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2013 Supreme(J&K) 724
JAMMU & KASHMIR HIGH COURT AT SRINAGAR
Hasnain Massodi, Dhiraj Singh Thakur, JJ.
Tota and Ors. - Appellant
Versus
State of J&K and Ors. - Resopndent
LPA No. 116 of 2006
Decided On : 11-07-2013
For the Appellant :Z.A. Qureshi, Advocate
For the Respondents: R.A. Khan, A.A.G.
The subjective satisfaction of the Governor under Section 126(2)(C) is not open to judicial review, and the exclusionary clauses of the Proviso to sub-section (2) of Section 126(2) are crucial in determining the legality of dismissal.
Headnote:
Dismissal - Enquiry under Section 126(2)(C) of the Constitution of J & K - Section 126(2)(C) of the Constitution of J & K - Article 311 of the Constitution of India - [Section 126(2)(C)] - [Summary of the acts and sections referenced and discussed by the court]
Fact of the Case:
The petitioner, a police officer, was dismissed from service under Section 126(2)(C) of the Constitution of J & K for his alleged involvement in activities detrimental to the security of the State. The dismissal was challenged in a writ petition, which was subsequently dismissed by the Writ Court.
Finding of the Court:
The Court found that there was sufficient material before the Governor to dispense with the enquiry under Section 126(2)(C) and held that the order of dismissal did not suffer from non-application of mind. The Court refused to enter into the factual arena and dismissed the writ petition.
Issues: The issues raised included the sufficiency of material before the Governor, the findings in a similar case, and the petitioner's trial.
Ratio Decidendi: The Court emphasized the exclusionary clauses (a), (b), and (c) of the Proviso to sub-section (2) of Section 126(2) of the Constitution of J & K. It highlighted the subjective nature of the satisfaction arrived at by the Governor and the importance of maintaining discipline in the police force.
Final Decision: The appeal was found to be without merit and was dismissed.
Dhiraj Singh Thakur, J.:-
1. This Letters Patent Appeal is preferred by the appellants against the judgment and the order dated 20th May, 2005, passed by the learned Writ Court in SWP No. 2044/1992, whereby the writ petition challenging the order of dismissal of the petitioner from service has been dismissed. With a view to understand the controversy in its correct perspective, it is necessary to, briefly, state the material facts as they emerge from the records of the case:
SWP No. 2044/92 was filed by one Mohammad Shaft Wani challenging the order dated 31st December, 1991, issued by the respondents, whereby he was dismissed from service by dispensing with the enquiry under Section 126(2)(C) of the Constitution of J & K.
The allegation against the petitioner was that while he was posted as Station House Officer at Police Station, Nowhatta on 29th October, 1991, when Nowhatta area was under crackdown by the para-military forces, he was found travelling in a police Jeep along with driver, two constables Mohammad Saleem Khan and Mushtaq Ahmad and one militant from whom arms and ammunition was recovered.
The order of dismissal, which was impugned in the writ petition, issued vide Government order No. Home/88/ISA of 1991 dated 31.12.1991, reads as under:
“Whereas the Governor of Jammu and Kashmir is satisfied that the conduct and activities of Sub-Inspector Mohd. Shaft No. 624/NGO, SG. Const. Mushtaq Ahmad No. 222/s and Const. Mohd. Saleem Khan No. 1941/S are detrimental and prejudicial to the security of the State and, therefore, it is necessary that the said persons 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 proviso of 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 above said person Sub-Inspector Mohd. Shafi No. 624/NGO, SG. Const. Mushtaq Ahmad No. 222/s and Const. Mohd. Saleem Khan No. 1941/5.
Now, therefore, the Governor in accordance with the provisions of section 126 of the Constitution of Jammu and Kashmir read with article 311 of the constitution of India hereby dismiss the said Sub-Inspector Mohd. Shafi No. 624/NGO. S.G. Const. Mushtaq Ahmad No. 222/S and Const. Mohd. Saleem Khan No. 1941/S from services with immediate effect.”
The aforementioned order of dismissal came to be challenged by the petitioner before the learned Writ Court who, upon perusal of the relevant record, came to a conclusion that there was sufficient material before the Governor on the basis of which a decision for dispensing with the enquiry in terms of Section 126(2)(c) of the Constitution of J & K had been taken and, therefore, held that the order impugned in the writ petition did not suffer from non-application of mind.
The learned Writ Court, therefore, while confining itself on this aspect, refused to enter into any factual arena as had been projected by the petitioner that on the said date i.e. 29th October, 1991, upon being requested by a lady who claimed that she was undergoing labour pain and that she was required to be shifted to a hospital, he came forward to help the said lady and on the way to hospital, the security forces intercepted the jeep and arrested the person, who claimed to be the brother of the lady, from the said jeep on the ground that he was a militant. The Writ Court, consequently, dismissed the writ petition and hence the present Letters Patent Appeal.
During the pendency of the writ petition, petitioner Mohammad Shafi died and in his place his legal representatives, namely, Mst. Tota (Widow), Aurfee (daughter), Kaisar Ahmad Wani and Parvez Ahmad Wani (sons) were brought on record as petitioners.
2. Before this Court, the counsel for the appellants challenges the judgment and the order of the Writ Court on the following grounds:
