- (1.) Heard Mr. T.Rajendra, Mr. Kh. Tarunkumar, Mr. Th. Khagemba, learned counsel for the petitioners/appellants. Also heard Mr. H.Raghumani, learned Government Advocate for the State respondents.
(2.) These three writ petitions, WP(C) No. 706 of 2009, WP(C) No. 707 of 2009 and WP(C) No. 476 of 2013 along with two writ appeals, WA No. 2 of 2013 and WA No. 3 of 2013 are heard together and disposed of by this common judgment and order considering the fact that all these writ petitions/appeals involve similar dismissal orders issued by the authority invoking the same provision of clause (c) to the second proviso to Article 311(2) of the Constitution of India without holding any departmental enquiry against them. As all the impugned dismissal orders are similarly worded, only the dismissal order in W.P.(C) No. 706 of 2009 is reproduced herein below for reference : "ORDERS BY THE GOVERNOR : MANIPUR Imphal, the 31st October, 2009 No. 12/1(14)/08-H(Misc)(C) : Whereas, the Governor of Manipur is satisfied under sub-clause(c) of the proviso to clause (2) of Article 311 of the Constitution that in the interest of the security of the State it is not expedient to hold an inquiry in the case of Md. Abdul Khalique's (Constable No.988032 of Thoubal District) involvement and association with subversive activities; 2. And whereas, the Governor of Manipur is satisfied that, on the basis of the information available, the activities of Md. Abdul Khalique are such as to warrant his dismissal from service . 3. Accordingly, the Governor of Manipur hereby dismisses Md. Abdul Khalique, Constable No.988032 of Thoubal District from service with immediate effect. By orders & in the name of Governor Sd/- (Th. Amalkumar Singh) Deputy Secretary(Home) Govt. of Manipur ----- To Md. Abdul Khalique@ Khalique, Constable No.988032 of Thoubal Distt. S/O Md. Abdul Helim of Yairipok Ningthounai Mayai Leikai, PS-Yairipok, Thoubal District, Manipur. Copy to:- 1. Secretary to H.E. the Governor of Manipur, Raj Bhavan, Imphal. 2. Secretary to Hon'ble Chief Minister, Manipur. 3. Chief Secretary, Govt. of Manipur. 4. Director General of Police, Manipur. 5. Commissioner (Home), Govt. of Manipur. 6. Inspector General of Police (Admn)/ (L&O-II), Manipur. 7. Supdt. of Police, Thoubal District.- he is requested to please hand over copy of the order to Md. Abdul Khalique, Constable No.988032 of Thoubal District and obtain acknowledgement of receipt and send to State Home Deptt. for record. 8. Guard file." WP(C) No. 706 of 2009
(3.) In WP(C) No. 706 of 2009, the petitioner, Md. Abdul Khalique has challenged the aforesaid dismissal order dated 31.10.2009 issued by invoking the provision under clause (c) of the Second Proviso to Article 311(2) of the Constitution of India. [3.2] It is the case of the petitioner that the petitioner entered service as a constable having been appointed under order dated 26.10.1998 and had undergone necessary police verification and training. It has been stated that in course of his service, the petitioner was involved in various counter insurgency operations because of which, the petitioner earned many laurels. In recognition of the commendable service rendered by him, he was recommended to undergo the course on "CounterInsurgency and Combating Terrorism" w.e.f. 11.9.2006 to 20.10.2006 in the North Eastern Police Academy which he successfully completed. He was also awarded "Good Service Marks". However, to the great shock and surprise to the petitioner, inspite of his meritorious service rendered and having taken part in various counter insurgency operations, the impugned order was issued on 30.10.2009 dismissing him from service without holding any enquiry and informing him of the charges against him on the ground that, it is not expedient to hold an enquiry in the interest of the security of the State by invoking the provisions of clause (c) to the second proviso to sub-clause(2) of Article 311 of the Constitution of India. [3.3] Mr. Rajendra, learned counsel for the petitioner, has raised several grounds to challenge this dismissal order. Firstly, it has been contended that the petitioner was never arrested nor was he charged in connection with any criminal case nor any criminal case was pending against him before the issuance of the dismissal order, which clearly indicates that he is not involved in any illegal activity. Thus, it is the contention of the petitioner that if the petitioner was indeed involved in any serious crime or subversive activity, which necessitated the authorities to invoke this extreme provision to dismiss him from service without holding any enquiry, he must have been accused of for involving in some serious crime which was never the case. [3.4] Secondly, it has been contended that the entire allegations against the petitioner for invoking the said stringent provision as reflected in the affidavit-in-opposition of the state authorities are based on the statement made by one M.I.Khan, who was once a leader of the banned organisation called "Peoples United Liberation Front (PULF)". It has been submitted that apart from the allegations based on the statement made by the said M.I.Khan, who is now a free person, there is no other allegation against the petitioner to warrant any penal action. Thus, except for mere allegations made by the said M.I.Khan which is uncorroborated, there is no substantive evidence or material at all to support the allegations made against the petitioner of being involved in various crimes which the petitioner has been accused of committing, as detailed in para No. 5 of the affidavit-in-opposition filed by the respondents No.1, 2 and 3. Mr.Rajendra submits that if the petitioner had indeed been found to have indulged in any of the aforesaid serious crimes narrated in the affidavit-in-opposition based on the statement made by M.I.Khan, it would have been natural that he would have been arrested or charged in connection with these crimes. However, the authorities never proceeded against the petitioner by way of filing any case or arresting him in connection with the alleged criminal activities said to have been indulged as disclosed by the said M.I.Khan and in the affidavit-in-opposition filed by the respondents. [3.5] Mr.Rajendra, further submits that the facts and circumstances as disclosed in the records would clearly reveal that the charges are all baseless. He submits that though the petitioner has been primarily charged of being an active member of the PULF and having committed various criminal activities, he himself was subjected to various kinds of threats and harassments by the same organisation. The petitioner was directed to surrender before the PULF, of which the petitioner has been accused of being a member and working for. He was warned by the PULF to surrender to them as per a newspaper item appearing on 31.01.2008, or else to face dire consequences. That apart, there was an attempt to abduct the petitioner's younger brother by some armed unknown persons. Thus, the petitioner himself was a victim of the armed organisation rather than being a party to its activities. The petitioner submits that these factual aspects would clearly indicate that the charges against the petitioner are not correct and hence, invoking the stringent provision of Article 311(2) second proviso clause (c) of the Constitution of India to dismiss him from service in the present case is not at all warranted. If the petitioner had been at all involved in all the criminal cases or subversive activities as alleged, there is no reason why the State did not take any action against him by instituting appropriate criminal cases which has not been done in the present case which clearly indicates the innocence of the petitioner. [3.6] Thirdly, it has been stated that while the dismissal order was issued on 31.10.2009, it has been mentioned in the affidavit-in-opposition of the respondents No.1, 2 and 3 in para No.7(b) that the Governor approved the recommendation of the Committee of Advisors for dismissal of the petitioner only on 24.12.2009. Thus, while the Governor approved the dismissal of the petitioner from service only on 24.12.2009, the dismissal order seems to have been issued earlier on 31.10.2009 which clearly indicates non-application of mind on the part of the authorities while issuing the dismissal order. [3.7] In this connection, Mr. Rajendra has relied on the decision of the Hon'ble Supreme Court rendered in the case of A.K.Kaul vs. Union of India, 1995 AIR(SC) 1403 in which it has been stated that exercise of power under clause (c) of the second proviso to Article 311(2) of the Constitution of India is subject to judicial review and the authorities are under obligation to satisfy the Court with the relevant materials as to how the Governor had arrived at the subjective satisfaction to the effect that in the interest of the security of the State, it was not expedient to hold such a inquiry and dismiss an employee. He submits that the materials relied upon by the authorities for issuing the dismissal order are not valid materials in the eyes of law. [3.8] He also referred to the judgment rendered in the case of Union of India & anr. vs. M.M.Sharma, 2011 11 SCC 293 reiterating the same principle. He also relied on the decision of the Gauhati High Court passed in Lungsorei @ Nungsirei Kabui & ors. vs. Special Secretary (Home), Govt. of Manipur & ors., 1999 3 GauLT 507 to contend that approval by the Governor by merely recording the single word "approved" does not satisfy the requirement of law. It has been contended that the Governor has to be satisfied personally, and the matter in which the interest of the security of the State has to be considered should receive the personal attention of the Head of the State and thus, the Governor was required to record a speaking order. It has been contended that in the present case, it has not been recorded that the Governor was personally satisfied that in the interest of the security of the State, it is not expedient to hold an enquiry. WP(C) No. 707 of 2009;