T.S. Doabia, J.:-
The petitioner has since died. An application has been preferred by his legal heirs to come on record. This application is allowed.
The deceased inspector had challenged an order of termination. This was passed in exercise of the powers conferred under section 126(2) clause c proviso of jammu & kashmir constitution. The State administration thought it apt not to adopt the regular procedure of holding an enquiry. The requirement of the giving opportunity in terms of main provision of section 126 which is pari materia with Article 311 of the Constitution of India was dispensed with. The deceased Gulzar Ahmad's services were thus brought to an end.
It be seen that this petition was admitted by this court on 12.6.1990. Even though 8 years have elapsed, counter affidavit has not been filed.
Before examining the question as to whether the order which has been challenged in this petition is a valid order the order in question be noticed. It reads as under :-
".... Whereas the Governor is satisfied that the conduct and activities of Inspr. Gulzar Ahmad No. 1024/NGO SHO P/S Shergari Sgr are detrimental and prejudicial to the security of the State and thereof it is necessary that the said Inspr Gulzar Ahmad should be dismissed from service.
And whereas the Governor is further satisfied that in terms of clause (c) of the proviso of sub-section (2) of section 126 of the constitution of j&k that in the interest of the security of the State it is not expedient to hold an enquiry against the said Gulzar Inspector.
Now, therefore, the Governor in accordance with the provisions of Section 126 of the Constitution of the J&K hereby dismissed the said Inspector Gulzar Ahmad No. 1024/NGO SHO P/S Shergari Srinagar from service with immediate effect."
The contention which has been put across in the petition is that observation in the order that the interest of the State requires dispensing with the holding of an enquiry is not in itself sufficient to dispense with the enquiry. As indicated above, this petition is pending for 8 years in this court. Nothing has been brought on the record, to indicate to this court, the circumstances which led to the passing of the order reproduced above. As to how the security of the State was likely to be effected has not been indicated.
On the other hand, the deceased Inspector had submitted that he was transferred to District Leh. He further submitted that before he could join, an order of termination came to be passed. The assertion contained in para 4 of the writ petition reads as under :-
"Para 4. that by an order passed by the Sr. Superintendent of Police No. ESTT-I/90/PA dated 12.4.1990, the petitioner was transferred to District Leh from the Police Station Shergari Srinagar. Order is enclosed herewith as annexure P-II to this petition and he was also relieved from the said police station. The petitioner reported to District Police Lines Srinagar after he was relieved by virtue of an order annexure P-II from where he had to join the place of posting where he was transferred i.e. District Leh but all of a sudden he heard by way of a Radio Broadcast that he has been dismissed from his services. A report of attendance at police headquarter at Srinagar is also enclosed herewith this petition and same is marked as annexure P-III. The petitioner was not served any order of termination or dismissal consequently he submitted an application to the Sr. Superintendent of police requesting therein to furnish a copy of the dismissal of petitioner from his service. Consequently annexure P-I was received by the petitioner on 30.4.1990. A copy of application herein mentioned above is also appended with this petition and the same is marked as annexure P-IV."
The scope of these provisions was considered by Justice Syed Saghir Ahmed, former Chief Justice of this court and now judge of Supreme Court of India in Ghulam Moh-ud-din v. State of J&K, 1995 SLJ 212 : 1994(2) SCT 463 (J&K);
paras 6, 8, 9 and 10 deal with the same situation as are there in this case. These paras read as under :-
"The proviso of
section 126(2) of the Jammu and Kashmir Constitution contemplates a departure from the normal rule of holding an enquiry into the charges against the government servant."
The constitutional provisions referred to above require that an enquiry shall be held against a Government servant into charges of misconduct for which he is sought to be removed from service and that in that enquiry he shall be afforded an opportunity of hearing which necessarily includes inter alia the right to file a reply to the charges and to lead evidence in support of the reply and also the right to cross-examine the witnesses if any produced against him in that enquiry.
The quantum of enquiry required to a given case of the procedure which has to be followed in the enquiry is not under consideration as the enquiry itself in this case was dispensed with and therefore, the question whether the enquiry was properly dispensed with is one of the questions on which the fate of this petition hinges.
As pointed out earlier, a Government servant is entitled to the protection contemplated by Article 311(2) and therefore, he cannot be dismissed from service unless he has been given an opportunity of hearing. The rule of exception is contained in the proviso to Article 311(2) of the Jammu and Kashmir Constitution."
In another case reported as Kuldeep Singh v. State of Punjab, 1996(10) SCC 659 : 1994(3) SCT 15 (P&H) (DB),
departmental enquiry was not held because it was observed that it is not reasonably practicable to do so. It was said that witnesses are not likely to come forward on account of the fear instilled by the delinquent. Some confession was also said to have been made by the delinquent. This confession was taken to be voluntary in nature. In these circumstances, the action taken under
Article 311(2)(ii) proviso to clause (b) and 3 of the Constitution of India which proviso is similar to the provision under which action has been taken in the present case, was upheld. Again in another case reported as
Union of India v. Mohinder Singh,
1997(2) SCT 39 :
AIR 1997 SC 1201, the requirement of complying with regular departmental enquiry was held to be rightly dispensed with. The delinquent was held to have created terror in the area. He had intimidated the complainant (victim) and two other persons in presence of the police officials. In these circumstances, it was held that the opinion formed that no witness is likely to come and depose against the petitioner. It was accordingly held that holding of enquiry was not possible. The decision so taken was upheld by the Supreme Court of India. In a still later decision reported as
Union of India v. Balbir Singh, AIR 1998 SC 2043 :
1998(3) SCT 91 (SC),
decision to dispense with regular enquiry was held to be not in any way contrary to the provisions of Article 311 referred to above. The position of law in this regard was summarised in paragraph 8. This paragraph reads as under :-
"If an order passed under Article 311(2) proviso (c) is assailed before a Court of law on the ground that the satisfaction of the president or the Governor is not based on circumstances which have a bearing on the security of the State, the Court can examine the circumstances on which the satisfaction of the President or the Governor is based; and if it finds that the said circumstances have no bearing whatsoever on the security of the State, the court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations."
A perusal of the aforementioned decision indicates that there should be some material on record which should indicate that holding of enquiry is not possible.
As there is no rebuttal to the above mentioned assertions, it is held that there was no material available with the State to not to hold an enquiry. This petition is accordingly allowed. The order reproduced above is set aside. As the petitioner is no longer alive, the respondent-authorities are directed to pay pensionary benefits to the legal heirs of the deceased. Appointment on compassionate grounds be also considered and one of the eligible heirs be given appointment. So far as the past arrears are concerned, no direction is being given; this is because it is not possible to record a finding as to whether the deceased was gainfully employed elsewhere or not.
Disposed of with the above observations.
Petition allowed.