Chattisgarh High Court
Shantilal Sahu vs State Of Chhattisgarh on 20 November, 2015
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 7611 of 2011
1. Santosh Kumar Sahu S/o Shri Champpalal Sahu, Aged About 30
Years R/o-48 Quarter, P. T. S. Rajnandgaon (C.G.)
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Home
Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines,
Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, Rajnandgaon (C.G.)
---- Respondent
And WPS No. 377 Of 2012
1. Rajesh Kanojia S/o Shri Suresh Chandra Kanojia, Aged About 36 Years R/o Suraj Laundry, Sector 9, Shop No. 37, Bhilai, District Durg (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, District Rajnandgaon (C.G.)
---- Respondent And WPS No. 376 Of 2012 2
1. Ghanshyam Karsh S/o Late Shri Mohan Lal Karsh, Aged About 26 Years R/o Ward No. 20, Back Side Of Vinay Takij, Janjgir Champa (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Bilaspur Range, Bilaspur (C.G.)
4. Superintendent Of Police, Janjgir Champa (C.G.)
---- Respondent And WPS No. 379 Of 2012
1. Tejnath Dahariya S/o Shri Ledgaram Dahariya, Aged About 32 Years R/o Village Nayakbandha, Post Abhanpur, Thana Abhanpur, District Raipur (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, District Rajnandgaon (C.G.)
---- Respondent And WPS No. 424 Of 2012
1. Purushottam Sharma S/o Late Shri Bhuneshwar Sharma, Aged About 42 Years R/o Village Bhalapur, Tah. Mungeli, District Mungeli (C.G.) 3
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, Kabirdham (C.G.)
---- Respondent And WPS No. 422 Of 2012
1. Likeshwar Kumar Sahu S/o Shri Moti Ram Sahu, Aged About 26 Years R/o Village Raja Bhanpuri Post Pendri, District Rajnandgaon (C. G .)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, Rajnandgaon (C.G.)
---- Respondent And WPS No. 7613 Of 2011
1. Shantilal Sahu S/o Late Shri Khemlal Sahu, Aged About 32 Years R/o - Ramnagar Muktidham Road, Infront Of Arvind Book Depot, Bhilai, Post- Supela, District - Durg (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.) 4
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, District - Rajnandgaon (C.G.)
---- Respondent And WPS No. 924 Of 2012
1. Sanjay Baghel S/o Shri Ramadhin Baghel, Aged About 33 Years R/o - Village - Aman Nagar, Mowa Post - Mowa, District - Raipur (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, Rajnandgaon (C.G.)
---- Respondent And WPS No. 925 Of 2012
1. Gopiram Sahu S/o Shri Keshavram Sahu, Aged About 25 Years R/o Adarsh Chauk Ward No. 43 Village - Lakholi District - Ranjandgaon (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, Rajnandgaon (C.G.) 5
---- Respondent And WPS No. 942 Of 2011
1. Lakshmikant Tiwari S/o Ramavtar Tiwari Aged About 26 Years R/o Ramnagar, Ward No. 3 Takhatpur, District Bilaspur (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quaters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Bilaspur Range, Bilaspur (C.G.)
4. Superintendent Of Police, District - Rajnandgaon (C.G.)
5. Superintendent Of Police, District Janjgir - Champa (C.G.)
---- Respondent And WPS No. 1296 Of 2013
1. Nilesh Tiwari S/o Shri Ramji Tiwari , Aged About 25 Years R/o Behind Police Thana, Police Line, Janjgir, Police Station Janjgir, District Janjgir Champa (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, Manatralaya, Mahanadi Bhawan, New Raipur, P. S. Rakhi, District Raipur (C.G.)
2. The Director General Of Police, Police Headquarter, Civil Line, Raipur, Police Station & District Raipur (C.G.)
3. The Inspector General Of Police, Durg Region, Durg, Police Station & District Durg (C.G.)
4. The Superintendent Of Police, Rajnandgaon, Police Station & District Rajnandgaon (C.G.)
---- Respondent 6 And WPS No. 996 Of 2012
1. Ganesh Singh Dhurve S/o Shri Pancham Dhurve, Aged About 39 Years R/o Police Line, Post Kabir Dham (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, Kabirdham (C.G.)
5. Superintendent Of Police, Rajnandgaon (C.G.)
---- Respondent And WPS No. 999 Of 2012
1. Suraj Prakash Dixit S/o Dr. A. K. Dixit, Aged About 27 Years R/o Sipat Road, Sarkanda Post- Bilaspur (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, Rajnandgaon (C.G.)
---- Respondent And WPS No. 998 Of 2012 7
1. Shiv Kumar Suryavanshi S/o Shri Hardev Prasad Suryavanshi, Aged About 32 Years R/o Railway Station Datkanhar Post - Datkanhar, Rajnandgaon (C.G.)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary, Home Department, D K S Bhawan, Raipur (C.G.)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (C.G.)
3. Inspector General Of Police, Durg Range, Durg (C.G.)
4. Superintendent Of Police, Rajnandgaon (C.G.)
---- Respondent And WPS No. 2463 Of 2015
1. Sanjay Verma Aged About 31 Years Khem Singh Verma R/o Village Semari, P. S. Patan District Durg (Chhattisgarh)
---- Petitioner Vs
1. State Of Chhattisgarh Through The Secretary Home Department, Mahanadi Bhawan, Raipur (Chhattisgarh)
2. Director General Of Police, Police Head Quarters, Civil Lines, Raipur (Chhattisgarh)
3. Superintendent Of Police, District Rajnandgaon (Chhattsigarh)
4. Superintendent Of Police , District Durg (Chhattisgarh)
---- Respondent For Petitioners Mr. Prateek Sharma, Mr. Mateen Siddique & Ms. Ruchi Nagar, Advocates For Respondent/State Mr. Prasun Kumar Bhaduri, Government Advocate 8 Hon'ble Shri Justice Prashant Kumar Mishra C A V Order 20/11/2015
1. In this batch of writ petitions, the seminal issue for decision making is - whether the order of dismissal of service of the petitioners, who are members of the District Police Force, made by the Superintendent of Police in exercise of powers under second proviso to Article 311(2) of the Constitution of India is valid in the obtaining facts of the case ?
2. The present batch of writ petitions under Article 226 of the Constitution of India raises common ground of challenge based on same set of facts, therefore, they are disposed of by this common order.
3. Facts of the case, briefly stated, are that the petitioners were working as Constables in the District Force, Rajnandgaon, Janjgir-Champa & Kabirdham. They are trained in Jungle Warfare/Guerrilla War, therefore, vide order dated 10.08.2009 Shri Vijay Pandey, City Superintendent of Police, Rajnandgaon, was appointed as In-charge Officer for overseeing the movement of Force for anti naxal special duty operation Camp at Madanwada. The said CSP directed the petitioners and other members of the District Force to secure their attendance by commanding them to fall-in at 9:00 p.m. at Reserve Line, Rajnandgaon. Counting of the 9 Members, who were present in falling-in, was made and the members were directed to again assemble for falling-in at 2:00 a.m. in the intervening night of 10/11.08.2009 for proceeding to Madanwada. When in the said fall-in, the CSP, Rajnandgaon counted the members of Force, the petitioners were found absent and information in this regard was sent to the superiors. For their said act of disobeying the orders and display of cowardice, the petitioners were placed under suspension by an order issued by the Superintendent of Police, Rajnandgaon on 11.08.2009.
4. The Reserve Inspector, Rajnandgaon, submitted a report to the Additional Superintendent of Police, Rajnandaon, on 18.08.2009, who, in turn, forwarded the same along with his own report dated 23.08.2009 to the Superintendent of Police, Rajnandgaon. The Superintendent of Police, Rajnandgaon, Janjgir-Champa & Kabirdham thereafter, by exercising the powers under second proviso to Article 311(2) dismissed the petitioners, who were appointed in their respective Districts. Thereafter, the appeal and mercy petitions preferred by the petitioners were also dismissed by the respective Inspector General of Police and the Director General of Police.
5. Shri Prateek Sharma, Mr. Mateen Siddiqe & Ms. Ruchi Nagar, learned counsel appearing for the respective 10 petitioners, would submit that the exercise of powers under second proviso to Article 311(2) to dismiss the petitioners without holding enquiry is in violation of principles of natural justice. The obtaining facts of the case did not warrant the order dismissing them from service without holding regular enquiry. Mere fact that the report was submitted by the Reserve Inspector to the Additional Superintendent of Police after making some sort of enquiry would establish that regular enquiry was possible and yet the same was not conducted. Learned counsel would further urge that the present is not a case of general indiscipline but involvement of few constables, therefore, a regular enquiry was necessary before dismissing the petitioners from service.
6. Shri Prateek Sharma, in W.P.(S) No.1296 of 2013, would additionally submit that the said petitioner had suffered fracture in an accident, therefore, he was not attending the duties since 09.08.2009, and was not supplied arms, therefore, his case was entirely different and he could not have been dismissed for his failure to proceed to Madanwada. Shri Sharma would next submit that this fact was informed to the authorities, yet cognizance was not taken.
7. It is argued that in a similar situation for the same duty, other constables were removed, but in appeal their punishment 11 was reduced to stoppage of one increment, therefore, there is apparent violation of Article 14 of the Constitution of India. In support of their contentions, learned counsel for the petitioners would rely upon the decisions rendered in Workmen of Hindustan Steel Ltd. & another v. Hindustan Steel Ltd. & others1 , Nepal Singh vs. State of U.P. & others2, Union of India & another v. Tulsiram Patel3, Chief Security Officer & others v. Singasan Rabi Das4, Ex. Constable Chhote Lal v. Union of India & others5, Sudesh Kumar v. State of Haryana & others 6, Government of Andhra Pradesh & anr. v. N.Ramanaiah 7, Davinder Singh and others vs. State of Punjab & others8, Reena Rani vs. State of Haryana & others9, Risal Singh vs. State of Haryana & others10, Shrikrishna Pandey v. Chhattisgarh Vidhan Sabha and Others11, Rahul Tripathi vs. Rajiv Gandhi Shiksha Mission, Bhopal & others12, & State of M.P. & anr. vs. R.P. Katiyar & anr13.
8. Shri Prasun Kumar Bhaduri, learned Government Advocate appearing for the State would submit that in a naxal attack in 1 1984 (Supp) SCC 554 2 (1985) 1 SCC 56 3 (1985) 3 SCC 398 4 (1991) 1 SCC 729 5 (2000) 10 SCC 196 6 (2005) 11 SCC 525 7 (2009) 7 SCC 165 8 (2010) 13 SCC 88 9 (2012) 10 SCC 215 10 (2014) 13 SCC 244 11 WPS No.2556 of 2011 (decided on 12-4-2012) 12 2001 (3) M.P.H.T. 397 13 2006 (1) C.G.L.J. 398 12 Rajnandgaon District, the Superintendent of Police was killed by the naxalites on 12.07.2009., therefore, anti naxal operation was going on in the District by involving such Constables from Rajnandgaon and other District Force, who are trained in Jungle Warfare/Guerrilla War. When the petitioners were deputed for the operation and were directed to move for Madanwada Camp, they were present along with 40 other Constables during fall-in parade at 9:00 p.m. on 10.08.2009. All the constables were directed to apprise the In-charge Police Officer about any of their difficulty. The difficulties raised by three Constables were found genuine, therefore they were relieved from participating in the operation, however, others Constables including the petitioners were directed to report at 2:00 am. for fall-in parade and when the petitioners did not arrive, other Constables waited for them for about 1:00 hour and the petitioners were searched in the Reserve Line, however, they were not found, as they have absconded from the Reserve Line.
9. Shri Bhaduri would further submit that in the facts of the case the Superintendent of Police, Rajnandgaon obtained the reports from the Reserve Inspector and the Additional Superintendent of Police before concluding as to whether a regular enquiry in the matter is reasonably practicable, however, when he found that the act of cowardice being of 13 personalized quality and the fact of their absconsion being not in dispute, the exercise of power under second proviso to Article 311(2) of the Constitution of India is fully justified. Shri Bhaduri would next submit that the matter being related to the members of disciplined force, no interference is called for.
10. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
11. To consider as to whether invocation of second proviso to Article 311 (2) of the Constitution of India is valid and permissible in the facts of the case, it is required for this Court to bear in mind the principles on which the said exercise would be valid.
12. In Workmen of Hindustan Steel Ltd. (supra), the Supreme Court held that where a disciplinary enquiry is dispensed with on the specious plea that it was not reasonably practicable to hold one and a penalty of dismissal or removal from service is imposed, if the same is challenged on the ground that it was a colourable and mala fide exercise of power, the employer must satisfy the Court about the good and objective reasons showing both proof of misconduct and valid and objective reasons for dispensing with the enquiry. 14 Mere ipse dixit of the employer in such a situation is of no significance. The employer must satisfy the Court that holding of the enquiry will be either counterproductive or may cause such a irreparable and irreversible damage which in the facts and circumstances of the case need not be suffered.
13. In Singasan Rabi Das (supra), the delinquent was a constable in the Railway Protection Force. He was removed from the service without holding the enquiry citing the reason it was considered not feasible or desirable to procure witnesses of the security/other railway employees since this will expose these witnesses and make them ineffective in the future and they were likely to suffer personal humiliation and insults and their family members might become targets of acts of violence. The Supreme Court found those reasons to be totally insufficient in law to dispense with the enquiry.
14. In Ex. Constable Chhote Lal (supra), the Police Constable was removed from service without enquiry by holding that it was not reasonably practicable to hold enquiry because the delinquent being a police constable could have influenced the witnesses. The Supreme Court did not find the said reason to be sufficient enough to dispense with the enquiry. 15
15. In Sudesh Kumar (supra), a complaint was filed by a foreign national that he had to pay bribe money in the office of the Superintendent of Police for securing extension of his visa for one year, however, he did not name the official. Pursuant to a preliminary enquiry, the delinquent, a dealing clerk was dismissed from service without holding regular departmental enquiry citing the reason for such satisfaction that it was not reasonably practicable to hold the enquiry. It was stated that the complainant being a foreigner may leave the country in the midst of the enquiry. The Supreme Court found the reason to be not sufficient for dispensing with regular enquiry and the order of dismissal from service was set-aside.
16. In Reena Rani (supra), the delinquent, a Prisoner Escort Guard, was dismissed from service under the second proviso clause (b) of Article 311 (2) on the ground that she had developed close relation with one inmate with whom the delinquent used to meet in jail on many occasions. Since in the order of dismissal, no reasons were disclosed as to why it was not reasonably practicable to hold enquiry, the Supreme Court held that had opportunity been given to the delinquent, she could have defended herself by adducing evidence in support of her contentions, therefore, for both the reasons, the order of dismissal was set aside. 16
17. The Supreme Court in Risal Singh (supra), held that non-
ascribing of reason while passing an order of dismissal from service by dispensing with enquiry, invalidates such an action. It is held thus;
6. We have already reproduced the order passed by the competent authority. On a bare perusal of the same, it is clear as day that it is bereft of reason. Non-ascribing of reason while passing an order dispensing with enquiry, which otherwise is a must, definitely invalidates such an action. In this context, reference to the authority in Union of India v. Tulsiram Patel is apposite. In the said case the Constitution Bench, while dealing with the exercise of power under Article 311(2)(b), has ruled thus: (SCC p. 503, para 130) "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 absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry 17 is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation."
18. In R.P. Katiyar (supra), the members of District Force were removed from service without holding enquiry by invoking the second proviso clause (b) of Article 311 (2). There original application was allowed by the Tribunal, against which the State Government has preferred writ petition. The Division Bench of t his Court affirmed the order of Tribunal.
It was held that when the naxalites attacked the Police Station, four witnesses, who were summoned by the Station House Officer for investigation of a crime were present in the police station and they could have been the witnesses in the case, therefore, it was not a case where the enquiry was not reasonably practicable. The allegation against the delinquents was that while being attacked by the naxalites instead of resisting the naxalites, the police officers surrendered and allowed the naxalites to loot/take away the arms and ammunitions available in the police station.
19. In the celebrated decision rendered in Tulsiram Patel (supra), the Constitution Bench of the Supreme Court has elaborately considered the provisions contained in Articles 309, 310 and 311, particularly the second proviso to Article 311 (2) of the Constitution of India. In the said decision, it is observed that so far as the audi alteram partem rule is 18 concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi case at p. 681. If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution, for a constitutional provision has a far greater and all-pervading sanctity than a statutory provision.
20. While considering the second proviso clause (b) to Article 311 (2) of the Constitution of India, in Tulsiram Patel (supra) the Supreme Court observed thus :
129. The next contention was that even if it is not reasonably practicable to hold an inquiry, a government servant can be placed under suspension until the situation improves and it becomes possible to hold the inquiry. This contention also cannot be accepted. Very often a situation which makes it not reasonably practicable to hold an inquiry is of the creation of 19 the concerned government servant himself or of himself acting in concert with others or of his associates. It can even be that he himself is not a party to bringing about that situation. In all such cases neither public interest nor public good requires that salary or subsistence allowance should be continued to be paid out of the public exchequer to the concerned government servant.
It should also be borne in mind that in the case of a serious situation which renders the holding of an inquiry not reasonably practicable, it would be difficult to foresee how long the situation will last and when normalcy would return or be restored. It is impossible to draw the line as to the period of time for which the suspension should continue and on the expiry of that period action should be taken under clause (b) of the second proviso. Further, the exigencies of a situation may require that prompt action should be taken and suspending the government servant cannot serve the purpose. Sometimes not taking prompt action may result in the trouble spreading and the situation worsening and at times becoming uncontrollable. Not taking prompt action may also be construed by the trouble-makers and agitators as a sign of weakness on the part of the authorities and thus encourage them to step up the tempo of their activities or agitation. It is true that when prompt action is taken in order to prevent this happening, there is an element of deterrence in it but that is an unavoidable and necessary concomitance of such an action resulting from a situation which is not of the creation of the authorities. After all, clause (b) is not meant to be applied in ordinary, normal situations but in such situations where it is not reasonably practicable to hold an inquiry.
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 20 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 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 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. 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 21 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 is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial 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.
(Emphasis supplied)
138. Where a government servant is dismissed, removed or reduced in rank by applying clause
(b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an 22 analogous provision in the service rules was properly applied or not. 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.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.
(Emphasis supplied)
21. In Satyavir Singh and others vs. Union of India and others14, the Supreme Court had summarised the conclusion reached by the majority in Tulsiram Patel (supra).
14 (1985) 4 SCC 252 23
22. In State of U.P. and others vs. Ashok Kumar Singh and another15, the Supreme Court had an occasion to considere whether absence from duty by a police constable was a grave charge and warrants dismissal of service. It is held thus :
8. We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department.
Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that "his absence from duty would not amount to such a grave charge". Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that "the punishment does not commensurate with the gravity of the charge" especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out.
(Emphasis supplied)
23. The common thread arising from the constitution Bench Judgment of the Supreme Court in Tulsiram Patel (supra) and other judgments subsequent thereto is that while the second proviso to Article 311 (2) confers power to the appointing authority to dismiss a government servant without holding enquiry on being satisfied that it is not reasonably practicable to hold the enquiry and that the order of 15 (1996) 1 SCC 302 24 dismissal should clearly speak as to why it is not reasonably practicable to hold the enquiry and that the reasons so assigned should not be irrelevant or extraneous or perverse. It also emerges that when reasons have been assigned, clause(3) of Article 311 accords finality of such reasons, however, it is subject to judicial review by the Court to a limited extent. At the same time, it is held that while considering the relevance of the reasons by the disciplinary authority, the Court will not sit in judgment over them like the Court of First Appeal and while deciding as to whether the reasons are germane, 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.
24. This leaves this Court to examine as to whether the appointing authority i.e. the Superintendent of Police, Rajnandgaon, Janjgir-Champa and Kabirdham, who have passed the impugned order of dismissal, have assigned any reason in the impugned order to conclude that it was not 25 reasonably practicable to hold an enquiry. It would be necessary to reproduce the exact language in which such reasons have been couched in the impugned order. The same is taken from the order filed in WP(S) No. 1296 of 2013.
%% dk;kZy; iqfyl v/kh{kd] ftyk jktukanxkao ¼N0x0½ %% vk ns 'k ftyk jktukanxkao esa uDly fojks/kh vfHk;ku ds rgr~ fnukad 11-08-2009 dks vf/kdkfj;ksa@deZpkfj;ksa dh fM;wVh enuokMk {ks= esa lfpZax@x'r ds fy, yxkbZ xbZ Fkh A bl egRoiw.kZ drZO; ls vkj{kd&331 fuys'k frokjh] jf{kr dsUnz] jktukanxkao fcuk fdlh lwpuk o dkj.k crk;s vukf/kd`r :i ls xSjgkftj gks x,] tcfd bUgsa fnukad 10-08-2009 dks jkf= x.kuk ds le; Li"V :i ls bl fM;wVh ds laca/k esa fn'kk&funsZ'k fn;s x;s Fks A bl nkSjku x.kuk esa mifLFkr cy ls mudh leL;kvksa ,oa 'kadkvksa ds laca/k esa Hkh iwNrkN djus ij cy ds 03 deZpkfj;ksa us viuh leL;k,a crkbZ] ftUgsa bl fM;wVh ls eqDr dj fn;k x;k A bu 15 vkj{kdksa lfgr vU; fdlh Hkh deZpkjh us fdlh Hkh izdkj dh leL;k ugha crkbZ rFkk bUgsa vkijs'ku dh xksiuh;rk j[krs gq, uDly fojks/kh vfHk;ku esa tkus ds fy, jkf= 02%00 cts iqfyl ykbZu esa mifLFkr gksus dk funsZ'k fn;k x;k A jkf= 02%00 cts vfHk;ku ny ds izLFkku ds iwoZ 15 vkj{kd lkewfgd :i ls vfHk;ku esa tkus gsrq mifLFkr ugha gq, rFkk irklkth djus ij iqfyl ykbZu ls xSjgkftj ik, x, A buesa ls 09 vkj{kd Øe'k% ftyk jktukanxkao ds vkj{kd&740 rstukFk Mgfj;k] vkj{kd&1228 lat; oekZ] vkj{kd&1083 lat; c?ksy] vkj{kd&37 xksihjke lkgw ,oa vkj{kd&948 fyds'oj lkgw ftyk dchj/kke ls vkj{kd&41 iq:"kksRre 'kekZ ,oa vkj{kd&20 x.ks'k /kqosZ vkSj ftyk tkatxhj&pkaik ls vkj{kd&398 y{ehdkar frokjh ,oa vkj{kd&157 ?ku';ke d"kZ dks gfFk;kj Hkh iwoZ ls vkcafVr fd, tk pqds Fks A 26 bl laca/k esa dh xbZ tkap esa budk ;g lkewfgd d`R; dk;jkuk vkpj.k LFkkfir gqvk gS A bl fu"d"kZ ls eSa iw.kZr% lger gwWa A tkap esa miyC/k rF;ksa ds vuqlkj enuokMk {ks= ?kksj uDly izHkkfor gS rFkk bl bykds esa iqfyl ikVhZ ij txg&txg ,Ecq'k yxkdj iqfyl v/kh{kd lfgr 29 vf/kdkjh@deZpkfj;ksa dh uDlfy;ksa }kjk gR;k dj nh xbZ Fkh A bu deZpkfj;ksa ds }kjk x.kuk ds nkSjku fdlh rjg dk dksbZ leL;k@'kadk O;Dr ugha fd;k x;k Fkk rFkk ,su ekSds ij ,dk,d iqfyl ikVhZ esa 'kkfey u gksus ds mn~ns'; ls iqfyl ykbZu tgka os jg jgs Fks] ls jkf= esa gh Qjkj gks x;s rFkk ftUgsa gfFk;kj vkcafVr Fks os mUgsa fcuk tek djk, gh Hkkx x, A mijksDr ls LFkkfir gS fd iwoZ esa gqbZ mDr uDlyh okjnkr ds ifjn`'; esa ;s deZpkjh uDlyh {ks= esa tkus dk lkgl ugha dj ik, rFkk dk;jrk dk iw.kZ ifjp; nsrs gq, fcuk lwpuk ds gh Qjkj gks x, A bu deZpkfj;ksa ds }kjk lkewfgd :i ls vdLekr iznf'kZr dk;jkuk gjdr vR;ar [krjukd gS] D;ksafd ,sls dk;j deZpkfj;ksa ls cy ds vU; lnL;ksa esa vkRefo'okl dh deh mRiUu gksdj Hkze dh fLFkfr;ka fufeZr gks ldrh gS A ;g fd ,d vkijs'ku esa tgka dek.M] daVªksy] fMlhfIyu] leUo;] lg;ksx ,oa lkgl dh vko';drk gS] ogka ,sls deZpkjh vius dk;j O;fDrRo ds dkj.k voKk ,oa [krjs ds nkSjku QkslZ dks R;kx dj Hkkx tkus ;k ?kcjkgV esa fcuk foosd ds va/kk/kqa/k Qk;j dj vius gh lnL;ksa dks uqdlku igqapkus dh laHkkouk ls QkslZ esa Hkze dh Hk;kog fLFkfr;ka fufeZr gks ldrh gS A uDly fojks/kh yM+kbZ iw.kZ :i ls lSU; ;q) dh rjg gS A bu fLFkfr;ksa esa ,sls dk;j deZpkfj;ksa ds lkFk dksbZ Hkh QkslZ vius vkRe fo'okl dks dk;e j[kdj nq'eu ls yksgk ysus dk lkgl ugha dj ldrh A QkslZ esa ;g egRoiw.kZ gS fd lkgl dk izn'kZu gks rFkk dk;jrk dks dqpyk tkos vU;Fkk QkslZ fn'kkghu gks ldrh gS A vr% dk;jrkiw.kZ d`R; dks fpfUgr dj mldk le; ij gh mUewyu fd;k tkuk vfr egRoiw.kZ gS A vuq'kklughurk] voKk ,oa dk;jrk dk okrkoj.k O;kIr gksus dh laHkkouk ij fdlh cMh ?kVuk dh izrh{kk ugha dh tk ldrh] vfirq mDr ifjfLFkfr dks fcxMus ls jksduk vR;ar vko';d gks tkrk gS A 27 vr% eSa ikrk gwWa fd bu 15 vkj{kdksa }kjk lkewfgd :i ls fcuk fdlh lwpuk ds ,dk,d cy dh jokuxh ds le; uDly fojks/kh vfHk;ku gsrq yxkbZ xbZ fM;wVh esa tkus ds fy, mifLFkr u gksdj dk;jrkiw.kZ vkpj.k iznf'kZr fd;k x;k gS] ftldh tkap fd;k tkuk ;qfDr;qDr :i ls O;ogk;Z ugha gS] D;ksafd dk;jrk dh izekf.kdrk ds Bksl iSekus izR;sd ifjfLFkfr;ksa ds fy, lqfuf'pr ugha fd;s tk ldrs vkSj u gh dk;jrk ds vkpj.k dks lk{;ksa dh dlkSVh esa ij[kk tkuk laHko gS A bl izdj.k esa dk;jrkiw.kZ vkpj.k bu vkj{kdksa ds }kjk vfHk;ku esa 'kkfey gksus ds iwoZ gh iznf'kZr dj fn;k x;k gS] muds uDly fojks/kh vfHk;ku esa ,dk,d u tkuk gh dk;jrk dk ?kksrd gS] ftldh iqf"V fdlh lk{; ls fd;k tkuk laHko ugha gS A vr,o lafo/kku ds vuqPNsn&311 ds [k.M ¼2½ ds ijarqd ds mi[k.M **[k** ds v/khu iznRr 'kfDr;ksa ds vk/kkj ij eSa ih0ds0 nkl] iqfyl v/kh{kd] jktukanxkao mDrkuqlkj dk;jrk iw.kZ vkpj.k iznf'kZr djus okys 15 vkj{kdksa ds ny esa 'kkfey jgs fuyafcr vkj{kd&331 fuys'k frokjh] jf{kr dsUnz] jktukanxkao dks fuyacu ls cgky dj rRdky izHkko ls lsok ls inP;qr djrk gwWa A fuyacu vof/k leLr iz;kstuksa ds fy, fuyacu esa 'kqekj fd;k tkrk gS A lgh %% ih0 ds0 nkl %% iqfyl v/kh{kd ftyk jktukanxkao ¼N-x-½
25. Bare reading of the order of dismissal would categorically establish that the petitioners remained absent during the period of fall-in at 9:00 p.m. on 10.08.2009 at Reserve Line, Rajnandgaon and also for falling-in at 2:00 a.m. in the intervening night of 10/11.08.2009 and absconded from the Reserve Line, thereby refusing to obey/comply the order passed by the superiors. They have, thus, shown act of 28 indiscipline and cowardice by refusing to join the anti-naxal operation from Madanwada Camp.
26. In WPS No.1296/2013, it has been argued that the petitioner had suffered a fracture and was not supplied arms, therefore, he had reasonable grounds for not proceeding to attend the fall-in at the Reserved Line or to Madanwada Camp. In this context, it is to be considered that the petitioner allegedly attended the OPD at District Hospital Rajnandgaon on 10.08.2009, however, he did not submit any leave application before the competent authority on that date. In his letter/representation, the petitioner has nowhere stated that he did not receive the communication directing him to attend the falling-in at 9.00 pm on 10.08.2009. This petitioner appears to have suffered fracture on 09.08.2009, but there is no pleading as to what was he doing during the duty hours on 9th and 10th August, 2009. In this background, the report of the Reserved Inspector and the CSP to the effect that the petitioner did not attend the falling- in without any reasonable and sufficient cause appears to be justified. It is also pertinent to mention here that even after 10th or 11th August, 2009, the petitioner did not meet the superior officers, but had sent the letter along with OPD ticket by registered post on 12.08.2009. It is manifest that the petitioner having realized the grave indiscipline 29 committed by him was preparing for an excuse. Thus, the contention of the petitioner that the enquiry in his case was necessary is not acceptable.
27. In the context of the fact that about a month back, the naxalites had killed the Superintendent of Police, the act of disobedience or cowardice becomes more grave. In a given situation, it may happen that the absconding members of Police Force may provide confidential strategic information to the members of public, if not the members of naxal group, thereby putting the entire force at risk. It has been observed in the impugned order that combat with naxalite is like a war, wherein, the member of police force has to keep his self confidence and willpower at the highest level, otherwise, the force would be direction less and it will provoke/ encourage/motivate other members of service to indulge in similar act of indiscipline and if the chain reaction occurs, the force engaged in anti-naxal operation in all other districts of the State would tend to defy the orders passed by the superior police officers creating a situation where the public at large would be left at the mercy of the naxalites. It would have such demoralizing effect on the entire governance and rule of law that people may loose faith in the constitutional scheme of governance, therefore, it is not such a trivial issue of remaining absence from duty but it is one of the gravest act of indiscipline which undoubtedly called for immediate 30 action. As held in Tulsiram Patel (supra), this Court has to examine the issue as if the disciplinary authority is acting in presenti and not in a cool atmosphere of the Court room. It has to think of a situation which occurred firstly at 9:00 p.m. on 10.08.2009 at Reserve Line, Rajnandgaon; during the course of assembly for falling-in at 2:00 a.m. in the intervening night of 10/11.08.2009 and that one hour when a search was made of the petitioners, but they were found absconding. If the news of absconsion is leaked and reaches to print and electronic media, it will be a cause of celebration for the naxalites and at the same time causing embarrassment and humiliation to the Government.
28. In the backdrop of the above stated facts and situation and keeping in mind the observations of the constitution Bench of the Supreme Court in Tulsiram Patel (supra), this Court would not sit in over the reason assigned by the disciplinary authority as a court of appeal to hold that it was reasonably practicable to hold enquiry. The reasons assigned by the appointing authority are neither irrelevant nor extraneous. They emerge from the obtaining factual situation for which no outsider could have given any evidence. It is a case where interference is not called for even if two views are possible, although this Court has reached to the conclusion that only one view is possible.
31
29. Ex-consequenti, all the writ petitions, sans substratum, are liable to be and are hereby dismissed leaving the parties to bear their own costs.
Sd/-
Judge Prashant Kumar Mishra Gowri