Jammu & Kashmir High Court
Kabir Din vs State Of J&K; And Others on 14 November, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.666/2007
MP No.4482/2014
MP No.931/2007
Date of order:14.11.2017
Kabir Din
v.
State of J&K and others
Coram:
Hon'ble Mr. Justice Tashi Rabstan, Judge
Appearing counsel:
For Petitioner(s): Mr P. N. Bhat, Advocate.
For Respondent(s):Ms Seema Shekhar, Sr. AAG for R-1&2.
Mr. Ravinder Gupta, AAG for R-3&4.
Whether approved for reporting? Yes/No
1. Government Order No.362-GAD of 2007 dated 02.04.2007, has been issued by Principal Secretary to Government, General Administration Department, Civil Secretariat, Jammu - respondent no.2, as per the decision of the Governor of the J&K State in terms of Proviso(c) to Subsection (2) of Section 126 of the Constitution of Jammu and Kashmir,dismissing petitioner's services.Aggrieved, petitioner has knocked at portals of this Court with writ petition on hand.
2. Petitioner's grievance is that impugned order does not furnish any explanation or furnish reasons to justify dispensation of inquiry more particularly when there was no material before competent authority warranting issuance of order impugned inasmuch as it has been passed in violation of principles of natural justice. He had been placed under preventive detention under J&K Public Safety SWP No.666/2007 Page 1 of 13 Act, 1978, for his alleged involvement in heinous offences and his activities were said to be antinational and against security of J&K State.Besides, case FIR no.4/2005 and no.39/2006 for commission of offence(s) under various provisions of Ranbir Penal Code,are said to have also been registered against him.Petitioner earlier also made a bid by filing a writ petition,being SWP No.493/2007. He challenged therein the Cabinet decision. But, in a while, he withdrew said writ petition.
3. Order impugned, as is contended by learned counsel petitioner, has been passed by the Governor of the State on the ground that in the interest of security of the State it was not expedient to hold an inquiry in the matter. But, though he was discharged by competent court of law in one of FIRs, therefore, in view of the finding with regard to that, it was allegedly not possible/expedient to hold an inquiry in the matter, is, according to petitioner, far away from the truth as the same is based on wrong information. The order impugned, to the saying of petitioner, is in violation of principles of natural justice and also in violation of Article 14 and 16 of the Constitution of India. Alleged unlawful/antinational activities in which petitioner was shown as accused, are said to have either been dropped or petitioner set free honourably by trial court due to lack of evidence connecting him with the antinational activities. It is alleged that the order impugned is based on the mala fide intention of the respondents. For buttressing his submissions, learned counsel for petitioner cites Ghulam Mustaffa v. State of J&K DIG Jammu,1997 Legal Eagle (J&K) 94; Abdul Rashid Lone v. State and ors, 2012 (2) JKJ 70 [HC];G.M. Tank v. State of Gujarat and anr., AIR 2006 SC 2129;Malook Khan v. State and ors., 2011 (1) JKJ 31 [HC].
SWP No.666/2007 Page 2 of 134. Respondents, in their reply, state that under Section 126 of the State of Jammu and Kashmir read with Article 311 of the Constitution of India, the mandatory procedure provided in Clause
(c) thereof, is excluded by constitutional prohibitory injunction in which it is suggested by clause (2) (c) of Section 126/Article 311 (supra), inter alia,that where the Governor is satisfied that in the interest of security of the State it is not expedient to hold an inquiry, the dismissal order can be passed.The order impugned, as insisted by respondents, has been passed by respondents only after recording reasons and satisfaction of the Governor. For dealing with the cases of government employees involved in terrorist activities, the Government has issued the Order No.1608 GAD of 2004 dated 17.12.2004, providing for detailed procedure to be followed in the matter of exercise of powers in clause (c) of subsection (2) of Section 126 of J&K Constitution. In terms of the said order, such cases are required to be referred by Additional Director General, CID to Financial Commissioner/Principal Secretary to Government, Home Department, with appropriate recommendations, duly supported by evidence, inter alia, to justify dispensation with inquiry in the interest of security of the State. The said Government Order also envisages constitution of a Committee for scrutiny of such recommendations, to be headed by the Chief Secretary of the State along with other high-ranking officials as its members. The recommendations of the Committee in compliance with the requirement of law are also envisaged to be put up before the Cabinet for onward submission to the Governor for purpose of grant of necessary approval. It is also insisted that respondents have followed all the due procedure and accordingly submitted the instant case.The Governor, on the basis of the SWP No.666/2007 Page 3 of 13 relevant material and circumstances bearing on security of the State, has been satisfied that it was not expedient to hold the inquiry against petitioner.
5. Further assertion of respondents is that the Committee duly constituted was satisfied that it was not expedient to hold an inquiry against the petitioner and the recommendations of the High Level Committee recommended dispensation with the conduct of aninquiry in the interest of security of the State and the dismissal of the petitioner from service was also reviewed as well as considered and approved by the Council of Ministers along with similar other cases and accordingly submitted to the Governor for approval and after satisfying recommendations on the basis of the material against the petitioner, the Governor has given approval. The respondents also deny the contention of petitioner that there was no material before the competent authority for issuance of impugned order and have also denied the contention of the petitioner that the subjective satisfaction has been reached without any material. It is also denied that there was no justification for dispensing with the requirement of inquiry or that the action impugned was mala fide.
6. Heard learned counsels for the parties and perused the record.
7. Petitioner was working as Master in respondent department. While posted as Teacher, Higher Secondary School, Lathong, Surankote, Poonch, petitioner has been, by impugned order bearing Government Order no.362-GAD of 2007 dated 2nd April 2007, dismissed from Civil Service of the State with immediate effect. The order reads:
―Government Order No.362-GAD of 2007 Dated:- 02.04.2007 SWP No.666/2007 Page 4 of 13 Whereas, it has been found that the conduct and activities of Master Kabir Din, S/o Late Aziz Din, R/o LathongSurankote, Poonch (presently posted as Teacher Higher Secondary School Lathong Education Department) are detrimental and prejudicial to the security of the State; and Whereas, the Governor, in terms of proviso (c) to sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir, is satisfied that in the interest of security of the State, it is not expedient to hold an inquiry in the matter.
Now, therefore, in exercise of powers under Section 126 of the Constitution of Jammu and Kashmir, Master Kabir Din S/o Late Aziz Din R/o LathongSurankote, Poonch (presently posted as Teacher Higher Secondary School Lathong Education Department) is hereby dismissed from the Civil Service of the State with immediate effect.
By order of the Government of Jammu and Kashmir Sd/-
Principal Secretary to Government General Administration Department‖
8. Impugned order has been issued under Section 126 of the Constitution of Jammu and Kashmir. Thus, it is germane to have, at first hand, glance of Section 126of the J&K Constitution, here:
―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 civil posts under the State shall be dismissed 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 on him any such penalty, until he has been given reasonable opportunity of making representation on the penalty proposed, but only on the basis of evidence adduced during such inquiry;
Provided 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 a person or to reduce him in rank is satisfied that SWP No.666/2007 Page 5 of 13 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 reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
9. A person, employed in civil capacity under the State, as comes to fore from plain reading of above quoted Section 126, can be dismissed or removed or reduced in rank only after an inquiry is conducted and such employee is informed of the charges that have been made edifice for showing him the door. Such employee is to be given reasonable opportunity of hearing with reference to charges levelled against him. Not only this, even after conducting inquiry, if it is proposed to impose on him any penalty, such employee is to be given reasonable opportunity of making a representation against the penalty so proposed by the authorities. Exception, however, is there. The first exception in Section 126 is that inquiry need not be conducted where a person proposed to be dismissed or removed or reduced in rank has been convicted on a criminal charge. The second exception is that if the authority is satisfied that it is not reasonably practicable to hold inquiry to dismiss or remove a person or reduce in rank, but non-conducting of inquiry should be recorded by that authority in writing. The third exception following the second exception is that where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
10. In the present case, respondents' stand is that it was not practicable to hold inquiry against petitioner. Learned counsel for respondents submits that for dealing with the cases of government employees SWP No.666/2007 Page 6 of 13 involved in terrorist activities, the Government has issued Order no.1608 GAD of 2004 dated 17.12.2004, which provides for detailed procedure to be followed in the matter of exercise of powers in clause (c) of sub section (2) of Section 126 of J&K Constitution and in terms of aforesaid Order, Additional Director General, CID,has to refer such cases to Financial Commissioner/Principal Secretary to Government, Home Department, with appropriate recommendations, duly supported by evidence so as to justify dispensation of inquiry in the interest of security of the State. His further assertion is that aforesaid Government Order also envisages constitution of a Committee for scrutiny of such recommendations, to be headed by Chief Secretary of the State along with other high-ranking officials as its members and the recommendations of the Committee in compliance with requirement of law are also envisaged to be put up before the Cabinet for onward submission to the Governor for purpose of grant of necessary approval. It is also insisted that respondents have followed all the due procedure.
11. To controvert the stand of respondents, learned counsel for petitioner, while inviting attention of this Court to Rejoinder filed by him, states that a development took place during pendency of instant writ petition, which has direct impetus on subject-matter of the case.Petitioner, along with others, filed a petition under Section 561-A Cr.P.C. against FIR no.134/2002 Police Station Bahu Fort,, Jammu which has been made basis for dismissing the services of petitioner. The said FIR is said to have been quashed vide judgement dated 12th March 2015.Learned counsel strenuously insists, and rightly so, that once aforesaid FIR(s), which had been made foundation for dismissing services of petitioner, has/have SWP No.666/2007 Page 7 of 13 been quashed, impugned dismissal order ipso facto becomes unsustainable and bad in the eye of law.Learned counsel also emphasises that Government Order no.1608-GAD of 2004 dated 17.12.2004, heavily relied upon by respondents, does not envisage instantaneous dismissal of services of petitioner inasmuch as aforesaid Government Order lays rider upon the powers of the Governor vis-à-vis denying holding of inquiry owing to the fact that the Governor was supposed to constitute a committee, so that the committee would provide opportunity of hearing to government employee before recommending his termination or otherwise. His further vehement argument is that petitioner was in their custody and respondents could have,with no trouble, held an inquiry before inflictment of penalty of dismissal of his services. The inquiry, according to learned counsel, could have been dispensed with only in such a situation where it was not practicable for respondents to hold inquiry against the person, despite service, was not traceable or was avoiding appearance before inquiry officer. Non-adherence to principles of natural justice vitiates impugned dismissal order, is the submission of learned counsel for petitioner.
12. In the above background, it would be gainful to say that right of the Government to dismiss or remove or reduce in rank its employees arising out of the relationship between master and servant is regulated by Article 311 of the Constitution, imposing certain restrictions and setting a procedure for effecting dismissal, removal or reduction in rank. These restrictions have been imposed only with a view to safeguard and protect the interests of the Government employees. Article 311 of the Constitution, which is para materia to Section 126 of the Constitution of J&K, reads:
―Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State:SWP No.666/2007 Page 8 of 13
(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a 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.
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause 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 a person or to reduce him in rank ins 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 President or the Governor, as the case may be, 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 reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
13. Clause (2) of Articled 311 of the Constitution of India declares that no person who holds a civil post under the Union or the State "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". The second proviso to clause (2), however, specifies three situations in which the requirements in clause (2) do not apply. Clause (b) of the second proviso states that "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 an SWP No.666/2007 Page 9 of 13 inquiry", the inquiry and the opportunity provided by clause (2) can be dispensed with and punishment imposed straightaway. Clause (3) of Article 311 is really a continuation of clause (b) of the second proviso. Clause (3) says, "if, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such an inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
14. What emerges from conjoint reading of Article 311(1) and Section 126, is that a member of a civil service or a person holding a civil post under the Union or a State or a member of All India Service shall not be dismissed or removed by an authority subordinate to that by which he was appointed. However, it does not preclude an authority, which is superior to that which has made the appointment, to dismiss or remove a person so appointed. It also draws attention to the expression ―not practicable‖ to hold inquiry in the manner provided in these rules, which must be strictly construed to mean that there were physical or legal impediments to the holding of such inquiry or in other words that holding of such an inquiry was not possible. Such a situation may arise where the delinquent is not traceable or where on account of a war, internal disorder or disturbed conditions, it is not possible to enforce the attendance of delinquent or the persons who are to conduct the enquiries or those who may be required to give evidence. However, in the present case, petitioner had been available to be put to interrogation or inquiry. Having said so, order impugned is vitiated and does not sustain in the eye of law.
15. In Union of India v. Tulsimram Patel 1985 (3) SCC 398, it has been held by the Constitution Bench of the Supreme Court that the SWP No.666/2007 Page 10 of 13 second proviso to Article 311 is based on public policy, is conceived in public interest and is to be employed for public good. The Constitution Bench has pointed out that the paramount thing to bear in mind is that the second apply only where conduct of government servant is such that he deserves punishment of dismissal or removal or reduction in rank. It was further pointed out that once above test is satisfied and conditions specified in relevant clause in second proviso are satisfied, the said proviso is attracted and it would not be necessary to comply with requirements specified in clause (2). That was a case where a large number of railway employees had participated in an illegal All India strike and the Government had responded by ordering their dismissal en masse. The action was held to be justified in the circumstances. At the same time, it was held that recording of reasons for forming requisite satisfaction was mandatory. The desirability of incorporating reasons in the order imposing punishment was emphasized. It has been held by the Supreme Court in Collector of Monghyr v. Keshav Prasad Goenka 1963 (1) SCR98, that where the Statute requires recording of reasons, any action taken without recording reasons, is invalid. Here, irrefragably, the requirement is contained in the Constitutional provision itself.
16. It is true that clause (3) of Articled 311 declares further that when a question arises whether it is reasonably practicable to hold an inquiry, the decision of the competent authority shall be final on that question. But that does not mean that the scope of judicial review is excluded altogether.In State of Rajasthan v. Union of India 1977 (3) SCC 593, it was held by the Supreme Court that clause (5) of Article 356 (introduced by Constitution 38 th SWP No.666/2007 Page 11 of 13 Amendment Act and deleted by the 44th Amendment Act, which provided that ―notwithstanding anything in the Constitution, the satisfaction of the President mentioned in clause (s) shall be final and conclusive and shall not be questioned in any court on any ground‖, does not preclude the court from entertaining the challenge to a notification under Article 356 (1) on the ground that requisite satisfaction was formed malafide or that it was founded on extraneous grounds, because it was pointed out, in either of those cases, there is in law no satisfaction as contemplated by clause (1) of Article 356. It has been held by the Supreme Court in S.R.Bommai v Union of India, 1994 (3) SCC 1, that even in the matter of exercise of power under Article 356 of the Constitution, the satisfaction of the President, while undoubtedly subjective, is not beyond judicial scrutiny of the courts under Article 32 or Article 226, as the case may be. The parameters of judicial review enunciated by the Supreme Court in S. R. Bommai's case (supra) have been held applicable in A. K. Kaul v. Union of India, 1995 (4) SCC73, to a matter arising under proviso (c) to Article 311 (2). A reading of clauses (b) and (c) of the second proviso would establish that, if at all, the power under clause (b) is more circumscribed than the power under clause (c).
17. In Abdul Rashid Lone's case(supra), this Court held that once there had been acquittal in criminal case, the dismissal order is vitiated. In that case writ petitioner, working as Helper in Power Development Corporation, was arrested in 2004 for alleged involvement in militant activities.He secured bail, but soon thereafter he was placed under preventive detention under Public Safety Act and he was dismissed from service without holding any inquiry. He challenged his dismissal. During pendency of writ, he SWP No.666/2007 Page 12 of 13 earned acquittal. His dismissal order without holding inquiry under Section 126 (2)(c) was quashed. In the present case as well, petitioner has been dismissed from the services on the ground of he having been placed under preventive detention and against him two FIRs pending. However, he has earned acquittal in the said cases. In such circumstances, dispensation of inquiry is in violation of Article 311 (2) of the Constitution of India as also Section 126 (2) of the Constitution of J&K. In that view of the matter impugned order is unsustainable in the eye of law.
18. In view of above backdrop and in the facts and circumstances of the case, writ petition is allowed and impugned Government Order no.362-GAD of 2007 dated 02.04.2007, quashed. However, it is left open to respondents, if they so choose, to hold a regular inquiry against petitioner giving him opportunity of explaining his position and then to pass such order as shall be warranted.
19. Disposed of along with connected MP(s).
20. Registry to return the record to learned counsel for the respondents against proper receipt.
(Tashi Rabstan) Judge Jammu 14.11.2017 Madan SWP No.666/2007 Page 13 of 13