Jammu, Sep 16: The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has quashed the dismissal of a Jammu & Kashmir Bank Deputy General Manager accused of anti-national activities and restored his pre-dismissal status, while permitting fresh action under the prescribed procedure or through a departmental inquiry.
The Court held that termination without inquiry is a drastic measure reserved for rare cases and that Clause 12.29 could not be invoked without an investigation establishing the employee’s involvement, which source-based information and discreet enquiries did not constitute.
The petitioner joined Jammu & Kashmir Bank as a probationary Computer Engineer in June 1995 and was confirmed in service in October 1997. After holding several positions in the Bank, he became Deputy General Manager in 2022.
On April 15, 2024, the Bank suspended him pending investigation into alleged misconduct. He claimed that no grounds for the suspension were supplied and no inquiry was initiated.
On July 15, 2024, the Managing Director and CEO dismissed him with immediate effect under Clause 12.29 of the Officers Service Manual, based on advice received from government authorities concerning his alleged involvement in terrorist or anti-national activities.
Challenging the dismissal, the petitioner contended that no FIR had been registered and no State, Union Territory or Central investigating agency had investigated the allegations, as required by Clause 12.29.
The government authorities stated that a discreet police investigation had linked the petitioner to anti-national activities, including the “TortureKashmir” campaign and alleged connections with hostile foreign elements.
The authorities produced a confidential report based on information from sensitive sources, discreet enquiries and social-media posts. The Court examined this material while considering whether it constituted an investigation within Clause 12.29 and whether the provision’s preconditions had been satisfied.
Referring to Union of India and another v. Balbir Singh and another, the Court observed, “The High Court would be justified in interfering with such an order if the order is malafide or is based on extraneous or irrelevant considerations. It is further clear that correctness of the material or its adequacy cannot be gone into by the Court, nor the opinion of the competent authority can be substituted by the Court with its own opinion.”
The Court stated, “Article 311(2) clause (c) of second proviso, does not contemplate holding of an inquiry or an investigation before the President or the Governor records satisfaction that, in the interest of security of the State, it is not expedient to hold an inquiry in respect of an employee who is sought to be dismissed from service whereas, in Clause 12.29 of the OSM, certain preconditions have been laid down before the Managing Director of the respondent-Bank can invoke the power to dismiss the services of an employee of the Bank without holding an inquiry.” \\
The Court observed, “While the President and the Governor are high constitutional functionaries and, therefore, they can be trusted with the drastic power of dispensing with the services of an employee without holding an inquiry in appropriate cases, the same level of trust cannot be reposed in an officer of the level of Managing Director and CEO of a bank.”
The confidential report relied upon by the authorities was based on information from sensitive and credible sources, discreet enquiries and posts connected with the hashtag campaign “#TortureKashmir.” The Court stated, “The information obtained from sources or discreet enquiries made by the Director General of Police or any other competent authority would not fall within the meaning of expression ‘investigation’ as used in Clause 12.29 of the OSM, because the process of gathering such information does not involve collection of material/evidence or recording of statements of witnesses.”
It added, “The report of the Special DG, CID does not refer to any such process having been undertaken by any authority.” Termination without an inquiry requires strict compliance with the prescribed safeguards. The Court observed, “Dismissal of an employee from service without holding an inquiry is a drastic step, which has to be taken only in rare and appropriate cases.”
It further stated, “In the present case, in the absence of any investigation showing his involvement in anti-national activities, the power under Clause 12.29 of the OSM could not have been invoked against him.”
The Court held that, “The impugned order dated 15.07.2024, issued by respondent No.3, being unsustainable in law, shall stand quashed and the petitioner shall be relegated to the status which he was holding immediately prior to the passing of the impugned order.”
The respondents shall be at liberty to proceed afresh against the petitioner after fulfilling the requirements of Clause 12.29 of the OSM, as discussed hereinbefore, or in the alternative, the respondent-Bank shall be at liberty to proceed against the petitioner by holding a regular departmental inquiry contemplated pursuant to the order of suspension dated 15.04.2024.
|