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2006 Supreme(J&K) 162
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
B.A. Khan,J.P. Singh, JJ.
State Of J&K & Anr. - Appellant
Versus
Shabir Ahmed Bhat - Respondent
LPAOW No. 27/2001
Decided On : 09 June, 2006
Advocate For Appellant: M.A. Rathore
Advocate For Respondent: Ab. Bari
The judgment established the limits of judicial review, emphasizing the permissibility of examining the sufficiency and relevance of the material for dismissal, and the need for strong proof of mala fides.
Headnote:
Judicial Review - Dismissal from Service - Constitution of Jammu & Kashmir - Section 126(2) - Article 311(2) of Constitution of India - Sufficiency of Material - Mala Fide Exercise of Power
Fact of the Case:
The case involved the dismissal of a Junior Engineer from service under Section 126(2) of the Constitution of Jammu & Kashmir. The dismissal was challenged on the grounds of lack of adverse records, absence of show-cause or inquiry, and arbitrary action by the Governor.
Finding of the Court:
The court held that the judicial review was permissible, and the sufficiency of the material on which the Governor had acted could be examined. The court found the allegations against the petitioner lacking credibility and the satisfaction recorded by the Governor as wayward and mala fide. The court set aside the findings of the Single Judge on certain issues but allowed the writ petition by directing the reinstatement of the respondent.
Issues: The issues included the permissibility of judicial review, sufficiency of material for dismissal, and the mala fide exercise of power by the Governor.
Ratio Decidendi: The court established the limits of judicial review, allowing examination of the material for relevance and mala fides. It emphasized the need for strong proof of mala fides and set aside findings that exceeded the jurisdiction of the court.
Final Decision: The appeal was disposed of, allowing the writ petition by directing the reinstatement of the respondent. The State Government was left free to proceed against the respondent after holding a requisite inquiry.
1. State-appellants have appealed to us to question writ Court judgment dated 14.08.1997 of a learned Single Judge of this Court quashing Government Order No.625-GR of 1990 dated 04.05.1990 whereby, respondent- Shabir Ahmed, who had been working as Junior Engineer in Public Health Engineering Department was dismissed from service under Section 126(2) of Constitution of Jammu & Kashmir.
2. To put briefly, facts leading to the filing of this appeal may be stated, thus;
3. A writ petition OWP No. 363/1990 was filed in this Court saying that the respondent-writ petitioner, who had been working as Junior Engineer on ad hoc basis in the Hydraulic Wing of-the Engineering Department of the State, was appointed as Junior Engineer vide Government Order No. PW-412 of 1988 dated 10.06.1988. His services were later terminated vide Order No. 625-GR of 1990 dated 04.05.1990 on the ground that the Governor of the State of J&K had been satisfied that the activities of the writ petitioner were detrimental and prejudicial to the security of the State, which warranted his dismissal from service.
4. The order aforementioned was questioned in the writ petition on the ground that there was nothing adverse against the writ petitioner in the police records and that neither any show-cause had been issued nor inquiry held before terminating his services. The writ petitioner alleged that the Governor of the State had acted arbitrarily and in derogation of the principles of natural justice in passing the order impugned in the writ petition.
Dispensation of inquiry by the Governor, too, was questioned by the petitioner. The appellants did not file any counter affidavit to the writ petition. They, however, appear to have been satisfied with the production of records alone.
5. A learned Single Judge of this Court raised three questions for deciding the issues raised by the parties. These questions read, thus;-
"(i) Is the power exercisable by the Governor ill terms of clause (c) of sub-sec (2) of sec. 126 of the Constitution of Jammu & Kashmir open to judicial review?
(ii) Is the material available against the petitioner, of such nature as not to allow an inquiry to be conducted in the case?
(iii) Is the material relevant and sufficient to lead to a conclusion that the petitioners activities are prejudicial to security of the State?"
6. After discussing Article 311(2) of Constitution of India, Tulsi Ram Patels case reported as AIR 1985 SC 1416; a Division Bench decision of this Court in `Rais Ahmed Gazi v. State and ors. reported as 1997 SLJ 178 and various other aspects of the matter, the learned Single Judge held that the judicial review was permissible in the case and question of sufficiency of material on which the Governor had acted, could be gone into by the Court. The learned Single Judge went to the extent of saying that the Court can also see for itself as to whether or not the material against the petitioner was such, which would be prejudicial to the security of the State.
7. The learned Single Judge, accordingly, after evaluating the merits of the case, held that the allegations against the writ petitioner, per se, were wearing thin of their credibility. Learned Single Judge held that the Governor had not applied his mind in recording the satisfaction while directing the removal of the writ petitioner. It would be apt to quote what had been held by the learned Single Judge, on facts, to annul the satisfaction recorded by the Governor. This finding reads thus:-
"The allegation as reflected above against the petitioner is that he was arrested in FIR No. 69/88 under sec. 3/4 TADA P/S Rajbagh. During the course of interrogation, according to the dossier he disclosed that he had motivated two others to undergo training in Pak-occupied Kashmir. It is clear that he has not gone for training himself and was not formally detained under the provisions of Public Safety Act. The allegation emanates out of his own statement, which ordinarily could not
