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Judgment
All these petitions are identical in nature and are disposed of by this common judgment.
Petitioners were on guard duty at Police Hospital, Srinagar, where some militants were allegedly undergoing treatment. It seems that militants
escaped from custody and they were charged of facilitating such escape and eventually dismissed from service by respondent No.1 in exercise of
power under Sec. 126(2)(b) of the State Constitution.
Petitioners have filed these petitions assailing their impugned removal from service amongst others on the ground that the power under Sec.
126(2)(b) was exerciseable only by the Governor and could not be delegated to any subordinate officer of the Government and that it was bad as
they were not heard on the quantum of punishment. It is also submitted that once they were booked in FIR No. 186/93 under Sees. 223, 224
RPC and 3 & 5 of TADA, they could not be removed from service after dispensing with the inquiry and, on the contrary, were required to be
proceeded against in accordance with the procedure established by the police rules.
Lastly it is projected that their dismissal and violative of the principles of natural justice as they were not granted a personal hearing nor was the
suitability of punishment determined.
5 In the reply filed by the respondents, the order impugned is justified on the plea that respondent No. 1 was competent to pass this order and that
it was not practicable to hold inquiry against the petitioners in view of the extra ordinary circumstances prevailing in the valley and due to terrorism.
It is also pointed out that the police was a disciplined force entrusted with the task of combating terrorism but the petitioners had failed to carry out
their duty assigned to them which had led to the escape of three hard core militants from the police hospital.
Petitioners first plea that the power to dispense with the inquiry was exerciseable by the Governor alone under Sec. 126(2)(b) of the State
Constitution and that this power could not be delegated to any subordinate authority, was misdirected on the face of it. This is apparent on the face
of the provisions itself which reads thus:
(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 reasonably practicable to hold such inquiry;
Cl(b)of Sec. 126(2) itself vests power of dispensing with the inquiry in the authority empowered to dismiss or remove a person or to reduce him in
rank. The question of any delagation by the Governor in this behalf, therefore, does not arise. Where an authority is competent to dismiss or
remove a person from service or to reduce him in rank, he could also discard the inquiry after recording reasons that it was impracticable to hold it.
Similarly, it is also a misconception that an employee was required to be heard on the quantum of punishment before he was removed from
service on dismissal. Because the exercise of power to do away with the inquiry by itself implies that no opportunity of hearing was to be granted
to the delinquent for resisting punishment or for determining the quantum of punishment.
Petitioner's case that once the police investigating process was set in motion against them, the competent authority has no basis available for
doing away with the inquiry on the ground of impracticability, is also misconceived because investigating process and departmental enquiry are two
different processes and it is open to an employer to resort to either or both against a delinquent employee. It is also settled that resort to one would
not bar the other. An ongoing investigation is not suggestive of impracticability or otherwise of the enquiry. Such enquiry may be impracticable to
be held even in the face of an ongoing investigation. Consequently it cannot be said that the Authority had no basis to do away with the inquiry
because of the registration of FIR against the petitioner.
But all this does not detract from the fact that a disciplinary authority was to satisfy the requirements of Sec. 126(2)(b) while dismissing or
removing a delinquent employee from service or reducing him in rank. He was required to record reasons to show that it was impracticable to hold
inquiry against the employee in the facts and circumstances of the given case He may advance whatever reason but it must be relevant and germane
to the discarding of the inquiry. Where such reasons were extraneous or irrelevant and had no nexus with the object sought to be achieved, the
action would be vitiated.
10 It has already been held by this court that the reason projected by the authority in generalised terms and based on conjectures could not form a
valid basis for doing away with the inquiry. In the present case also a reference to the general conditions in the valley at the relevant time, could not
be pleaded as a reason for this purpose because it was further required to be shown that such general conditions had rendered it impracticable to
hold inquiry against the petitioners. It could as well be that inspite of the disturbed conditions in the valley or the prevailing terrorism, an inquiry was
possbile to be held against the petitioners who were the employees of the police department and were already facing investigation on the same
allegations.
It is not the gravity and the seriousness of the allegations which constitute a basis for doing away with the constitutional guarantee of inquiry. A
delinquent employee may be accused of a very henious offence and yet it may not be impracticable to hold an inquiry against him.
In any case it all comes to holding or otherwise of the inquiry. It is not that the petitioners could not be ousted from service in any event or
circumstances. They were surely liable to be thrown out but onlv r satisfying the requirements of the con, .rial guarantees available to them.
Therefore, it would still be open to the authority concerned to proceed against them in accordance with law.
In the result, this batch of petitions, is disposed of on the analogy of other identical petitions and taking cue from a Division Bench judgment of
this Court in Shaffi Sayden's case (1997 SLJ178) by providing 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 inquiry against the petitioners which is required to be completed within six months from the date of receipt of this order. If no inquiry
is conducted against them within the stipulated period, they shall be entitled to reinstatement in serivce. They shall also be so entitled prospectively
and without any back wages, where they succeed in the inquiry. 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.