State Of J & K v. Mohd.Afzal Lone

1. This appeal is directed against a judgement and order dated July 24, 1997 passed by the learned Single Judge in SWP No. 94 of 1993, allowing the writ petition filed by the petitioner. This appeal has been pre­ferred by the State.

2. We have heard Mr. M.H. Attar, Learned Addl. Advocate General, as well as Mr. M.A. Qayoom, learned counsel for the respondent-writ-petitioner.

3. Facts leading to filing of the present appeal may be summarily recited.

4. Respondent-writ petitioner was working as a Junior Assistant in Law Depart­ment and was attached with Director Litiga­tion, Kashmir. He was arrested on 26th of March, 1992 in connection with FIR No. 50 of 1992 registered with Police Station Bakshi Nagar, Jammu, under Sections 3/4 TADA and 3/5 ESA. In course of investigation it was revealed that respondent-writ petitioner was locally trained militant of "Hizbul Mujahidin Outfit" and designated as 'Nazir Platoon'. It was also revealed that he was involved in killing of a Patwari, a BSF Jawan, and a Taxi driver. It was also alleged that he had collected Rs. 38,000/- from innocent people, which was utilized for meeting the requirements of the outfit and purchase of arms and ammunitions. This secret informa­tion was dispatched by the Additional Direc­tor General of Police, C.I.D. J and K, Srinagar, vide his letter dated 04.09.1992 to Additional Chief Secretary Home, J and K Government. This aforesaid information was processed at various levels and after obtaining approval of the Governor, the services of the respon­dent-writ-petitioner were terminated by or­der dated 24.11.1992, which was assailed in the writ petition. The order dated 24.11.1992 reads:

"government of Jammu and Kashmir General Administration Department.

Sub : Termination of services of Shri. Mohd. Afzal Lone S/o Abdul Rehman Lone R/o Village Hanjan (Kulgam) District Anantnag working as Junior Assistant in Law Depart­ment.

Government order No.: 1101-GAD of 1992 Dated: 24.11.1992

Whereas the Governor is satisfied that the conduct and activities of Shri Mohd. Afzal Lone S/o Abdul Rehman Lone R/o Hanjan (Kulgam) working as Junior Asstt. in the Law Department (Directorate of Litigation, Kashmir) are detrimen­tal and prejudicial to the security of the State and therefore, it is neces­sary that the said Shri Mohd. Afzal Lone should be dismissed from ser­vice and

Whereas the Governor is further satisfied in terms of clause (c) of the proviso of sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir and Clause (c) of the proviso of the Sub-Sec­tion (2) of Article 311 of the Consti­tution of India that in the interest of security of the State it is not expe­dient to hold an enquiry against the said Shri Mohd. Afzal Lone.

Now, Therefore the Gover­nor in accordance with the provi­sions of Section 126 of the Consti­tution of Jammu and Kashmir and Article 311 of the Constitution of In­dia hereby dismiss the said Shri Mohd. Afzal Lone from Service with immediate effect: (emphasis sup­plied) By order of the Governor.

Sd/- (S.D. Singh) Commr/Secretary to Government General Administration Depart­ment."

The learned Single Judge, after hearing counsel of both sides quashed the impugned order dated 24.11.1992. As would appear from the judgment and order, the Government failed to produce the relevant record at the time of hearing of writ petition resulting in allowing the writ petition. The operative portion of the judgement of the learned Single Judge is reproduced :

"C1 .(C) Permits dispensing with such inquiry where the Gover­nor feels satisfied that it is inexpe­dient to hold such inquiry in the in­terests of the security of the State. But the Governor's satisfaction is to proceed on some material or basis. Where his action is questioned on the lack of material or its irrelevance or frivolousness, the Government is obliged to produce the record to sat­isfy the court that the requisite sat­isfaction was not drawn in air and if Government defaults in doing so, it would only render the action vulner­able to quashment. (See AIR 1985 SC 1416, AIR 1995 SC 1403, AIR 1991 SC 385,1995 SLJ 19 and 1993 SLJ 171)."

6. Clause (c) of Sub-Section (2) of Section 126 of the Constitution of Jammu and Kashmir is in Para materia with clause (c) of Sub-Section (2) of Article 311 of the Constitution of India. It reads:

"(C) Where the Governor is satisfied that the interest of the se­curity of the State, it is not expedi­ent to hold such inquiry."

7. Under Clause (c) of Sub-Section (2) of Section 126, the Governor is empowered to dismiss a Government servant, if he is satisfied, in the interest of security, that it is not expedient to hold such inquiry. Under the said clause, the Governor need not to give any reasons but his satisfaction must be based on the material collected and placed before him.

8. in A.K. Koul and another vs. Union of India and another, reported as (1995) 4 SCC, 73, the Apex Court while examining the scope of judicial review in the order of dismissal passed under Article 311 (2) (c) has held that the judicial review is permis­sible within the limits laid down in S.R. Bommai's case.

9. Before us, the learned Additional Advocate General has produced the relevant records including the secret information on the basis of which the Governor based his satisfaction that it is not expedient to hold an inquiry. Before we deal with the record, we may at this stage refer to the few deci­sions of the Supreme Court dealing with the similar question of law.

10. In. S.R. Bommai vs. Union of India (1994) 3-SCC, 1 the Apex Court pointed out that order passed under Article 311(2) (c) by the President or the Governor, as the case may be, can be examined to the extent to ascertain whether such order is vitiated ei­ther by malafied or is based on wholly ex­traneous and/or irrelevant grounds. It was pointed out by the Apex Court that the Court cannot, however, sit in appeal over the or­der or substitute its own satisfaction for the satisfaction of the President. It was further pointed out that so long there is some mate­rial before the President or the Governor, which is relevant for arriving at his satisfac­tion, the Court, would be bound by the order so passed. The Apex Court enumerated the scope of judicial review of the satisfaction of the President or the Governor, as the case may be, for passing an order under Article 311 (2) (c) of the Constitution as under:

1. That the order would be open to challenge on the ground of malafides or being based wholly on extraneous and/or irrelevant grounds.

2. Even if some of the mate­rial on which the action is taken is found to be irrelevant the court would still not interfere so long as there is some relevant material sus­taining the action. 3. The truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President/the Governor.

11. The view taken in S.R. Bommai's case (supra) was reiterated in Union of In­dia and another vs. Balbir Singh and another, reported in AIR 1998 SC 2043.

12. Keeping in view the law laid down in the background, we will not proceed to examine the materials placed before the Governor, from which he derives satisfac­tion that in the interest of security^ of the State, it is not expedient to hold the inquiry.

13. As already said, the Additional Di­rector General of Police, CID, J and K, has sub­mitted a secret report that the respondent-writ petitioner while working as Junior As­sistant in the Law Department, attached with Director Litigation, Kashmir, enrolled him­self in Militant organization and locally trained in such organization and was desig­nated as Nasir Platoon and involved in kill­ing of a Patwari, a BSF Jawan, and a Taxi driver and other subversive activities, was processed by the Home Department and recommended to the Governor to take ac­tion under Clause (c) of Sub-Section (2) of Section 126 of the Constitution of Jammu and Kashmir. The fact that respondent - writ petitioners was a locally trained militant while in Government service, that too in the Law Department of the State, attached with Di­rector Litigation, would definitely to have satisfied the Governor that it is not expedi­ent to hold the inquiry in the interest of the security of the State. We are clearly of the view that if the documents/material col­lected, on the basis of which the Governor formed his satisfaction, had been placed before the learned Single Judge, he ought to have taken a different view.

14. The Governor, after examining the recommendations of the State Home Depart­ment and perusal of the documents on the basis of which recommendations had been made, passed the following order on 17.11.1992, which is available in File No. GD(Adm) 15/92-Home(l):

I have carefully considered the relevant facts and grounds of action against Shri Mohammad Afzal Lone S/o Shri Abdul Rehman Lone R/o Hanjan (Kulgam). Junior Assistant in the Law Department, placed before me.

I am satisfied that the con­duct and activities of the said Shri Mohammad Afzal Lone are detri­mental and prejudicial to the secu­rity of the State and therefore, it is necessary that the said Shri Mohammad Afzal Lone should be dismissed from service. I am further satisfied that in terms of Clause (c) of provision of Sub-section 2 of the Section 126 of the Constitution of Jammu and Kashmir and Sub-Clause (c) of the proviso of Clause (2) of Article 311 of the Constitution of India that in the interest of the security of the State it is not expe­dient to hold an enquiry against the said Shri Mohamad Afzal Lone.

Therefore, in accordance with the provisions of Section 126 of the Constitution of Jammu and Kashmir Article 311 of the Constitu­tion of India, I hereby dismiss the said Shri Mohammad Afzal Lone, Junior Assistant, Law Department from service with immediate effect."

15. A cursory reading of the order would clearly show that there was materials on the basis of which the Governor formed his sat­isfaction that in the interest of the security of the State it is not expedient to hold an enquiry. From the genesis of the order it would also clearly demonstrate that the sat­isfaction of the Governor was derived at af­ter the application of the mind on the materials placed before him.

16. It is not well settled principle of law that judicial review is not a review against the decision. It is a review against the deci­sion making process. Once it is found by the Court that the decision making process is validly made, it is not the function of the Court to make a roving enquiry into ad­equacy and inadequacy of the materials before the Governor, on the basis of which he derives his satisfaction, and substitute the conclusions arrived at by the authority by its own conclusions. This would amount to en­croachment of the field meant for the other organs. As already pointed out, judicial re­view is limited to exercise of power based on malafide or wholly extraneous or irrel­evant considerations. In the instant case, we are, after the perusal of the record placed before us, clearly of the view that there was sufficient materials for the Governor to have arrived at the subjective satisfaction that in the interest of the security of the State, it is inexpedient to hold an enquiry. The satis­faction of the Governor is subjective satis­faction and such satisfaction is derived from the materials placed before him and once it is found that there was some materials from which the Governor derived his satisfaction, the adequacy and inadequacy of such ma­terials, on basis of which the Governor de­rives his satisfaction, cannot be questioned by the Court in exercise of judicial review.

17. In view of what has been stated above, the judgement and order dated July 24, 1997, passed by the learned Single Judge in SWP No. 94 of 1993 is hereby quashed and set aside. This appeal is al­lowed. SWP No. 94 of 1993 filed by the re­spondent-writ petitioner shall stand dis­missed. No order as to costs.

Srinagar

October 5-10-2001