GH MUSTAFFA Vs. STATE OF J&K

JUDGEMENT

(1.) THIS matter involves petitioners removal from service in exercise of power under sec. 126 (2) (b) of the state constitution corresponding to Art, 311 (2) (b) of the Federal Constitution. Even though reply stands filed by the official respondents, their counsel had prayed for three days time to produce the relevant record/material to indicate the basis for dispensing with the Inquiry against the petitioner in tune with the established legal position on the subject matter. He failed to do so even within one week. In the circumstances this petition is decided in the absence of any material/ record produced by the official respondents.

(2.) PETITIONER was a selection grade constable in the Police Department. He figured alongwith some other in FIR No. 3/90 under Sec. 302 R.P.C. registered in connection with a custodial death. He was placed under suspension and later removed from service vide order No. 470 of 1990 dated 30 -8 -1990 in exercise of power under Sec. 126(2} {b) of the State Constitution and the ground that "he was evading his presence by being absent and It was not reasonably practicable to hold an inquiry into his absence from duty as well as his involvement in anti -national activities,"

(3.) PETITIONERS primary grievance is that the ground taken by the disciplinary authority for dispensing with the inquiry was factually incorrect. It is submitted in this regard that he was posted in police line Doda when he was placed under suspension on 19.1.1990 whereafter he remained present in the police line all along till he was removed from service vide impugned order dated 30.8.1990 till his removal from service vide Impugned order dated 30.6.1990. He was paid subsistence allowance till his removal which stands corroborated by the acquittance rolls, cash book etc. In the circumstances It could not be said that It was impracticable for the concerned authority to hold an Inquiry against him because of his alleged absence. It Is also made out that upon the reading of the Impugned order, the concerned authority had taken note of his alleged anit -national activities Including his challenge to the accession of the state with the country which was suggestive of the fact that his removal was connected with the activities which were alleged to be against the Interests of the Security of the State. That being so, respondent No.2 was incompetent to remove him from service under Sec. 126{2) {b} and In that case he could have been removed only by the Governor in excise of power under Sec. 126(2) (c) of the State Constitution. It is further contended that the order impugned was arbitrary, unreasonable and vitiated by male fides.