Sunil Ambwani - (1.) HEARD Shri Vijay Gautam, learned counsel for the petitioner. Learned standing counsel appears for the respondents.
(2.) THE petitioner a constable in Civil Police was dismissed from service by the Senior Superintendent of Police, Varanasi on July 3, 2008, under Rule 8 (2) (b) of the U. P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991, in short the "Rules of 1991", without conducting departmental enquiry on the ground that on the charges levelled against him, it was not reasonably practicable to hold a departmental enquiry against him. The petitioner did not file an appeal against the order and has directly approached this Court for setting aside the order on the ground that the facts and circumstances, in which the petitioner is facing a criminal trial under Section 7/13 of the Prevention of Corruption Act for being caught for accepting bribe red handed, would not be a ground on which it can be said that it is not reasonably practicable to hold a departmental enquiry. Shri Vijay Gautam, learned counsel for the petitioner submits that the order of dismissal from service is entirely arbitrary, discriminatory and has been passed in violation of the principles of natural justice. No enquiry was conducted before passing the order and that the recital in the order about the failure of the petitioner to discharge his duties and the holding of enquiry in a serious matter of corruption is neither appropriate nor proper. The alleged involvement of any Government servant in corruption, is not a ground on which the departmental enquiry can be dispensed with. In the supplementary-affidavit of the petitioner filed on 14.11.2008 it is stated that the reasons recorded by the disciplinary authority are not logical and rational. In a matter of corruption, even if the petitioner was, alleged to be caught red handed, a departmental enquiry was necessary to establish the charges. The counsel for the petitioner states that it is mandatory requirement of law under Rule 8 (2) (b) of the Rules of 1991 and the second proviso to Clause (2) of Article 311 of the Constitution of India to record reasons as to why it is not reasonably practicable to hold a departmental enquiry. The recital of the words in the Rule is not sufficient to discharge the burden for recording and establishing the grounds that it is not reasonably practicable to hold a departmental enquiry.
(3.) IT is contended that in Union of India v. Tulsiram Patel, AIR 1985 SC 1416, the Constitution Bench of the Supreme Court held in paragraphs 130, 131, 132, 133, 134, 135, 136, 136A and 137 as follows : 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 is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. 'It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the Government servant, particularly through or together, with his associates, so terrorizes, threatens or intimidate witnesses who are going to 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 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 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, (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 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. 131. IT was submitted that where a delinquent Government servant so terrorizes the disciplinary authority that neither, that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent Government servant either by himself or alongwith or through others makes the holding of an inquiry not reasonably practicable. 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 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 led 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. 134. IT is obvious' that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore find a place in the final order. It would be usual, to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances. 135. IT was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned Government servant to enable him to challenge the validity of the reasons in a departmental appeal or before a court of law and that failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the Government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would however, be better for the disciplinary authority to communicate to the Government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the Government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the Government servant and the matter comes to the Court, the Court can direct the reasons to be produced, and furnished to the Government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons. 136. IT was next submitted that though clause (b) of the second proviso excludes an inquiry into the charges made against a Government servant, it does not exclude an inquiry preceding it, namely. an inquiry into whether the disciplinary inquiry should be dispensed with or not, and that in such a preliminary inquiry the Government servant should be given an opportunity of a hearing by issuing to him a notice to show cause why the inquiry should not be dispensed with so as to enable him to satisfy the disciplinary authority that it would be reasonably practicable to hold the inquiry. This argument is illogical and is a contradiction in terms. If an inquiry into the charges against a Government servant is not reasonably practicable, it stands to reason that an inquiry into the question whether the disciplinary inquiry should be dispensed with or not is equally not reasonably practicable. 136A. A Government servant who has been dismissed, removed or reduced in rank by applying to his case clause (b) or an-analogous provision of a service rule is not wholly without a remedy. As pointed out earlier while dealing with the various service rules, he can claim in a departmental appeal or revision that an inquiry be held with respect to the charges on which the penalty of dismissal, removal or reduction in rank has been imposed upon him unless the same or a similar situation prevails at the time of hearing of the appeal or revision application. If the same situation is continuing or a similar situation arises, it would not then be reasonably practicable to hold an inquiry at the time of the hearing of the appeal or revision. Though in such a case as the Government servant if dismissed or removed from service, is not continuing in service and it reduced in rank, is continuing in service, with such reduced rank, no prejudice could be caused to the Government or the Department of the hearing of an appeal or revision application, as the case may be, is postponed for a reasonable time. 137. 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 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 older 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 is 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." Shri Vijay Gautam has also relied upon State of U. P. and others v. Chandrika Prasad, 2006 (1) ESC 374 (All) (DB), in which this Court considered the provisions of Section 8 (2) (b) of the Rules of 1991 and held that there must be valid reasons given to dispense with the departmental enquiry.;