Gujarat High Court
Govindbhai Mujljibhai Parmar And Ors. vs J. Mahapatra Dy. Police Commissioner ... on 31 October, 1985
Equivalent citations: (1986)1GLR277
JUDGMENT P.R. Gokulakrishnan, C.J.
1. This Special Civil Application is to quash and set aside the order of dismissal passed on 7-5-1985 against the petitioners herein and to give them all benefits of service and backwages as if no order of dismissal has ever been passed against them. The Special Civil Application also prays that the power contained in proviso (b) of Article 311(2) of the Constitution of India which is to the effect that where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry, be declared as invalid and unconstitutional. The petitioners were unarmed police constables in the Police Department of the State of Gujarat. In respect of an alleged common incident on 7-5-1985 wherein all these three petitioners are supposed to have taken part, they were ordered to be placed under suspension by respondent No. 1 by his order dated 7-5-1985. The said order was served upon the petitioners at 9.00 P.M. on 7th May, 1985. At 11-00 P.M. on 7-5-1985 another order passed by respondent No. 1 was served upon the petitioners herein and that order terminated the services of the petitioners. This order of termination is challenged by the petitioners in this Special Civil Application.
2. One Rajubhai Manilal gave a complaint stating that he was sleeping in his tea stall situated at Ajod Dairy road on the corner of Bhagyodaya Estate on the night of 6-5-1985. At about 5.30 A.M. on 7-5-1985 the petitioners came to his stall. At that time the complainant had gone out for washing his hands and legs. His father, his servant, his uncle and his son were sleeping in the tea stall. When the complainant was returning after washing he witnessed that these three petitioners were beating his father. When questioned, this complainant was also kicked by one of the policemen. Thereafter, the three petitioners, according to the complainant opened his galla and took Rs. 400/- to Rs. 500/- lying in the said galla and also broke a glass pane. Subsequently these three petitioners went towards the hut near Smashan Gruh which is at a distance of 50 to 60 ft. from the complainant's tea stall and there they began beating the people. Hearing the shouts the military people came and arrested all the three petitioners herein. It is further stated in the complaint that these three petitioners were in a drunken condition and the military van took these three petitioners leaving their cycles at the spot. The complainant Rajubhai Manilal Patel has also stated that the petitioners, apart from beating number of persons in that locality, have also beat one Tarachand and relieved from him a sum of Rs. 150/-.
3. It is the case of the first respondent that the petitioners leaving their respective places of duty unauthorisedly went to the pan and tea stall and started beating the complainant Rajubhai Manilal Patel and his father without any cause. They also robbed Rs. 500/- from their tea stall and pan gallas. Further, they also took away Rs. 150/- from one Tarachand and also beat him. It is further averred by the 1st respondent that the petitioners went to one Pratapaji Gamnaji's tea stall and robbed from him a sum of Rs. 740/- They also beat one Khemchand Bholarama and took away Rs. 35/- from him. There after these three petitioners went to Smashan Gruh area and beat the inmates of the huts situated therein without any reason causing various injuries to innocent people. It is further averred by the 1st respondent that Tarachand Jamnadas called the Military Officer, that Military Officer by name Ramakrishnan questioned the 1st petitioner Govindbhai Muljibhai Parmar as to why he has beaten and robbed Rs. 150/- from Tarachand, that on questioning, the 1st petitioner herein admitted his guilt and returned the sum of Rs. 150/- to Tarachand. Thereafter the three petitioners were taken by Ramakrishnan, the Military Officer and later handed over to the P.S.I. Patel of Gomtipur Police Station. The 1st respondent has further stated that on the complaint given by Rajubhai Manilal Patel, a case was registered under Section 394 and 114 of the Indian Penal Code and under Sections 66(1)(b) and 85(1), (2) and (3) of the Bombay Prohibition Act against these petitioners. Since serious allegations have been made against the petitioners, who are police constables, it is the case of the 1st respondent that these petitioners were suspended. After that on enquiry and strong evidence against them it was decided to remove them from service as the allegations were of very serious nature not be fitting a Police Officer. Since during preliminary enquiry in view of the nature of his duty. Hence the authorities thought that it petitioners have been substantiated, an order of termination of service was passed against the petitioners herein. The 1st respondent has further stated that Ramakrishnan, the Military Subedar, is one of the most important witnesses in the case and that he has caught the petitioners and handed them over to the Police Station. According to the 1st respondent, the evidence of the said witness, i.e. the Military Subedar, will not be easily available in case of regular departmental enquiry in view of the nature of his duty. Hence the authorities thought that it is necessary to take action against the petitioners under the existing law looking to the gravity of the misconduct committed by the petitioners. Hence the statement of the Military Subedar was recorded by the Police inspector, Gomtipur, who is a responsible gazetted officer and the Deputy Commissioner of Police has himself studied the enquiry papers thoroughly and after proper application of mind, he has passed the dismissal order against the petitioners herein. It is further averred by the 1st respondent that the orders of suspension were passed against the petitioners on 7-5-1985 in the evening at about 5.00 P.M. that those orders were served upon them at 21-00 P.M. that thereafter enquiry report was received in which strong evidence against them was found including of army personnel who are not likely to be easily available for departmental enquiry or for giving their statements in Court of law and that, therefore, the authorities decided that it was not reasonably practicable to hold a departmental enquiry against the said three constables and hence under the provisions of Article 311(2)(b) of the Constitution of India, the order of dismissal from service was issued and the same was served upon them at 23.00 P.M. Thus, according to the 1st respondent, the order of dismissal was passed after proper application of mind that after satisfying himself regarding the graveness of the offence as also the prima facie case against the petitioners as regards their serious and grave misconduct and that after taking into consideration the evidence led by P.I. Gomtipur Police Station during the preliminary enquiry.
4. The petitioners have also filed affidavit-in-rejoinder denying the allegations contained in the affidavit-in-reply filed by the Deputy Commissioner of Police, Ahmedabad City.
5. Mr. Shethna, the learned Counsel appearing for the petitioners, reiterating the submissions made by the petitioners in the petition and in the affidavit-in-rejoinder, submitted that the respondents have invoked the provisions of Article 311(2)(b) in order to dismiss the petitioners arbitrarily and the respondents have mechanically stated that it was not reasonably practicable to hold a departmental enquiry against the petitioners herein. According to the learned Counsel the evidence that was available at the time of suspension and dismissal would not have spelt out the robbery alleged to have been committed by the petitioners herein. It is an afterthought and evidence on record will amply bear out that the allegations of robbery of more than Rs. 1,000/- cannot at all be sustained Mr. Shethna further submitted both in the argument and also in the petition that the Military Subedar Ramkrishnan is still available at Ahmedabad and to state that it is not easily possible to procedure the evidence of this Military Subedar Ramakrishnan for regular departmental enquiry is patently a misstatement. Even apart from this fact Mr. Shethna submitted that the witnesses whose evidence is necessary to prove the riotous behaviour of the petitioners, their drunkenness and their act of robbery are all civilian witnesses who are easily available in the City of Ahmedabad.
6. Mr. Gandhi, the learned Counsel appearing for the respondents, after producing the necessary documents, submitted that the 1st respondent has correctly invoked Article 311(2)(b) of the Constitution to dismiss the petitioners herein since the evidence on record amply spells out that it is not reasonably practicable to hold an enquiry to the grave charges levelled against the petitioners herein.
7. We have carefully gone through the records in this case. We do not think it is necessary to elaborately deal with, the statements of various witnesses to find out as to whether the offence has been made out or not. We are mainly concerned with the reasoning of the 1st respondent in denying an opportunity to the petitioners to be heard. We have to find out as to whether the 1st respondent has mechanically stated that it is not reasonably practicable to hold inquiry without applying his mind to the facts and circumstances of the present case. If we come to the conclusion that the 1st respondent has arbitrarily and mechancally dispensed with the enquiry, the order of dismissal invoking the provisions of Article 311(2)(b) cannot be sustained.
8. One Rajubhai Manilal Patel has given the First Information Report in this case. He speaks about the petitioners beating him, his father and taking away Rs 400/- to Rs. 500/- lying in the galla. He also speaks about the petitioners breaking the glass pane of his tea shop. The FIR further states that these three petitioners went towards Smashan Gruh which is at the distance of 50 to 60 ft. from his tea shop and beat the people there. It is at that point of time, according to Rajubhai Manilal Palel, the military people arrested these three petitioners and took them. This complainant also states that these petitioners were in a drunken condition when they were taken in the military van. This complainant also states that he heard that these petitioners have snactched a sum of Rs. 150/- from one Tarachand. The Military Subedar Ramakrishnan has given a statement. No doubt there is no signature of the said Ramakrishnan in that statement. This statement also was recorded in Gujarati while it is stated by Mr. Shethna that this Ramakrishnan belongs to Madras Regiment and would not have narrated the incident in Gujarati. It is seen from his statement that one scooterist came to his camp and told him that three policemen had beaten him and took away Rs. 140/- from him. Immediately this Subedar Ramakrishnan along with other staff members went in a motor van and found the three petitioners near Rakhial Crematorium Ground. The scooterist who complained to this Subedar Ramakrishnan also followed him. Subedar Ramakrishnan was able to extricate the sum of Rs. 140/- from these three petitioners and paid it to the scooterist from whom it is alleged that the sum of Rs. 150/- was snatched away. Since many people from the public gathered there and complained against these petitioners alleging that these petitioners have beat them and snatched away money and jewels from them, Subedar Ramakrishnan asked the petitioners to sit in the Military Van and took them to his superior Officer. Later these three petitoners were handed over to P.S.I. Shri Palel of Gomtipur at about 8.15 A.M. It is also in the statement of the Subedar Ramakrishnan that when he made body search of these three petitioners, he did not find anything with them. Thus, from the above said statement, it is clear that Subedar Ramakrishnan gave the statement only on 8-5-1985, that he was not an eye-witness either to the riotous behaviour of the petitioners herein or to the fact that these petitioners robbed money and jewels from various persons and that this Subedar Ramakrishnan did not find anything from the body of these persons on searching them.
9. The 1st respondent, by his order dated 7-5-1985 at about 9.00 P.M. suspended these petitioners till the disposal of the case registered in Crime Register No. 235 of 1985 of Gomtipur Police Station or by way of a departmental enquiry. In this suspension order the 1st respondent has also made provisions for subsistence allowance according to the Rules to these petitioners herein. This is Annexure 'A' to the Special Civil Application. The Inspector of Police, Gomtipur has given a Special Report as seen from the files. In this Special Report, the Inspector of Police has stated:
The details of this offence is that the complainants tea-ketti at Ajod Dairy Road, Sukhram Nagar, Smashangurh Corner, Bhagyodaya Estate. In drunken condition the accused have beaten and injured to the complaint and others who were staying at round that area and looted money for Rs. 400/500 from complainant galla and also robbed money from other witnesses and then accused were arrested.
In the copy of the Special Report the Inspector of Police, Gomtipur has also stated that evidence is available in preliminary enquiry against these three petitioners for offence under Sections 394 and 114 of I.P.C. and also under Sections 85(1), (2) and (3) and 66(1)(b) of the Bombay Prohibition Act. The Inspector of Police, Gomtipur has suggested in his report that necessary departmental action may be taken against these three petitioners and immediate transfers of these three petitioners from the post may be effected. On this report, it is stated by the respondents, order of dismissal was passed by 11.00 P.M. (23.00 hours) on 7-5-1985. The said order of dismissal reads as follows:
ORDER You Unarmed P.C. Shri Govindbhai Muljibhai Parmar B. No. 3838, Unarmed P.C. Shri Ramanbhai Keshavlal Parmar B. No. 6202, and unarmed P.C. Shri Harshadkumar Ratilal Raval B. No. 7012, serving at Gomtipur Police Station have on 7-5-1985 at about 5.30 A.M. on the Ajod Dairy Road, near Bhagyodaya Estate, Rakhial, Smashan Gruh beaten the complainant Shri Rajubhai Manilal aged 23 years residing at Radheshyam Society, Bungalow No. 48 Odhav and his father and other persons in a drunken condition and caused them injury and broken the larry gallas and committed robbery which is a shameful act of serious nature which is not befitting to a Police Officer. For the said acts, important witnesses are Jawans of Military who are engaged in the national defence who are not likely to be available easily as witnesses. Looking to the present disturbed condition of the city, regular Departmental Inquiry is not reasonably practicable. Therefore, I.J. Mahapatra, Deputy Police Commissioner, Ahmedabad City, under Article 311(2) dismiss A.P.C. Shri Govindbhai Muljibhai Parmar B. No. 3838, A.P.C. Shri Ramanbhai Keshavlal Parmar B. No. 6202, A.P.C. Shri Harshadkumar Ratilal Raval B. No. 7012 from the services from the date of passing this order.
Article 311(2)(b) reads as follows:
311(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 these charges. Provided that where it is proposed after such inquiry, to impose upon him any 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) xxx xx
(b) where an authority empowered to dismiss 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.
This particular clause came to be dismissed by the Supreme Court in the decision in Union of India and Anr. v. Tulsiram Patel . The minimal enquiry and the opportunity to show cause against the proposed penalty on the basis of the applicability of Article 14 and the principles of natural justice founded in Challappan's case was negatived by this decision by categorically holding that Challappan's case in so far as it held that a Government servant should be heard before imposing a penalty upon him was wrongly decided. The condition precedent for application of Clause (b) of the second proviso to Article 311(2) is the satisfaction of the disciplinary authority that it is not reasonably practicable to hold the enquiry contemplated by Clause (b) of the second proviso to Article 311(2). It would not be reasonably practicable to hold an enquiry where the Government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give 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 others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members 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. Thus the reasonable practicability of holding an enquiry 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 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 above said principle stated by us is enunciated by the Supreme Court in the decision in Union of India and Anr. v. Tulsiram Patel . According to the Supreme Court 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 reasons 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 a 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. The Supreme Court categorically held that 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. Illustrating the same the Supreme Court observed that 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. In this decision the Supreme Court has held that the Court has power to consider whether Clause (b) or an analogous provision in the service rules was properly applied or not. It is observed by the Supreme Court:
The finality given by Clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the 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.
It is further observed by the Supreme Court:
In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to Clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry, should be dispensed with or not in the cool and detached atmosphere of a court-room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere.
In yet another judgment in Satyavir Singh and Ors. v. Union of India and Ors. Tulsiram's case was affirmed with further lucid explanation as to the circumstances in which such inquiry can be dispensed with. In that decision it is observed by the Supreme Court:
21, The point which was next urged in support of the contention that the impugned orders were passed mala fide was that even, though co-workers may not. have been available as witnesses, there were policemen and police officers posted inside and outside the building and they were available to give evidence and that superior officers were also available to give evidence. The crucial and material evidence against the Appellants would be that of their co-workers for these co-workers were directly concerned in and were eye-witnesses to the various incidents. Where the disciplinary authority feels that crucial and material evidence will not be available in an inquiry because the witnesses who could give such evidence are intimidated and would not come forward and the only evidence which would be available, namely, in this case, of policemen, police officers and senior officers, would only be peripheral and cannot relate to all the charges and that, therefore, leading only such evidence may be assailed in a court of law as being a mere farce of an inquiry and a deliberate attempt to keep back material witnesses, the disciplinary authority would be justified in coming to the conclusion that an inquiry is not reasonably practicable. The affidavit filed by the Joint Director, Research and Analysis Wing, Cabinet Secretariat, Hari Narain Kak, who had passed the impugned orders, sets out in detail the various acts of intimidation, violence and incitement committed by each of the Appellants. Copies of the written reasons for dispensing with the inquiry in the case of the Appellants have also been annexed to the said affidavit. It is clear from a perusal of the said affidavit and its annexures that the police officers, policemen and senior officers could not have possibly given evidence with respect to all these acts. The said affidavit further states that the senior officers were also intimidated and were threatened with dire consequences, if they gave evidence. Further, grievances were made against the senior officers of the RAW in the said charter of demands submitted by the said Association and the evidence of senior officers would have been attached as being biased and partisan. There is thus no substance in this point also.
Bearing the above said principles laid down by the Supreme Court in our mind, we have to find out as to whether the disciplinary authority has dispensed with the disciplinary enquiry lightly and arbitrarily, as to whether the disciplinary authority vaguely after repeating the language in Clause (b) of Article 311(2) has dispensed with the enquiry by stating that the disciplinary authority was satisfied that it was not reasonably practicable to hold any enquiry and as to whether the reasons are irrelevant which will result in abuse of the power conferred upon the disciplinary authority by Clause (b) of Article 311(2). We must also find out as to whether the crucial and material evidence may not be available to hold the enquiry.
10. The 1st respondent at about 9.00 P.M. on 7-5-1985 suspended the three petitioners pending the case that may be filed on the strength of Crime Register No. 235 of 1985 and also pending the departmental enquiry. Within two hours thereafter, the order of dismissal was passed by the 1st respondent which we have extracted in paragraph supra. It is true that if these three petitioners who are police constables have broken the larry gallas, committed robbery and attacked the persons in a drunken condition, it will be a serious offence. One Military Subedar Ramakrishnan took these three petitioners in the Military Van and handed them over to the Inspector of Police, Gomtipur Police Station. It is interesting to note that the statement of this Subedar Ramakrishnan was recorded only on 8-5-1985 as per the records available and as admitted by Mr. Gandhi, the learned Counsel appearing for the respondents, white the order of dismissal was passed on the night of 7-5-1985 itself. Further the First Information Report and the statement of the Subedar Ramakrishnan which was recorded on 8-5-1985 amply establishes that the witnesses who will speak to the acts alleged against the petitioners are civilian witnesses and as far as the military witness i.e. Subedar Ramakrishnan is concerned, he only took the petitioners in van on the report of on scooterist. To allege that the important witnesses are Jawans of Military, who are engaged in the national defence and who are not likely to be available easily as witnesses for the purpose of dispensing with the enquiry, is a statement made by the disciplinary authority in a light-hearted way and smells with arbitrariness in order to avoid holding of an enquiry. When important eye-witnesses and persons who have suffered in the hands of these three petitioners are very much available, it is understandable as to how the 1st respondent has stated that the important witnesses are Jawans of Military Department. The observation of the 1st respondent that looking to the present disturbed condition of the City, the regular departmental enquiry is not reasonably practicable cannot be countenanced at all. The acts committed by the petitioners are distinct and independent offences attributable to the petitioners concerned. There is nothing on record to show that the petitioners have created an atmosphere wherein no such departmental enquiry can be conducted. It is also not the case of the respondents that crucial and material evidence against the petitioners are tampered with or that witnesses are threatened by the petitioners herein The Supreme Court has categorically held that in examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. On the facts of this case, it is abundantly clear that the disciplinary authority, arbitrarily and mechanically and in order to avoid any departmental enquiry, came to the conclusion that it was not reasonably practicable to hold the enquiry. Such reasons on the facts of the present case, are irrelevant and the recording of its satisfaction is an abuse of power conferred upon it by Article 311(2)(b). The riotous situation prevailing in the city is not the making of the petitioners herein. Their acts are not relatable to the riots that prevailed in the City of Ahmedabad.
11. The complaint filed by one Rajubhai Patel according to the petitioners is borne out of enmity, was taken as the basis for the suspension and subsequent dismissal of the petitioners. When the disciplinary authority has suspended the petitioners by 9.00 P.M. why should it change its attitude within two hours and pass the order of dismissal on the same day. When the witnesses are easily approachable and the victims are very well available to speak about the atrocities committed by the petitioners, the disciplinary authority in a light-hearted way and in a mechanical fashion, after observing that it is not reasonably practicable to hold the enquiry, dismissed the petitioners herein. This attitude of the disciplinary authority cannot be appreciated at all and such arbitrary way of dispensing with the enquiry, in our view, results in misuse of the power conferred upon the disciplinary authority. On the facts and circumstances of the present case, we are convinced that the reasons given by the 1st respondent to dispense with the enquiry while passing the dismissal order are irrelevant, arbitrary and amounts to abuse of the power conferred upon it by Clause (b) of the second proviso to Article 311(2) of the Constitution. The disciplinary authority ought to have held the enquiry retaining the suspension order passed on 7-5-1985 which is Annexure 'A' to the Special Civil Application. Mr. Shethna, the learned Counsel appearing for the petitioners, did not press his point regarding the constitutional validity of the proviso to Section 311(2)(b) raised by him in prayer No. 11(c).
12. For all these reasons, the order of dismissal dated 7-5-1985 marked as Annexure B to the Special Civil Application is set aside. The respondents are at liberty to proceed with the enquiry retaining the suspension order dated 7-5-1985 marked as Annexure 'A' to the Special Civil Application. Rule is made absolute accordingly to the above extent. No costs.