Throngkiu Yimchunger and Others vs State of Nagaland and Another

D.N. Chowdhury, J.—The issue is as to whether the three Petitioners are fairly dealt with by the Disciplinary Authority. Does the impugned action of the Respondents has abridged the Constitutional guarantee of the Petitioners. The facts are summarised herein below:

The Petitioner No. 1 and 2 were appointed as Constable in the Nagaland Armed Police with effect from 4.5.1964. Petitioner No. 1 was promoted to the post of Lance Naik with the effect from 1.9.92 and Petitioner No. 2 was promoted by order dated 13.9.72 to the Post of Lance Naik and by Order dated 15.2.82 to the Post of Naik in the Nagaland Armed Police, Petitioner No. 3 was initially appointed as Lance Naik in the Nagaland Armed Police in the year 1970. He was promoted to the Post of Naik and Havildar and thereafter he was promoted as A.B.S.I.G.D., in the Nagaland Armed Police. At the time of issuance of the impugned order of dismissal all the three Petitioners were posted at the First Battalion in the Nagaland Armed Police and were discharging their duties in their respective capacities. At the relevant lime the personnel of Nagaland Armed police were deployed in the various location in the Peren Sub-Division of Nagaland. In course of such deployment, Armed Police numbering about 20 (twenty) under the Command of Petitioner No. 3 were deputed from ''B'' Coy Athibung Head Quarter to Chalkot Village for guard duty. It is averred that after personnel reached their assigned areas the Jawans performed law and order duties in and around Old Chalkot Village but due to incessant rain the Platoon was unable to construct any defence position in the assigned area. On 14.6.93 the rain stopped and Platoon was getting ready to construct their defence position and in the meantime an order was received by the Platoon Commander for withdrawal of the Platoon from the assigned areas. Petitioner No. 3 the platoon Commander made necessary arrangement for withrawal of the Platoon from the assigned area i.e. Chalkot village. Accordingly, Petitioner No. 3 went to the Head Gaon Burah (G.B) of the village to inform him about the order of withdrawal of Platoon from the area. According to the Petitioner No. 3, when he was in the Gaon Bura''s house, a large number of miscreants attacked the Chalkot Village with sophisticated weapons. Writ Petitioner No. 3 on being attacked escaped through the kitchen window of the Gaon Bura''s house and joined his men who were awaiting for their transport on withdrawal back to the Head Quarter at an elevated position. The Petitioner No. 3 tried to organise his Platoon to defend the villagers from the attack of the miscreants. It was averred inter alia that when the Petitioner organised to defend the villagers from the attack of the miscreants they were seriously handicappd in their endeavour as the attackers have mixed up with the villagers. However exchange of took place and some of the armed jawan under the cammand of the Petitioner No. 3 were able to retaliate fire and take position so that innocent villagers would not be killed. The miscreants were however able to set fire some villagers house and granaries. And in the exchange of fire a few villagers and some constables were killed. In view of the confusion some arms and ammunitions belonging to a few Jawans who were absent from their post were also lost in the melee. After 1/2 an hour the arms group left the village and returned to the Jungle. Thereafter the incident was reported to the Company Commander in Athi-bung Head Quarter and the three Writ Petitioners and other Jawans who were stationed at Chalkot village returned to their head quarters and were assigned various other patrolling duties in the Athibung Towns and other nearby areas. On 9.8.93 the three Petitioners were summoned to the Battalion head quarter at Chumukedima and in the said Battalion Head quarter the three Petitioner were served the impugned order of termination dared 23rd July, 1993 dismissing the three Petitioners from service under Rule 11 of the Nagaland Civil Service (Discipline and Appeal) Rules, 1967. The impugned reasons recorded for not holding the enquiry which is specified in the paragraph-2 of the order. The relevant portion of Paragraph-2 are called out below:

Thus because of their cowardice and negligence to duties 32 houses and 8 granary houses were set on fire by the anti-social elements and killed 5 (five) persons including one Policeman who was caught by UGs in the incident. The misconduct stated above on the part of ABSI Satkolam Kuki and all his men under his Command call for a very serious disciplinary action. For the purpose of collecting evidence in a departmental enquiry that may be held, it is not possible to secure the presence of the members of the armed gang involved in the murder and arson in Chalkot village could be obtained as they had deserted the village after seeing the killing of their village folk and even those eye witnesses remaining the village are in state of shock and are unable to tender evidence....

The aforesaid order was impinged by way of the Writ Petition before this Court which Was registered and numbered as Civil Rule No. 87(K)/93. In the Writ Petition it was contended that the impugned order of dismissal was in contravention of principles of natural justice and also in violation of the provisions contained in Article 311(2) of the Constitution of India. The Petitioners also questioned die legality and validity of the action of the Respondents in adopting special procedure under Rule 11 without any just cause and therefore the impugned action was challenged as being arbitrary and violative of Article 14 of the Constitution of India. The Respondent filed counter affidavit along with record and asserted that the Director General of Police, Nagaland personally visited the place of occurance and met the villagers who have confirmed the desertion of the Nagaland Armed Force. Personnel from their post when the above meantioned incident took place(sic) village. There (sic) of having deseared the spot without (sic) ground elements. It was also averred that inaction of the NAP personnel was (sic) to be due to loose command control of the post commander/Petitioner No. 3 and 2 Ncos/Petitioner No. 2 and 1.

After hearing the learned Counsel of the respective parties and perusal of the materials on record, the learned Single Judge uphelp the order of disrnissal dated 23rd July, 1993 and dismissed the Writ Pention. Hence the Appeal.

Mr. H. Roy learned Counsel for the Appellant has submited that (sic) Petitioners of all relevant time were danied from pt(sic) averred that Article 311(2) of the Constitution of India conferred a valuable agal on the Petitioners and said right was taken away by the Respondents by resorurng to Rule 11 of the Nagaland Service (Discipline and Appeal) Rulles. 1967 in a most illegal fashion without any just cause. The ground assigned for dispensation of the enquiry is no ground for getting rid of the enquiry submits Mr. Roy, the learned Counsel, Mr. Roy submitted that the reason assigned by the learned Single Judge in dismissing the Writ Petition is not sustainable in law.

Mr. C.T. Jamir, learned Govt. Advocate, Nagaland strenuously argued that the learned Single Judge has examined the matter in depth and considering all the aspect of the matter rightly upheld the impugned order of dismimssal. According to Mr. Jamir the Petitioners belong to an Armed Force who were assigned with duties to protect the lives of the Chalkot village and that instead of protecting the live and and properties of the villagers they in most cowardice manner ran away and brought disreputation to the department and on consideration of these aspects of the matter the authority rightly dismissed the three Petitioners/Appellants. The learned Single Judge took into consideration all the relevant considerations and thereafter considering all the materials did not find any merit and accordingly learned Single Judge rightly dismissed the Writ Petition.

Before going farther into the matter, it would be pertinent to look into the provisions of Article 311 of the Constitution of India which are extracted below:

...311 Dismissal, removal or reduction in rank of persons employed in Civil capacities under Union or a State (1) No persons 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 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 persons as aforesaid shall be dismissied or 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, it 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 persons 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 is 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 (sic) in the interest (sic) the (sic) of the State it not expedient to hold inquiry.

(3) If (sic) aforesaid a q(sic) the decision the (sic)empowered (sic) person or to reduce him in rank shall be final.)...

A set of Rules known as the Nagaland service (Discipline and Appeal) Rules, 1967 was made in exercise of power under proviso to Article 309 of the Constitution of India to regulate the disciplinary matters. Part-IV of the said Rule provides the procedure for imposing penalties. The relevant provisions of Rule 9 (1) and (2) quoted below:

Procedure for imposing penalties:

(1) Without prejudice to the provisions of the Public servants (Inquiry) Act, 1850; no order imposing on a Government servant any of the penalties specified in Rule 7 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided.

(2) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be help. Such charges together with a statement of the allegations on which they are based shah be communicated in writing to the Government servant and he shall be required to submit within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to be heard in person. Standard form of memorandum of Charge-Sheet and Memorandum are specified in Schedule IV and V...

The said Rule cast duty on the disciplinary authority to frame definite charge on the delinquent officer and call upon the officer to submit his explanation to the charges. Delinquent officer is entitled to as a matter of right inspect and take extract of the official record for preparing his defence. On receipt of the explanation unless the same are admitted, authority is duly bound to enquire into the same through enquiry officer who is clothed with the power to enquire into the matter in the manner prescribed by the Rule. Disciplinary authority thereafter on consideration of report of the enquiry officer is required to record its findings on each of the charges and in the event the authority finds that in its opinion any of the penalties specified in the Clsuses V to IX of Rule 7 it required to be imposed in that event it shall he furnished to the Govt. servant a copy of the report of the Inquiry authority and where the Disciplinary Authority is not the Inquiring authority a statement of its findings together with the brief reason for disagreement if any, with the finding of the inquiring authority and give the delinquent officer a notice stating the penalty proprsel to be imposed on him to submit such representation as he (sic) on the pro (sic). Rule 11(sic) exception(sic) below:

Special procedure in certain, cases:

Not withstanding anything contained in Rule-9

(i) Where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge: or

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

(iii) Where the Governor is satisfied 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 thereon as it deem fit:

Provided that the commission shall be consul tea before passing such order in any case in which such consultation is necessary.

Part XIV of the Constitution of (sic) which deats (sic) of India and the State (sic) vides certain pretection to the Civil servant in the (sic) and for the publicgeoa Non(sic) of Civil Services shallbe (sic) erest and or reduced in rank except after an enquiry into the charges against (sic) and giving a reasonable opportunity for being heard in respect of those clarge(sic) a mandate of the Indian Constitution. It is meaningful in content and dispensation of the same is an exception when the collation and presentation of evidence for a proof is not reasonably practicable. The reasonability and impossibility is to be assessed keeping in mind the Constitutional protection guaranteed to Civil Servant Proviso two is curved out as an exception to the Clause (2) of the Article 311 of the Constitution. Article 310 (1) of the Constitution Opens up with the expression Except as expressly provided by this Constitution "Rule 11 of the Rules is also exception of Rule 9. Therefore the authority under die normal circumstances is uired to hold enquiry. The enquiry provided Article 311 (2) can be avoided only (sic) those cases where it is not reasonably practicable to hold the inquiry. The power under Clause (b) of the Second proviso is limited and circumscribed then the power (sic)onferred under the Clause (2) of the said proviso. The primary consideration for(sic)be exercise of power under the second proviso is the conduct of the Civil Servant in a given case and if die conduct of the Civil servant warrants an order of punishment of dismissal, removal or reduction in rank. Only on those cases the Clause (a) to (c) of the second proviso come into play.

The Clause (2) of the Article 311 has specifically excluded die proviso two of Clause (2) of the said Article when the conditions set out there in are fulfille(sic). The (sic)cond proviso to Article 311(2) (sic) into play only on the (sic) of any of the (sic) down there (sic)(sic) will come into play in the case where the authority is satisfied for so(sic) to be recorded in writing that it is not reasonably practicable to hold such enquiry or when the President or Governor of a State as the case may be satisfied that in the interest of the security of the State, it is not expedient in the case of Clause (c) of second proviso to hold such enquiry. However, if the repository of power exercises its discretion alien to the conditions specified in the constitutional Scheme the said section would suffer from the vices of malafide and therefore the same would be on-lawful thus invalid. When the operative reason is extraneous and alien to the Condition specified in the proviso to Article 311(2) as well as to the statutory Rules, it would be discriminatory and arbitrary and therefore it would be violative of Article 14 which strikes at the arbitrariness in the said action and to secure fairness and equality of treatment. In the words of Justice DP Madar in Union of India v. Tulsiram Patel reported in 1985 (sic) SCC 398 at para 101 p. 479 where(sic) Clause of Second proviso is appiied on (sic)n extraneous ground or a ground having no relaion to the situation (sic) isaged in that (sic) the action an so apprving (sic) malafide and therefore void . In such case the invalidation factor (sic) Article 14. This is however the only scope which Article 14 can have in relution to the second proviso, but to hold that once the second proviso is properly applied and Clause (2) of Article 311 excluded. In such case, the said action, falls outside the province of Clause (b) of the Second proviso Clause (b) of the second proviso of comes into play when the authority holds a view that reasonably practicable to hold enquiry on the facts and situation. The said view must be that of reasonable man on reasonable ground. Decision which are fanciful or absurd can not be reasonable and therefore legitimate. If decision is within the parameter of reasonableness, it is not the domain of the Court to look further into the merit of the case. As observed by Warrington LJ, in Short v. Pool Cpn (1926) Ch. 66 and 91 with the question whether a particular policy is wise or foolish the Court is not concerned; it can only interfere if to pursue it is beyond the powers of the authority. If the decision is capricious, it is a unlawful decision, English lawyers commonly call such thing as "Wednesbury unreasonableness" which has been used by Lord Green M.R. in Associated provincial picture House Ltd. v. Wenesbury Corporation (1948) 1 KB 223 . Lord Green made the following observation:

It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with phraseology used in relation to exercise of statutory discretions often use the word unreasonable in a rather comprehensive sense. It has frequently been used and is frequently used as general description of the things that must not be done, For instance, a person entrusted with discretion must so to speak direct himself properly in law. He must call his own attention to the matters which he bound to consider. He must exclude from his consideration matter which is irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting ''unreasonably'' similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority Warrington LJ in Short, V. Pool Corporation gave the example of the red haired teacher dismissed because she had red hair. This is unreasonable in sense in another it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith, and, in fact, all these things run into one another.

In the case in hand the authority spelt out the reason for arriving at the conclusion as to why it was not reasonably practicable to hold such inquiry. The impugned Order shows three reasons namely No. (1) It is not possible to secure the presence of the members of the aimed gang involved in murder and arson in the village (2) No eye witnesses from the said Chalkot village could be obtained as they had deserted the village after seeing the killing of their village folk, (3) Even those eye witnesses remaining in the village are in a state of shock and are unable to tender evidence. The Respondents No. 1 and 2 in their affidavit stated that" in spite of dangers, the DGP, Nagaland visited the place of occurence and met the villagers and they have confirmed the desertion of the NAP personnel from their post when the above mentioned incident took place at Chalkot village, In the meantime the statement of NAP personnel were also taken and they have admitted of having deserted the post without putting up any resistance against the underground ele(sic)nts. Thus the inaction of the NAP personnel was found to be due to loose command and control on the part of the post Commander/Petitioner No. 3 and two Commander/Petitioner No. 2 and 1..."

Alongwith the affidavit the Respondents annexed the statements of two (sic)dortant village functiorkries as Well as statements of NAP personnel recorded the Disciplinary Authority.

From the records available before us it appears that two witnesses of the village old Chaikot village, Mr. Kakjang Kuki, Assistant Gaon Bura and Mr Paothang (sic)nki, Council Secretary, deposed, before the authority. These two are statutory (sic)throty and narrated the facts, According to the version of Assistant Gaon Burah, (sic)d Chalkot village that NAP who were deployed in the village did not return the (sic)re as because of the NAP personnel deployed at the old Chaikot were on the verge of withdrawal and just waiting for transport. Suddenly the Under ground rounded to the village and opened fire from different direction. Similar is the statement of the Council Secretary, old Chalkot village. We have also examined and perused the (sic)tement made by 3(three) Petitioners and 15 other NAP personnel and these (sic)ersons were eye witnesses. From the record it appears that at least two important Village functioneries were found and they deposed about the factual situation. The (sic)tement recorded so far are from and the records and no materials were discernible (sic)at eye witnesses were in a state of shock. Three Petitioners were examined by the (sic)thority who did not admit their guilt.

We have given our anxious consideration on this matter but reasonable (sic)acticabiiity for holding or not holding of enquiry is a matter reposed on the disciplinary authority which the said authority required to address itself properly to the provisions contained to the relevant laws, taking into consideration ail aspect of the matter which he is bound to lake over-looking the relevant consideration.

We are fully conscious of the parameter of judicial review "it is not (sic) appeal from a decision" to evaluate the correctness of the decision itself. (sic)ac Indian Constitution however reposed on the Supreme Court of India and the High Court the power to oversee that the Constitutional organs are kept within their limits so that there will be "Government of laws and not of men" Essentially if is a duty to (sic)e that the discretionary powers conferred on the administration is not misused or (sic)ibused.

On perusal of the materials on record we are of the finm opinion that the Respoudent No. 2, the Director General of Police, Nagaland acted without due care (sic) caution and exercised his discretion on irrelevant grounds in dispensing with(sic) enquiry.

The learned Single Judge in dismissing the Writ Petition made the following observation:

The disciplinary authority was of the opinion that under the circum stances mentioned in the impugned order, it would not be possible to collect evidence if a regular departmental enquiry is held. Even if assuming the statements recorded in a preliminary enquiry is taken into consideration it speaks volume against the Petitioners. This apart, the Petitioners could not have improved their case with regard to the factual position as mentioned in the impugned order even if the regular departmental proceeding is held. In the instant case the fact speaks for itself (res ipse loquiter). I am afraid, under the present facts and circumstances of the case the Petitioners could have improved their case if the regular departmental enquiry was held...

Therefore according to the learned Single Judge even if the Petitioners would have been afforded the protection of Article 311(2) of the Constitution of India the said exercise would have made no difference, The question before us in judicial review is not the merit of the decision itself but the decision making process. We are concerned with the procedural fairness. The essential dictate of justice is that those who are affected by decision should be dealt with in a fair manner. That is also the philosophy of the Indian Constitution to again justice social, economic and (sic). The issue is (sic) the contact of the Petitioners but it is issue of big(sic) that is only after hearing both the sides r(sic) are to be conside(sic) Professor Wade in the Administrative (sic) Sixth (sic)idition (at pate 533) pithi(sic) made the following observation:

Where a fair hearing ''would no difference''

Procedural objections are often raised by unmeritorious parties. Judges may then be temped to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merit may be prejudged unfairly, Lord Wright once said.

If the principle of natural justice are violated in respect of any decision it (sic) indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice, the decision must be declared to be no decision (1943) AC 627) General Medical Council V Spackman. The dangers were vividly expressed by Megarry J. criticising the contention that the result is obvious from start. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which somehow, were not, of unanswerable charges which, in the (sic)ant were completely answered; of inexplicable conduct which was fuly ex(sic) ned of fixed and unalterable determinations that by discussion, suffered a (sic)nge (Johon V Rees (1970) Ch. 345 .

The last few words are especially apt for administrative decisions hey were adopted in a later case where the Court quashed a Secretary of State''s order reducing local authority''s rate, support grant for failure to grant them a hearing at the proper time. Even though it was ''certainly probable'' that the decision would have been the (sic)me since all the arguments had been fully rehearsed at early stage, the Court (sic)relined to hold that a hearing would have been a useless formality (1963) IQB 56.

This question profoundly affected the course of Ridge V. Baldwin. Th(sic)gume ents favored the lower Courts and in Lord Evershed''s dissenting speech, as that natural justice need not be divorced in the absence of a miscarriage of (sic)tice or some probable effect on the result. The House of Lords rejected this (sic)asoning decisively...

...A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a drench of natural justice where the demerits of the claim are such that it would in any case be hopeless. But in die case of the discretionary administrative decision such as the dismissal of a teacher or the expulsion of a student hearing his case will often the heart of the authority and alter their decision, even it is clear from good and considerate administration, and the law should lake care to preserve it....

The disciplinary authority is not to dispense with a disciplinary enquiry readily and indifferently with a view to avoid lengthy departmental enquiries. It is a serious (sic)usiness having far reaching ramifications. The Supreme Court of India in Jaswant Singh Vs. State of Punjab and others, para 4 388, para p.p. 390) made the following observation:

The scope of Article 310 and 311 of the Constitution was examined by this Court in Union of India and Another Vs. Tulsiram Patel and Others, wherein by majority of this Court held that once the requirements of the relevant clause of the second proviso are satisfied, the emcee of a Civil servant can be terminated without following the audi alter am partum rule. It was held that since the requirement of Article 311 (2)was expressly excluded by the second proviso, there vas no question of introducing the same by the back door. On this line of reasoning, the majority held that The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others, was not correctly decided. In therefore, took the view that it is not necessary to offer a hearing to the Civil servant even on the limited question of punishment. In so far as Clause (b) is concerned this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any inquiry "not reasonably practicable", and (ii)the disciplinary authority must record in writing its reasons in support of its satisfaction, Of course the question of practicability would depend on the existing fact-situation and other surrounding circumstances, that is to say, (sic) the question of reasonable practicability must be judged in the light of the circumstances prevailing at the passing of the order. Although, Clause (3) of that Article makes the decision of the disciplinary authority in this behalf find such finality can certainly be tested in a Court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry, Also see Satyavir Singh and Others Vs. Union of India (UOI) and Others, Shivaji Atmaji Sawant Vs. State of Maharashtra and Others, and Ikramuddin Ahmed Borah Vs. Superintendent of Police, Darrang and Others,

It was incumbent on the Respondents to disclose to the Court the materi(sic) in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by Respondent No. 3 in the impugned order Clause (b) of the second proviso to Article 311 (2) can be invoked only when the authority is satisfied from the material placed before him that it is (sic) reasonably practicable to hold a departmental enquiry. This is clear from the following observation at of Union of India and Another Vs. Tulsiram Patel and Others, of Tulsi Ram''s Case:

A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or put of ulterior motives or merely in order to avoid the holding of an enquiry or because the Department''s case against dm Government servants is weak and must fail.

The decision to dispense with the departments enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer...

In our view, there is no sufficient materials or good ground for dispensing with the inquiry.

On consideration of the facts and circumstances of the case we find that the (sic)ciplinary authority acted in a mechanical fashion in dispensing with the discipli-(sic)ary enquiry in exercise of the power under Clause (b) of the proviso two to Article 311. The learned Single Judge no doubt took into consideration the law laid down by the Supreme Court in Jaswani Singh (supra) and held that the said decision is not applicable because the disciplinary authority according to the learned Single judge has recorded its objective satisfaction.

The learned Single Judge, in arriving at its finding relied in I Ranjeet Singh and Another Vs. State of Rajasthan, . In the said decision the enquiry was dispensed against the Sub-Inspector of Police, Sri Boradue to non-availability of witnesses on account of fear the officer concerned. The factual situation in the present case are distinct from Ikramuddin Ahmed Bord (supra). The learned Single Judge observed that the decision was based on the objective satisfaction Of the disciplinary authority recorded upon the inspection of occurrence and therefore such satisfaction can not be interfered with lightly. In our view the said objective satisfaction is the ipse dixit of the concerned officer without adjudicating the controversy lawfully and arrived at a decision which is the opinion of the disciplinary authority.

In the result, we allow the appeal and set aside the order of the learned Single Judge dated 18.3.1994 and quash the order No. PHQ (B-II)/3/15/93/167 dated Kohima the 23rd July, 1993 (Annexure-N of the Writ Petition). It would however be open to the department to proceed with the departmental enquiry, if they are so advised. The Respondents shall pay costs for both the Courts.

Appeal is allowed.