IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF JANUARY TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY and THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT PETITION NO : 24346 of 2003 Between: 1 The Superintendent of Police, Warangal. 2 The Addl. Director General of Police, A.P., Hyderabad. 3 Government of Andhra Pradesh, Home Department, rep. by its Principal Secretary to Government, Secretariat, Hyderabad. ..... PETITIONERS AND B. Dilip Kumar, S/o. Venkateswarlu, Constable (dismissed from service), R/o. Peddamupparam, Narasimhulupet Mandal, Warangal District. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ of Certiorari or any other appropriate writ, order or direction, after calling for the records relating to the Order dated 27.9.2002 in O.A. No. 8472/2002 on the file of the Hon'ble A.P. Administrative Tribunal and quash the same as contrary to law and facts and circumstances of the case. Counsel for the Petitioners :ADVOCATE GENERAL Counsel for the Respondent : Sri C.Rajasekhar Reddy The Court made the following : ORDER: (per P.S.Narayana.,J) The Superintendent of Police, Warangal and others, the writ petitioners, aggrieved by the order dated 27-9-2002 made in O.A.No.8472/2002 by the A.P. Administrative Tribunal, in short hereinafter referred to as “Tribunal” for the purpose of convenience, filed the present Writ Petition questioning the same raising several grounds. Sri B.Dilip Kumar, respondent herein/petitioner in O.A., was working as Police Constable of P.S. Chityal and while he was under suspension in a criminal case, he joined hands with the anti-social elements and formed into a pseudo Naxal gang and resorted to extract huge amounts from wealthy persons towards party fund. In that process on 25-2-2002 the respondent/applicant in O.A. deputed two of the associates to the house of one Devi Reddy whom the pseudo Naxalite gang was repeatedly threatening through party letters to deliver Rs.3 lakhs to purchase A.K. 47 rifles. After threatening the said Devi Reddy thrice, the respondent/petitioner in O.A. deputed his associates along with one P.Vasu giving his 9 mm. service pistol which was given to him for his personal security as he worked in the Special Party. As per his directions they went to the house of the said Devi Reddy threatening him on the point of pistol and gave him a list of provisions and asked the said Devi Reddy to supply those provisions for conducting a plenum of Peoples War Group and to deliver the money as demanded by them on the next day for which he agreed to supply them on 3-3-2002 afternoon. The respondent/applicant in O.A. along with his associates went to the designated place on a Suzuki Motor Cycle expecting that the said Devi Reddy would deliver the goods and money. At the appointed time as the said Devi Reddy did not turn up, the respondent/applicant in O.A. and his followers started returning. On the way at Bhoopathi Reddy, the said Devi Reddy and his villagers having sighted the gang led by the respondent/applicant in O.A. tried to apprehend t h e m . P.Vasu, who was carrying the pistol given by the respondent/applicant in O.A., tried to open fire at Devi Reddy and others but they overpowered the gang and caught hold of four of them including the respondent/applicant in O.A. and detained them in the village while the fifth member B.Somla managed to escape. On the complaint lodged by Devi Reddy, a case was registered in Cr.No.15/2002 under Sections 398 and 506 IPC r/w. Section 25 of Indian Arms Act at Gudur Police Station. During the course of investigation, all the four persons were arrested and remanded to judicial custody. The 9 mm. pistol (and 8 rounds) and the Suzuki Motor Cycle were seized. It is further stated that the Sub-Divisional Police Officer, Narsannapet enquired against the criminal activity of the respondent/applicant in O.A. and submitted report to the 1st petitioner herein and according to the said report, there were ten witnesses/victims who paid the amount to the respondent/applicant in O.A. and his gang and they cannot come forward freely to depose against the respondent/applicant in O.A. According to the said report, this fact was brought out in his confidential enquiry conducted with the witnesses. In the said report it is further stated that the witnesses/victims are not in a frame of mind to believe the administration and come forward to give evidence against the respondent either in departmental inquiry or Court of Law. The said Officer gave report stating that it is not practicably possible to conduct regular inquiry against the respondent/applicant in O.A. under the procedure contemplated under A.P. Civil Services (C.C.A.) Rules as the witnesses cannot freely come forward and depose against the respondent herein/applicant in O.A. due to fear of death. Having satisfied with the material available on record and taking into consideration the report and the other aspects, the 1st writ petitioner dismissed the respondent herein/applicant in O.A. from service by proceedings in C.No.135/PR/2002/D.O.No.872/2002 dated 28-3- 2002 exercising the power under sub-clause (b) of Article 311(2) of the Constitution of India. The respondent herein/applicant in O.A. filed O.A.No.8472/2002 before the Tribunal and the Tribunal allowed the said O.A. by the order dated 27-9-2002 and the same had been challenged in the present Writ Petition. On 21-11-2003 this Court issued Rule Nisi and in W.P.M.P.No.30655/2003 interim suspension was granted. The learned Advocate General meticulously had taken this Court through the material available on record and would submit that in the facts and circumstances of the case, the 1st writ petitioner was satisfied that it is impracticable to hold enquiry since witnesses were not coming forward and inasmuch as power to dispense with the enquiry is available, the impugned order was made. The learned Advocate General had pointed out the reasons recorded by the Tribunal in the impugned order and would submit that virtually the Tribunal acted as an appellate Court which is impermissible in the light of the limitations imposed on Tribunal in exercising such power. The learned Counsel also pointed out that no allegations relating to malice had been attributed either against the Officer who conducted preliminary enquiry or the 1st writ petitioner and it is not in controversy that a criminal case is pending. The 1s t writ petitioner on being satisfied on the material available on record dispensed with the conducting of enquiry and in the light of reasons recorded by the 1st writ petitioner, the Tribunal erred in disturbing the said order. The Counsel also would contend that Tribunal cannot substitute its own opinion in the place of the opinion of the disciplinary authority. The learned Counsel also submitted that the fact that it is not practicable to hold a regular enquiry against the respondent/applicant in O.A. since witnesses will not come forward and depose against him due to fear of death cannot be in any doubt whatsoever in the light of the facts and the material available on record and hence the 1st writ petitioner is justified in making such an order which had been impugned in the O.A. The Counsel also pointed out to the report of the Sub-Divisional Police Officer and would submit that the disciplinary authority passed the impugned order taking into consideration all the facts and circumstances inclusive of the said report. The learned Counsel also stressed on the gravity of the offence committed by the respondent/applicant in O.A. especially in the light of the fact that he being a Member of a disciplined force. The learned Counsel also placed reliance on certain decisions to substantiate his contentions. On the contrary Sri Rajasekhar Reddy, the learned Counsel representing the respondent/applicant in O.A. had taken this Court through the impugned order in the O.A. and also the impugned order in the present Writ Petition and had pointed out to paras 5 to 8 of the order made by the Tribunal in O.A.No.8472/2002 and would contend that in the light of these reasons recorded by the Tribunal, the Tribunal was satisfied that dispensing with enquiry cannot be sustained. The Counsel also would submit that the Tribunal while quashing the order which had been made on 28-3-2002, further made it clear that it does not preclude the petitioners herein/respondents in the O.A. to hold enquiry against the respondent/applicant in O.A. strictly in accordance with A.P. Civil Services (C.C.A.) Rules. Hence, no prejudice is caused by the said order. The Counsel also would stress that the general rule is to conduct enquiry and dispensing with enquiry should be an exception and intelligible reasons are to be recorded for the purpose of sustaining such an order. Heard both the Counsel at length. The order passed by the Tribunal in O.A.No.8472/2002 and the dismissal proceedings in C.No.135/PR/2002/D.O.No.872/2002 dated 28-3-2002 issued by the 1st writ petitioner-Superintendent of Police, Warangal had been impugned. The factual details relating to the present episode had been already referred to supra. The impugned order in the O.A. aforesaid made by the 1st writ petitioner dated 28-3- 2002 reads as hereunder : PROCEEDINGS OF THE SUPERINTENDENT OF POLICE, WARANGAL PRESENT : NALIN PRABHAT, I.P.S. C.No.135/PR/2002 D.No.872/2002 Dt.28-3-2002 Sub: Disciplinary action against P.C.2718 B.Dilikumar, now under suspension. Ref : Report C.No.135/SDON/2002, dated 5-3-2002 of SDPO, Narsampet. ORDER: It has been brought to my notice that, P.C.2718 B.Dilipkumar of P.S. Chityal, while under suspension in another criminal case, has joined hands with anti social elements and formed a pseudo naxal gang constituting of i) B.Praveen Kumar, ii) Y.Srinivas Reddy, iii) P.Vasu and iv) B.Somla and resorted to extort huge amounts from wealthy persons towards party fund. In that process, on 25-2-2002, he deputed his associates viz., i) B.Praveen Kumar, ii) Y.Srinivas Reddy to the house of one Shri Devi Reddy, whom this pseudo naxal gang was repeatedly threatening, through party letters, to deliver Rs.3 lakhs, so as to purchase AK 47 rifles. As he did not heed, they again threatened him to deliver the said amount. This time also he did not pay the amount. Hence, P.C. 2718 B.Dilipkumar again deputed them, along with one Vasu, by giving his 9 mm. service pistol, which was given to him for his personal security, as he worked in special party. As per his directions they went to the house of said Devi Reddy, threatened him at the point of pistol and gave him a list of provisions and asked Devi Reddy to supply those provisions for conducting a plenum of Peoples War Group, in the forest, and also to deliver money, as demanded by them, on the next day, for which he agreed to supply them on 3-3-2002 afternoon. The said P.C. along with his associates, also went to the designated place on a Suzuki Motor cycle, bearing No.AP 36 6752, expecting that the said Devi Reddy would deliver goods and money. At the appointed time, when the said Devi Reddy did not turn up, P.C. 2718 B.Dilipkumar and his followers started returning. On the way at Bhoopathipet, said Devi Reddy and his villagers have sighted this gang led by P.C. 2718, tried to apprehend them. Then P.Vasu who was carrying the pistol given by the P.C., tried to open fire at Devi Reddy and others. But they overpowered the gang and caught hold of four of them, including P.C. 2718 B.Dilip Kumar, and detained them in the village while the fifth member, one B.Somla managed to escape. On the complaint lodged by Devi Reddy, a case was registered in Cr.No.15/2002 u/s.398, 506 IPC Sec.25(I.B.) Arms Act, at Gudur P.S. During the course of investigation all four were arrested and remanded to judicial custody. The 9 mm. pistol (and 8 rounds) and the Suzuki Motorcycle were seized. Thus P.C. 2718 B.Dilipkumar has exhibited grave criminal misconduct. SDPO Narsampet conducted an enquiry against the said P.C. 2718 B.Dilipkumar, for his aforementioned nefarious criminal activities and misdeeds, and submitted a report, which proves the misconduct of P.C.2718 B.Dilipkumar. From the facts and circumstances of the case, I am satisfied that P.C. 2718 B.Dilipkumar, indulged in gross misuse of official power and exhibited criminal misconduct. And Further, I, Nalin Prabhat, Superintendent of Police, Warangal after considering all the facts and circumstances of the case, am satisfied under sub-clause (b) of proviso to sub- section (2) of Article 311 of the Constitution of India that it is not reasonably practicable to hold an enquiry, in the manner prescribed in the CCA Rules 20 to 24, as the witnesses will not come forward, due to threats. Now, therefore, I, Nalin Prabhat, Superintendent of Police, Warangal appointing authority of P.C.2718, B.Dilipkumar hereby dismiss him from Govt. Service with immediate effect. Superintendent of Police, Warangal” The 1st writ petitioner, as can be seen from the impugned order, had recorded that SDPO, Narsampet had conducted an enquiry against the said P.C.2718 B.Dilipkumar for his nefarious criminal activities and misdeeds and submitted a report which proves the misconduct of P.C. 2718 B.Dilipkumar. It was also recorded that from the facts and circumstances of the case, the 1st writ petitioner was satisfied that P.C.2718 B.Dilip Kumar indulged in gross misuse of official power and exhibited criminal misconduct. It was further recorded that it is not reasonably practicable to hold an enquiry in the manner prescribed by CCA Rules 20 to 24 as the witnesses will not come forward due to threats. Article 311 of the Constitution of India dealing with Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State reads as hereunder : 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 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 further that this clause shall not apply – a. where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or b. where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or c. where the President or the Governor, as the case may be, is satisfied 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 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.” Article 311(2), second proviso (b) specifies : “Provided further that this clause shall not apply 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”. The words “…. is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry” assume some importance. It is clear that the satisfaction should be just and reasonable and cannot be ipsi dixit. Conducting inquiry in relation to discipline is general rule in service jurisprudence and when an exception is made to the general rule relating to conduct of such inquiry in judicial review Courts may have to examine the material and the reasons recorded by the concerned authority while dispensing with the disciplinary inquiry by invoking clause (b) of second proviso of Article 311(2) of the Constitution of India. This area is no doubt thin and slender but Courts are to be vigilant in dealing with such exception dispensing with the ordinary rules and the principles relating to the disciplinary inquiries and the departmental inquiries. Having regard to the order impugned in the O.A., it may be appropriate to have a look at the relevant findings recorded by the Tribunal in the O.A. too, which had been assailed in the present Writ Petition. In O.A.No.8472/2002 at paras 5 to 8, the Tribunal recorded reasons as hereunder : “The impugned order itself states that Sri Devi Reddy and the villagers over-powered the gang and caught hold of four of them, including the applicant and detained them in the village, while the fifth member i.e., B.Somla managed to escape. It is thus clear that the said Sri Devi Reddy and the villagers were not all afraid of the applicant. In fact, the applicant and three of his associates were detained in the village till the Police Department did come and arrest them. Sri Devi Reddy also lodged a complaint and the same was registered as Cr.No.15/2002 for offences punishable under Sections 398, 506 IPC, read with Section 25 (I.B.) Arms Act, of Gudur Police Station. All the four persons were arrested and remanded to judicial custody. The 9mm. pistol along with 8 rounds of ammunition and the Suzuki Motor cycle were also seized. While observing so in the impugned order, it is rather becoming difficult to understand how the 1st respondent i.e., the Superintendent of Police, Warangal did jump to the conclusion that it was not possible/practicable to hold an enquiry in the manner prescribed under Rules 20 and 24 of the A.P.C.S. (CCA) Rules, as the witnesses could not come forward, as they were afraid of the applicant. In fact, from the very impugned order, we do see that the said Sri Devi Reddy and the villagers not only chased the applicant and his associates, but also caught hold of them and detained them in the village itself till the arrival of the police. Sri Devi Reddy himself lodged a complaint and the same was registered under the relevant provisions of law. No doubt, the S.D.P.O., Narsampet was appointed as an Enquiry Officer. The S.D.P.O., Narsampet, as seen from the records which were called for, examined number of persons. Mere making of a bald allegation by the 1st respondent that such persons were not willing to give evidence, as they were afraid of the applicant, does not serve any purpose. It is not for the 1st respondent to see whether they were prepared to give evidence or not. The fact remains that number of witnesses are there. Added to it, number of relevant documents are also there to establish that the applicant, in fact, while under suspension, formed on one group of his own and began to collect huge sums from various persons, under the guise of a pseudo naxalite. From the very report of the Deputy Superintendent of Police, we do see that Sri Devi Reddy met one, S.Somaiah who was an Ex-militant of Bhoopathipet village and asked him to lend his assistance to catch the above pseudo Naxal gang, and with the help of the said Somaiah, Sri Devi Reddy also collected a few villagers of Bhoopathipet village to catch the pseudo naxal gang on 3-3-2002. It also shows that the villagers and Sri Devi Reddy were never afraid of this pseudo naxal gang, which is the brain-child of the applicant. When such is the case, it is becoming rather un-understandable how the 1st respondent invoked the provisions under Article 311(2) (b) and arrived at the conclusion that it was a matter where it is not reasonably practicable to hold a regular enquiry, in accordance with A.P.C.S. (CCA) rules. Thus, without application of mind, the 1st respondent exercised his jurisdiction under Article 311(2)(b) of the Constitution of India, and issued the impugned orders.” The Tribunal no doubt recorded certain reasons and had arrived at a conclusion that satisfaction recorded by the 1st writ petitioner and the reasons therefore cannot be sustained in the light of certain of the findings recorded by the Tribunal in this regard. In INDIAN RAILWAY CONSTRUCTION CO. LTD. Vs. AJAY KUMAR while dealing with Departmental enquiry and dispensing with enquiry the Apex Court held at paras 12, 13 and 14 as hereunder : “It is fairly well settled that the power to dismiss an employee by dispensing with an enquiry is not to be exercised so as to circumvent the prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the Court to substitute its view for that of the disciplinary authority as if the Court is sitting as an 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 enquiry or not. What the High Court was required to do was to see whether there was any scope for judicial review of the disciplinary authority’s order dispensing with the enquiry. The focus was required to be on the impracticability or otherwise of holding the enquiry. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to the broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. (See State of U.P. V. Renusagar Power Co. (1988) 4 SCC 59 : AIR 1988 SC 1737). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn., at pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarized as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all the relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories : (i) failure to exercise a discretion, and (ii) excess of abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops, entering into international treaties