IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5850 of 2002 In the matter of an application under Article 226 of the Constitution of India. ---------- Shukdeo Ojha, son of Late Madan Ojha, resident of village- Khabra, P.S.- Sadar, District- Muzaffarpur …………. Petitioner Versus 1. The State Of Bihar through the Commissioner- cum-Secretary, Department of Health, Government of Bihar, Patna 2. Director-in-Chief, Health Services, Department of Health, Government of Bihar, Patna 3. Dr.Akhouri Ramesh Chandra Sinha, Ex-Director, Health Services, Department of Health, Government of Bihar, Patna 4. Dr.Ram Keshwar Chaudhary, the then Regional Deputy Director, Health Services, Tirhut Division, Muzaffarpur, at present posted as Director, Public Health Institute, Ashok Rajpath, Patna 5. Dr.Jagdish Singh, Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur …………. Respondents. ---------- For the Petitioner : M/s Banwari Sharma and Shiv Kumar, Adv. For the State : Mr.Amrendra Kumar, A.C. to G.P.-XI ---------- P R E S E N T HON’BLE MR.JUSTICE JAYANANDAN SINGH Jayanandan Singh,J: The order of dismissal of petitioner issued under the signature of the then Director, Health Services (Respondent No.3) contained in Memo No.541 dated 15.6.2001, annexed as Annexure-11, is under challenge in this writ application. The order passed by the appellate authority (Annexure-15) is also under challenge along with the said dismissal order. 2. The order (Annexure-11) apparently has been passed by the respondent no.3 invoking his powers under clause (b) of second proviso to Article 311(2) of the Constitution of India. Mere reference to - 2 - clause (b) of second proviso to Article 311(2) of the Constitution of India makes it clear that there was no inquiry and no show cause notice was issued and no opportunity was given to the delinquent prior to the order of his dismissal issued by the respondent Director. Invoking powers under the said clause (b) presupposes that the disciplinary authority was satisfied that recourse to the procedural requirements of said clause (b) was found `not reasonably practicable’. Recourse to this exceptional clause puts a burden on the authority, invoking the powers, to satisfy a court of law, in case of a challenge (as in this case), that his satisfaction for taking recourse to the said clause was based on objective considerations. Hence, in view of the challenge in this case by the petitioner to the exercise of powers by respondent no.3 invoking his powers in terms of the said clause (b) for dismissing him, burden lay on the respondents to satisfy this Court that the exercise of powers by the Disciplinary authority, namely, respondent no.3, was within the parameters of the powers of a disciplinary authority under the said clause. Therefore, learned counsel for the respondents was called upon to advance his arguments first, on the question of satisfaction of the disciplinary authority, namely, respondent no.3, in invoking the said clause (b) of Article 311(2). 3. Opening his arguments, learned counsel for - 3 - the respondents straightway placed reliance on the celebrated case of Union of India Vs. Tulsiram Patel, reported in (1985)3 S.C.C.398 to justify the action of respondent Director. He referred to paragraphs 61, 64, 70, 159, 160 and 172 of the judgment in particular. 4. In paragraph 61 of the said judgment, the Apex Court discussed the applicability of clause (b) of second proviso to Article 311(2) in the following words : “61. The language of the second proviso is plain and unambiguous. The keywords in the second proviso are “this clause shall not apply”. By “this clause” is meant clause (2). As clause (2) requires an inquiry to be held against a government servant, the only meaning attributable to these words is that this inquiry shall not be held. There is no scope for any ambiguity in these words and there is no reason to give them any meaning different from the plain and ordinary meaning which they bear. The resultant effect of these words is that when a situation envisaged in any of the three clauses of the proviso arises and that clause becomes applicable, the safeguard provided to a government servant by clause (2) is taken away. As pointed out earlier, this provision is as much in public interest and for public good and a matter of public policy as the pleasure doctrine and the safeguards with respect to security of tenure contained in clauses (1) and (2) of Article 311.” 5. In paragraph 64, the Apex Court did not accept the submissions on behalf of the respondents that even the language of clause (b) to the second proviso did not negate every single opportunity to the government servant for showing his innocence and convincing the disciplinary authority against the - 4 - proposed penalty. 6. In paragraph 70, the Apex Court laid absolute proposition that in the language of clause (b) to the second proviso no scope for any kind of opportunity was contemplated which was expressed in the following terms : “70. The position which emerges from the above discussion is that the keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase “this clause shall not apply” is mandatory and not directory. It is in the nature of a constitution prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned government servant. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity by a process of inference or implication.….” 7. In paragraph 159 of the said judgment referred to by learned counsel for the respondents, the Apex Court only discussed the provisions of CISF Act which also contained a similar clause like clause (b) of second proviso to Article 311(2). 8. In paragraph 160, the Apex Court has discussed the gravity of the situation arising in the case and found that the act of the respondents virtually amounted to a mutiny as the Army and the members of the Force, to which respondents belonged, were involved in a pitched battle and held that “no person with any reason or sense of responsibility can say that in such a situation the holding of an inquiry was reasonably practicable”. - 5 - 9. In the last paragraph referred to by learned counsel for the respondents i.e. paragraph 172, arguments on behalf of the respondents of the case with respect to quantum and extent of punishment was noticed and it was held that it would depend upon the gravity of the situation at a particular centre and the extent to which the alleged acts, though not serious in themselves, in conjunction with acts committed by others, contributed to the bringing about of the situation. 10. Heavily relying upon the above judgment and particularly, abovementioned paragraphs, learned counsel for the respondents submitted that once the disciplinary authority (respondent no.3) was satisfied that holding of any inquiry was not reasonably practicable, any sort of opportunity to the petitioner was not required to be given and, only on the basis of materials available with the disciplinary authority, he rightly invoked his jurisdiction and exercised his powers under the said clause (b) of proviso to clause (2) of Article 311 of the Constitution of India. 11. At this place, it is useful to reproduce provisions of Article 311 of the Constitution of India, as relevant, for the purposes of this case : “311. 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 or removed by an - 6 - 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) ----- ----- ----- (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) ----- ----- ----- (3) If, in respect of any such person as aforesaid, a question arises whether it is 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.” 12. The provisions of clause (3) of Article 311 of the Constitution of India, as quoted above, makes it clear that the satisfaction of the disciplinary authority with regard to holding of an inquiry as referred to in clause (2) being not `reasonably practicable’ has to be taken as final. However, learned counsel for the petitioner submitted that, as laid down long back by the Apex Court, the said satisfaction is not beyond the judicial scrutiny of the courts under Article 32 or Article 226 of the - 7 - Constitution of India. He also submitted that, in the event of a challenge, the order of the disciplinary authority must show that the said satisfaction was arrived at on materials which were sufficient for any prudent and reasonable man to come to a conclusion that the compliance of Article 311(2) was not practicable. He also submitted that mere fact that the appellate authority affirmed the order passed by the disciplinary authority does not remove the illegality committed by the disciplinary authority in exercise of his jurisdiction and the order of the disciplinary authority, nonetheless, is open to challenge on the grounds of abuse of power or erroneous exercise of jurisdiction or assumption of jurisdictional facts not appearing from the records or satisfaction having been formed malafide. He relied upon two judgments of the Apex Court in support of his those submissions, namely, one rendered in the case of Jaswant Singh Vs. State of Punjab and others, reported in (1991)1 S.C.C.362 and another in the case of Union of India Vs. R.Reddappa and another, reported in (1993)4 S.C.C 269. He has also relied upon paragraph 130 of judgment of Apex Court in the case of Tulsiram Patel (Supra). 13. In the case of Jaswant Singh (Supra), the ratio of the judgment of the Apex Court in the case of Tulsiram Patel (Supra) fell for consideration. The Court noticed that clause (3) of Article 311 does make satisfaction of the disciplinary authority - 8 - as final but the said satisfaction was subject to two conditions; (i) that there must exist a situation which renders holding of an inquiry `not reasonably practicable’ and (ii) the disciplinary authority must record in writing his reasons in support of his satisfaction, challenge to existence of which renders the action open to judicial review by a Court and the Court will be within its jurisdiction to interfere with such an action if it is found to be arbitrary, malafide, motivated by extraneous consideration or merely by way of ruse to dispense with the inquiry. The observations of the Apex Court in the said case as made in paragraph 4 of the judgment can be usefully quoted herebelow : “4. Article 310 of our Constitution which engrafts the pleasure doctrine of the English common law is, however, qualified by the opening words `except as expressly provided by this Constitution’, Article 311 is one such express provision. According to clause (1) thereof, a person who is a member of a civil service cannot be dismissed or removed from service by an authority subordinate to that by which he was appointed. Clause (2) next provides that no such person 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. Then comes the first proviso with which we are not concerned. The second proviso has three clauses but we are concerned with clause (b) only. Clause (b) of that second proviso reads as under : “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.” - 9 - Thus the English doctrine incorporated in Article 310 which is qualified by the opening words “except as expressly provided by this Constitution” is subject to Article 311(1) and (2) which contains safeguards against termination from service. However, the second proviso to Article 311(2) is again in the nature of an exception and lays down that in cases catalogued in clauses (a), (b) and (c) thereof the requirement of an inquiry can be dispensed with. The scope of Articles 310 and 311 of the Constitution was examined by this Court in Union of India Vs. Tulsiram Patel wherein by majority this Court held that once the requirements of the relevant clause of the second proviso are satisfied, the services of a civil servant can be terminated without following the audi alteram partem rule. It was held that since the requirement of Article 311(2) was expressly excluded by the second proviso, there was no question of introducing the same by the back door. On this line of reasoning, the majority held that Chellappan case was not correctly decided. It, therefore, took the view that it is not necessary to offer a hearing to the civil servant even on the limited question of punishment. Insofar as clause (b) is concerned this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any inquiry “not reasonably practicable”; and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. Of Course the question of practicability would depend on the existing fact- situation and other surrounding circumstances, that is to say, that the question of reasonable practicability must be judged in the light of the circumstances prevailing at the date of the passing of the order. Although clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry.” - 10 - 14. After noticing the ratio laid down by the Apex Court in the case of Tulsiram Patel (Supra), the Apex Court also considered the scope of subjective satisfaction of the disciplinary authority under clause (b) of Article 311(2) and held that it was incumbent on the respondents to disclose to the Court the materials in existence on the date of passing of the impugned order in support of his subjective satisfaction and also observed that the decision to dispense with the departmental inquiry cannot be rested on the ipse dixit of the concerned authority. The extract from paragraph 5 of the judgment in the case of Jaswant Singh (Supra) is quoted herebelow in this regard : “5…… This is no more than a mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent no.3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at page 270 of Tulsiram Case: (SCC p.504 para 130) “A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior - 11 - 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 decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by respondent 3 it is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given.……….” (Emphasis supplied) 15. After the observations as quoted above, the Court examined the materials available on record and found that “subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with of the inquiry envisaged by Article 311(2) of the Constitution.” Therefore, appeal was allowed by the Apex Court and the impugned order of dismissal was quashed and the impugned order of the High Court dismissing the writ application was set aside. 16. Judgment of the Apex Court in the case of Union of India Vs. R.Reddappa (supra) was relied upon by learned counsel for the petitioner, and particularly observations of the Apex Court made in paragraph 5, in respect of challenge to the order of - 12 - the disciplinary authority even in cases in which appeal of the incumbents stands dismissed, the relevant extract of which is quoted herebelow : “5. ……… If there was no material on which any reasonable person could have come to the conclusion as is envisaged in the rule then the action was vitiated due to erroneous assumption of jurisdictional fact therefore the Tribunal was well within its jurisdiction to set aside the orders on this ground. An illegal order passed by the disciplinary authority does not assume the character of legality only because it has been affirmed in appeal or revision unless the higher authority is found to have applied its mind to the basic infirmities in the order. Mere reiteration or repetition instead of adding strength to the order renders it weaker and more vulnerable as even the higher authority constituted under the Act or the rules for proper appraisal shall be deemed to have failed in discharge of its statutory obligation.” 17. Learned counsel for the petitioner also referred to the discussions by the Apex Court in paragraph 130 of Tulsiram Patel’s case (Supra), where the significance of the expression `reasonably’ and `practicable’ was considered in context of the dictionary meaning of the two expressions, and some situation, by way of illustrations, were noticed, which may call for exercise of powers by a disciplinary authority under clause (b) by holding an inquiry as contemplated in clause (2) of Article 311 as not reasonably practicable. However, a word of caution was put by the Apex Court for such exercise of absolute powers by the disciplinary authority and also that the same was open to judicial review in Court, in following - 13 - words : “……….. 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…………….” 18. Faced with such a situation, emerging from the observations made by the Apex Court in subsequent cases, while noticing the ratio laid down in Tulsiram Patel’s case (supra), learned counsel for the respondents submitted that there were enough materials available on the record which justified the satisfaction of the disciplinary authority for coming to the conclusion that any inquiry against petitioner was not reasonably practicable. He referred to the pleading made in counter affidavit filed by the respondents in this regard. In the counter affidavit, it has been pleaded that, the Civil Surgeon, Muzaffarpur, through his letter no.7/A.A. dated 8.6.2001, had reported that on 6.6.2001 “petitioner `mischieved’ the Civil Surgeon, Muzaffarpur in his office chamber and it was found that activities of the petitioner was `indisciplined’ as Annexure-7 of the writ petition”. It is further said that “due to misbehaved activities and indisciplined manners of the - 14 - petitioner vide letter no.4/A.A. dated 6.6.2001 issued by the Civil Surgeon, Muzaffarpur an F.I.R.152/01 has been registered in Sadar P.S. Muzaffarpur”. It is also said in the counter affidavit that the District Magistrate, Muzaffarpur also confirmed the `misbehaved and indisciplined’ activities of the petitioner by his letter no.1600 dated 13.6.2001. It is also said that the charges leveled against petitioner were found very grave and hence under the provisions of `schedule’ (Article) 311(2)(B) of the Indian Constitution, petitioner was dismissed from the Government services. Thereafter, it is said that the respondent Director was the competent authority as post of Director-in-Chief was vacant during that period and the appellate authority considered the matter in full and confirmed the said order of the disciplinary authority. It is also said that the appellate authority had heard and considered the matter in detail before dismissing the appeal. Two representations of the petitioner filed subsequently have been annexed as Annexures-A and B with the counter affidavit. Except for the above pleadings, there is nothing else in the counter affidavit nor any other pleadings have been filed by the respondents by producing the facts and circumstances, as was available to the disciplinary authority, for coming to the conclusion that an inquiry in the matter by giving opportunity to the - 15 - petitioner was `not reasonably practicable’. 19. However, the impugned order is a detailed one and has to be judged on its own merits. In the impugned order the extract of letter no.7/A.A dated 8.6.2001 is quoted. The extract shows that on 6.6.2001 at about 1.30 in the afternoon, the Civil Surgeon was sitting in his official Chamber. There, the office clerk of the office of the Regional Deputy Director of Health Services, Tirhut Division and the petitioner, who was office clerk of his office, as well as one reporter of Hindustan Hindi daily were also sitting. All of a sudden, 10-15 persons entered into his office Chamber and started enquiring from the Civil Surgeon as to what problem he had