Decided on May 28,1999

Gh Jeelani Bhat Respondents


BHAWANI SINGH,J - (1.) This Letters Patent Appeal is directed against the judgment of Single Judge dated January 29, 1997, whereby writ petition has been allowed and order No. Home -410 of 1991 dated August 21, 1991 has been quashed and the State directed to take back the petitioner in service as if the order of dismissal impugned in the writ petition had never come into existence, with all consequential benefits, which accrue to the petitioner from the date of issuance of impugned order.
(2.) PETITIONER was dismissed by Government order NO. Home -410 of 1991 dated August 21, 1991 by the Governor in exercise of power under Clause (c) of the proviso to Sub -Section (2) of Section 126, Constitution of Jammu and Kashmir and Sub -Clause (c) of the proviso to Clause (2) of Article 311 of Constitution of India and in the interest of the security of the State holding of enquiry against the petitioner was not found expedient. Precisely. Order runs as under: Government of Jammu and Kashmir, Civil Sectt., Home Department. Sub: Termination of services of Sh. Ghulam Jeelani Bhat S/O Gh. Mohammad R/O Saidakadal, Srinagar working as Fireman in J&K Fire Services. Govt. order No. Home -410 of 1991 Dated. 21.8.1991. Whereas the Governor is satisfied that the conduct and activities of Fireman Shri Ghulam Jeelani Bhat S/O Gh. Mohammad working as Fireman J&K Fire Services are detrimental and prejudicial to the security of the State and therefore, it is necessary that the said Ghulam Jeelani Bhat S/O Gh. Mohammad R/O Saidakadal, working as Fireman should be dismissed from service in public interest and. Whereas, the Governor is further satisfied that in terms of Clause (c) of the proviso of Sub -Section (2) of Section 126 of the Constitution of J&K in the interest of the security of the State, it is not expedient to hold an inquiry against the said Gh.Jeelani Bhat, Fireman. Now, therefore, the Governor in accordance with provisions of Section 126 of the Constitution of Jammu and Kashmir read with Article 311 of Indian Constitution, hereby dismiss the said Ghulam Jeelani Bhat, Fireman, J&K Fire Services with immediate effect. By order of the Governor of Jammu and Kashmir. Sd/ - Addl. Secretary to Govt. Home Deptt .
(3.) PETITIONER challenged the above order. Despite several opportunities, Appellant did not file counter affidavit, nor the record was made available to the court, with the result that Single Judge proceeded to decide the case on merit. After taking into consideration the decision of this court in SWP No. 352/1990, (Mohammad Shafi Mir Versus State of Jammu and Kashmir) decided on 4 -12 -1996, Single Judge ruled that action taken under Section 126(2)(c) of the State Constitution, Judicial Review is permissible within parameters laid down by the Apex Court in AIR 1995 SC 1403 (A.K. Koul and another Vs. Union of India and another) based on earlier decision of the same Court in 1994 (3) SCC 1, (S.R. Bommai Versus Union of India). Since the State did not raise any defence, dismissal of petitioner in terms of Section 126(2)(c) of the State Constitution was not sustainable. Reliance on a decision of this Court in 1995 SLJ 19 (Nazir Ahmad Dar Versus State and others) has been placed for arriving at this conclusion. Appellant has challenged this decision through this Appeal. Shri M.H. Attar, Additional Advocate General, contended that judgment passed by Single Judge is liable to the set aside on the ground that it is not based on facts of the case in the absence of which judgment referred to in the judgments by Single Judge cannot be applied. In support of the contention, confidential file was produced before us for perusal. Shri Altaf Haqani, counsel for petitioner, contended that when the Appellant failed to file objections despite several opportunities, the Single Judge had no other alternative but to decide the case accepting the facts contained in the petition.;

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