The appellant, an Ex-Constable of the Jammu and Kashmir Armed Police, was dismissed from service in terms of proviso (b) to sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir corresponding to clause (b) of the second proviso to Article 311 of the Constitution of India. Sub-section (2) of Section 126 provides that no member of the civil service of the State or holder of a civil post under the State shall be dismissed or removed or reduced in rank except after enquiry, giving him reasonable opportunity of being heard in respect of the charges and, also, making representation on the penalty proposed. In terms of proviso (b) the sub-section "shall not apply . 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 inquiry".

Invoking the said proviso, the appellant was dismissed from service without enquiry. He filed writ petition, SWP No. 628/1992. The petition having been dismissed by the learned Single Judge, he has come in letters patent appeal.

The short facts of the case are that on 5th April, 1991, while he was posted as a guard at the telephone exchange Ishber Guptganga, Nishat, he proceeded on 30 days earned leave. On 20th April, 1991, he was taken into custody by the CBI in connection with a case relating to the kidnapping and murder of one Dharamvir Sharma, Inspector of Border Security Force on 26th October, 1990. FIR 105/1990 under section 302 RPC and section 3(2)(1) of Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA(P) Act] was registered at Nishat Police Station. The investigation of the case was later taken over by the CBI at the request of the State Government on 11th March, 1991 leading to registration of RC 4(S)/91-SIV/5V(SIC)-II by it. The investigation revealed that Inspector Dharmvir Sharma was posted in G. Branch of 24th Battalion of Border Sincerity Force in September, 1990. By virtue of his posting in G. Branch of 24th Battalion, it was his duty to collect information about the movement of militants. The appellant allegedly passed on information about his mission to the militants and helped them kidnap him. On 26th October, 1990 at about 10 a.m. when he (Dharmvir Sharma) moving in plain clothes, boarded a bus at Ishber Gupganga Nishat for Dalgate, four militants -- belonging to Hizbul Mujahideen and Kashmir Freedom Movement, kidnapped him at gun point and finally short him dead at about 7.30 pm. In course of investigation, accused Nazir Ahmad Bhat was arrested. He made confessional statement in terms of section 15 of TADA(P) Act in which he disclosed the names of his associates, including that of the appellant. He stated that he had supplied information about the nature of duty and activities of Dharmvir Sharma to the militants and helped them in his kidnapping. On the basis of the disclosure statement the appellant was arrested on 13th April, 1991. In his statement under section 15 of TADA (P) Act, he admitted his complicity in the kidnapping and eventual murder of Dharamvir Sharma. On 24th January, 1992 he was released on bail by the Designated Court, Srinagar. On 6th March, 1992, on completion of investigation, charge sheet was submitted in the TADA Court at Jammu under section 120-B read with section 364 and 302 RPC and section 3(3) of TADA (P) Act, 1987 against the appellant and others. In course of time, charges were framed against the accused, including the appellant, and the case is pending trial.

In the meantime, the appellant had been placed under suspension on 3rd July, 1991. The Commandant J&K Armed Police IX Battalion, Chenani, Jammu, took the view that in view of the prevailing situation it was not reasonably practicable to hold enquiry against the appellant and, accordingly, invoking the provisions of section 126 (2) proviso (b) of the Constitution of Jammu & Kashmir, dismissed him from ser