The main legal point established is that the dismissal of a government employee under Section 126 of the Constitution of erstwhile State of Jammu and Kashmir can be justified if the competent authority has valid reasons for not holding an inquiry, especially in cases where the employee's conduct poses a threat to public order and peace.

JUDGMENT :

Oswal ‘J’

1. The appellant was posted as Assistant Accounts Officer in the Sericulture Department of Government of J&K and vide order dated 19.10.2016, the respondent No.1 by invoking clause (b) of proviso to sub-section (2) of Section 126 of the Constitution of erstwhile State of J&K, dismissed the appellant from the service with immediate effect.

2. The appellant had assailed the aforesaid order of his dismissal by way of a writ petition bearing SWP No.2227/2016 inter alia on the grounds; that the order impugned was not passed in accordance with the provisions contained in clause (b) of proviso to sub-section (2) of Section 126 of the Constitution of erstwhile State of J&K that the name of the appellant did not figure in FIR No.39/2016 and that the order of dismissal was passed for extraneous considerations.

3. The respondents filed their response before the learned Writ Court stating therein that the appellant was found involved in anti-national activities such as taking active part in causing disturbance and disorder to the public peace, intimidation to general public, shopkeepers to observe shut down amid calls given by separatists and instigating youth to indulge in stone pelting as reported in the dossier submitted by the Additional Director General of Police, CID, J&K, Srinagar, vide communication dated 22.09.2016 along with other related documents. It was also reported that on 05.08.2016, the appellant had taken active part in anti-social, anti-national activities with the intention of creating law and order situation and exposing human life to threat, pelted stones upon the police as well as CRPF personnel at Alamdar Colony near P/S Cherar-e-Sharief, as a result of which the police officers/officials and CRPF personnel sustained injuries. The appellant was booked in FIR No.39 of 2016 under Sections 147, 148, 149, 336, 332, 427 of RPC registered with Police Station, Cherar-e-Sharief. The appellant being a government employee was not expected to indulge in the aforesaid activities and rather was supposed to maintain absolute integrity, devotion to duty and do nothing which was unbecoming of Government employee. The activities of the appellant were not only aimed at questioning the sovereignty and integrity of India but were also in violation of Rule 14 and 20 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971. In view of the prevailing situation and the charged atmosphere including threat perception to witnesses, it would not have been feasible for the witnesses to depose in case of an enquiry thereby rendering the possibility of procuring attendance of the witnesses impossible and in view of that situation, the competent authority was satisfied to dispense with the enquiry, as holding of enquiry against the appellant was not practicable in the given facts and circumstances. The competent authority as such by invoking power under clause (b) of the proviso to sub-section (2) of Section 126 of the Constitution of erstwhile State of Jammu and Kashmir, dismissed the appellant from service. The stand of the respondents is that all the constitutional requirements have been duly followed by them while issuing the impugned order of dismissal.

4. After considering the rival submissions made by the learned counsel for the parties, the learned Writ Court vide judgment dated 23.10.2019 dismissed the writ petition preferred by the appellant.

5. Aggrieved of the judgment dated 23.10.2019 passed by the learned Writ Court, the appellant has assailed the same on the following grounds:

(I) That the impugned judgment deserves to be set aside as the Writ Court has not appreciated the unblemished service record of the appellant;

(II) That the judgments relied upon by the learned Writ Court were not applicable in the facts and circumstances of the case as there is fundamental difference between the position of the members of the Armed Forces and that of members of civil services and the constitutional protection has been