DHRUBAJYOTI TAMULI vs THE STATE OF ASSAM and 2 ORS.

1.Heard Mr. SB Sarma, learned counsel for the petitioner and Mr. MR Adhikari, learned Addl. Senior Govt. Advocate for the respondents.

An FIR was lodged on 03.06.2015 before the Officer-in-Charge, Sonapur Police Station alleging commitment of dacoity and accordingly, Sonapuri

PS Case No.158/2015 under Section 397 IPC was registered. In connection with the said complaint, the petitioner along with others was arrested by

the police on 03.06.2015. Consequently, the petitioner was thereafter placed under Suspension by the order dated 12.06.2015 issued by the

Commandant, 4th APBN, Kahilipara /respondent No.3. While the petitioner was under suspension, the respondent No.3 again passed an order dated

20.06.2015 stating interalia that it was not reasonably practicable to hold an inquiry as the petitioner has already been forwarded to judicial custody in a

heinous crime and therefore, the petitioner was dismissed from service w.e.f. 12.06.2015 as per Article 311(2)(b) of the Constitution of India.

Mr. SB Sarma, learned counsel for the petitioner submits that the present case is squarely covered by the order dated 22.02.2017 passed by this

Court in W.P.(C)No.7543/2015 (Himangshu Sharma -Vs.- State of Assam and others).

Mr. AR Adhikari, learned Additional Sr. Govt. Advocate on the other hand submits that the petitioner belongs to the uniform service where the

highest degree of integrity is required. However, in the present case, the petitioner involved in a crime under Section 397 IPC and when a uniform

personal involves in such crimes, the confidence of the people in the police force would deteriorate. He, therefore, submits that no inference is

required in the order dated 20.06.2015. It is also submitted that the petitioner has confessed to his guilt before the Investigating Agency and a portion

of the money that was looted has also been recovered from the petitioner. Therefore, to regain the public confidence, it was considered to be of

utmost importance that the petitioner should be rendered with exemplary punishment and such exemplary departmental punishment would give a

message to police personnel who dares to commit such heinous crime in future. Therefore, taking into consideration all the facts and circumstances of

the case, the petitioner was rightly dismissed from service by the order dated 20.06.2015.

I have considered the submissions forwarded by the learned counsel for the parties.

It is undisputed that basing on the FIR dated 03.06.2015, Sonapur PS Case No. 158/2015 under Section 397 IPC was registered and that the

petitioner was arrested on 03.06.2015 in connection with the said case. It is also undisputed that the petitioner was placed under suspension by the

order dated 12.06. 2015. What has to be considered in this writ petition is whether the impugned order dated 20.06.2015 passed by the respondent No.

3 dismissing the petitioner from service w.e.f. 12.06.2015 as per Article 311 (2) (b) of the Constitution was warranted.

In the case of Sudesh Kumar Vs State of Haryana & Ors. reported in (2005) 11 SCC 525, the Hon’ble Court has held that it is an established

principle of law that an enquiry under Article 311 (2) is a rule and dispensing with an enquiry is an exception. In the case of Ved Mitter Gill Vs Union

of Territory Administration, Chandigarh & Ors. reported in (2015) 8 SCC 86, the Hon’ble Supreme Court has referred to the three parameters for

valid invocation of Article 3 11 (2) (b) of the Constitution. For invoking Article 311(2)(b), the respondents should be satisfied that it was not reasonably

practicable to hold the departmental enquiry and the said satisfaction should be recorded in writing. It is also a constitutional obligation that if such

reasons are not recorded in writing, the order dispensing with enquiry and the order of penalty following thereupon will both be void and

unconstitutional.

In the present case in hand, the impugned order dated 20.06.2015, would indicate that it is without any proper reasons. Non-recording of proper

reasons while passing the order dated 20.06.2015 dispensing with enquiry would invalidate the action taken by the respondents. The mere observation

that the petitioner has been forwarded to judicial custody in a heinous crime, in the considered opinion of this Court, is not a cogent reason calling for

dispensing with enquiry more particularly when it is an admitted fact that the petitioner is on bail.

Considering that the present case has been considered as to whether the invocation of Article 311(2)(b) has been done in its proper perspective, this

Court is not entering into the factual aspects concerning the case. The impugned order dated 20.06.2015 stands vitiated as the same was not preceded

by an enquiry or by an opportunity of hearing the petitioner while dismissing him from service.

In that view of the matter, this writ petition is allowed and the impugned order dated 20.06.2015 is set aside and quashed but with no order as to

cost.

However, it is open to the respondents to initiate an enquiry against the petitioner in accordance with law, if so advised.