TANVEER SALEEM DAR Vs. STATE AND ORS.

JUDGEMENT

(1.) Petitioner-Tanveer Saleem Dar, Constable No. 1134 of 1st Bn. Auxiliary Police, Srinagar, is allegedly involved in subversive activities detrimental and prejudicial to the security of the State. Number of cases are registered against him for commission of various offences. Noticing the activities of the petitioner highly prejudicial to the security of the State, has been dismissed from service vide order No. 279 of 2004 dated 28.06.2004 passed by the Commandant Auxiliary Police 1st Bn. Srinagar, which is impugned in this writ petition. Learned counsel for the petitioner, while projecting the case of the petitioner contended that the order impugned providing for dismissal of the petitioner has been passed without authority of law. Buttressing his submission highlighted that the Commandant who has passed the order impugned has exercised the powers under Section 126 of the Constitution of Jammu & Kashmir read with Article 311 of the Constitution of India, by mentioning therein that he is satisfied so in the interest of security of the State it shall not be expedient to hold enquiry, when such power can be exercised only by the Governor.

(2.) Confronted with the legal position, Mr. Khan, learned AAG, would submit that even if the order is quashed, respondent authority may be left free to initiate departmental enquiry and to have resort to other measures.

(3.) While considering the rival submissions, what would emerge is that the Commandant who is competent to dismiss or remove a person when satisfied for reasons to be recorded that it is not reasonably practicable to hold the enquiry; he can pass the order of dismissal, which is covered under Clause-b to proviso to Sub Section 2 of Section 126 of the Constitution of J&K but the Commandant in effect has passed the order under Clause-c to proviso, as he has recorded that in the interest of security of the State it is not expedient to hold enquiry against the petitioner.