Jammu & Kashmir High Court
State Of J And K And Ors. vs Shafiq Ahmad Pandit on 10 November, 2005
Equivalent citations: 2006(2)JKJ512
Bench: R.C. Gandhi, Mansoor Ahmad Mir
JUDGMENT
1. This Latters Patent Appeal has been directed against the order dated: 30.3.2005 whereby the learned Single Judge was allowed the writ petition of the respondent/writ petitioner quashing the order of his dismissal passed by Appellant No. 3, Senior Superintendent of Police, City South, Srinagar in exercise of the powers under Section 126(2)(c) of the Constitution of Jammu and Kashmir.
2. The writ petitioner was working as constable in the Police Department and while posted in Police Station Sharghari he proceeded on thirty days leave on 10.9.1990. The Police Division Batmaloo received an information from Army authorities that the respondent alongwith some other associates has been arrested at Rampur Uri while crossing the Line of Actual Control for obtaining training of sophisticated arms and ammunition from Pakistan. He was arrested and ultimately he was dismissed from service by Appellant No. 3 vide order No. 158 of 1990 dated: 8.12.1990 invoking power contained in Section 126(2)(c) of the Constitution of J&K.
3. The respondent challenged his dismissal order by means of SWP No. 2706/94. Learned Single Judge on appreciation of the pleadings of the parties and after hearing the learned Counsel for the parties came to the conclusion that Section 126(2)(c) provides the power to be exercised by the Governor and not by any authority of the State and on this sole ground quashed the impugned order of dismissal and allowed the writ petition. While doing so the learned Single Judge also observed that the quashment of the dismissal order of the respondent will not prevent the authorities to proceed in the matter in accordance with the Service Rules governing the respondent.
4. The appellant have challenged the order of the learned Single Judge on the ground that the appellant No. 3 was competent to exercise such power and the impugned order does not suffer from any illegality. It is also stated at the bar that the power has been exercised in terms of Section 126(2)(b) of the Constitution of J&K and not under Section 126(2)(c) and it is a typographical mistake and not properly recorded in the impugned order.
5. Heard learned Counsel for the appellant and perused the record.
6. Learned Counsel for the appellants has urged three points challenging the judgment under appeal viz (i) that the learned Single Judge has not dealt with the plea of the appellants that the writ petition is belated and should have been dismissed as being filed after a period of four years, thus hit by delay and laches, (ii) that the impugned order of dismissal of services of the respondent is valid in law and (iii) that the order of dismissal contains a mistake in recording Section 126(2)(c) instead of Section 126(2)(b) and should be treated to have been passed under Section 126(2)(b) of the Constitution of J&K.
7. To appreciate the plea of the learned Counsel for the appellant with regard to the delay part, the learned Single Judge has not specifically dealt with it. The learned Single Judge while disposing of the writ petition has observed that the respondent is at liberty to hold inquiry or legal proceedings against the respondent. In case after the respondents has taken any action in terms of the inquiry or passed any order in exercise of the power under Section 126 and if their action challenged in the court of law by the respondent, in that event, the appellants are at liberty to defend their action coupled with the plea of delayed filing of the petition.
8. The ground set up in the objections by the appellants that the dismissal order passed by the appellant No. 3 in exercise of power under Section 126 (2)(c) is valid in law looses its significance and amounts to an admission of the Appellant that the Appellant No. 3 was not competent to pass the impugned order invoking Section 126(2)(c) while urging that it be treated to have been passed under Section 126(2)(b) as it is mistakenly passed by respondent No. 3 under Section 126(2)(c) of the Constitution of Jammu and Kashmir. Attractively it is also urged relying upon Para 126 of the judgment of the Apex Court delivered in case Union of India v. Tulsiram Patel that the respondent No. 3 was competent to exercise such power.
9. We have examined the impugned order of dismissal of services of the respondent. It contains specific mention of the legal provision which is the source to exercise the power. The power has been exercised by the Appellant No. 3 as contained in Section 126(2)(c) and not Section 126(2)(b). For convenience Section 126 of the Constitution of Jammu and Kashmir is reproduced as under:
126. Dismissal, reduction or removal of persons employed in civil capacities under the State: -(1) No person who is a member of a civil service of the State or holds a civil post under the State shall be dismissal or removed by an authority subordinate to that by which he was appointed.
(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 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) 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 remove 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.
(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 Sub-section (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
10. The aforesaid provision of law specifically indicates that the power is to be exercised only by the Governor. The power has not been exercised as ordained by law, therefore, the learned Single Judge is right quashing the impugned order of dismissal of services of the respondent.
11. The plea of treating the impugned order to have been passed under Section 126(2Kb), cannot be accepted and is rejected. Even if it is a mistake, the respondents are at liberty to correct it as the learned Single Judge has observed that the appellants are not prevented to proceed in the matter in accordance with the Service Rules governing the respondents.
12. So far as the alternative plea is concerned, in support of his contention Mr. Rathore, learned Counsel for the Appellants has relied upon Para 126 of the judgment delivered by the Apex Court in AIR 1985 SC 1416. The observations of the apex court in this Para are made while dealing with a situation of omission to mention the relevant clause of the second proviso or the relevant service rule in the impugned orders. For convenience, it is extracted below and reads as:
Omission to mention the relevant clause of the Second proviso or the relevant service. Rules in the impugned orders.
125. Some of the orders impugned before us refer to only to one or the other the three clauses of the Second proviso to Article 311(2) for dispensing with an inquiry without referring to the relevant service rule, some refer both to a clause of the Second proviso and the relevant service rules, while the others refer only to the relevant service rule without making any mention of the particular clause of the Second proviso which has been applied. The question is whether the omission to mention the particular clause of the Second proviso or the relevant service rule makes any difference.
126. As pointed out earlier, the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules while the source of his power to dispense with the disciplinary inquiry is derived from the second proviso to Article 311(2). There cannot be an exercise of an exercise of a power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The exercise of a power is, therefore, always referable to the source of such power an must be considered in conjunction with it. The Courts attention in Challappans Case AIR 1975 SC 2216 was not drawn to this settled position in law and hence the error committed by it in considering Rule 14 of the Railway Servants Rules by itself and without taking into account the second proviso to Article 311(2). It is also well settled that where a source of power would be invalid and without jurisdiction. Similarly, if a source of power exists by reading together two provisions, whether statutory or constitutional, and the order refers to only one of them, the validity of the order should be upheld by construing it as an order passed under both those provisions. Further, even the mention of a wrong provision omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists. (See Dr. Ram Manohar Lohia v. State of Bihar City of Ahamadabad v. Ben Hiraben Manilal The omission to mention in the impugned orders of the relevant clause of the Second proviso or the relevant service rule will not, therefore, have the affect of invalidating the orders and the orders must be read as having been made under the applicable clause of Second proviso to Article 311(2) read with relevant service rule. It may be mentioned that in one of the matters before us has it been contended that the disciplinary authority which passed the impugned order was not passed the impugned order was not competent to do so.
13. It is specifically stated in Para 126 that the source of authority of a particular officer to act as a disciplinary authority is derived from the service rules while the source of his power to dispense with the disciplinary inquiry is derived from the second proviso to Article 311(2), which corresponds to Section 126 of the Constitution of Jammu and Kashmir. It is further observed that there cannot be an exercise of power unless that power exists in law and if such power does not exist in law, the purported exercise of such power would be an exercise of a non existent power and would be void. The power under Section 126 (2)(c) can be exercised by the Governor to dispense with the disciplinary inquiry, if he is satisfied in the interest of the security of the State that it is not expedient to hold such inquiry. This power cannot be invoked to be exercised by Appellant No. 3 an officer of the State. This Judgment on this point is not of any help to the Appellants.
14. For the aforesaid reasons, the appeal is dismissed being devoid of any merit.