Jammu & Kashmir High Court - Srinagar Bench
Ghulam Rasool Najar vs State Of J&K; & Ors. on 5 August, 2015
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
SWP No.1623/2004
Date of Order:05.08.2015
Ghulam Rasool Najar Vs. State of J&K & ors.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir,
Judge
Appearing Counsel:
For the petitioner(s)/Appellant(s): Mr. P. S. Ahmad.
For the respondent(s): Mr. G. M. Reshi, Dy. AG Vice
Mr. N. H. Shah, AAG.
(ORAL)
1) Essentially petitioner seeks quashment of the
order of dismissal bearing No.3337-42/DMA
dated 06.11.2004 passed by competent
authority-respondent No.2. The star ground
projected by the learned counsel for the
petitioner is that the respondent No.2 has
wrongly invoked the power under Clause (b) of
the proviso to sub-section (2) of Section 126 of
the J&K Constitution as there was no question of
impracticability for conducting the enquiry, on
vague grounds same has been held to be
impracticable.
2) Petitioner, admittedly, an employee at the
relevant time was working as an Orderly in the
Revenue Department and was posted in Tehsil
Office, Bijbehara. Allegation against him is that
he had arranged meeting of militants in the
house of Gh. Rasool Wagay, a dreaded militant,
and hatched a conspiracy to execute mine blast
at Sarnal on the arrival of Hon'ble MP Srinagar
Sh. Umar Abdullah to participate in chahrum(4th
day of death) of late Mirza Sabdar Ali Beigh who
was assassinated few days back by the
militants. Case had been registered as Crime
No.516/2004 P/S Anantnag. The petitioner had
been arrested in connected thereof so was in
custody. In the meantime, SSP, Anantnag had
submitted a report as well as recommendation
for appropriate action. Acting on the same,
respondent No.2 passed the order impugned
wherein for dispensing with enquiry, has
observed as under:
"Whereas, conducting of enquiry into the
matter is not practically possible as the said
Gh. Rasool Najar who is actively involved in
insurgency can cause any damage to the
enquiry officer. The subject Gh. Rasool Najar
who is presently in police custody can cause
any damage to the enquiry officer through his
accomplice even if the enquiry is initiated and
opportunity of being heard is provided to him;
Whereas, the report of SSP Anantnag is
crystal clear that the subject Gh. Rasool Najar
Orderly is a close associate of Gh. Rasool
Wagay @ Kacha Gooru who is dreaded
militant will not only hamper the enquiry but
can cause harm to the enquiry officer,
therefore, holding of such enquiry is not
reasonable possible and practicable;
..................
Now, therefore, in exercise of the powers vested in me under proviso B of article 126 of the Constitution of Jammu and Kashmir Sh. Gh. Rasool Najar S/o Ab. Rehman Najar R/o General Bus Stand Anantnag working as orderly (peon) in Tehsil Office, Bijbehara is hereby dismissed from the Government service."
3) The question now arises "as to whether the reasons recorded for not holding enquiry are acceptable or not." The answer has to be in negative. Admittedly, case had been registered as FIR No.516/2004 on 24.10.2004, investigation has been conducted, during investigation Investigating Officer, on seizure, has prepared the seizure memo dated 24.10.2004, obtained medical opinion and has also recorded the statement of witnesses under Section 161 Cr. P. C on various dates, such as 24.10.2004, 01.11.2004, 03.11.2004 and 09.11.2004. Investigating Officer was able to conduct investigation and to record statements of the witnesses which include doctor witness, when there was no threat to him and when investigation of the case was not impeded, how could the competent authority say that the enquiry was impracticable on the ground that the enquiry officer could be harmed by a dreaded militant alleged to be an associate of the petitioner.
4) Section 126 of the Constitution of the State of Jammu and Kashmir provides for dismissal, reduction or removal of persons employed in civil capacities under the State. Sub-section (2) clearly provides that no person shall be dismissed or removed or reduced in rank except after an enquiry 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 even after enquiry, if penalty is proposed to be imposed, then again he has to be given a reasonable opportunity of making representation on the penalty proposed but only on the basis of the evidence adduced during such enquiry. Sub-section (2) is controlled by the Proviso i.e. under three circumstances enquiry can be dispensed with, Viz.
(a) Where dismissal or removal or reduction in rank of a person is on the ground of conduct which has led to his conviction on a criminal charge.
(b) Where the authority empowered to dismiss, remove or reduce a person in rank is satisfied that for some reason, to be recorded in writing it is not reasonably practicable to hold such inquiry.
(c) Clause (c) provides about satisfaction by the Governor.
In the instant case the authority has invoked the power under Clause (b) which totally was unwarranted as the reason recorded for not holding the enquiry is without any substance and is in conflict with the position of the case. As detailed hereinabove, investigation of the case has been conducted, statements of the witnesses under Section 161 Cr. P. C have been recorded, when no one has been harmed nor investigation has been impeded which was followed by trial, that too has not been impeded, the petitioner has earned acquittal as he has been acquitted after proper trial by the Court of learned Sessions Judge, Anantnag which judgment later on has been upheld by the High court.
5) The reason recorded for not holding the enquiry, for the stated reasons, is not tenable, therefore, order impugned has to be set aside, as such, set aside leaving it open to the respondent- authorities to hold enquiry, if they so choose and thereafter to pass appropriate orders. If the respondents choose to conduct enquiry, keeping in view the time span and pendency of the matter, same shall be initiated and concluded with promptitude preferably within three months from the date copy of this order is served upon them. In case they will not choose to hold enquiry, then orders for taking the petitioner back into service shall be considered.
6) Disposed of as above.
(Mohammad Yaqoob Mir)
Judge
Srinagar
05.08.2015
"Mohammad Altaf"