The Division Bench of Justice Rajnesh Oswal and Justice Moksha Khajuria Kazmi, while setting aside the order of dismissal of petitioner from services under clause (b) of Proviso to sub-section (2) of Section 126 of the Constitution of the erstwhile State of J&K, observed that “the necessity of holding enquiry” is not the mandate of the aforesaid provision, and that Clause (b) of Proviso to sub-section (2) of Section 126 does not vest any such discretion with the competent authority to dismiss or remove or reduce in rank the delinquent employee only on the ground that there is no necessity of holding such enquiry.

The Bench was hearing a Petition wherein the Petitioner was dismissed from services under clause (b) of Proviso to sub-section (2) of Section 126 of the Constitution of the erstwhile State of J&K, which order was upheld by the Appellate Authority as well as by the Central Administrative Tribunal (CAT). The Petitioner challenged his dismissal mainly on the ground that in passing the order of dismissal, the respondents did not abide by the procedure established by law and observed the Police Rules as well as Section 126 of the Constitution of erstwhile State of J&K in breach. The stand taken by the respondents was primarily that there were serious allegations against the Petitioner and while considering the activities of the petitioner as highly prejudicial and detrimental for the maintenance of public order and detrimental for the security of the State, the Respondents had come to the conclusion that the activities of the petitioner are unbecoming of a police official. Further, it was stated that Respondent No.3 had recorded his satisfaction that in such circumstances “there is no need” to hold a departmental enquiry as the petitioner in his interrogation has himself confessed his nefarious activities.

The Division Bench while delving into the law on the subject and considering the case, observed that Clauses (a), (b) and (c) of proviso to sub-section (2) of Section 126 operate as exception to the general principle that no person who is a member of civil service of the State or holds a civil post in the State shall be dismissed, removed or reduced in rank except after an inquiry, wherein he is informed of charges and shall be afforded a reasonable opportunity of hearing in respect of the charges. The Court further noted that “Clause (b) of Proviso to sub-section (2) of Section 126 provides that where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reasons, to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry, then only such person can be dismissed or removed or reduced in rank by the said authority.”

However, looking into the facts of the case wherein the Respondents had instead of recording their satisfaction that it is not reasonably practicable to hold such inquiry, dismissed the petitioner from service by observing that there is ‘no need’ for enquiry, the Bench observed that the satisfaction to be recorded by the competent authority that holding of inquiry is reasonably not practicable due to some reason(s) is the constitutional obligation on the part of the competent authority before dismissing or removing or reducing the delinquent employee, and that Clause (b) of Proviso to sub-section (2) of Section 126 does not vest any such discretion with the competent authority to dismiss or remove or reduce in rank the delinquent employee only on the ground that there is no necessity of holding such enquiry. 

The Bench held, “’Necessity of holding an inquiry’ and the ‘Practicability of holding an inquiry’ are two different expressions, connoting different meanings and cannot be used interchangeably. Necessity would mean requirement whereas the Practicable would mean the ability to do something successfully”.

Further, with respect to the present case, it observed that the respondent No.3 has miserably failed to record its satisfaction that holding of an enquiry is not practicable due to certain circumstances, and that the mandate of clause (b) of Proviso to sub-section (2) of Section 126 has not been followed in its letter and spirit while issuing the impugned order of dismissal of petitioner from service, and as such set-aside the impugned order of dismissal as well as the order of the Appellate Authority and CAT.

However, in view of the seriousness of the allegations against the petitioner, the Court gave liberty to the respondents to proceed against the petitioner, if they so desire, strictly in accordance with the law.

The Court ultimately disposed of the Petition while calling upon the Govt.authorities to follow the mandate of the Constitution in its true letter and spirit so as to leave no chance/occasion for delinquent employees in such serious cases to make complaint in respect of infraction of constitutional mandate before the Court.