1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITIONS NO.531/2007 & 201/2009. WRIT PETITION NO.531/2007 Sandhya Gupta, d/o. Ghanshyam Prasad Gupta, major, spinster, dismissed Police Officer, r/o. C-5-A, Government Quarters, Altinho, Panaji, Goa. ......... Petitioner. V/s. 1. Director General of Police, Goa Office of the Director General of Police, Police Headquarters, Panaji, Goa. 2. State of Goa, through the Chief Secretary, Office of the Chief Secretary, Secretariat, Alto Porvorim, Goa. ........ Respondents. Mr. S. G. Dessai, Senior Advocate with Ms. S. Rodrigues, Advocate for the petitioner. Mr. S.S. Kantak, Advocate General with Mr. M. Salkar, Addl. Govt. Advocate for the respondents. 2 WRIT PETITION NO.201/2009 Shri Hemant Laxman Kankonkar, son of Laxman M. Kankonkar, 31 years old, married, Indian National, resident of House No.166, Carambolim, Pethar, Tiswadi, Ilhas, Goa. ......... Petitioner. V/s. 1. Superintendent of Police (South), Office of the Superintendent of Police (South), Margao, Goa. 2. Inspector General of Police, (Goa) Office of the Director General of Police, Police Headquarters, Panaji, Goa. 3. State of Goa, through the Chief Secretary, Office of the Chief Secretary, Secretariat, Alto Porvorim, Goa. ........ Respondents. Mr. S. G. Dessai, Senior Advocate with Ms. S. Rodrigues, Advocate for the petitioner. Mr. Sameer Bandodkar, Addl. Govt. Advocate for the respondents. 3 CORAM : B.P. DHARMADHIKARI & U.D. SALVI, JJ. Date : 18th July, 2009 ORAL JUDGMENT : (Per B.P. DHARMADHIKARI, J.) 1. Both these writ petitions are being heard together because the orders of removal from service against the respective petitioners therein have been passed by respondent No.1 in the respective petitions after dispensing with holding of disciplinary inquiry as contemplated by Article 311(2)(b) of the Constitution of India. The petitioner, in Writ Petition No.531/2007, was appointed to the post of Police Sub- Inspector on 29.7.2002 and after completion of training in August, 2004 in Drug Law Enforcement conducted by Narcotic Control Bureau, she was posted as Police Sub-Inspector, Anti Narcotic Cell, Police Station, Panaji on 2.4.2005. Between 6.2.2006 to 19.2.2007 she earned about 16 commendation certificates and some prizes, details whereof are not very relevant at this stage. On 22.9.2007, midnight, she conducted a raid on a rave party and caught red handed one Preetam Lotlikar, Sanjay Sood and Sunil Datwani with narcotic drugs and 4 booked them under the Narcotic Drugs and Psychotropic Substances Act and took them in custody. We are concerned with Preetam Lotlikar and Sunil Datwani and both of them were released on bail by the Judicial Magistrate F.C. with condition to report to the petitioner daily. On 8.10.2007, Lajwanti Datani, mother of Shri Sunil Datani lodged a complaint against her in Anti Corruption Branch, Panaji that for showing leniency to Sunil and for weakening the criminal case against him, she demanded bribe of Rs.40,000/- on 28.9.2007. Trap was then laid and in the said trap Constable Rajesh Warrang, working under her, was caught red-handed while accepting the amount of Rs.10,000/- as first installment. This trap was led on 9.10.07. Thereafter, the quarter where the petitioner was residing with her parents was searched and on 10.10.2007 she was dismissed form service with immediate effect by respondent No.1 after stating that it was not reasonably practicable to hold an enquiry against her. The petitioner then approached this Court on 26.10.2007 in this writ petition. 2. Petitioner Hemant in Writ Petition 201/2009 was offered a temporary post as Police Constable in the Office of Director General of Police on 8.5.2001. On 11.6.2001, he joined and was sent for training. 5 After completion of training in December, 2002 he was posted as Police Constable at Vasco Police Station. On 11.9.2004, after satisfactory completion of probation he was confirmed as Police Constable. On. 25.5.2008, he was on night duty at Dabolim Airport Outpost and his duty was to end on 26.5.2008. The Airport Security is essentially handled by CISF Agency. The petitioner was assigned with the duty of receiving or sending off VIPs and VVIPs and escorting them into the Airport or outside the Airport. One Mr. Kaushal Kumar, Sub-Inspector, CISF, Unit ASG, Goa Airport lodged a complaint at Vasco Police Station on 26.5.2008 that between 21.00 hours on 25.5.2008 to 6.30 hours on 26.05.2008 unknown culprit entered into Flamingo Duty Free Shop, Goa International Airport, Dabolim Goa, by creating hole into the wall and attempted to commit theft of foreign liquour of various brands, totally valued at 7,039 US Dollars. Offence under sections 457, 380, read with section 511 was then registered. The stolen material was then found within the campus of airport only. On 27.5.2008, the petitioner was arrested by Vasco Police in connection with the said crime and he was placed under suspension, pending disciplinary proceedings in exercise of powers conferred under Rule 12 of Police Subordinate Service (Discipline and Appeal) Rules, 6 1975 (hereinafter, referred to as “1975 Rules”). However, on 28.5.2008, Superintendent of Police (South), in exercise of powers under Article 311(2)(b) of the Constitution of India, after recording that holding of an inquiry was not reasonably practicable, dismissed the petitioner from services. On 29.5.2008, the petitioner was released on bail. One CISF Constable Ditiraj Dhobi and his friend Ramsurat who were also arrested in connection with FIR No.119/08 were also released on bail. Ditiraj Dhobi was also suspended, but later on his suspension was revoked and he joined his duties. Against his dismissal, the petitioner filed an appeal on 18.7.2008 to respondent No.2 Inspector General of Police and on 12.11.2008 that appeal came to be rejected. The present petition then came to be filed on 12.3.2009. 3. We have heard learned Senior Advocate Shri S.G. Dessai along with Ms. S. Rodrigues for both the petitioners and learned Advocate General with Mr. M. Salkar, for the respondents in Writ Petition 531/07 and Advocate Sameer Bandodkar for the respondents in Writ Petition No.201/09. 4. After narrating facts as disclosed above and after inviting 7 our attention to the orders of dismissal, Advocate Dessai has argued that exercise of power under Article 311(2)(b) is totally unwarranted and in the present facts, there is no material on record to take recourse to that power. He states that even after challenge in the writ petition, the respondents have failed to substantiate their contention that holding of departmental enquiry was not reasonably practicable. He states that both the orders are not only punitive, but also cast stigma and that has been done behind the back of the petitioners and without hearing them. He states that a show cause notice at least would have been given to the petitioners before taking such a drastic decision condemning them unheard. He has relied upon several judgments to substantiate his stand and we find it proper to refer to them while considering arguments in detail. He has also invited our attention to provisions of Article 311 of the Constitution of India and 1975 Rules, in support of his arguments. He states that the petitioners, therefore, need to be reinstated in service forthwith, by quashing and setting aside the said dismissal orders. 5. Learned Advocate General has, on the other hand, invited our attention to the provisions of 1975 Rules to point out that remedy of filing appeal is available in view of Rules 13 and 14 to the petitioner 8 in Writ Petition No. 531/2007 and as that remedy has not been utilized, the present petition needs to be dismissed. He has also relied upon the Judgment of Constitution Bench of the Hon’ble Apex Court in Union of India and anr. vs. Tulsiram Patel, reported at (1985) 3 SCC 398 on which Advocate Dessai has also placed reliance. He states that from the affidavits filed on record, material with respondents No.1 and 2 against the petitioners has amply come on record and continuation of officers like the petitioners in service was found detrimental to public interest and public good. He argues that State of Goa is wrongfully projected as heaven for drug traffickers and to clean that impression, the Government acts sternly in such matters. Past service record of lady petitioner is not sufficient because according to him one wrong is enough to tarnish her image. He states that question, therefore, needs to be left for consideration of the appellate Authority and this court should not interfere in writ jurisdiction. In the alternative and without prejudice, he states that after the dismissal of the petitioner, in 2007 period of about 2 years has elapsed and hence in changed circumstances, if the petitioner makes an appropriate representation/ appeal, the competent authority may consider whether to hold departmental enquiry against the petitioner or not. He states that writ 9 petition as filed, therefore, needs to be dismissed. In view of this statement made by the learned Advocate General, in order to enable him to take proper instructions and authorization in this respect, we had adjourned the hearing to next date. However, on the next date learned Advocate General stated that as the competent officers were not available in the State, he could not take complete instructions. 6. Learned Addl. Govt. Advocate Shri Bandodkar appearing for the respondents in Writ Petition 201/09 has adopted the arguments of learned Advocate General and in addition, invited our attention to Memo of Appeal filed by the petitioner Constable Hemant to urge that action of dispensing with departmental enquiry was not challenged by him at all. 7. He has also invited our attention to reply affidavit to urge that stolen property was recovered at the instance of petitioner Hemant only. In these circumstances, he states that the impugned order of dismissal dated 28.5.08 is just and proper and does not suffer from any vice. 10 8. In his brief reply, learned Senior Advocate for the petitioners has stated that the competent authorities in both the matters have resorted to Article 311(2)(b) of Constitution and, therefore, provisions of Article 311(3) making that decision final are squarely applicable and even bind the appellate authority. He also relied upon the Judgment of the Hon’ble Apex Court in Union of India and ors. vs. R. Reddappa and anr., reported at (1993) 4 SCC 269 to state that such an objection cannot be raised at the belated stage. 9. With the assistance of respective Counsel, we have perused the impugned orders and various Judgments. In so far as petitioner Hemant in Writ Petition 201/09 is concerned, against the order of dismissal dated 28.5.08 he approached the appellate Authority and the appellate Authority has dismissed his appeal on 12.11.08. His writ petition, therefore, can be considered on merits. However, petitioner in Writ Petition No. 531/07 did not file any appeal, challenging order of dismissal dated 10.10.07 passed by the Director General of Police, Goa. The writ petition was heard on 7.11.07, 23.11.07, 12.12.2007 and on that day, after hearing learned Advocate General, it came to be admitted. On 28.7.2008, an application for early hearing was dismissed 11 and on 30.1.2009, the writ petition was directed to be fixed for final hearing on 16.6.2009. The objection about availability of alternate remedy or its efficacy ought to have been raised at threshold to oppose the admission of writ petition. Learned Senior Advocate for the petitioner has mentioned that such objection was raised by learned Advocate General and inspite of that, on 12.12.2007 writ petition was admitted for early final hearing. This statement of learned Senior Advocate has not been refuted. 10. Perusal of para 5 of Union of India and ors. vs. R. Reddappa and anr.(supra) shows that the Hon’ble Apex Court has observed that once High Court under Article 226 of the Constitution of India is satisfied of injustice or arbitrariness, then the restriction, self imposed or statutory, stands removed and no rule or technicality on exercise of power can stand in the way of rendering justice. As objection was raised and inspite of that writ petition came to be admitted for early final hearing and in view of the above observations and for reasons which become apparent below, we find that in the present circumstances, the availability of alternate remedy or its efficacy need not be gone into as it cannot come in the way of this 12 Court considering the challenge on merits. As it is, we are required to consider identical challenge in relation to same service in Writ Petition No.201/09. 11. Constitution Bench Judgment in Union of India and anr. vs. Tulsiram Patel (supra) has been heavily relied upon by the petitioners as also by the respondents. This Judgment is also quoted in several other reported judgments of the Hon’ble Apex Court, to which we are making reference little later. 12. In Workmen of Hindustan Steel Ltd. and anr. vs. Hindustan Steel Ltd. and ors., reported at 1984 (Supp) SCC 554, the Hon’ble Apex Court has stated that where an order casts stigma or affects livelihood, before making that order principles of natural justice, namely a reasonable opportunity to present one’s case and controvert the adverse evidence must be effectually and fully given. Thus, even though proviso (b) to Article 311(2) permits dispensing with the inquiry, a safeguard has been introduced in Constitution and authority has to specify reasons why it was not reasonably practicable to hold the inquiry. The power of dispensing with inquiry is conferred for the 13 purpose and to effectuate that purpose, power can be exercised setting down the reasons. The reasons must be germane to the issue viz. of dispensing with the inquiry. Although in view of Article 311(3) the decision of appellate authority is final, it only means that the Court cannot inquire into adequacy or sufficiency of reasons, but then the reasons are subject to limited judicial review. The employer has to satisfy the Court about the good and objective reasons showing both proof of misconduct and valid and objective reasons for dispensing with the inquiry. Mere ipse dixit of the employer in such a situation is of no significance. The employer has to satisfy the Court that holding of an inquiry will be either counter-productive or may cause such irreparable and irreversible damage which in the facts and circumstances of the case need not be suffered. In Jaswant Singh vs. State of Punjab and ors, reported at (1991) 1 SCC 362, after considering the scope of Article 311 in light of above mentioned Constitution Bench Judgment, the stand taken by the employer has been reproduced in para 5 and then Hon’ble Apex Court has observed that counter filed was nothing but reproduction of para 3 of the impugned order reproduced by it in para (1) of the Judgment. The said para stated that it was reported that employee had thrown 14 threats that he with the help of other police employees would not allow holding of any departmental inquiry against him and he and his associates would not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Hon’ble Apex Court mentions that its attention was not drawn to any material existing on the date of the impugned order in support of the allegations contained in para 3 thereof that the appellant had thrown any such threat and it was incumbent upon the employer to disclose to the Court the material in existence at the date of the passing of the impugned order. Article 311(2)(b) can be invoked only when the Authority is satisfied from “the material placed before it” that it is not reasonably practicable to hold a departmental inquiry. This satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. Necessary particulars were not given and the Hon’ble Apex Court also noticed that the employee was in hospital and could not have given such threats. The appeal filed by the employee was thus allowed and order of dismissal was set aside. In Chandigarh Administration, Union Territory, Chandigarh and ors. vs. Ajay Manchanda and ors., reported at (1996)3 SCC 753, in para 4 finality given by Article 311(3) has been considered 15 and it has been observed that judicial review is not altogether excluded. Said para shows that if requisite satisfaction was formed mala fide or it was founded on extraneous grounds, the judicial review is permissible. In para 16 of this Judgment, the Hon’ble Apex Court fond that no one had ever stated either before the SP (Headquarters) (preliminary enquiry officer) or before the SSP that he was terrorised, intimidated or threatened by Kuldip Singh. Only because one Advocate Raheja mentioned in letter that he did not wish to proceed with his complaint because of compromise, SSP had inferred that he was terrorised and intimidated. The Hon’ble Apex Court was not satisfied with this material or inference drawn from it. It also noticed that in order of dismissal or anywhere in record SSP had not said that he had information about intimidation or terrorising or issuing threats from some other source. The inference drawn by SSP, therefore, was held to be not reasonable or relevant one. In Indian Railway Construction Co. Ltd. vs. Ajay Kumar , reported at (2003) 4 SCC 579, the scope of judicial review has been considered and it has been observed that if two views are possible about possibility of holding departmental inquiry, it is not within the domain of Court to substitute its view for that Disciplinary Authority as if the 16 Court is sitting as appellate Authority over the Disciplinary Authority. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an inquiry or not. What the High Court is expected to do is to see whether there was any scope for judicial review and focus should be on the impracticability or otherwise of holding the enquiry. The Disciplinary Authority has to judicially address itself to the matter before it and act in good faith with due regard to all relevant considerations without getting influenced by irrelevant considerations. The Court has to be slow to interfere in any such matter unless the decision is tainted by any impropriety. In Sudesh Kumar vs. State of Haryana and ors., reported at (2005)11 SCC 525 termination order dated 27.12.1999 as reproduced in para 4 shows that the Enquiry Officer submitted his report dated 17.12.1999. The Disciplinary Authority (S.P. Gurgao) observed that conducting a regular departmental inquiry was not reasonably practicable because main prosecution witness Mr. Kenichi Tanaka was a foreigner and could have left the country in midst of the departmental proceedings. He was not likely to name the delinquent official even during the regular departmental proceedings which was evident from his letter dated 6.12.1999 and the report of the inquiry officer. Hence, 17 conducting such an inquiry was not going to be reasonably practicable and he opined that it was a fit case to proceed against the corrupt official under Article 311(2) of the Constitution. In para 5, the Hon’ble Apex Court has observed that holding of a departmental inquiry is rule and dispensing with it is an exception. The order of termination did not show any reason assigned for recording that it was not reasonably practicable to hold an inquiry. The reasons were held to be no ground for dispensing with the inquiry. It was also noticed that visa of the complainant Tanaka was extended upto 22.12.2000. A reasonable opportunity as contemplated in Article 311(2) of the Constitution envisages an opportunity to defend and establish innocence by cross examining the prosecution witnesses and by examining defence witnesses. In these circumstances, the Hon’ble Apex Court set aside the order of termination, but granted the employer liberty to hold an inquiry after affording him reasonable opportunity. Learned Senior Advocate has relied upon a Judgment of the Hon’ble Apex Court in MANU/SC/0401/2009 in case of Uma Nath Pandey and ors., vs. State of U.P. and Anr. to point out the true meaning of adhering to principles of natural justice. In S.J. Meshram vs. Union of India, reported at 1987(Supp) 18 SCC 164, the likelihood of destruction of evidence and of non- appearance of members of Mahila Samiti to adduce evidence for fear of threat and harassment and loss of vital document, showing actual amount of misappropriation were held irrelevant and inadequate reasons under Article 311(2)(b) for dispensing with the departmental inquiry. 13. The petitioners have drawn our attention to Division Bench Judgment dated 1.4.209 delivered at Panaji, Goa in Writ Petition No.435/2008 to state that there Police Department had withdrawn similar order and agreed to hold regular departmental inquiry. Learned Advocate General has brought to our notice that as preliminary inquiry was conducted against the petitioner therein by recording statement of witnesses, there was no reason to dispense with holding regular departmental inquiry. The Government found that the matter was squarely covered by Judgment of the Hon’ble Apex Court in Tarsem Singh vs. State of Punjab and ors. reported at 2006(13) SCC 581 and hence Government decided to withdraw that termination order. It is apparent that that Writ Petition 434/2008 has not been decided on merits and does not lay down any law. 19 14. All the judgments mentioned above invariably referred to the case of Union of India and anr. vs. Tulsiram Patel (supra). Several paragraphs of the said judgment have been pointed out to us by both sides. But, in view of the various judgments mentioned by us above, we do not find it necessary to refer to all of them. The said judgment in para 44 states that where Clause (2) of Article 311 is properly applied and inquiry is dispensed with, concerned Government servant cannot be heard to complaint that he is deprived of his livelihood. In para 62, conditions for application of different clauses of Article 311(2) are mentioned. In para 70, the Hon’ble Apex Court states that when public servant by himself or in concern with others has brought a situation in which it is not reasonably practicable to hold an inquiry and his conduct is as such as to justify his dismissal, both public interest and public good demand that such penalty should forthwith and summarily be imposed upon him In para 123, the Hon’ble Apex Court has stated that CISF Act and CISF Rules show that a Government servant who has been dismissed after dispensing with departmental inquiry has got remedy to file an appeal or a revision. Where it is a case falling under Clause (b) of the second proviso of Article 311(2) and dispensing with 20 inquiry by disciplinary authority was the result of situation prevailing at that time, after change of situation the Government Servant can claim to have an inquiry held in which he can establish that he was not guilty of the charges on which he has been dismissed. However, by Article 311(3) he cannot contend that inquiry was wrongly dispensed with. In para 137, the Hon’ble Apex Court states that if situation continued to be same or again similar situation arose it would not then be reasonably practicable to hold an inquiry at the time of hearing of appeal or revision. In para 138, it has been held that in order to decide whether reasons are germane to clause (b), the Court must put itself in place of disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. Perusal of paras 130, 131, 132, 133, 134 and 135 shows that reasons for dispensing with department inquiry have to precede the decision. The Disciplinary Authority is not expected to dispense with departmental inquiry lightly or arbitrarily or out of ulterior motive or merely in order to avoid holding of an inquiry or because department case against the government servant is weak and would fall. The Authority has to record the reasons, in writing, for its satisfaction. Learned Advocate General has relied upon this judgment to show & 21 urge that compliance there with has been fully done. 15. The order of dismissal dated 10.10.2007 in Writ Petition No.531/07, after briefly mentioning the facts in first two paragraphs,