STATE OF J&K Vs. GHULAM NABI DAR

JUDGEMENT

(1.) State of Jammu and Kashmir and its officers have filed the instant Appeal under Clause 12 of the Letters Patent challenging the judgment and order dated 24-09-2005 rendered by the learned Writ Court setting aside order No.520 of 1993 dated 15-09-1993 passed by Superintendent of Police, Kupwara. By virtue of Order No.520 of 1993 dated 15-09-1993, the services of the petitioner-respondent were terminated by invoking the powers under Section 126(2)(b) of the Constitution of Jammu and Kashmir read with Article 311(2)(b) of the Constitution of India.

(2.) The basic reason for quashing the order detailed in the impugned judgment is that in the order dated 15-09-1993, no satisfaction had been recorded by the disciplinary authority for holding that it was not reasonably practicable to hold an enquiry into the matter. According to learned Writ Court, if the enquiry was dispensed with on the ground of security of the State, then under Section 126(2)(c) of the Constitution of Jammu and Kashmir the power, in such case, was required to be exercised by the Governor and not by the Superintendent of Police. The view of the learned Writ Court is discernible from the following paras of the judgment which are set out below in extenso:

(3.) Before embarking upon the legal issues raised, it would be necessary to notice few facts. The petitioner-respondent was appointed as a Police Constable in Police Department vide order No.163/83 dated 11.04.1983. On the allegation that he was involved in militancy related activities, he was arrested by Joint Investigation Centre, (JIC) Jammu, in case FIR No.3/91 of JIC, Jammu. Accordingly, he was placed under suspension vide order No.355/91 dated 25.6.1991 with effect from 12.06.1991. He did not report back to resume his duties nor any information regarding his whereabouts was furnished to the appellants. The appellants allege that on account of his involvement in the militancy related activities and keeping in view the disturbed law and order conditions in the Valley in the year 1991 when the militancy was at peak, it was not found reasonably practicable to conduct a regular enquiry in the matter and, as such, the competent authority, while exercising its powers under Section 126(2)(b) of the Constitution of Jammu and Kashmir, dismissed the petitioner-respondent vide order No.520 of 1993 dated 15-09-1993. However, the learned Writ Court has quashed the order of dismissal vide impugned judgment dated 24-09-2005.