Punjab-Haryana High Court
Chander Mohan vs The Central Administrative Tribunal on 29 January, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 29.01.2014
C.W.P.No.452 of 2008
Chander Mohan ...Petitioner
Versus
The Central Administrative Tribunal, Chandigarh & others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Vikas Malik, Advocate, for the petitioner.
Mr. Pankaj Gupta, Advocate, for respondent Nos.2 & 3.
HEMANT GUPTA, J.
Challenge in the present writ petition is to an order passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short 'the Tribunal') on 18.12.2007 (Annexure P-4), whereby an Original Application filed by the petitioner challenging his dismissal under the provisions of Article 311(2)(b) of the Constitution of India was dismissed.
The petitioner was appointed as Dispatch Rider in the Chandigarh Home Guards on 05.11.1976. He was promoted as Hawldar Instructor and later as Platoon Commander on 26.10.2004. The petitioner was dismissed from service on 28.04.2006 by the Commandant General Home Guards, Chandigarh exercising the powers under Article 311(2)(b) of the Constitution. The appeal against such order was dismissed on 23.12.2006 by the Home Secretary. An Original Application filed by the petitioner was also dismissed by the Tribunal, Kumar Vimal inter alia, for the reason that the witnesses would not be in a position to muster 2014.02.04 13:35 I attest to the accuracy and integrity of this document Chandigarh CWP No.452 of 2008 2 enough courage to depose against the Petitioner due to fear of severe reprisal. It was also opined that when people are afraid to depose even against an ordinary criminal, the witnesses would be required to depose against a Home Guard Officer, who had shown desperate criminal tendency and will have a terrorizing effect of much greater magnitude.
A perusal of the order of dismissal passed by the Commandant General Home Guards shows that the petitioner is involved in preparation of fake identity cards of 7 private persons. It also records that during investigation of FIR No.88 dated 03.03.2006 registered under Section 467, 109, 465, 469, 471 & 120-B IPC, it was noticed that certain volunteers have paid money for getting them enrolled as Home Guard Volunteers. It was also noticed that the petitioner as a protector of law has turned into extortionist and also alleged to have abused the power with which he has been bestowed with and that the petitioner instead of performing his lawful duty is alleged to have extorted money through middleman, from the innocent persons with mala fide intention. The petitioner has damaged the faith of common man in the criminal justice system and tarnished the image of Home Guards Organization.
Learned counsel for the petitioner has vehemently argued that the criminal trial consequent to the FIR in respect of forgery of documents has resulted into acquittal of the petitioner vide judgment dated 01.09.2010 and that no further appeal has been preferred against the said judgment. It is argued that the reasons recorded that it is not practicable to hold inquiry are not available nor are justified in law. The allegations of misconduct could very well be made subject matter of departmental inquiry. The same was dispensed with in wholly arbitrary and illegal manner. Therefore, the dismissal from service without conducting a regular departmental enquiry is unfair and unreasonable. It is stated that the finding that it is not reasonably practicable to hold an enquiry is Kumar Vimal 2014.02.04 13:35 I attest to the accuracy and integrity of this document Chandigarh CWP No.452 of 2008 3 based upon ipsi dixit of the competent authority and is not sustainable on the basis of record produced. Reliance is placed upon State of Orissa & others Vs. Dinabandhu Beheta & others (1997) 10 SCC 383.
We have heard learned counsel for the parties and find that the order of dismissal passed by the Commandant General Home Guards on 28.04.2006; order in appeal dated 23.12.2006 and the order passed by the Tribunal dated 18.12.2007 are not sustainable in law. Article 311 (2) of the Constitution relevant for the purposes of this writ petition read as under:
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State - (1) * * * (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 State, it is not expedient to hold such inquiry."
In Union of India v. M.M. Sharma, (2011) 11 SCC 293, the Supreme Court considered the scope and procedure while invoking the jurisdiction under Article 311(2)(b) of the Constitution. It observed as under:
"18. It should also be pointed out at this stage that sub-clause (b) of the second proviso to Article 311(2) of the Constitution of India mandates that in case the disciplinary authority feels and decides that it is not reasonably practical to Kumar Vimal 2014.02.04 13:35 I attest to the accuracy and integrity of this document Chandigarh CWP No.452 of 2008 4 hold an inquiry against the delinquent officer the reasons for such satisfaction must be recorded in writing before an action is taken. Sub-clause (c) of the second proviso to Article 311(2) on the other hand does not specifically prescribe for recording of such reasons for the satisfaction but at the same time there must be records to indicate that there are sufficient and cogent reasons for dispensing with the enquiry in the interest of the security of the State. Unless and until such satisfaction, based on reasonable and cogent grounds is recorded it would not be possible for the court or the Tribunal, where such legality of an order is challenged, to ascertain as to whether such an order passed in the interest of the security of the State is based on reasons and is not arbitrary. If and when such an order is challenged in the court of law the competent authority would have to satisfy the court that the competent authority has sufficient materials on record to dispense with the enquiry in the interest of the security of the State."
In another judgment reported as Southern Railway Officers Assn. v. Union of India, (2009) 9 SCC 24, the Supreme Court held that Satisfaction to be arrived at by the disciplinary authority before an order of dismissal is passed cannot be arbitrary. It must be based on objectivity. The Court observed as under:
"19. The second proviso appended to Article 311, however, makes three exceptions in regard to constitutional requirement to hold an enquiry, clause
(b) whereof provides that in a case where the disciplinary authority is satisfied that it is not reasonably practicable to hold such enquiry, subject of course to the condition that reasons therefor are to be recorded in writing. Recording of reasons, thus, provides adequate protection and safeguard to the employee concerned. It is now well settled that reasons so recorded must be cogent and sufficient. Satisfaction to be arrived at by the disciplinary authority for the aforementioned purpose cannot be arbitrary. It must be based on objectivity.
20. The question came up for consideration before a Bench of this Court in Union of India v. Tulsiram Patel (1985) 3 SCC 398 wherein this Court opined that the reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. The authority concerned is generally on the spot and knows what has been happening. It was observed:
(SCC p. 504, para 130) "130. ... 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 Kumar Vimal 2014.02.04 13:35 I attest to the accuracy and integrity of this document Chandigarh CWP No.452 of 2008 5 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."
21. It was furthermore held: (Tulsiram case (supra), SCC pp.505-06 paras 133-34) "133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.
134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry 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 inquiry 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 inquiry." The reasons recorded are to be examined keeping in view the principles of law enunciated in these judgments. The holding of an inquiry is obligatory, if any misconduct is alleged on the part of the delinquent official, wherein the delinquent employee is to be informed of the charges against him and given a reasonable opportunity of being heard in respect thereof. The allegation against the petitioner is that of forgery of documents for consideration. The reasons recorded are not sufficient to return a finding that it Kumar Vimal 2014.02.04 13:35 I attest to the accuracy and integrity of this document Chandigarh CWP No.452 of 2008 6 is not reasonable to conclude that the Department will not be able hold inquiry in to the allegations against the petitioner. Therefore, the finding that it is not reasonably practicable to hold enquiry is not sustainable. It is based upon imaginary apprehensions.
Consequently, the orders dated 28.04.2006; 23.12.2006 and 18.12.2007 are set aside. As a consequence of setting aside of the dismissal order, we further order that the petitioner would be deemed to be under suspension for a period of three months from today during which period, the respondent shall take a decision as to conduct an enquiry into the alleged misconduct and also to consider whether the petitioner is liable to be reinstated. The question of payment of back-wages from the date of dismissal i.e. 28.04.2006 till today shall be dealt with by the competent authority at the time of conclusion of the enquiry proceedings, if any.
With the aforesaid directions, the instant writ petition stands disposed of.
(HEMANT GUPTA)
JUDGE
29.01.2014 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2014.02.04 13:35
I attest to the accuracy and
integrity of this document
Chandigarh