The Union Of India & Ors vs Smti Jaya Talukdar on 25 June, 2013

[Cites 8, Cited by 4]

Gauhati High Court

The Union Of India & Ors vs Smti Jaya Talukdar on 25 June, 2013

IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND
ARUNACHAL PRADESH)
WP(C) No. 2221 of 2011
1.The Union of India,
Represented by Ministry of IT & Communication,
Department of Post, New Delhi.

2.Chief Post Master General,
Assam Circle, Panbazar, Guwahati - 781001.

3.Director of Postal Service (HQ),
Assam Circle, Panbazar, Guwahati - 781001.

4.Superintendent of Post Offices,
Goalpara Division, Dhubri,
PO& District. Dhubri, Assam -783301
- Petitioners
- Versus -
Smt Jaya Talukdar
W/of Sri Chakreswar Talukdar,
C/o. Paritish Chakraborty,
B.T. Road (Bye Lane),
PO&District. Bongaigaon,
Assam - 783380.
-Respondents
BEFORE
THE HON'BLE MR. JUSTICE I. A. ANSARI
THE HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH

Advocates present:
For the Petitioners : Mr. H Buragohain, Central Govt. Counsel.
For the respondent : Mr. AR Sikdar, Advocate.
Amicus Curiae : Mr. M.K. Choudhury, Sr. Advocate
Date of hearing : 18th of June, 2013
Date of Judgment : 25.06.2013
Judgment and Order
(Ansari, J)

We have heard Mr. H Buragohain, learned Central Government

Counsel, appearing on behalf of the petitioners, and Mr. AR Sikdar, learned

counsel, for the sole respondent. We have also heard Mr. MK Choudhury,

learned Senior counsel, appearing as Amicus Curiae.

2. The material facts, leading to this writ petition, may, in brief, be set out

as under:

(i) Sri Chakreswar Talukdar, husband of the sole respondent, while

functioning as Sub-Post Master (in short, 'SPM') at Bengtol Sub Post Office, in

WP(C) No. 2221 of 2011
Page 2

the district of Chirang, Bodoland Territorial Autonomous Development

Council, was reported by the Post Master, Dhubri Head Post Office, vide

letter, dated 07-07-2001, as having been found to have retained excess cash

with him. Pursuant to the information, so received by the Divisional Post

Office, on 10-07-2001, Sub-Divisional Inspector of Post Offices [hereinafter

referred to as 'SDI(P)]', Bongaigaon, visited the Bengtol Sub-Post Office, on

18-07-2001, to ascertain the correctness of the allegation of retention of excess

cash by Sri C Talukdar, husband of the sole respondent.

(ii) On his visit to Bengtol Sub Post Office, SDI(P) found Bengtol

post office closed and the Sub-Post Master, Sri Talukdar, absent from duty. On

19-07-2011, SDI(P) reported to the Superintendent of Post Offices, Goalpara

Division, Dhubri, over telephone, that excess cash, if any, retained at Bengtol

Sub-Post Office, could not be ascertained due to unauthorized absence of Sri

Talukdar since 17-07-2001. On receipt of this report, Divisional

Superintendent of Post Office, Goalpara Division, Dhubri, accompanied by

other postal officials, visited, on 20-07-2001, Bengtol Sub Post Office and

found the office closed. Nobody could tell the team of the Superintendent of

Post Office, Goalpara Division, Dhubri, as to where Sri Talukdar was and/or

where the keys of the post office were.

(iii) Having failed to trace out Sri Talukdar as well as the keys of the

post office, which Sri Talukdar had been holding, information was lodged, on

20.07.2001, with the In-charge, Bengtol Police Outpost, regarding suspension

of the work of the said Sub-Post Office (SPO) and unauthorized absence of its

SPM, Sri Talukdar. However, the In-Charge, Bengtol Police Outpost,

expressed his inability to help the Superintendent of Pose Office, Goalpara

Sub-Division, in opening the SPO without assistance/permission of the

District Magistrate, Kokrajhar. On the following day, i.e., on 21-07-2001, the

Superintendent of Post Office, Goalpara Division, Dhubri, approached the

WP(C) No. 2221 of 2011
Page 3

District Magistrate, Kokrajhar, who, in turn, deputed one Magistrate to open

the Post Office on 21-07-2001 itself.

(iv) Thus, with the help of the District Magistrate, Kokrajhar,

Bengtol SPO was opened, on 21-07-2001, at about 1700 hours, the lock, on the

steel almirah, was broken and the Magistrate, on duty, prepared an inventory

in presence of witnesses and handed over the articles, including cash, stamps,

etc., lying therein, to the Superintendent of Post Office, Goalpara Division.

The documents and the books of accounts, so recovered, revealed several

anomalies in the books of accounts maintained by Sri Talukdar, when he had

attended the SPO on 13-07-2001 and 14-07-2001.

(v) As the inventory revealed misappropriation of money by Sri

Talukdar, information was lodged, in this regard, in writing, with the Officer-

in-Charge, Basugaon Police Station, on 23-07-2001, by the SDI(P),

Bongaigaon, and Basugaon Police Station Case No. 71 of 2001, under Section

409 IPC, came to be accordingly registered against the said Sri Chakreswar

Talukdar, husband of the sole respondent herein, and the police investigation

commenced.

(vi) Apart from a divisional level enquiry, which was conducted, by

the Postal Department, the police, on completion of investigation, submitted,

eventually, on 30-05-2002, a charge-sheet, in Basugaon Police Station Case No.

71 of 2001 aforementioned, seeking prosecution of Sri Talukdar, under Section

409 IPC, showing him as an absconder.

(vii) Thereafter, the present respondent, as wife of Sri Talukdar, filed

a representation, on 10-11-2003, before the Deputy Commissioner,

Bongaigaon, stating to the effect, inter alia, that her husband had been traceless

since 17-07-2001 and, in his absence, she, along with her two daughters, had

been facing financial hardship and, hence, out of the provident fund, gratuity,

pension, etc, some amount may be given to her so as to enable her to meet her

critical financial condition. The said representation was forwarded, on 12-11-

WP(C) No. 2221 of 2011
Page 4

2003, by the Deputy Commissioner, Bongaigaion, to the Post Master General,

Guwahati. This was followed by a report/certificate, dated 29-08-2005, issued

by the Superintendent of Police, Kokrajhar, stating to the effect, inter alia, that

during investigation of the case, accused Sri C. Talukdar was found to have

misappropriated Government money, while he had been working as SPM at

Bengtol SPO, but he could not be arrested during investigation, because he had

absconded.

(viii) Non-Bailable Warrant of Arrest as well as Proclamation &

Attachment, issued by the Chief Judicial Magistrate, Kokrajhar, to apprehend

the accused, Sri C Talukdar, too, proved futile as his whereabouts could not be

found out.

(ix) The Disciplinary Authority , therefore, decided to keep the

petitioner's husband as suspended. Though the suspension order was sent to the

delinquent official, through registered post, to his last place of duty as SPM,

Bengtol SPO, the same was returned unserved with the remark, 'addressee

absconded'.

3. In course of time, charges were framed and as the charge-sheet could not

be served on the petitioner's husband, an order was made, on 10-02-2006, by

the disciplinary authority dismissing the petitioner's husband from duty in terms

of the provisions of Rule 19(ii) of the Central Civil Services (Classification,

Conduct and Appeal) Rules, 1965, (hereinafter referred to as the CCS (CCA)

Rules, 1965), read with Article 311 (2)(b) of the Constitution of India,

dispensing with the requirement of holding of enquiry against Sri Talukdar on

the charges, which had been framed against him, the enquiry having been

dispensed with on the ground that it was not 'reasonably practicable' to hold an

enquiry in terms of Rule 14 of the CCS (CCA) Rules, 1965.

4. Subsequent to the dismissal of her husband from service, the respondent

herein filed Original Application (in short, 'OA') under Rule 19 of the

WP(C) No. 2221 of 2011
Page 5

CCS(CCA) Rules, which gave rise to OA No. 66 of 2009, wherein her case,

briefly stated, was as under:

Her husband, Sri Chakreswar Talukdar, had not been heard of since 17-

07-2001 and, hence, he can be presumed to have not remained alive and that

she apprehends that her husband had been kidnapped by the extremists for

demanding money as Bengtol area had been affected by extremist elements

and though she had lodged a missing report, in this regard, requesting the

police to trace out her husband, the police had refused to entertain such a

request on the plea that a case had already been registered against her husband.

This apart, the Chief Judicial Magistrate came to declare her husband as an

absconder as late as on 20-06-2006; whereas the disciplinary authority, having

treated the petitioner's husband as an absconder, dismissed him from service,

without holding enquiry, as early as on 10.02.2006, i.e., about four months

before the petitioner's husband was formally declared as absconder by the Chief

Judicial Magistrate, Kokrajhar.

5. The petitioners herein, who were respondents in the OA, filed their

written statement resisting the OA and pointing out that in the facts and

attending circumstances of the case, the disciplinary authority was wholly

justified and acted within the ambit of its powers in not holding the enquiry as

envisaged by Rule 14 of the CCS (CCA) Rules, 1965, because the said Sri

Talukdar had been found absconding and it was not reasonably practicable to hold

enquiry and that having found the said Sri Talukdar responsible for

misappropriation of Government money, he had to be dismissed and, hence,

the order of his dismissal, passed, on 10-02-2006, may not be interfered with.

6. By order, dated 08-07-2010, the learned Tribunal, however, took the

view that since the learned Chief Judicial Magistrate, Kokrajhar, had declared

the petitioner's husband absconder as late as on 20.06.2006, the present

respondent's husband, Sri Talukdar, could not have been treated, on

10.02.2006, by the disciplinary authority, as absconder. This apart, according to

WP(C) No. 2221 of 2011
Page 6

the learned Tribunal, the disciplinary authority had not paid subsistence

allowance during the period of suspension of Sri Talukdar, the charge-sheet had

not been served on him and no opportunity of hearing had been accorded to

him and, hence, his dismissal from service was wholly illegal and untenable in

law.

7. Aggrieved by the order, dated 08-07-2010, aforementioned, this writ

petition has been made, under Article 226 of the Constitution of India, by the

petitioners herein, who were, as already indicated above, respondents in the

OA. With the help of this writ petition, the present petitioners, who were

respondents in the OA, have put into challenge the correctness and validity of

the order, dated 08-07-2010, aforementioned, passed by the learned Tribunal,

and seek issuance of appropriate direction or directions.

8. Presenting the case on behalf of the petitioners, Mr. H Buragohain,

learned Central Government Counsel, submits that if the facts and

circumstances, as were available before the disciplinary authority, on 10-02-2006

(when the order of dismissal of the respondent's husband was made by the

disciplinary authority), are born in mind, it would be unfair and incorrect to say

that the order, dated 10.02.2006, passed by the disciplinary authority, does not

give sufficient reason as to why the disciplinary authority considered that it was

not 'reasonably practicable' to hold an enquiry in terms of the requirements of

Rule 14 of CCS (CCA) Rules, 1965, and as to why the order of dismissal had

to be made without holding enquiry. The learned Tribunal, according to Mr.

Buragohain, learned Central Government Counsel, fell in serious error in

considering the case against the present petitioners not in the light of the facts

as were available before the disciplinary authority on 10-02-2006, when the

impugned order, dispensing with the enquiry and dismissing the respondent's

husband from service, was made inasmuch as the learned Tribunal has passed

the presently impugned order on the basis of the materials as became available,

before the learned Tribunal, on the date of the passing of the order; whereas

WP(C) No. 2221 of 2011
Page 7

the correctness and/or legality of the order, dated 10.02.2006, which the

disciplinary authority had passed, ought to have been considered in the light of

the materials, which were available before the disciplinary authority on the date

of making of the order, dated 10.02.2006, aforementioned.

9. In support of his submission that the petitioners had acted within the

ambit of their powers and with full justification in dismissing the petitioner's

husband by taking the view that it was not reasonably practicable to hold an

enquiry into the charges, which were framed against the respondent's husband

as regards his unauthorized absence from duty and also misappropriation of

Government money, Mr. Buragohain has placed reliance on Union of India and

others -vs- Tulsi Ram Patel, reported in (1985) 3 SCC 398.

10. Controverting the submissions made on behalf of the petitioners, Mr.

Sikdar, learned counsel, submits that the learned Tribunal has clearly and

correctly noted, in its order, which stands impugned in the present writ

petition, that the learned Chief Judicial Magistrate had declared the

petitioner's husband as an absconder by order, dated 20-06-2006, whereas the

disciplinary authority had passed an order, dismissing the petitioner's husband,

as far back as on 10-02-2006, treating the petitioner's husband as an absconder,

though until a declaration from the Chief Judicial Magistrate, Kokrajhar, was

made to the effect that the respondent's husband had been an absconder, he

(i.e., the respondent's husband) could not have been, and must not have been,

treated and described by the disciplinary authority as an absconder.

11. Before the declaration was made by the learned Chief Judicial

Magistrate as regards the fact that the petitioner's husband was an absconder,

treating the petitioner's husband, as an absconder, by the disciplinary authority,

was, contends Mr. Sikdar, wholly illegal and untenable in law. Relying upon

the decision in Tulsi Ram Patel (supra), Mr. Sikdar submits that Tulsi Ram

Patel (supra) clearly lays down that an order, dispensing with an enquiry on the

ground that holding of the enquiry was not reasonably practicable, ought to have

WP(C) No. 2221 of 2011
Page 8

preceded the order of dismissal; but in the case at hand, the order dispensing

with the enquiry and dismissing the respondent's husband from service, came

to be made by a consolidated order, passed on 10-02-2006.

12. As far as the learned Amicus Curiae is concerned, he has submitted that

dispensing with enquiry on the ground that holding of enquiry was not

reasonably practicable can be taken before the enquiry is commenced and the

decision, dispensing with the enquiry on the ground that it is not reasonably

practicable to hold the enquiry, can be taken even after an enquiry has

commenced. This apart, the reasons, assigned by a disciplinary authority, for

taking the view that it is not reasonably practicable to hold enquiry is an act,

which is justiciable in nature.

13. Mr. Choudhury, learned amicus curiae, also submits that justification

and/or legality or validity of an order, dispensing with a disciplinary enquiry,

has to be adjudged by referring to the facts and circumstances, which were in

existence on the day, when the decision, not to hold enquiry, was taken on the

ground that it was not reasonably practicable to hold the enquiry and that the

correctness or validity of an order, dispensing with the enquiry, cannot be

considered and determined with reference to a date or situation subsequent to

the date, when the decision to dispense with the enquiry was taken.

14. Mr. Choudhury, learned amicus curiae, further submits that in the case at

hand, the petitioners do not appear to have committed any error, in the light of

the decision in Tulsi Ram Patel (supra), in passing a consolidated order, on

10-02-2006, holding that it was not reasonably practicable to hold an enquiry and

also in dismissing the petitioner's husband from service inasmuch as the

enquiry, in the absence of the petitioner's husband, was, rightly concluded the

disciplinary authority, not reasonably practicable.

15. While considering the present writ petition, it needs to be noted that

dismissal from service is, admittedly, a major penalty as specified in Clause (v)

WP(C) No. 2221 of 2011
Page 9

of Rule 11 of the CCS (CCA) Rules, 1965, and this major penalty cannot, in the

light of the provisions of Rule 14 of CCS (CCA) Rules, 1965, be imposed on a

delinquent employee without holding an enquiry inasmuch as Rule 14(i) clearly

lays down that no order, imposing any of the penalties specified in clauses (v)

to (ix) of Rule 11, shall be made except after an enquiry is held, as far as may

be, in the manner provided in this Rule. Sub-Rule (1) of Rule 14 is reproduced

below:

"14. PROCEDURE FOR IMPOSING MAJOR PENALTIES:

(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11
shall be made except after an enquiry held, as far as may be, in the manner provided
in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries)
Act, 1850 (37 of 1850), where such enquiry is held under that Act."

(Emphasis is added)

16. However, Rule 19 of the CCS (CCA) Rules, 1965, provides for

imposition of major penalty without holding any enquiry, though enquiry is,

otherwise, required by Rule 14 inasmuch as Rule 19 of CCS (CCA) Rules,

1965, lays down as follows:

"19. Special procedure in certain cases:

Notwithstanding anything contained in rule 14 to rule 18-

(i) where any penalty is 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 by
it in writing that it is not reasonably practicable to hold an enquiry in the
manner provided in these rules, or

(iii) where the President is satisfied that in the interest of the security of the
State, it is not expedient to hold any enquiry in the manner provided in these
rules,

the disciplinary authority may consider the circumstances of the case and make
such orders thereon as it deems fit:

Provided that the Government servant may be given an opportunity of making
representation on the penalty proposed to be imposed before any order is made in
a case under clause (i):

WP(C) No. 2221 of 2011
Page 10

Provided further that the Commission shall be consulted, where such
consultation is necessary, before any orders are made in any case under this
rule."

(Emphasis is added)

17. A bare reading of Rule 19 clearly shows that whenever the disciplinary

authority is satisfied, for reasons to be recorded by it in writing, that it is not

reasonably practicable to hold an enquiry in the manner provided in the Rules, the

disciplinary authority may pass an order indicating such circumstances leading

to its conclusion that it is not reasonably practicable to hold an enquiry.

18. From a conjoint reading of Rule 14 and Rule 19, it becomes abundantly

clear that ordinarily, a Government servant cannot be dismissed from service

on the ground of misconduct without holding an enquiry. This general rule is,

however, subject to certain exceptions and one of the exceptions, which stands

incorporated in Rule 19(ii), is where the disciplinary authority is satisfied, for

reasons to be recorded by it in writing, that it is not reasonably practicable to hold

an enquiry in the manner provided in the rules.

19. The exception, as provided by Clause (ii) of Rule 19, is broadly in tune

with Clause (b) of the Second Proviso to Clause (2) of Article 311 of the

Constitution of India. For clarity of the purpose, Article 311 is reproduced

below:

"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 an
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 enquiry in which he has been informed of 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 enquiry, to impose upon him any
such penalty, such penalty may be imposed on the basis of the evidence adduced
during such enquiry 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--

WP(C) No. 2221 of 2011
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(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 is satisfied that for some reason, to be recorded by that authority
in writing, it is not reasonably practicable to hold such enquiry; 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 enquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is
reasonably practicable to hold such enquiry as is referred to in clause (2), the
decision thereon of the authority empowered to dismiss or remove such person or
to reduce him in rank shall be final."
(Emphasis is added)

20. From a cautious reading of Article 311, as a whole, and Clause (b) of

the Second Proviso to Clause (2) of Article 311, in particular, it becomes

abundantly clear that no member of civil service of the Union or State or who

holds a civil post, under the Union or State, can be dismissed or removed

except upon holding an enquiry in which the Government servant is informed

of the charges against him and given reasonable opportunity of being heard in

respect of the charges. This general rule, requiring hearing of the Government

servant, on the charges, by holding an enquiry, is subject to the conditions as

contemplated by the Second Proviso to Clause (2) of Article 311. One of such

exceptions is incorporated in Clause (b) of the Second proviso to Clause (2) of

Article 311 of the Constitution of India.

21. Clause (b) of the Second proviso to Clause (2) of Article 311 of the

Constitution of India clearly lays down that where the authority, empowered

to dismiss or remove a person or to reduce him in rank, is satisfied that for

some reason, to be recorded by that authority in writing, that it is not reasonably

practicable to hold such enquiry, the enquiry may be dispensed with.

22. What follows from the above discussion is that ordinarily, no

Government servant can be dismissed or removed from service until after an

enquiry is held, wherein he is informed of the charges against him and has been

WP(C) No. 2221 of 2011
Page 12

given reasonable opportunity of being heard in respect of the charges, which

are levelled against him. The safeguard, so provided to a Government servant,

by Clause (2) of Article 311 is, however, taken away, when the Second proviso

to Clause (2) of Article 311 of the Constitution of India becomes applicable.

The Constitution Bench, in Tulsi Ram Patel (supra), has clearly held, in this

regard, as follows:

"70. The position which emerges from the above discussion is that the
keywords of the second proviso govern each and every clause of that proviso
and leave no scope for any kind of opportunity to be given to a government
servant. The phrase "this clause shall not apply" is mandatory and not
directory. It is in the nature of a constitutional prohibitory injunction
restraining the disciplinary authority from holding an enquiry under Article
311(2) or from giving any kind of opportunity to the concerned government
servant. There is thus no scope for introducing into the second proviso some kind
of enquiry or opportunity by a process of inference or implication. The maxim
"expressum facit cessare tacitum" ("when there is express mention of certain
things, then anything not mentioned is excluded") applies to the case. As pointed
out by this Court in B. Shankara Rao Badami v. State of Mysore, this well-
known maxim is a principle of logic and common sense and not merely a
technical rule of construction. The second proviso expressly mentions that clause
(2) shall not apply where one of the clauses of that proviso becomes applicable.
This express mention excludes everything that clause (2) contains and there can
be no scope for once again introducing the opportunities provided by clause (2) or
any one of them into the second proviso.............................. Equally,
where a public servant by himself or in concert with others has brought about
a situation in which it is not reasonably practicable to hold an enquiry and
his conduct is such as to justify his dismissal, removal or reduction in rank,
both public interest and public good demand that such penalty should
forthwith and summarily be imposed upon him; and similarly, where in the
interest of the security of the State, it is not expedient to hold an enquiry, it is
in the public interest and for public good that where one of the three
punishments of dismissal, removal or reduction in rank is called for, it
should be summarily imposed upon the concerned government
servant............................. Much as this may seem harsh and oppressive to
a government servant, this Court must not forget that the object underlying the
second proviso is public policy, public interest and public good and the Court

WP(C) No. 2221 of 2011
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must, therefore, repel the temptation to be carried away by feelings of
commiseration and sympathy for those government servants, who have been
dismissed, removed or reduced in rank by applying the second proviso. Sympathy
and commiseration cannot be allowed to outweigh considerations of public
policy, concern for public interest, regard for public good and the peremptory
dictate of a constitutional prohibition. ................................ After all, it is
not as if a government servant is without any remedy when the second proviso
has been applied to him. There are two remedies open to him, namely,
departmental appeal and judicial review."
(Emphasis is added)
23. From the above observations, what emerges is that a Government

servant can be dismissed from service without holding enquiry if the disciplinary

authority finds, for reasons to be recorded by it in writing, that it is not

reasonably practicable to hold an enquiry in the manner provided in the Rules.

Though this Rule, permitting enquiry to be dispensed with, appears to be harsh,

the fact remains, as indicated in Tulsi Ram Patel (supra), that this Rule has

been made, as a matter of public policy, in public interest and for public good.

Where a public servant places himself in a situation, wherein it is not reasonably

practicable to hold an enquiry and his conduct, at the same time, is such as

would warrant and justify his dismissal from service, there is no impediment in

taking recourse to this power by a disciplinary authority in public interest and

public good inasmuch as removing a Government servant without holding any

enquiry, in such a case, would be in public interest and public good.

24. As observed in Tulsi Ram Patel (supra), the condition precedent for the

application of clause (b) to the second Proviso to Clause (2) of Article 311 is

the satisfaction of the disciplinary authority that "it is not reasonably practicable to

hold" the enquiry contemplated by clause (2) of Article 311. What is pertinent

to note is that the words used are "not reasonably practicable" and not

"impracticable". The Oxford English Dictionary defines "practicable" to mean

"Capable of being put into practice, carried out in action, effected, accomplished, or

done; feasible". According to the Webster's Third New International Dictionary,

WP(C) No. 2221 of 2011
Page 14

the word "practicable" means, inter alia, "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 sufficient extent".

25. Thus, whether it was practicable to hold enquiry or not, in a given case,

must be adjudged in the context of facts, which were in existence or available

before the disciplinary authority at the time, when the decision as regards

dismissal or removal of service of a Government servant is required to be taken

by the disciplinary authority. It is not a total or absolute impracticability, which

is required by clause (b). What is requisite is that the holding of the enquiry is

not practicable in the opinion of a reasonable man taking a reasonable view of

the prevailing situation.

26. A disciplinary authority is not expected to dispense with a disciplinary

enquiry lightly or arbitrarily or out of ulterior motives or merely to avoid

holding of an enquiry or because the Department's case against the government

servant is weak and is likely to fail. Consequently, the finality, given to the

decision of the disciplinary authority by Article 311(3), is not binding upon the

court so far as its power of judicial review is concerned and, in such a case, the

court will strike down the order, dispensing with the enquiry as also the order

imposing penalty if the Court happens to find that it was reasonably practicable

to hold enquiry. (See Union of India and others -vs- Tulsi Ram Patel,

reported in (1985) 3 SCC 398).

27. The learned Amicus Curiae is correct, therefore, in submitting that a

situation, which makes the holding of an enquiry not reasonably practicable, may

even exist before an enquiry is initiated or may arise even after the enquiry has

been initiated, i.e., such a situation can develop before the enquiry commences

or during the progress of the enquiry or subsequent to initiation of the enquiry.

WP(C) No. 2221 of 2011
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The reference, made, in this regard, by the learned Amicus Curiae to the

observations of the Constitution Bench, appearing at Para 132, in Tulsi Ram

Patel (supra), are not at all misplaced inasmuch as the relevant observations

read as under:

"132. It is not necessary that a situation which makes the holding of an
enquiry not reasonably practicable should exist before the disciplinary
enquiry is initiated against a government servant. Such a situation can also
come into existence subsequently during the course of an enquiry, for instance,
after the service of a charge-sheet upon the government servant or after he has
filed his written statement thereto or even after evidence has been led in part. In
such a case also the disciplinary authority would be entitled to apply clause (b)
of the second proviso because the word "enquiry" in that clause includes part of
an enquiry. It would also not be reasonably practicable to afford to the
government servant an opportunity of hearing or further hearing, as the case may
be, when at the commencement of the enquiry or pending it the government
servant absconds and cannot be served or will not participate in the enquiry. In
such cases, the matter must proceed ex parte and on the materials before the
disciplinary authority . Therefore, even where a part of an enquiry has been held
and the rest is dispensed with under clause (b) or a provision in the service rules
analogous thereto, the exclusionary words of the second proviso operate in their
full vigour and the government servant cannot complain that he has been
dismissed, removed or reduced in rank in violation of the safeguards provided by
Article 311(2)." (Emphasis is added)

28. There can be no doubt that when the reasons are not recorded by a

disciplinary authority for reaching the satisfaction that it is not 'reasonably

practicable' to hold enquiry, such an order would be bad in law, because it is the

obligation of the disciplinary authority to record the reasons as to why holding

of an enquiry was not 'reasonably practicable'. In the absence of an order

recording satisfaction of the disciplinary authority, dispensing with enquiry, the

order of penalty ought to be interfered with.

29. However, contrary to what has been submitted by Mr. Sikdar, learned

counsel for the respondent, that an order, dispensing with an enquiry, has to be

WP(C) No. 2221 of 2011
Page 16

separately made and such an order has to precede the order of dismissal and

that a combined order, dispensing with the enquiry as well as removing a

Government servant from service, is bad in law, the Constitution Bench, in

Tulsi Ram Patel (supra), has observed, at para 134, as follows:

"134. It is obvious that the recording in writing of the reason for dispensing
with the enquiry must precede the order imposing the penalty. The reason for
dispensing with the enquiry need not, therefore, find a place in the final
order. It would be usual to record the reason separately and then consider the
question of the penalty to be imposed and pass the order imposing the
penalty. It would, however, be better to record the reason in the final order in
order to avoid the allegation that the reason was not recorded in writing
before passing the final order but was subsequently fabricated. The reason for
dispensing with the enquiry need not contain detailed particulars, but the
reason must not be vague or just a repetition of the language of clause (b) of
the second proviso. For instance, it would be no compliance with the
requirement of clause (b) for the disciplinary authority simply to state that he
was satisfied that it was not reasonably practicable to hold any enquiry.
Sometimes a situation may be such that it is not reasonably practicable to give
detailed reasons for dispensing with the enquiry. This would not, however, per se
invalidate the order. Each case must be judged on its own merits and in the light
of its own facts and circumstances."
(Emphasis is added)
30. A microscopic reading of the observations made above, in Tulsi Ram

Patel (supra), clearly shows that although the Constitution Bench has pointed

out that the reason, in writing, for dispensing with an enquiry, has to be

recorded and such recording of reasons must precede the order imposing

penalty and that it is not necessary that the final order, dismissing an employee

from service, shall also contain a reason for dispensing with the enquiry and

that usually, there would be two separate orders -- one recording the reason

for dispensing with the enquiry and the other imposing the penalty, yet the

Constitution Bench, having observed this far, has pointed out and made it

crystal clear that it would be better to record reason, in the final order itself, so

as to avoid possibility of the allegation that the reason, in writing, had not been

WP(C) No. 2221 of 2011
Page 17

recorded before the final order was made, but has been subsequently

fabricated. The Supreme Court has also pointed out, in Para 135 of Tulsi Ram

Patel (supra), that though the reason, dispensing with the enquiry, is necessary

to be recorded in writing, there is no obligation to communicate the reason to

the Government servant. The relevant observations, appearing at para 135 of

Tulsi Ram Patel (supra), read as under:

"135. It was vehemently contended that if reasons are not recorded in the final
order, they must be communicated to the concerned government servant to enable
him to challenge the validity of the reasons in a departmental appeal or before a
court of law and that failure to communicate the reasons would invalidate the
order. This contention too cannot be accepted. The constitutional requirement
in clause (b) is that the reason for dispensing with the enquiry should be
recorded in writing. There is no obligation to communicate the reason to the
government servant. As clause (3) of Article 311 makes the decision of the
disciplinary authority on this point final, the question cannot be agitated in a
departmental appeal, revision or review. The obligation to record the reason in
writing is provided in clause (b) so that the superiors of the disciplinary
authority may be able to judge whether such authority had exercised its
power under clause (b) properly or not with a view to judge the performance
and capacity of that officer for the purposes of promotion etc. It would,
however, be better for the disciplinary authority to communicate to the
government servant its reason for dispensing with the enquiry because such
communication would eliminate the possibility of an allegation being made that
the reasons have been subsequently fabricated. It would also enable the
government servant to approach the High Court under Article 226 or, in a fit
case, this Court under Article 32. If the reasons are not communicated to the
government servant and the matter comes to the court, the court can direct the
reasons to be produced, and furnished to the government servant and if still not
produced, a presumption should be drawn that the reasons were not recorded in
writing and the impugned order would then stand invalidated. Such
presumption can, however, be rebutted by a satisfactory explanation for the non-
production of the written reasons." (Emphasis is added)

31. Though it had also been contended, in Tulsi Ram Patel (supra), that

holding of an enquiry is necessary in order to determine whether disciplinary

WP(C) No. 2221 of 2011
Page 18

enquiry should be dispensed with or not and that in such a preliminary enquiry,

the Government servant shall be given an opportunity of hearing by giving him

a notice to show cause, the Supreme Court has remarked that this argument is

illogical.

32. It is immense importance to note that the Supreme Court, in no

uncertain words, has pointed out, in Tulsi Ram Patel (supra), that though an

order, passed by a disciplinary authority, recording reasons for dispensing with

the enquiry, is justiciable, the Court must put itself in the place of the disciplinary

authority and consider what was the then prevailing situation and what a

reasonable man, acting in a reasonable way, would have done and that the

matter will have to be judged in the light of the then prevailing situation and

not as if the disciplinary authority was deciding the question -- whether the

enquiry should be dispensed with or not -- in cool and detached atmosphere of

a court-room, removed in time, from the situation in question. The Supreme

Court has also pointed out, in Tulsi Ram Patel (supra), that where two views

are possible, Court will decline to interfere. The relevant observations,

appearing in para 137, read as under:

"137. A government servant who has been dismissed, removed or reduced in rank by
applying to his case clause (b) or an analogous provision of a service rule is not
wholly without a remedy. As pointed out earlier while dealing with the various
service rules, he can claim in a departmental appeal or revision that an enquiry be
held with respect to the charges on which the penalty of dismissal, removal or
reduction in rank has been imposed upon him unless the same or a similar situation
prevails at the time of hearing of the appeal or revision application. If the same
situation is continuing or a similar situation arises, it would not then be
reasonably practicable to hold an enquiry at the time of the hearing of the appeal
or revision. Though in such a case as the government servant if dismissed or
removed from service, is not continuing in service and if reduced in rank, is
continuing in service with such reduced rank, no prejudice could be caused to the
Government or the Department if the hearing of an appeal or revision
application, as the case may be, is postponed for a reasonable time."
(Emphasis is added)

WP(C) No. 2221 of 2011
Page 19

33. In the light of what have been observed and held above, it becomes

abundantly clear that while considering the reason, recorded by a disciplinary

authority dispensing with an enquiry, a Court must put itself in the place of a

disciplinary authority and, then, consider, in the light of the prevailing situation

at the relevant point of time, whether a reasonable man, acting in a reasonable

way, would have dispensed with the enquiry or not. In fact, even when two

views are possible on the course of action, which the disciplinary authority

could have had adopted, the Court would decline to interfere if the reason,

assigned by a disciplinary authority for choosing to dispense with enquiry, is a

reasonably possible view.

34. What logically follows from the above discussion is that the learned

Tribunal ought to have considered the correctness, legality and/or validity of

the impugned order, dated 10-02-2006, passed by the disciplinary authority, in

the light of the facts and attending circumstances as were obtainable on the

date of making of the order, i.e., on 10.02.2006, and not on the day of the

making of the order by the learned Tribunal on 08.07.2010.

35. Consequently, the view, expressed by the learned Tribunal, that when

the learned Chief Judicial Magistrate has declared the husband of the

respondent herein as absconder on 02-06-2006, the disciplinary authority could

not have treated the petitioner's husband as an absconder on 02-06-2006, is, in

our considered view, a wholly incorrect approach inasmuch as the learned

Tribunal misses out the point that it was not at all necessary for the disciplinary

authority to wait for the Chief Judicial Magistrate, Kokrajhar, to record as to

whether the respondent's husband was or was not an absconder. It was for the

disciplinary authority and the disciplinary authority alone to decide, on

10.02.2006, whether, in the facts and attending circumstances of the case, as

existing on 10-02-2006, the enquiry, as contemplated by Rule 19, was or was

not reasonably practicable.

WP(C) No. 2221 of 2011
Page 20

36. With regard to the above, we may also point out that long before the

learned Chief Judicial Magistrate passed its order declaring the petitioner's

husband as an absconder, several warrants had been issued by the learned Chief

Judicial Magistrate against the respondent's husband treating him as an

absconder, because the charge sheet, which the police had submitted, clearly

described the respondent's husband as an absconder. Whether the respondent's

husband had, in fact, absconded or not is not the question; the question is

whether, in the facts and attending circumstances of the case, as obtainable on

10-02-2006, the disciplinary authority's satisfaction that the respondent's

husband was an absconder and, therefore, it was not reasonably practicable to

hold the enquiry is or is not correct. For this purpose, the order, dated 10-02-

2006, is reproduced below:

"WHEREAS a statement of articles of charges was framed against Chakreswar
Talukdar, Ex-SPM Bengtal S.O. under Rule-14 of CCS (CCA) Rules, 1965 but
due to prolonged absconding of Shri Talukdar the said memorandum of charges
could not be served to the Official. The article of charges and the statement of
imputation of misconduct or misbehaviour on the basis of which the charges were
framed against the said Shri Chakreswar Talukdar was as below-
ANNEXURE-I
Statement of articles of charge framed against Shri Chakreswar Talukdar, the
then SPM, Bengtal S.O. (Now under deemed to have been placed under
suspension and absconder since 17-07-01).
ARTICLE-I
That the said Shri Chakreswar Talukdar while functioning as SPM, Bengtal
S.O. during the period from 31-03-2000 onwards remained unauthorised absent
from duties w.e.f. 17-07-2001 keeping Bengtal S.O. closed and his movements
were not known till this day and his continued absence in duty without proper
permission unauthorizedly was subversive of discipline which invites disciplinary
action against Shri Talukdar as codified in Rule -62 & 63 of Postal Manual
Volume-III. This also attracts the provision of Rule-3(1) (ii) and (iii) of CCS
(Conduct) Rules,1964.
ARTICLE-II
That during the aforesaid period and while functioning as such in the aforesaid
office the said Shri Chakreswar Talukdar has kept Bengtal S.O. closed and

WP(C) No. 2221 of 2011
Page 21

absconded himself w.e.f. 17-07-2001 keeping shortage of cash to the tune of Rs.
1,03,809.42 (Rupees One Lakh three thousand eight hundred nine and paise
forty two ) only in the office. The above shortage of cash was charged as U.C.P.
on 21-07-2001. By doing the above acts the said Shri Chakreswar Talukdar
violated the provision of Rule-58 of P&T FHB Volume-1, Rule -658 of P & T
Manual Volume -VI Part III and also Rules 3(1) (i), (ii), (iii) of CCS (Conduct)
Rules, 1964.
ANNEXURE-II
Statement of imputation of misconduct or misbehaviour in support of the articles
of charge framed against Shri Chakreswar Talukdar the then SPM, Bengtal
S.O. Now under deemed to have been placed under suspension and absconder
since 17-07-01.
ARTICLE-I
That the said Shri Chakreswar Talukdar while functioning as SPM, Bengtal
S.O. during the period from 31-03-2000 onwards remained absent
unauthorizedly from duties w.e.f. 17-07-2001 keeping in Bengtal S.O. closed
without any information. His movement was also not known. On enquiry at
Bengtal S.O. on 20-07-2001 it was revealed that Bengtal S.O. remained closed
from 17-07-01 and Shri Talukdar is absconding since 17-07-01. Nobody could
tell where about of Shri Talukdar as well as the disposal of office keys. Being
failed to open the P.O. on 20-07-01 a report was lodged at Bengtal Police out
post regarding suspension of P.O. works and authorized absence of Shri
Talukdar. Lastly, the Bengtal S.O. was opened on 21-07-01 in presence of Shri
A.K.Tribedi, EAC, Kokrajhar (District Magistrate) and others, after observing
all formalities. By doing the above acts the said Shri Talukdar Subversive of
discipline which invites disciplinary against him as codified in Rule 62 and 63 of
Postal Manual Vol-III and by his continued absence from duty the said Shri
Talukdar has also displayed lack of devotion to duty and acted in a manner
which is unbecoming of a Govt. Servant violating the provision of Rule 3 (1) (ii)
& (iii) of CCS (Conduct) Rules, 1964.
ARTICLE - II
That Shri Chakreswar Talukdar while working as SPM Bengtal S.O. during
the period from 30-03-2000 onwards absconded himself w.e.f. 17-07-01 keeping
the office closed and suspending the P.O. works. The office was then opened with
the help of Magistrate after observing necessary formalities on 21-01-2001. As
inventory was prepared by the Magistrate himself in presence of the staff and
other witnesses and following cash and stamps were found:-
Cash = Rs. 2776.10
Stamp = Rs. 6701.00

WP(C) No. 2221 of 2011
Page 22

Revenue = Rs. 1400.00
Total Rs.10877.10

Duo from BOs = Rs. 7080.09
Total Rs.17957.19

S.O. a/c book of the office (current) was then examined and found that said Shri
Talukdar had written up S.O. a/c book upto 13-07-2001 and as per S.O. a/c
book dtd. 13.07.01 closing balance of Bangtal S.O. was as below:-
Cash = Rs. 1,07,540.02
Stamp = Rs. 2753.50
Revenue = Rs. 140.00
Duo from BOs = Rs. 6030.09
Rs. 1,16,463.61

Said Shri Talukdar was performed his duties on 14.07.01 and written up B.O.
summary upto 14.07.01 but did not maintain the S.O. a/c book upto 14.07.01.
As per B.O. Summary dated 14.07.01 a sum of Rs. 7080.09 showed ue from its
Branch Offices. Shri Talukdar also issued M.O. for Rs. 1613/- paid M.O. for
Rs.2000/- and paid bill for Rs. 40/- respectively on 14.07.01 as per voucher
found available. But all the above amount was not brought into a/c on
14.07.01. Besides stamp worth Rs.5730/- was remitted to Bengtal S.O. on
10.07.2001 by the SPM, Bongaigaon S.O., but the amount found not
acknowledged and brought into a/c till 14.07.01. All the transactions stated
above had been taken into account and assessed closing balances as follows.
CB dated 13.07.01 = Rs. 1,16,463.61
Stamp remitted to Bengtal = Rs. 5,730.00
but not acknowledged
M.O. issued but not bring
to account. = Rs. 1613.00
Total receipt side = Rs. 1,23,806.61
Less M.O. paid and bills paid = Rs. 2040.00
CB = Rs. 1,21,766.61

But on physical verification the executive Magistrate found Rs. 10,877.10 as
cash/stamp/Revenue balance in the office. A sum of Rs. 7080.09 was due from
its BOs and hence the total shortage was (Rs. 1,21,766.61- 17,957.19) = Rs.
1,03,809.42 (Rs. One lakh three thousand eight hundred and paise forty two
only).
The above shortage of amount was charged as UCP in the daily a/c of Bangtal
S.O. on 21.07.01.
By doing the above acts the said Shri Chakreswar Talukdar violated the
provision of Rule 58 of P & T Financial Hand Book Volume-1, Rule-658 of P &
T Manual Volume-VI Part-III and failed to maintain absolute integrity and
devotion to duty and acted in a manner of unbecoming a Govt. Servant violating
Rule-III (1) (i) (ii) (iii) of CCS (Conduct) Rules, 1964.

WP(C) No. 2221 of 2011
Page 23

ANNEXURE -III
List of documents by which the articles of charges framed against Shri Talukdar
the then SPM, Bengtal, S.O. are proposed to be sustained.
(1) Inventory dtd. 21.07.01 of Bengtal S.O. prepared by Shri A.K. Tribedi, EAC
Kokrajhar in presence of Shri B.K. Marak, SPOs, Dhubri and other
witnesses.
(2) S.O. a/c book of Bengtal S.O. dtd. 21.07.01 Containing period from 31.03.2000
to 21.07.2001.
(3) S.O. daily account of Bengtal S.O. dtd. 21.07.01 duly accounted by Dhubri
H.O. on 26.07.01.
(4) Debit Charge for Rs. 1,03,809.42 dtd.21.07.01 from Dhubri H.O. dated againt
UCP.
(5) B.O. Summary of Bengtal S.O. covering period from 18.01.2000 to 23.07.2001.

ANNEXURE - IV
List of witnesses by whom the article of charges framed against Shri Chakreswar
Talukdar the then, SPM, Bengtal, S.O. are proposed to be sustained.
1. Shri A.K. Trebedi, EAC, Kokrajhar
2. Shri B. K. Marak, SPOs, Dhubri
3. Shri B. U. Ahmed, IPOs (PG)/Dhubri
4. Shri J. Karmakar, IPOs Bongaigaon
5. Shri S. K. Choudhury, O/S Mail Bongaigaon
7. Shri Tamir Uddin Ahmed, PA, Kokrajhar, H.O

The said Shri Chakreswar Talukdar Govt. money to the tune of Rs. 1,03,809.42
(Rupees one lakh three thousand eight hundred nine and paise forty two) only in his
official capacity and absconded keeping Bengtal S.O. closed from 17.07.01. The matter
was reported to Police and the Police authority registered the case against the said Shri
Chakreswar Talukdar under Basugaon P.S. Case No. 71/2001 under section 409 IPC.
The police submitted charge sheet bearing No. 27 dated 30.05.2002 before the Hon'ble
Court of CJM. Kokrajhar showing the accused as absconder. The case is now subjudiced
in the said Hon'ble Court in case No. GR 450/2001. The Supdt. of Police, Kokrajhar
vide his leter No. KJR/Crime/9/2005/5203 dtd 29-08-05 granted a certificate stating
that the accused Shri Chakreswar Talukdar is absconding and the Hon'ble CJM,
Kokrajhar has also issued order dated 21.11.05 declaring the accused as prolonged
absconder.
Since the whereabouts of the said Shri Chakreswar Talukdar is not known and
the Police/Court authority have also certified that the said Shri Chakreswar Talukdar is
absconding and therefore, it is not reasonably practicable to hold oral enquiry under
Rule-14 of CCS (CCA) Rules, 1965 against the said Shri Chakreswar Talukdar.

WP(C) No. 2221 of 2011
Page 24

In view of the above the undersigned, in exercise of powers conferred by Rule 19
(ii) of CCS (CCA) Rules, 1965 decided to finalize the Rule-14 case of Shri Chakreswar
Talukdar without conducting oral enquiry.
I have gone through the case very carefully and also examined all the records and
relevant facts in the case and observed that the offence committed by Shri Chakreswar
Talukdar is of serious nature and due to his misdeeds the department had to sustain
huge loss and valued customers of the department had to suffer during the period of
unauthorized closing of the office. SO Shri Chakreswar Talukdar is not fit perodn
retained in service and he deserves severe punishment. So orders are passed against Shri
Chakreswar Talukdar as below.
ORDER

I, Shri R. Rabha, Supdt. of Post Offices, Goalpara Division, Dhubri hereby order that Shri Chakreswar Talukdar, Ex-SPM, Bengtal S.O. and now under deemed suspension be "dismissed" from service with immediate effect."

37. From a careful reading of the order, dated 10-02-2006, what clearly transpires is that charges were framed against the respondent's husband by the disciplinary authority in terms of Rule 14 of the CCS (CCA) Rules, 1965; but the enquiry could not be held, because the respondent's husband was found absconding and the memorandum of charges could not be served on him. When a Government employee absconds and the charges cannot be served on him, it cannot be said that without service of charges, the disciplinary authority is disempowered from taking a decision dispensing with the holding of the enquiry.

38. The article of charges, as reproduced above, clearly reveal that the charges were very grave and serious inasmuch as the charges relate to misappropriation of Government money and these accusations had not been refuted by the respondent's husband, because the charge-sheet could not be served on him. On 10-02-2006, the disciplinary authority had, before it, the police report showing that the respondent's husband was an absconder. The disciplinary authority also had, before it, the materials showing that there was misappropriation of Government money by the respondent's husband. In such circumstances, when the charges had not been denied and disputed, because of WP(C) No. 2221 of 2011 Page 25 unauthorized absence of the respondent's husband, the holding of the enquiry, as contemplated by Rule 14, was not only unnecessary, but was wholly impracticable inasmuch as without serving notice on the respondent's husband, the enquiry could not have been held and when the notice could not be served on respondent's husband, the disciplinary authority had no option, but to dispense with the enquiry.

39. The disciplinary authority was, therefore, not wrong in recording in its order, dated 10-02-2006, that since the whereabouts of the respondent's husband was not known and the police had certified that the respondent's husband had been absconding, it was not reasonably practicable to hold enquiry in terms of Rule 14 of CCS (CCA) Rules, 1965, against the respondent's husband and, therefore, the disciplinary authority decided to finalise the disciplinary proceeding by resorting to its power conferred by Rule 19(2) of the CCS (CCA) Rules, 1965, and, having found that the misconduct, committed by the respondent's husband, was serious in nature and due to his misconduct, the Department concerned had to sustain huge loss and valued customers of the Department had to suffer, during the period, when the post office remained closed, the respondent's husband was not fit to be retained in service and deserved the severe punishment of dismissal from service with immediate effect. We do not find that the order, so made on 10-02-2006, suffers from any infirmity, legal or factual.

40. In the circumstances mentioned above, it is clear, for the reasons, which we have already discussed above, that the learned Tribunal seriously fell in error in allowing the OA.

41. No doubt, the respondent, as wife of the delinquent employee, or her daughter, would suffer from dismissal of Chakreswar Talukdar, the fact remains that the only question, which was required to be decided was whether dispensing with enquiry was legally valid in the facts and in the light of the then prevailing situation of the case at hand and when the answer to this question WP(C) No. 2221 of 2011 Page 26 was in the affirmative, the act of dispensing with the enquiry, on the part of the disciplinary authority, cannot but be regarded, as observed in Tulsi Ram Patel (supra), an act done in public interest and public good.

42. In the result and for the reasons discussed above, this writ petition succeeds and the order, dated 08-07-2010, passed by the learned Tribunal, is hereby set aside.

43. Before parting with this writ petition, we place on record our great appreciation for the valuable assistance rendered by the learned Amicus Curiae.

44. In terms of the above observations and directions, this writ petition shall stand disposed of.

45. No order as to costs.

                                     JUDGE                             JUDGE




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