Rajasthan High Court - Jodhpur
Lakha Ram vs State & Ors on 20 February, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No.12858 / 2015
Lakha Ram s/o Shri Simartha Ram, b/c Jat, aged about 39 years,
r/o Village Dharasar, Tehsil Chauhtan, District Barmer.
----Petitioner
Versus
1. State of Rajasthan through the Secretary, Home Department,
Government of Rajasthan, Secretariat, Jaipur.
2. Director General of Police, Rajasthan, Jaipur.
3. Inspector General of Police, Jodhpur Range, Jodhpur.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr.M.S.Singhvi, Senior Advocate assisted by
Mr.Abhishek Mehta and Mr.Anupam Vyas
For Respondent(s) : Mr.S.S. Ladrecha, Additional Advocate
General assisted by Mr.Vikas Choudhary,
Assistant to Additional Advocate General
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
20/02/2018
1. This writ petition under Article 226 of the Constitution
of India has been preferred claiming the following reliefs:
"(i) The order dated 14.05.2015 (Annex.9) passed by
the Director General of Police, Rajasthan and the order
dated 13.12.2011 passed by Inspector General of
Police, Range Jodhpur (Annex.4) may kindly be
quashed with all consequential benefits;
(ii) The petitioner be reinstated in the service with all
consequential benefits;
(iii) Any other appropriate writ, order or direction,
which this Hon'ble Court deems just and proper in the
facts and circumstances of the case, may also be
made in favour of the petitioner.
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(iv) Costs be awarded to petitioner."
2. The petitioner was appointed as Sub Inspector vide
order dated 11.11.1999 with the respondents after due selection
process conducted by the Rajasthan Public Service Commission.
The petitioner, while being posted at Jaisalmer, was suspended
from service on 03.10.2011, while invoking Rule 13 of the
Rajasthan Civil Services (Classification, Control & Appeal) Rules,
1958 (hereinafter referred to as 'the Rules of 1958').
3. The aforementioned order of suspension was revoked
vide order 13.12.2011, which is Annexure-3 of the writ petition.
However, vide another order issued on the same day i.e.
13.12.2011, the petitioner was dismissed from service, which is
Annexure-4 of the writ petition. The said order of dismissal from
service was challenged by the petitioner in appeal and the
Appellate Authority, after intervention of this Hon'ble Court in
S.B.Civil Writ Petition No.3134/2015, decided the said appeal
against the petitioner on 14.05.2015 vide Annexure-9 of the writ
petition.
4. Shri M.S.Singhvi, learned Senior Counsel assisted by
Mr.Abhishek Mehta and Mr.Anupam Vyas has submitted that the
extraordinary powers for dispensing with the inquiry have been
invoked against the petitioner without adhering to the basic
provisions of the Constitution of India and the Rules of 1958.
5. Learned Senior Counsel for the petitioner has read
before this Court Article 311(2) of the Constitution of India
alongwith proviso (b) thereof.
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6. Article 311 of the Constitution of India, in extenso, is
reproduced as hereunder:
"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 State it is not expedient to hold such inquiry.
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(3) If, in respect of any such person as aforesaid, a
questions arises whether it is reasonable 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."
7. Learned Senior Counsel for the petitioner therefore,
submitted that the basic principle is that a civil servant shall not
be dismissed, removed or reduced in rank without inquiry and
without proper information of the charges as well as without
giving him proper and reasonable opportunity to take his defence
in respect of those charges.
8. Learned Senior Counsel for the petitioner also
submitted that the exception to the said power has been carved
out in Article 311(2)(b) of the Constitution of India, as reproduced
hereinabove, whereby the authority concerned has been
empowered to act without an inquiry, if he has reasons therefor,
which he should record in writing, that the inquiry is not
reasonably practicable.
9. Learned Senior Counsel for the petitioner states that
such reasons have nowhere been recorded in the impugned
orders, either by the Disciplinary Authority or the Appellate
Authority.
10. Learned Senior Counsel for the petitioner submitted
that Rule 19(ii) of the Rules of 1958 is having the same purport as
that of Article 311(2)(b) of the Constitution of India.
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11. Learned Senior Counsel for the petitioner further states
that without specification of the charges, on the basis of which the
action of dismissing the petitioner from service has been taken,
the petitioner has been made to stand seriously prejudiced and
handicapped, as he cannot even assail a particular charge, which
he could have so assailed and rebutted effectively, had he been
informed about the definite dimensions thereof.
12. Learned Senior Counsel for the petitioner has further
argued that the Appellate Authority has taken into consideration
the allegations regarding the phone calls and the petitioner being
in touch with the persons accused of the offence of kidnapping
and murdering Bhanwari Devi, and also the role of the petitioner,
in the case, on account of his being in contact with various
persons involved in murdering Dinesh Manju.
13. Learned Senior Counsel for the petitioner further states
that such allegations, if are to be rebutted, then the petitioner
should have been afforded proper and adequate opportunity by
holding proper inquiry as envisaged under the Rules of 1958.
14. Learned Senior Counsel for the petitioner has further
argued that the Appellate Authority has called for the comments of
the Disciplinary Authority, which were neither made available to
the petitioner, nor the petitioner was given any opportunity to take
any defence in respect of such comments.
15. Learned Senior Counsel for the petitioner has further
argued that the dismissal of the petitioner from service on account
of one of the aforementioned allegations, and dropping of charge-
sheet in respect of another allegation on account of termination of
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the petitioner, carries no consequence.
16. Learned Senior Counsel for the petitioner, in his
pleadings as well as his submissions, has also denied the other
allegations, which have been discussed in the impugned orders,.
17. Learned Senior Counsel for the petitioner has relied
upon the judgment of the Hon'ble Apex Court in Risal Singh Vs.
State of Haryana & Ors., reported in (2014) 13 SCC 244,
relevant portion of which reads as under:-
"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 and Anr.
v. Tulsiram Patel : (1985) 3 SCC 398 is apposite. In
the said case the Constitution Bench, while dealing
with the exercise of power Under Article 311(2)(b),
has ruled thus:
"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,
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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."
7. In Jaswant Singh v. State of Punjab and Ors. :
(1991) 1 SCC 362 the Court, while dealing with the
exercise of power as conferred by way of exception
Under Article 311(2)(b) of the Constitution, opined as
follows:
"5. . . . . . Clause (b) of the second proviso to Article
311(2) can be invoked only when the authority is
satisfied from the material placed before him that it is
not reasonably practicable to hold a departmental
enquiry. This is clear from the following observation
at page 270 of Tulsiram case: (SCC p. 504, para 130)
'130. . . . . .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 decision to dispense with the departmental
enquiry cannot, therefore, be rested solely on the ipse
dixit of the concerned authority. When the satisfaction
of the concerned authority is questioned in a court of
law, it is incumbent on those who support the order
to show that the satisfaction is based on certain
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objective facts and is not the outcome of the whim or
caprice of the concerned officer."
After so stating, the two-Judge Bench quashed the
order of dismissal and directed the Appellant to be
reinstated in service forthwith with the monetary
benefits. Be it noted, it was also observed therein that
it would be open to the employer, if so advised,
notwithstanding the lapse of time, to proceed with the
disciplinary proceedings.
8. Recently, in Reena Rani v. State of Haryana :
(2012) 10 SCC 215, after referring to the various
authorities in the field, the Court ruled that when
reasons are not ascribed, the order is vitiated and
accordingly set aside the order of dismissal which had
been concurred with by the Single Judge and directed
for reinstatement in service with all consequential
benefits. It has also been observed therein that the
order passed by this Court would not preclude the
competent authority from taking action against the
Appellant in accordance with law.
9. Tested on the touchstone of the aforesaid
authorities, the irresistible conclusion is that the order
passed by the Superintendent of Police dispensing
with the inquiry is totally unsustainable and is hereby
annulled. As the foundation founders, the order of the
High Court giving the stamp of approval to the
ultimate order without addressing the lis from a
proper perspective is also indefensible and
resultantly, the order of dismissal passed by the
disciplinary authority has to pave the path of
extinction."
18. Learned Senior Counsel for the petitioner has pointed
out the paragraph of judgment rendered by the Constitution
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Bench of the Hon'ble Apex Court in the case of Union of India
and Anr. v. Tulsiram Patel, reported in (1985) 3 SCC 398,
dealing with Article 311 (2)(b) of the Constitution of India, which
has been reproduced in the aforequoted precedent law of Risal
Singh Vs. State of Haryana & Ors. (supra), and which
describes the words "reasonably" and "impracticable" to greater
length.
19. Learned Senior Counsel for the petitioner has harped
upon the requirement of the Disciplinary Authority to record its
satisfaction in writing, as per the Constitutional mandate
enshrined in Article 311(2)(b) as well as the precedent law, that
holding of inquiry was not reasonably practicable,
20. Learned Senior Counsel for the petitioner has also
relied upon the judgment of this Hon'ble Court in Samundar
Singh Rajpurohit Vs. State of Rajasthan & Anr. (S.B.Civil
Writ Petition No.13028/2011 decided on 23.09.2013),
relevant portion of which reads as under:
"8. It is true that by virtue of the proviso (b) to Article
311(2) of the Constitution of India and Rule (ii) of the
CCA Rules, the Disciplinary Authority is empowered to
dismiss the person, who is a member of civil service
of the State or holding a civil post under the State
without recourse to the regular disciplinary inquiry
into the charges of misconduct, if for reasons to be
recorded in writing, it is satisfied that it is not
reasonably practicable to hold such inquiry. But then,
the power conferred as aforesaid cannot be resorted
to as a matter of course and can be invoked only in
exceptional cases. The decision of the Disciplinary
Authority in dispensing with the regular inquiry into
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the charges of misconduct, must be supported by
reasons. The satisfaction of the authority concerned
as contemplated under the said provisions must be
based on objective consideration of the fact situation
and it cannot be based merely on its ipse dixit.
9. In the matter of "Union of India Vs. Tulsi Ram
Patel", AIR 1985 SC 1416, the Hon'ble Supreme Court
while considering the scope of clause (b) of proviso to
Article 311(2), observed:
"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 and
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 total or absolute
impracticability which is reqwuired by clause (b).
What is requisite is that the holding of the inquiry is
not practicable in the opinion of a reasonable man
taking reasonable view of the prevailing situation. It
is not possible to enumerate the cases in which it
would be reasonably practicable to hold the inquiry,
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but some instances by way of illustration may,
however, be given. It would not 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
or whether the government servant by himself or
together with or through others threatens, intimidates
or 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 of 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 general 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 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
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order imposing penalty. The case of Arjun Chaubey v.
Union of India (1984) 3 SCR 302 : (AIR 1984 SC
1356) 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 date
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 judgment of the
matter.
. . . . .xxxxxx. . . . .
132. It is not necessary that a situation which makes
the holding of an inquiry not reasonably practicable
should exist before the disciplinary inquiry is initiated
against a government servant. Such a situation can
also come into existence subsequently during the
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course of an inquiry, for instance, after the service of
a charge-sheet upon the government servant or after
he has filed his written statement thereto or even
after evidence has been held in part. In such a case
also the disciplinary authority would be entitled to
apply clause (b) of the second proviso because the
word "inquiry" in that clause includes part of an
inquiry. It would also not be reasonably practicable to
afford to the government servant an opportunity of
hearing or further hearing, as the case may be, when
at the commencement of the inquiry or pending it the
government servant absconds and cannot be served
or will not participate in the inquiry. In such cases,
the matter must proceed ex parte and on the
materials before the disciplinary authority. Therefore,
even where a part of an inquiry has been held and the
rest is dispensed with under clause (b) or a provision
in the service rules analogous thereto, the
exclusionary words of the second proviso operate in
their full vigour and the government servant cannot
complain that he has been dismissed, removed or
reduced in rank in violation of the safeguards
provided by Article 311(2).
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."
(emphasis added)
10. In Poora Ram's case (supra), wherein the issue
involved was akin to the issue involved in the present
case, this court while relying upon the decision of the
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Hon'ble Supreme Court in Tulsi Ram Patel's case
(supra), observed:
"In view of the law laid down by Hon'ble Supreme
Court in the case of Tulsiram Patel (supra) the
disciplinary authority before exercising special powers
to dispense with the inquiry must satisfy on basis of
objective material that holding of inquiry is not
reasonably practicable and it means that in the
opinion of a reasonable man by taking a reasonable
view of prevailing situation it is not reasonably
practicable to hold the inquiry.
In the instant matter from reading of the order
impugned and from examination of record produced it
is apparent that the disciplinary authority resorted to
the powers prescribed under Rule 19(ii) of the Rules
of 1958 on the ground that regular inquiry as
prescribed under Rule 16 shall be time consuming for
reaching at a conclusion and that will not only effect
the image of police adversely but also shake
confidence of people with police. The Superintendent
of Police while resorting to special procedure
prescribed under Rule 19(ii) of the Rules of 1958 has
not at all satisfied himself that it is reasonably
impracticable to hold an inquiry. The requirement of
Article 311(2)(b) of the Constitution of India and Rule
19(ii) of the Rules of 1958 is that there must be such
circumstances prevailing that may cause reasonably
impracticable for the disciplinary authority to hold
inquiry. The Superintendent of Police, Jodhpur while
passing the order impugned dated 9.2.2006 nowhere
found that holding of inquiry is reasonably
impracticable. The sole anxiety of the disciplinary
authority was to take an immediate decision and for
such immediate action the adherence of regular
procedure being time consuming was dispensed with.
An immediate decision in all matters including the
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disciplinary action against a government servant is
always warranted and desired but not at the cost of
violation of constitutional right of a citizen. As a
matter of fact an expeditious decision by following all
legal measures reflects competence of an officer and
a decision by ignoring legal rights without just reason,
as done in present cases, exposes the tendency of
escapism existing with the officer concerned and that
is always required to be deprecated. The right to have
reasonable opportunity for defend cannot be
sacrificed on the count that it will consume time and
that will effect image of the government. More
strange reason given to dispense with inquiry is the
assumption of proving charge during preliminary
inquiry. The preliminary inquiry is nothing but a
course adopted to get satisfied that prima facie a
charge of misconduct is made out against the
employee and that requires a regular probe. Only on
basis of the finding given in preliminary inquiry the
requirement to afford a reasonable opportunity to
defend cannot be denied to a civil servant. I do not
find any just and valid reason in the present matters
with the disciplinary authority to invoke the powers
under Article 19(ii) of the Rules of 1958, as such, the
order impugned is bad in eye of law."
11. Adverting to the facts of the present case, it is to
be noticed that the disciplinary proceeding was
already initiated against the petitioner by the
Disciplinary Authority vide memorandum of charges
dated 26.11.11 and time sought for by the petitioner
for filing the reply to the charge-sheet was granted.
The order impugned does not disclose the reasons on
the basis of which the Disciplinary Authority arrived at
the conclusion that it is not reasonably practicable to
hold the inquiry against the petitioner. Even, the
reasons available on the official record in no manner
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specify the reasons having nexus with the conclusion
that it is not reasonably practicable to hold the inquiry
against the petitioner. A perusal of the reasons on
record reveals that the Disciplinary Authority has
referred to the past conduct of the petitioner and
proceeded to dispense with the inquiry holding that so
as to check the repetition of such incident and to
maintain the discipline in the police force, it will not
be appropriate to follow the procedure laid down
under the CCA Rules for imposing punishment upon
the delinquent employee. Suffice it to say that there
was no fact situation existing which could form basis
for arriving at the conclusion that it was not
practicable to hold the inquiry against the petitioner
for the charges of misconduct levelled against him.
12. There cannot be any quarrel with the proposition
that the discipline has to be maintained in the police
force and therefore, any act of indiscipline on the part
of the police personnel needs to be taken seriously
and dealt with strictly. But then, for the sake of
maintaining the discipline amongst the police
personnel, for the alleged acts of misdemeanor on the
part of the petitioner, he cannot be condemned
unheard, without there being existence of any
compelling circumstances warranting dispensation of
the inquiry and the prompt disciplinary action.
13. In this view of the discussion above, in the
considered opinion of this court, the order impugned
passed by the Disciplinary Authority dismissing the
petitioner from service invoking the powers under
Rule 19(ii) of the CCA Rules is not sustainable in the
eyes of law and deserves to be quashed."
21. Learned Senior Counsel for the petitioner further relied
upon the judgment rendered by this Hon'ble Court in Dr.
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R.P.Gaur Vs. The State of Rajasthan & Anr. (S.B.Civil Writ
Petition No.2102/2002 decided on 03.03.2009), relevant
portion of which reads as under:-
"It is also pertinent to note that as per sub-rule
(10) of Rule 16 of the Rules of 1958 the entire record
of inquiry proceedings and inquiry report alongwith
tentative decision of the disciplinary authority to
impose penalty of dismissal was remitted to the
Rajasthan Public Service Commission for seeking
advise. The Rajasthan Public Service Commission also
under its letter dated 1.3.2002 simply consented for
proposed penalty but the requirement of consideration
and consultation is conspicuously absent. True it is,
consultation with Commission is not a mandatory
provision but when a matter is referred to it, adequate
and thorough consultation is desirable. The
Commission while giving advise in disciplinary matters
exercises its Constitutional powers as per Article
320(3)(c) of the Constitution of India and such power
must be exercised with all sincerity and caution. In the
instant matter, exercise of the power aforesaid
appears to be quite casual and formal.
In view of whatever said above, the entire
inquiry suffers from fundamental infirmities in
observing mandatory provisions of the Rules of 1958
that ultimately results in gross violation of doctrine of
reasonable opportunity. Such infirmities vitiate entire
process that resulted into imposition of a severe
penalty of dismissal upon the petitioner.
The petition for writ, therefore, deserves
acceptance and as such is allowed. The order
impugned dated 24.4.2002 passed by the disciplinary
authority dismissing the petitioner from service as a
consequent to disciplinary action taken under
memorandum dated 6.5.1997 is quashed. The
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petitioner is declared entitled for receiving all
consequential reliefs and benefits flowing as a result of
quashing the order dated 6.5.1997."
The reason given by learned Senior Counsel for the petitioner to
cite this judgment is that the comments given by the concerned
authority were not at all apprised to the petitioner, and therefore,
reliance upon the same, while imposing the penalty upon the
petitioner, was bad in law.
22. Learned Senior Counsel for the petitioner has also
relied upon the precedent law laid down by the Hon'ble Apex Court
in Sudesh Kumar Vs. State of Haryana & Ors., reported in
(2005) 11 SCC 525, relevant portion of which reads as under:-
"5. It is now established principle of law that an
inquiry under Article 311(2) is a rule and dispensing
with the inquiry is an exception. The authority
dispensing with the inquiry under Article 311(2)(b)
must satisfy for reasons to be recorded that it is not
reasonably practicable to hold an inquiry. A reading of
the termination order by invoking Article 311(2)(b),
as extracted above, would clearly show that no
reasons whatsoever have been assigned as to why it
is not reasonably practicable to hold an inquiry. The
reasons disclosed in the termination order are that
the complainant refused to name the accused out of
fear of harassment; the complainant, being a foreign
national, is likely to leave the country and once he left
the country, it may not be reasonably practicable to
bring him to the inquiry. This is no ground for
dispensing with the inquiry. On the other hand, it is
not disputed that, by order dated 23.12.1999, the
visa of the complainant was extended up to
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22.12.2000. Therefore, there was no difficulty in
securing the presence of Mr.Kenichi Tanaka in the
inquiry.
6. A reasonable opportunity of hearing enshrined in
Article 311(2) of the Constitution would include an
opportunity to defend himself and establish his
innocence by cross-examining the prosecution
witnesses produced against him and by examining the
defence witnesses in his favour, if any. This he can do
only if inquiry is held where he has been informed of
the charges levelled against him. In the instant case,
the mandate of Article 311(2) of the Constitution has
been violated depriving reasonable opportunity of
being heard to the appellant."
Learned Senior Counsel for the petitioner has placed reliance on
this judgment to establish that even in the cases where holding of
the inquiry was impracticable on account of the complainant
leaving the country, the inquiry cannot be done away with on such
a ground.
23. Learned Senior Counsel for the petitioner has further
stated that the criminal case regarding which the petitioner's
conduct has been found to be wanting i.e. Bhanwari Devi's case
was investigated by the Central Bureau of Investigation and the
petitioner has been examined by the Central Bureau of
Investigation as prosecution witness and in the complete
proceedings, nowhere anything adverse has been found to be
made out against the petitioner.
24. Learned Senior Counsel for the petitioner therefore,
tried to make out a case that the opportunity of hearing and a
(20 of 38)
[CW-12858/2015]
proper inquiry has been seriously jeopardized by the invocation of
Rule 19(ii) of the Rules of 1958.
25. On the other hand, Shri S.S.Ladrecha, learned
Additional Advocate General assisted by learned counsel Shri Vikas
Choudhary, Assistant to the Additional Advocate General has
vehemently opposed the aforesaid submissions made on behalf of
the petitioner on the ground that the respondents are a disciplined
force, and therefore, any act of indiscipline on the part of the
police personnel needs to be taken seriously and dealt with
strictly.
26. Learned Additional Advocate General has also shown
from the impugned order of the Appellate Authority that the
allegation has been levelled against the petitioner being in contact
with one of the principal accused in Bhanwari Devi's case i.e.
Sahiram Vishnoi and the telephonic talk of the petitioner for 128
minutes and the petitioner contacted him 14 times.
27. Learned Additional Advocate General has also pointed
out that the petitioner was in contact with the accused persons,
namely, Sohanlal, Sahabuddin, Mahipal Maderna, Indra Vishnoi,
Umesharam etc., and since the petitioner's contact with those
persons has been established, therefore, the misconduct of the
petitioner is a forgone conclusion. Thus, the respondents were
within their domain to have done away with the inquiry under Rule
19(ii) of the Rules of 1958.
28. Learned Additional Advocate General has also pointed
out that clear misconduct of the petitioner in terms of Section 29
of the Rajasthan Police Act, 2007 has been made out and the
(21 of 38)
[CW-12858/2015]
petitioner has been found to be committing gross indiscipline and
gross misconduct.
29. Learned Additional Advocate General has also pointed
out that both the cases of Dinesh Manju and Bhanwari Devi were
very high profile cases, and anything doubtful regarding the
conduct of the petitioner while having contacted the accused
persons in those cases, was a conduct, which, on the face of it,
calls for a very serious punishment and such a person cannot be
retained in the police force.
30. Learned Additional Advocate General has also pointed
out from the impugned order dated 13.12.2011 that the learned
authority has recorded its satisfaction regarding invocation of Rule
19(ii) of the Rules of 1958.
31. The aforementioned impugned order dated 13.12.2011
reads as under:-
"OFFICE OF THE INSPECTOR GENERAL OF POLICE,
JODHPUR RANGE, JODHPUR
No.4492-4497 Dated 13.12.2011
ORDER
Whereas it has been brought to the notice of the undersigned that the conduct of Shri Lakha Ram s/o Sh.Simartha Ram, Sub Inspector of Police District Jaisalmer in unbecoming of that of a public Servant and his further retention in public service is undesirable and not in public interest.
And Whereas the undersigned is satisfied that it is not reasonable practicable to follow the procedure laid down for departmental enquiry under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958.
Now, therefore, in exercise of the powers conferred rule 19(ii) of the said Rules, the undersigned hereby dismisses from service the said Shri Lakha Ram; Sub Inspector, with immediate effect.
(22 of 38) [CW-12858/2015] E.O.B. No.149/2011 sd/-
(Umesh Mishra) Inspector General of Police, Jodhpur Range, Jodhpur"
32. Learned Additional Advocate General has further pointed out that the Appellate Authority has also recorded its satisfaction regarding invocation of Rule 19(ii) of the Rules of 1958.
33. The finding of the Appellate Authority recorded in its order dated 14.05.2015 reads as under:-
^^vihykFkhZ }kjk viuh vihy esa mBk;s x;s mDr fcUnqvksa ds lEcU/k esa miyC/k vfHkys[k ds vk/kkj ij ;g ik;k fd& vihykFkhZ ds fo:) fu;e 16 lhlh, esa dk;Zokgh izkjEHk gh ugha dh xbZ] vfirq fnus'k ekatw gR;kdk.M esa 'kkfey vijkf/k;ksa esa feyhHkxr gksus ckcr izkFkfed tkap esa vfrfjDr iqfyl v/kh{kd QykSnh] tks/kiqj xzkeh.k us yk[kkjke mi fujh{kd ds fo:) vkjksi izekf.kr ekurs gq, mudk vkpj.k iqfyl vkpkj lafgrk ds izfrdwy gksus ds lkFk lkFk jktLFkku iqfyl vf/kfu;e 2007 dh /kkjk 39 esa of.kZr iqfyl vf/kdkfj;ksa ds d`R; drZO; ,oa mRrjnkf;Roksa ds foifjr ik;k x;k ,oa mDr d`R; vuq'kklughurk ds lkFk lkFk nwjkpj.k dh Js.kh esa vkrk gSA pwafd mDr izdj.k esa mi fujh{kd ds fo:) fu;e 16 lhlh, ds rgr foHkkxh; tkap izkjaHk dh tkrh] ysfdu blls iwoZ gh mDr mi fujh{kd dks vU; vkjksiksa ds dkj.k egkfujh{kd iqfyl] tks/kiqj jsat] tks/kiqj }kjk n.Mkns'k Øekad 4492&4497 fnukad 13-12-
2011 }kjk lsok ls c[kkZLr fd;k tk pqdk FkkA vr% ,slh ifjfLFkfr;ksa esa mDr tkap dks egkfujh{k.kd iqfyl] tks/kiqj jst tks/kiqj ds vkns'k dzekad 398&405 fnukad 23-04-2012 }kjk mlh Lvst ij lekIr fd;k x;kA bl izdkj vihykFkhZ ds fo:) gLrxr izdj.k esa fu;e 16 lhlh, esa dk;Zokgh izkjaHk gh ugha dh xbZA vihykFkhZ Lo;a dh mi/kkj.kk gS fd 16 lhlh, dh tkap dh tkosxhA fu;e 33 ,oa 34 ds vUrxZr fjO;wq dk tgka rd laca/k gS og fu;e 16 esa ikfjr n.Mkns'k (23 of 38) [CW-12858/2015] ds fo:) gksrh gS tcfd vihykFkhZ ds fo:) uk gh rks 16 lhlh, dh dk;Zokgh dh xbZ gS vkSj uk gh 16 lhlh, esa n.Mkns'k ikfjr fd;k gSA blfy, vuq'kklfud vf/kdkjh us fdlh izdkj dksbZ fjO;w@fjohtu ugaha fd;k gSA mijksDr fcUnw la[;k 2 ,oa 3 ds laca/k esa ekuuh; mPpre U;k;ky;ksa ds fu.kZ; esa ;g vfHkfu/kkZfjr fd;k tk pqdk gS fd jktLFkku flfoy lsok ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;e 1958 ds fu;e 19¼2½ ds rgr lsokeqfDr ds dkj.k fyf[kr esa gksus pkfg,] fdUrq lsokeqfDr ds dkj.k lacaf/kr dks lalwfpr fd;s tkuk vko';d ugha gS ,oa uk gh dkj.k crkvksa uksfVl dh vko';drk gSA gLrxr ekeyksa esa vuq'kklfud vf/kdkjh@fu;qfDr vf/kdkjh us foLr`r dkj.k vfHkfyf[kr fd;s gSaA bUgsa ;fn fdlh izdj.k ij U;k;ky; vis{kk djrk gS rks izLrqr fd;s tk ldrs gSaA bl izdkj egkfujh{kd iqfyl] tks/kiqj jsat tks/kiqj }kjk ikfjr vkns'k dzekad 4492&99 fnukad 13-12-2011 Jh yk[kkjke rRdkyhu Fkkukf/kdkjh iqfyl Fkkuk vksfl;ka }kjk vius inh; drZO;ksa dh vogsyuk djrs gq, vkijkf/kd xfrfof/k;ksa esa lafyIirk izekf.kr gksus ds mijkar fd;k x;k gSA mDr xaHkhj vk{ksiksa dh izd`fr ds vuqlkj O;ogkfjd :i ls bl laca/k esa vkSj tkap djus dh vko';drk ,oa lkFkZdrk ugha gS rFkk mijksDr of.kZr rF;ksa ds ifjis{; esa gh mDr fu.kZ; vkns'k ikfjr fd;k x;k gS] tks iw.kZr;k mfpr gSA vihykFkhZ }kjk izsfk"Ar vihy esa mDr lEizs{k.k ds ifjis{; esa vuq'kklfud vf/kdkjh egkfujh{kd iqfyl] tks/kiqj jsat ds }kjk fn;s x;s n.M esa gLr{ksi djus dk dksbZ ;qfDr;qDr vk/kkj ,oa vkSfpR; ugha ikrk gwaA vr% vihykFkhZ dks vuq'kklfud vf/kdkjh egkfujh{kd iqfyl] tks/kiqj jsat tks/kiqj }kjk fn;k x;k n.Mkns'k dzekad 4492&4497 fnuakd 13-12-2011 dks ;Fkkor j[krs gq, izLrqr vihy dks vLohdkj dh tkrh gSA bZvkschua 32@2012 ,lMh@& ¼eukst HkV~V½ egkfuns'kd iqfyl (24 of 38) [CW-12858/2015] jktLFkku] t;iqjA "
34. Learned Additional Advocate General has relied upon the precedent law laid down by the Hon'ble Apex Court in Ashok Kumar Sonkar Vs. Union of India & Ors., reported in (2007) 4 SCC 54, relevant portion of which reads as under:
"18. Yet again in Shankar K. Mandal and Ors. v. State of Bihar and Ors. : [2003]3SCR796 , this Court held that the following principles could be culled out from the aforementioned decisions:
(1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.
(2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications.
(3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
19. In M.A. Murthy v. State of Karnataka and Ors. :
[2003]264ITR1(SC) , a contention was made that Ashok Kumar-II (supra) was to operative prospectively or not. The said contention was rejected, stating:
...It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of (25 of 38) [CW-12858/2015] binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma case No. II. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside.
20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application.
21. Recently, this Court in Kendriya Vidyalaya Sangathan and Ors. v. Sajal Kumar Roy and Ors. :
(2006)8SCC671 , opined that the conditions laid down for exercising the power of relaxation must be scrupulously followed, stating:
...The appointing authorities are required to apply their (26 of 38) [CW-12858/2015] mind while exercising their discretionary jurisdiction to relax the age limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof....
22. Therein, this Court noticed the decision in Food Corporation of India and Ors. v. Bhanu Lodh and Ors. :
AIR2005SC2775 , wherein, inter alia, it was held:
...The power of relaxation is intended to be used in marginal cases where exceptionally qualified candidates are available. We do not think that they are intended as an "open sesame" for all and sundry. The wholesale go- by given to the Regulations, and the manner in which the recruitment process was being done, was very much reviewable as a policy directive, in exercise of the power of the Central Government under Section 6(2) of the Act....
23. We, therefore, see no infirmity in the judgment of the High Court, in this behalf.
24. The power of the Visitor is not only confined under Sub-section (2) of Section 5, but also under Sub-
section (7) of Section 5 of the Act. Even otherwise Sub-section (2) of Section 5 cannot be construed narrowly. The power of the Visitor to cause an inquiry to be made is in respect of any matter connected with the University. Sub-section (7) of Section 5 provides for a power in the Visitor without prejudice to the provision contained in Sub-sections (2) to (6) of (27 of 38) [CW-12858/2015] Section 5 of the Act. An express power, thus, has been conferred upon the Visitor to annul any proceeding of the University. The only condition attached thereto is that the same should found to be not in conformity with the statutes or ordinances. The selection process carried out by the Selection Committee would indisputably be a proceeding under the Act. Section 17 provides for a statute making power, including Clause
(l), which reads as under:
"17.(1)(l) the classification and the manner of appointment of teachers in the University and the colleges;"
25. Submission of Mr. Shekhar that the Visitor committed an error in passing the impugned judgment as 'any irregularity in the procedure by any authority shall not render the same invalid, unless the same affects the merits of the case' is stated to be rejected. Appointment of a teacher must conform to the constitutional scheme as adumbrated under Articles 14 and 16 of the Constitution of India and the terms of the Act or the statute or ordinances governing the field. Any violation of the provisions thereof would entitle the Visitor to exercise his jurisdiction under Sub-section (7) of Section 6. It is also beyond any cavil that in exercising the said power, the statutory provisions interpreted by this Court must be followed.
26. This bring us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillar of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be (28 of 38) [CW-12858/2015] complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.
27. It is also, however, well-settled that it cannot be put any straight jacket formula. It may not be in a given case applied unless a prejudice is shown. It is not necessary where it would be a futile exercise.
28. A court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.
29. In Aligarh Muslim University and Ors. v. Mansoor Ali Khan : AIR2000SC2783 , the law is stated in the following terms:
"25. The useless formality theory, it must be noted, is an exception. Apart from the class of cases of admitted or indisputable facts leading only to one conclusion referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases (29 of 38) [CW-12858/2015] and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
30. In Karnataka State Road Transport Corporation and Anr. v. S.G. Kotturappa and Anr. : (2005)IILLJ161SC , this Court held:
"The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given."
31. In Punjab National Bank and Ors. v. Manjeet Singh and Anr. : AIR2007SC262 , this Court opined:
(30 of 38) [CW-12858/2015] "The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice."
32. In P.D. Agrawal v. State Bank of India and Ors. :
(2006) 8 SCC 776, this Court observed:
"30. The principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change."
It was further observed (SCC pp.793-94, para 39):
"39. Decision of this Court in S.L. Kapoor v. Jagmohan and Ors. : [1981]1SCR746 , whereupon Mr. Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala and Ors. v. S.K. Sharma : (1996)IILLJ296SC and Rajendra Singh v. State of M.P. :
AIR1996SC2736 , the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alteram partem, a clear distinction has been laid down (31 of 38) [CW-12858/2015] between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi v. Chairman, J. & K. Bank Ltd. and Ors. : (2005)IILLJ1034SC and State of U.P. v. Neeraj Awasthi and Ors. : (2006)ILLJ721SC . See also Mohd. Sartaj v.
State of U.P. : AIR2006SC3492.
The principles of equity in a case of this nature, in our opinion, will have no role to play. Sympathy, as is well-
known, should not be misplaced."
35. Learned Additional Advocate General tried to impress upon this Court that though audi alteram partem is an established principle, but there is clear distinction between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. As per the learned Additional Advocate General, in the present fact situation, the said principle does not require the impugned orders to be vitiated.
36. Learned Additional Advocate General has also relied upon the judgment of the Hon'ble Apex Court in State of Punjab & Ors. Vs. Ram Singh Ex. Constable, reported in 1992 AIR 2188, relevant portion of which reads as under:
"The next question is whether the single act of heavy drinking of alcohol by the respondent while on duty is a gravest misconduct. We have absolutely no doubt that the respondent, being a gunman having (32 of 38) [CW-12858/2015] service revolver in his possession, it is obvious that he was on duty; while on duty he drunk alcohol heavily and became uncontrollable. Taking to drink by itself may not be a misconduct. Out of office hours one may take to drink and remain in the house. But being on duty, the disciplined service like police service, the personnel shall maintain discipline and shall not resort to drink or be in a drunken state while on duty. The fact is that the respondent after having had heavy drink, was seen roaming or wandering in the market with service revolver. When he was sent to the doctor for medical examination he abused the medical officer on duty which shows his depravity or delinquency due to his drinking habit. Thus it would constitute gravest misconduct warranting dismissal from service. The authorities, therefore, were justified in imposing the penalty of dismissal. The Courts below failed to properly appreciate the legal incidence and the effect of the rules.
The ratio relied on by learned counsel for the respondent in Gurdev Singh v. State of Haryana (1976) 2 SLR 442, Rattan Lal Ex-Constable v. State of Haryana (1983) 2 SLR 159 and Sukhdev Singh v.
State of Punjab (1983) 2 SLR 645 turned on their peculiar facts and would render little assistance to the respondent. We approve the ratio in Bhagwat Parshad v. Inspector General of Police, Punjab : AIR 1970 Punj 81 as correct law.
The appeal is accordingly allowed. The decree of the Courts below is set aside and the dismissal order is restored. But in the circumstances, parties are directed to bear their own costs throughout."
37. Learned Additional Advocate General has also cited the judgment rendered by the Hon'ble Apex Court in Posts and (33 of 38) [CW-12858/2015] Telegraphs Board & Ors. Vs. C.S.N. Murthy, reported in (1992) 2 SCC 317, relevant portion of which reads as under:
"3. The modalities for the invocation of fundamental Rule 56(j) have been examined by a number of decisions of this Court. All these judgments have been reviewed and the legal principles applicable thereto have been summarised by B.P. Jeevan Reddy J., speaking for the Supreme Court, in Baikuntha Nath Das v. Chief District Medical Officer, Baripada :
(1992)ILLJ784SC . These principles have been set out in paragraph 32 of the judgment, which can be extracted here for purposes of convenient reference:
32. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as a appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary-in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as (34 of 38) [CW-12858/2015] the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on showing that, while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above."
38. Learned Additional Advocate General has also placed reliance on the precedent law laid down by the Hon'ble Apex Court in Satyavir Singh & Ors. Vs. Union of India & Ors., reported in 1986 AIR 555, relevant portion of which reads as under:
"(34) The principles of natural justice must be confined within their proper limits and not allowed to run wild. The concept of natural justice is a magnificent thoroughbred on which this nation gallops forwards towards its proclaimed and destined goal of "JUSTICE, social, economic and political". This thoroughbred must not be allowed to turn into a wild and unruly horse, careering off where it lists, unsaddling its rider, and bursting into fields where the (35 of 38) [CW-12858/2015] sign "no pasaran" is put up.
VI. Service Rules and Acts (35) Article 309 is expressly made subject to the provisions of the Constitution. Rules made under the proviso to Article 309 Acts referable to that Article, and rules made under such Acts are, therefore, subject both to Article 310(1) as also to Article 311. If any such rule or Act impinges upon or restricts the operation of the pleasure doctrine embodied in Article 310(1) except as expressly provided in the Constitution or restricts or takes away the safeguards provided to civil servants by Clauses (1) and (2) of Article 311, it would be void and unconstitutional as contravening the provisions of Article 310(1) or Clause (1) or Clause (2) of Article 311, as the case may be any such Act or rule which provides for dismissal, removal or reduction in rank of a civil servant without holding an inquiry as contemplated by Clause (2) of Article 311 except in the three crises specified in the second proviso to that Clause would, therefore, be unconstitutional and void as contravening Article 311(2).
(36) In the same way, for an Act or a rule to provide that in a case where the second proviso to Article 311(2) applies, any of the safeguards excluded by that proviso will be available to a civil servant would be void and unconstitutional as impinging upon the pleasure of the President or the Governor, as the case may be."
39. Learned Additional Advocate General has further placed before this Court a part of the record, which has been examined by this Court.
40. The record indicates serious misconduct on the part of the petitioner, but the record nowhere reflects any satisfaction (36 of 38) [CW-12858/2015] being recorded by the disciplinary authority regarding reasonable impracticability of holding the inquiry.
41. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent laws cited at the Bar, this Court finds that in the impugned order dated 13.12.2011 passed by the Disciplinary Authority, and which has been reproduced hereinabove, the learned authority has not said a single word as to why the inquiry is not reasonably practicable.
Furthermore, the finding of the Appellate Authority recorded in its order dated 14.05.2015, which has also been reproduced hereinabove, does not speak a word about the satisfaction as to how the inquiry was not reasonably practicable.
42. The only place where the discussion can be seen is in order dated 14.05.2015, wherein there is reproduction of the comments made by the Disciplinary Authority and comment (IV), which is to the effect that the petitioner's conduct is so bad that the respondents are entitled to invoke Rule 19(ii) of the Rules of 1958.
43. This Court further finds that the proposition is not whether what was the conduct and how far the petitioner was involved in those activities which have been attributed to him. But certainly, the constitutional mandate of Article 311(2)(b) required the respondents to record their satisfaction in writing as to why holding of inquiry was not reasonably practicable. This Court also finds that the Constitution Bench of the Hon'ble Apex Court in Union of India and Anr. v. Tulsiram Patel (supra), which has been reproduced in the aforequoted portion of the judgment in (37 of 38) [CW-12858/2015] Risal Singh Vs. State of Haryana & Ors. (supra), clearly lays down that the condition precedent for invoking Article 311(2)(b) of the Constitution of India is the satisfaction of the Disciplinary Authority that it is not reasonably practicable to hold the inquiry contemplated by Article 311(2) of the Constitution of India.
44. The detailed meaning of the words "reasonably impracticable" has been dealt with by the Constitution Bench of the Hon'ble Apex Court in the aforementioned judgment, and it has been held that whether it is practicable to hold the inquiry or not was to be judged in the context of whether it was reasonably practicable to do so.
45. The examples have been given in the precedent law that fear of extreme intimidation, if caused by the person upon the material witness, could be one of such reasons.
46. It cannot be disputed that the police force is a disciplined force and the respondents ought to be firm in imposing discipline amongst its personnel, but simultaneously the constitutional and statutory rigors provide for certain safeguards for all the civil servants / government servants, and in normal course, the Disciplinary Authority is not expected to dispense with the inquiry lightly or arbitrarily or merely in order to avoid holding of an inquiry.
47. This Court has also carefully gone through the record and both the impugned orders, and finds that nowhere the Disciplinary Authority or the Appellate Authority has recorded its satisfaction in writing so as to invoke powers under Rule 19(ii) of the Rules of 1958 and thus, the impugned orders suffer from basic (38 of 38) [CW-12858/2015] infirmity of violating Article 311(2)(b) of the Constitution of India as well as Rule 19(ii) of the Rules of 1958.
48. In light of the aforesaid discussion, the present writ petition is allowed and the impugned orders dated 13.12.2011 and 14.05.2015 are quashed and set aside. However, the Disciplinary Authority may proceed with the inquiry, if the respondents so decides by giving proper charge-sheet and holding proper statutory inquiry in accordance with the Rules of 1958. The respondents shall also be at liberty to put the petitioner under suspension during pendency of the disciplinary proceedings, in case the respondents decides to do so. However, it shall be open for the petitioner to claim all the consequential benefits strictly in accordance with law. No order as to costs.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-