article 311(1) & (2) corresponding to Sec. 126(1) & (2) of the State Constitution provides certain safeguards against the a

dismissal or removal from service or reduction in rank of a member of the service of the State or a person who holds a civil post under the state.

These include holding of a departmental inquiry and affording the delinquent employee a reasonable opportunity of being heard. Sec. 126(2) of the

State Constitution provides an additional safeguard to enable such employee a reasonable opportunity of making a representation on the penalty

proposed. It envisages in totality that no employee falling within the parameters of subsec.(1) could be dismissed or reduced in rank save otherwise

after holding of an inquiry in which he is to be informed of the charges against him and given a reasonable opportunity of being heard in respect of

those charges. Thereafter, if any penalty is proposed to be imposed on him, he is to be granted a reasonable opportunity of making a

representation on the proposed penalty. This additional safeguard was deleted from Article 311 (2) of the Constitution of Indian by the 42nd

Amendment of 1976 from 1.3.1977 and is no more available there. That marks a marginal difference between the two provisions and it remains to

be seen whether this additional safeguard would survive the provision that take away the Constitutional right of departmental inquiry?

Be that as it may, Article 311 (2) (b) read with Sec. 126(2) (b)'and supplemented in case of State Police Service by rule 359 (11) (ii) of the J&K

Police Rules, envisages the circumstances where the authority empowered to dismiss or remove the official from service or to reduce him in rank,

could dispense with the inquiry. These provisions contemplate two prerequisites and conditions that must be satisfied to sustain the action of

dispensing with the inquiry. These are : (i) there must exist a situation which renders holding of an inquiry ""not reasonably practicable""; and (ii) the

disciplinary authority must record in writing the reasons in support of its satisfaction.

The question of reasonable impracticability for holding the departmental inquiry will depend on the particular existing facts and circumstances

prevailing on the date of passing of the order. There may be physical and legal impediments coming in the way making lit reasonable impracticable

to hold such inquiry which could be traceable to a number of {factors like disturbed conditions, internal disorder, impossibility of procuring the

attendance of the delinquent who may have absconded or with witnesses and so on. In short, there has to be some basis for dispensing with the

inquiry which must point to the impracticability of holding of such inquiry. Where there is no basis or if the circumstances indicate that it could be

practicable to hold such inquiry, any action of doing away with it could be vitiated. After all the constitutional right of inquiry cannot be allowed to

be taken away casually or whimsically. It was in this context that Supreme Court observed in Jaswant Singh's case (AIR 1991 SC 385) thus:

The dispensing with the departmental inquiry cannot be rested solely on the ipsi dixit of the concerned authority When the satisfaction of the

concerned authority is questioned in a court of law, it is incumbent upon those who support the order to show that satisfaction is based on

objective facts and is not the outcome of whim and caprice of the officer.

This position was also settled in Tulsi Ram Patel's case (AIR 1985 SC 1416) as under:

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

avoid holding of inquiry or because the departmental case against the Government is weak and must fail .The finality given to the decision of the

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 court would strike

down the order dispensing with the inquiry as also the order of imposing penalty"".

It is also firmly established by now that where the action of dispensing with the inquiry is questioned, the court would be within its power to

examine the record/material on which the requisite satisfaction was derived by the Authority concerned who is obliged to produce witch

record/material to justify the action. If such record is withheld and is not produce despite opportunity granted, it would only raise an adverse

inference against the action.

Applying all this to the present case, it leaves no room for doubt that the impugned order was passed by respondent No.2 in a cavalier manner and

perhaps in ignorance of the nature of the power exercisable under Sec. 126(2) (b) of the State Constitution. The order gives mixed reasons for

dispensing with the departmental inquiry against the petitioner. On the one hand, it points out that the petitioner was indulging in antinational

activities including incitement, disaffection and challenging the accession of the State within the country; and, on the other it projects that he was

evading presence by being absent and that is why it was not reasonably practicable to hold an inquiry into his absence from duty as well as his

involvement in antinational activities.

On facts, respondents' stand is negated by the very fact that they were paying subsistence allowance to the petitioner during his suspension period

and till his removal from service which establishes that he was neither beyond their reach nor was it impracticable to hold a departmental inquiry

against him. If he could be available to receive subsistence allowance, he could as well be made available to face an inquiry on the charges against

him. Therefore, it is too difficult to fathom that his absence had. rendered it impracticable for respondent No.2 to hold departmental inquiry against

him and to observe the mandate of Sec. 126(1) &(2) of the State Constitution. Looking at it from the other angle, petitioner's alleged indulgence in

antinational activities, could perhaps constitute a ground referable to the ""interests of the security of the State"" within the meaning of Sec. 126 (2)

(c). But for this inquiry could be dispensed with by the Governor alone and not the disciplinary Authority. Therefore, considering that respondents

had failed to produce the record or any material to support the reason for dispensing with .the inquiry, the impugned order cannot survive.

Resultantly this petition succeeds and order No. 470 of 1990 dated 30.8.1990 passed by respondent No.2 is quashed. Respondent are directed

to reinstate the petitioner in service with all consequential benefits. This shall not, however, come in their way in holding any departmental inquiry

against him and to prosecute him in accordance with law.