On April 21, the Jammu and Kashmir government led by Lieutenant Governor Manoj Sinha ordered the constitution of a Special Task Force to take actions under Article 311(2)(C) of the Constitution of India.
Article 311(2) of the Constitution disallows any public servant’s removal from service without an inquiry and a reasonable opportunity of being heard. However, the sub-clause (C) of the provision (2) of the article states that if the President or the Governor is satisfied that an enquiry is not required in the interest of the security of the state, it is not mandatory. Therefore, a public servant can be terminated from the services without any inquiry.
Nine days after the Special Task Force was constituted, the Lieutenant Governor ordered the termination of three government employees from Kashmir: a school teacher Idrees Jan from Kupwara, an assistant professor Abdul Bari Naik from Kulgam and a naib tehsildar Nazir Ahmad Wani from Pulwama district.
The termination orders cited Article 311(2)(C) of the Constitution and said the Lieutenant Governor was satisfied that “in the interest of the security of the State, it is not expedient to hold an enquiry”. No further explanation was given, neither were any lapses or misconduct on the part of the terminated employees spelt out.
Idrees Jan, the school teacher, said he was informed about his sacking in the presence of the police. The 39-year-old, who joined government service in 2007, said he was shocked. “Before the Covid lockdown, I had attended to my duty very normally,” he said.
A resident of Dardpora village in Kupwara, Jan is a father of three kids and the sole earning member in the family. Had he been terminated from his service following a “proper enquiry” and after being shown “proof of his misconduct”, Jan said he would have had no regrets. “But this order feels as if someone has slit my throat for no reason.”
The other two employees – Naik and Wani – are currently in prison, facing charges in multiple criminal cases. Neither has been convicted.
Naik, a 40-year-old assistant professor of geography, was arrested on March 7. The police had said he had been evading arrest in three cases registered against him in 2018 and 2019, two of them under the stringent Unlawful Activities Prevention Act. But an investigation by Scroll.in found he had regularly attended official duties, including running a Covid-19 quarantine facility, a job which involved close coordination with the police. His family maintained that he had been arrested because of his activism that had unearthed corruption and illegal sand mining in the area.
With Naik’s bail application still pending before a local court, the termination order has come as a shock to the family. They feel the union territory administration has been misled by “some elements” about Naik. “Before going to the court to challenge his termination, we are thinking of making a representation before the Honorable Lieutenant Governor to apprise him about the facts,” said his brother, Abdul Rouf.
Employees under scanner
The orders have triggered alarm and anxiety in Jammu and Kashmir, where the government is the biggest employer with a workforce of 4.5 lakh people.
“The termination of employees without giving them a chance to be heard is against the spirit of law and the constitution of the country,” said Mohammad Rafique Rather, president of the Jammu and Kashmir Employees Joint Action Committee, in a statement on May 4. “This move has spread panic among the employees who are not only stressed but also overburdened.”
A government employee in Srinagar, who did not want to be identified, said he saw the termination orders as a message that “anyone can be sacked without any reason”. He pointed out that “in the interest of the security of the state” was a vague statement.
“The question is an employee doesn’t know what constitutes a mistake in the eyes of the government since there is no transparency,” he said.
Many see the sackings as part of the Centre-led union territory government’s attempts to exert greater control over government employees.
In October, Lieutenant Governor Manoj Sinha amended Article 226 (2) of the Jammu and Kashmir Civil Service Regulations, which made it mandatory for government employees to undergo a performance appraisal after completing 22 years of service, or reaching the age of 48. If their performance was found unsatisfactory, the government had the power to make them take premature retirement in the public interest.
Just over a month after the amendments were put in effect, the government announced the first premature retirement: Fayaz Ahmad Siraj, an employee of the Jammu and Kashmir Board of School Education, who had completed 27 years of service on October 14, was asked to leave.
Then in February, the Jammu and Kashmir government issued an “urgent” order, asking the deputy commissioners of ten districts in Kashmir Valley to submit details of all employees who would complete 22 years of service or attain the age of 48 by December 2021. Besides the basic job-related details of the employees, the order also sought information about their involvement in political activity or in cases of law and order including militancy and stone-throwing incidents.
The government also widened the scrutiny of freshly appointed public servants in Jammu and Kashmir. On March 3, it issued orders to say that no new employee would be paid their salary or allowances until they had undergone a verification process by the Criminal Investigation Department, the premier intelligence agency of Jammu and Kashmir Police. While the verification process was not new, what was different was that the new entrants were asked to submit details about their social media accounts like Twitter, Facebook and Instagram.
While the recent amendments have sparked concern among government employees, summary dismissals are not a new phenomenon in Jammu and Kashmir.
In 1986, Governor Jagmohan Malhotra had sacked a number of government employees for their “anti-national” activities. During the armed uprising in the 1990s, five senior bureaucrats working were sacked by Governor Girish Chandra Saxena for being “a threat to the security, sovereignty and integrity of India”.
More recently, in 2016, when Kashmir was aflame after the killing of militant leader Burhan Wani, the Mehbooba Mufti-led Peoples Democratic Party and Bharatiya Janata Party alliance government terminated at least 12 government employees for their “anti-national” activities. The termination was invoked through Article 126 of the Constitution of Jammu and Kashmir, a provision almost similar to the Article 311 of the Indian Constitution now applicable to the union territory after the scrapping of its special status on August 5, 2019.
Experts say the terminated employees have to approach the Central Administrative Tribunal to challenge the government’s action. Earlier, all the service-related matters or disputes were heard by the Jammu and Kashmir High Court. But after the dismantling of the state, the Central government constituted a separate Central Administrative Tribunal bench at Jammu for the Union Territories of Jammu and Kashmir and Ladakh in May 2020. Around 40,000 service-related cases pending before the high court were transferred to the tribunal.
Lawyers dealing with service-related matters assert that the process before the tribunal is anything but speedy. “When they [the three terminated employees] file a case before the tribunal, it won’t be solved in 24 hours. The time-consuming process is killing,” said advocate Zafar Shah, a senior lawyer in Srinagar.
According to Shah, there are three broad categories of terminations of government employees in Jammu and Kashmir. Firstly, premature retirement ordered by the government after an employee has achieved a certain age or certain years of service. The second type of termination comes on the basis of an inquiry indicting an employee and the third one involves sacking of an employee without an inquiry in the interest of the “security of the state”.
It is the third one which is perhaps the trickiest and skewed against an employee. “In matters related to security of state, the government can’t make the reasons behind an employee’s termination public as the security of state is a confidential matter,” Shah said. “But if an employee challenges his termination in the court, the government has accountability there and it has to justify its action.”
This still does make the process transparent. “Even when the government submits a file of reasons, which in their view make the employee a threat to the security of the state, it can be only seen by a judge and not the petitioner,” Shah explained.