JUDGMENT
V.K. Jhanji, A.C.J.
1. These Letters Patent Appeals, seven in number, and three writ petitions, have come up for hearing before this Court pursuant to order dated 5th October, 2001 passed by a Division Bench of this Court.
2. It so happened that, LPA Nos. 72/87 and 68/95, titled Rais Ahmad Gazi v. State of J&K and Syedan Shafi v. State of J&K, arising out of two distinct set of facts, were heard, decided and allowed by a Division Bench of this Court by a common judgment delivered on 7th April, 1997. That decision was followed in several writ petitions. Letters Patent Appeals were filed by the State which later came up for hearing before another Division Bench of this Court. The subsequent, Division Bench differed with the view taken by the earlier Division Bench. Being a Co-ordinate Bench, the latter Division Bench, in terms of order dated 5th October, 2001, ordered reference of all these matter to a larger Bench. That is how these matters have come to be listed before us. The three writ petitions, indicated above in the list of cases, arise from the same factual background as the Letters Patent Appeals. Same points of law are involved therein. Therefore, in term of order dated 18th May, 2000, passed by the Division Bench, these petitions have come to be clubbed with the Letters Patent Appeals. Relevant facts are noticed below.
3. It appears that, somewhere in the year 1992, some large scale embezzlements and misappropriation of public funds in the Rural Development, Anantnag, Kashmir, were reported. Apparently, intelligence reports suggested that the funds misappropriated were utilized for sustenance of militancy in the area. The matter was reported to Chief Secretary of the State. Preliminary enquiry into the matter was conducted by a high level committee who submitted their report. The matter was placed before the Governor of the State alongwith the report of the Intelligence Department. This led to dismissal from service of about fourteen employees, holding different ranks. The orders of dismissal in respect of each of these employees were passed separately in exercise of powers vested with the Governor under proviso (c) to Sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir (hereinafter referred to as “the State Constitution”). Respondents in the above seven Letters Patent Appeals and petitioners in the three writ petitions are ten of those fourteen dismissed employees. All the fourteen dismissed employees individually filed writ petitions before the Court challenging the orders of dismissal passed against them by the Government. Writ petition, bearing SWP No. 1326/93, filed by one of such employees, namely, Syedan Shafi, was dismissed by the learned Single Judge vide judgment dated 2nd September 1995. He filed Letters Patent Appeal No. 68/95 which was heard by a Division Bench of this Court alongwith another Letters Patent Appeal No. 72/87 titled Rais Ahmad Gazi v. State of J&K. The Division Bench, as observed above, by a common Judgment dated 7th April, 1997, allowed both the Letters Patent Appeals, set-aside the two judgments passed by learned Single Judges, quashed their orders of dismissal and allowed their respective writ petitions. That judgment is reported as Rais Ahmad Gazi & Syedan Shafi v. State of J&K, 1997 SLJ 178. Though in the above two cases, the orders of dismissal were passed on the ground that “in the interest of security of the State” it was “not expedient to hold an enquiry” yet; the facts involved in the two cases were markedly different. Following the decision of the Division Bench, rendered in Rais Ahmad Gazi & Syedan Shafi v. State of J&K (supra), seven petitions, namely, SWP Nos. 19 15 / 93; 2506 / 93; 1939 / 93; 1757 / 93; 1941 / 93; 1942 / 93 and 1756 / 93, were allowed by different Benches of the Court. Against the decisions so rendered by the learned Single Judges in these seven writ petitions, the State filed the above seven Letters Patent Appeals, These Letters Patent Appeals came up for hearing before a Division of this Court on 5th of October, 2001. After hearing learned counsel on both sides, the Division Bench passed, the following order :
“The aforesaid Letters Patent Appeals and the Service Writ petitions arise out of the impugned order passed by the appropriate authority on 25.6.1993. Considering the order that we propose to pass, material facts leading to the filing of the writ petitions and present appeal are obviated.
The controversies which are common in all the petitions is the order dated 25.6.1993 passed by the Governor, dismissing the services of the respondent/writ petitioners in exercise of the power conferred on him in terms of proviso (c) of Sub-Section (2) Section 126 of the Jammu and Kashmir Constitution.
The order reads :
Government of Jammu and Kashmir
General Admn. Department.
Sub: Dismissal from Government Service.
Government Order No. 545-GAD of 1993
Dated 25.6.1993.
4. Whereas the Governor is satisfied in terms of proviso (c) of Sub-section (2) of Section 126 of the J&K Constitution, that it is not expedient in the interest of security of the state to hold an enquiry against Shri Mohammad Shafi Bhat, Assistant Engineer (I/C Asstt. Executive Engineer), Block Kulgam, for various acts of omission and commission constituting misconduct in his capacity as Assistant Engineer (I/C Asstt. Executive Engineer).
5. Now, therefore, in exercise of the powers under Section 125 of the J&K Constitution vested in the Government, the said Shri Mohammad Shafi Bhat is dismissed from service. By order of the Governor.
Sd/-
Secretary to Government,
General Admn. Department’.”
6. The writ petitions filed by the dismissed Government servants having been allowed by the learned Single Judge, the State filed the present appeals.
7. The provisions of Sub-section (2)(c) of Section 126 of the Constitution of Jammu and Kashmir is in para-meteria of Sub-section (2)(c) of Article 311 of the Constitution of India. It reads :
‘(c) where the Governor is satisfied that in the interests of the security of the State, it is not expedient to hold such inquiry.’
8. At the out-set, the counsel for the respondents submit that the case at hand is squarely covered by the decision of the Division Bench of this Court rendered in Rais Ahmad Gazi and Ors. (Appellants) v. State of Jammu and Kashmir and Ors. (Respondents), 1997 SLJ 178. In that case same order dated 25.6.1993 has been assailed before the learned Single Judge by filling a writ petition which was dismissed by the learned Single Judge and on appeal being preferred, the Division Bench allowed the appeal by the aforesaid order.
9. Learned counsel for the parties particularly brought to our attention the finding recorded by learned Division Bench in paragraph 32 of the judgment. Paragraph 32 of the judgment is rather lengthy and to save time, we are not persuaded to quote the paragraph 32 which can be referred at an appropriate time as and when the occasion so arises. However, reading of the paragraph 32, it would clearly appear that at the time of hearing of the appeal, the materials proximate to the passing of the impugned order has been examined by the learned Division Bench and held that the materials which derived the satisfaction of the authority culminated in the passing of the impugned order was deficient for passing such order. Learned Division Bench was also of the view that the Governor has exercised the power, without application of mind.
10. The same file has been placed before us and we have examined the file. According to our view, there was sufficient materials for passing the order under Sub-section (2) (c) of Section 126 of the Jammu and Kashmir Constitution. We will now refer to the documents and materials contained in File No. GDC-54-93.
11. The materials relied upon by the appropriate authority is contained in secret letter dated 14th April, 1993 written by Additional Director General of Police, Criminal Investigation Department J&K, addressed to the Chief Secretary of Jammu and Kashmir State. This letter can be seen at page 27 of the file. It appears that pursuant to the letter, a High Levels Committee meeting of the officers was held on 18.6.1993 and submitted the report. The Governor considered the report including the report of Intelligence agency and passed the order on 25.6.93, the operative portion of which reads as under:
‘…I am of the view that the concerned officers be dealt with in terms of Section 126 of the Constitution of the State. After perusing the whole record, I am, however, satisfied that it will not be expedient in the interests of security of the State to hold an enquiry.’
(see page 32 of the file).
12. In the background of the aforesaid facts, let us now examine the law laid down by the Apex Court on the scope of Judicial review.
13. In A. K. Koul and Anr., appellants v. Union of India and Anr., Respondents, (1995)4 SCC 73, the Apex Court while examining the scope of judicial review in the order of dismissal passed under Article 311(2)(c) had held that the Judicial Review is permissible within the limits laid down in S.R. Bommai case.
14. In S. R. Bommai v. Union of India, (1994) 3 SCC 1, the Constitutional Bench of the Supreme Court has held that the order of the President or the Governor, as the case may be, passed in Clause (c) of Sub-section (2) of Article 311 can be examined to ascertain whether it will be vitiated, either by mala fides or is based on wholly extraneous and/or irrelevant grounds. The court also pointed out that the court cannot sit in appeal over the order or substitute its own satisfaction for the satisfaction of the President or the Governor, as the case may be. So long as there is material before the President which is relevant for arriving at his satisfaction, as to action being taken under Clause (c) of Sub-section (2) of Article 311, the court would be bound by the order so passed. In S.R. Bommai (supra), the Apex Court enunciated the scope of judicial review as under:
(1) that the order would be open to challenge on the ground of mala fide or being based wholly on extraneous and/or irrelevant grounds;
(2) even if some of the material on which the action is taken is found to be irrelevant the court would still not interfere so long as there is some relevant material sustaining the action;
(3) the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President/Governor.
Same view was reiterated by the Apex Court in Union of India and Ors. (Appellants) v. Balbir Singh (Respondents), AIR 1998 SC 2043.
15. Considering the law laid down by the Apex Court and on examination of the materials available on record, proximate to the passing of the order in exercise of the power under Sub-section (2) (c) of Section 126 of the Constitution of Jammu and Kashmir, we respectfully disagree with the views taken by the Division Bench in Rais Ahmad Gazi case (supra). Since this is a coordinate bench, we refer the matter to a larger bench for recpnsideration.
Registrar Judicial shall place the matter before the. Hon’ble Chief Justice on administrative side for constituting an appropriate bench.
Since the substantial question of law of public importance is involved in these cases, the learned Advocate General is requested to assist the court.
Before parting with the file, we may observe that the judgment of the Division Bench was taken by the State in appeal before the Supreme Court in Civil Appeal No. 7474-7475 of 1997 which was dismissed in default of the notice of service.
16. It is pursuant to the aforesaid order of the latter Division Bench that these matters have come up before us. We have heard Mr. A. H. Naik, learned Advocate General, assisted by Mr. A. M. Magrey, learned Additional Advocate General, as also learned counsel appearing for the respondents in the Letters Patent Appeals and petitioners in the three writ petitions.
17. Learned counsel for the respondents in the Letters Patent Appeals took a preliminary objection with regard to the competence of the Reference. It was argued that the Reference Bench has not pointed out any question of law or usage on which this Court is required to return a finding. According to them, the Reference is deficient and, in fact, preconditioned in as much as the learned Division Bench has wholly disagreed with the earlier Division and expressed its own opinion in the matter. Mr. A. H. Naik, learned Advocate General, on the other hand, submitted that it was not necessary for the learned Division Bench to frame a question on a point of law, or usage, and refer it to the larger Bench for an authoritative pronouncement. He submitted that once there was a difference of opinion, the case itself could be referred and, therefore, the Reference is competent. In this connection he referred to Rule 33 of the Jammu and Kashmir High Court Rules, 1999. For facility of reference Rule 33 is quoted hereunder:
“33. Reference to a large bench. — The Chief Justice may constitute a bench of two or more judges to decide a case or any question of law formulated by a bench hearing the case. In the later event the decision of such bench on the question so formulated shall be returned to the bench hearing the case and that bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein;
Provided that whenever in any case a Division Bench differs from other Division Bench of the Court on a point of law or usage having the, force of law such case or point shall be referred for decision by a larger bench to be constituted by the Chief Justice.”
(underlining supplied)
18. A bare perusal of the aforesaid provision of the High Court Rules makes it unambiguously clear that if a Division Bench differs from any other Division Bench of the Court on a point of law, or usage having the force of law, or even arrives at a different view than that taken by earlier Division Bench, such case shall be referred for decision by a larger Bench. Though in the instant case, no specific point of law has been formulated by the Division Bench yet, the areas of difference with the decision rendered by the earlier Bench have been indicated in the order quoted above. Once the Division Bench, after hearing learned counsel for the parties, was of a different view than the earlier Division Bench, being a co-ordinate bench, the only course left was to refer the case for decision by a larger bench. Specifying the areas of difference, or difference in views, cannot be said to be a preconditioned Reference or deficient in any manner.
19. The fundamental point of law involved in these cases is the scope and extent of judicial review in context of the observations made by the earlier Division Bench in paragraph 32 of the judgment in Rais Ahmad Gazi & Syedan Shafi v. State of J&K (supra). At the out set we may observe that the earlier Division Bench has noticed the correct position of law, as it stood on that day but, with respects, we may say that after noticing the position of law, the same was not correctly applied. We are not sitting in appeal over that judgment. Therefore, we will only state as to what is the law on the subject.
20. The question of judicial review came up for consideration before a nine-Judge Bench of the Supreme Court in S. R. Bommai v. Union of Indi, (1994) 3 SCC 1. In that case the subject matter of consideration was the power of the President exercisable under Article 356 of the Constitution of India. On the question of judicial review of exercise of such power under Article 356 of the Constitution, every member of the nine-Judge Bench agreed that a Presidential Proclamation issued under Article 356 was not completely beyond judicial review. All the Judges also agreed that mala fides provide a ground for judicial interference. However, there was no unanimity about the area and extent of judicial review and justiciability of the Presidential Proclamation. Mr. Justice Sawant and Mr. Justice Kuldeep Singh JJ (as their lordships then were), held that the President’s satisfaction has to be based on objective material and further that the objective material available either from the Government’s report or from other information, or both, must indicate that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The majority view, nevertheless, expressed was that, in judicial review, the court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant the court cannot interfere so long as there is some material which is relevant to the action taken. In a subsequent case, A. K. Kaul v. Union of India, AIR 199 5 SC 1403, the subject-matter under consideration was an order passed by the President in exercise of powers under Clause (c) of the second proviso to Article 311(2) of the Constitution of India. While referring to the judgment in S. R. Bommai v. Union of India (supra), the Apex Court reproduced the view of the majority in that case (S. R. Bommai’s case) in the following words :
“(i) the satisfaction of the President while making a Proclamation under Article 356(1) is justiciable;
(ii) it would be open to challenge on the ground of mala fides or being based wholly on extraneous and or irrelevant grounds;
(iii) even if some of the materials on which the action is taken is found to be irrelevant, the Court would still not interfere so long as there is some relevant material sustaining the action;
(iv) the truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President;
(v) the ground of mala fides takes in inter alia, situations where the Proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power;
(vi) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Union Council of Ministers are the best Judge of the situation and that they are also in possession of information and material and that the Constitution has trusted their judgment in the matter, and
(vii) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive.”
21. The Apex Court, while dealing with the A. K. Kaul’s case observed that there was no reason discernable from Clause (c) of second proviso to Article 311(2) of the Constitution for making a departure from the principles laid down in S. R. Bommai’s case. The Apex Court, accordingly, held that:
“An order passed under Clause (c) of the second proviso to Article 311(2) is subject to judicial review and its validity can be examined by the Court on the ground that the satisfaction of the President or the Governor is vitiated by mala fides or is based on wholly extraneous or irrelevant grounds within the limits laid down in AIR 1994 SC 1918.”
Identical question again came up for consideration of the Supreme Court in Union of India v. Balbir Singh, AIR 1998 SC 2043 and it was observed as, under:
“In the case of A. K. Kaul v. Union of India (1995 AIR SCW 2075) (supra) this Court has examined the extent of judicial review permissible in respect of an order of dismissal passed under second proviso Clause (c) of Article 311(2) of the Constitution. This Court has held that the satisfaction of the President can be examined within the limits laid down in S. R. Bommai v. Union of India [(1994)3 SCC 1: (1994 AIR SCW 2946)], The order of the President can be examined to ascertain whether it is vitiated either by mala fides or is based on wholly extraneous and / or irrelevant grounds. The Court, however, cannot sit in appeal over order, or substitute its own satisfaction for the satisfaction of the President. So long as-there is material before the President which is relevant for arriving at his satisfaction as to action being taken under Clause (c) to the second proviso to Article 311(2), the Court would be bound by the order so passed. This Court has enumerated the scope of judicial review of the President’s satisfaction for passing an order under Clause (c) of the second proviso to Article 311(2). The Court has said (1), that the order would be open to challenge on the ground of mala fides or being based wholly on extraneous and/ or irrelevant grounds (2) even if some of the material on which the action is taken is found to be irrelevant the Court would still not interfere so long as there is some relevant material sustaining the action; (3) the truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President; (4) the ground of mala fides takes in, inter alia, situations where the proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power…”
The Apex Court further held as under :
“8. If an order passed under Article 311(2) Proviso (c) is assailed before a Court of law on the ground that the satisfaction of the President or the Governor is not based on circumstances which have a bearing on the security of the State, the Court can examine the circumstances on which the satisfaction of the President or the Governor is based; and if it finds that the said circumstances have no bearing whatsoever on the security of the State, the Court can hold that the satisfaction of the President or the Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations.”
22. It may be mentioned here that the respondent in the above case was enrolled as Sub-Inspector in the Delhi Police. In 1984, he was posted at the residence of the then Prime Minister, Mrs. Indira Gandhi, for security purposes. The Prime Minister was assassinated by two members of her security staff. In connection with the murder, criminal case under sections 307, 302 and 120B of Indian Penal Code read with Sections 25, 27, 54 and 59 of the Arms Act was registered and the respondent was arrested in the said criminal case. A departmental enquiry was also ordered by the concerned authorities. However, subsequently, he was dismissed from service by the President in terms, of an order passed under proviso (c) to Article 311(2) of the Constitution and the order directing holding of departmental enquiry passed earlier was revoked. He challenged the order before the Central Administrative Tribunal, Principal Bench, New Delhi. The Tribunal called upon Union of India to produce the entire confidential material on which the order was based. The Tribunal found that, at least two of the files placed before it were highly confidential. They all related to the activities of the respondent (dismissed employee) which had a bearing on the security of the State. The Tribunal held that if the respondent could be criminally prosecuted, a Departmental Enquiry could have been held on the basis of the same material and, consequently, allowed the petition. The Apex Court observed that this was not a case where there was absolutely no material relating to the activities of the respondent prejudicial to the security of the State. The Apex Court held as under :
“10. In our view, this was not a case where there was no relevant material. The Tribunal could not have substituted its own judgment for the satisfaction of the President of India. The Tribunal is under a misapprehension when it holds that if the respondent could be criminally prosecuted a Departmental Enquiry could have been held on the basis of the same material…”
23. On the date when the learned Division Bench ordered the Reference of the cases at hand to a larger bench, another case involving an identical point not related to the scandal in question, titled State v. Mohd Afzal was decided by the same Bench. That case is reported as State v. Mohd Afzal, 2001 SLJ 416. In, that case, the learned Division Bench, made reference to, and relied, inter alia, on Union of India v. Balbir Singh (supra), which was not there when the earlier Division Bench rendered the decision in Rais Ahmad Gazi & Syedan Shafi v. State of J&K (supra). We quote hereunder the relevant portion of the judgment of the learned Division Bench in State v. Mohd Afzal, (supra):
“13. It is now well settled principle of law that judicial review is not a review against the decision. It is a review against the decision making process. Once it is found by the Court that the decision making process is validly made, it is not the function of the Court to make a roving enquiry into adequacy and inadequacy of the materials before the Governor, on the basis of which he derives his satisfaction, and substitute the conclusions arrived at by the authority by its own conclusions. This would amount to encroachment of the field meant for the other organs. As already pointed out, judicial review is limited to exercise of power based on mala fide or wholly on extraneous or irrelevant considerations…”
(emphasis laid)
24. In light of the above settled position of law, apart from what has been expressly and explicitly held by the Supreme Court from time to time, it is clear that it is not open to the court to dissect, i.e., to analyse and interpret minutely the material on the basis of which the Governor has arrived at his satisfaction under Article 311(2)(c) of the Constitution. The Governor is also not required to record any reasons to justify the satisfaction. The Court is also debarred from going into the question of adequacy or inadequacy of the material on the basis of which the Governor arrives at the requisite satisfaction. When there is some sort of material having bearing on such satisfaction, it cannot be said that there has been non-application of mind on the part of the Governor. Registration, pendency or determination of a criminal case, or even a departmental enquiry is no bar to the exercise of such power by the Governor.
25. In the present case, we find that the Governor had recorded the requisite satisfaction and no fault can be found’in that. The material forming the basis of that satisfaction has been produced before us as well. We have examined the same. However, we would not comment on the nature of the material. We have our own reasons for that. Two Division Benches of this Court have already expressed their views on such material and they have differed. There are other reasons for us not to go into that aspect of the matter.
26. It was stated at the Bar that in connection with the alleged scandal of embezzlement and misappropriation of public funds in question, about ten FIRs were registered. Criminal Challans in respect of all the ten registered cases have been produced before the Special Judge, Anti-corruption, Srinagar. In these then cases, a total number of 600 hundred people have been shown and involved as accused. Out of these 600 people, 200 accused are Government employees and 400 accused are civilians, not working in any government department. Out of the 200 Government servants, accused of the offences, fourteen accused were dismissed and twenty-one were placed under suspension. The suspension orders of these twenty-one accused were subsequently withdrawn despite the fact that they stand arrayed as accused in the ten Criminal Challans. The matter does not end here.
27. Writ petition, SWP No. 2730/93, titled G.M. Wani v. State of J&K, filed by one of the dismissed employees, namely, Ghulam Mohi-ud-Din Wani, was allowed by the Court. The learned Single Judge quashed the dismissal order No. 533 GAD dated 25.6.1993 and, inter alia, directed the Vigilance Organization, conducting investigation in the criminal cases registered in connection with the scandal, to complete the investigation with three months. The State filed a Letters Patent Appeal, LPA No. 260/97 challenging the judgment and order of the learned Single Judge. However, subsequently, the State made an application before the Court for permission to withdraw the appeal insofar as the same related to quashment of the order of dismissal of the respondent therein. The prayer was allowed by a Division Bench of this Court in terms of order dated 4th November, 1999. It is stated at the Bar that the said Ghulam Mohi-ud-Din Wani was re-instated in-service and, in fact, retired on the post of Deputy Commissioner.
28. Against the judgment passed by the earlier Division Bench in Rais Ahmad Gazi & Syedan Shafi’s case (supra), the State filed Special Leave Petition in the Supreme Court, being Civil Appeal Nos. 5946-5947 of 1997. The Supreme Court was pleased to dismiss the Special Leave, Petitions by order dated 2nd February, 2003. The order is quoted below :
” As far as Civil Appeal 59946/1997 is concerned, in the impugned order, the High Court gave liberty to the appellants to proceed afresh against the respondents, if so advised. We are told during the course of hearing that no further action was taken against the respondent Rais Ahmad Gazi. Learned counsel for the respondents also pointed to the letter No. PDC/125355 dated 10.6.97. In the said letter it is stated thus :
‘As reported by the Chief Engineer, CI&D Wing Srinagar vide his above quoted No. Shri Rais Ahmad Gazi has joined on 7.4.1997 in Civil Invest. Division, Srinagar.
The Chief Engineer, Civil Investt. & Divn., vide his letter No. 1046-47 dated 6.6.97 has given his opinion that no further enquiry by the Department seems necessary and services of the appellants (Sh. Rais Ahmad) need to be allowed to continue and have suggested to release the arrears for the period the incumbent remained under termination.’
29. The learned counsel for the appellant-State also submitted that no fresh action is taken against Rais Ahmad Gazi even though, liberty was given by the, High Court in the impugned order. Civil appeal Nos. 7474-75, which were similar were also dismissed by this Court., These being the facts Civil Appeal No. 5946/1997, is also dismissed. No costs.
We make it clear that the respondent Rais Ahmad Gazi shall be entitled to all the benefits that are available to him by virtue of reinstatement.”
30. It may be mentioned here that in Rais Ahamd Gazi’s case, the allegations were that he happened to be a member of Islamic Welfare Organisation and had participated in anti-national activities inasmuch as he had participated in activities leading to even use of explosives with a view to creating disturbance. He, in fact had been detained twice under the provisions of Jammu and Kashmir Public Safety Act, 1978, though the orders of detention had been quashed by the court. In short, his antecedents were alleged to be anti-national.
31. In Syedan Shafi’s case, the State filed Special Leave Petitions, being CA Nos.7474-7475/97. The Apex Court, while dismissing the appeal in terms of order dated March 20,1998, directed as under:
“C.A.-Nos. 7474-7475/97
As for as Syeedan Shafi is concerned, just before the judgment of the High Court he was shot down on 17.3.97 by the militants. The widow has filed an affidavit before this Court annexing various letters received from the State Government appreciating the work done by the deceased as a T.V. Reporter after his services were terminated. Looking to the facts and circumstances of this case the appeals have become infructuous. The appeals are, therefore, dismissed. The widow of the deceased and/or his dependents will be entitled to all consequential benefits.”
32. Two other writ petitions, being SWP Nos. 2353/93 and 2349/93 filed by two other dismissed employees, namely, Abdul Khaliq Wani and Iftikhar Hussain Sheikh, were dismissed by the learned Single Judge. Against the judgments and orders passed by the learned Single Judge they filed Letters Patent Appeals bearing Nos. 63/95 and 74/95. The two appeals came up, for hearing and, following the decision rendered in Rais Ahmad Gazi Syedan Shaft’s case (supra), the same were allowed by the Division Bench of this Court in terms of order dated 24.7.1997. Again the judgment of the Division Bench, the State filed Special Leave Petitions before the Supreme Court. The same were registered as Civil Appeal Nos. 7474-75 of 1997. As noticed in Supreme Court order dated February 4,2003 passed in Rais Ahmed Gazi’s case, the said SLPs were also dismissed by the Supreme Court. Though the State had filed Review Petition No. 1036-37/99 in the aforesaid matter, but the same also came to be dismissed by the Supreme Court in terms of order dated August 10, 1999.
33. At the cost of repetition, it may be observed here that all these matters arise out of one and the same episode and, in fact, all the orders of dismissal were passed on the same material and on the same date. Keeping in view the above developments, some of which have taken place even after the instant Reference was made by the Division Bench, we feel that, for the sake of maintaining uniformity in judicial orders, the appeals cannot be allowed. Since the Supreme Court was seized of the matter and the Special Leave Petitions filed by the State in five of the matters, four arising out of the instant alleged scandal, have been dismissed, a view contrary to that by us would not be in consonance with equity. We feel that, in fact, interests of justice would be served in case uniformity is directed to be maintained.
It also needs a mentioned here that vide Government Order No. I 102-GAD of 2000 dated 19.9.2000, the State Government has laid down a detailed procedure to be observed for invoking Clause (c) of Sub-section (2) of Section 126 of the State Constitution, which is para-meteria with Clause (c) of the second proviso to Article 311(2) of the Constitution of India. The order reads as under:
” Government of Jammu and Kashmir
General Administration Department.
Government Order No. I 102-GAD of 2000
Dated 19.9.2000
In supersession of all previous orders on the subject it is hereby ordered that following procedure shall be observed for involving Clause (c) of subsection (2) of Section 126 of the Constitution of Jammu and Kashmir:
(a) Cases where Clause (c) of sub Section (2) of Section 126 of the Constitution of Jammu and Kashmir is proposed to be invoked shall be referred to the Principal Secretary to Government Home Department under the signatures of Addl. D. G., CID.
(b) Recommendations on (a) above shall be supported by a copy of the interrogation report and other collateral evidence so as to justify dispensing with the holding of an inquiry in the interest of Security of the State.
(c) The recommendations of Addl. D. G., CID, shall, be scrutinized by a Committee comprising of the following :
1. Special Secretary, Home Department.
2.
Special Secretary, GAD,
3.
A representative of the department to which the Government employee belongs,
4.
A representative of the CID.
(d) Recommendations as would be made by the Committee referred to above in para-c would be processed by the Principal Secretary,. Home for orders of the Cabinet/Governor in terms of Clause (c) of Sub-section (2) of Section 126 of the Constitution of Jammu and Kashmir.
(e) Once approval of the Governor is given, orders of dismissal will be issued by the concerned Department.
It is further ordered that:
(i) All pending case’s be decided in the above manner.
(ii) All Departments will seek the advice of the Home Department before deciding the period of suspension of Government employees whose dismissal orders are either quashed by the courts or they resume duty after detention. The Home Department shall in turn seek the lecommendations of the Committee referred to in para-c above.
By order of the Government of Jammu and Kashmir.”
34. A perusal of the procedure laid down in the aforesaid Government order reveals that sufficient and exhaustive safeguards have been provided by the Government in relation to the exercise of the power in question. Such a procedure does not seem to have been in practice earlier. Compliance to such procedure by the government in future will surely obviate the suspicions which are over and over again expressed before this Court when such power is exercised by the Governor.
35. In view of the above, the seven Letters Patent Appeals are dismissed. Consequently, the three writ petitions, namely, SWP Nos. 2210 / 93; 2576/93 and 3589 / 97, are allowed. The impugned orders, dismissing the writ petitioners from service, are quashed. We leave it open to the concerned authorities to proceed departmentally against a the respondents in the Letters Patent Appeals and the writ petitioners in the three writ petitions. In case the Government decides to hold, any such departmental enquiry, the same shall be concluded as expeditiously as possible, preferably, within a period of six months from the date of this judgment. Depending upon the outcome of any such departmental enquiry, decision with regard to the intervening period shall be taken by the concerned authorities. It may be mentioned here that since the Government has already reinstated most of the employees involved in the criminal cases, including Rais Ahmad Gazi whose case rested on entirely a different footing, the State, on the same analogy, will consider reinstatement of the persons involved in the instant appeals and writ petitions.