ivil Appeal No 977 of 1976
From the Judgment and Order dated 831976 of the Guwahati High Court in Civil Rule No 261 of 1973
DN Mukherjee NR Choudhary and Ranjan Mukherjee for the Appellant
PG NO 325 Prabir Choudhary for the Respondents
The Judgment of the Court was delivered by OJHA J
This appeal by special leave has been preferred against the Judgment dated 8th March 1976 of the Guwahati High Court in Civil Rule No 261 of 1973
The appellant who was a Sub Inspector of Police in Assam was dismissed by the Superintendent of Police Darrang district Tezpur by Order dated 29th January 1973
This order was passed without compliance with the requirements of Article 3112 of the Constitution on the ground that it was a case to which the provisions of clause b of the second proviso to Article 3112 were attracted
The appellant preferred an appeal to the Inspector General of Police Assam Shillong
The said appeal having been dismissed he challenged the order of dismissal as well as the appellate order under Article 226 of the Constitution in Civil Rule No 261 of 1973 referred to above
The various submissions made on behalf of the appellant did not however find favour with the Learned Judges who heard the civil rule mentioned above resulting in its dismissal by the judgment appealed against
Two submissions have been made by learned counsel for the appellant i The appellant having been appointed as Sub Inspector of Police by the Inspector General of Police the order of his dismissal by the Superintendent of Police Darrang was illegal being in contravention of article 3111 of the Constitution
ii The provisions of clause b of the second proviso to article 3112 of the Constitution were not attracted to the facts of the instant case and consequently the order of dismissal was illegal having been passed without compliance with the requirements of article 3112
In order to appreciate these submissions it would be useful to extract article 311 of the Constitution
It reads Dismissal removal or reduction in rank of persons employed in civil capacities under the Union or a State 1 No person 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 a civil post under the Union or a State shall be dismissed PG NO 326 or removed by an authority subordinate to that by which he was appointed
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 a where a person is dismissed or removed in rank on the ground of conduct which has led to his conviction Oil 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 hold such inquiry or c where the President or the Governor as he the case may be is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry
3 If in respect of any such person as aforesaid a question arises whether it ia reasonably practicable to hold such inquiry as is referred to in clause 2 the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final
 Having heard learned counsel for the parties we find it difficult to agree with any of the submissions referred to above In support of his first submission learned counsel for the appellant placed reliance on a Memo dated 7th July 1967 from the office of the Inspector General of Police which According to him was the letter of appointment whereby the appellant was appointed as a Sub Inspector of Police
According to learned counsel for the appellant this being so the order of dismissal having been passed by the Superintendent of Police Darrang who was admittedly an PG NO 327 authority subordinate to that by which the appellant was appointed was on the face of it illegal
With regard to this submission we are of the opinion that the said Memo cannot be treated as the letter of appointment of the appellant
It reads as hereunder Express Office of the Inspector General of Police Assam Memo No F193Vol
1651 Shillong the 7th July 1967
From Shri PC Das IPS Deputy Inspector General of Police P Assam To Md Ikramuddin Ahmed Borah Ward No III PO Mariani Jorhat Dist
Sibsagar Subject Recruitment of temporary Sub Inspector of Police Unarmed Branch for 1967 You are hereby informed that you are provisionally selected for appointment as temporary Sub Inspector of Police UB subject to final and satisfactory police verification report
Please report to the Principal Police Training College Dergaon on 17th July 1967 positively for training failing which your name will be struck off the list of selected candidates
The details relating to books  uniform required for training in the college should be obtained from the Principal Police Training College Dergaon on your joining for the training
Your provisional appointment letter will be issued by the Principle Police Training College Dergaon on joining
 PG NO 328 In pursuance of the aforesaid Memo the Principal Police Training College Dergaon issued Memo dated 17th July 1967 the relevant portion whereof reads as under OFFICE OF THE PRINCIPAL Police Training College Dergaon
APPOINTMENT LETTER Memo No 10712A PTC dated Dergaon the 17th July 1967
Shri Ikramuddin Ahmed Borah so Late A Ahmed Borah Vill
Mariani PO Mariani PS Mariani Dist
Sibsagar is hereby informed that he has been provisionally appointed as a Cadet Sub Inspector of Police in Assam with effect from 17 7 1967 AN He should provide himself with the books and uniforms
2 to 6   7
Principal Police Training College Assam may expel or discharge him any time during the training if his progress or discipline or behaviour shows that he is not likely to be tit for Police service
Principal Police Training College Assam Dergaon
Even on a bare perusal of the two Memos mentioned above it is apparent that by Memo dated 7th July 1967 which was issued by the Deputy Inspector General of Police the appellant was only informed that he had been provisionally selected for appointment as temporary Sub Inspector of Police UBand the order of appointment was to be issued by the Principal Police Training College which indeed was issued by the subsequent Memo dated 17th July 1967
This memo seems to have been sent by the Deputy Inspector General of Police as President of the Selection Board constituted for the purpose according to the procedure for appointment of a Sub Inspector to be found in Assam Police Manual in Part III
Rule 11x at the relevant time as it appears from the judgment appealed against read as hereunder PG NO 329 11
x Direct recruitment of Sub Inspectors The final selection will be made by the Deputy Inspector General of Police sitting as President of a Selection Board which will consist of himself and 2 Superintendents of Police appointed by the Inspector General of Police
The order of appointing Probationary Sub Inspectors will be issued by the Superintendents of Police of the Districts from which the candidates are nominated
 Rule 66 deals with proceedings to be drawn up in cases of major punishment
The said rule contains a schedule
Item No 3 of column I refers to Sub Inspector of Police
Column II indicates that the appointing authorities of a Sub Inspector of Police inter alia are Superintendent of Police SPSSPCID Commandant of Battalion Principal APTC that is Assam Police Training College
Deputy Inspector General of Police is shown as the final appellate authority
Rule 11x and the schedule referred to above are the relevant provisions in pursuance whereof the selection was made of the appellant vide Memo dated 7th July 1967 and the appointment order was issued by the Principal Training College Dergaon vide Memo dated 17th July 1967
Consequently Superintendent of Police and Principal Police Training College Assam are authorities having coordinate jurisdiction according to column Il of the schedule
The appellant having been appointed by Principal Police Training College Dergaon Assam and having been dismissed by the Superintendent of Police Darrang who was a coordinate authority the submission made by the learned counsel for the appellant that the order of dismissal was illegal having been passed by an authority sub ordinate to that by which he was appointed
obviously therefore has no substance
Coming to the second submission we find it necessary to refer to the order of dismissal in extenso
It reads DO No 320 dated 29173
Whereas it has been made to appear before me that proby
Sub Inspector of Police Ikramuddin Ahmed Borah was appointed as proby
Sub Inspector of Police on l7767 against a temporary vacancy AND PG NO 330 Whereas said Ikramuddin Ahmed Borah since his joining the department his service in all branches of Police work where he had been tried leaves much to be desired and that consistent efforts by his senior officers for improving his work has proved abortive and further that despite the above drawbacks the said SI s conduct and integrity has recently been found to be doubtful and the said SI has been recently misusing his official position to the detriment of general social well being and to his personal gain
AND Whereas I am satisfied that it is not reasonably practicable to hold any inquiry as contemplated under Clause 2 of Article 311 of the Constitution of India because of non availability of witnesses who would not testify against the said SI of Police out of various considerations such as fear and because of the likelihood of causing of damage to the Police image and administration before the general public in the event of holding of such an enquiry Now therefore in exercise of powers under proviso b clause 2 of Article 311 of the Constitution of India l Shri PN Goswami Superintendent of Police Darrang District Tezpur hereby order that said Ikramuddin Ahmed Borah be dismissed from the force with effect from the date of issue of this order
Said Ikramuddin Ahmed Borah is accordingly dismissed from the police service
Sd PN Goswami PN Goswami Superintendent of Police Darrang District Tezpur
 The scope of clause b of the second proviso to Article 3112 and of Article 3113 came up for consideration before a Constitution Bench of this Court in Union of India and Anr vs Tulsi Ram Patel and Others 1985 supplementary 2 SCR page 131
While construing the clause it is not reasonably practicable to hold such enquiry used in clause b aforesaid it was held PG NO 331 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   With regard to Article 3113 of the Constitution after pointing out that where a government servant is dismissed removed or reduced in rank by applying clause b or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32 the Court will interfere on grounds well established in law for the exercise of judicial review in matters where administrative discretion is exercised it was held If the court finds that the reasons are irrelevant then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause b and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated
In considering the relevancy of the reasons given by the disciplinary authority the court will not however sit in judgment over them like a court of first appeal
In order to decide whether the reasons are germane to clause b the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done
The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court room removed in time from the situation in question
Where two views are possible the court will decline to interfere
 PG NO 332 One of the illustration justifying clause b of the second proviso to Article 3112 being invoked as indicated above is the non availability of the witnesses on account of fear of the officer concerned
In the instant case as is apparent from the impugned order of dismissal this was the main ground for invoking the said clause b
On the material on record it is not possible for us to make the view that there was an abuse of power by the disciplinary authority in invoking clause b
The Superintendent of Police who passed the order of dismissal was the best authority on the spot to assess the situation in the circumstances prevailing at the relevant time and we do not find any good ground to interfere with the view taken by the Superintendent of Police in this behalf
As pointed out in the case of Tulsi Ram Patel supra in such matters the Court will not sit in judgment over the relevancy of the reasons given by the disciplinary authority for invoking clause b like a Court of first appeal and that even in those cases where two views are possible the Court will decline to interfere
In this view of the matter we do not find any substance in the second submission either
In the result this appeal fails and dismissed but in the circumstances of the case there would be no order as to costs
NVK Appeal dismissed


Summary:
The petitioner in the Special Leave Petition is the tenant Respondent No 3 was one of the five co owners of the petition premises
On January 28 1978 one of the co owners who had sole possession of the shop vacated the shop and sent intimation of the vacancy to the Rent Controller under the UP Urban Buildings Regulation of Letting and Eviction Act 1972
The petitioner filed allotment application for the said shop and he was the sole applicant
The Rent Control Officer directed the petitioner to appear in the allotment proceedings called for a report from the Inspector found one of the co owners to he in possession of the shop and that he had discontinued the business and was going to let out the shop
The 3 other co owners never objected to the petitioner s tenancy on the allotment order
The allotment letter was accordingly passed on 12th February1978 and possession was taken up by the petitioner thereafter
On or about 25th February 1978 the 3rd respondent who was a non occupant owner filed an application under section 165 of the Act ie after 25 days of the allotment for review of the order
The Rent Controller allowed the review application and cancelled the allotment order
The Additional District Judge having dismissed the revision petition the petitioner filed a writ petition in the High Court
The question about the maintainability of the review application under section 165 of the Act at the instance PG NO 276 PG NO 277 of a non occupant owner having arisen the matter was referred to a Full Bench and by a majority the Bench came to the conclusion that such an application was maintainable
Dismissing the Special Leave Petition HELD 1
A landlord even though not in actual possession at the time of the possession of the property can ask for review of the order of release or allotment
280G 2
A landlord has a right to the property
The section should not be so construed as to defeat the right to possession of property in appropriate cases unless the intention of the Legislature is manifest
280F 3
Section 165a speaks of where the landlord or any other person 
Hence two categories of persons are contemplated ie a land lord or any other person
280C 4
The requirement of the sub section to be in lawful occupation of the building or any part thereof applies only in case of any other person claiming to be in lawful occupation and not in case of landlord
The Section has used the expression or and so the expression or is disjunctive of these two categories to be treated separately
Hence the requirement to be in lawful occupation is not there is case of an application by the landlord
280C D 5
The proviso puts an embargo of 7 days in making the application for review
It can only apply to those who were in lawful occupation at the time of the making of the original Order
It cannot curtail the rights of the landlord
as such it only affects any other person who was in lawful occupation
280E G Niren Kumar Das vs 7he District Judge Pilibhit  Ors
AIR 1977 Allahabad 47 approved