Gujarat High Court
Rajumiya Hanif Saiyed vs State Of Gujarat on 26 September, 2022
Author: A. J. Desai
Bench: A. J. Desai
C/LPA/275/2016 JUDGMENT DATED: 26/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO.275 of 2016
In
R/SPECIAL CIVIL APPLICATION NO.23134 of 2006
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE A. J. DESAI Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
=========================================
RAJUMIYA HANIF SAIYED
Versus
STATE OF GUJARAT & 3 others
=========================================
Appearance :
MR GAUTAM JOSHI, SENIOR COUNSEL WITH MR VYOM H SHAH for the
Appellant.
MR TIRTHRAJ PANDYA, AGP for the Respondent Nos.1,2,3,4
=========================================
CORAM:HONOURABLE MR. JUSTICE A. J. DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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C/LPA/275/2016 JUDGMENT DATED: 26/09/2022
Date : 26/09/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A. J. DESAI)
1. The Appellate Bench exercising powers under Clause 15 of the Letters Patent is requested to deal with the orders passed by the respondent authorities dismissing the services of the appellant exercising powers under the proviso of Clause (2) of Article 311 of the Constitution of India read with Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as 'GCSR') which orders have been confirmed by learned Single Judge.
2. The challenge in the present appeal is against oral judgment dated 12.1.2016 passed by learned Single Judge in captioned writ petition by which learned Single Judge has refused to issue a writ of mandamus for quashment of the order dated 15.2.2003 passed by respondent No.3 i.e. Commissioner of Police, Ahmedabad city who exercised his powers under the aforesaid Rules and dismissed the services of the appellant without holding any departmental inquiry and the said order has been confirmed by orders dated 30.10.2003 passed by Appellate Authority and the order dated 24.3.2006 passed by Revisional Authority.
3. The short facts arise from the record are as under :-
3.1 That the appellant was appointed as an Unarmed Police Constable by an order dated 9.7.1980. An FIR being I C.R. No.157 of 1994 for the offences punishable under Sections 4 and 5 of the Explosive Substances Act, 1908 as well as Sections 3 and 5 of the Page 2 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 Terrorist and Disruptive Activities (Prevention) Act, 1985 and Section 120-B of the Indian Penal Code was registered with Bapunagar Police Station. The appellant was placed under suspension by order dated 24.6.1994. The departmental inquiry was initiated and ultimately, he was issued charge-sheet on 26.5.1995. The said FIR was registered as Criminal Case No.235 of 1998. In the said Criminal Case, the appellant was discharged by order dated 23.2.1999. During the pendency of the inquiry, seven FIRs were registered against the appellant with Bapunagar and Rakhial Police Stations.
3.2 The appellant had filed a writ petition being Special Civil Application No.6092 of 1995 before this Court with regard to the departmental inquiry initiated against him and initially, stay was granted against the departmental inquiry. However, the said petition was disposed of by an order dated 6.2.1996 by which the respondent authorities were permitted to proceed with the departmental inquiry subsequent to completion of criminal case which was registered on the basis of FIR registered with Bapunagar Police Station.
3.3 It is the case of the appellant that though the appellant was discharged in the Criminal Case in the year 1999, the departmental inquiry did not proceed further. However, by order dated 15.2.2003, the Police Commissioner relying upon the aforesaid FIR in which he was discharged as well as other seven offences registered against him with two different Police Stations of City of Ahmedabad registered on 28.2.2002, 1.3.2002, 2.3.2002, 3.3.2002 and 21.4.2002 (in all seven offences) which were registered for offences punishable under Sections 302, 143, 147, Page 3 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 148, 149, 185, 435, 436, 395, 397 and 398 etc. of the Indian Penal Code as well as under the Arms Act, found that it was not possible and reasonably practical to hold such an inquiry and, therefore, his services were dismissed. The said decision was challenged by the appellant by way of filing appeal which came to be dismissed by order dated 30.10.2003. Both the said orders were challenged by the appellant by filing Revision Application which was also dismissed on 24.3.2006. All these orders came to be challenged by the appellant before learned Single Judge in the captioned writ petition. Affidavit-in-reply was filed by the respondents supporting the orders passed by the authorities to which rejoinder was filed by the appellant.
3.4 Learned Single Judge by the impugned judgment dismissed the captioned writ petition.
3.5 Hence the present Letters Patent Appeal.
4. Mr. Gautam Joshi, learned Senior Counsel assisted by Mr. Vyom H. Shah appearing for the appellant has assailed the judgment of learned Single Judge as well as orders passed by the authorities, more particularly, original order dated 15.2.2003 by which the respondent has exercised his powers under Article 311(2) of the Constitution of India read with Rule 14 of the GCSR.
He would submit that in the year 1994, subsequent to the arrest of the appellant in pursuance of the offence registered with Bapunagar Police Station, departmental inquiry was initiated and he was issued charge-sheet, but for years together, the respondent authority did not proceed further with the inquiry and completed the same. He would further submit that it is true that the appellant Page 4 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 had filed a writ petition being Special Civil Application No.6092 of 1995 in which initially, stay against departmental inquiry was granted. However, subsequently vide order dated 6.2.1996, the authorities were permitted to proceed with the departmental inquiry after decision in the criminal case proceeding. However, though the authority was fully aware that in the said criminal case, the appellant was discharged as well as the fact that this Court permitted the authority to proceed further with the departmental inquiry, the said departmental inquiry was not proceeded. He would further submit that instead of proceeding further with the departmental inquiry, the Police Commissioner, Ahmedabad City by the order dated 15.2.2003 dismissed the services of the appellant.
4.1 Mr. Joshi would further submit that the order of learned Additional Sessions Judge, Ahmedabad discharging the appellant in Criminal Case No.235 of 1998 has never been challenged by the State authorities before the higher forum. Therefore, the observations made in the impugned order of dismissal that the appellant was discharged on technical grounds is without basis. He would further submit that it has been observed in the order that the appellant did not remain present in pursuance of the notices issued to him and, therefore, the inquiry which was initiated in the year 1994 could not be completed, is completely baseless since the authority could have proceeded ex-parte against him and ought to have decided the charges levelled against him in the departmental inquiry.
4.2 Mr. Joshi would further submit that another reason for exercising the powers under Article 311 (2) of the Constitution read with Rule 14 of the GCSR is that though the authority was Page 5 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 fully aware that in none of the seven FIRs which were registered at the instance of the Police Officers themselves against several persons, name of the appellant was not disclosed by the Investigating Officer, the reason put forward by the respondent authority that the witnesses which may be cited in the departmental inquiry may not come forward under fear and under threat of an Unarmed Police Constable i.e. appellant herein is not at all sustainable since all the FIRs were registered by Police Officers to the rank of PSI and PI who have collected so-called evidence against the present appellant. He would further submit that in all the seven FIRs, the appellant has either been acquitted or discharged from the case. He would further submit that the reasons for not following the regular inquiry on an apprehension that the appellant would continue his so-called illegal activities is neither here nor there in view of the fact that from 1994 till 2002, there was not a single complaint against the appellant. He would further submit that it is referred in the impugned order of the respondent authority that the appellant was continuously involved in criminal activities is without any basis since FIRs were lodged within 2 to 3 days at various Police Stations. He would further submit that the apprehension of the authority that the witnesses may not come forward in the departmental inquiry under the threat of fear is without any basis since the FIRs were lodged by Police Officers in the rank of PSI and PI and the appellant was an unarmed Police Constable.
4.3 In support of his submission that all the witnesses were Police Officers in the rank of PSI or PI of the concerned Police Stations, he has taken us through the judgment of learned Sessions Court and would submit that the complaints were lodged at the Page 6 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 instance of PSI or PI who has subsequently involved the present appellant in the said crime. He would further submit that all these Police Officers were examined by the prosecution in Sessions cases. However, the prosecution has miserably failed to establish any of the allegations levelled against the appellant.
4.4 Mr. Joshi would further submit that it is an established principle of law that inquiry under Article 311 (2) of the Constitution is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311 (2)(b) must satisfy the Court for reasons to be recorded that it is not reasonably practicable to hold an inquiry. He would further submit that Hon'ble Apex Court has clearly held that reasonable opportunity of hearing enshrined in Article 311 (2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any and, therefore, the authority is supposed to follow the inquiry provided under Article 311 (2) of the Constitution read with Rule 14 of the GCSR which are applicable to an employee. In support of this submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Sudesh Kumar v. State of Haryana and others, (2005) 11 SCC 525. He has also relied upon the decision in the case of Risal Singh v. State of Haryana and others, (2014) 13 SCC 244.
4.5 Mr. Joshi would further submit that while exercising powers under Article 311(2)(b), there must be subjective satisfaction of the Authority about passing the order and must be based on supported documents which is lacking in the case when Page 7 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 the reasons assigned by the authority that the witnesses would be under threat or pressure are without any basis since the appellant being an Unarmed Police Constable and the witnesses were higher Officers. In support of this submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Tarsem Singh v. State of Punjab and others, (2006) 13 SCC 581.
4.6 Mr. Joshi has also relied on the decision of the Hon'ble Apex Court in the case of Union of India and others v. Ram Bahadur Yadav, (2022) 1 SCC 389 and would submit that in similar facts, the Hon'ble Supreme Court has quashed the order of dismissal passed against Head Constable of RPF.
4.7 By relying upon the decision of the Hon'ble Apex Court in the case of State of Punjab and others v. Harbhajan Singh reported in (2007) 15 SCC 217, he would submit that even in the said case, though the employee was allegedly involved with terrorists, on fact it was found that there was no reason made out for dispensation of a regular departmental inquiry as required under clause (2) to Article 311 of the Constitution of India.
4.8 Mr. Joshi would further submit that learned Single Judge ought to have interfered with the dismissal order and ought to have exercised judicial discretion in favour of the appellant. In support of his submissions, he has relied upon the decision of the Hon'ble Apex Court in the case of Chandigarh Administration, Union Territory, Chandigarh and others v. Ajay Manchanda and others (1996) 3 SCC 753. He would further submit that ordinarily, the order passed by the authority exercising power under Article 311 (2) of the Constitution would be limited, but that Page 8 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 does not mean the scope of judicial review is excluded altogether and the Court can exercise its powers under Article 226 of the Constitution which ought to have been exercised by learned Single Judge. He, therefore, would submit that the appeal be allowed.
5. On the other hand, Mr. Tirthraj Pandya, learned Assistant Government Pleader appearing for the respondents would submit that there are concurrent findings of all the authorities with regard to the facts of the case which has been rightly upheld by learned Single Judge and, therefore, it does not call for any interference. He would further submit that it is an undisputed fact that the appellant was involved in a serious offence for which punishment upto life imprisonment is prescribed under the Explosive Substances Act. He would further submit that pursuant to the said offence, the appellant was arrested and charge-sheet was filed and ultimately, criminal case was registered against him. Simultaneously, departmental inquiry was also initiated. However, pursuant to the stay granted by this Court in a writ petition being Special Civil Application No.6092 of 1995 filed at the instance of the appellant herein, further proceedings of departmental inquiry were stayed and, therefore, it was not proceeded further. He would further submit that the respondent authorities have specifically observed in the order that the appellant was not cooperating with the inquiry and, therefore, it was not concluded.
5.1 Learned AGP would further submit that the appellant was found involved in seven serious offences at Bapunagar and Rakhiyal Police Stations in which he was facing charges for the offences punishable under Sections 302, 395, 397, 435, 436 etc. of Indian Penal Code as well as the offence under the Arms Act and at Page 9 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 that time, the authority has rightly exercised the powers and thought it fit that it would not be possible to initiate proceedings under Rules 8 and 9 of the GCSR and, therefore, the authority has rightly exercised powers under Article 311 (2)(b) of the Constitution of India read with Rule 14 of GCSR and passed a reasoned order. He would further submit that though the appellant was in Police department, his conduct was of getting himself involved in the serious crime was of such a nature that the authority ultimately found that it was not reasonably practicable and possible to proceed with the departmental inquiry and, therefore, the impugned order has been passed. He would further submit that the ingredients of exercising powers under Article 311 (2)(b) of the Constitution are fully complied by the authority while passing the impugned order. The conduct of the appellant was such that the decision is justified considering the activities of the appellant that he is involved in serious crimes and hence, it was not possible to hold inquiry. He, therefore, would submit that this Court may not interfere with the orders passed by the respondent authorities which have been confirmed by learned Single Judge. In support of his submissions, he has relied upon the decision of the Hon'ble Supreme Court in the case of Ved Mitter Gill v. Union Territory Administration, Chandigarh and others, (2015) 8 SCC 86.
5.2 Learned AGP would further submit that subsequent to discharge from the offence in the year 1999 which happened in the year 1994, the departmental inquiry which was initiated against the appellant in the year 1994 could not be proceeded for a period of three years because of non-availability and/or the conduct of the appellant of not remaining present in the departmental inquiry and Page 10 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 that would not come in the way of the authority while passing the order exercising power under Article 311 (2)(b) of the Constitution read with Rule 14 of the GCSR. He, therefore, would submit that the present appeal may be dismissed.
6. We have heard learned advocates appearing for the respective parties and perused the order dated 15.2.2003 passed by the Commissioner of Police by which he has exercised his power under Article 311 (2)(b) of the Constitution read with Rule 14 of GCSR as well as subsequent orders passed by the appellate authority and revisional authority as well as judgment of learned Single Judge impugned in this appeal.
7. Before adverting to the facts of the case, we would like to extract relevant provisions of the Act. Article 311 of the Constitution reads as under :-
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of Page 11 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply.
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause ( 2 ), the decision thereon of the authority Page 12 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 empowered to dismiss or remove such person or to reduce him in rank shall be final."
8. Rule 14 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 reads as under :-
"14. Special procedure in certain cases :-
(1) Nothing contained in rules 8 or 9 shall apply -
(i) where a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that is not reasonably practicable to follow the procedure prescribed in the said rules, or
(iii) where the Government is satisfied that in the interest of the security of the State, is not expedient to follow such procedure.
(2) In cases to which the provision of sub-rule (I) shall apply, the Disciplinary Authority may consider the circumstances of the case concerned and pass such order thereon as it deems fit :-
Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary."
9. It is an undisputed fact that the appellant who was appointed in the year 1980 was an unarmed Police Constable. An Page 13 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 FIR was registered in the year 1994 and subsequent to his arrest, he was immediately put under suspension and Criminal Case was registered against him which was triable by learned Sessions Judge.
10. It is also an undisputed fact that the departmental inquiry was initiated against the appellant and accordingly, charge- sheet was also filed on 26.5.1995. At that stage, the appellant filed a writ petition being Special Civil Application No.6092 of 1995 in which the authority was restrained from proceeding further with the departmental inquiry unless the Criminal Case is finally decided. It is also an undisputed fact that the appellant was discharged in the said Criminal Case No.235 of 1998 vide order dated 23.2.1999 passed by learned Additional Sessions Judge, Court No.4, Ahmedabad City. This order discharging the appellant from the said Criminal Case was never challenged by the State Authorities. Therefore, in our opinion, as per the order passed by this Court in writ petition being Special Civil Application No.6092 of 1995, the respondent authority could have immediately proceeded further with the departmental inquiry i.e. subsequent to 23rd February 1999. It is also an undisputed fact that till the impugned order terminating the services of the appellant was passed on 15.2.2003, the respondent authority did not proceed further with the departmental inquiry for a period of four years and for passing the impugned order, the base is taken of the offence in which he was discharged from the charges by the competent Sessions Court, stating that the appellant is continuously involved in criminal activities. It is also an undisputed fact that there is no material to show that subsequent to 1999, any offence was registered against the appellant. In our opinion, subjective Page 14 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 satisfaction recorded by the authorities that the departmental inquiry could not be proceeded in absence of appellant is vitiated since the authority could have proceeded with the departmental inquiry in accordance with law even if the delinquent does not cooperate with such inquiry and could have passed appropriate order.
11. It is also equally true that seven offences referred in the order, the authority itself has recorded that in none of the offences, the appellant was named by the complainant who was a Police Officer not below the rank of PSI. The name of appellant was allegedly disclosed during investigation and, thereafter, he came to be arrested after about seven months i.e. in the month of November 2002. Several persons including the appellant were charge-sheeted in the said Criminal Case and when the said order was passed, he was in central Jail. As far as the reasons recorded in the impugned order that he was continuously involved in criminal activities is contrary to the record since no offence was registered between 1994 to 2002. Hence, the authority was wrong in stating that he had come into contact with several criminals in the Jail since neither he was continuously in jail nor any material is placed that he was in contact with the other criminals when he was in judicial custody.
12. The respondent authority has again committed an error in holding that if the regular departmental inquiry provided under Article 311 (2)(b) of the Constitution read with Rules 8 and 9 of GCSR is proceeded, the witnesses would not come or would turn hostile since all the witnesses would be the Police Officers not below the rank of PSI since the investigation in all these seven Page 15 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 cases was carried out by the Police Officers. Therefore, it is unbelievable and unacceptable that PSI and/or PI would be under a threat of appellant who is an Unarmed Constable and that too in departmental inquiry. Therefore, we are of the opinion that subjective satisfaction recorded by the Authority about exercising his powers under Article 311 (2)(b) of the Constitution is vitiated.
13. The respondent authorities have also committed an error in recording that the appellant is a history-sheeter and in past, he has been involved in number of criminal offences. However, from 1994 to 2002, not a single offence was registered against him. In view of the above facts, the decisions relied upon by learned Senior Counsel Mr. Gautam Joshi appearing for the appellant would come into play.
14. In the case of Sudesh Kumar v. State of Haryana and others (Supra), the Hon'ble Apex Court has held in paragraphs 5 and 6 as under :-
"5. It is now established principle of law that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311(2)
(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order is that Page 16 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by o rder dated 23rd December, 1999, the Visa of the complainant was extended up to 22nd December, 2001. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.
6. A reasonable opportunity of hearing enshrined in Article 311(2) of the Constitution of India would include an opportunity to defend himself and establish his innocence by cross-
examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only i f inquiry is held where he has been informed of the charges levelled against him. In the instant case, the mandate of Article 311(2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant."
15. In our opinion, it would not have been difficult for the disciplinary authority to secure the presence of the witnesses like PSI and PI who are Police Officers at the time of departmental inquiry.
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16. In the case of Risal Singh v. State of Haryana and others (Supra), the Hon'ble Supreme Court has observed in paragraphs 6 to 9 as under :-
"6. We have already reproduced the order passed by the competent authority. On a bare perusal of the same, it is clear as day that it is bereft of reason. Non-ascribing of reason while passing an order dispensing with enquiry, which otherwise is a must, definitely invalidates such an action. In this context, reference to the authority in Union of India and Anr. v. Tulsiram Patel is apposite. In the said case the Constitution Bench, while dealing with the exercise of power under Article 311 (2)(b), has ruled thus:
"130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished: feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly Page 18 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation."
7. In Jaswant Singh v. State of Punjab and others, the Court, while dealing with the exercise of power as conferred by way of exception under Article 311(2)(b) of the Constitution, opined as follows :
"Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at page 270 of Tulsiram case: (SCC p.504, para 130) "130..... A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the department's case against the government servant is weak and must fail."
The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is Page 19 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
After so stating, the two-Judge Bench quashed the order of dismissal and directed the appellant to be reinstated in service forthwith with the monetary benefits. Be it noted, it was also observed therein that it would be open to the employer, if so advised, notwithstanding the lapse of time, to proceed with the disciplinary proceedings.
8. Recently, in Reena Rani v. State of Haryana, after referring to the various authorities in the field, the Court ruled that when reasons are not ascribed, the order is vitiated and accordingly set aside the order of dismissal which had been concurred with by the Single Judge and directed for reinstatement in service with all consequential benefits. It has also been observed therein that the order passed by this Court would not preclude the competent authority from taking action against the Appellant in accordance with law.
9. Tested on the touchstone of the aforesaid authorities, the irresistible conclusion is that the order passed by the Superintendent of Police dispensing with the inquiry is totally unsustainable and is hereby annulled. As the foundation founders, the order of the High Court giving the stamp of approval to the ultimate order without addressing the lis from a proper perspective is also indefensible and resultantly, the order of dismissal passed by the disciplinary authority has to pave the path of extinction."
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17. In the case of Tarsem Singh v. State of Punjab and others (Supra), the Hon'ble Apex Court has specifically held that formal inquiry was dispensed with only on the ground that the witnesses could be win over would not be the ground and particularly, in the present case where witnesses are the persons of the higher rank Officers, has held in paragraph 11 which reads as under :-
"We have noticed herein before that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canon of fair play and justice. The appellate authority, as noticed herein Page 21 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 before, in its order dated 24.6.1998 6 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order in so far as he failed to take into consideration the relevant facts and based his decision on irrelevant factors."
18. It is an undisputed fact that the present appellant is an Unarmed Constable and the witnesses are PSI or PI who have lodged the FIR in the year 2002 and, therefore, recording of the reasons about threat or win over of the witnesses is without any basis which is of similar fact in the case of Union of India and others v. Ram Bahadur Yadav (Supra). In the said case, Hon'ble Supreme Court while dealing with Rule 161 of the RPF Rules which are para materia to Rule 14 of GCSR has observed in paragraph 12 to 14 as under :-
"12. Rule 161 of the RPF Rules itself indicates special procedure in certain cases. The relevant portion of Rule 161 of RPF Rules, reads as under :-
"161.Special Procedure in certain cases :
Notwithstanding anything contained anywhere in these rules -Page 22 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022
C/LPA/275/2016 JUDGMENT DATED: 26/09/2022
(i) where any punishment is imposed on an enrolled member of the Force on the ground of conduct which has led to his conviction on a criminal charge;
or
(ii) where the authority competent to impose the punishment is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules;
(iii) where the President is satisfied that in the interest of security of State and the maintenance of integrity in the Force, it is not expedient to hold any inquiry in the manner provided in these rules;
the authority competent to impose the punishment may consider the circumstances of the case and make such orders thereon as it deems fit."
13. From a reading of the above said Rule, it is clear that to pass an order as disciplinary measure, by adopting special procedure in certain cases, Rule 161 itself mandates recording of reasons. The normal rule for conducting an inquiry is governed by Rules 132, 148 and 153 of the RPF Rules. If the Authorities invoke special procedure, unless they record reasons, as contemplated in the Rule itself, no order could have been passed by invoking Rule
161. At no point of time, appellants have produced file to show that any reasons are recorded in such file also.
14. It is a settled legal position that when Rules contemplate method and manner to adopt special Page 23 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 procedure, it is mandatory on the part of the authorities to exercise such power by adhering to the Rule strictly. Dismissal of a regular member of Force, is a drastic measure. Rule 161, which prescribes dispensing with an inquiry and to pass order against a member of Force, cannot be invoked in a routine and mechanical manner, unless there are compelling and valid reasons. The dismissal order dated 22.10.1998 does not indicate any reason for dispensing with inquiry except stating that the respondent had colluded with the other Head Constable for theft of Non Judicial Stamp Papers. By merely repeating the language of the Rule in the order of dismissal, will not make the order valid one, unless valid and sufficient reasons are recorded to dispense with the inquiry. When the Rule mandates recording of reasons, the very order should disclose the reasons for dispensing with the inquiry."
19. As far as the scope of judicial review is concerned, the reliance placed by learned AGP on the decision of Ved Mitter Gill v. Union Territory Administration, Chandigarh and others (Supra) is concerned, it is true that Hon'ble Apex Court has held that under Article 311(2)(b) of the Constitution, the competent authority should be satisfied that it is not possible to hold enquiry. But in our opinion, in the present case, the authority though might have given reasons, even the same is vitiated as discussed herein above and, therefore, the said judgment would not be applicable in the facts of the present case.
21. Hence, we are of the opinion that the present appeal requires consideration and hence, the same stands allowed. The Page 24 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022 C/LPA/275/2016 JUDGMENT DATED: 26/09/2022 oral judgment dated 12.1.2016 passed by learned Single Judge in Special Civil Application No.23134 of 2006 as well as the order dated 15.2.2003 passed by Commissioner of Police, Ahmedabad, order dated 30.10.2003 passed by Director General of Police (Appellate Authority) as well as order dated 24.3.2006 passed by Secretary, Home Department (Revisional Authority) are hereby quashed and set aside.
Since dismissal order and the consequential orders confirming the dismissal order are quashed and set aside, the consequences of the same would follow.
Sd/-
(A. J. DESAI, J) Sd/-
(MAUNA M. BHATT,J) SAVARIYA Page 25 of 25 Downloaded on : Thu Sep 29 20:59:13 IST 2022