Rajasthan High Court - Jaipur
K.S. Parmar vs Union Of India (Uoi) And Ors. on 18 January, 1999
Equivalent citations: 1999(3)WLC522, 1999(1)WLN119
Author: B.S. Chauhan
Bench: B.S. Chauhan
JUDGMENT B.S. Chauhan, J.
1. The instant writ petition has been filed against the order dated 20.12.1997 (Annexure.3), by which the services of the petitioner had been terminated by the respondent No. 3 without holding an enquiry, by resorting to the provisions of Clause (b) of Article 311(2) of the Constitution of India; and dated 30.3.1998 (Annexure.6), by which his appeal has been dismissed by the respondent No. 2 as not maintainable.
2. The facts and circumstances giving rise to this case are that the petitioner, who was employed as Stenographer (Grade I) in the Office of the Director, Arid Forest Research Institute (A.F.R.I.), Jodhpur, has been removed by the impugned order dated 20.12.1997 without resorting to Rule 19(2)(1) of Central Civil Services (Classification, Control & Appeal) Rules, 1965 (for short, "the CCA. Rules"). Being aggrieved, he preferred an appeal which has been dismissed by the Appellate Authority vide order dated 30.3.1998 as not maintainable, hence this petition.
REQUIREMENT FOR SUBJECTIVE SATISFACTION :
3. The issue of resorting to the provisions of Article 311(2)(b) of the Constitution of India has been considered by the Hon'ble Apex Court from time and again and it has been laid down that the existence of the circumstances mentioned therein is a condition precedent to resort to this exceptional and extraordinary procedure. The normal rule to deal with a delinquent employee is to hold enquiry under the Statutory Rules and only in exceptional circumstances Departmental Enquiry may be dispensed with. The Apex Court has considered, from time to time, the circumstances in which the waiving of normal rule of enquiry was found justifiable and in others based on extraneous and irrelevant considerations.
4. In Union Territory of Chandigarh and Ors. v. Mohinder Singh 1998 (3) SCC 68, the Supreme Court considered the case wherein the Superintendent of Police, intelligence, had reported that the delinquent was "a terror in the area" and he had "intimidated the complainant" who appeared to be visibly terrified of the delinquent and the persons present there had left the place being terrified by the threats hurled out by him. Such an instance happened in the year 1991 when the State of Punjab was facing problem of terrorism. The Court held that the Authority was justified in taking the view that it was not "reasonably practicable" to hold enquiry against the delinquent.
5. In Kuldeep Singh v. State of Punjab , the Apex Court up-held the decision taken by the Competent Authority to resort to the provisions of Article 311(2)(b) of the Constitution in a similar circumstance. Therein the delinquent had caused the death of the Superintendent of Police and few other police officials during the period of 1990-91 in Punjab and in absence of any allegation of malafide against the Disciplinary Authority or the Appellate Authority, the Court held that waiving the normal rule of enquiry was justified as there was sufficient material before the Appropriate Authority, upon which it reached a reasonable conclusion that it was not reasonably practicable to hold enquiry as contemplated in the provisions of Article 311(2)(b) of the Constitution.
6. In Chandigarh Administration U.T.C. v. Ajay Manchanda 1996 (3) SCC 3152, the Supreme Court quashed the order of dismissal passed under Article 311(2)(b) as there was no material before the appropriate authority to reach such a conclusion in absence of any evidence that the delinquent had "terrorised, intimidated or threatened" any authority or a witness at all. The Court held that in such a case the inference drawn by the Authority cannot be said to be a reasonable or relevant One. In fact, there was absolutely no material, upon which the Authority could be satisfied that it was not reasonably practicable to hold departmental enquiry against the delinquent.
7. In Jaswant Singh v. State of Punjab , the Apex Court held that the question of practicability to hold inquiry would depend on the existing fact-situation and other surrounding circumstances, that is to say that the question of reasonable practicability must be judged in the light of the circumstances prevailing on the date of passing of the order, for the reason that a Disciplinary Authority is not expected to dispense with disciplinary enquiry lightly or arbitrarily or out of ulterior motive or merely in order to avoid holding of enquiry or for the reason that the case of the Department against the delinquent is weak or may fail. The Apex Court observed as under.-
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 supported the order, to say that the satisfaction is based on certain objective facts and is not out-come of the whim or caprice of the concerned authority.
8. In Chief Security Officer and Ors. v. Singhashan Rabi Das , the Supreme Court held that in the facts and circumstances of the case, the provisions of Article 311(2)(b) were not attracted for the reason that the Competent Authority had dispensed with the Departmental Enquiry observing that it was not feasible or desirable to procure witnesses since it would expose those witnesses and make them ineffective in the future and if those witnesses are asked to appear at a confronted enquiry, they were likely to suffer personal humiliation and insults and even their family members become targets of the acts of violence. The Hon'ble Supreme Court found these reasons totally insufficient in law as there was no material on record, by which the inference could be drawn that if the witnesses appeared in the enquiry, they were likely to suffer personal humiliation and insults. Those witnesses were certainly not going to be placed in any delicate or special position in which asking them to appear in the enquiry would have rendered them subject to any danger, to which witnesses are not normally subjected and hence the grounds taken by the Competent Authority did not provide for any justification for dispensing with the enquiry.
9. In A.K. Sen v. Union of India and Ors. , the Apex Court considered the case in the back-drop of the circumstances from May, 1979 onwards when the agitation by the members of the disciplined force assumed a serious form resulting in total break-down of discipline, and insubordination ran rampant. There was large-scale abstention from duty and parade, orders of superior officials were disobeyed and flouted and superior officers were abused in filthy and obscene language. There were Dharnas and Gheraos of superior officers. Processions were taken out in which slogans, both defiant and throwing out a challenge to the authorities were shouted. The situation ultimately became so grave that the army had to be called out to disarm the unit posted there and this could only be achieved after a pitched armed battle which lasted for three hours between the armed agitators and the army resulting in twenty-two deaths, among them of an army Major and two other army personnel. The Court found waiving of enquiry in such a situation justified and observed that the enquiry can be dispensed with in the circumstances in which no person with any reason or sense of responsibility can say that in such a situation the holding of an enquiry was reasonably practicable.
10. In Shivji Atmaji Sanwant v. State of Maharashtra and Ors. AIR 1996 SC 617, the Supreme Court approved the dispensation of enquiry and up-held the decision of the Authority taken under Article 311(2)(b) after recording the finding that the delinquents were responsible for creation of such a serious situation which rendered all normal functioning of the Police Force and the normal life in the city of Bombay impossible. There was a complete chaos in the administration as delinquents had been instigating others to indulge in the acts of insubordination and indiscipline and to withdraw from their lawful duties, inciting them to violence and mutiny, joining rioting mobs and participating in arson, looting and other criminal acts and were wilfully disobeying orders of their superior officers and that these acts had created a situation whereby the normal functioning of the Force in Bombay had been rendered difficult and impossible and in view of these facts and circumstances it was not practicable to hold inquiry.
11. Similarly, in Satyavir Singh and Ors. v. Union of India and Ors. , a similar situation was found to be prevailing and the Court observed that where a delinquent employee so terrorised the Authority that neither that officer nor any other officer was willing to hold the enquiry, and the members of the Central Industrial Security Force - a disciplined force indulged in the acts of insubordination, indiscipline, shouting inflammatory slogans and indulging in threats of violence, bodily harm and other acts of intimidation to Supervisory Officers had created a situation whereby the enquiry could not have been held.
12. The leading decision on this issue is that of the Constitution Bench of the Supreme Court in Union of India and Ors. v. Tulsi Ram Patel , wherein the Court held that the condition precedent for application of Clause (b) of Second proviso to Article 311(2) is that the Authority must be satisfied that it was not reasonably practicable to hold enquiry and such a satisfaction should be based on material on record before the said authority.
Thus, there may be reason for which the delinquent cannot be served with notice or has been absconding or the circumstances prevailing in the surrounding atmosphere are so hostile that holding the enquiry is not practicable. Only in those circumstances dispensation with the enquiry is permissible. In absence of independent material to fortify the subjective satisfaction of the Competent Authority as to dispensation of enquiry against the delinquent, cannot he sustained for the reason that the same would be deemed to have been taken on inadequate material or irrelevant considerations. Mere assumption or inference based on no evidence that the witnesses would come to adduce evidence in spite of the fact that they had not been intimidated, terrorised or threatened, is not sufficient to resort to the provisions of Article 311(2)(b) of the Constitution. Vide S.J. Meshram v. Union of India and Ors. 1987 (Supp.) SCC 164.
13. In this back-drop, the facts of the instant case are examined. The impugned order dated 20.12.1997 (Annexur.3) had thrown certain light on the past conduct of the petitioner, Annexure.5 is a document on record which explains as what were the charges and the circumstances prevailing at the time of passing the impugned order of termination. At the time of hearing Mr. Bissa, learned Counsel appearing for the respondents, produced some Confidential Documents before the Court and if the same are analytically examined, they provide for the following circumstances-
(1) When the delinquent had been transferred, he took it as his insult and indulged in various activities like making numerous complaints covering corruption and character assassination against the Director of the Institute, ventilating his frustration and annoyance through different improper and undesired requirements like demand of a vehicle for himself in Pulse Polia Programme and he leveled false and baseless allegations against the Director;
(2) the delinquent attempted to form an association of the employees on 21.3.1995 and the approval of which was declined by the Competent Authority. He also, sent a legal notice through his Advocate to the Authority for refusal of recognition to the employees' association:
(3) by submitting a false application for going to Delhi, the petitioner went to Dehradun for bringing the Rules and Regulations for stream-lining the association;
(4) Shri M.L. Arrawatia was asked to enquire into the matter but without any avail so far.
(5) When the delinquent was assigned the duty of taking attendance of the employees, he not only misused his position but also allowed the proxy attendance and misguided the employees to go on strike against the new system in January, 1996 and the Director received complaints regarding mischievous behaviour and nefarious-design of the petitioner.
(6) Petitioner advanced his nefarious activities in a calculated, and planned manner for involving the Director, his son and others as accused in the death-case of Class-D employee, Mr. Mahesh Pandit, but he could not succeed because of the exceptionally good behaviour of the local police officials. However, he sent the message for coverage in local news-papers and also submitted complaints to the competent authorities but the administration did not take any action against the delinquent as he was holding an important position amongst the employees.
(7) the members of Scheduled Caste communities protested in different forms of Dhamas on the death of Mahesh Pandit on being instiagated by the petitioner. However, it was not possible for the administration to get any evidence against him for the reasons explained above. Nor could any charge for conducting enquiry be framed in the matter (8) the delinquent was the leader of the employees association and hence it was not possible to get any evidence against him from any of the employees.
(9) in absence of any provision for review of acceptance of the Annual Confidential Reports by the Director or higher authorities in case of a stenographer, petitioner had considered himself to be immune from any such action like transfer and adverse remark in A.C.R. etc. (10) there was a general atmosphere of indiscipline and insubordination for reasons amongst others of fixed tenure of the Director on deputation upto 23.12.1998;
(11) petitioner committed misconduct of hatching conspiracy, fabrication of false evidence and destruction of evidence in the case of death of Shri-Mahesh Pandit;
(12) in such circumstances it was impossible for any one to take action against the delinquent and the omission of not taking any action against him would send wrong signal and the employees would resort to all undesired actions of fabricating such false case of murder, theft, rape etc. against their superior officials;
(13) there was a strong feeling of caste and local versus out-siders amongst the employees; and (14) the Disciplinary Authority cannot always keep the witnesses around him nor can he get all episode recorded through videography or audiography and if no action is taken against such a subordinate for such serious misconduct, the system would collapse and action was necessary so that others cannot dare practising such misconduct in future.
14. On the basis of the aforesaid assumption/inference, the Disciplinary Authority had resorted to the provisions of Article 311(2)(b) of the Constitution and held that in these prevailing circumstances, it was not reasonably practicable to hold inquiry against petitioner.
15. In the aforesaid circumstances mentioned by the Competent Authority, there is no iota of allegations of terrorising, intimidating or threatening of any of the witnesses or Enquiry Officer of the Competent Authority nor is there a case that the petitioner was not available or was not attending the enquiry or it was not possible to serve the notice of the enquiry on him or he was absconding at the time of enquiry. This was merely a speculation of the Competent Authority based on no evidence whatsoever that no one would depose against the petitioner. The Competent Authority has not stated that the delinquent had ever been involved in a criminal case or charges had been framed against him by any competent criminal court or on what basis the authorities presumed that he was involved in the murder of Mahesh Pandit and destruction of evidence of his involvement. The caste feeling or the general feeling of the local people against the out-siders as well as the issue of demand of vehicle for Pulse Polio or endeavour by the delinquent for forming the employees association; going to Dehradun for bringing the Rules etc. for steam-lining the association, cannot constitute the basis for attracting the drastic provisions of Article 311(2)(b). Similarly, non-conclusion of the enquiry by Mr, M.L. Arrawatia in absence of any allegation of misbehaving by the delinquent with the Enquiry Officer or witnesses or the reason that enquiry cannot be held properly because the delinquent was holding the office of the Employees Association or to believe that nobody would depose against him merely because he is an office-bearer of the association, are totally irrelevant and extraneous consideration for passing such an order. Whether the Director is there temporarily or permanently or on a fixed tenure, has nothing to do with the circumstances which may give rise to a decision for not holding the enquiry as it was not "reasonably practicable" to do so. The drastic provisions cannot be said to be warranted in a case where the Competent Authority whimsically wants to use it for the purpose of teaching lesson to others. The words "reasonably practicable" would apply in a case where the authorities cannot, in a reasonable manner, put into practice the clauses in relation to an enquiry for the reason of certain facts and circumstances of that case, the authority cannot, in a reasonable manner, hold the enquiry even to assume that the authority was unable to adduce evidence against the delinquent due to his influence in the association, would not justify dispensing with the disciplinary proceedings and such an order has to be declared as unsustainable. Discretion of the authority to dispense with the departmental enquiry has to be exercised on objective assessment of the facts available on record of the case. The features of the instant case do not attract applicability of the provisions of Article 311(2)(b) at all and the impugned Order 6f termination, without holding enquiry, stands vitiated being based on no material, rather based on extraneous consideration and irrelevant material and smacks of malafide and arbitrariness.
SCOPE OF JUDICIAL REVIEW:
16. In Jaswant Singh (supra), the Hon'ble Apex Court has observed that when satisfaction of the Competent Authority is challenged in Court of Law, it becomes incumbent on the authority to show that the satisfaction had been based on certain objective facts and it was not an out-come of whims of the authority. The same view had been reiterated in Singashan Rabi Das (supra. In State of Bihar and others v. Subhash Singh 1997 (2) JT 469, the Hon'ble Supreme Court observed as under.-
The soverign power is distributed amongst the Legislature, the Executive and the Judiciary with checks and balances but not in water tight rigid mould. In our democracy governed by the rule of law, the Judiciary has expressly been entrusted with the power of judicial review as sentinal in qui vive. Basically judicial review of administrative actions as also of legislation is exercised against the action of the State. Since the State or public authorities act in exercise of their executive or or legislative power, they are amenable to the judicial review. The State, therefore, is subject to etat de droit, i.e., the State is submitted to the law which implies that all actions of the State or its authorities and officials must be carried out subject to the Constitution and within the limits set by the law, i.e., constitutionalism. In other words, the State is to obey the law...the judicial control on administrative action, thus, affords the courts to determine not only the constitutionality of the law but also the procedural part of administrative action as a part of judicial review....The doctrine of "full faith and credit" applies to the acts done by the officers and presumptive evidence of regularity of officials acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed. It is not settled legal position that the bureaucracy is also accountable for the acts done in accordance with the rules when judicial review is called to be exercised by the Court... Despite this, if there is any special circumstances absolving him of the accountability or if someone else is responsible for the action, he needs to bring them to the notice of the Court so that appropriate procedure is adopted and action taken. The controlling officer holds each of them responsible at the pain of disciplinary action. The object thereby is to ensure compliance of the rule of law. The Constitutional Courts exercise their power of judicial review with constraint to ensure under the rule of law or confided, is discharged truely, objective, expeditiously for the purpose for which substantive acts/results, are intended.
Similar view has been reiterated in Mohinder Singh (supra) and Ajay Manchanda (supra).
17. In Tulsi Ram Patel (supra), the Court placed reliance upon the Constitution Bench judgment of the Supreme Court in Arjun Chaubey v. Union of India and other and held that the High Court, in exercise of its power under Article 226, may interfere on the grounds well estalished in law for the exercise of power of judicial review in matters where administrative discretion is exercised. The finality given in Clause (3) of Article 311 to the Disciplinary Authority's decision that it was not "reasonably practicable" to hold inquiry against the employee is not binding upon the Court and Court is competent to examine the charges of malafide, if any, made in the petition and if the Court comes to the conclusion that the reasons are irrelevant then recording of its satisfaction by the Disciplinary Authority would be an abuse of power conferred upon it by Clause (b) and would take the case out of the purview of that Clause and the impugned order of penalty would stand invalidated.
18. In A.K. Kaul v. Union of India and Ors. , the Court placed reliance upon the judgment of a larger Bench inS.R. Bommai v. Union of India and Ors. , and held that every the order passed by the President of India can be examined to ascertain whether it is vitiated either by malafide or is based on wholly extraneous and/or irrelevant grounds. The Court, however, cannot sit in appeal over the order to substitute its own decision for the satisfaction of the President. So long as there is a material before the President, which is relevant for arriving at his satisfaction, as action is being taken in Clause (c) to the Second Proviso to Article 311(2), the Court would be bound by the orders so passed.
19. In Union of India and Ors. v. Balbir Singh , after considering various judgments, the Hon'ble Supreme Court laid down the following grounds, on which judicial review is permissible--
(i) that the order is open to be challenged on the ground of mala fide or being passed on wholly extraneous and/or irrelevant grounds;
(ii) even if some of the material, on which the action is taken, is found to be irrelevant, the Court still will not interfere so long as there is some relevant material sustaining the action;
(iii) the truth or correctness of the record cannot be questioned by the Court nor would it go into the adequacy of the material and it will also not substitute its own opinion for that of the authority;
(iv) the ground of malafide taken in, inter-alia, situations where the proclamation is found to be a clear case of abuse of power of what is sometimes called fraud on power, and @BT-IN = (v) the Court will not lightly presume abuse or misuse of power and will make allowances for the fact that the Authority is the best judge of the situation and is in possession of information and material and the statute has trusted its judgment in the matter.
20. Thus, it is abundant clear that the Court has a power of judicial review within the prescribed limitation as explained above. In the instant case, the subjective satisfaction of the authority is based on no material, relevant for the purpose and no reasonable person could' have taken a decision on the facts available on record of the instant case that it was no "reasonably practicable" to hold inquiry against the delinquent.
SCOPE OF INTERFERENCE IN APPEAL:
21. The provision of Clause (3) of Article 311 put an embargo on the employee to contend in appeal that the enquiry had wrongly been dispensed with and if such a contention is raised the Appellate Authority is not permitted to probe into the issue. But this embargo is limited only to the decision of dispensation with the inquiry and leaves it open to the Appellate Authority to examine whether the power to punish has been exercised bonafide and having regard to the relevant consideration; whether the facts and circumstances of the gravity of the charges against the delinquent require the punishment of dismissal, removal or reduction in rank? If the statutory provisions provide for an appeal and the delinquent files the appeal against the order of punishment, the Appellate Authority is expected to make a sincere and honest attempt to hold enquiry itself as it is too presumptous on the part of the Appellate Authority to hold that nobody would dare depose against the delinquent without summoning anybody or to pass an order like the instant that it had no competence at all to go into the question or consider the order of punishment on any count whatsoever.
22. In Satyauir Singh (supra), the Hon'ble Supreme Court considered this aspect and held that the order passed by the President or the Governor cannot be challenged in a departmental appeal or revision but where an employee, who has been awarded the punishment by applying one of the clauses of second proviso of Article 311(2) or or an analogous Service Rule, has, therefore, a right of departmental, appeal or revision to file and a complete enquiry into the allegations made against him" subject to a situation envisaged in Second Proviso to Article 311(2), not existing at the time of hearing of the appeal or the revision application. Even in a case where such a situation exists, he has the right to have the hearing of the appeal or the revision application postponed for a reasonable length of time for the situation to become normal. The Appellate Authority has full competence to assess the issue of quantum of punishment as the punishment imposed cannot be disproportionate to the gravity of the charges leveled against the delinquent employee.
23. Thus, in view of the above, the Appellate Authority has erred in holding that the provisions of Clause (3) to Article 311 of the Constitution completely bars the entertainment of appeal on any ground whatsoever as it is limited only to the issue of subjective satisfaction of the Competent Authority of dispensation with the departmental enquiry.
CONCLUSION:
24. In sum and substance, after considering the case in totality of facts and circumstances and the material produced by the learned Counsel appearing for the respondents, I am of the considered opinion that dispensation with inquiry has been a colourable exercise of power and the features of the instant case did not warrant the application of the provisions of Article 311(2)(b) of the Constitution. The Appellate Authority miserably failed to exercise its power to consider the appeal on merit and has been misled by the scope of the provisions of Clause (3) to Article 311. In the fitness of the circumstances, the case ought to have been remanded to the Appellate Authority, but as the Court has reached the inescapable conclusion that decision of dispensing with the inquiry has been based on irrelevant material, remanding the case to the Appellate Authority would not serve any purpose.
RELIEF :
25. Thus, in view of the above, the impugned orders dated 20.12.1997 (Annexure.3) and dated 30.3.1998 (Annexure.5) passed by the Disciplinary Authority and the Appellate Authority respectively, are hereby quashed. The respondents are at liberty to hold an enquiry on the charges of misconduct against the petitioner and pass a necessary consequential order. Petitioner shall be deemed to be in continuous service and entitled for all consequential reliefs including the arrears etc. which the respondents are directed to pay within a period of four months from the date of production of a certified copy of this order before the Competent Authority. There shall be no order as to cost.