Banwari Lal vs State of Rajasthan

Mohammad Rafiq, J.—This writ petition has been jointly filed by three petitioners, who are all aggrieved by the common order dated 12/5/2006 by which they have been removed from service. Petitioner No. 1 was appointed on the post of Sub Inspector on 12/12/1994. Petitioner No. 2 was appointed on the post of Constable on 20/9/1989 and petitioner No. 3 was appointed on the post of Constable on 17/1/1995. Their appointment orders are on record respectively as Ann. 1, Ann. 2 and Ann. 3. They were on duty in the midnight of 15/16, April 2006 with Chetak Party No. 8 near Jawahar Nagar bye-pass (tila No. 7) at Jaipur. The then Superintendent of Police (Traffic) came there on sudden inspection. According to the petitioners, a truck halted there to enquire from them about the way to Ajmer. One of the members of the party guided him to the said way. Superintendent of Police (Traffic) immediately called the police party in the said Chetak No. 8 and enquired as to what he was talking to the driver. According to the petitioners, Superintendent of Police (Traffic) made enquiries from the driver of the truck and was satisfied that he was asking the way to Ajmer, but as per respondents, the Superintendent of Police (Traffic) on enquiry from the driver came to know that petitioners No. 2 and 3 Vijay Kumar and Rajendra Singh were demanding a sum of Rs. 100/- from him. The petitioner No. 1 Banwari Lal-Sub Inspector was the incharge of Chetak Party No. 8 and therefore he was also vicariously held responsible for the act of other two Constables. Superintendent of Police (Traffic) reported the matter to the Inspector General of Police, Jaipur 1st, who vide its order dated 12/5/2006 while invoking Rule 19(2) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, the "Rules of 1958") dispensed with the departmental enquiry under Rule 16 of the Rules of 1958 and removed all the three petitioners from service.

Shri Sandeep Bhagwati, learned counsel for petitioners has argued that the order of removal has been passed only on the basis of preliminary enquiry in which petitioners fully explained their conduct that they were not guilty of demanding any illegal gratification. It is wrongly alleged that petitioners No. 2 and 3 demanded Rs. 100/- from the driver on the aforesaid route. The statement of the driver was not recorded. The Superintendent of Police (Traffic) himself permitted the driver to go away. Reason for dispensing with the enquiry under Rule 16 of the Rules of 1958 by invoking Rule 19(2) thereof is hardly convincing. All that has been stated is that since name, address of the driver and the registration number of the truck was not obtained and therefore now it would not be possible to procure all these evidence., Even if the driver is produced, he might not strict to the allegation. It was quite possible that he might be won over by the delinquents. Learned counsel submitted that the law on the question of dispensing with the departmental enquiry is well settled. None of these three reasons assigned by the disciplinary authority can justify'' invocation of Rule 19(2) of the Rules of 1958 to dispense with the full fledged departmental enquiry. The impugned order has been passed in a most arbitrary manner and in colourable exercise of power. Although the petitioners were made to face the preliminary enquiry but no notice was ever served upon them before removal from service. They were not provided with any opportunity of hearing on proposed action prior to passing of the impugned-order. The impugned order of removal from service thus is wholly illegal and does not qualify the requirements of clause (b) of second proviso to Article 311(2) or for that matter Rule 19(2) of the Rules of 1958.

Learned counsel for the petitioners in support of his arguments has relied on the judgments of Supreme Court in Reena Rani Vs. State of Haryana and Others, and Tarsem Singh and Others Vs. State of Punjab, and judgments of co-ordinate bench of this Court in Chandra Mohan Sharma vs. State of Rajasthan & Anr., (SBCWP No. 5637/2006) decided on 15/11/2011, Pooran Mal Yadav vs. State of Rajasthan & Anr., (SBCWP No. 5446/2006) decided on 27/4/2012 and Mahendra Singh vs. State of Rajasthan & Ors., (SBCWP No. 15794/2009 decided on 24/5/2013. It is therefore prayed that the writ petition be allowed.

Per contra, Shri B.S. Rajawat, learned Deputy Government Counsel opposed the writ petition and argued that the disciplinary authority was in the facts of the present case perfectly justified in invoking provisions of Rule 19(2) of the Rules of 1958 as he was satisfied that it was not reasonably practical to hold the regular departmental enquiry in prescribed manner. The disciplinary authority has substantiated his such satisfaction with reasons. Learned Deputy Government Counsel has in this connection referred to the impugned order dated 12/5/2006 to bring home the argument. It is argued that power to dispense with the enquiry has been exercised by the disciplinary authority in public interest and in the interest of fair police administration. He has exercised such power in bonafide way. There is no allegation by the petitioners that disciplinary authority was having any malice against them. There is substantial material on record justifying formation of such opinion by the disciplinary authority. He has acted on the report by the Superintendent of Police (Traffic), a senior IPS Officer, who verified the complaint against petitioners by personally making sudden inspection of the place, where they were deputed to discharge their duties. The Superintendent of Police also informed that petitioners were not wearing proper uniforms and both constables tendered their apology at the site and accepted their guilt before the Superintendent of Police. Petitioners were found acting contrary to their oath and diligence. By this act of theirs, the image of the police has been seriously been tarnished in general public. Therefore, there was no option left with him but to dispense with the enquiry and pass the removal order holding the enquiry not practically possible. Learned counsel for the respondent in support of his arguments relied on the judgment of Supreme Court in Satyavir Singh and Others Vs. Union of India (UOI) and Others, It is also argued that the petitioners have got alternate remedy of departmental appeal under Rule 22 before the disciplinary authority and review/revision before His Excellency, the Governor of Rajasthan under Rule 34 of the Rules of 1958. He therefore prayed that the writ petition be dismissed either on merits or as not maintainable.

Learned counsel for the petitioners rejoined and submitted that one of the petitioners namely; petitioner No. 3-Rajendra Singh filed appeal before the appellate authority i.e. Director General of Police, who vide its order dated 15/4/2007 dismissed the appeal concurring with the conclusions recorded by the disciplinary authority. Therefore, even if other two petitioners have not filed appeal, this would not be an impediment for this Court to entertain and decide the writ petition on merits particularly when it has remained pending before this Court for last more than seven years.

I have given my anxious consideration to the rival submissions and perused the material available on record.

Before embarking on the examination on merits of the case, it would be instructive to reproduce the relevant provisions of Rule 19 of the Rules of 1958, which inter-alia reads as under:--

Special procedure in certain cases.--Notwithstanding anything contained in rules 16, 17 and 18,

(i) where a penalty is imposed on a Government Servant on the ground of conduct which has led to him conviction on a criminal charge; or

(ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or

(iii) Where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit.

Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.

Note.--If any question arises whether it is reasonably practicable to give any person a opportunity of showing cause under clause (2) of Article 311 of the Constitution, the decision thereon of the authority empowered to dismiss, or remove such person or to reduce him in rank, as the case may be, shall be subject to only one appeal to the next higher authority.

The aforesaid rule is in fact in para material with the provisions contained in Article 311 of the Constitution of India more particularly sub-clause (2) of Article 311 thereof, which reads as under:-

Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.--No such person as aforesaid shall be dismissed of removed or reduced in rank except after an enquiry 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 he 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 ins 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.

This Court has to therefore examine whether reasons, which the disciplinary authority in the present case has assigned in the impugned order are in conformity with the provisions of law extracted above. In other words, whether the disciplinary authority is justified in maintaining that it was not practicable to hold the regular disciplinary enquiry in the present case and whether such justification is substantiated by reasons as recorded in the impugned order?

It appears that disciplinary authority has before passing the impugned order held preliminary enquiry and in doing so, recorded the statements of the petitioners. According to the respondents while petitioners No. 2 and 3, both constables were found demanding Rs. 100/- from the truck driver, but petitioner No. 1 was vicariously held liable for their such conduct, being in charge of the police party of Chetak No. 8 and therefore it cannot be assumed that he would not be involved in their misconduct. In fact, he was a consenting party to the demand of illegal gratification by them.

The disciplinary authority has for dispensing with the regular departmental enquiry/proceedings has basically given three reasons in support of its satisfaction. Firstly, since the registration number of the vehicle was not obtained holding the regular disciplinary enquiry would be of an exercise in futility. Secondly, even if such information is obtained, it is unlikely that the truck driver would strict to his allegation before the inquiring authority. And thirdly, since the truck drivers keep visiting different places, there is every likelihood of his being won over by the delinquents either by any threat or inducement. This Court has to therefore in the light of the settled proposition of law examine whether satisfaction recorded by the disciplinary authority that owing to such reasons, it was reasonably not practicable to hold regular disciplinary enquiry/proceedings, is sustainable in law?

Judgment of the Supreme Court in Reena Rani Vs. State of Haryana and Others, also arose out of a dismissal order of a police constable by invoking clause (b) of second proviso to Article 311(2) of the Constitution of India. The Punjab & Haryana High Court upheld the order of the dismissal by observing thus:--

it cannot be viewed that decision to dispense with the departmental enquiry was on account of any ulterior motive or it was the departmental enquiry was on account of any ulterior motive or it'' was merely to avoid holding the enquiry. It is not such a case where the case of the respondents is weak in any manner. A police official, who acts in a manner to get involved with an accused facing a number of criminal cases and adopts means and methods to suggest measures to help such a criminal, would be an action, which is highly uncalled for by an employee who is a constituent of disciplined force like police

The appeal filed by the said constable was dismissed by the Division Bench of the High Court holding thus:--

that having regard to the facts on which the decision was reached by the authority it cannot be said that the same is arbitrary or is vitiated by consideration of any extraneous or irrelevant matter.

In those facts, their lordships of the Supreme Court while relying on its Constitution Bench judgment in Union of India and Another Vs. Tulsiram Patel and Others, held, as under:--

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 practicability 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.

The Constitution Bench of the Supreme Court in Tulsiram Patel supra held, as under:--

that 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 government servant concerned 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.

In Jaswant Singh Vs. State of Punjab and others, the aforesaid view of the Supreme Court was reiterated thus:-

The satisfaction that the facts of any given case merit action under any of the three situations contemplated by the second proviso to Article 311(2) of the Constitution of India has to be based on objective fats and such satisfaction cannot be reached arbitrarily; neither the same can be on the mere ipse dixit of the authority. However, the situations where a conclusion with regard to practicability of the inquiry can be reached would be varied and cannot be entrapped in any straitjacket formula. The facts of each case have to be taken into consideration while examining the validity of the satisfaction and the standard applied must be that of a reasonable man.

In Tarsem Singh and Others Vs. State of Punjab, also, the delinquent was a police constable, who was charge-sheeted for commission of misconduct viz. outraging modesty of a woman by entering her house along with his accomplices, having carnal intercourse against the law of nature with a migrant labourer by stuffing cloth in his mouth and causing threats of dire consequences to anyone deposing against him in an inquiry/investigation. The disciplinary authority while dispensing with the regular enquiry against him ordered for his removal from service on arriving at a purported satisfaction that delinquent would win over aggrieved people as well as witnesses from giving evidence by threatening and other means, reasons somewhat akin to those assigned in the present case. The order of removal was upheld by the High Court. The Supreme Court however reversed the judgment of the High Court. In that case too, only preliminary enquiry was held before passing the order of removal. In para 11 thereof, the Supreme Court held as under:--

We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice. The appellate authority, as noticed hereinbefore, in its order dated 24-6-1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.

In Sudesh Kumar vs. State of Haryana & Ors., (2005) 11 SCC 525 also, the Head Constable of Police was dismissed by the disciplinary authority from service pursuant to the preliminary enquiry dispensing with conducting of the regular departmental enquiry on being satisfied that it was not reasonably practicable to hold the enquiry. Reason for recording of such satisfaction was that complainant being a foreigner, may leave the country during the pendency of the enquiry and would not be available during departmental proceedings. It was therefore held that holding of regular departmental was not practicably possible.

The Supreme Court in Prithipal Singh Vs. State of Punjab and Others, held that holding of departmental enquiry is a rule and dispensation with the enquiry is an exception. Second proviso to Article 311(2) of the Constitution of India provides for an exception. Reasons for not conducting the regular departmental enquiry must be spelt out. It was obligatory on the part of the disciplinary authority to produce on record that, there was material enough before the disciplinary authority. Judgment of the Supreme Court in Satyavir Singh supra cited by the learned counsel for the petitioners is based on different facts situation, therefore ratio thereof cannot be applied to the present case.

Argument of availability of alternate remedy to the petitioners is liable to be rejected for the reason that already one of the petitioners filed appeal before the appellate authority, which he has dismissed reiterating the same observations as made by the disciplinary authority in his order.

In the light of the view that I have taken of the matter, the order of the disciplinary authority dispensing with the regular departmental enquiry cannot be held to have been founded on valid reasons permissible under law. Such order therefore cannot be sustained. Accordingly, writ petition deserves to succeed and is accordingly allowed. The impugned of removal dated 12/5/2006 is quashed and set-aside. Petitioners are held entitled to reinstatement with all the consequential benefits. The respondents are directed to make compliance of the order within three months from the date copy'' of this order is produced before them. However, this judgment will not preclude the respondents from proceeding against the petitioners in holding the regular departmental enquiry.