T.S. Doabia, J.Counsels heard. Admitted.

Petition is taken up for final disposal with the consent of the parties.

2. The petitioner having been found to be on unauthorised absence w.e.f. 3rd of February, 1990 was visited with an order of termination. This was passed on 8th December, 1990. This order came to be passed in exercise of powers conferred under section 126(2)(b) of the Jammu and Kashmir Constitution. The petitioner submitted a representation. This representation stands rejected. An order in this regard was passed on 2.9.1993. The petitioner challenges the order of termination.

3. The petitioner submits that he was posted at police station, Nowhatta, Srinagar. It is his case that on account of militants threats, his family had to migrate to Jammu. He submits that he also received similar threats. A copy of one such threatening letter said to have been received by the petitioner has been placed on the record as Annexure `L. The petitioner submits that as his family had migrated to Jammu, therefore, he had gone there to enquire about them. In the meantime, the order of termination came to be passed against him.

4. Even though the writ petition is pending in this Court since 1993, steps were not taken with a view to file counter. On 23rd of July, 1996, there was a positive direction to the effect that the counter be filed within six weeks. This has not been done. Again on 12th of August, 1997, it was noticed that counter has not been filed. It is under these circumstances, the petition which has been admitted is taken up for final disposal. The questions which arise for determination are :

(i) As to whether the power could be exercised in terms of Section 126(2)(b) of the Jammu and Kashmir Constitution;

(ii) As to whether there was sufficient reason for denial of procedural opportunity to the petitioner to show cause;

(iii) Whether mere absence can be a ground to snap the relationship of master and servant.

Before going into above matters it would be apt to notice order of termination also. It reads as under :

"Whereas you, Constable Roshan Lal No. 1644/S were posted in P/S Nowhatta with effect from 2.12.1989.

2. Whereas as intimated by SHO P/S Nowhatta you have unauthorisedly absented from lawful duties w.e.f. 3.2.1990 and you continue to remain at large till date without any lawful excuse which besides being an act detrimental to the upkeep of discipline is gross violation of the public service conduct rules.

3. Whereas despite repeated notices, you have failed to rejoin lawful duties and in view of the present conditions prevailing in J&K in general and the Valley in particular, I am satisfied that it is not reasonably practicable to hold enquiry into your misconduct which on the very face of it is violation of the Police Rules read with Govt. service conduct rules.

Therefore I, in exercise of the authority under Article 126(2)(b) of the J&K Constitution vested in me, in view of your aforesaid gross misconduct hereby order the termination of your service from the Department w.e.f. the date you have unauthorisedly deserted your duties."

Is the above order within the four corners of Section 126(2)(b) and (3) of J&K Constitution This provision reads as under :

126. "Dismissal, reduction or removal of persons employed in civil capacities under the State :

(1) No person who is a member of a Civil Service of the State or holds a Civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed after such enquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed but only on the basis of the evidence adduced during such inquiry.

Provided that this subsection shall not apply

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing it is not reasonably practicable to hold such enquiry: or

(c) Where the "Governor" is satisfied that in the interest of the security of the State, it is not expedient to hold such enquiry.

(3) If, in respect of any such person as aforesaid a question arises whether it is reasonable to hold such enquiry as is referred to in subsection (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

The provisions of Section 126(2) and (3) of J&K Constitution are similar to the provision of Article 311(2) of Constitution of India.

5. A Constitution Bench of the Supreme Court in Arjun Chaubey v. Union of India, AIR 1984 SC 1356 quashed the order passed by the employer who exercised power under proviso (b) to Article 311 of the Constitution of India on the ground that no material was available with the said authority for satisfying itself that it was not reasonably practicable to hold inquiry.

6. The scope of Article 311(2) of the Constitution was again considered by the Supreme Court of India in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 . What is relevant for the purposes of this petition is noticed as under :

"A disciplinary authority is not expected to dispense with the disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry because the Departments case against the Government Servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the enquiry as also the order imposing penalty."

7. In Sardari Lal (Dead) through L.Rs. v. Union of India, 1987(4) SCC 114, in a challenge to or orders of dismissal passed under clause (c) of the second proviso to Article 311(2), after referring to the decision in Tulsiram Patel (supra), the Supreme Court of India observed :

"The record of the case produced before us clearly indicates that the reason has been recorded though not communicated. That would satisfy the requirements of the law as indicated in Tulsiram Patels case. The plea of mala fides as had been contended before the High Court and casually reiterated before us arises out of the fact that typed orders dated June 3, 1971, were already on record in the file when the papers were placed before the President; such a contention is without any substance".

8. In Jaswant Singh v. State of Punjab, AIR 1991 SC 385 : 1991(1) SCT 125, the provisions of Article 311 were commented upon. It was said :

"Thus the English doctrine incorporated in Article 310 which is qualified by the opening words "except as expressly provided by this Constitution" is subject to Article 311(1) and (2) which contains safeguards against termination from service. However, the second proviso to Article 311(2) is again in the nature of an exception and lays down that in cases catalogued in Clauses (a), (b) and (c) thereof the requirement of an inquiry can be dispensed with. The scope of Articles 310 and 311 of the Constitution was examined by this Court in Tulsiram Patel (supra), wherein by majority this Court held that once the requirements of the relevant clause of the second proviso are satisfied, the services of a Civil Servant can be terminated without following the audi alteram partem rule. It was held that since the requirement of Article 311(2) was expressly excluded by the second proviso, there was no question of introducing the same by the back door. On this line of reasoning, the majority held that Challapans case, 1976(1) SCR 783, was not correctly decided. It, therefore, took the view that it is not necessary to offer a hearing to the civil servant even on the limited question of punishment. Insofar as Clause (b) is concerned, this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any inquiry "not reasonably practicable", and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. Of course the question of practicability would depend on the existing factsituation and other surrounding circumstances, that is to say, that the question of reasonable practicability must be judged in the light of the circumstances prevailing at the date of the passing of the order. Although clause (3) of that Article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a Court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the enquiry. Also see Satyavir Singh v. Union of India, 1985(4) SCC 252 : AIR 1986 SC 555 , Shivaji Atamji Sawant v. State of Maharashtra, 1986(2) SCC 112 : AIR 1986 SC 617 and Ikramuddin Ahmed Borah v. Superintendent of Police, Darrang, 1988 (Supp. 1) SCC 663 : AIR 1988 SC 2245 ."

It was further observed :

"It was incumbent on the respondents to disclose to the Court of the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry."

It was concluded :

"The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."

9. In Chief Security Officer and others v. Singsan Rabi Das, 1992(1) SCT 595 (SC) 140, the Supreme Court of India was of the view that there is no justification to dispense with the enquiry merely because the disciplinary authority thought that it was not feasible or desirable to procure witnesses of the security/other railway employees since that will expose these witnesses and make them ineffective in future and if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humilitation and insults and even their family members may also become targets of violence.

10. A.K. Koul v. Union of India, 1995(3) SCT 15, is another decision wherein it was said :

"In our opinion, therefore, in a case where the validity of an order passed under clause (c) of the second proviso to Article 311(2) is assailed before a court or a Tribunal it is open to the Court or the Tribunal to examine whether the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds."

11. Some other decisions given by various High Courts be seen. In Union of India v. Subramanian, 1985(1) SLR 238, the action to dispense with the enquiry by declaring it to be reasonably impracticable to hold, was declared to be invalid. The Court held that the constitutional requirement of Article 311(2) cannot be converted into a dead letter merely because employees have developed class or group feelings.

12. A learned Single Judge of the Kerala High Court quashed the dismissal of an employee from service which was brought about by invoking proviso (c) to Article 311(2) of the Constitution of India on the ground that the petitioner believed in the philosophy of violence and was also an accused in a murder case and the commission of murders was a part of his philosophy. It was held that there was nothing to show that holding of an inquiry into the conduct of the petitioner was reasonably linked with the interest of security of the State. This judgment of the learned Single Judge which is reported as (1984)2 SLR 669 was upheld in President of India v. Kunjappan, 1985(1) SLR 494, by a Division Bench. It was observed :

"The High Court has the power to ascertain whether the opinion formed by the authority has any factual basis and the conditions precedent to its formation were there. In this case the President of India has no doubt powers under clause (c) of the 2nd proviso to Article 311(2) of the Constitution to dismiss a member of the Civil Service of the Union without an enquiry if and only if he is satisfied that in the interest of the security of the State it is not expedient to hold an enquiry into the charges against him. So, two conditions must exist, namely; (i) the security of the State is involved; and (ii) in view of that it is inexpedient to conduct enquiry."

13. In Kedarnath Singh v. Union of India and others, 1984(2) SLR 347, a Division Bench of the Allahabad High Court while interpreting Rule 47 of the Railway Protection Forces Rules, 1959 which is inpari materia with proviso (b) to Article 311(2) rejected the contention of the Union of India, that the inquiry was not reasonably practicable because the only eyewitness to the alleged incident was not willing to come forward and give testimony against the delinquent. It was held :

"Practicability is not to be confused with the expediency or the chances of success of the enquiry contemplated against the delinquent member of the Force. Rule 44 embodies a sound principle of natural justice providing for a full and fair opportunity to the employee against whom it is proposed to award a major penalty which includes dismissal or removal from service. Rule 47(b) has, therefore, to be construed strictly as it enables the disciplinary authority to give a complete gobye to the aforesaid principles of natural justice embodied in Rule 44 and straightaway, on the material collected ex parte and behind the back of the delinquent member, to remove or dismiss him. In view of what has been stated above we are clearly of the view that Rule 47(b) was illegally applied in the case of the petitioner. The grounds disclosed by the Assistant Security Officer were not germane to the consideration on account of which enquiry under Rule 44 could be dispensed with."

14. In Shri Naresh Kumar v. Commissioner of Police, 1992(7) SLR 177, it was held that dismissal of Constables without holding a regular enquiry on the ground that the employees were allegedly of desperate character and their continuation in service was hazardous to police was unsustainable when viewed in the light of the provisions contained in Article 311(2)(b) of the Constitution of India.

15. The scope of these provisions was considered by Justice Syed Saghir Ahmed, former Chief Justice of this Court and now judge of Supreme Court of India in Ghulam Mohiuddin v. State of J&K, 1995 SLJ 212. Paras 6, 8, 9 and 10 deal with the same situation as are there in this case. These paras read as under :

"The proviso to Section 126(1) of the Jammu and Kashmir Constitution contemplates a departure from the normal rule of holding an enquiry into the charges against the government servant."

"The Constitutional provisions referred to above require that an enquiry shall be held against a Government servant into charges of misconduct for which he is sought to be removed from service and that in that enquiry he shall be afforded an opportunity of hearing which necessarily includes inter alia the right to file a reply to the charges and to lead evidence in support of the reply and also the right to crossexamine the witnesses if any produced against him in that enquiry."

"The quantum of enquiry required in a given case of the procedure which has to be followed in the enquiry is not under my consideration as the enquiry itself in this case was dispensed with and therefore, the question whether the enquiry was properly dispensed with is one of the questions on which the fate of this petition hinges."

"As pointed out earlier, a Government servant is entitled to the protection contemplated by Article 311(2) and therefore he cannot be dismissed from service unless he has been given an opportunity of hearing. The rule of exception is contained in the proviso to Article 311(2) which is akin to proviso Section 126(2) of the Jammu and Kashmir Constitution."

16. This aspect of the matter has also been considered in SWP 667 of 1994 Sayeed Mohd. v. Sr. Superintendent of Police, Udhampur and others decided on 27.5.1986 and SWP 828 of 1995 Janmez Singh v. State of Jammu and Kashmir and others, decided on 27.11.1996. The opinion expressed was that it is incumbent on those who support the order to show that satisfaction is based on certain objective facts and is not out of the whim and caprice of the concerned officer.

17. Some of the cases where power was found to be rightly exercised under Article 311(2), second proviso be also noticed.

A Head Constable was found to have links with subversive elements. Allegation was that he was making preparation to murder some senior police officers. There was reasonable apprehension that witnesses would not come forward to depose against him. On the basis of the material which was placed before the High Court an opinion was expressed by the High Court that power has been rightly exercised. This decision so given by the High Court was not interfered with by the Supreme Court of India in Kuldip Singh v. State of Punjab, 1996(10) SCC 659 : 1996(4) SCT 595. Similar opinion has been expressed in the case reported as Union Territory of Chandigarh v. Mohinder Singh, 1997(3) SCC 68 : 1997(2) SCT 39.

18. A scrutiny of the relevant provisions and judicial precedents noted above lead to the coming to the following conclusions :

(i) that enquiry can be dispensed with when a finding is recorded that in the facts and circumstances of the case, it is not possible to hold an enquiry.

(ii) that in the interest of the security of the State it is not expedient to hold an enquiry.

(iii) the decision to not to hold enquiry is not final; this decision is open to judicial review.

The exercise of power under this provision would be bad :

(i) Where the authority whose satisfaction is in question has totally failed to apply its mind to relevant considerations.

(ii) Where the satisfaction is based on extraneous or irrelevant considerations.

(iii) Where the satisfaction is arrived at by the application of a wrong test.

(iv) Where the satisfaction is based on materials which are of no rationally probative value.

19. I am of the opinion that this was not a case where the provisions of Section 126(2)(b) of Jammu and Kashmir Constitution could be made applicable. The enquiry can be dispensed with if the circumstances are such which show that holding of enquiry is not possible.

20. In this case the petitioner was found to be not attending to duties. There is nothing beyond this act of absence. No material has been disclosed to show as to what prevented the holding enquiry. As to why it was not practicable to hold the enquiry has not been disclosed. This is not a case where section 126(2) of Jammu and Kashmir Constitution came to be attracted. As such the order of termination cannot be sustained. Apart from this mere absence per se cannot be made ground for termination. This aspect of the matter has been considered in detail in SWP No. 792 of 1994, decided on 7th of April 1998, Manohar Lal v. State of Jammu and Kashmir and others. The view expressed in the above case and the judicial precedents in support thereof are being noticed below :

(i) Absence from duty is not per se misconduct.

See :

(a) Union of India v. J. Ahmed, AIR 1979 SC 1022 .

(b) Flaxo Laboratories (P) Ltd. v. Presiding Officer, Labour Court, Meerut, AIR 1984 SC 505 .

(c) S. Govinda Menon v. Union of India, AIR 1967 SC 1274 .

(d) A.L. Kalra v. P&E Corpn. of India Ltd., AIR 1984 SC 1361 .

(e) Supdt. of Police v. Joy Dev Roy, 1996(4) SCT 79.

(f) A. Sudhakar v. Executive Director, 1994(4) SCT 104.

(g) Kamlesh Sharan v. Union of India, 1990(3) SLR 616.

(h) Gurcharan Singh v. Presiding Officer, 1997(4) SCT 768.

(i) State of Punjab v. Aman Kumar, 1997(1) SCT 256.

(j) Gurdev Singh v. State, 1976(2) SLR 442.

(k) Bhim Singh v. Haryana State, 1991(3) SLR 721 : 1991(1) SCT 621.

(l) State of Punjab v. Parkash Chand, 1992(1) SCT 123.

(ii) Where an employee proceeds on leave and does not resume duties even then services cannot be brought to an end without holding enquiry. See :

(a) Saraswati Industrial Syndicate v. Jai Bhagwan Jain, 1994(4) SCT 25.

(b) A. Sudhakar v. Executive Director, 1994(4) SCT 104.

(c) Nagar Palika Parishad Lahar v. Ram Naresh Rayonya, 1994(4) SCT 261.

(d) Rolston John v. Central Government Industrial Tribunal, AIR 1994 SC 131 .

(e) Union of India v. Giriraj Sharma, AIR 1994 SC 215 .

(f) Gursewak Singh v. P.O. Labour Court, Bhatinda, 1997(1) SCT 661.

(g) T. Jagdishwara v. Manager Madanpalli Spinning Mills, Chittoor, 1997(1) SCT 319 CAP.

(h) Anjula Pal Roy v. State of W.B., 1996(4) SCT 424.

(i) Dr. (Miss) Malti Batra v. State, 1997(3) SCT 284.

(iii) Even if there is some service regulation visualising concept of automatic termination in case of absence even then enquiry is required to be held. See :

(a) Atul Krishana Kundu v. Union of India, 1994(3) SCT 753.

(b) Jai Shankar v. State of Rajasthan, AIR 2966 SC 492.

(c) Deokinandan Prasad v. The State of Bihar, AIR 1971 SC 1409 .

(d) Devi Kewal Jain v. Premier High School, 1995(2) SCT 514.

(e) Pepsu Road Transport Corporation v. Presiding Officer, Labour Court, 1995(1) Lab. IC 88 : 1994(4) SCT 444.

(f) Sita Ram v. Presiding Officer Labour Court, 1995(4) SCT 321.

(g) Khair Din v. State of Jammu and Kashmir, 1995(1) SCT 566.

(h) Mohd. Aslam v. State of Jammu and Kashmir, 1996(3) SCT 538.

(iv) Where order of reinstatement is ordered then preponderance of view is that back wages are not to be allowed. See :

(a) State of Punjab v. Om Parkash, 1997(3) SCT 186 (P&H).

(b) M. Anuachalam v. T.N. Elec. Board, 1997(3) SCT 565 (Mad.).

(c) Govt. of Tamil Nadu v. K. Rajaram Appaswami, 1997(3) SCT 67 SC.

(d) Punjab State Electricity Board v. Naresh Chand, 1996(1) SCT 832.

(e) Smt. Veena Sikha v. State of Haryana, 1996(4) SCT 741.

(v) Again where order of termination is set aside then the competent authority should be left free to decide as to whether it wishes to leave the matter as it is or wants to hold further enquiry.

(vi) The order of termination has to preceded by hearing and the order so passed has to be reasoned one. See :

(a) Devi Kewal Ram Madrani v. Sr. High School, 1955(2) SCT 514.

(b) Rajesh Kumar Tripathi v. State of U.P., 1993(3) SCT 274.

(c) S.N. Mukherjee v. Union of India, 1991(1) SCT 241.

(d) A.L. Kalra v. Project Equipment Corpn., 1990(2) SLR 446.

(e) B.P. Chaurasia v. State of M.P., 1983 LCD 169.

(f) Bakshak Indra Narain Tripathi v. Union of India, 1987(5) LCD 178.

21. Thus the order of termination is bad because it is not in consonance with the provisions of section 126(2)(b) of the Jammu and Kashmir Constitution. It is again bad because the petitioner was not afforded an opportunity with a view to explain his absence. This petition is accordingly allowed. The petitioner would be entitled to reinstatement. He would not be entitled to any back wages. He would start getting his wages with effect from the date he produces the copy of this order before the respondent No. 6. The aforementioned officer, if he proposes to proceed further into the matter, may serve a specific chargesheet either on that date. In the alternative, the aforementioned officer would be at liberty to indicate any other date on which the petitioner is to put in appearance. If it is proposed to hold further enquiry then not only specific chargesheet would be served but Enquiry Officer would also be named. As indicated above, the petitioner would not be entitled to any back wages.

22. This petition is accordingly allowed in the manner indicated above.

23. Petition allowed.