RAIS AHMAD GAZI Vs. STATE OF J&K

JUDGEMENT

(1.) BY way of this common judgment, we propose to dispose of the two LPAS titled "Rais Ahmad Gazi versus State of J&K and others" (LPA No, 72/87) and "Syedan Shafi versus State of J&K and others" (LPA No. 68/95), for, these appeals give rise to identi ­cal questions of law and fact for determina ­tion by the Court. LPA No. 72/87 has arisen form the writ -court judgment dated 8.10.1987 passed in SWP No. 1192/85 (for short Rais Ahmads case) and LPA No. 68/95 has arisen from the judgment of the writ court dated 22.9.1995 passed in SWP No. 1326/93 (for short Syedan Shafis case). The appellants in their aforesaid writ peti ­tions had challenged the orders of termina ­tion passed by the Governor under Section 126(2) (c) of the Constitution of Jammu and Kashmir (shortly put as the State Constitu ­tion hereinafter) dated 15.10.1985 and 25.6.1993 respectively. The order of the Governor passed against Shri Rais Ahmad is quoted hereunder -

(2.) THE facts from which LPA No. 72/ 78 emanates are that the petitioner was ap ­pointed as a Tracer in the year 1975 in Civil Investigation and Designs Wing of Power Development Department, Srinagar and was posted at Sopore. He worked upto 1984 as such and was, thereafter, appointed against the post of Junior Assistant substantively against a clear vacancy. Facts reveal that the petitioner had been detained under the pro ­visions of J&K Public Safety Act, 1978 by District Magistrate, Srinagar in terms of or ­der dated 3rd April, 1985. The order of de ­tention, according to the petitioner, had been issued on improper grounds, therefore, it was quashed by this court vide order dated 5th June, 1985. The petitioner is alleged to have had links with secessionist organizations like Peoples League and other organizations who were to work to try to secede the State of Jammu and Kashmir from the rest of the country. It was alleged that the petitioner had links with anti -national activities which had nexus with the security of the State. On the basis of CID diaries, the then Director Gen ­eral of Police, J&K submitted a note to the then Chief Minister at whose behest the Gov ­ernor felt satisfied that, in the interest of the security of the State, it was not expedient to hold enquiry and, therefore, without such enquiry, passed the aforementioned order under the provisions of Section 126 (2) (c) of the State Constitution dismissing the peti ­tioner from service. This order was challenged by the petitioner in this court through the medium of SWP No. 1192/85. In his writ petition and the detailed Rejoinder, the peti ­tioner refuted the charges that he was linked with any organization which was against the national interests. He categorically declared to be loyal to the country and the State, and refused to accept that he was involved in any anti -national activity or had links with any organization which was against the national interests. However, after hearing the learned counsel on both sides, the writ court, vide its judgment dated 8.10.1987, upheld the or ­der passed by respondent No. 2. Hence this appeal against the said order of the writ court dismissing the writ petition.

(3.) BRIEF resume of the facts of LPA No. 68/95 (Syedan Shafis case) is that the ap ­pellant was working as a Block Development Officer in Rural Development Department and was posted at Anantnag in 1992. It is alleged that there was a scandle of embezzle ­ment and misappropriation of huge amount in the Rural Development Department, Anantnag. This lead to the dismissal of serv ­ices of fourteen officers, including the appel ­lant, in terms of various orders passed un ­der Section 126(2)(c) of the State Constitu ­tion. Appellant was dismissed in terms of order dated 25.6.1993 quoted hereinabove. The appellant challenged the said order through the medium of SWP No. 1326/93 in the writ court on various legal and factual grounds He, inter alia, contended that he was not involved in any misappropriation. Accord ­ing to him, he was allocated an amount of Rs. 61.80 lacs out of which he spent Rs. 41.50 lacs to liquidate the liabilities created by his predecessor -Block Development Of ­ficers, and rest of the money he did not op ­erate upon. He contended that the Vigilance Organization of the State was seized of the matter, they were investigating into the mat ­ter and that the investigation was not com ­plete. However, two FIRs (No. 10 and 15 of 1993) had been registered relating to the aforesaid scandle wherein petitioner too had been falsely implicated. According to the ap ­pellant, the embezzlement case had no nexus with the security of the State. There was no reason, nor any occasion, to dispense with the departmental enquiry into the matter under Section 126(2) of the State Constitu ­tion. According to him, it was his fundamen ­tal right that before termination of his serv ­ice, a proper enquiry should have been con ­ducted giving him an opportunity of being heard. In the writ petition, he had urged that once the case had been registered and it was open to an open criminal trial, there was no expediency in with -holding the enquiry. In the embezzlement case, it is the bounden duty of the Governor to get the matter probed into and pin point the involvement of accused persons in the public interest. Many other legal points, similar to those taken in Rais Ahmads case, were taken before the writ court by the present appellant. However, the pleas taken by the appellant did not find fa ­vour with the writ court. The writ court, there ­fore, up -held the coder passed by the Gov ­ernor and dismissed the writ petition. Hence this appeal.