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Judgment
Petitioner, a junior Agricultural Assistant (JAA), was dismissed from service by Order NO. 1019GR of 1990 dated 26.10.1990 in exercise of
the powers under Sec. 126(2)(c) of the State Constitution by the Governor. He questions this order amongst others on the ground that it suffered
from nonapplication of mind and that it was vitiated as it was not a speaking order since the respondents had failed to indicate the nature of
activities to him. It is also submitted that the action is violative of the constitutional guarantees and against the principles of natural justice.
In the reply filed on behalf of the respondents it is submitted that the competent authority after due application of mind had formed the opinion to
remove the petitioner from service in view of the petitioner's nature of activities which were detrimental and prejudicial to the security of the State.
It is also pointed out that he was arrested in case FIR No.3 of 1990 under Sec. 3/4 TADA 3 EAO ect and that it was not expedient to hold an
inquiry against him. It is not indicated whether any circumstances existed which made it inexpedient to hold an inquiry against him.
It is beaten law by now 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 without an inquiry in which he is 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 Art.311 of the Federal Constitution and Sec. 126 of the State Constitution. The later
section provides an additional safeguard of giving a second show cause notice to the delinquent employee informing him of the punishment
proposed to be imposed upon him.
Clauses (a), (b) & (c) of Sec. 126(2) provide certain exceptions to this general rule and allow doing away with the inquiry in certain cases. Cl.
(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 cannot sustain and
would be invalidated.
Cl.(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 so, 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).
All that remains to be examined in this conspectus was whether there was any basis for the Governor's satisfaction that it was not expedient to
hold inquiry against the petitioner in the interest, of the security of the State?
The expression ""security of the state"" in Cl.(c) of Sec. 126(2) of the State Constitution corresponding to Article 311 (2)(c) of the Federal
Constitution, does not connote the security of the entire country or the state. Nor can this expression be confined to armed rebellion or revolt
because there are various ways in which security of the State could be effected such as by disclosing state secrets or information relating to
defiance production or by having links with terrorist organisation etc.
The condition for application of Cl.(c) is the satisfaction of the Governor that it would be inexpedient to hold inquiry in the interests of the
security of the State. Expedient means advantages, fit, proper, suitable or politic. This satisfaction must necessarily be subjective satisfaction of the
Governor because in expediency involves matters of policy. It may be arrived at through secret information or by receiving such information from
other sources. But, in any case, the action taken by the Governor for discarding the inquiry on this ground becomes subject to judicial review
where it is alleged that it lacked in basis or that it proceeded on wholly irrelevant and extraneous or mala fide considerations.
It is true that the court would not sit in judgement to adjudge the sufficiency or otherwise of the basis on which the Governor had drawn the
requisite satisfaction nor would it substitute its own satisfaction for that of the Governor. But, that does not come in its way of examining whether
there was any valid or reasonable basis for the action. Where it is found that such basis was lacking, the action would naturally be struck down.
In the present case, even though petitioner had not thrown a specific challenge to the discarding of the inquiry by the Governor and had
projected his grievance in generalized terms, yet, it is required to be noted that respondent had failed to indicate the basis of the Governor's action
in their reply. They have stated all except to indicate the circumstances which would render the holding of inquiry inexpedient in the interests of the
security of the State. It is no good to say that the activities of the petitioner were prejudicial to the interests of the security of the State. Even if it be
assumed that the nature of his activities was such, it could still be death with in inquiry and under the prescribed procedure of law. As a matter of
fact, what was required to be disclosed was that the interests of the security of the State rendered any inquiry against the petitioner inexpedient.
In any case it all comes to holding or otherwise of any inquiry. It is not that the delinquent employee cannot be touched in any case. He can
surely be thrown out lock, stock and barrel but only after an inquiry to satisfy the principles of natural justice under the mandate of Article 311(2)
read with Sec. 126(2). As such his best and last case could be that he was liable to be ousted only after an inquiry. Resultantly this petition is
disposed of by providing as under:
That impugned order No. 1019GR of 1990 dated 26.10.1990 shall stand quashed. But it shall be open to the competent authority to decide to
reinstate the petitioner in service and to place him under suspension with a view to subject him to a departmental inquiry, if any, intended into the
charge/ allegations against them, in accordance with law and rules. This is in tune with the view taken by a Division Bench of this Court lately in
Riaz Ahmed Gazi's case (1997 SLJ 178). Any such inquiry initiated shall be concluded within 6 months from the date of receipt of this order. If
petitioner succeeds in it and comes out unscathed or where no inquiry is held, he shall be reinstated in service retrospectively without any back
wages. But, if he is again found in the dock, respondents shall be free to take appropriate disciplinary action against him under rules which may
even involve his removal from service.