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Judgment
Petitioner was a selection grade constable in the Police Department. He was arrested by the paramilitary force on 26.9.1990 and was thereafter
detained under the Public Safety Act. He challenged his detention before this court but during the pendancy of petition, his detention order was
revoked. He was thereafter set to liberty.
Petitioner claims that when he submitted his joining report he was handed over copies of two orders dated 1.11.1990 and 31.12.1991. The first
order placed him under suspension and the second dismissed him from service under the orders passed by the Government in terms of Section
126(2)(c) of the State Constitution.
Petitioner questions this order on the plea that once he was placed under suspension respondents were bound to hold an inquiry against him and
take such inquiry, to a logical conclusion. In other words it is projected that he could not dismissed from service without inquiry. It is also pointed
out that though there was no material before the Governor for passing the order of dismissal under Section 126(2)(c) yet he may have relied upon
some dossiers made available by the CID Department. Lastly, it is urged that there was no legal basis on which the Governor could exercise his
power to dismiss the petitioner under Section 126(2)(c).
Respondents have not filed any reply to this petition, nor have they produced any record/material to show the basis on which the Governor had
drawn satisfaction that it was inexpedient to hold an inquiry against the petitioner in the interests of the State. Newly appointed Sr. AAG Mr. M.I.
Qadri appeared for them today but was handicapped to justify the impugned action in the absence of any record.
It is by now well known that the Constitution provides certain guarantees and safeguards to an employee who is a member of the civil service or
holds a civil post under the State. He cannot be dismissed or removed from service or reduced in rank by any authority subordinate to the
appointing authority and without an inquiry in which he is to be informed of the charge against him and is afforded a reasonable opportunity of
being heard in respect of such charges. These safeguards are contained in Article 311 (2) of the Federal Constitution and Section 126(2) of the
State Constitution. The later section provides an additional safeguard of giving second show cause notice to the delinquent employee informing him
of the punishment proposed to be imposed to him.
Clauses (a,b and c) of Section 126(2) provides certain exceptions to this general rule and allow doing away with the inquiry in certain cases.
Clause (b) permits so where it is impracticable to hold such inquiry but for this the competent authority is required to record reasons to show that it
was not practicable to hold inquiry in the facts and circumstances of the case. Where the authority fails to do so, the action taken can't sustain and
would be invalidated.
Clause(c) permits dispensing with such inquiry where the Governor feels satisfied that it is inexpedient to hold such inquiry in the interest of
security of the State. But the Governor's satisfaction is to proceed on some material or basis. Where his action is questioned on the lack of material
or its irrelevance or frivolousness, the government is obliged to produce the record to satisfy the court that the requisite satisfaction was not drawn
in air and if government defaults in doing som it would only render the action vulnerable to quashment. (See AIR 1985 SC 1416, AIR 1995 SC
1403, AIR 1991 SC 385, 1995 SLJ 19, and 1993 SLJ 171).
The submission of petitioner's counsel Mr. Quareshi that the petitioner could not have been dismissed from service without an inquiry because
he was placed under suspension and for which they had to hold ah inquiry necessarily is misconceived. Ah employes is liable to be suspended from
service on a contemplated inquiry. However, if the disciplinary authority fails to hold such an inquiry, the employee becomes entitled to
reinstatement in service. It is not that in such a case the authority is necessarily required to hold an inquiry in all events and circumstances. It,
therefore, follows that an employee can be dismissed from service without inquiry in exercise of the powers under section 126(2) (a,b and c), even
if his dismissal was proceeded by suspension or even where an inquiry is contemplated against him. But even that cannot save the impugned action
against the petitioner, because once petitioner had alleged that there was no basis for the Governor to dispense with the inquiry, respondents were
obliged to come forward and show that basis by production of requisite record/material. Having failed in this it becomes difficult to sustain the
action because it is to be presumed in the circumstances that Governor had no relevant record available for drawing the satisfaction to exercise
powers under section 126(2)(c).
But giving regard to the over all legal position it all comes to holding otherwise of an inquiry against the. Petitioner, it is not that he could not be
thrown out from service in a disciplinary action. He could be shown the door but only after an inquiry in which he was required to be informed of
the charges against him under the mandate of Article 311(2) read with section 126(2). Therefore once respondents are entitled to hold such inquiry
against him, they become entitled to take whatever disciplinary action against him in the facts and circumstances of the case including his dismissal
or removal from service.
At this state, it would be advantageous to refer to the latest trend in the legal position enunciated by the Supreme Court in AIR 1994 SC 1074
(Managing Director ECIL Vs. B. Karunakar) followed in AIR 1995 SC 1043 which reads this:
Hence to direct reinstatement of the employee with back wages in all the cases is to reduce the rules of justice to a mechanical ritual. The thereof
of reasonable opportunity and the principles of natural justice have been evolved to upheld the rule of law and to assist the individual to vindicate
his just rights. They are not incantations to be invoked nor rites to be performed on all the sundry occasions. Whether in fact, prejudice has been
caused to the employee or not on account of the denial to him of the report has to be considered .on the facts circumstances of each case.
The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The Courts should
avoid resorting to shortcuts.
Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to
direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under
suspension and continuing the inquiry from the state of furnishing him with the report. The question whether the employee would be entitled to the
back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should be left to be decided by
the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in
the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the reinstatement and
to what benefits, he will be entitled.
1 In the result, this petition is disposed of by providing as under:
The impugned order dated 31.12.1991 shall stand quashed. But it shall be open to respondents to decide, to either reinstate petitioner in service
or to place him under suspension so as to subject him to a departmental inquiry, if any, intended into the charges/allegations against him in
accordance with law and rules, in tune with a view taken by a Division Bench of this court in Riaz Ahmad Gazi Vs. State (1997 SLJ 178). Any
such inquiry initiated shall be completed within six months from the date of receipt of this order. If petitioner succeeds in the inquiry and comes out
unscathed or where no inquiry is held, he shall be entitled to reinstatement in service retrospectively though without any pecuniary benefits. But if he
is again found in the dock, respondents shall be free to take appropriate disciplinary action against him under rules.