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Srinagar, Aug 31: Noting that there is a clear distinction between President or the Governor’s power under Article 311(2)(c) of the Constitution and J&K Bank’s Managing Director and CEO’s power under Clause 12.29 of the Officers Service Manual, the High Court of J&K and Ladakh has quashed the dismissal of a J&K Bank’s Officer.
A bench of Justice Sanjay Dhar, held that the bank could not invoke Clause 12.29 of OSM to terminate an employee without a departmental inquiry unless all mandatory preconditions prescribed under the provision were fulfilled.
One employee was terminated as Deputy General Manager on July 15, 2024, following which he petitioned through his counsel to assail the dismissal.
His contention was that his dismissal was illegal and arbitrary, in as much as the conditions prescribed in Clause 12.29 of the OSM for invoking the drastic powers given to the MD and CEO of the bank under the clause were not fulfilled in his case.
He pleaded that neither any FIR had been registered against him nor any investigation was conducted by any state, UT, or central investigating agency into the allegations regarding his involvement in "terrorist or anti national activities".
The court ruled that four conditions must be satisfied before the MD and CEO of the bank can exercise powers under Clause 12.29.
These include an investigation by a state, UT, or central investigating agency; a finding that the employee was directly or indirectly involved in terrorist or anti-national activities or posed a threat to national security and the sovereignty and integrity of the country; advice for removal or dismissal by a competent government authority not below the rank of Principal Secretary or Director General of Police; and dismissal on the basis of such advice without departmental proceedings.
The court made it clear that unless these conditions were fulfilled, an employee of the bank could not be removed or dismissed without holding a departmental inquiry.
It rejected the contention that the powers available to the Bank's MD and CEO under Clause 12.29 were on the same lines as those exercised by the President or Governor under Article 311(2)(c) of the constitution.
The court held that unlike Article 311(2)(c), which does not require a prior investigation or advice from another authority, Clause 12.29 specifically incorporates these safeguards as preconditions for dispensing with a regular inquiry.
Moreover, the court observed that while the President and Governor, as high constitutional functionaries, are vested with the power to dispense with an inquiry in appropriate cases, the same level of discretion cannot be extended to an officer such as the Managing Director and CEO of a bank.
The specific preconditions in Clause 12.29 were deliberately incorporated to regulate the exercise of this drastic power, it noted. Regarding the case at hand, the court noted that it was an admitted position that no FIR had been registered against the petitioner.
While the petitioner argued that an investigation could not exist without registration of an FIR, the respondents contended that the term “investigation” under Clause 12.29 should be interpreted more broadly and could include collection of material even without an FIR.
The court underscored that although an FIR was not an essential prerequisite, the discreet verification and information gathered from confidential sources in the present case did not amount to an investigation as required under Clause 12.29.
Eventually, the court quashed the dismissal of the aggrieved Bank Officer and restored him to the status he held immediately before his termination, while leaving it open to the respondents to proceed afresh in accordance with the prescribed procedure or conduct a regular departmental inquiry.
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