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1998 Supreme(J&K) 177
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
O.P. Sharma, J.
Barkat Hussain - Appellant
Versus
State Of J&K - Respondent
SWP No. 213/1995
Decided On : 25 May, 1998
The satisfaction of the disciplinary authority under section 126(2){b) of the State Constitution is final and cannot be questioned in a court of law unless it is shown to be arbitrary, malafide, or motivated by extraneous considerations.
Headnote:
CONSTITUTIONAL LAW - DISMISSAL FROM SERVICE - SECTION 126(2) OF THE STATE CONSTITUTION - SATISFACTION OF THE DISCIPLINARY AUTHORITY - REASONABLY PRACTICABLE TO HOLD AN INQUIRY - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, a Selection Grade Constable in the State Police, was dismissed from service by the 2nd respondent in exercise of powers under section 126(2){b) of the State Constitution. The order of dismissal was based on the satisfaction of the disciplinary authority that it was not reasonably practicable to hold an inquiry against the petitioner due to his involvement in militant and subversive activities.
Finding of the Court:
The court held that the satisfaction recorded by the disciplinary authority was not based on extraneous or irrelevant grounds and that the order of dismissal did not suffer from any legal infirmity. The court also held that departmental inquiry and criminal trial are independent of each other and can proceed simultaneously.
Issues: 1. Whether the satisfaction recorded by the disciplinary authority under section 126(2){b) of the State Constitution was based on extraneous or irrelevant grounds? 2. Whether departmental inquiry and criminal trial can proceed simultaneously?
Ratio Decidendi: 1. The satisfaction of the disciplinary authority under section 126(2){b) of the State Constitution is final and cannot be questioned in a court of law unless it is shown to be arbitrary, malafide, or motivated by extraneous considerations. 2. Departmental inquiry and criminal trial are independent of each other and can proceed simultaneously.
Final Decision: The petition was dismissed.
"Order No: 53 of 1995.
Dated 24.01.1995.
Whereas, SGCT, Barkat Hussain No: 1355/J, has indulged in militant /subversive activities.
2. Whereas, his consciously and willingly indulgence in anti-national/espionage activities is highly objectionable and prejudicial to the security of the State/Country;
3. Whereas, his retention in the department, in view of anti-national activities, is not feasible.
4. Whereas, in view of the present ongoing militancy in the State, I am fully satisfied that it would not be reasonably practicable to hold the regular departmental enquiry against this official on the reasons that witnesses could not be readily available or in a position to depose against the said official,
Therefore, I A.K. Suri, IPS, Inspector General of Police, Jammu Zone, Jammu, accordingly by virtue of the powers vested in me under section 126 of Constitution of J&K read with Article 311 of Constitution of India, do hereby dismiss SG Constable Barkat Hussian No:1355/J from service by virtue of section 126 clause (2) Poviso(b) of J & K Constitution read with Article 311 of Indian Constitution with immediate effect."
2. Petitioner challenges this order on the ground that the tenor and terms of the order indicate that the petitioner™s services have been terminated in the interest of security of the State, the power which could be exercised only by the Governor under clause(c) of section 126(2) of the State Constitution and not by the 2nd respondent. Another challenge to the impugned order is thrown on the ground that allegations are based on the accusations made in the challan filed under sections 3 and 4 of Terrorists and Disruptive Activities Act 1987 pending in the designated Court which could not be the basis of satisfaction under clause(b) of section 126(2) of the Constitution. It is also averred that since no enquiry could be held during the pendency of the criminal proceedings, the satisfaction recorded by the disciplinary authority that it is not reasonably practicable to hold enquiry is without jurisdiction.
3. In the counter filed by the respondents, it is stated that because of the involvement of the petitioner in militant and subversive activities, the departmental enquiry was dispensed with because it was not reasonably practicable to hold enquiry for the reasons recorded in the order. Reluctancy of the witness to depose against the petitioner in the existing circumstances is one of the grounds to justify dispensing with the enquiry.
4. The petitioner, it was admitted, was first arrested in FIR No:50 of 1991 registered under TADA, 1987 and admitted to bail on 14.9.1991. Meanwhile he was detained under the J&K Public Safety Act, 1987(hereinafter the PSA) for a period of two years, but he was again detained under PSA for a period of 14 months which expired on 30.10.1993. All this material was available with disciplinary authority who after examining it, came to the conclusion that it was not reasonably practicable to hold an enquiry against the petitioner.
5. Mr. Malik, appearing for the petitioner, argued that dismissal order of the petitioner is bad because reluctance of the witnesses to dispose in the departmental enquiry cannot be a ground to invoke Clause(b) of Section 126(2) of the State Constitution. He also challenges the order impugned on the ground that such a power could be exercised only under Clause(c) of the second proviso of section 126(2) of the State Constitution and not by the authority competent to dismiss or remove the petitioner.
6. The argument, though ingenious, is fallacious because para 2 of the order is only the substances of allegations and not the basis on which the satisfaction that it is not reasonably practicable to hold enquiry is
