Patna High Court
Ashish Kumar vs The State Of Bihar & Ors on 13 November, 2017
Author: Rajeev Ranjan Prasad
Bench: Ajay Kumar Tripathi, Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.736 of 2014
Arising out of
Civil Writ Jurisdiction Case No. 20311 of 2011
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Ashish Kumar, son of Amar Nath Sahni, resident of village- Manjhaul, P.S.- Cheriya
Bariarpur, Distt- Begusarai
.... .... Petitioner - Appellant
Versus
1. The State of Bihar
2. The Deputy Inspector General, Magadh Range, Gaya
3. The Senior Superintendent of Police, Patna
.... .... Respondents - Respondents
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Appearance:
For the Appellant/s : Mr. Mahasweta Chatterjee and
Mr. Ram Nibash Prasad, Advocates.
For the Respondent/s :
Mr. Gyan Prkash Ojha, GA 7 and
Mr. Ajit Kumar, AC to GA 7.
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
and
HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date: 13-11-2017
Heard learned counsel for the parties.
2. This Letters Patent Appeal arises from the order dated
03.04.2014passed by a learned Single Judge of this Court in CWJC No. 20311/2011 dismissing the Writ Petition filed by the petitioner-appellant.
BRIEF FACTS
3. The petitioner-appellant was appointed as a Constable and joined on 07.06.2007 whereafter he was sent for training and, after Patna High Court LPA No.736 of 2014 dt.13-11-2017 2/33 completing the same, was posted initially at Pandarak Police Station from where he was transferred and was lastly posted on deputation with Quick Mobile in Patliputra Police Station. The Senior Superintendent of Police (Sr.S.P.), Patna firstly placed him under suspension vide Memo No. 12994 dated 02.10.2009, as contained in Annexure-1 to the Writ Application, because the petitioner-appellant was arrested on the said date in connection with Manjhaul P.S. Case No. 160/2009 under Sections 307/34 of the Indian Penal Code read with Section 27 of the Arms Act; later on, Section 302 IPC was added; vide Memo No. 13411 dated 10.10.2009 the petitioner-appellant was dismissed from service without holding an inquiry as contemplated by Clause (2) of Article 311 of the Constitution of India.
4. The Sr. S.P., Patna has invoked Clause (b) to the second proviso appended to Clause (2) of Article 311 of the Constitution of India, dispensed with the inquiry on the ground that it is not reasonably practicable to hold such an inquiry in the case of the petitioner-appellant. Appeal preferred by the petitioner-appellant was dismissed by the Deputy Inspector General of Police, Magadh Region, Gaya vide Memo No. 1897 dated 23.08.2011, as contained in Annexure-5 to the Writ Application. The order of dismissal and the appellate order were challenged by the petitioner-appellant by way of a Writ Petition in which the learned Single Judge of this Court did not Patna High Court LPA No.736 of 2014 dt.13-11-2017 3/33 find any merit and the same has also failed. In these backgrounds, the present Letters Patent Appeal.
5. The Sr.S.P., Patna, whose order as contained in Memo No. 13411 dated 10.10.2009 has been questioned by the petitioner-appellant, has given reasons holding that it is not reasonably practicable to hold an inquiry in the facts and circumstances of the case. The order passed by the Sr.S.P., Patna is quoted hereunder for a ready reference:-
"iVuk ftyk cy ds flikgh@4468 vk'kh"k dqekj ds fo:} psfj;k cfj;kjiqj ¼ea>kSy½ Fkkuk dkaM la[;k 160@09 fnukad& 30-09-09] /kkjk& 307@34 Hkk0n0fo0 ,oa 27 vkElZ ,DV esa uj gR;k tSlh vijkf/kd ?kVuk djus dh vekuoh; ,oa 'keZukd dkjokbZ djus ds vkjksi ds fy;s fouhr fouk;kd] Hkk0iq0ls0 ojh; iqfyl v/kh{kd] iVuk }kjk lafo/kku dh /kkjk 311 ¼2½ oh0 ds rgr~ ikfjr c[kkZLrxh vkns'kA
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - vkjksfir flikgh@4468 vk'kh"k dqekj }kjk ,d O;fDr dh gR;k dh ?kVuk dkfjr djus dh lwpuk iqfyl v/kh{kd csxwljk; ds Kkikad& 6170@lh0vkj0 fnukad & 02-10-09 }kjk bl dk;kZy; dks nh x;h gS tks fuEu izdkj gS %& ;g fd psfj;k cfj;kjiqj ¼ea>kSy½ Fkkuk dkaM la[;k & 160@09 fnukad 30-09-09] /kkjk& 307@34 Hkk0n0fo0 ,oa 27 vkElZ ,DV oknh ftrsUnz ikloku firk& txnh'k ikloku lk0& ea>kSy] lR;jkt pkSd] Fkkuk psfj;k cfj;kjiqj ¼ea>kSy½ftyk & csxl w jk; ds QnZo;ku ds vk/kkj ij vafdr fd;k gS fd oknh us izkFkfedh esa uketn vfHk;qDr 01- vk'kh"k dqekj is0& vejukFk lguh 02- veu dqekj is0& vjfcUn lguh 03- vejukFk lguh is0 Lo0 uUnu lguh rhuksa lk0 lR;kjkt e>kSy pkSd] Fkkuk& psfj;k cfj;kjiqj ¼ea>kSy½ ftyk & csxl w jk; 04 fot; dqekj is0 Lo0 czãenso lguh lk0&dY;k.kiqj iks0 & fcUnk fn;kjk] xzke&cfj;kjiqj ftyk & eqaxsj ds fo:} oknh ds ppsjs HkkbZ lksuw dqekj 19 o"kZ tku ekjus dh fu;r ls xksyh ekjdj t[eh djus dk vkjksi gSA ;g Hkh fd bZykt gsrq ys tkus ds i'pkr~ lksuw dqekj dh e`R;q lnj vLirky csxl w jk; esa gks x;hA Patna High Court LPA No.736 of 2014 dt.13-11-2017 4/33 dkM ds vuqla/kku rFkk iqfyl v/kh{kd }kjk fd;s x;s i;Zo{s k.k esa dkaM ds izR;{knf'kZ;ksa ds C;ku vafdr fd;s x;s gSA lkfFk;ksa ds C;ku fuEukafdr izdkj gSA lk{; %& bl dkaM ds oknh ftrsUnz ikloku is0 & txnh'k ikloku lk0 & ea>kSy] lR;kjkt pkSd Fkkuk & psfj;k cfj;kjiqj ¼ea>kSy½ ftyk csxwljk; us vius c;ku esa crk;k gS fd fnukad 30-09-09 dks djhc 10-15 cts jkf= vius ppsjs HkkbZ lksuw dqekj mez 19 o"kZ is0& czãenso ikloku ds lkFk cktkj ls dNqvk Nki vxjcrh ysdj ?kj tk jgs FksA T;ksfa g c[kjh jksM esa vejukFk lguh is0 Lo0 uanu lguh ds ?kj ds ikl igqaps fd ogka 01- vk'kh"k dqekj mez& 25 o"kZ is0& vejukFk lguh 02- veu dqekj mez& 21 o"kZ is0 vjfcan lguh 03- vejukFk lguh is0&Lo0 uanu lguh rhuksa lk0&lR;kjkt pkSd ea>kSy] Fkkuk psfj;k cfj;kjiqj ¼ea>kSy½ ftyk& csxl w jk; 04- fot; dqekj is0 & Lo0 czãenso lguh lk0& dY;k.kiqj] iks0& fcUnk fn;kjk xzke&cfj;kjiqj] ftyk eqaxsj vHk; lguh lk0&ea>kSy dk lkyk iwoZ ls [kMs+ FksA vk'kh"k dqekj vius gkFk esa ljdkjh fiLVy dks ysdj upk jgk FkkA lksuw dqekj dks ns[krs gh og mls cqyk;kA lksuw dqekj us ikl tkdj cksyk fd eq>s D;ksa cqyk;k gSA vkf'k"k dqekj viuk ljdkjh lfoZl fiLVy dks dkWd dj veu dqekj lguh ls cksyk rqe lksuw dks xksyh ekj nksA og fiLVy ysdj gkFk esa ?kqek;k vkSj vkf'k"k dqekj ls cksyk fd bls ge xksyh ugh ekjsx a aAs rc fct;
dqekj lguh vk'kh"k dqekj dks mdlkus yxk rqEgh bls xksyh ekj nksA rc vk'kh"k dqekj viuk lfoZl fiLVy veu dqekj ls ysdj lksuw dqekj ds lj esa lVk dj cksyk fd rqEgsa vkt xksyh ekj nsras gSaA bl ij lksuw dqekj cksyus yxk fd ge D;k fcxkM+s gS tks xksyh ekj nksxAs bruk dgrs gh vk'kh"k dqekj xksyh mlds lj esa ekj fn;kA lksuw [kwu ls yFkiFk gksdj tehu ij fxj x;kA fQj lksuw dks pkjksa feydj Vkax dj ys tkus yxsA tc xksyh dh vkokt ,oa gYyk ij eqgYys ls lksuw dh eka nzkis nh nsoh] jatw nsoh ifr & fnus'k ikloku] fodkl dqekj is0 jkelqjr ikloku] foDdw dqekj is0& lkxj ikloku ,oa lSdM+ksa vkSjr ,oa enZ vk,A rc lksuw dks pkjks O;fDr pfyrj lkg is0 vfuy yky lko ds edku ds jksM ds nf{k.k iVddj Hkkx x;sA ;s vkxs crk;s fd foDdw vkSj fodkl dks Hkh vk'kh"k ?kVuk ds dqN nsj igys lj esa xksyh ekjus dh ckr cksyk Fkk ,oa cqyk;k Fkk] ijarq mDr nksuks yM+dk ugh vk;s FksA t[eh lksuw dqekj dks bZykt ds fy, lnj vLirky csxwljk; Hkstk x;kA ;s vkxs crk;s fd vfHk;qDr vk'kh"k dqekj bl ?kVuk ds igys fiNys yxu ds le; viuh cgu dh 'kknh esa vk;k Fkk rks ljdkjh fiLVy pedkrk FkkA Patna High Court LPA No.736 of 2014 dt.13-11-2017 5/33 ?kVuk ds ikap&N% fnu igys n'kgjk ds le; ls gh vfHk;qDr vius ?kj vk;k gqvk Fkk vkSj n'kgjk ds fnu Hkh esyk esa fiLVy ysdj ?kwe jgk Fkk vkSj pedk jgk FkkA nzkinh nsoh ifr &czgenso ikloku lk0 & ea>kSy] lR;jkt pkSd Fkkuk psfj;k cfj;kjiqj ¼ea>kSy½] ftyk & csxl w jk; us vius c;ku esa crkbZ gS fd budk yM+dk lksuw dqekj dkQh lh/kk&lk/kk FkkA ?kVuk ds le; xksyh pyus ds vkokt ij nkSM+dj lM+d ij vk;s rks 01- vk'kh"k dqekj mez 25 o"kZ 02- veu dqekj mez & 21 o"kZ 03- vejukFk lguh] 04- fot; dqekj dks Hkkxrs gq, ns[ksA vk'kh"k dqekj ds ikl fiLVy FkkA ns[ks fd budk yM+dk lksuw dqekj dks xksyh yxh gqbZ gS vkSj [kwu ls yFkiFk gSA bZykt gsrq mls t[eh gkyr esa lnj vLirky] csxl w jk; ys x;s tgka mldh e`R;q gks x;hA jatw nsoh ifr & fnus'k ikloku] lk0 & ea>kSy lR;jkt pkSd Fkkuk psfj;k cfj;kjiqj ea>kSy ftyk & csxl w jk; us vius c;ku esa crk;k gS fd ?kVuk ds le;
xksyh pyus ds vkokt ij nkSM+dj lM+d ij vk;s rks 01- vkf'k"k dqekj mez 25 o"kZ 02- veu dqekj mez& 21 o"kZ] 03 vejukFk lguh 04-fot; dqekj dks Hkkxrs gq, ns[ksA vkf'k"k dqekj ds ikl fiLVy FkkA ns[ks fd lksuw dqekj dks xksyh yxh gqbZ gS vkSj [kwu ls yFkiFk gS A irk pyk fd vk'kh"k dqekj us vius ljdkjh fiLVy ls mls xksyh ekj fn;kA lksuw bykt gsrq t[eh gkyr esa vLirky ys tk;kA tgkW mldh ekSr gks x;hA fodkl ikloku is0 & jkelqjr ikloku] lk0 lR;jkt pkSd] Fkkuk psfj;k cfj;kjiqj ¼ea>kSy½] ftyk csxwljk; us vius c;ku esa crk;k gS fd ?kVuk ds dqN feuV igys gh ;s ogka ls xqtj jgs FksA ;s ns[ks fd izkFkfedh vfHk;qDr 01-vkk'kh"k dqekj ¼fcgkj iqfyl½ mez -25 o"kZ 02- veu dqekj mez 21 o"kZ] 03 vejukFk lguh] 04- fot; dqekj lM+d ds fdukjs [kM+s FksA vk'kh"k ds gkFk esa fiLVy FkkA budks cqyk;k rks ;s ugh x;sA mlh le; foDdw dqekj ogka ls xqtj jgk Fkk rks mls Hkh cqyk;k rks og Hkh ugh vk;kA ;s FkksM+k vkxs c<s+ rks dqN gh feuV ds ckn xksyh pyus dh vkokt lqukbZ iM+hA xksyh dh vkokt dh rjQ x;s rks ns[ks fd lksuw dqekj t[eh gksdj fxjk gqvk gS rFkk pkjksa vkneh Hkkx jgsa gSA irk pyk fd lHkh vfHk;qDr ,d jk; gksdj vk'kh"k dqekj vius gkFk esa fy;s gq, fiLVy ls lksuw dqekj dks xksyh ekj fn;k gSA foDdw dqekj is0& 'kadj ikloku] lk0& lR;jkt pkSd] Fkkuk pfj;k cfj;kjiqj ¼ea>kSy½] ftyk & csxl w jk; us vius c;ku esa crk;k gS fd ?kVuk ds dqN gh feuV igys ;s ogka ls xqtj jgs FksA ;s ns[ks fd izkFkfedh vfHk;qDr 01- Patna High Court LPA No.736 of 2014 dt.13-11-2017 6/33 vk'kh"k dqekj ¼fcgkj iqfyl½ mez& 25 o"kZ 02- veu dqekj mez& 21 o"kZ] 03- vejukFk lguh] 04- fot; dqekj lM+d ds fdukjs [kM+k FkkA vk'kh"k ds gkFk esa fiLVy FkkA budks cqyk;k rks ;s ugh x;sA ;s FkksM+k vkxs c<s+ rks dqN gh feuV ckn xksyh pyus dh vkokt lqukbZ iM+haA xksyh dh vkokt dh rjQ x;s rks ns[ks fd lksuw dqekj t[eh gksdj fxjk gqvk gS] rFkk pkjksa vkneh Hkkx jgk gSA irk pyk fd lHkh vfHk;qDr ,d jk; gksdj vk'kh"k dqekj vius gkFk esa fy;s gq, fiLVy ls lksuw dqekj dks xksyh ekj fn;kA fouhr ikloku] is0 & lq[knso ikloku] lk0 lR;jkt pkSd Fkkuk & psfj;k cfj;kjiqj ¼ea>kSy½] ftyk &csxl w jk; us vius c;ku esa crk;k gS fd ?kVuk ds le; xksyh pyus dh vkokt lqusA tc lM+d ij vk;s rks ns[ks fd lksuw dqekj ds flj esa xksyh yxh gqbZ gS vkSj [kwu ls yFkiFk gSA irk pyk fd izkFkfedh vfHk;qDr 01- vk'kh"k dqekj mez& 25 o"kZ 02- veu dqekj mez & 21 o"kZ] 03- vejukFk lguh] 04- fot; dqekj lMd ds fdukjs [kM+k FkkA lqus fd vk'kh"k dqekj us vius ljdkjh fiLrkSy ls lksuw dqekj dks xksyh ekj fn;k vkSj xksyh ekjus ds ckn pkjksa vfHk;qDr feydj lksuw dks Vkax dj ys tk jgk Fkk] ijarq yksxksa ds tqV tkus ds dkj.k FkksM+h gh nwj ij mls j[kdj Hkkx x;sA ;s vkxs crk;s fd vkf'k"k dqekj euc<w yM+dk gSA fiNys yxu esa vius cgu dh 'kknh esa vk;k Fkk rks vuko';d :Ik ls fiLVy pedkrk Fkk n'kgjk ds fnu Hkh fiLVy ysdj ?kwe jgk Fkk vkSj fiLrkSy pedkrk FkkA og iqfyl dh ukSdjh Tokbu djus ds igys oQZ okyk xaxk lguh ls >xM+k fd;k FkkA ;ksxsUnz ikloku is0 Lo0 yM~Mw yky ikloku] lk0 lR;kjkt pkSd] Fkkuk & psfj;k cfj;kjiqj ¼ea>kSy½] ftyk csxl w jk; us vius c;ku esa crk;k gS fd ?kVuk ds le; xksyh pykus dh vkokt lqusA tc lM+d ij vk;s rks ns[ks fd lksuw dqekj dks flj esa xksyh yxh gS vkSj [kwu ls yFkiFk gSA vkSj irk pyk fd izkFkfedh vfHk;qDr 01- vk'kh"k dqekj mez 25 o"kZ 02- veu dqekj mez& 21 o"kZ] 03- vejukFk lguh] 04- fot; dqekj lM+d ds fdukjs [kM+k FkkA lqus fd vkf'k"k dqekj us vius ljdkjh fiLrkSy ls lksuw dqekj dks xksyh ekj fn;k vkSj xksyh ekjus ds ckn pkjksa vfHk;qDr feydj lksuw dks Vkax dj ys tk jgs Fks] ijarq yksxksa ds tqV tkus ds dkj.k FkksM+h gh nwj ij mls j[kdj Hkkx x;sA ;s vkxs crk;s fd vk'kh"k dqekj euc<w yM+dk gSA fiNys yxu esa vius cgu dh 'kknh esa vk;k Fkk rks vuko';d :Ik ls fiLVy pedkrk FkkA n'kgjk ds fnu Hkh fiLVy ysdj ?kwe jgk Fkk vkSj fiLrkSy pedkrk FkkA og iqfyl dh ukSdjh Tokbu djus ds igys oQZ okyk xaxk lguh Patna High Court LPA No.736 of 2014 dt.13-11-2017 7/33 ls >xM+k fd;k FkkA mes'k Hkxr is0 Lo& yM~Mwyky Hkxr] lk0 lk0&lR;kjkt pkSd] Fkkuk & psfj;k cfj;kjiqj ¼ea>kSy½] ftyk csxl w jk; us vius c;ku esa crk;k gS fd ?kVuk ds le; xksyh pykus dh vkokt lqusA tc lM+d ij vk;s rks ns[ks fd lksuw dqekj dks flj esa xksyh yxh gS vkSj [kwu ls yFkiFk gSA vkSj irk pyk fd izkFkfedh vfHk;qDr 01- vk'kh"k dqekj ¼fcgkj iqfyl½ mez& 25 o"kZ 02- veu dqekj mez& 21 o"kZ] 03- vejukFk lguh] 04- fot; dqekj lM+d ds fdukjs [kM+s FksA lqus fd vk'kh"k dqekj us vius ljdkjh fiLrkSy ls lksuw dqekj dks xksyh ekj fn;k vkSj xksyh ekjus ds ckn pkjksa vfHk;qDr feydj lksuw dks Vkax dj ys tk jgs Fks] ijarq yksxksa ds tqV tkus ds dkj.k FkksM+h gh nwj Ikj mls j[kdj Hkkx x;sA ;s vkxs crk;s fd vk'kh"k dqekj euc<w yM+dk gSA fiNys yxu esa vius cgu dh 'kknh esa vk;k Fkk rks vuko';d :Ik ls fiLVy pedkrk FkkA n'kgjk ds fnu Hkh fiLVy ysdj ?kwe jgk Fkk vkSj fiLrkSy pedkrk FkkA og iqfyl dh ukSdjh Tokbu djus ds igys oQZ okyk xaxk lguh ls >xM+k fd;k FkkA vkjksfir vfHk;qDr flikgh dk izfrj{kk lk{; dh Ik;Zos{k.k ds Øe esa vafdr fd;k x;k gSA budk c;ku fuEu izdkj gS %& izfrj{kk lk{; %& vk'kh"k dqekj is0 vejukFk lguh] lk0 lR;kjkt pkSd] Fkkuk psfj;k cfj;kjiqj ¼ea>kSy½] ftyk& csxl w jk; dk c;ku fy;k x;kA muds }kjk crk;k x;k fd ;s iVuk ftyk cy ds flikgh@4468 ds in ij dk;Zjr gSA iVuk cksMZ esa o"kZ 2007 esa budh cgkyh gqbZ Fkh orZeku esa ;s ikVfyiq=k Fkkuk esa Lis'ky eksckbZy esa dk;Zjr gSaA fnukad 23-09-09 dks bUgksusa vius nknk dk nsgkar gksus dk vkosnu fn;k FkkA ftlds vk/kkj ij ikap fnuksa ds vodk'k esa ;s fnukad 23-09-09 vodk'k esa vk;s FksA bUgksusa viuk ljdkjh fiLVy tek ugh fd;k FkkA blds ikl ljdkjh fiLVy rFkk dqy& 35 jkmaM 9,e0,e0 dh xksyh Fkh] ftlesa ls 01 jkmaM xksyh buds }kjk ?kVuk esa lksuw dqekj ds mij Qk;j fd;k Fkk 'ks"k ikap xksyh eSaxthu esa ,oa 'kas"k 29 xksyh buds ikWdsV esa Fkk] ftls ea>kSy Fkkuk ds iqfyl }kjk tIr fd;k x;k gSA vfHk;qDr veu dqekj is0 vjfcUn lguh lk0 lR;kjkt pkSd] ea>kSy] Fkkuk& psfj;k cfj;kjiqj ftyk& csxwljk; esa vius c;ku eas crk;k gS fd vk'kh"k dqekj budk nksLr gS ] ?kVuk ds le; vU; vfHk;qDrksa ds lkFk lR;kjkt pkSd ls iwjc lM+d fdukjs [kM+s FksA vk'kh"k dqekj viuk ljdkjh fiLVy yksMsM gkyr esa fy, gq, Fkk lksuw dqekj lM+d ls gksdj tk jgk Fkk rks vkf'k"k dqekj us mls cqyk;kA Patna High Court LPA No.736 of 2014 dt.13-11-2017 8/33 tc lksuw dqekj utnhd vk;k rks vk'kh"k dqekj us bls gkFk easa yksMsM fiLVy dkWd djds fn;k vkSj cksyk fd lksuw dks xksyh ekj nksA ;s fiLVy fy;s iajrq Qk;j djus esa nsj fd;s rks bl chp fot; dqekj us vk'kh"k dqekj dks mdlk;k fd rqEgh xksyh ekj nks rc vk'kh"k dqekj iqu% blds gkFk ls fiLVy ysdj lksuw dqekj ds flj esa xksyh ekj fn;kA vkjksfir flikgh dks vU; vfHk;qDrksa ds lkFk fxjQrkj dj tsy Hkstk x;k gSA buds ikl ls fuEufyf[kr 'kL= ,oa xksfy;ka cjken gqbZ gSaA tIrh ,oa rkyk'kh lwph %& ?kVuk LFky ij ls 9 ,e0,e0 dk [kks[kk ftldh isanh esa ds0,Q0&85&9,e0,e0&22 fy[kk gqvk Ikk;k x;k] ftls tIr fd;k x;k gSA vfHk;qDr vk'kh"k dqekj ds ikl ls fuEu lkeku tIr fd;k x;k gS %& 01- ljdkjh fiLVy ftlij 669 iVuk] ckWMh ua0& 16340383 fy[kk gqvk gSA 02- 9 ,e0,e0 dh 34 jkmaM xksyh cjken gqvkA ftlesa 5 eSaxthu esa ,oa 29 xksyh ikWdsV ls cjken gqvkA 03- nks ¼2½ eksckbZy lsV Hkh cjken fd;k x;k gSA iqfyl v/kh{kd csxl w jk; us /kVuk LFky dk fujh{k.k ] i;Zo{s k.k lkf{k;ksa ds c;ku rFkk vuqla/kku ds Øe esa vk;s lk{; ls ;g dkaM /kkjk 302@34 Hkk0n0oh0 27 vkElZ ,DV ds varxZr izkFkfedh ds uketn vfHk;qDr vkjksfir vfHk;qDr flikgh@ 4468 vk'kh"k dqekj ,oa vU; rhuksa vfHk;qDrksa ds fo:} lR; izfrr gqvk ik;k gSA mDr dkaM ds izkFkfedh rFkk iqfyl v/kh{kd ] csxwljk; }kjk fuxZr i;Zo{s k.k fVIi.kh&lg izfrosnu&2 ds voyksdu ls fuEufyf[kr rF; izdk'k esa vk;s gSa %& 01- bl dkaM ds uketn vfHk;qDr vk'kh"k dqekj ¼vkjksfir flikgh@4468 iVuk ftyk½ firk & vejukFk lguh] veu dqekj firk& vjfcUn lguh] vejukFk lguh] firk& Lo0 uanth lguh rFkk fot; dqekj firk&Lo0 czgenso lguh dh bl ?kVuk dks dkfjr djus esa lgHkkfxrk gS ysfdu vkjksfir flikgh vk'kh"k dqekj gh bl ?kVuk dks vatke nsus okys izeq[k vfHk;qDr gSA ,slk blfy, fd vkjksfir flikgh vk'kh"k dqekj us e`rd lksuw dqekj dks vius ikl cqyk;k Fkk rFkk viuk yksMsM fiLVy veu dqekj dks fn;k vkSj lksuw dks xksyh ekj nsus dks dgk FkkA tc mlus ,slk ugh fd;k rc mlls yksMsM fiLVy vius gkFk esa ysdj lksuw ds lj esa lVkdj vkjksfir us mls tkus ls ekj nsus dh fu;r ls xksyh ekj nhA 02 vkjksfir 'kkfrj vijkf/kd izo`fr ds O;fDr izfrr gksrsa gS D;ksafd lksuw dks tku ekj nsus ds ckn yk'k dks fBdkus yxkus dk Hkh ;s ;Ru djrs ik;s x;s gSaA ysfdu Patna High Court LPA No.736 of 2014 dt.13-11-2017 9/33 eqgYys ds yksxksa ds gLr{ksi ds dkj.k mUgsa bl dke esa lQyrk ugh feyhA 03- vkjksfir vius 'kkfrj vijkf/kd fnekx dk bLrseky djrs Ikk;s x;s D;ksafd bUgksusa yksMsM fiLVy igys veu dks fn;k vkSj dgk fd og lksuw dks xksyh ekj nsA veu }kjk ,slk ugh djus ij gh bUgksusa Lo;a mls xksyh ekjhA 04- ftl funZ;rk rFkk Øqjrkiwod Z lksuw dks bUgksus vius fiLVy ls xksyh ekjh gS blls ;s is'ksoj vijk/kh yxrs gSa A buds fy, uj gR;k vke ckr yxrh gSA 05- lksuw ds xksyh ekjus ls dqN nsj igys vkjksfir us foDdw vkSj fodkl dks Hkh cqyk;k Fkk ,oa lj esa xksyh ekj nsus dh ckr cksyk Fkk] ysfdu os ugh vk;s FksA yxrk gS fd fdlh dh Hkh gR;k dj nsus dk os eu cuk pqds FksA 06- vkjksfir bl ?kVuk ds iwoZ Hkh tc xkao vkrk Fkk rks viuk fiLVy lkFk ykrk FkkA bls ljsvke ysdj ?kwerk Fkk] yksxksa dks fn[kykrk Fkk rFkk Hk; Hkh iSnk djrk FkkA 07- vkjksfir flikgh ikVfyiq=k Fkkuk esa Lis'ky eksckbZy ds :Ik esa ljdkjh fiLVy ds lkFk fM;wVh ds fy;s izfrfu;qDr fd;s x;s FksA os >wBk rF; j[kdj n'kgjk ds volj ij Hkh vodk'k Lohd`r djok;s vkSj fiLVy@xksyh ysdj ?kj pys x;s] tcfd ;s 'kL= xksyh bUgsa rks Fkkus esa ;k iqfyl dsUnz esa tek djk ds gh vodk'k ij izLFkku djuk pkfg, FkkA nknk dk nsgkar gks tkus ds >wBk rF; j[kdj vodk'k Lohd`r djkuk rFkk fiLVy@xksyh ysdj ?kj pyk tkuk vkjksfir }kjk ;g iwoZ fu;ksftr "kM~;= a ds rgr dh xbZ dkjZokbZ izrhr gksrh gSA 08- iwjs izdj.k ds lw{erk iwoZd voyksdu ls ;g Hkh izrhr gksrk gS fd vkjksfir flikgh ,sls is'ksoj vijk/kh gS tks dbZ ,slh ?kVukvksa dks vatke ns pqdsa gSa ] ftu ij ls ijns mBus vHkh ckdh gSA 09 vkjksfir }kjk iwjs gks'kks & gok'k ls ;g ?kVuk dkfjr dh x;h gSA ;g iqfyl foHkkx ds ,d iqfyl dehZ }kjk vekuoh;] 'keZukd ,oa tyhy gjDr gSA blls vuq'kkflr iqfyl foHkkx dh Nfo /kwfey gqbZ gSA mi;qZDr rF;ksa ds lw{erkiwoZd voyksdu ,oa xaHkhjrk iwoZd fopkj.k ls eSa bl fu"d"kZ ij igwWprk gwW fd ;fn buds fo:} foHkkxh; dk;Zokgh dh izfØ;k pykbZ tkrh gS rks mls ;s yEck f[kpusa dh Hkjld dksf'k'k djsx a as rFkk ;wfuQkeZ dk uktk;t ykHk mBkdj dkaM ds vuqla/kku dsk vius cpko esa izHkkfor djrs jgsaxAsa foHkkxh; dk;Zokgh ds izfØ;kUrxZr jgus dh vof/k esa vkjksfir ,sls gh vkijkf/kd ?kVukvksa dks vatke Hkh nsrsa jgsaxsa vkSj foHkkx esa buds cus jgus ds pyrs vuq'kkflr Patna High Court LPA No.736 of 2014 dt.13-11-2017 10/33 iqfyl foHkkx dh Nfo nkxnkj gksrh jgsxhA buds iqfyl foHkkx dk lnL; gksus ds dkj.k vke turk esa bldk xyr lans'k tk;sxk vkSj iqfyl ds izfr fo'oklksUeq[k turk dk fo'okl VwVsxkA ,sls O;fDr ds foHkkx esa cus jgus ls vuq'kkflr iqfyl foHkkx ds vUnj Hkh ,slh izo`fr dks c<kok feysxkA blfy, ,sls iqfyl dehZ dks ;Fkk'kh?kz iqfyl foHkkx ls fudky nsuk lelkef;d ,oa vko';d gks x;k gSA bl fLFkfr esa fof/k oftZr ekxZ ij py jgs flikgh vk'kh"k dqekj ds fo:} Hkkjr ds lafo/kku dh ?kkjk & 311 ¼2 oh ½ ds rgr Rofjr dkjZokbZ ds vfrfjDr dksbZ fodYi 'ks"k ugha jg tkrk gSA vr,o eSa fouhr fouk;d Hkk0iq0ls0 ojh; iqfyl v/kh{kd ] iVuk Hkkjr ds lafo/kku dh /kkjk&311 ¼2½ ch esa iznr~ 'kfDr dk iz;ksx djrs gq, mDr vkjksi ds fy, iVuk ftyk ds flikgh@4468 vk'kh"k dqekj dks rkRdkyhd izHkko ls iqfyl lsok ls c[kkZLr djrk gWAwa ¼g0@& vLi"V½ ojh; iqfyl v/kh{kd iVuk Kkikad 13411@j0dk0 ojh; iqfyl v/kh{kd dk dk;kZy;] iVuk fnukad 10-10-09 Izkfrfyfi %&1- iqfyl v/kh{kd csxl w jk; dks muds Kkikad & 6170@lh0vkj0 fnukad 02-10-09 ds lanHkZ esa lwpukFkZ izsf"krA 2- ifjpkjh izoj "izFke" iVuk dks lwpukFkZ ,oa ftykns'k vafdr djus gsrq vko';d d`;kFkZ izsf"krA 3- ys[kkiky] ojh; iqfyl v/kh{kd dk dk;kZy; iVuk dks lwpukFkZ ,oa vko';d d`;kFkZA 4- vkjksfir flikgh@4468 vk'kh"k dqekj is0 vejukFk lguh lk0&lR;kjkt pkSd ea>kSy] Fkkuk& psfj;k cfj;kjiqj ¼ea>kSy½ ftyk & csxl w jk; dks lwpukFkZ izsf"krA ¼g0@& vLi"V½ ojh; iqfyl v/kh{kd iVukA""
6. The petitioner-appellant preferred a departmental appeal; a copy of the Memo of Appeal has been annexed as Annexure-4 to the Patna High Court LPA No.736 of 2014 dt.13-11-2017 11/33 Writ Application. In his Memo of Appeal he did not challenge the reasons assigned by the Sr.S.P., Patna saying that the holding of an inquiry was not reasonably practicable, rather the whole emphasis of the submission of the petitioner-appellant in his Memo of Appeal was that he had been acquitted by the trial court in Manjhaul (Cheriabariarpur) P.S. Case No. 160/2009 dated 30.09.2009 under Sections 302/34 IPC read with Section 27 of the Arms Act. The Appellate Authority considered the reasons assigned by the Sr.S.P., Patna for dispensing with the inquiry taking recourse to Clause (b) to the second proviso of Clause (2) of Article 311 of the Constitution of India, the grounds taken in the Memo of Appeal and then came to a conclusion that there is no merit in the appeal and the order passed by the Sr.S.P., Patna is in the public interest as also to keep intact the reputation of the police force which need not be interfered with.
7. In the Writ Application preferred before this Court also the reasons mentioned by the Sr.S.P., Patna saying that holding of an inquiry is not reasonably practicable was not assailed. The whole emphasis of the pleadings of the petitioner in the Writ Court remained centered around the proposition of law that if an employee is acquitted in a criminal case and if the termination order is passed prior to acquittal on the basis of same set of facts and documents, order of dismissal already passed is liable to be set aside. Contention of the Patna High Court LPA No.736 of 2014 dt.13-11-2017 12/33 petitioner was that for application of Clause (b) of the second proviso to Article 311(2) of the Constitution of India, the disciplinary authority should record in writing reasons for its satisfaction that it was not reasonably practicable to hold the inquiry as contemplated under Article 311(2) of the Constitution of India and, in absence of any reason in writing, the order dispensing with the inquiry and the order of penalty would be invalid and unconstitutional.
8. On the other hand, the impugned order passed by the Sr.S.P., Patna has been defended by filing a counter affidavit and it has been submitted that the petitioner-appellant has been acquitted in the criminal case only because the prosecution witnesses have turned hostile but it would not be a ground to interfere with the impugned order passed by the Sr.S.P., Patna as it has been based on relevance and reasons.
IMPUGNED ORDER
9. Learned Single Judge considered the submissions on behalf of the parties at length, went into the ratio of the judgments of the Hon‟ble Apex Court in the case of Union of India & Anr. Vs. Tulsi Ram Patel reported in AIR 1985 SC 1416 = (1985) 3 SCC 398, Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr. reported in AIR 1999 SC 1416 and Kuldip singh Vs. State of Punjab & Ors. reported in (1996) 10 SCC 659 as also the judgment of this Patna High Court LPA No.736 of 2014 dt.13-11-2017 13/33 Court in Shukdeo Ojha Vs. The State of Bihar & Ors. reported in 2010 (2) PLJR 96 and other judgments cited at the bar which are mentioned in the impugned order and finally came to a conclusion that where there is an admission by the petitioner of the entire incident the power of a disciplinary authority to dispense with an inquiry, flowing from the provision of Article 311(2) and, in particular, Clause (b) to the second proviso, is a matter of his subjective satisfaction on the basis of objective materials.
10. Learned Single Judge discussed all the judgments relied upon on behalf of the petitioner and the respondents. Having considered the entire facts and circumstances and following the ratio of the judgments rendered by the Hon‟ble Supreme Court the learned Single Judge upheld the view taken by the Sr.S.P., Patna in the matter of dispensing with the departmental inquiry. According to the learned Single judge, the Sr.S.P., Patna being the disciplinary authority was at liberty to dispense with the inquiry which may not be reasonably practicable and which may amount to empty formality. Within the parameters of the powers of judicial review, in such a case, the learned Single Judge found that the orders of the disciplinary authority will not call for any interference.
SUBMISSIONS OF THE APPELLANT
11. While advancing her argument on behalf of the Patna High Court LPA No.736 of 2014 dt.13-11-2017 14/33 petitioner-appellant before us, learned counsel Ms. Mahasweta Chatterjee submits that the order dispensing with the inquiry and thereby dismissing the petitioner-appellant within a period of 10 days while he was in jail is illegal and not sustainable in the eye of law. She has further submitted that the power in the garb of doctrine of pleasure has not been correctly exercised by the Sr.S.P., Patna in the present case. At this stage, realizing the relevance of the judgments from and amongst those placed before the learned Single Judge, she has relied upon the judgment of the Hon‟ble Apex Court in the case of Union of India Vs. Tulsiram Patel, reported in AIR 1985 SC 1416. Much emphasis has been given on Paragraph 130 of the said judgment which we quote hereunder for a ready reference:-
"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 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 Patna High Court LPA No.736 of 2014 dt.13-11-2017 15/33 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. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to given evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause(3) of Article 311 makes the decision of the disciplinary authority on this question final. 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 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 inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India and others, [1984] 3 S.C.R. 302, is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Patna High Court LPA No.736 of 2014 dt.13-11-2017 16/33 Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter."
12. Learned counsel for the petitioner-appellant further submits that also because the petitioner-appellant has been acquitted in the criminal case being Manjhaul P.S. Case No. 160/2009 U/S 302/34 IPC read with Section 27 of the Arms Act, the order passed by the Sr.S.P., Patna dismissing him from service without holding any enquiry is liable to the set aside.
SUBMISSIONS OF THE STATE
13. On the other hand, learned counsel representing the State has drawn our attention towards the discussions made by learned Patna High Court LPA No.736 of 2014 dt.13-11-2017 17/33 Single Judge with reference to the judgments of the Hon‟ble Supreme Court in the case of State of Kerala & Ors. Vs. A.K. Gopalkumar [(2013) 11 SCC 606], Southern Railway Officers Association & Anr. Vs. Union of India & Ors. [(2009) 9 SCC 24], Indian Railway Construction Company Ltd. Vs. Ajay Kumar [(2003) 4 SCC 479] and Kuldip Singh Vs. State of Punjab & ors. [(1996) 10 SCC 659] and Govt. of A.P. & Ors. Vs. Md. Nasrullah Khan [(2006) 2 SCC 373] and also on Union of India Vs. Tulsiram Patel reported in AIR 1985 SC 1416, however, in course of argument emphasis and reliance has mainly been placed on the judgments discussed here-in-after.
14. It is the submission of the learned counsel representing the State that in the matter of exercise of powers of judicial review the High Court is not supposed to act as an Appellate Authority and cannot weigh the materials relied upon by the Disciplinary Authority for passing the orders. It is further submitted that in almost similar facts in the case of Kuldip Singh (Supra), the Hon‟ble Apex Court upheld the decision of the Disciplinary Authority to dispense with the inquiry as envisaged under Article 311(2) of the Constitution of India. In the said case also, the police case registered against the appellant led to a trial but ended in acquittal. The argument before the Hon‟ble Apex Court was that the alleged admission / confession of the appellant made before the Police Officer during interrogation was inadmissible before Patna High Court LPA No.736 of 2014 dt.13-11-2017 18/33 the Disciplinary Authority. The contention of the appellant was rejected by the Hon‟ble Apex Court in Paragraph 10 of the said judgment.
CONSIDERATION
15. It appears from perusal of the records and the submissions made at the bar that so far as the allegations against the petitioner-appellant is concerned, it is stated that while the petitioner-appellant was serving in Quick Mobile Force of Patliputra Police Station at Patna on the relevant date, i.e., 30 th September, 2009, he went on leave to his village home on the pretext of illness of his grand-father. While going on leave he carried his service revolver with live cartridges which he was not authorized to carry and it had no sanction of law. On the same date, at about 10:15 P.M., when the informant and his cousin Sonu Kumar (deceased) were coming from market, as soon as they reached near the house of one Amarnath Sahni, they found the petitioner-appellant along with three other accused persons standing there. The petitioner-appellant was brandishing his service revolver and upon seeing the said Sonu Kumar he called him and loaded his service revolver and gave it to Amarnath Sahani, another co-accused, asking him to shoot the said Sonu Kumar. It is stated that the said Amarnath Sahni refused to do it; thereupon on the asking of another co-accused Vijay Kumar, the petitioner-appellant Patna High Court LPA No.736 of 2014 dt.13-11-2017 19/33 took the service revolver, put it at the temple of the deceased and fired in spite of his protest, the said Sonu Kumar fell down then and there, all the four accused tried to lift him from the spot but because people from around reached there on hearing the sound of firing, all the four accused dropped the said Sonu Kumar and fled away. This petitioner was thereafter arrested and a seizure list was prepared.
16. It further appears from the records that there is no dispute on facts that the petitioner-appellant was carrying his loaded service revolver and, on arrest, along with his service revolver one fired cartridge and five live cartridges in the magazine of the revolver and 29 live cartridges in his pocket were recovered. The Superintendent of Police, Begusarai personally supervised the case who had occasion to interact with the witnesses in course of supervision. It is also not in dispute that during the supervision the Supervising Authority took statement of the petitioner, who had been taken into custody immediately and from whose possession recovery had been made; the petitioner had admitted before the Sr.S.P., who was the Supervising Authority that he had come on leave carrying his service revolver and had fired upon the said Sonu Kumar.
17. The Sr. S.P., Patna being Disciplinary Authority thereafter came to a conclusion that his petitioner is a man of criminal bend of mind; hence, keeping him in police force would only damage Patna High Court LPA No.736 of 2014 dt.13-11-2017 20/33 the image of the police force. The Disciplinary Authority also took a view that in the seriousness of the nature of the incident, if a protracted inquiry is held the petitioner will take advantage of his position as a member of the force and derail the entire process. This being the situation, the Disciplinary Authority was of the opinion that a Police Constable, like the petitioner, if allowed to continue in the police force, would encourage indiscipline and his ouster from the police service as soon as possible was necessary. He, therefore, exercised his powers under Clause (b) of the second proviso to Article 311(2) of the Constitution of India, decided to dispense with the inquiry and passed the orders dismissing the petitioner from service.
18. As we proceed to test the contentions of learned counsel for the Appellant it would be just and proper to quote Article 310(1) and Article 311 of the Constitution of India:-
"310. Tenure of office of persons serving the Union or a State.- (1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all-India Patna High Court LPA No.736 of 2014 dt.13-11-2017 21/33 service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor, as the case may be, deems it necessary in order to secure the service of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post."
"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 inquiry 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 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 is 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 Patna High Court LPA No.736 of 2014 dt.13-11-2017 22/33 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 empowered to dismiss or remove such person or to reduce him in rank shall be final."
19. The contention of the learned counsel representing the appellant that the doctrine of pleasure has not been correctly applied in the facts and circumstances of the present case and it is not one of those cases which are envisaged in Clause (b) of the second proviso to Article 311(2) of the Constitution of India, and the rival contention placing reliance on this by learned counsel representing the State has to be considered in the facts and circumstances of the present case and in the light of the judicial pronouncements of the Hon‟ble Supreme Court of India on the subject. The Hon‟ble Supreme Court of India while dealing with the contentions in the case of Union of India Vs. Tulsiram Patel, reported in AIR 1985 SC 1416, in Paragraph 130 was considering a question as to what is the 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. The Hon‟ble Apex Court observed that it is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. Thereafter, the Hon‟ble Patna High Court LPA No.736 of 2014 dt.13-11-2017 23/33 Apex Court went on to say that it would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so. Further, it would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails.
20. In the case of Tulsiram Patel (Supra) while considering the challenge to the pleasure doctrine, the Hon‟ble Supreme Court took note of the fact that in India the pleasure doctrine has received constitutional sanction by being enacted in Article 310(1). Unlike in the United Kingdom in India, it is not subject to any law made by the Parliament but is subject only to what is expressly provided by the Constitution. In Paragraph 43A, the Hon‟ble Supreme Court held as under:-
"43A. The position that the pleasure doctrine is not based upon any special prerogative of the Crown but upon public policy has been accepted by this Court in State of Uttar Pradesh v. Babu Ram Upadhya (1961) 2 SCR 679, 696 : (AIR 1961 SC 751at P. 759) and Moti Ram Deka v. General Manager, N.E.F. Railways, Maligaon, Pandu, (1964) 5 SCR 683, 734-5 : (AIR 1964 SC 600 at Pp.
620-21). This Court has also accepted the principle that society has an interest in the due discharge of their duties by government servants. In Roshan Lal Tandon v. Union of India (1968) 1 SCR 185 : (AIR 1967 SC 1889) Ramaswami J., speaking for the Court, said (at page 195 of SCR) : (at P. 1894 of AIR):
Patna High Court LPA No.736 of 2014 dt.13-11-2017 24/33 "It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Art. 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Art. 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned." (Emphasis supplied).
21. In conclusion, the doctrine of pleasure embodied in Article 310(1) of the Constitution of India has been upheld on the ground of public policy and in the public interest for the public good. Paragraph 45 of the said judgment is quoted hereunder for a ready reference:
"45. It is thus clear that the pleasure doctrine embodied in Article 310(1), the protection afforded to civil servants Patna High Court LPA No.736 of 2014 dt.13-11-2017 25/33 by clauses (1) and (2) of Article 311 and the withdrawal of the protection under clause (2) of Article 311 by the second proviso thereto are all provided in the Constitution on the ground of public policy and in the public interest and are for public good."
22. Since the sheet-anchor of the challenge by the learned counsel for the appellant to the impugned order is the judgment of the Hon‟ble Supreme Court in the case of Tulsiram Patel (Supra) with special relevance upon Paragraphs 129, 130 and 133, the learned Single Judge has considered those paragraphs in detail and noticed from the judgment of the Hon‟ble Apex Court that after noticing different possible situations, the Hon‟ble Apex Court has made it categorically clear that the assessment of situations was a matter of satisfaction of the disciplinary authority. (Emphasis supplied) In Paragraph 130, the Hon‟ble Apex Court elaborated the expression „Not reasonably practicable‟ in reference to certain dictionaries and observed that "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." The Court observed that "The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision Patna High Court LPA No.736 of 2014 dt.13-11-2017 26/33 of the disciplinary authority on this question final."
23. There are some more judgments which were relied upon by the learned counsel for the petitioner before the Writ Court and those has been taken note of by the learned Single Judge as also duly discussed but before this Court in appeal, the learned counsel for the appellant has relied upon the judgment of the Hon‟ble Apex Court in the case of Tulsiram Patel (Supra) which is the sheet-anchor of her argument and so we are not referring the other judgments which have been discussed in the impugned order by the learned Single Judge.
24. On behalf of the State respondents, reliance has been placed upon the judgment of the Hon‟ble Apex Court in Govt. of A.P. & ors. Vs. Md. Nasrullah Khan (Supra) which is on the point of exercise of powers of judicial review by the High Court. In the said case, the Hon‟ble Apex Court held that the High Court is not supposed to act as an Appellate Authority and cannot weigh the materials relied upon by the Disciplinary Authority for passing the orders. Since it has been submitted on behalf of the State that the Disciplinary Authority is the best judge to appreciate the circumstances under which an inquiry may be dispensed with, this Court finds that the said satisfaction of the Disciplinary Authority is perverse, need not be interfered with in exercise of power done by the disciplinary authority. We do agree with the submissions on the proposition of law advanced on behalf of the Patna High Court LPA No.736 of 2014 dt.13-11-2017 27/33 State respondents and its‟ applicability in the facts of the present case.
25. The State respondents have heavily relied upon the judgment of the Hon‟ble Supreme Court in the case of Kuldip Singh (Supra) and, therefore, the learned Single Judge as well as we have gone into the same. In the case of Kuldip Singh (Supra), the appellant, who was a Head Constable, was dispensed from service by the Senior Superintendent of Police, Tarantaran without holding an inquiry by invoking the provisions of Clause (b) of the second proviso to Article 311(2) of the Constitution of India. The order of the Disciplinary Authority showed that the appellant, after his arrest, had confessed before the investigating authority that he had connections with terrorists and was also instrumental in the death of one Superintendent of Police earlier, he was also planning to commit another crime. In the High Court, a plea was taken by the appellant that the police case registered against him, which led to a trial, had ended in his acquittal but the Punjab and Haryana High Court dismissed the Writ Petition of the appellant. Before the Hon‟ble Apex Court, the appellant took a plea that the alleged admission / confession of the appellant, made before the police officer during interrogation was inadmissible before the disciplinary authority, therefore, the dismissal of the appellant by him on that basis was unwarranted, since admittedly there was no otherwise material available before him. The Hon‟ble Apex Court while Patna High Court LPA No.736 of 2014 dt.13-11-2017 28/33 answering the contention of the appellant in the said case observed in Paragraph 10 as under:-
"10. Now coming to the main contention of the learned counsel for the appellant, it is true that a confession or admission of guilt made by a person accused of an offence before, or while in the custody of, a police officer is not admissible in a court of law according to Sections 25 and 26 of the Evidence Act, 1872 but it is equally well settled that these rules of evidence do not apply to departmental enquiries - See State of Mysore v. Shivabasappa Shivappa Makapur [AIR 1963 SC 375 :
(1964) 1 LLJ 24] and State of Assam v. Mahendra Kumar Das [(1970) 1 SCC 709 : AIR 1970 SC 1255] - wherein the only test is compliance with the principles of natural justice - and, of course, compliance with the rules governing the enquiries, if any. In this context, it is well to remember that in India, evidence recovered or discovered as a result of an illegal search is held relevant departing from the law in the United States. We may refer to the following observations of the Judicial Committee of the Privy Council in Kurma v. R. [1955 AC 197 : (1955) 1 All ER 236 : (1955) 2 WLR 223], quoted approvingly by the Constitution Bench of this Court in Pooran Mal v. Director of Inspection (Investigation) [(1974) 1 SCC 345 : 1974 SCC (Tax) 114] : (SCC p. 365, para 24) "The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained."
26. In the case of Kuldip Singh (Supra), the Hon‟ble Supreme Court also held that if the disciplinary authority comes to a conclusion that the statement made by the appellant during the course of interrogation was indeed voluntary statement and true he may well be entitled to act upon the said statement. In the present case, the Patna High Court LPA No.736 of 2014 dt.13-11-2017 29/33 impugned order passed by the Sr.S.P., Patna categorically mentions the evidences which included the admission of the petitioner-appellant in course of supervision held by the Sr.S.P. himself. The impugned order also contained the description of the seized articles which were the service revolver of the petitioner, the used empty cartridge and huge number of live cartridges from his pocket when he was arrested and the seizure list was prepared. Despite this being the categorical facts recorded against the petitioner-appellant in the impugned order, the petitioner-appellant did not challenge the same by any means. The learned Single Judge rightly recorded in the impugned order that in fact there was no whisper either in the Memo of Appeal preferred before the Appellate Authority or before the learned Single Judge that what has been recorded by the Sr.S.P., Patna in the impugned order are incorrect. We, therefore, find the case of the present appellant akin to the case of Kuldip Singh (Supra). In the present case, there is an admission of the petitioner-appellant that he had fired at Sonu Kumar; in fact, the seizure list also finds the fired cartridge of .9 mm pistol from the spot, not only that 34 rounds of live cartridges, out of which 5 were loaded in the magazine and 29 cartridges were found in the pocket of the petitioner-appellant were recovered with the service revolver. The Sr.S.P., Patna, who happened to be the Disciplinary Authority, rightly took a view and, in the opinion of this Court, his satisfaction that the Patna High Court LPA No.736 of 2014 dt.13-11-2017 30/33 appellant has a criminal bend of mind and that he had gone to his village on a false plea of the death of his grand-father and unauthorizedly carrying the service revolver with huge number of cartridges were the circumstances which were enough to take a view that he was required to be thrown out from the police force as soon as possible. We also agree with the view that in the facts of the present case, continuance of the petitioner-appellant in the police force in the name of departmental enquiry would have only damaged the reputation and image of the police force and that would have given time to the appellant to influence the inquiry. If the Sr.S.P., Patna being the Disciplinary Authority has relied upon the statements made by the witnesses and this petitioner-appellant in course of supervision and the seizure list, no wrong has been committed by him by dispensing with the inquiry and in holding that it is not reasonably practicable to hold the inquiry.
27. We have perused the judgment of the trial court rendered by the learned Additional Sessions Judge F.T.C. V, Begusarai in Sessions Trial No. 286/2010 [State of Bihar through Jitendra Paswan (informant) Vs. Ashish Kumar]. A bare perusal of the judgment of the trial court would show that all the prosecution witnesses have been declared hostile. The informant also turned hostile by saying that while he was buying goods on the shop he heard the sound and saw that Sonu Patna High Court LPA No.736 of 2014 dt.13-11-2017 31/33 Kumar was in fallen position. He sustained bullet injuries. People told that Ashish Kumar (appellant), Aman Kumar and others shot fire upon Sonu Kumar. He admitted to have filed a petition in the Police Station and signed the same. He has proved his signature (Ext. 2 on the said petition) but, in his cross-examination, he turned hostile by saying that he did not see firing by anybody and he did not identify the accused. What is surprising to this Court is that there is not even a whisper of the seizure list and it appears that even the Investigating Officer, who prepared the seizure list, and the seizure list witnesses did not come forward to support the prosecution. Under what circumstances the prosecution witnesses became hostile, I.O. did not come to depose and seizure list was not proved may be a subject matter of examination by competent authority.
28. Apparently, the judgment of the trial court has gone in favour of this petitioner-appellant because of the intervening circumstances where the appellant might have influenced the witnesses and the victim‟s family, who are all co-villagers, as it normally happens with the efflux of time. The question is whether in these circumstances where the witnesses have turned hostile, the seizure list was not proved in course of trial and even the Investigating Officer did not participate to support the prosecution, the petitioner-appellant may be allowed to get out of the order of dismissal because he has been acquitted. It is to Patna High Court LPA No.736 of 2014 dt.13-11-2017 32/33 be remembered that dismissal of the appellant is not based on conviction rather it is based on doctrine of pleasure.
29. We have discussed the entire facts and circumstances under which the Sr.S.P., Patna exercised his power under Clause (b) of the second proviso to Article 311(2) of the Constitution of India. The decision of the Hon‟ble Apex Court on the subject is crystal clear. It is the subjective satisfaction of the disciplinary authority, who is on the spot, to take a decision with objectivity in mind which matters. We are of the considered opinion that in the facts and circumstances of the present case and the materials available on the records in form of the admission of the petitioner-appellant, seizure of his service revolver with the fired cartridge and the remaining 34 live cartridges, the fact that the deceased Sonu Kumar was killed by the bullet fired from the said service revolver of the appellant as found by the supervising authority in the rank of Sr.S.P. are the convincing factors on the basis of which the Sr.S.P., Patna has reached to a conclusion and dispensed with the departmental enquiry as it was not reasonably practicable to hold the same because any further delay in throwing out the appellant could have shaken the public confidence. We have seen the result of the ciriminal trial over the period. In our opinion, in a case of this nature where a police constable has been found acting in gross indiscipline with criminal intent carrying his service revolver with huge live Patna High Court LPA No.736 of 2014 dt.13-11-2017 33/33 cartridges to his village and then firing from the same killing a young boy of 22 years, the seizures from his possession and his own admission before the supervising authority, if the disciplinary authority decided to invoke the „doctrine of pleasure‟ no infirmity or illegality may be found in it.
30. We have taken note of the judgment of the Hon‟ble Apex Court in Tulsiram Patel (Supra) where it has been held that the doctrine of pleasure has been provided in the Constitution on the ground of public policy and in the public interest and for the public good. This is one of those cases which we find is covered under the exceptions carved out under Clause (b) of the second proviso to Article 311(2) of the Constitution of India. We do not find any infirmity with the orders passed by the Disciplinary Authority as well as the Appellate Authority; hence, no interference would be required with the order of the learned Single Judge.
31. Appeal has no merit. It is accordingly dismissed.
(Rajeev Ranjan Prasad, J) I Agree.
Ajay Kumar Tripathi, J.-
(Ajay Kumar Tripathi, J)
Dilip, AR
AFR/NAFR AFR
CAV DATE 02.11.2017
Uploading Date 13.11.2017
Transmission N/A
Date