Dharmendra Kumar vs State Of Bihar And Ors

The petitioner was working against the post of Constable at Divisional Jail, Gopalganj assigned with the duty of an armed guard of the escort party

for escorting prisoners in case of any medical emergency when, in a surprise inspection of the jail conducted by the Sub-Divisional Police Officer,

Gopalganj under the orders of the Superintendent of Police, Gopalganj, the petitioner was found under influence of alcohol. There being prohibition in

the State of Bihar, the petitioner’s alleged conduct resulted into :

(i) Registration of a criminal case viz. Thawe P.S. Case No. 71 of 2020 under Section 37(b) of the Bihar Prohibition and Excise Act, 2016 and

(ii) Issuance of a notice to the petitioner by the appointing authority dated 09.05.2020 seeking his explanation against his proposed removal from

service invoking clause(b) of the second proviso to Article 311(2) of the Constitution of India. The petitioner was put under suspension with immediate

effect by an order of the same date. The petitioner was asked to submit his explanation against the proposed action of removal from service within 24

hours.

The petitioner submitted his explanation on the very next day i.e. 10.05.2020, as directed, denying to have consumed alcohol and asserting that only

on the basis of smell coming from the petitioner’s mouth it was presumed that petitioner had consumed alcohol and that there was no other

evidence/ examination showing consumption of alcohol. In his defence, he pleaded that he had consumed cough syrup for treating cough, which he

was suffering from.

By an order issued vide Memo No. 863 dated 12.05.2020, passed by the Superintendent of Police, Gopalganj, who is the Appointing Authority and

Disciplinary Authority, the petitioner has been dismissed from service invoking clause (b) of the second proviso to Article 311(2) of the Constitution of

India and Rule 824(a) of the Bihar Police Manual .The said order dated 12.05.2020 is under challenge in the present writ application under Article 226

of the Constitution of India.

A counter affidavit has been filed on behalf of the respondents, which is there on record.

I have heard Mr. Sanjay Kumar Giri, learned counsel appearing on behalf of the petitioner and Mr. Shiv Shankar Prasad, learned SC-8 for the State

of Bihar duly assisted by Mr. Anil Kumar, learned AC to SC-8.

Mr. Giri, learned counsel for the petitioner assailing the impugned order has argued that there was no clinching evidence before the Disciplinary

Authority to reach a definite conclusion, without any enquiry that the petitioner was drunk when he was spotted by the Sub-Divisional Police Officer in

the jail premises. Referring to materials on record he has submitted that without waiting for the scientific report on examination of blood and urine, the

Disciplinary Authority passed the impugned order in utter haste for no apparent reasons. He has further argued that there was no such situation which

could have warranted the Disciplinary Authority to dispense with the departmental enquiry. In any event, he has contended, that the impugned order

does not record any satisfaction of the Disciplinary Authority that it was not reasonably practicable for him to hold an enquiry in the wake of nature of

misconduct alleged and the circumstances leading to issuance of show cause notice seeking his explanation.

Per contra, it has been argued on behalf of the State of Bihar that the petitioner was found to have consumed alcohol within the jail premises which

constitutes as criminal offence and for which an FIR has been registered. According to him, since it was a serious misconduct on the part of the

petitioner and the evidence of misconduct was unimpeachable, the Disciplinary Authority, instead of initiating a departmental proceeding in accordance

with statutory rules, rightly considered it appropriate to invoke clause (b) of the second proviso to Article 311(2) of the Constitution of India.

According to him, since the petitioner was given prior opportunity to explain by way of notice as to why he should not be dismissed from service

invoking clause (b) of the second proviso to Article 311(2) of the Constitution, the impugned order passed after considering the petitioner’s

explanation is just, proper and sustainable as it does not suffer from any legal infirmity.

I have examined the pleadings on record and have given my careful consideration to the rival submissions advanced on behalf of the parties.

I consider it apt to reproduce Article 311 of the Constitution of India, clause (1) of which prohibits any authority subordinate to the appointing

authority to dismiss or remove a person who is a member of civil service of the Union or an All-India service or civil service of a State or holds a civil

post under the Union or State. Clause (2) of Article 311 makes it mandatory that an action of dismissal or removal from service of such person must

precede an enquiry in which the person has been given a reasonable opportunity of being heard in respect of those charges. Clause (b) of the second

proviso to Article 311(2), however, carves out an exception and authorises the concerned authority to dispense with the enquiry before taking action

stipulated in Article 311(2) in certain exigencies after recording reasons in writing.

Article 311 of the Constitution of India reads as under :-

“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 applyâ€"]

(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 (underlined for emphasis)

(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.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably 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.â€​

The language used in clause (b) of the second proviso to Article 311(2) of the Constitution is unambiguous. It empowers the concerned authority

to dispense with the mandatory enquiry as stipulated under Article 311(2) of the Constitution before dismissing/ removing or reducing a person in rank

if the authority ‘is satisfied’ that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry.

Evidently, there are two mandatory constitutional requirements for an authority to adhere to while invoking its power under clause(b) of the second

proviso to Article 311(2) of the Constitution of India i.e.

(i) The authority is satisfied that for some reason it is not reasonably practicable to hold such enquiry and

(ii) The satisfaction that it is not reasonably practicable to hold such enquiry is recorded by that authority in writing.

I have perused the impugned order passed by the Superintendent of Police, Gopalganj, who is the Appointing Authority as well as the order of the

Appellate Authority whereby the petitioner’s appeal has been dismissed. I have also perused the show cause notice which was issued to the

petitioner by the Superintendent of Police asking him to explain as to why he should not be dismissed from service with immediate effect invoking

clause(b) of the second proviso to Article 311(2) of the Constitution of India. The petitioner was given 24 hours by the Appointing Authority-cum-

Disciplinary Authority to submit his explanation. The Superintendent of Police had not recorded his satisfaction that it was not reasonably practicable

to hold enquiry as stipulated in clause (2) of Article 311 of the Constitution of India. In the impugned order No. 549/2020 dated 12.05.2020, passed by

the Superintendent of Police, Gopalganj too, there is no whisper that it was not reasonably practicable to hold enquiry. This aspect has not been gone

into even by the Appellate Authority. In my opinion, the impugned order of the Disciplinary Authority, in view of clear constitutional provision as

noticed above, suffers from lack of jurisdiction. If the Constitution requires exercise of power in a particular manner by a competent authority, the said

power exercised in breach of the said constitutional requirement is manifestly beyond jurisdiction.

The necessity of recording of reasons, while dispensing with enquiry has been reiterated by the Supreme Court in a series of decisions. It has been

held in the Constitution Bench decision in case of Union of India and another vs. Tulsiram Patel reported in (1985) 3 SCC 398 that what is requisite to

invoke clause (b) of the second proviso to Article 311(2) is that holding of the enquiry is not practicable in the opinion of a reasonable man taking a

reasonable view of the prevailing situation.

Following observation made in case of Tulsiram Patel (supra) in paragraph 130 is significant to be noted while considering question of dispensation

of enquiry to invoke clause (b) of the second proviso to Article 311(2) of the Constitution of India :-

“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 “impracticableâ€. According to the Oxford English Dictionary “practicable†means “Capable of being put into

practice, carried out in action, effected, accomplished, or done; feasibleâ€. 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: feasibleâ€.

Further, the words used are not “not practicable†but “not reasonably practicableâ€. Webster's Third New International Dictionary defines the

word “reasonably†as “in a reasonable manner: to a fairly sufficient extentâ€. Thus, whether it was practicable to hold the inquiry or not must

be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b).

What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing

situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of

illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or

together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to

prevent them from doing so or where the government servant by himself or together with or through others threatens, intimidates and terrorizes the

officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be

reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial

whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that

numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by

the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge

of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to

dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the

Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article

311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order

dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India [(1984) 2 SCC 578 : 1984 SCC (L&S)

290 : (1984) 3 SCR 302] 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.â€​(Underlined for emphasis)

It has been held in Jaswant Singh vs. State of Punjab & Ors. reported in (1991) 1 SCC 36 2that clause (b) of second proviso to Article 311(2) can

be invoked only when the authority is satisfied from the materials placed before him that it is not reasonably practicable to hold departmental enquiry.

Similar view has been taken by the Supreme Court in case of Kendriya Vidyalaya Sangathan and another vs. S.C. Sharma reported in (2005) 2

SCC 363.

I need not encumber the present judgment with further consistent precedents while dealing with clause (b) of the second proviso to Article 311(2).

Suffice it to say that an order passed in exercise of the said provision without recording a satisfaction that it is not reasonably practicable to hold an

enquiry is beyond jurisdiction and for the said reason the same is unsustainable being unconstitutional. The impugned order dated 12.05.2020, passed

by the Disciplinary Authority and the order dated 30.06.2020, passed by the Appellate Authority are accordingly set aside. The petitioner is directed to

be reinstated in service forthwith with all consequential benefits in terms of payments of salary for the period he remained out of service because of

the unauthorised, illegal orders passed by the respondents, which have been quashed by the present order.

The respondents shall, however, be at liberty to proceed in relation to the petitioner’s alleged misconduct in accordance with law. It goes

without saying that it will be open for the respondents to initiate a departmental proceeding against the petitioner or take appropriate action depending

upon the outcome of the criminal case registered against him.

This writ application is accordingly allowed with the aforesaid observations and directions.

There shall be no order as to costs.