Patna High Court
Anand Kumar Singh vs The State Of Bihar on 13 December, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4860 of 2023
======================================================
Anand Kumar Singh Son of Late Kameshwari Prasad Singh, Resident of
Village- Sahari, Police Station- Barh, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Home (Police)
Department, Government of Bihar, Patna.
2. The Director General of Police, Bihar, Patna.
3. The Additional Director General of Police (Budget, Appeal and Welfare),
Bihar, Patna.
4. The Additional Director General of Police (Law and Order), Bihar, Patna.
5. The Deputy Inspector General of Police, Shahabad Region, Dehri- on- Sone.
6. The Superintendent of Police, Bhojpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Bindhyachal Singh, Sr. Advocate
Mr. Vipin Kumar Singh, Advocate
Ms. Smriti Singh, Advocate
Ms. Nikita Mittal, Advocate
For the Respondent/s : Mr. P.K. Verma, (AAG 3)
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 13-12-2024
Heard Mr. Bindhyachal Singh, learned Senior
Counsel, along with Mr. Vipin Kumar Singh, Ms. Smriti Singh
and Ms. Nikita Mittal, learned counsels appearing on behalf of
the petitioner and Mr. P.K. Verma, learned AAG 3 appearing on
behalf of the State.
RELIEF
2. The petitioner in paragraph no.1 of the present writ
petition have, inter alia, sought following refief(s), which is
reproduced hereinafter:
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i)For issuance of writ in the nature of
certiorari or any other appropriate writ, order or
direction for quashing letter no. 4460 dated
25.06.2021
issued by office of Superintendent of
Police whereby the recommendation has been given
for dismissal of petitioner under Article 311(2) of
the Constitution of India without holding regular
departmental proceeding as prescribed under the
Civil (Classification, Control & Appeal) Rules, 2005
(hereinafter referred to as CCA Rules, 2005).
ii) For issuance of writ in the nature of
certiorari or any other appropriate writ, order or
direction for quashing order passed by the Deputy
Inspector General, Shahabad Region, Dehri-on-
Sone contained in memo no.1708 dated 08.07.2021
whereby the order has been passed by the
disciplinary authority dismissing the petitioner from
service with effect from 08.07.2021 under Article
311(2) of the Constitution of India by giving a
reason that it is impracticable to hold regular
departmental proceeding bydeclaring the petitioner
as an absconder without any justifiable basis for
reaching such an erroneous conclusion.
iii) For issuance of writ in the nature of
certiorari or any other appropriate writ, order or
direction for quashing the consequential order
issued under the Bhojpur District Order no. 2140
dated 10.07.2021 issued by office of Superintendent
of Police, Bhojpur.
iv) For issuance of writ in the nature of
Certiorari or any other appropriate writ, order or
direction for quashing order dated 02.11.2022
issued by Appellate Authority whereby departmental
appeal preferred by the Petitioner has been rejected
without any reason assigned in the said Appellate
order and by merely relying on the order passed by
the Disciplinary authority.
v) For holding under the Respondent
Authorities have reached to an erroneous
conclusion that it is impracticable to hold regular
departmental proceeding in the case of petitioner
and by merely resorting to Article 311(2) of the
Constitution of India by holding that the petitioner
hasbeen an absconder without appreciating that
petitioner is continuously present and ready and
willing to participate in proceeding, if any.
vi) For holding that the order of
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dismissal passed against the petitioner under Article
311(2) of the Constitution of India is merely an eye
wash in utter violation of concerned statutory
provisions including CCA Rules, 2005 as well as
Bihar Police Manual as the petitioner has never
been absconding.
vii) For issuance of any other
appropriate writ, order or direction which your
Lordships may deem fit and proper in the facts and
circumstances of the case.
BRIEF FACTS
3. The brief facts of the case are that the petitioner
was posted as Officer-in-Charge of Sahar Police Station and
while, he was posted during this period, a written complaint was
filed on 05.06.2021 by one Sanjay Yadav alleging that money
was collected from sand loaded truck at night by one Ashok
Singh, who was extorting money from truck driver for the
petitioner and on such allegation, an FIR was registered being
Sahar P.S. Case no.- 123/2021 dated 06.06.2021 against the
petitioner and one Ashok Singh under Sections 341, 323, 384,
385, 420, 388, 504, 506 and 34 of the Indian Penal Code. On the
basis of criminal case lodged against the petitioner, he was put
under suspension vide order dated 06.06.2021 and thereafter, a
recommendation was made vide letter no. 4460 dated
25.06.2021 issued by Superintendent of Police, Bhojpur,
whereby petitioner was recommended for dismissal from
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service without holding any regular departmental enquiry
prescribed under Article 311 (2) of the Constitution of India and
Bihar Government Servants (Classification, Control & Appeal)
Rules, 2005 (hereinafter referred to as the ‘Bihar CCA Rules,
2005’). It was also mentioned in the recommendation letter that
the petitioner was absconding and in light of the same it is
reasonably impracticable to hold regular departmental
proceeding as per the procedure prescribed under Article 311
(2). Thereafter, following the recommendation made by
Superintendent of Police, an order was passed by the Deputy
Inspector General (hereinafter referred to as the DIG for short),
Shahabad Region, Dehri-in-Sone vide Memo no.- 1708 dated
08.07.2021, whereby the order has been passed dismissing the
petitioner from service with effect from 08.07.2021 stating
reason that it is impracticable to hold regular departmental
proceeding by declaring the petitioner as an absconder. Pursuant
to the order passed by the DIG, a consequential Bhojpur District
order no.- 2140 dated 10.07.2021 was issued from the office of
Superintendent of Police, Bhojpur. Being aggrieved by the order
of dismissal, the petitioner preferred an appeal on 30.09.2021
requesting that he is entitled for a regular departmental
proceeding so as to file his reply on the allegation/charges
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levelled against him that leads to his dismissal from service. The
Appellate Authority rejected the appeal filed by the petitioner
vide order dated 02.11.2022. Aggrieved by the dismissal order
and the appellate order, the petitioner has preferred the present
writ petition.
4. In compliance of order dated 12.12.2024 passed in
the present writ petition, the Superintendent of Police,
(Bhojpur), Mr. Raj, is present in person along with the original
records related to the disciplinary proceeding initiated against
the petitioner.
ARGUMENT OF PARTIES
5. Learned counsel appearing on behalf of the
petitioner submitted that petitioner was posted as Officer-in-
Charge of Sahar Police Station and while he was posted during
the said period, a written complaint was filed on 05.06.2021 by
one Sanjay Yadav and FIR was registered being Sahar P.S. Case
no.- 123/2021 dated 06.06.2021 against the petitioner and one
Ashok Singh on allegation of extorting money from truck
drivers. The petitioner faced unnecessary criminal prosecution
and the departmental proceeding was initiated against the
petitioner and he was dismissed from service without any
cogent reason assigned by the Disciplinary Authority. The
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Disciplinary Proceeding was initiated behind the back of the
petitioner and resorting to the provisions of Rule 20 of the Bihar
CCA Rules, 2005, he was dismissed from the service on the
alleged ground that the petitioner was absconding and it was not
practical to hold regular departmental proceeding.
6. Learned counsel further submitted that in
connection with Sahar P.S. Case no.- 123/2021, the
Investigating officer, on the basis of material collected in course
of investigation, submitted final form having found the
petitioner to be innocent and, accordingly, learned Special Judge
Vigilance, Patna vide order dated 03.10.2024/04.10.2024 passed
in Special Case No. 22(A) of 2021 (arising out of Sahar
(Bhojpur) P.S. Case No. 123 of 2021) was pleased to close the
proceeding. The Petitioner in this regard has brought on record
the final form submitted and has given specific information in
paragraph no. 5 of the supplementary affidavit. Learned counsel
submitted that since the petitioner has been found innocent in
the criminal case and the learned Dis Judge has closed the
proceeding, the disciplinary action taken against the petitioner is
required to be interfered with in accordance with law.
7. Mr. P.K. Verma, learned Senior Counsel and
Additional Advocate General-3 (AAG-3), appearing on behalf
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of the State, in the background of the admitted facts as stated
hereinabove, referring to the Constitutional provision and its
mandate contained in Article 311(2)(b) submitted that in the
case of the petitioner, the petitioner was accused of Sahar P.S.
Case No. 123 of 2021, which was lodged against him while he
was caught red handed taking illegal gratification from sand
mining mafias and such grievous charge against the petitioner,
who was in discipline service, required for taking immediate
action against him and accordingly resorting to Rule 20 of Bihar
CCA Rules, 2005, the petitioner was put under suspension and
order of dismissal was imposed. Learned counsel submitted that
procedure as prescribed under Rule 20 of Bihar CCA rules,
2005 and after having found that there was sufficient material,
the Disciplinary Authority had passed the impugned order of
dismissal contained in Memo No. 1708 dated 08.07.2021 on the
basis of recommendation of the Superintendent of Police,
Bhojpur, Contained in letter no. 4460 dated 25.06.2021. The
Special procedure as prescribed under Rule 20 of Bihar CCA
Rules,2005 was applied in the case of the petitioner in the
special circumstances, which was required in government
interest and also it was not practical to hold enquiry as the
petitioner remained absconding throughout the entire
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proceeding. In these background, learned counsel submitted that
the Impugned Order contained in Memo No. 1708 dated
08.07.2021 and the Appellate Order dated 02.11.2022, were
passed in accordance with law and no interference of this Court
in exercise of extraordinary jurisdiction is required and
submitted that the present writ petition is fit to be dismissed.
ANALYSIS & CONCLUSION
8. Heard the parties.
9. The issue involved in the present writ petition is, as
to whether, in want of the satisfaction recorded by the
Disciplinary Authority to the extent that it was reasonably not
practical to hold and enquiry in the interest of State after
considering the circumstances of the case before imposing
penalty against the petitioner is in accordance with the provision
contained in Article 311(2)(b) of the Constitution of India and
Rule 20 of the Bihar CCA Rules, 2005?
10. Before I proceed to analyze, Article 311(2)(b) of
the Constitution of India and Rule 20 of the Bihar CCA Rules,
2005 provides for special procedure in cases where it is
reasonably not practicle to hold an enquiry as per the procedure
prescribed in Article 311(2)(b) of the Constitution of India and
Rules 17 and 19 of the Bihar CCA Rules, 2005. I find it apt to
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reproduce the mandate of Constitution contained in Article 311
(2) (b):
“311. Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State-
(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 apply–
(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”
11. The above clause makes it clear that the onus is
on the Disciplinary Authority to record its satisfaction in writing
of the reason, as to why, it would not reasonably be practicable
to hold such inquiry where the authority is empowered to
dismiss a person. The provision makes it mandatory in case it is
non-negotiable must record reason in writing for dispensing
with a disciplinary inquiry which would have an indelible
impact on the person who is removed, dismissed from service or
reduced in rank without an inquiry. The reason recorded must
reflect the attending circumstances which would make it
reasonably impracticable for the authority to hold the inquiry
before imposing the penalty.
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12. I also find it proper to take notice of the
provision contained in Rules 16,17 and specially Rule 20, which
is reproduced hereinafter:
16. Authority to institute proceedings.
(1) The Government or appointing authority or any
authority to which the appointing authority is
subordinate or any other authority empowered by
general or special order of the Government may-
(a)institute disciplinary proceedings against any
Government Servant;
(b) direct a disciplinary authority to institute disciplinary
proceedings against any Government Servant on whom
that disciplinary authority is competent to impose any of
the penalties specified in Rule 14 under these Rules.
(2) A disciplinary authority, competent under these Rules
to impose any of the penalties specified in clauses (i) to
(v) of Rule 14, may institute disciplinary proceedings
against any government servant for the imposition of any
of the penalties specified in clauses [(vi) to (xi)]
[Substituted by Notification No. 3/M-166/2006-Ka-2797,
dated 20.8.2007] of Rule 14 notwithstanding that such
disciplinary authority is not competent under these Rules
to impose any of the penalties under clauses [(vi) to (xi)]
[Substituted by Notification No. 3/M-166/2006-Ka-2797,
dated 20.8.2007] of Rule 14.
17. Procedure for imposing major penalties.
(1) No order imposing any of the penalties specified in
clauses [(vi) to (xi)] [Substituted by Notification No.
3/M-166/2006-Ka-2797, dated 20.8.2007] of Rule 14
shall be made without holding an inquiry, as far as may
be, in the manner provided in these Rules.
(2) Wherever the disciplinary authority is of the opinion
that there are grounds for inquiring about the truth of
any imputation of misconduct or misbehaviour against a
government servant, he may himself inquire into it, or
appoint under these Rules an authority to inquire about
the truth thereof.Explanation. – Where the disciplinary
authority himself holds the inquiry, any reference in sub-
rule (7) to sub-rule (20) and in sub-rule (22) of this Rule
to the inquiring authority shall be construed as a
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reference to the disciplinary authority.
(3) Where it is proposed to hold an inquiry against a
government servant under this Rule, the disciplinary
authority shall draw up or cause to be drawn up-
(I) the substance of the imputations of misconduct or
misbehaviour as a definite and distinct article of charge;
(ii) a statement of the imputations of misconduct or
misbehaviour in support of each article of charge, which
shall contain-
(a) a statement of all relevant facts including any
admission or confession made by the Government
Servant;
(b) a list of such document by which, and a list of such
witnesses by whom, the articles of charge are proposed
to be sustained.
(4) The disciplinary authority shall deliver or cause to be
delivered to the Government Servant a copy of the
articles of charge, such statement of the imputations of
misconduct or misbehaviour and a list of documents and
witnesses by which each article of charge is proposed to
be sustained and shall require the Government Servant to
submit, within such time as may be specified, a written
statement of his defence and to state whether he desires
to be heard in person.
(5) (a) On receipt of the written statement of defence, the
disciplinary authority may himself inquire into such of
the articles of charge which are not admitted, or, if it
thinks necessary to appoint, under sub-rule (2) of this
Rule, an inquiry authority for the purpose he may do so
and where all the articles of charges have been admitted
by the Government Servant in his written statement of
defence, the disciplinary authority shall record his
findings on each charge after taking such evidence as it
may think fit and shall take action in the manner laid
down in Rule 18.
(b) If no written statement of defence is submitted by the
Government Servant, the disciplinary authority may itself
inquire into the articles of charge or may, if it thinks
necessary to appoint, under sub-rule (2) of this Rule an
inquiry authority for the purpose, it may do so.
(c) Where the disciplinary authority itself inquires into
any article of charge or appoints an inquiring authority
for holding an inquiry about such charge, it may, by an
order, appoint a government servant or a legal
practitioner to be known as the “Presenting officer’ to
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present on his behalf the case in support of the articles of
charge.
(6) The disciplinary authority shall, where it is not the
inquiring authority, forward the following records to the
inquiring authority-(i)a copy of the articles of charge
and the statement of the imputations of misconduct or
misbehaviour;(ii)a copy of the written statement of
defence, if any, submitted by the government servant:
(iii)a copy of the statement of witnesses, if any, specified
in sub-rule (3) of this Rule.(iv)evidence proving the
delivery of the documents specified to in sub-Rule (3) to
the Government Servant; and(v)a copy of the order
appointing the “Presenting officer”.
(7) The Government Servant shall appear in person
before the inquiring authority on such day and at such
time within ten working days from the date of receipt by
him of the articles of charge and the statement of the
imputations of misconduct or misbehaviour, as the
inquiring authority may, by a notice in writing, specify in
this behalf or within such further time, not exceeding ten
days, as may be specified by the inquiring authority.
(8) (a) The Government Servant may take the assistance
of other Government Servant posted in any office, either
at his headquarter or at the place where the inquiry is to
be held, to present the case on his behalf:Provided that
he may not engage a legal practitioner for the purpose,
unless the Presenting Officer appointed by the
disciplinary authority is a legal practitioner, or the
disciplinary authority, having regard to the
circumstances of the case, so permits:Provided also that
the Government Servant may take the assistance of any
other Government Servant posted at any other station, if
the inquiring authority having regard to the
circumstances of the case, and for reasons to be recorded
in writing so permits:Provided further that the
Government Servant shall not take the assistance of any
such other Government Servant who has three pending
disciplinary cases on hand in which he has to give
assistance.
(b) The Government Servant may take the assistance of a
retired government servant to present the case on his
behalf, subject to such conditions as may be specified by
the Government from time to time by general or special
order in this behalf.
(9) If the Government Servant, who has not admitted any
of the articles of charge in his written statement of
defence or has not submitted any written statement of
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authority shall ask him whether he is guilty or has to say
anything for his defence and if he pleads guilty to any of
the articles of charge, the inquiring authority shall
record the plea, sign the record and obtain the signature
of the Government Servant thereon.
(10) The inquiring authority shall return a finding of
guilt in respect of those articles of charge to which the
Government Servant pleads guilty.
(11) The inquiring authority shall, if the Government
Servant fails to appear within the specified time or
refuses or omits to plead, require the Presenting Officer
to produce the evidence by which he proposes to prove
the articles of charge, and shall adjourn the case to a
later date not exceeding thirty days, after recording an
order that the Government Servant may, for the purpose
of preparing his defence,-
(i) inspect within five days of the order or within such
further time not exceeding five days as the inquiring
authority may allow the documents specified in the list in
sub-rule (3);
(ii) submit a list of witnesses to be examined on his
behalf;Note:-If the Government Servant applies in
writing for the supply of copies of the statements of
witnesses mentioned in the list referred to in sub-rule (3),
the inquiring authority shall furnish him with such copies
as early as possible.
(iii) give a notice within ten days of the order or within
such further time as the inquiring authority may allow
for the discovery or production of any documents which
are in the possession of Government but not mentioned in
the list specified in sub-rule (3) of this Rule:Provided
that the Government Servant shall indicate the relevance
of the documents required by him to be discovered or
produced by the Government.
(12) The inquiring authority shall, on receipt of the
notice for the discovery or production of documents,
forward the same or copies thereof to the authority in
whose custody or possession the documents are kept,
with a requisition for the production of the document by
such date as may be specified in such
requisition:Provided that the inquiring authority may, for
reasons to be recorded by it in writing, refuse to
requisition such of the documents as are, in its opinion,
not relevant to the case.
(13) On receipt of the requisition specified in sub-rule
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possession of the requisitioned documents shall produce
the same before the inquiring authority:Provided that if
the authority, having the custody or possession of the
requisitioned documents, is satisfied, for reasons to be
recorded by it in writing, that the production of all or any
of such documents will be against public interest or
security of the State, he shall inform the inquiring
authority accordingly and the inquiring authority shall,
on being so informed, communicate the information to
the Government Servant and withdraw the requisition
made by it for the production or discovery of such
documents.
(14) On the date fixed for the inquiry, the oral and
documentary evidence by which the articles of charge
are proposed to be proved shall be produced by or on
behalf of the disciplinary authority. The witnesses shall
be examined by or on behalf of the Presenting Officer
and may be cross-examined by or on behalf of the
Government Servant. The Presenting Officer shall be
entitled to re-examine the witnesses on any points on
which they have been cross-examined, but not on any
new matter, without the leave of the inquiring authority.
The inquiring authority may also put such questions to
the witnesses, as it thinks fit.
(15) If it shall appear necessary before the close of the
case on behalf of the disciplinary authority, the inquiring
authority may, in his discretion, allow the Presenting
Officer to produce evidence not included in the list given
to the Government Servant or may itself call for new
evidence or recall and re-examine any witness and in
such case the Government Servant shall be entitled to
have, if he demands it, a copy of the list of further
evidence proposed to be produced and an adjournment of
the inquiry for three clear days before the production of
such new evidence, exclusive of the day of adjournment
and the day to which the inquiry is adjourned. The
inquiring authority shall give the Government Servant an
opportunity of inspecting such documents before they are
taken on the record. The inquiring authority may also
allow the Government Servant to produce new evidence,
if it is of the opinion that the production of such evidence
is necessary in the interests of justice:Provided that new
evidence shall not be permitted or called for or any
witness shall not be recalled to supplement the evidence.
Such evidence may be called for if there is any inherent
lacuna or defect in the evidence, produced originally.
(16) When the case for the disciplinary authority is
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closed, the Government Servant shall be required to state
his defence, orally or in writing, as he may prefer. If the
defence is made orally, it shall be recorded and the
Government Servant shall be required to sign the record.
In either case a copy of the statement of defence shall be
given to the Presenting Officer, if any, appointed.
(17) The evidence on behalf of the Government Servant
shall then be produced. The Government Servant may
examine himself in his own behalf if he so prefers. The
witnesses produced by the Government Servant shall
then be examined and they shall be liable to examination,
cross-examination and, re-examination by the inquiring
authority according to the provisions applicable to the
witnesses for the disciplinary authority.
(18) The inquiring authority may, after the Government
Servant closes his case, and shall, if the Government
Servant has not examined himself, generally question
him on the circumstances appearing against him in the
evidence for the purpose of enabling the Government
Servant to explain any circumstances appearing in the
evidence against him.
(19) The inquiring authority may, after the completion of
the production of evidence, hear the Presenting Officer, if
any, appointed and the Government Servant, or permit
them to file written briefs of their respective case, if they
so desire.
(20) If the Government Servant to whom a copy of the
articles of charge has been delivered, does not submit the
written statement of defence on or before the date
specified for the purpose or does not appear in person
before the inquiring authority or otherwise fails or
refuses to comply with the provisions of this Rule, the
inquiring authority may hold the inquiry ex-parte.
(21) (a) Where a disciplinary authority competent to
impose any of the penalties specified in clauses (i) to (v)
of Rule 14 [but not competent to impose any of the
penalties specified in clauses [(vi) to (xi)] [Substituted by
Notification No. 3/M-166/2006-Ka-2797, dated
20.8.2007.] of Rule 14], has himself inquired into or
caused to be inquired into the article of any charge and
that authority having regard to his own findings or
having regard to its decision on any of the findings of
any inquiring authority appointed by it, is of the opinion
that the penalties specified in clauses [(vi) to (xi)]
[Substituted by Notification No. 3/M-166/2006-Ka-2797,
dated 20.8.2007.] of Rule 14 should be imposed on the
government servant, that authority shall forward the
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records of the inquiry to such disciplinary authority as is
competent to impose the penalties mentioned in clause
[(vi) to (xi)] [Substituted by Notification No. 3/M-
166/2006-Ka-2797, dated 20.8.2007.] of Rule 14.
(b) The disciplinary authority to which the records are so
forwarded may act on the evidence on the records or
may, if he is of the opinion that further examination of
any of the witnesses is necessary in the interests of
justice, recall the witnesses and examine, cross-examine
and re-examine the witnesses and may impose on the
Government Servant such penalties as it may deem fit in
accordance with these Rules.
(22) Whenever any inquiring authority, after having
heard and recorded the whole or any part of the evidence
in an inquiry ceases to exercise jurisdiction therein, and
is succeeded by another inquiring authority which has
and which exercises, such jurisdiction the inquiring
authority so succeeding may act on the basis of evidence
so recorded by its predecessor, or partly recorded by its
predecessor and partly recorded by itself:Provided that if
the succeeding inquiring authority is of the opinion that
further examination of any of the witnesses whose
evidence has already been recorded is necessary in the
interest of justice, it may recall, examine, cross-examine
and reexamine any such witnesses as hereinbefore
provided.
(23) (I) After the conclusion of the inquiry, a record shall
be prepared and it shall contain:-
(a) the articles of charge and the statement of the
imputations of misconduct or misbehavior;
(b) the defence of the Government Servant in respect of
each article of charge.
(c) an assessment of the evidence in respect of each
article of charge,
(d) the findings on each article of charge and the reasons
thereof.
Explanation. – If in the opinion of the inquiring authority
the proceedings of the inquiry may establish any article
of charge different from the original articles of the
charge, he may record his findings on such article of
charge:Provided that the findings on such article of
charge shall not be recorded unless the Government
Servant has either admitted the facts on which such
article of charge is based or has had a reasonable
opportunity of defending himself against such article of
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charge.
(ii) The inquiring authority, where it is not itself the
disciplinary authority, shall forward to the disciplinary
authority the records of inquiry which shall include-
(a) the report prepared by it under clause (i) of this sub
rule;
(b) the written statement of defence, if any, submitted by
the Government Servant;
(c) the oral and documentary evidence produced in the
course of the inquiry;
(d) written briefs, if any, filed by the Presenting Officer
or the Government Servant or both during the course of
the inquiry; and
(e) the orders, if any, made by the disciplinary authority
and the inquiring authority in regard to the inquiry.
20. Special procedure in certain cases.
– Notwithstanding anything contained in Rules 17 to 19-
(i) where any 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
reasons to be recorded by him in writing that it is not
reasonably practicable to hold an inquiry in the manner
provided in these Rules, or
(iii) where the Government is satisfied that in the interest
of the State, it is not expedient to hold any inquiry in the
manner provided in these Rules, the disciplinary
authority may consider the circumstances of the case and
make such orders thereon as it deems fit:Provided that
the Government Servant may be given an opportunity of
making representation on the penalty proposed to be
imposed before any order is made in a case under clause
(i):Provided further that the Commission shall be
consulted, where such consultation is necessary, before
any orders are made in any case under this Rule.
13. In the fact of the case, I find that it is not denied
that the disciplinary authority has not found unreasonable to
proceed with regular departmental enquiry which required the
evidence produced to substantiate his claim by not holding that
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
18/36
the unauthorized absence was willful and after considering the
eventuality before it summarized that enquiry was impractical
on the basis of recommendation dated 25.06.2021 contained in
Letter No. 4460 of Superintendent of Police, Bhojpur. The
Disciplinary Authority in case of the petitioner is DIG and from
the records, which has been perused by the learned Senior
Counsel in presence of the Superintendent of Police in the Court
only reflects that the Superintendent of Police, who is not the
Disciplinary Authority has only recorded that no application or
prior permission for leave was submitted by the petitioner and
he willfully remained absent. The Disciplinary Authority, the
DIG noting would reflect that he has not considered on his own
to discuss the compelling circumstances under which it was not
possible for the petitioner to report or perform duty was willful
and will amount to misconduct. In the similar circumstances, the
Apex Court in case of Krushnakant B. Parmar vs Union of
India and another reported in (2012) 3 SCC 178 in para nos.-
17, 18 and 19, the Apex Court observed as under:-
“17. If the absence is the result of compelling
circumstances under which it was not possible to report
or perform duty, such absence cannot be held to be
willful. Absence from duty without any application or
prior permission may amount to unauthorised absence,
but it does not always mean willful. There may be
different eventualities due to which an employee may
abstain from duty, including compelling circumstances
beyond his control like illness, accident, hospitalization,
etc. but in such case the employee cannot be held guilty
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
19/36of failure of devotion to duty or behaviour unbecoming of
a government servant.
18.In a departmental proceeding, if allegation of
unauthorised absence from duty is made, the disciplinary
authority is required to prove that the absence is willful,
in the absence of such finding, the absence will not
amount to misconduct.
19. In the present case the inquiry officer on appreciation
of evidence though held that the appellant was
unauthorisedly absent from duty but failed to hold that
the absence was willful; the disciplinary authority as
also the appellate authority, failed to appreciate the same
and wrongly held the appellant guilty.”
14. The Apex Court analyzing the law laid down in
various cases summarized the different situation in holding of
departmental enquiry in the case of Avtar Singh v. Union of
India, reported in (2016) 8 SCC 471: wherein, paragraphs no.
34, 35, 36, 37 and 38 of the judgment of is reproduced herein
below:
34. No doubt about it that verification of character and
antecedents is one of the important criteria to assess
suitability and it is open to employer to adjudge
antecedents of the incumbent, but ultimate action should
be based upon objective criteria on due consideration of
all relevant aspects.
35. Suppression of “material” information presupposes
that what is suppressed that “matters” not every
technical or trivial matter. The employer has to act on
due consideration of rules/instructions, if any, in exercise
of powers in order to cancel candidature or for
terminating the services of employee. Though a person
who has suppressed the material information cannot
claim unfettered right for appointment or continuity in
service but he has a right not to be dealt with arbitrarily
and exercise of power has to be in reasonable manner
with objectivity having due regard to facts of cases.
36. What yardstick is to be applied has to depend upon
the nature of post, higher post would involve more
rigorous criteria for all services, not only to uniformed
service. For lower posts which are not sensitive, nature of
duties, impact of suppression on suitability has to be
considered by authorities concerned considering
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
20/36post/nature of duties/services and power has to be
exercised on due consideration of various aspects.
37. The “McCarthyism” is antithesis to constitutional
goal, chance of reformation has to be afforded to young
offenders in suitable cases, interplay of reformative
theory cannot be ruled out in toto nor can be generally
applied but is one of the factors to be taken into
consideration while exercising the power for canceling
candidature or discharging an employee from service.
38. We have noticed various decisions and tried to
explain and reconcile them as far as possible. In view of
the aforesaid discussion, we summarise our conclusion
thus:
38.1. Information given to the employer by a candidate as
to conviction, acquittal or arrest, or pendency of a
criminal case, whether before or after entering into
service must be true and there should be no suppression
or false mention of required information.
38.2. While passing order of termination of services or
cancellation of candidature for giving false information,
the employer may take notice of special circumstances of
the case, if any, while giving such information.
38.3. The employer shall take into consideration the
government orders/instructions/rules, applicable to the
employee, at the time of taking the decision.
38.4. In case there is suppression or false information of
involvement in a criminal case where conviction or
acquittal had already been recorded before filling of the
application/verification form and such fact later comes to
knowledge of employer, any of the following recourses
appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction had
been recorded, such as shouting slogans at young age or
for a petty offence which if disclosed would not have
rendered an incumbent unfit for post in question, the
employer may, in its discretion, ignore such suppression
of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case
which is not trivial in nature, employer may cancel
candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case
involving moral turpitude or offence of heinous/serious
nature, on technical ground and it is not a case of clean
acquittal, or benefit of reasonable doubt has been given,
the employer may consider all relevant facts available as
to antecedents, and may take appropriate decision as to
the continuance of the employee.
38.5. In a case where the employee has made declaration
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
21/36truthfully of a concluded criminal case, the employer still
has the right to consider antecedents, and cannot be
compelled to appoint the candidate.
38.6. In case when fact has been truthfully declared in
character verification form regarding pendency of a
criminal case of trivial nature, employer, in facts and
circumstances of the case, in its discretion, may appoint
the candidate subject to decision of such case.
38.7. In a case of deliberate suppression of fact with
respect to multiple pending cases such false information
by itself will assume significance and an employer may
pass appropriate order cancelling candidature or
terminating services as appointment of a person against
whom multiple criminal cases were pending may not be
proper.
38.8. If criminal case was pending but not known to the
candidate at the time of filling the form, still it may have
adverse impact and the appointing authority would take
decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service,
holding departmental enquiry would be necessary before
passing order of termination/removal or dismissal on the
ground of suppression or submitting false information in
verification form.
38.10. For determining suppression or false information
attestation/verification form has to be specific, not vague.
Only such information which was required to be
specifically mentioned has to be disclosed. If information
not asked for but is relevant comes to knowledge of the
employer the same can be considered in an objective
manner while addressing the question of fitness.
However, in such cases action cannot be taken on basis of
suppression or submitting false information as to a fact
which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or
suggestio falsi, knowledge of the fact must be attributable
to him.
15. Now, the question to be determined whether in
absence of subjective satisfaction of the Disciplinary Authority,
the petitioner, against whom the criminal proceeding has been
closed on the basis of the final form submitted by the
Investigating Officer in connection with Sahar P.S. Case no.-
123/2021 dated 06.06.2021, the order of dismissal can be
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
22/36
interfered? I think it proper to discuss the parameter, which
empowers the Disciplinary Authority to exercise its jurisdiction
in accordance with Rule 20 in case of the petitioner. Similar
question was considered by a Constitution Bench of Hon’ble
Supreme Court in Union of India and another v. Tulsiram
Patel, reported in (1985) 3 SCC 398. The question was decided
with reference to the provisions of clause (2) of Article 311,
which we have already noticed hereinabove are pari materia to
the Rules here. It is observed in Tulsiram Patel (supra)
regarding the validity of Rules providing for exclusion of
natural justice in the following terms:
“106. It is not possible to accept this submission.
The opening words of Article 309 make that article expressly
“Subject to the provisions of this Constitution”. Rules made under
the proviso to Article 309 or under Acts referable to that article
must, therefore, be made subject to the provisions of the
Constitution if they are to be valid. Article 310(1) which
embodies the pleasure doctrine is a provision contained in the
Constitution. Therefore, rules made under the proviso to Article
309 or under Acts referable to that article are subject to Article
310(1). By the opening words of Article 310(1) the pleasure
doctrine contained therein operates “Except as expressly
provided by this Constitution”. Article 311 is an express provision
of the Constitution. Therefore, rules made under the proviso to
Article 309 or under Acts referable to Article 309 would be
subject both to Article 310(1) & Article 311. This position was
pointed out by Subba Rao, J., as he then was, in his separate but
concurring judgment in Moti Ram Deka case [AIR 1964 SC 600 :
(1964) 5 SCR 683, 734-5 : (1964) 2 LLJ 467] at p. 734, namely,
that rules under Article 309 are subject to the pleasure doctrine
and the pleasure doctrine is itself subject to the two limitations
imposed thereon by Article 311. Thus, as pointed out in that case,
any rule which contravenes clause (1) or clause (2) of Article 311
would be invalid. Where, however, the second proviso applies,
the only restriction upon the exercise of the pleasure of the
President or the Governor of a State is the one contained in
clause (1) of Article 311. For an Act or a rule to provide that in a
case where the second proviso applies any of the safeguards
excluded by that proviso will be available to a government
servant would amount to such Act or rule impinging upon the
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
23/36pleasure of the President or Governor, as the case may be, and
would be void as being unconstitutional. It is, however, a well-
settled rule of construction of statutes that where two
interpretations are possible, one of which would preserve and
save the constitutionality of the particular statutory provision
while the other would render it unconstitutional and void, the one
which saves and preserves its constitutionality should be adopted
and the other rejected. Such constitutionality can be preserved by
interpreting that statutory provision as directory and not
mandatory. It is equally well-settled that where a statutory
provision is directory, the courts cannot interfere to compel the
performance or punish breach of the duty created by such
provision and disobedience of such provision would not entail
any invalidity — see Craies on Statute Law, Seventh Edn., at p.
229. In such a case breach of such statutory provision would not
furnish any cause of action or ground of challenge to a
government servant for at the very threshold, such cause of
action or ground of challenge would be barred by the second
proviso to Article 311(2).” Article 309 would be subject both to
Article 310(1) & Article 311. This position was pointed out by
Subba Rao, J., as he then was, in his separate but concurring
judgment in Moti Ram Deka case [AIR 1964 SC 600 : (1964) 5
SCR 683, 734-5 : (1964) 2 LLJ 467] at p. 734, namely, that rules
under Article 309 are subject to the pleasure doctrine and the
pleasure doctrine is itself subject to the two limitations imposed
thereon by Article 311. Thus, as pointed out in that case, any rule
which contravenes clause (1) or clause (2) of Article 311 would
be invalid. Where, however, the second proviso applies, the only
restriction upon the exercise of the pleasure of the President or
the Governor of a State is the one contained in clause (1) of
Article 311. For an Act or a rule to provide that in a case where
the second proviso applies any of the safeguards excluded by that
proviso will be available to a government servant would amount
to such Act or rule impinging upon the pleasure of the President
or Governor, as the case may be, and would be void as being
unconstitutional. It is, however, a well-settled rule of construction
of statutes that where two interpretations are possible, one of
which would preserve and save the constitutionality of the
particular statutory provision while the other would render it
unconstitutional and void, the one which saves and preserves its
constitutionality should be adopted and the other rejected. Such
constitutionality can be preserved by interpreting that statutory
provision as directory and not mandatory. It is equally well-
settled that where a statutory provision is directory, the courts
cannot interfere to compel the performance or punish breach of
the duty created by such provision and disobedience of such
provision would not entail any invalidity — see Craies on Statute
Law, Seventh Edn., at p. 229. In such a case breach of such
statutory provision would not furnish any cause of action or
ground of challenge to a government servant for at the very
threshold, such cause of action or ground of challenge would be
barred by the second proviso to Article 311(2).”
16. It is, therefore, in accordance with the
constitutional scheme that service rules excluding natural justice
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
24/36
have to be reflections of clause (b) of the second proviso to
Article 311(2) of the Constitution.
17. The parameters, on which the power to dispense
with an inquiry under clause (b) of the second proviso to Article
311(2) of the Constitution is exercised, have been elaborately
laid down by the Constitution Bench in Tulsiram Patel (supra).
In the said judgment, it has been held as follows:
“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
“impracticable”. According to the Oxford English
Dictionary “practicable” means “Capable of being put
into practice, carried out in action, effected,
accomplished, or done; feasible”. 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: feasible”. Further, the words used are not
“not practicable” but “not reasonably practicable”.
Webster’s Third New International Dictionary defines
theword “reasonably” as “in a reasonable manner: to a
fairly sufficient extent”. 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
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
25/36indiscipline 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 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 aninquiry 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.
131. It was submitted that where a
delinquent government servant so terrorizes the
disciplinary authority that neither that officer nor any
other officer stationed at that place is willing to hold the
inquiry, some senior officer can be sent from outside to
hold the inquiry. This submission itself shows that in
such a case the holding of an inquiry is not reasonably
practicable. It would be illogical to hold that the
administrative work carried out by senior officers should
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
26/36be paralysed because a delinquent government servant
either by himself or along with or through others makes
the holding of an inquiry not reasonably practicable.
132. It is not necessary that a situation
which makes the holding of an inquiry not reasonably
practicable should exist before the disciplinary inquiry is
initiated against a government servant. Such a situation
can also come into existence subsequently during the
course of an inquiry, for instance, after the service of a
charge-sheet upon the government servant or after he
has filed his written statement thereto or even after
evidence has been led in part. In such a case also the
disciplinary authority would be entitled to apply clause
(b) of the second proviso because the word “inquiry” in
that clause includes part of an inquiry. It would also not
be reasonably practicable to afford to the government
servant an opportunity of hearing or further hearing, as
the case may be, when at the commencement of the
inquiry or pending it the government servant absconds
and cannot be served or will not participate in the
inquiry. In such cases, the matter must proceed ex parte
and on the materials before the disciplinary authority.
Therefore, even where a part of an inquiry has been held
and the rest is dispensed with under clause (b) or a
provision in the service rules analogous thereto, the
exclusionary words of the second proviso operate in their
full vigour and the government servant cannot complain
that he has been dismissed, removed or reduced in rank
in violation of the safeguards provided by Article 311(2).
133. The second condition necessary for
the valid application of clause (b) of the second proviso
is that the disciplinary authority should record in writing
its reason for its satisfaction that it was not reasonably
practicable to hold the inquiry contemplated by Article
311(2). This is a constitutional obligation and if such
reason is not recorded in writing, the order dispensing
with the inquiry and the order of penalty following
thereupon would both be void and unconstitutional.
134. It is obvious that the recording in
writing of the reason for dispensing with the inquiry must
precede the order imposing the penalty. The reason for
dispensing with the inquiry need not, therefore, find a
place in the final order. It would be usual to record the
reason separately and then consider the question of the
penalty to be imposed and pass the order imposing the
penalty. It would, however, be better to record the reason
in the final order in order to avoid the allegation that the
reasonwas not recorded in writing before passing the
final order but was subsequently fabricated. The reason
for dispensing with the inquiry need not contain detailed
particulars, but the reason must not be vague or just a
repetition of the language of clause (b) of the second
proviso. For instance, it would be no compliance with the
requirement of clause (b) for the disciplinary authority
simply to state that he was satisfied that it was not
reasonably practicable to hold any inquiry. Sometimes a
situation may be such that it is not reasonably
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
27/36
practicable to give detailed reasons for dispensing with
the inquiry. This would not, however, per se invalidate
the order. Each case must be judged on its own merits
and in the light of its own facts and circumstances.”
18. The aforesaid principles laid down by the
Constitution Bench were followed by the Apex Court in case of
Southern Railway Officers Association v. Union of India and
others, reported in (2009) 9 SCC 24. These principles were
further followed and elaborated in a later decision of the Apex
Court in Ved Mitter Gill v. Union Territory Administration,
Chandigarh and Others, reported in (2015) 8 SCC 86. The
facts in Ved Mitter Gill (supra) show that while Gill was posted
as the Deputy Superintendent of Police, Model Jail, Burail,
Chandigarh in January, 2004, four under-trials, three of whom
were facing trial on the charge of assassinating a former Chief
Minister of Punjab, Sri Beant Singh and another, escaped from
Model Jail, Burail, Chandigarh by digging an underground
tunnel. Gill was dismissed from service vide order dated
01.03.2004 by the Administrator, Union Territory of Chandigarh
invoking clause (b) of the second proviso to Article 311(2). He
challenged the order of dismissal dated 01.03.2004 by preferring
departmental appeals to the Administrator of the Union
Territory. Those appeals were dismissed as not maintainable
vide order dated 11.02.2005. Gill moved the Central
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
28/36
Administrative Tribunal through an Original Application,
challenging the orders of his dismissal from service. The Central
Administrative Tribunal vide order dated 30.01.2006 dismissed
the Original Application. This order was impugned before the
High Court in a writ petition, that came to be dismissed by an
order dated 01.05.2006. It was against the order of the High
Court that Gill appealed by special leave to the Supreme Court.
Before the Supreme Court, the appeal preferred by Gill was
heard along with transferred cases, that were writ petitions filed
in the High Court by the other officers posted in Jail, who had
similarly been dismissed and their writ petitions were still
pending before the High Court by time Gill moved the Supreme
Court by his petition for special leave to appeal.
19. It was in the backdrop of these facts that after
noticing the principles laid down in Tulsiram Patel (supra),
Tarsem Singh v. State of Punjab, (2006) 13 SCC 581, State of
Punjab v. Harbhajan Singh, (2007) 15 SCC 217 and other
high authority that their Lordships held:
“22. We shall now advert to the impugned order to
determine, whether the three parameters laid down for the valid
invocation of clause (b) to the second proviso under Article
311(2) of the Constitution of India, were made out.
23. The first ingredient, which is a prerequisite to the
sustainable application of the above clause (b) is, that the
delinquency alleged should be such as would justify any one of
the three punishments, namely, dismissal, removal or reduction in
rank. We have already extracted hereinabove the order dated 1-
3-2004, whereby, the appellant Ved Mitter Gill was dismissed
from service, with immediate effect. Its perusal reveals,that the
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
29/36punishment was based on reasons (recorded in the impugned
order) divided into different compartments. The first is contained
in the first paragraph, which deals with the duties and
responsibilities vested with Ved Mitter Gill, as Deputy
Superintendent, Model Jail, Burail, Chandigarh. The second
component deals with the escape of four undertrials from Model
Jail, Burail, Chandigarh. Three of the undertrials, who had
escaped, were involved in the assassination of Shri Beant Singh,
a former Chief Minister of State of Punjab. The instant
paragraph also records, the factum that the said three undertrials
were having links with Babbar Khalsa International, a terrorist
organisation. The fourth undertrial was being tried separately,
for the offence of murder. The third component of the impugned
order, relates to the material taken into consideration to evaluate
the lapses committed by the appellant/petitioners, as would
reveal their involvement with reference to the alleged
delinquency, justifying the punishment of dismissal from service.
24. We shall now advert to the factual position emerging
from the above. A reference was first of all made to the duties and
responsibilities assigned to the appellant Ved Mitter Gill. Having
detailed the express duties assigned to him in paras 9 to 11
above, we have concluded therefrom, that the responsibility of all
the jail inmates (safe custody of all prisoners) rested on his
shoulders, and the petitioners herein, who assisted him in the
same. The appellant Ved Mitter Gill was required to satisfy
himself once in every twenty-four hours, about the safe custody of
the prisoners. He was also duty-bound to visit every barrack,
ward, cell and compartment every twenty-four hours. He was to
be present every morning and evening, when the prisoners were
taken out of the sleeping wards or cells or other compartments,
and then, restored to the same. He was to make a daily report by
daybreak and by night, that all the prisoners were present, and in
safe custody. He was also required to report forthwith any
unusual occurrence. He was required at least once a week to
inspect clothing, beddings, as well as, other articles, by
thoroughly checking all places frequented by the prisoners. And
to make a report, if he discovered any prohibited article, during
the checking. The petitioners were associated with the appellant
and assisted him in discharging his aforementioned duties. Had
the appellant Ved Mitter Gill, and the petitioners, performed their
duties diligently, there could not have been any possibility, of the
escape under reference. It cannot be overlooked, that the escape
was made good, by digging the escape tunnel, which measured
ninety-four feet in length (with diagonal dimensions of 21″ ×
21″). Six separate reasons have been expressed by the competent
authority in arriving at its conclusion. We have extracted the
impugned order dated 1-3-2004, in its entirety, hereinabove. It
fully establishes the inferences recorded by us.
25. The determination by the competent authority, when
viewed dispassionately with reference to the duties assigned to
Ved Mitter Gill, leaves no room for any doubt, that the competent
authority was justified in concluding, that the four prisoners
referred to above could never have escaped, if the appellant Ved
Mitter Gill, and the petitioners, had diligently discharged the
duties assigned to them. Having so concluded, about the
responsibility and blameworthiness of the appellant/petitioners,
there can be no doubt that the punishment of dismissal from
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
30/36service, was fully justified, as their delinquency had resulted in
the escape of four dreaded prisoners.
26. The second ingredient which needs to be met for a
valid exercise of clause (b) to the second proviso under Article
311(2) of the Constitution of India, is the satisfaction of the
competent authority, that it was not reasonably practicable to
hold a regular departmental enquiry against the employees
concerned. On the question whether it was reasonably
practicable to hold an inquiry, the competent authority has
recorded its conclusion in the paragraphs, preceding the one
depicting the involvement of the appellant/petitioners. Amongst
the reasons indicated, it has been recorded, that Ved Mitter Gill
being a senior, permanent and non-transferable officer of Model
Jail, Burail, Chandigarh, his junior jail officers, who alone
would have been witnesses in such departmental proceedings,
were not likely to come forward to depose against him, for fear of
earning his wrath in future. The links of the escaped undertrial
prisoners with the Babbar Khalsa International, a known and
dreaded terrorist organisation were also clearly expressed in the
impugned order, as one of the reasons, for it being impraticable,
to hold an inquiry against the appellant/petitioners. It is a matter
of common knowledge, and it would be proper to take judicial
notice of the fact, that a large number of terrorists came to be
acquitted during the period in question, on account of the fact
that witnesses did not appear to depose against them on account
of fear, or alternatively, the witnesses who appeared before the
courts concerned for recording their deposition, turned hostile,
for the same reason.
27. The situation presented in the factual narration
noticed in the impugned order clearly achieves the benchmark
for the satisfaction at the hands of the competent authority that it
would not have been reasonably practicable to hold a
departmental proceeding against the appellant/petitioners in
terms of the mandate contained under Article 311(2) of the
Constitution of India.
28. The third essential ingredient for a valid application
of clause (b) to the second proviso under Article 311(2) of the
Constitution of India is that, the competent authority must record
the reasons of the above satisfaction in writing. In the present
case, there is no serious dispute on this issue because the reasons
for the satisfaction have been recorded by the competent
authority in the impugned order (dated 1-3-2004) itself.
29. For the reasons recorded above, we are satisfied, that
all the parameters laid down by this Court for a valid/legal
application of clause (b) to the second proviso under Article
311(2) of the Constitution of India were duly complied with.”
20. The other issue that merits consideration is: if the
power to invoke Rule 20 of the Rules, dispensing with the
normal procedure of holding inquiry, was a valid exercise of
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
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discretion under the said Rule? The Disciplinary Authority
derives power to dispense with departmental inquiry under Rule
20, if it is satisfied that it is not reasonably practicable to hold an
inquiry in the manner provided under the Rules and records
reasons for its satisfaction. As laid down in Tulsiram Patel
(supra) that the words ‘not reasonably practicable’ do not
postulate a ‘total or absolute impracticability’, to borrow the
words of their Lordships. All that is necessary is that to the
understanding of a reasonable man, the holding of an inquiry in
the circumstances should appear impracticable. There is remark
in Tulsiram Patel (supra), which is of utmost importance on the
question what can be regarded as reasonably practicable.
Though some illustrations are given there, but it is said that,
‘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’.
21. In the backdrop of the law laid down in Tulsiram
Patel (Supra), it is first required to consider the gravity of the
charge, which entails the imposition of major penalty like
dismissal from service. The charge against the petitioner is
about being party to an act facilitating in collecting money
illegally from the truck drivers along with one co-accused
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Ashok Singh. The total money so collected was found to Rs.
7,64,300/-. The alleged illegal act in connivance with co-
accused Ashok Singh implicating the petitioner in a criminal
case is based on the confessional statement of Ashok Singh
recorded by police in custody on 06.06.2021, without there
being any acceptance of the petitioner about his involvement
with him. No material in support of the allegation of illegal
extraction of money from the truck drivers has been collected to
implicate the petitioner to have involve in the criminal act and
police upon investigation could only on the conversation of
Ashok Singh on the basis of recording of Mobile No.
8709496552, on which basis complaint case was lodged against
said Ashok Singh and petitioner, which according to me
required proper holding of enquiry. The alleged act committed
in connivance with Ashok Singh cannot be proved against the
petitioner on the basis of one sided enquiry without establishing
the authenticity of the whatsapp message audio clip, without
supported by forensic report. In such circumstances, without
any subjective satisfaction arrived by Disciplinary Authority,
merely on the basis of criminal charges against the petitioner, to
hold that it was not practical to hold the enquiry will only
amount to assumption based on the conversation of accused
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
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Ashok Singh, who has not been testified by the Disciplinary
Authority, before he has recorded in the impugned order for the
first time that it was not reasonably practical to hold enquiry.
22. In the judgment in Tarsem Singh (supra), the
Apex Court has categorically held that when the Authority is of
the opinion that it is not reasonably practicable to hold inquiry,
such finding shall be recorded on the subjective satisfaction by
the authority, and same must be based on the objective criteria.
In the aforesaid case, it is further held that reasons for
dispensing with the inquiry must be supported by material.”
23. The Disciplinary Authority by holding a
Departmental Proceeding, without appreciating the fact that the
case against the petitioner of illegal gratification will continue
and therefore, there was no occasion for concluding that in case
of holding of Departmental Proceeding would be impracticle. In
the present case, the petitioner has already been found to be
innocent and the money alleged to be paid as bride/illegal
gratification by the informant has been deposited in the account
of one Ashok Singh and not a single penny has been deposited
in the account of the petitioner and the respondents have not
denied the said fact.
24. Even in the confessional statement of Ashok
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Singh recorded by the police on 06.06.2021 itself, he has neither
took the name of the petitioner and nor accepted his
involvement with him. The mobile number -8709496552 on
which the whole conversation done and forms the basis of the
enquiry/investigation belongs to Ashok Kumar Singh and not
the petitioner.
25. The petitioner, in supplementary affidavit filed on
behalf of the petitioner, in paragraph no. 5, has specially stated
that the he has already been exonerated in criminal case after
investigation by filing a final form was submitted by the
investigating officer and the same has been accepted by the
learned District Court. The impugned order contained in and on
this ground also, the impugned order contained in Letter No.
4460 dated 25.06.2021 and subsequent orders cannot be
sustained.
26. The underlying presumption in Article 311 is that
dismissal, removal or reduction in rank of a person employed in
a civil capacity under the Union or State is not to be taken
lightly or done without following due process. The threshold to
prove dispensation of due process and compliance with the
principles of natural justice is high in all matters but particularly
heightened in Article 311(2)(b) of the Constitution of India.
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Invocation of the power without following the constitutional
mandate would render the order of penalty void as held in the
case of Tulsiram Patel (supra). Not a single instance has been
cited or relied upon by the Disciplinary Authority to arrive at of
“compelling circumstances” for invoking Article 311(2)(b), is
wholly unsupported by facts or even a credible justification. The
Apex Court in such situation held that the order of dismissal to
be abrupt, unreasoned and completely contrary to the import of
Article 311(2) (b) of the Constitution.
27. In view of the admitted facts and discussion made
hereinabove and complying the law laid down by the Apex
Court in the case of Tulsiram Patel (Supra) and Ved Mitter Gill
(Supra), the impugned communication contained in Letter No.
4460 dated 25.06.2021 of the Superintendent of Police, Bhojpur,
the order of dismissal contained in Memo No. 1708 dated
08.07.2021 passed by the Disciplinary Authority, the DIG, the
Consequential Order under the Bhojpur District Order No. 2140
dated 10.07.2021 issued by the office of Superintendent of
Police, Bhojpur and the Appellate Order dated 02.11.2022
passed by the Appellate Authority, are required to be corrected
in view of the discussion made in this order.
28. The petitioner, is at liberty, if so desire/advised,
Patna High Court CWJC No.4860 of 2023 dt.13-12-2024
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may file detailed representation before appropriate authorities to
consider his case in accordance with law.
29. Accordingly, the present writ petition is disposed
of.
30. There shall be no order as to costs.
(Purnendu Singh, J)
Niraj/-
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