High Court overturns 2011 decision, upholds cop’s dismissal

Setting aside its single judge’s decision of 2011 that had quashed termination of a police constable from service, the High Court of J&K and Ladakh has upheld the dismissal of the cop accused of involvement in anti-national and terrorism-related activities.

A division bench of Justice Sanjeev Kumar and Justice Sanjay Parihar upheld the dismissal of Ghulam Muhammad Tantray, a driver constable in the J&K Police, while allowing J&K administration’s appeal against the single judge’s decision.

In his plea, Tantray had called in question a government order dated April 2, 2007 dismissing him from service by invoking Section 126(2)(c) of the erstwhile Constitution of Jammu and Kashmir, a provision corresponding to Article 311(2)(c) of the Constitution of India.

According to the case record, Tantray was arrested in 2004 in connection with FIR No. 06/2004 registered at Police Station Zadibal Srinagar under section 120-B of RPC and Sections 7/25 of the Arms Act. He was accused of maintaining contacts with a Pakistani terrorist, arranging a hideout for him, and possessing hand grenades recovered during searches conducted by police.

In its decision, the single judge bench had set aside Tantray’s dismissal order, holding that the authorities had failed to explain why an ongoing departmental inquiry was abandoned midway and replaced with action under Section 126(2)(c).

In response to the appeal against the single bench decision, the division bench found that the writ court overlooked substantial material placed on record, including reports, intelligence inputs, recommendations of a committee headed by the Chief Secretary, and a detailed memorandum approved by the Cabinet before being forwarded to the Governor.

The material showed that Tantray was allegedly involved in subversive activities aimed at the disintegration of the country and posed a serious threat to the security of the State, the court observed.

Citing the government memorandum, the bench pointed out that a regular inquiry was considered inexpedient because witnesses were unlikely to testify against the respondent due to fear of militant reprisals and because conducting an inquiry could endanger the lives and property of inquiry officials and witnesses.

The bench extensively discussed constitutional provisions governing dismissal of government servants without inquiry in cases involving national security and referred to Supreme Court judgments.

“While the Governor’s satisfaction under Section 126(2)(c) is subject to limited judicial review, courts can interfere only if the decision is mala fide, arbitrary, or based on irrelevant material”, the bench said, observing that in the present case there was ample material supporting the government’s decision.

The Court noted that it should be taken as well settled that under Section 126(2) of the Constitution of Jammu and Kashmir/Article 311(2) of the Constitution of India, ordinarily no civil servant can be dismissed, removed, or reduced in rank without informing him of the charges, holding a departmental enquiry, and granting him a reasonable opportunity of hearing.

However, the court underscored that the second proviso carves out three exceptions– conviction on a criminal charge, referable to Article 311(2)(a)/Section 126(2)(a) of the Constitution of J&K; where it is not reasonably practicable to hold an enquiry, referable to Article 311(2)(b)/Section 126(2)(a) and where it is not expedient to hold an enquiry in the interest of the security of the State, referable to Article 311(2)(c) Section 126(2)(c).

While the court noted that 21 Clause (c) is the most stringent exception because it is founded on considerations of national and state security, it said. “The expression “security of the State” has a very high threshold”. “It generally concerns terrorism, espionage, militant links, activities threatening the sovereignty and integrity of the country, and grave anti-national conduct, etc”.

The action to be taken by the President/Government in the interest of the security of the State must be based upon the subjective satisfaction drawn on the aid and advice of the Council of Ministers, the court said.

“His satisfaction regarding the expediency of enquiry is final, and he is not supposed to disclose the facts on which it is based either to the civil servant concerned or to any authority”

“Though the judicial review of such satisfaction drawn by the President/Government on the aid and advice of the Council of Ministers is very limited and constricted, yet the constitutional Courts are not debarred from judicially reviewing such satisfaction if it is vitiated by mala fides, absence of relevant material, arbitrariness, and above all, if it does not generally concern the security of the State,” the court said.

Setting aside the single judge’s decision, the division bench held that the court had erred in concluding that there was no material to justify dispensing with a departmental inquiry. The bench allowed the appeal and restored the dismissal order.