DB upholds dismissial of Govt employee involved in stone pelting cases


Jammu, Apr 4: A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Justice Rajnesh Oswal and Justice Moksha Khajuria Kazmi uphold the dimsissial of Manzoor Ahmed Bhat who was posted as Assistant Accounts Officer in the Sericulture Department of Government of J&K and vide order dated 19.10.2016, the respondent No.1 by invoking clause (b) of proviso to subsection (2) of Section 126 of the Cons-titution of erstwhile State of J&K, dismissed the appellant from the service with immediate effect.
The respondents filed their response before the learned Writ Court stating therein that the appellant was found involved in anti-national activities such as taking active part in causing disturbance and disorder to the public peace, intimidation to general public, shopkeepers to observe shut down amid calls given by separatists and instigating youth to indulge in stone pelting as reported in the dossier submitted by the Additional Director General of Police, CID, J&K, Srinagar, vide communication dated 22.09.2016 along with other related documents. It was also reported that on 05.08.2016, the appellant had taken active part in anti-social, anti-national activities with the intention of creating law and order situation and exposing human life to threat, pelted stones upon the police as well as CRPF personnel at Alamdar Colony near P/S Cherar-e-Sharief, as a result of which the police officers/officials and CRPF personnel sustained injuries. The appellant was booked in FIR No.39 of 2016 under Sections 147, 148, 149, 336, 332, 427 of RPC registered with Police Station, Cherar-e-Sharief.
The appellant being a government employee was not expected to indulge in the aforesaid activities and rather was supposed to maintain absolute integrity, devotion to duty and do nothing which was unbecoming of Government employee. The activities of the appellant were not only aimed at questioning the sovereignty and integrity of India but were also in violation of Rule 14 and 20 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971.
In view of the prevailing situation and the charged atmosphere including threat perception to witnesses, it would not have been feasible for the witnesses to depose in case of an enquiry thereby rendering the possibility of procuring attendance of the witnesses impossible and in view of that situation, the competent authority was satisfied to dispense with the enquiry, as holding of enquiry against the appellant was not practicable in the given facts & circumstances. The competent authority as such by invoking power under clause (b) of the proviso to sub-section (2) of Section 126 of the Constitution of erstwhile State of Jammu and Kashmir, dismissed the appellant from service. The stand of the respondents is that all the constitutional requirements have been duly followed by them while issuing the impugned order of dismissal.
DB after hearing Adv Ateeb Kanth for the appellant whereas Advocate General DC Raina for the UT, is of the considered view that subsequent acquittal in the FIR would not tilt the scale in favour of the appellant for the purpose of interfering with the order of his dismissal. In a case titled "Ved Mitter Gill v. UT, Chandigarh, (2015) 8 SCC 86, the competent authority had invoked clause (b) of the second proviso under article 311(2) of the constitution of India against the delinquent government employee and besides raising other issues, it was contended by the delinquent employee that regular trial was going on against him and others in respect of FIR and if witnesses can appear in open court proceedings before trial court, then on same set of allegations they could have easily appeared in departmental proceedings as well.
It was also contended by learned counsel for the appellant that unblemished service record of the appellant was not taken note of by the competent authority while passing the order of his dismissal from service. This can hardly be a ground to show indulgence for the purpose of upsetting a well-reasoned order passed by the competent authority as the performance of official duties by the appellant is one aspect and his conduct of indulging in activities threatening public order and peace by intimidating general public/shopkeepers to observe shutdown amid calls given by the separatists and instigating young generation to indulge in stone pelting is another aspect, which conduct is in fact unbecoming of government employee and once the competent authority has come to the conclusion that the activities of the appellant are unbecoming of government employee, then the standard of performance of government employee in discharge of his official duties would not have any bearing upon the decision arrived at by the competent authority.
DB examined the judgment passed by the writ court and this Court is of the considered view that the Writ Court has rightly dealt with the issue and we do not find any reason to interfere with the same. The present appeal is found to be without merits and the same is, accordingly, dismissed. JNF

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