Subhash Gurjar vs State Of Madhya Pradesh And Others

Deepak Khot, J

The present petition has been filed by the petitioner for the following relief:

(1) To issue a writ in the nature of certiorari quashing the order dated 26.08.2021 being illegal and arbitrary.

(2) To issue any other suitable directions/orders along with the cost of the petition.

It has been contended by the learned counsel for the petitioner that the petitioner has been terminated from the service by the impugned order dated 26.08.2021 (Annexure P/1). On appeal being filed against the said order, the same was dismissed, against which, a mercy appeal was filed, which was also dismissed by order dated 22.08.2024 (Annexure P/2).

3 . It is submitted by the learned counsel for the petitioner that the impugned order dated 26.08.2021 (Annexure P/1) has been passed without holding any departmental enquiry as provided under the Civil Services (Classification, Control and Appeal) Rules, 1966 and the Police Regulations.

The authority holding that the enquiry is not practicable in the matter applying the constitutional mandate of Article 311 (2) of the Constitution of India, has dismissed the petitioner from service. The petitioner was holding the post of Constable, who was suspended because of involvement in criminal activities. It is submitted that to show the grievousness of the conduct of the petitioner, various offences have been referred to in the impugned order, but, the fact remains that the petitioner has never been convicted in any of the offence registered against him. It is submitted that the petitioner was subjected to discrimination in the department and because of such act, the petitioner has been implicated in various criminal activities. The petitioner has been acquitted from various criminal cases registered against him and in some of the cases, trial is going on, but, it is submitted that in none of the matters, the petitioner has been convicted. Thus, prayed that any such order de-hors the rules dismissing the services of the petitioner against the constitutional mandate envisaged under Articles 309 and 311 of the Constitution of India is per se illegal and deserves to be quashed.

Per contra, learned counsel for the respondents has submitted that though in the matter departmental enquiry has not been conducted for the reasons mentioned in the impugned order, but applying the constitutional principle of Article 311 (2) of the Constitution of India, the services of the petitioner have been terminated. On the basis, prayed that the order is absolutely in consonance of law and does not call for any interference by this Court.

Heard the learned counsel for the parties and perused the record.

It is evident from the impugned order that the petitioner has neither been given any show cause notice nor any disciplinary enquiry has been initiated against the petitioner. The petitioner has not been given article of charges nor any such statement of imputation of charges for which the petitioner has been proceeded for the departmental punishment. The Articles 309 and 311 provide protection to the government employee from any unjust discrimination or departmental proceeding. Article 311(2) of the Constitution of India carves out exceptions to the ordinary rule wherein under three categories, the employer can terminate the service of the employee without following ordinary rule. The Exceptions have been provided in clauses (a),

(b) and (c) to clause (3), which provide that the general rule of enquiry shall not apply to such employees who have been punished for conviction in a criminal case, where inquiry is not practicable to be held for reasons to be recorded in writing or where the President or the Governor, as the case may be, is satisfied that such an inquiry is not to be held in the interest of security of the State.

This Court in the case of S atya Narayan Pandey and Ors vs. State of M.P. and Ors reported in 2004 (12) MPHT 46 has held as under:-

"12.... In the present case, as has been held hereinabove, dispensing with enquiry under Rule 19 is clearly unsustainable as the aforesaid rule does not apply in the present case. There being no analogous provision in the Police Regulation for dispensing with enquiry. The normal rule of conducting enquiry and taking action after following the principles of natural justice was the only course open to the competent authority for taking action against the petitioners for the allegations levelled against them. The same having not been followed, this is a case where action has been taken in gross violation of the fundamental principles of law and by ignoring the statutory provisions. That being so, I am not inclined to relegate the petitioners to the alternate remedy of filing appeal or revision keeping in view the observations made by the Supreme Court in the case of Harbans (supra) and a Full Bench of this Court in the case of P.C.C. Construction Company (supra).

Accordingly, in view of the discussions and findings recorded hereinabove, the petitions are allowed. Orders impugned (Annexure P-l), dated 16th July, 2003 passed in case of each of the petitioners is quashed. However, it is made clear that respondents are free to proceed in the matter for taking action against the petitioners for the alleged misconduct in accordance with law. A copy of the order be placed on the record of other petitions.

Petitions stand allowed and disposed of with aforesaid."

8 . The Hon'ble Apex Court in the case of Ajit Kumar Vs. State of Jharkhand & Others reported in (2011) 11 SCC 458 has held as under:-

"8. Within the scheme of the Constitution of India, provisions relating to public service may be found in Articles 309, 310 and 311. It is important to note that these provisions (namely, Articles 310 and 311) afford protection to public servants from being dismissed, removed or reduced in rank without holding a proper inquiry or giving a hearing.

Article 311 provides for the protection to public servants against punitive action being taken against them by an authority subordinate to one who appointed them. Exceptions to Article 311 have been provided in clauses (a), (b) and (c) (sic of the second proviso) to clause (2) of Article 311 itself, which provide that the said article shall not apply to such employees who have been punished for conviction in a criminal case, where inquiry is not practicable to be held for reasons to be recorded in writing or where the President or the Governor as the case may be is satisfied that such an inquiry is not to be held in the interest of the security of the State.

In order to appreciate the power to be exercised under Article 311 of the Constitution of India, it would be appropriate to look at Article 310 of the Constitution of India. Under the doctrine of pleasure, which has been recognised under our constitutional framework, all civil posts under the Government are held at the pleasure of the Government under which they are held and are terminable at its will. The aforesaid power is what the doctrine of pleasure defines, which was recognised in the United Kingdom and also received the constitutional sanction under our Constitution in the light of Article 310 of the Constitution of India. However, it is to be noticed that in India the same is subject to other provisions of the Constitution which include the restrictions imposed by Article 310(2) and Articles 311(1) and (2). Therefore, under the Indian constitutional framework, dismissal of civil servants must comply with the procedure laid down in Article 311 and Article 310(1) cannot be invoked independently with the object of justifying a contravention of Article 311(2).

There is an exception provided by way of incorporation of Article 311(2) with sub-clauses (a), (b) and (c). No such enquiry is required to be conducted for the purposes of dismissal, removal or reduction in rank of persons when the same related to dismissal on the ground of conviction or where it is not practicable to hold an enquiry for the reasons to be recorded in writing by that authority empowered to dismiss or remove a person or reduce him in rank or it is not practicable to hold an enquiry for the security of the State. These three exceptions are well recognised for dispensing with an enquiry, which is required to be conducted under Article 311 of the Constitution of India when the authority takes a decision for dismissal or removal or reduction in rank in writing. In other words, although there is a pleasure doctrine, however, the same cannot be said to be absolute and the same is subject to the conditions that when a government servant is to be dismissed or removed from service or he is reduced in rank, a departmental enquiry is required to be conducted to enquire into his misconduct and only after holding such an enquiry and in the course of such enquiry if he is found guilty then only a person can be removed or dismissed from service or reduced in rank.

As stated herein such constitutional provision for holding an enquiry as set out under Article 311 of the Constitution of India could also be dispensed with under the exceptions provided to Article 311(2) of the Constitution where clause (a) relates to a case where upon a conviction of a person by a criminal court on certain charges he could be removed from service without holding an enquiry. Similarly, under clause (c) an enquiry to be held against the government employee could be dispensed with if it is not possible to hold such an enquiry in the interest of the security of the State. Sub-clause (b) on the other hand provides that such an enquiry could be dispensed with by the authority concerned, after recording reasons, for which it is not practicable to hold an enquiry. The aforesaid power is an absolute power of the disciplinary authority who after following the procedure laid down therein could resort to such extraordinary power provided it follows the preconditions laid down therein meaningfully and effectively."

When the facts of the present case have been tested on the anvil of the law laid down by the Hon'ble Apex Court and this Court in the aforesaid judgments, this Court finds that the authority has not given any explanation or reason for not holding the enquiry, as contemplated under the Rules. It is a trite law that for imposing major punishment, departmental enquiry is must under the Rules. In absence of such enquiry, the employee is not given an opportunity to defend the charges levelled against him. Thus, it also violates the cardinal principle of natural justice of administrative law. The petitioner, being a member of the disciplined force, is expected to behave in a disciplined manner, but, the fact remains that being a government servant, certain protections are also provided, which are also required to be adhered to. The respondents are always at liberty to hold such an equiry by granting opportunity of hearing to the delinquent. If the petitioner has been absconding then the employer being a police force can very well apprehend the petitioner and if the petitioner is facing the criminal trial in the competent sessions court then also the employer can very well compel his attendance before the disciplinary authority on the basis of the means available under the law. Thus, the reasons, which have been given by the authority for not holding the departmental enquiry is cryptic, unjust and improper.

On the aforesaid factual backdrop of the case and on the basis of the law laid down by the Hon'ble Apex Court, the impugned order-Annexure P/1 could not pass the judicious scrutiny. Thus, the impugned order dated 26.08.2021 (Annexure P/1) is hereby quashed with a liberty to the respondents to take departmental action against the petitioner in accordance with law and rules.

With the aforesaid, this petition is allowed and disposed of.