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Judgment
These cases arise from the same incident and involve similar points for determination so these are being disposed of by this common judgment.
These matters relate to the escape of one under trial prisoner from police custody on 2.2.2000. One Gh. Rasool Shah S/oAbdul Khaliq Shah
R/o Kupwara, allegedly a hardcore militant of Jamitul Mujahideen outfit was involved in case FIR No. 2/97 of Police Station Ram Munshi Bagh
U/s 302 and 307 RFC and FIR No. 128/96 of Police Station Maisuma U/s 7/27 Arms Act. He was lodged in Central Jail Srinagar. Petitioner in
SWP No. 109/2000 Javid Masood Fazli was Incharge Dy. Superintendent Central Jail, Srinagar, petitioner in SWP No. 63/2000 Mohd. Yousuf
Dar was the Assistant Superintendent of the Jail, petitioner in SWP No. 134/2000 Dr. Mohd. Ayub, Dental Surgeon was posted as Medical
Officer in the Central Jail, petitioner in SWP No. 284/2000 Gh. Nabi Head Constable and petitioner in SWP No. 283/200 Tariq Ahmed Hakeem
Constable were working as constables in the police department at the relevant time. On 2.2.2000 the said prisoner was sent for medical check up
to SMHS Hospital, Srinagar under the advice of Dr. Mohd. Ayub, alongwith five other under trial prisoners. The police escort which accompanied
the six prisoners to the Hospital comprised of seven police personnel under the charge of one Head Constable Gh. Nabi deputed by the District
Police Lines, Srinagar on requisition from the authorities of the Central jail, Srinagar. When the prisoners reached SMHS Hospital Srinagar, said
prisoner Gh. Rasool Shah pleaded for taking him to the urinal. His handcuffs were reportedly removed at the door of the urinal by Tariq Ahmad
Constable which provided a chance to him to escape from the custody. The, escort party chased him to arrest him again but they could not
succeed. This lapse on the part of the escort party indicated that the party was not at all alert and had not taken due precautions required to be
taken in such matters. Although the prisoner escaped from custody in the SMHS Hospital premises, the following lapses were attributed to the
prison authorities including the petitioners herein, as reported by ADG Prisons and Fire Service.
a. The jail authorities were under detailed written instructions from the ADG, Prisons and Fire Services under No. DS 882426 dated 19.1.2000
and No. 686763 dated 21.1.2000 not to send prisoners to hospital without obtaining prior permission from the direction office. These 6 prisoners
were referred to and sent to SMHS Hospital, Srinagar without even informing the ADG, Prisons and Fire Services.
b. The Addl. DG, Prisons and Fire Services had issued instructions that all detenues requiring medical check up either under Court orders or under
advice of Jail doctors must be referred to Santnagar, Hospital, Srinagar in the first instance. If advance/specialized treatment is required, the jail
authorities must seek instructions from the ADG, Prisons and Fire Services to seek his orders using telephone communication to save time. In this
case these instructions were also floated.
c. The prisons authorities of Srinagar Central Jail, Srinagar were also under instructions from the ADG Prisons and Fire Services that in case of
acute or serious ailment a militant prisoner should be referred to the Police hospital in the first instance obtaining permission from the direction
office. These instructions were also flouted. That the prisoner were referred to the hospital by a Dental Surgeon, Dr. Mohammad Ayub, creates
doubts about the genuineness of the medical reference which requires further probe.
d. Supdt Central Jail, Srinagar was duty 646 Javid Mashood Fazli and other connected petitions Vs. State and Others 2005 (II) S.L.J. bound to
check the genuineness of these Ahmed medical reference to the hospital particularly in the context of repeated and clear instructions. He has not
bothered to do so despite standing instructions.
e. As per norms in vogue for escorting prisoners outside the jail, the police escort should have had atleast 12 personnel in this case i.e. two each
prisoner. However, in the instant case there were only seven. The jail authorities should have either asked for additional manpower for the escort
or reduced the number of prisoners to be taken to hospital. These 6 prisoners were taken to the hospital with inadequate escort.
f. Requisition for the escort was made by the Asstt; Supdt; Jail who had no authority to make such requisitions.
g. As per the standing arrangements between the District Police Lines, Srinagar and the Central Jail, Srinagar, whenever an important militant
prisoner is to be removed to hospital for medical check up, name of the militant alongwith particulars is to be communicated on telephone by the
Supdt. or the Dy. Supdt. Jail to SSP, Srinagar. In this case this requirement was not met with the result that only 1 +7 Police escort was deputed
for sic prisoners instead of the requirement of two each prisoner.
It was on the ground of lapse and gross negligence of duty on the part of the petitioners that the cases of the petitioners were processed for
departmental action.
On consideration of the matter the Government recommended to the Governor dismissal of the petitioners from service in terms of Section 126
(2) (C ) of the State Constitution. Accordingly the Governor approved the recommendations of the Government and consequently the Petitioners
Javid Masood Fazli, Mohd. Yousuf Dar, Dr. Mohd. Ayub Gh. Nabi Shah and Tariq Hakeem were dismissed from service, issued in this behalf
are as under:
Order No. 56 of 2000 dated 5.2.2000
Whereas on 2nd Feburary, 2000, one hard core militant prisoner. Gh. Rasool Shah @ General Abdullah S/o Abdul Khaliq Shah R/o Mirnag
Kupwara escaped from police custody in the SMHS Hospital premises and this escape has caused risk to the security of the State.
Whereas the said prisoner was abele to run away from Police custody due to gross negligence and dereliction of duty on the part of the Police
escort and not the concerned jail authorities.
Whereas the Governor is satisfied that in the interest of the security of the State, it is essential to dismiss the concerned officials from service; and
Whereas the Governor is satisfied that in terms of clause 'C' of the proviso of SubSection 126 of the Constitution of J and K, and in the interest of
the security of the State. It is not expedient to hold an enquiry against the concerned officials.
Now, therefore, Shri Javid Masood Fazli Dy. Superintendent, I/c Superintendent Central Jail, Srinagar who is one of the officials whose conduct
and action contributed to the escape of the said prisoner is hereby dismissed from service invoking the provisions of Section 126 of the
Constitution of J and K.
Order No. 58 of 2000 dated: 5.2.2000
Whereas on 2nd Feburary, 2000, one hard core militant prisoner. Gh. Rasool Shah @ General Abdullah S/o Abdul Khaliq Shah R/o Mirnag
Kupwara escaped from police custody in the SMHS Hospital premises and this escape has caused risk to the security of the State.
Whereas the said prisoner was abele to run away from Police custody due to gross negligence and dereliction of duty on the part of the Police
escort and not the concerned jail authorities.
Whereas the Governor is satisfied that in the interest of the security of the State, it is essential to dismiss the concerned officials from service; and
Whereas the Governor is satisfied that in terms of clause 'C' of the proviso of SubSection 126 of the Constitution of J and K, and in the interest of
the security of the State. It is not expedient to hold an enquiry against the concerned officials.
Now, therefore, Shri M.Y.Dar Assistant Susperintendent, Main Gate Central Jail, Srinagar who is one of the officials whose conduct and action
contributed to the escape of the said prisoner is hereby dismissed from service invoking the provisions of Section 126 of the Constitution of J and
K.
Order No. 58 of 2000 dated: 5.2.2000
Whereas on 2nd February, 2000, one hard core militant prisoner. Gh. Rasool Shah @ General Abdullah S/o Abdul Khaliq Shah R/o Mirnag
Kupwara escaped from police custody in the SMHS Hospital premises and this escape has caused risk to the security of the State.
Whereas the said prisoner was abele to run away from Police custody due to gross negligence and dereliction of duty on the part of the Police
escort and not the concerned jail authorities.
Whereas the Governor is satisfied that in the interest of the security of the State, it is essential to dismiss the concerned officials from service; and
Whereas the Governor is satisfied that in terms of clause 'C' of the proviso of SubSection 126 of the Constitution of J and K, and in the interest of
the security of the State. It is not expedient to hold an enquiry against the concerned officials.
Now, therefore, Shri Mohd. Ayub Dental Surgeon who is one of the officials whose conduct and action contributed to the escape of the said
prisoner is hereby dismissed from service invoking the provisions of Section 126 of the Constitution of J and K.
Order No.60 of 2000 dated: 5.2.2000
Whereas on 2nd February, 2000, one hard core militant prisoner. Gh. Rasool Shah @ General Abdullah S/o Abdul Khaliq Shah R/o Mirnag
Kupwara escaped from police custody in the SMHS Hospital premises and this escape has caused risk to the security of the State.
Whereas the said prisoner was abele to run away from Police custody due to gross negligence and dereliction of duty on the part of the Police
escort and not the concerned jail authorities.
Whereas the Governor is satisfied that in the interest of the security of the State, it is essential to dismiss the concerned officials from service; and
Whereas the Governor is satisfied that in terms of clause 'C' of the proviso of SubSection 126 of the Constitution of J and K, and in the interest of
the security of the State. It is not expedient to hold an enquiry against the concerned officials.
Now, therefore, Shri Tariq Ahmed Constable JKP (No. 713/S) who is one of the officials whose conduct and action contributed to the escape of
the said prisoner is hereby dismissed from service invoking the provisions of Section 126 of the Constitution of J and K.
Order No. 59 of 2000 dated 5.2.2000
Whereas on 2nd February, 2000, one hard core militant prisoner. Gh. Rasool Shah @ General Abdullah S/o Abdul Khaliq Shah R/o Mirnag
Kupwara escaped from police custody in the SMHS Hospital premises and this escape has caused risk to the security of the State.
Whereas the said prisoner was abele to run away from Police custody due to gross negligence and dereliction of duty on the part of the Police
escort and not the concerned jail authorities
Whereas, the Governor is satisfied that in the interest of the. security of the State, it is essential to dismiss the concerned officials from service; and
Whereas the Governor is satisfied that in terms .of clause 'C' of the proviso of SubSection 126. of the Constitution of J and K, and in the interest
of the security of the State. It is not expedient to, hold an enquiry against the concerned officials
Now therefore. Shri Gh. Nabi Head Constable JKP (3286/S) who is one of the officials Whose conduct and action contributed to the escape of
the said Prisoner is hereby dismissed from service invoking the provisions of Section 126 of the Constitution of J and K.
The petitioners have challenged these orders on various grounds. Besides throwing challenge to the impugned orders on legal grounds the
petitioners have, in the present petitions put forth factual matrix of the case to show that they had no role to play in the escape of the prisoner from
the custody of the escort party and that they were in no way involved in the incident. The petitioners have stated that in usual course of business at
the Central Jail, Srinagar the concerned Medical Officer of the Jail vide his communication No. MOCG/592/99/2000 dated 31.1.2000 requested
the jail authorities to arrange for escort and transportation for securing medical check up and treatment of six members of jail inmates
/prisoners/detenues at SMHS Hospital, Srinagar included Gh. Rasool Shah who has escaped from the custody. The said communication was
endorsed by the Incharge Dy. Superintendent of Central Jail Mohd. Ahsraf Beigh to Moharari Central Jail for necessary action. Dy. Supdt; of Jail
Mohd. Ashraf Beigh issued a wireless message to the address of Sr. Superintendent of Police/Dy. Superintendent of Police vide No.
CJS/MJ/2000/2936 dated 31.1.2000 requesting for necessary police escort and transport to be arranged to the Central Jail on 1.2.2000 at 0900
hours for ensuring the medical checkup. According to the petitioners no police escort could be arranged by the concerned Sr. Supdtt; of
Police/Police Agency on 12.2000, therefore said prisoners could not be shifted for the medical treatment Another communication came to be
issued by the concerned, Medical Officer of the Jail vide No, MOCJ/594/99 dated 1.2.2000 asking for arranging the police escort and
transportation for ensuring medical treatment of the said prisoners. The persons required to be shifted to SMHS, Hospital, Srinagar also included
one Shri Rafiq Ahmad Dar S/o Mohd. Yousuf Dar R/ o Nawakadal. Srinagar who was required to be permitted to visit his ailing sister, admitted
at SMHS Hospital, Srinagar. in, terms of orders of learned,Court,oJ,3.ra.Addiflojjai Sessions Judge, Srinagar dated l22000. On 1.2.2000
petitioner Mohd. Yousuf Dar was on duty and a communication (AnnexureD) was received by him in usual course of business for further
necessary action. The said communication was marked by the petitioner to Moharari Jail for necessary action on 1.2.2000 followed by issuance of
wireless message to Sr. Superintendent of Police/Dy. Superintendent of Police District Police Lines Srinagar for making available the police
escort/transport vehicle on 2.2.2000 so that the necessary treatment and check up of the detenues could be ensured. In terms of the relevant
provisions of the Jail Manual, according to the petitioners, a practice has been evolved that on the date when the medical check up is required to
be held, and when the police escort is made available a fresh requisition for arranging the police escort and transportation of prisons who are
actually required to be shifted for treatment is to be issued by the concerned Medical Officer of the jail. The Medical Officer issued another
communication specifying the particulars of the jail inmates required to be shifted for medical treatment which included Gh. Rasool Shah as well.
The communication requiring the escort on 2.2.2000 was issued by the Medical Officer Central Jail, Srinagar under No. MOCJ/T/J96/99 dated
2.2.2000. As a consequence to the wireless message the relevant police escort was arranged and provided by the District Police Lines. The escort
was headed by Gh. Nabi Head Constable No. 3286/S. The petitioner have further stated that in the Central Jail, Srinagar three specific check
points have been provided for coming in and going out of the jail premises which include the main gate located in the close vicinity of the
accommodation barracks where the jail inmates were lodged which is controlled by the jail authorities. The main gate is followed by Gate No. 13
controlled by personnel of ITBP force which was not under the control of jail authorities. Gate No. 13 is followed by Gate No. 14 which again is
controlled by ITBP force personnel over which the jail authorities again had absolutely no control at all. Gate No. 14 open on the general road. As
per the practice, on the availability of police escort nobody including the police personnel is permitted to enter beyond Gate No. 13 by the ITBPF
personnel except Head of the Police Escort who in turn on availability of Police Escort is alone permitted to cross Gate No. 13 to meet the jail
authority and inform them about the availability of police escort.
In the present case Gh. Nabi Head Constable No. 3286/S District Police Lines Srinagar was permitted by the ITBPF to cross Gate No. 13
and to attend the I/C Dy. Superintendent Central Jail, namely Mohd. Ashraf Beigh. Consequently the said Incharge Dy. Supdtt; of Jail Shri Mohd.
Ashraf Beigh issued the gate pass covering the shifting of six members of detenues/jail inmates to SMHS Hospital, Srinagar under proper police
escort headed by the said Head Constable with copies endorsed to Assistant Commandant, 4th Bn. ITBPF Central Jail, Srinagar. Consequent to
these arrangements the said six jail inmates including Gh. Rasool were handed over to the Incharge of the police guard Gh. Nabi Head Constable
No. 3286/S on 2.2.2000 at 1215 hours in terms of a departure memo under his signatures. The departure memo was followed by actual handing
over and taking over of the above mentioned jail inmates, after proper frisking by ITBPF personnel at Gate No. 13 and 14 in terms of the relevant
statements/records. These facts have been narrated by the petitioners to show that they have meticulously followed all and entire requirements for
proper shifting of the inmates and for proper treatment included taking up of necessary steps for requesting the police agencies to arrange the
police escort. Thus according to the petitioners there was no lapse on their part in shifting/ handing over of the inmates to the escort party.
Broadly speaking the petitioners have challenged the orders impugned on the grounds that the respondents have proceeded in the matter by
gross nonapplication of mind to the relevant circumstances in as much as, the respondents have not taken into consideration strict procedure
followed by the petitioners in the matter. The petitioners allege that these circumstances have not at all been taken into consideration by the
Governor while exercising power under Section 126 (2) (c) of the Constitution. It is being further stated that the respondents have acted in the
present case in the most mechanical manner. The petitioners have further stated that the orders impugned are legally not sustainable as the
dispensation of enquiry in the circumstances of the case is not bonafide but a malafide exercise of power. The Governor, it is being pleaded, has
based his satisfaction on extraneous and irrelevant consideration, in as much as, the facts showing bonafide of the jail authorities including the
petitioners have not at all been taken into consideration. It is also being pleaded that the impugned orders are arbitrary, unjust and unfair in as much
as, the same are outcome of the whim and caprice of the respondentauthorities. The orders impugned, according to the petitioners, are
nonspeaking, no reasons of whatsoever nature are spelled out by the same to show as to why it was not expedient in the interest of security of the
State to conduct an enquiry into the matter. The petitioners have cited an instance of jail break at Jammu where the detenues under the control of
Incharge Superintendent of Police, CIK Shri Bachan Singh had escaped from Jail but no action was taken against the Incharge of the jail. The
petitioners have also pleaded that in the present case the Governor has based his findings on his own satisfaction and that there was no advice
tendered by the Council of Ministers as was required in terms of the provisions of the State Constitution. The petitioners therefore, pray that the
impugned orders being contrary to the rules and in violation of the provisions of Constitution be set aside.
The State has filed counter in SWP No. 134 of 2000 titled Dr. Mohd. Ayub v. State and Others, SWP No. 283 of 2000 titled Tariq Ahmad
Hakeem v. State and Others and SWP No. 284 of 2000 titled Gh. Nabi v. State and Others
In SWP No. 134 of 2000 the counter has been filed by the Addl; Director General of Prisons and Fire Services, J and K Govt. It has been
stated that the petitioner was a Dental doctor but none of the prisoners, whowere referred by the petitioner were suffering from any dental
problem. The prisoners had been referred in violation of the earlier instructions and the deliberate and intentional violation by the petitioner
'established the collusion of petitioner in escape drama'. The relevant portion of the counter reads as under:
It is settled position in law that competent authority in exercise of its constitutional powers on the basis of material when satisfied, can dispense
with conducting of inquiry when same is found to be inexpedient in the interest of security of State. The case of the petitioner is an exception and
averment made in the ground under reply in no circumstances, in view of the settled position of law does help the petitioner in view of the
submissions made hereinabove. The petitioner has also observed the rules and norms in breach besides there being material which required the
competent authority in dispensing with conducting of the enquiry as the same was found to be inexpedient in the interest of security of State. The
escape involved in the case is a dreaded militant. The circumstances in which, he managed to escape point towards collusions on the part of all the
functionaries dismissed in this case alongwith the petitioner in the act of removing the prisoners to Hospital in a manner to facilitate his escape. Any
meaningful enquiry would have been rendered impossible through threats by the militant organizations to which the escapee belongs. Witnesses
would have shayed away from deposing against those who facilitated his escape. Testimony going against petitioner in the face of such threats
would result in the militant organisation, indeed, carrying out such threats. It is denied that the competent authority viz. his Excellency, the Governor
has not appreciated the material and relevant circumstances. It is submitted that his Excellency, the Governor has not appreciated the material and
relevant circumstances. It is submitted that his Excellency the Governor has considered and appreciated the material and after being satisfied on the
said material ordered for dispensing with the conducting of the inquiry as the same was found in the attendant facts and circumstances of the case,
on the basis of the material, to be inexpedient in the interest of security of the State, as such the order of dismissal is legal and valid and incapable
of being challenged. The allegations levelled against the respondents in this ground under reply are vague and general in nature which has deprived
the respondents to effectively reply the same, however, same are vehemently denied as incorrect.
In SWP No. 283 of 2000 the counter has been filed by Special Secretary to the Government, Home Department. It has been denied that the
satisfaction arrived at by his Excellency the Governor was based on no material. The respondent has said.
It is denied that the impugned order has been issued on malafide grounds and extraneous considerations. It is denied that the satisfaction arrived at
by his Excellency the Governor is based on no material or on extraneous considerations. His Excellency the Governor has been satisfied on the
basis of material which is relevant and germane to the case of the petitioner, to order dispensing with the conducting of the inquiry, as the same has
been found to be not expedient in the interest of security of the State. The competent authority has exercised the constitutional power in most just
and fair manner. The allegations levelled are vague and general in nature. The fact that an FIR has been lodged will not make any difference to the
order which was passed by the competent authority on the totality of material which was before them. Thus it is denied that the satisfaction arrived
at by His Excellency the Governor with regard to the inexpediency of holding an inquiry is legally perverse.
In SWP No. 284 of 2000 too the counter has been filed by Special Secretary to the Government, Home Department. The counter is almost a
ditto copy of the counter in SWP No. 283 of 2000. Grounds taken in SWP No. 283 of 2000 have been reproduced in verbatim in the counter.
In the present case the State has made available the original record which was minutely perused by me. On going through the record I find that
the Chief Minister has in its note dated nil found that it was not expedient to hold an enquiry in the matter in the interest of the security of the State.
The Chief Minister observed as Hider:
Sequence of events reveals gross negligence of duty, lack of sense of responsibility and noncompliance of standing instructions n the part of
concerned jail authorities and as per the report of the Addl; DG Prisons and Fire Services, the following three officers are responsible for this
serious lapse:
Shri Javed Masood Fazili, Dy.Supdt, I/C Supdt. Central Jail,Srinagar.
Dr. Mohd. Ayub, Dental Surgeon, Central Jail, Srinagar.
Shri M.Y.Dar, Assistant Supdt; Main gate, Central Jail, Srinagar.
Ghulam Rasool Shah, the prisoner, made good his escape from Police custody in SMHS hospital, Srinagar after he successfully pleaded for taking
him to the"" urinal. His handcuffs were removed at the door of the urinal by Shri Tariq Ahmed, Constable which facilitated the escape. Efforts of the
escort party to chase and arrest him again did not bear any fruits. That an important militant prisoner should havfe escaped so easily from Police
custody indicates that the escorts party lacked the requisite alertness and the precautions required to be taken to ensure that the prisoner did not
give a slip to the Police were not taken. This is a serious lapse on the part of the police escort. DIG, Srinagar Range has been asked to enquire into
the circumstances leading to the escape of the prisoner. However, the head of the escort team, Shri Ghulam Nabi, Head Constable and Shri Tariq
Ahmed, Constable are at present clearly culpable for this serious lapse.
There is no doubt that gross negligence, lack of sense of responsibility, noncompliance of standing instructions lack of professionalism and
possible connivance on the part of the following officials have contributed to the escape of this hard core militant from custody. It is pertinent to
mention that a petition had already been filed in the Court to shift Oh. Rasool Shah the escape to Kot Bhalwal Jail, Jammu and the Court had listed
the application for hearing on the following day i.e. 3rd Feb. 2000.
Successful escape of this hard core militant with his probable recirculation in terrorism and the acts of omission and commission on the part of the
following officials which have facilitated this escape have jeopardized the security of the State;
Shri Javed Masood Fazili, Dy. Supdtl, I/C Supdt. Central Jail Sgr.
Dr. Mohammad Ayub, Dental Surgeon, Central Jail, Srinagar.
Shri M.Y.Dar Assistant Supdtl Main gate, Central Jail, Srinagar.
Shri Ghulam Nabi, Head Cionstable JKP(No.3286/S).
Shri Tariq Ahmed, Constable JKP (No. 713/S).
The major punishment of dismissal from service will meet the ends of justice.
In the security environment obtaining in the valley, it is not expedient to hold an enquiry against the concerned officials. Therefore, the provisions of
Clause 'c' of the proviso of Subsection (2) of Section 126 of the Constitution of Jammu and Kashmir is required to be invoked for dismissal of
these five employees. Accordingly, His Excellency the Governor may be pleased to approve dismissal of these employees in the interest of the
security of the State under the provisions of Section 126 of the Constitution of J and K as per the draft order placed below.
On the recommendations of the Chief Minister of J and K Government State His Excellency Shri Grish Chander Saxena, the Governor of J and K
State examined the matter onS2v2000.
The Governor has observed that he was satisfied that in the interest of security of state it was not expedient to hold an enquiry against the officials.
The Governor has observed as under:
I have carefully considered the note sent by the Chief Minister of Jammu and Kashmir and other reports and papers giving relevant facts and
grounds for action against Shri Javed Masood Fazili, Dy. Superintendent, I/C Superintendent Central Jail, Srinagar, Dr. Mohd. Ayub, Dentral
Surgeon, Central Jail, Srinagar, Shri M.Y.Dar, Assistant Superintendent, Main Gate, Central Jail, Srinagar; Shri Ghulam Nabi, Head Constable,
JKP (No. 3286/S) and Shri Tariq Ahmed, Constable JKP ( NO. 713/S), placed before me in connection with the escape
from SMHS Hospital, Srinagar on 2nd February, 2000 of prisoner Ghuiam Rasool Shah who was sent there along with five other prisoners.
1 am satisfied that the conduct and action of said Shri Javed Masood Fazili, Dy. Superintendent, I/C Superintendent Central Jail, Srinagar; Dr.
Mohammad Ayub, Dentral Surgeon, Central Jail, Srinagar; Shri M.Y.Dar, Assistant Superintendent, Main Gate, Central Jail, Srinagar, Shri
Ghuiam Nabi, Head Constable, JKLP (No. 3286/S); and Tariq Ahmed, constable JKP (No. 713/S) in the matter connected with the escape of
said prisoner Ghuiam Rasool Shah have been detrimental and prejudicial to the security of the State and, therefore it is necessary that the said Shri
Javed Masood Fazili, Dy. Superintendent, I/C Superintendent Central Jail Srinagar; Dr. Mohammad Ayub Dentral Surgeon, Central Jail, Srinagar;
Shri M.Y.Dar, Assistant Superintendent, Main Gate, Central Jail, Srinagar; Shri Ghuiam Nabi Head Constable, JKP (No.3286/S); and Tariq
Ahmed, Constable JKP ( No. 713/S) should be dismissed from service. I am further satisfied, in terms of clause( C) of Proviso of SubSection 2 of
Section 126 of the Constitution of Jammu and Kashmir and Subclause (c) of proviso of clause (2) of Article 311 of the Constitution of India, that
in the interest of the security of the State it is not expedient to hold inquiry against the said Shri Javed Masood Fazili, Dy. Superintendent Central
Jail Srinagar; Dr. Mohammad Ayub Dentral Surgeon, Central Jail, Srinagar; Shri M.Y.Dar, Assistant Superintendent, Main Gate, Central Jail,
Srinagar; Shri Ghuiam Nabi Head Constable, JKP ( No.3286/S); and Tariq Ahmed, Constable JKP ( No. 713/S) in this matter.
Therefore, in accordance with the provisions of Section 126 of the Constitution of Jammu and Kashmir and Article 311 of the Constitution of
India, I hereby dismiss the said Shri Javed Masood Fazili, Dy. Superintendent Central Jail Srinagar; Dr. Mohammad Ayub Dentral Surgeon,
Central Jail, Srinagar; Shri M.Y.Dar, Assistant Superintendent, Main Gate, Central Jail, Srinagar; Shri Ghuiam Nabi Head Constable, JKP (
No.3286/S); and Tariq Ahmed, Constable JKP ( No. 713/S) from service with immediate effect.
Law relating to the dismissal passed under clause (c) of the second proviso to section 126 of the Constitution of the State (corresponding to Art.
311 (2)(c) of the Indian Constitution) is well settled now. The clause provides for dismissal, removal or reduction in rank where the Governor is
satisfied that in the interest of security of the State, it is not expedient to hold an enquiry in the case. In A.K.Kaul v. Union oflnfla A.I.R 1995 SC
1403 the Supreme Court held that (the President or) the Governor has to satisfy himself about the expediency in the interest of the security of the
State to hold an enquiry as prescribed under Article 311 (2) and that the satisfaction would be vitiated if it is based on circumstances having no
bearing on the security of the State. The Court said (at para 24)
Under Clause (c) of the second proviso to Article 311(2) the President or the Governor has to satisfy himself about the expediency in the
interest of the security of the State to hold an enquiry as prescribed under Article 311(2). Are the considerations involving the interests of the
security of the State of such a nature as to exclude the satisfaction arrived at by the President or the Governor in respect of the matters from the
field of justiciability? We do not think so. Article 19(2) of the Constitution permits the State to impose, by law, reasonable restrictions in the
interests of the security of the State on the exercise of the right to freedom of speech and expression conferred by subclause (a) of Clause (1) of
Article 19. The validity of the law imposing such restrictions under Article 19(2) is open to judicial review on the ground that their restrictions are
not reasonable or they are not in the interests of the security of the State. The Court is required to adjudicate on the question whether a particular
restriction on the right to freedom of speech and expression is reasonable in the interest of the security of the State and for that purpose the Court
takes into consideration the interests of the security of the State and the need of the restrictions for protecting those interests. If the Courts are
competent to adjudicate on matters relating to the security of the State in respect of restrictions on the right to freedom of speech and expression
under Article 19(2) there appears to be no reason why the Courts should not be competent to go into the question whether the satisfaction of the
President or the Governor for passing an order under Article 311 (2) (c) is based on considerations having a bearing on the interests of the security
of the State. While examining the validity of a law imposing restrictions on the right to freedom of speech and expression this Court has emphasised
the distinction between security of the State and maintenance of public order and has observed that only serious and aggravated forms of public
order which are calculated to endanger the security of the State would fall within the ambit of Clause (2) of Article 19.(See : Romesh Thappar. The
State of Madras, 1950 SCR 594, at p.601 : (AIR 1950 SC 124 at p. 128). So also in Tulsiram Patel (AIR 1985 SC 1416) (supra), the Court
has pointed out the distinction between the expression 'security of the State', 'public order' and 'law and order' and has stated that situations which
affect public order are graver than those which affect law and order and situations which affect security of the State are graver than those which
affect public order. The President or the Governor while exercising the power under Article 31 l(2)(c) has to bear in mind this distinction between
situations which affect the security of the State and the situations which affect public order or law and order and for the purpose of arriving at his
satisfaction for the purpose of passing an order under Article 311 (2)(c) the President or the Governor can take into consideration only those
circumstances which have a bearing on the interests of the security of the State and not on situations having a bearing on law and order or public
order. The satisfaction of the President or the Governor would be vitiated if it is based on circumstances having no bearing on the security of the
State. If an order passed under Article 31 l(2)(c) is assailed before a Court of law on the ground that the satisfaction of the President or the
Governor is not based on circumstances which have a bearing on the security of the State the Court can examine the circumstances on which the
satisfaction of the President or the Governor is based and if it finds that the said circumstances have no bearing on the security of the State the
Court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by wholly
extraneous or irrelevant considerations"". (emphasis supplied).
The Court further held that the Court, however, cannot sit in appeal over the order, or substitute its own satisfaction for the satisfaction of the
President. So long as there is material before the President which is relevant for arriving at his satisfaction as to action being taken under Clause (c)
to the second proviso to Article 311 (2), the Court would be bound by the order so passed. The Court has enumerating the scope of judicial
review of the President's satisfaction for passing an order under Clause (c) of the second proviso to Article 311 (2) observed:
(1) that the order would be open to challenge on the ground of malafides or being based wholly on extraneous and/or irrelevant grounds;
(2) even if some of the material on which the action is taken is found to be irrelevant the Court would still not interfere so long as there is some
relevant material sustaining the action;
(3) the truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not
substitute its opinion for that of the President;
(4) the ground of mala fides takes in, inter alia, situations where the proclamation is found to be a clear case of abuse of power or what is
sometimes called fraud on power; (5) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the
President and the Council of Ministers are the best judge of the situation and that they are also in possession of information and material and
Constitution has trusted their judgment in the matter;
(6) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive.
It is therefore, concluded by the Apex Court that an order passed under Clause (c) of the second proviso to Article 311 (2) is subject to
judicial review and its validity can be examined by the Court on the ground that the satisfaction of the President or the Governor is vitiated by
malafides or is based on wholly extraneous or irrelevant grounds within the limits laid down in S.R.Bommai case (AIR 1994SC1981).
In Union of India v. Balbir Singh AIR 1998 SC 2043 the Supreme Court reiterated that the decision not to hold the departmental enquiry in the
interest of the security of the State on the satisfaction of the President or the Governor, as the case may be, is subject to judicial review and that the
Court can examine the circumstances on which the satisfaction is based and if the Court finds that the circumstances have no bearing whatsoever
on the security of the State, it can hold that the satisfaction arrived at has been vitiated by wholly extraneous and irrelevant consideration. The
Court held ( at para 8) ""If an order passed under Article 311 (2) Proviso (c) is assailed before a Court of law on the ground that the satisfaction of
the President or the Governor is not based on circumstances which have a bearing on the security of the State, the Court can examine the
circumstances on which the satisfaction of the President or the Governor is based; and if it finds that the said circumstances have no bearing
whatsoever on the security of the State, the Court can hold that the satisfaction of the President or the Governor which is required for passing such
an order has been vitiated by wholly extraneous or irrelevant considerations
In Indian Rly. Construction Co. Ltd. v. Ajay Kumar,(20Q3) 4 SCC 579 it was held:
It is fairly well settled that the power to dismiss an employee by dispensing with an enquiry is not to be exercised so as to circumvent the
prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two
views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the court to substitute
its view for that of the disciplinary authority as if the court is sitting as an appellate authority over the disciplinary authority. The contemporaneous
circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. What the High Court was required to
do was to see whether there was any scope for judicial review of the disciplinary authority's order dispensing with the enquiry. The focus was
required to be on the impracticability or otherwise of holding the enquiry.
One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is
stated to be referable to the broad area of governmental activities in which the repositories of power may exercise every class of statutory function
of executive, quasilegislative and quasijudicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if
there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. (See State of U.P. v. Renusagar Power
Co.) At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of
prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn., at pp. 28587 states the legal
position in his own terse language that the relevant principles formulated by the courts may be broadly summarized as follows. The authority in
which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must
be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under
the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not
do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant
considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the
legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main
categories: (/) failure to exercise a discretion, and (if) excess or abuse of discretionary power. The two classes are not, however, mutually
exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority
hands over its discretion to another body it acts ultra vires.
The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to
deployment of troops, entering into international treaties etc. The distinctive features of some of these recent cases signify the willingness of the
courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify
under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is ""illegality"", the second
irrationality"", and the third ""procedural impropriety"". These principles were highlighted by Lord Diplock in Council of Civil Service Unions v.
Minister for the Civil Service (commonly known as CCSU case). If the power has been exercised on a nonconsideration or nonapplication of mind
to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised
on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See CIT v. Mahindra and
Mahindra Ltd) The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their
book Applications for Judicial Review, Law and Practice thus: ""There is a general presumption against ousting the jurisdiction of the courts so that
statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity,
national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the
Government's claim is bona fide. In this kind of nonjustifiable area judicial review is not entirely excluded, but very limited. It has also been said that
powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service
Unions v. Minister for the Civil Service this is doubtful. Lords Diplock, Scarman and Roskill appeared to agree that there is no general distinction
between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subjectmatter of a
particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, nonjusticiable areas, for example,
foreign affairs, but some are reviewable ""in principle, including the prerogatives relating to the civil service where national security is not involved.
Another nonjusticiable power is the AttorneyGeneral's prerogative to decide whether to institute legal proceedings on behalf of the public interest.
A Division Bench of this court in State v. MohdAfzal2001 SLJ 416 held (at para 13).
It is now well settled principle of law that judicial review is not a review against the decision. It is a review against the decision making process.
Once, it is found by the Court that the decision making process is validly made, it is not the function of the Court to make a roving enquiry into
adequacy and inadequacy of the materials before the Governor, on the basis of which he derives his satisfaction, and substitute the conclusions
arrived at by the authority by its own conclusions. This would amount to encroachment of the field meant for the other organs. As already pointed
out, judicial review is limited to exercise of power based on malafide or wholly on extraneous or irrelevant considerations. In the instant case, we
are, after the perusal of the record placed before us, clearly of the view that there was a sufficient material for the Governor to have arrived at the
subjective satisfaction that in the interest of the security of State it is inexpedient to hold an enquiry. The satisfaction of the Governor is subjective
satisfaction and such satisfaction is derived from the materials placed before him and once it is found that there was some materials from which the
Governor derived his satisfaction, the adequacy and inadequacy of such materials, on the basis of which the Governor derives his satisfaction,
cannot be questioned by the Court in exercise of judicial review.
Following the decision in Mohd Afzal's case Full Bench of this court in State of J and K v. Mohammad Shaft Bhat2004:(l)SLJ 127 held: (at para
13).
In light of the above settled position of law, apart from what has been expressly and explicitly held by the Supreme Court from time to time, it is
clear that it is not open to the court to dissect, i.e. to analyze and interpret minutely the material on the basis of which the Governor has arrived at
his satisfaction under Article 311 (2) (c) of the Constitution. The Governor is also not required to record any reasons to justify the satisfaction. The
Court is also debarred from going into the question of adequacy or inadequacy of the material on the basis of which the Governor arrives at the
requisite satisfaction. When there is some sort of material having bearing on such satisfaction, it cannot be said that there has been nonapplication
or mind on the part of the Governor. Registration, pendency or determination of a criminal case, or even a departmental enquiry, is no bar to the
exercise of such power by the Governor.
From these authorities of the Apex Court as well as of this Court it is, therefore, settled now that the satisfaction of the Governor regarding
dispensing with the enquiry, while dismissing or removing an employee from service or reduce him in rank, is justiciable. The Courts can look into
the record which forms the basis for such satisfaction to see as to whether there was relevant material before the Governor to arrive at such a
satisfaction. Truth, correctness or adequacy of the material cannot be questioned by the Court but the Court has to examine as to whether there is
some sort of material having bearing on such satisfaction. When there is such a material and the order passed by the Governor indicates that the
same has been considered, the correctness of the order cannot be questioned. But where there is no material at all which could have provided
grounds for the satisfaction of the Governor to dispense with the enquiry on the basis of security of the state and the Governor still proceeds to
dismiss the employee without any enquiry and holds that in the security of the state it is not expedient to do so, the order, howsoever bonafide it
may be, is unsustainable. In such case the satisfaction of the Governor is vitiated by wholly extraneous or irrelevant consideration
In the present case the Governor has dispensed with the enquiry and dismissed the petitioners on the recommendations of the Chief Minister,
who has based his satisfaction on the report of the Addl. Director General, Prisons and Fire Services, J and K, Jammu. The report is on the file. It
reads as:
......The escape is reported to have taken place at 3 O'clock from the SMHS hospital. All the other 5 militants have been brought back to the
Central Jail Srinagar. Though the escape took place from the police escort certain lapses in Central Jail Srinagar have become obvious from the
preliminary enquiry:
a/ Militants should not have been sent to the SMHS hospital without obtaining prior permission from the Direction Officer as was clearly laid down
in wireless messages no. 686768 dated 21.1.2000 and No. DS/8824/26 dated 19.1.2000. Both these messages are quoted below:
Message dated 21.1.2000:
All detenues requiring medical check up either under court order or Jail doctor must be referred/sent to Sanatnagar hospital Srinagar and nowhere
else (.) Further if advance/ specialized treatment required such cases be referred to this office for orders (.) To avoid delay telephone
communication be used (.)
Message dated 19.1.2000:
All Superintendent jails are directed to keep this office informed in advance in regard to hospitalization of important prisoners in the Jail in
connection with militancy (.) A list of all prisoners presently admitted in the State hospitals be sent with full details by 22nd Jan. 2000 (.) Matter
urgent(.) b/ Further during the visit to Central Jail Sgr. from 22nd to 24th January, 2000 by the Addl; Director General Prisons and Fire Servicesit
was strongly emphasised upon the Superintendent Jail and Jail doctors not to refer any militants to Government hospital and in case of acute or
serious ailment they may be referred to the police hospital after obtaining permission from the Direction office.
c/ Dental Surgeon of Jail has no reason or justification to refer these militants to the hospital. It creates doubts about the motives of such medical
reference requiring deeper probe. d/ Superintendent jail was duty bound to check the genuineness of these medical reference to the hospital
particularly in the context of repeated and clear instructions not to send the militants to the hospital unless the genuineness of the ailment is
completely confirmed and orders obtained from the Direction Office.
e/ the requisition for the police escort was made for 6 under trials/militants from the District Police Lines Srinagar and the Strength of the escort
should have been at least between 12 to 15 police men. It was also the duty of the jail Superintendent to see that the police escort was sufficient in
strength to take charge of these 6 militants to take them to hospital and bring them back. Jail Superintendent should have asked for stronger escort
and requested the DPL for the same.
f/ The requisition for the escort was made by the Assistant Superintendent Jail who has no authority to make such requisitions.
Sequence of events reveal negligence in the performance of duties, lack of sense of responsibility and noncompliance of instructions on the part of
a/ Sh. Javed Masood Fazili, Dy. Superintendent Jail working as I/c Supdt. Central Jail Srinagar. b/ Dr. Mohd. Ayub Dental Surgeon Central Jail
Srinagar c/ Sh. Mohd. Yousuf Dar Assistant Superintendent Main gate Central Jail, Srinagar.
In fact this is the only material available on file on the basis of which the constitutional functionaries have based their satisfaction. There is no other
material relevant for our purposes on file.
A perusal of this report would show that though the Addl. Director General has found the most serious and glaring lapses on the part of the
petitioners but it nowhere provides any material to indicate that conducting of the enquiry in the matter was not expedient in the security of the
state. In fact in para c of the report the Addl. Director General has himself suggested ""deeper probe"" in the matter.
As indicated above there is no other material on file on the point. How therefore the Chief Minister has arrived at the conclusion that it was not
expedient to hold an enquiry in the case is not clear. The lapse on the part of the petitioner is no doubt very serious and deplorable. If the same is
established it may entail the penalty of dismissal but that can be done only after proper enquiry under the provisions of the relevant service rules.
In Indian Rly. Construction Co. Ltd. v. Ajay Kumar,(20Q3) 4 SCC 579 it was held if an act of an employee reflects upon his devotion to duty or
is an unbecoming act, the employer can take action against him. The Court observed:
If an act or omission of an employee reflects upon his character, reputation, integrity or devotion to duty or is an unbecoming act, certainly the
employer can take action against him. In this context, reference may be made to the following observations of Lopes, C.J. in Pearce v. Foster
(QBD p. 542):
If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate
dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is
conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if
he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.
From the enquiry the authorities could have also find out the degree of involvement of each of the petitioner and proper penalty for the acts.
Since no enquiry has been conducted we are required to see whether there was material before the authorities on the basis of which they found
that in the security of the state it was not expedient to hold such an enquiry . To arrive at the conclusion whether the petitioners have committed an
unbecoming act the authorities should have conducted an enquiry.
Besides Addl. Director General of Prison other functionaries who have dealt with the case too are silent about any ground for dispensing with
the enquiry under section 126(2) (c).Principal Secretary Home, who has suggested penalty of dismissal on the petitioners has proposed the
following two actions against the petitioners:
a. Placing under suspension of all officials mentioned in paras 34 and entrusting the inquiry into the incident to a senior Officer like the Divisional
Commissioner, Kashmir.
b. Alternatively, Shri Javed Masood Fazili, I/C Supdt. Central Jail, Srinagar, Dr. Mohammad Ayub, Dental Surgeon, Central Jail, Srinagar, Shri
Gh. Nalbi, HC and Shri Tariq Ahmed Const, may be dismissed from service straightway invoking the provision of section 126 of Constitution. Ct.
Tariq Ahmed is the one who had accompanied the escapee to the urinal and removed his handcuff (Action against the remaining officials of Police
escort can wait till the outcome of the enquiry being conducted by the DIG, Kashmir.
He has however recommended alternative mentioned at 'b' for 'deterrent effect'. This note was later approved both by MOS(Home) and the
Chief Secretary. The same action was recommended by the Chief Minister. Thus the action of dispensing with the enquiry was taken not in the
interest of the state but for a 'deterrent effect'. This again indicates that satisfaction of the Governor is based on irrelevant considerations.
From this it is therefore evident that the Governor has proceeded in the matter on the recommendations of the Chief Minster and that the Chief
Minister had in fact absolutely no material before him to arrive at the subjective satisfaction that it was not expedient to hold any enquiry in the
interest of security of the state. It is therefore a case where the Governor has based his satisfaction with out having any relevant material before
him. The action of the Governor in such circumstances cannot stand.
In view of this finding 1 need not to go to other grounds raised by learned Counsels for the petitioners.
The result is that these petitions are allowed and the orders impugned in the present petitions are quashed. The respondents may proceed in the
matter in accordance with the rules and hold a regular enquiry in the case proving reasonable opportunity of being heard to the petitioners.
Order accordingly.