Amitabh Pratap Singh vs State of M.P.

S.K. Gangele, J.—The petitioner has filed this writ petition against the order of dismissal from service dated 22.7.2010, (Ann. P-4) and against the appellate orders, Annexure P-8 and P-10 by which the appeal and the second appeal filed by the petitioner were dismissed. The petitioner was appointed as Sub Inspector in the year of 1999. When, he was posted at Police Control Room, Burhanpur in September 2009, a charge sheet was issued to him. By the aforesaid charge sheet, the charges were levelled against the petitioner that he had received an amount of Rs.98,000/- from one Vikram Singh Tomar and when Vikram Singh Tomar had demanded the aforesaid amount, the petitioner had returned back an amount of Rs.40,000/- but he did not return an amount of Rs.58,000/- to him. The enquiry officer was appointed.

As per return filed by the respondents, the petitioner was absent before the enquiry officer. During enquiry, it was noticed that three criminal cases vide Crime No. 146/09 at P.S. Palasia for commission of offence punishable under Section 326/34 of IPC and Crime No. 146/09 for commission of offence punishable under Section 307/34 and another offence for commission of offence punishable under Section 307 of IPC were registered against the petitioner.

The petitioner was absent and he was declared absconder. The Superintendent of Police had declared a reward of Rs.1000/- against the petitioner. The petitioner was absent during the enquiry, hence, the Deputy Inspector General of Police, Nimar Range, district Khargone in exercise of powers under Article 311 (2) (b) of the Constitution of India passed the order of dismissal from service against the petitioner. Against the aforesaid order, the petitioner preferred an appeal and second appeal. Both have been dismissed.

The respondent - State in its reply pleaded that the petitioner was an absconder. A reward of Rs.1000/- was issued against him, it was not possible to conduct a departmental enquiry against the petitioner, hence, the competent authority in exercise of powers under Article 311 (2) (b) of the Constitution of India passed the order against the petitioner. It is in accordance with law.

By way of an application, the petitioner pleaded that subsequently he has been acquitted in all criminal cases. Copies of the judgments passed by the competent courts in regard to acquittal of the petitioner have been placed on record.

The question for consideration before this court is that whether in exercise of powers under Article 311 (2) (b) of the Constitution of India, the dismissal of services of the petitioner is proper or not.

Learned counsel appearing on behalf of the petitioner has contended that there is no provision of dismissal of an employee without conducting the departmental enquiry in exercise of powers under Article 311 (2) (b) of the Constitution of India in Police Regulations. Apart from this, the learned counsel for the petitioner has further submitted that the powers exercised by the authority under Article 311 (2) (b) of the Constitution of India is contrary to law.

Learned counsel for the State has submitted that looking to the conduct of the petitioner and the fact that the petitioner was absconding and that the criminal cases were registered against the petitioner, the authority has rightly exercised the powers under Article 311 (2) (b) of the Constitution of India.

The admitted facts of the case are that the departmental enquiry was initiated against the petitioner. The enquiry officer was appointed. The petitioner did not appear before the Enquiry Officer. The disciplinary authority noticed that three criminal cases were registered against the petitioner and the petitioner was declared absconder and a reward of Rs.1000/- was declared against the petitioner. Hence, the competent authority in exercise of powers under Article 311 (2) (b) of the Constitution of India passed the order of dismissal from service of the petitioner.

I have perused the impugned order Annexure P-4. In the aforesaid order, it has nowhere mentioned by the disciplinary authority that it is not possible to hold the inquiry against the petitioner. If the petitioner was absent in the enquiry proceedings, then an ex parte proceedings could be conducted against him. The disciplinary authority also observed in the order that the petitioner was responsible for misusing of post and he was found involved in criminal activities. He was also an undisciplined employee. Thus, on these findings competent authority passed the order of dismissal from service of the petitioner. The order has not been passed simply on the ground that it was not possible to hold the departmental enquiry against the petitioner.

The Apex Court in judgment Rishal Singh v. State of Haryana and others reported in 2014 (13) SCC 244 has considered the earlier judgment of the Constitution Bench judgment of the Apex passed in Union of India and Anr. v. Tulsiram Patel and held 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 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 practise, 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 practise or perform : capable of being put into practise, 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."

Hon''ble Apex Court has specifically held that it is obligatory on the part of the authority to record the finding that the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. In the impugned order there is no finding and reasoning to support the findings that the inquiry was not practicable in the fact situation of the case.

Learned Single Bench of this court has after relying on the judgment of this court passed in W.P. No. 6535 of 2014 (s) Pawan Pandey v. State of M.P. that if the services of an employee is governed under the M.P. Police Regulation, there is no power with the competent authority to dismiss an employee from service in exercise of powers under Articles 311 (2) (b) of the Constitution of India. Be as it may, in the present case, in my opinion, exercise of powers by the competent authority under Article 311 (2) of the Constitution of India is against the law. Hence, the impugned order of dismissal of service of the petitioner is contrary to law. Consequently, this petition is disposed of with the following directions that the order of dismissal from service, (Ann. P-4), the order of appellate authority dated 22.2.2011 (Ann. P-8) dismissing the appeal and the order of DGP, the order dated 14.3.2012, (Ann. P-10) are hereby quashed and set aside. The department is directed to conduct enquiry against the petitioner for the misconduct alleged against him.

Because the order of dismissal has been set aside on the technical ground and the fact that the charges against the petitioner are serious in nature, in my opinion, the petitioner would not be eligible for the relief of reinstatement in service. The departmental authority shall complete the departmental enquiry against the petitioner and the reinstatement of the petitioner would be based on the outcome of the departmental enquiry.

No order as to costs.