(SIC) Chandra Barua vs Inspector General of Police and Others

B.L. Hansaria, J.—The Petitioner was serving as a Constable under Sibsagar D, E, F. By an order passed on 27.8.75 he came to be dismissed from service with immediate effect because the appointing authority felt that he "is unfit to be retained in public service". The authority being further purportedly satisfied that "it is not reasonably practicable to hold an enquiry." the dismissal order was passed with the aid of proviso (b) to Article 311(2) of the Constitution. This dismissal order has been challenged by the Petitioner.

A perusal of proviso (b) makes it clear that the authority empowered to dismiss has to record its reasons for being satisfied that it is not reasonably practicable to hold such inquiry. from the affidavit-in-opposition filed on behalf of Respondents 1, 2 and 3, we find that the Petitioner was considered to be a person of doubtful integrity, indisciplined and having unsatisfactory record of service. It has been further averred that, the Petitioner misappropriated Government money forging document pertaining to pay etc. and considering these aspects of the matters and on accepting Handwriting Expert''s opinion, and being of the view that no other person would come up to tender free and frank evidence in an open enquiry and that such enquiry cannot be held without evoking discontentment in the Force, the Petitioner was dismissed as authorised by the aforesaid provision. Though this is the averment in the counter filed by the Deputy Inspector General of Police, Assam, from the records produced before us by the learned Junior Government Advocate it appears that the Inspector General of Police, who bad passed the impugned order, had referred to an anonymous letter threatening revolt in the Constabulary if pay, Dearness Allowance, Medical Benefit, house rent and ration were not enhanced. The petitions was thought to be the writer, of this letter. The order passed in the file further states that "and whereas it is considered that an open enquiry in this matter as contemplated in Article 311(2) is not reasonably practicable in view of the fact that excepting Handwriting Expert''s opinion, no other direct evidence would be available and that holding of enquiry will have repercussion amongst the constabulary" the dismissal order was passed without holding enquiry.

Even if we ignore the difference in the two versions (SIC) above, it is apparent that there could not have been any (SIC) in obtaining the Handwriting Expert''s evidence in the (SIC). The contention that no other direct evidence would be able is a guess-work and in any caw It has nothing to do he non-practicability of holding the enquiry. Another reason IN the above quoted order that the enquiry will have (SIC) amongst the Constabulary is related to the fact of (SIC)In holding the enquiry. We do not think if this aspect relevance in so far as proviso (b) to Article 311(2) is concerned, (SIC) incidentally mentioned that non-expediency of holding an (SIC) is covered by proviso (c) which power can be applied a named authority in the interest of security of the State.

This being the position, we are not satisfied if the power proviso (b) was rightfully invoked in the present case. the dismissal order is hit by Article 311(2) of the Constitution (SIC) be upheld. Accordingly we allow the petition and the order of dismissal. We may say that if there was enquiry pending against the Petitioner, the same could continue, is considered necessary by the appropriate authority.