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2019 Supreme(J&K) 298
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohammad Magrey, J.
Manzoor Ahmad Bhat – Appellant
Versus
State and Others - Respondent
SWP No.2227/2016
Decided on 23.10.2019
Advocate Appeared:
For the Petitioner(s):Ms Asma Rashid, Advocate
For the Respondent(s):Mr. D. C. Raina, Advocate General with Mr. Rais-ud-din Ganai, GA
Headnote:
Constitution of India, 1950 - Article 311 - Jammu and Kashmir Government Employees Rules, 1971 - Rule 14 and 20 - Enquiry - Charged atmosphere - Petitioner before Court is stated to have been working as Assistant Accounts Officer in Accounts Subordinate Service and in his capacity as such he was served with Government Order Finance impugned by virtue of which petitioner has been dismissed from service by invoking clause of Proviso to Section Constitution of Jammu and Kashmir that correspondents to Article of Constitution of India - inquiry in matter has also been found to be impracticable in circumstances has been dispensed – Held Condition precedent for application of clause is satisfaction of the disciplinary authority that ‘it is not reasonably practicable to hold’ inquiry contemplated by clause of Article - What is pertinent to note is that words used are not reasonably practicable’ and not impracticable Thus whether it was practicable to hold inquiry or not must be judged in context of whether it was reasonably practicable to do so It is not total or absolute impracticability which is required by clause - What is requisite is that holding of inquiry is not practicable in opinion of reasonable man taking reasonable view of prevailing situation… reasonable practicability of holding an inquiry is matter of assessment to be made by disciplinary authority - Such authority is generally on spot and knows what is happening - It is because disciplinary authority is the best judge of this that clause of Article makes decisioin of disciplinary authority on this question final - Examining relevancy of reasons court will consider situation which according to disciplinary authority made it come to conclusion that it was reasonably practicable to hold inquiry - If court finds that reasons are irrelevant then recording of its satisfaction by disciplinary authority would be an abuse of power conferred upon it by clause and would take case out of purview of that clause and impugned order of penalty would stand invalidated - In considering relevancy of reasons given by disciplinary authority court will not sit in judgment over them like court of first appeal - In order to decide whether reasons are germane to clause court must put itself in place of disciplinary authority and consider what in prevailing situation reasonable man acting in reasonable way would have done – Petition dismissed
Judgment
1. By the present writ petition, the petitioner seeks a twofold relief; one is that the Government Order No. Finance 229-F of 2016 dated 19. 10.2016, for short impugned order, be declared to be non-est in law, therefore, not to be given an effect, thereby allowing the petitioner to continue in service and the second is that the order impugned be quashed.
2. To understand the controversy, as raised in the writ petition in hand, a brief look at the events leading to the filing of the writ petition would be desirable, thus:
3. The petitioner before the Court is stated to have been working as Assistant Accounts Officer in the Accounts Subordinate Service and in his capacity as such he was served with a Government Order No. Finance 229-F of 2016 dated 19.10.2016, impugned herein, by virtue of which the petitioner has been dismissed from service by invoking the clause (b) of Proviso to Section 126 (2) of the Constitution of Jammu and Kashmir that correspondents to Article 311 (2) of the Constitution of India. The inquiry, in the matter has also been found to be impracticable in the circumstances, therefore, has been dispensed with. The order of dismissal of the petitioner has been issued for his alleged misconduct, subversion and anti-national activities.
4. The impugned order of dismissal is questioned in the writ petition in hand inte alia on the grounds that the constitutional provision taken recourse of by the respondents in dismissing the services of the petitioner must conform to the parameters laid down by the Hon’ble Supreme Court that the conduct of the delinquent employee justifies the dismissal/ removal or reduction in rank; to record satisfaction that holding of enquiry was impracticable on the basis of material and the third parameter is that the competent authority must record the reasons of the requisite satisfaction in writing; the order impugned does not conform to the said parameters, rendering the order impugned arbitrary and colourable exercise of power based on extraneous considerations; that basing the impugned order on the contents of FIR no. 39 of 2016 registered in Police Station Chrare Sharief, on 5th August, 2016, the invoking of the provisions of clause (b) of Proviso to Section 126 (2) of the Constitution of Jammu and Kashmir gets vitiated in law; that the name of the petitioner does not figure in the FIR no. 39/2016, therefore, the impugned order is mechanically issued; that there were no reasons for dispensing the enquiry in the matter; issuance of the impugned order is misuse of the authority of respondent no. 1. Etcetera.
5. Upon notice, the respondents appeared and reply on behalf of respondent no. 1 was filed.
6. Heard learned counsel for the parties, and perused the material made available.
7. The Court, in terms of order dated 10.10.2019, in view of the submission made by the learned counsel for the petitioner that petitioner’s name does not figure as an accused in case FIR no. 39/2016 registered at Police Station, Chrar-e-Sharief which formed the basis for issuing the impugned oral, asked the learned State Counsel to ascertain from the police concerned the status of the FIR vis-à-vis the figuring or otherwise of the petitioner in the FIR no. 39/2016 of Police Station Chrar-e-Sharief.
8. Learned State Counsel sought and was granted permission to file the status report in the open Court in compliance to the order dated 10.10.2019 and accordingly the status report was taken on record. Perusal of the status report would reveal that the name of the petitioner does figure in the FIR no. 39/2016, therefore, the plea taken by the petitioner that he does not figure in the FIR does not survive.
9. The learned counsel for the petitioner, while reiterating the grounds of challenge, submits that the impugned order is bad in law as it does not reflect anywhere as to how the satisfaction was derived by the competent authority to dispense with the enquiry in the matter.
10. On the other hand, Mr D. C.
