IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 279 OF 1999 Shri Laxman K. Patil, major in age, r/o House No.1012/40, Goa Police Housing Society, Succoro, Porvorim, Bardez, Goa. .....Petitioner. Versus 1. State of Goa, through Chief Secretary, Secretariat, Panaji, Goa, 2. The Inspector General of Police, Goa Police Headquarters, Panaji, Goa, and 3. The Superintendent of Police (H.Q.), Goa Police Head Quarters, Panaji, Goa. .....Respondents. Shri M. S. Sonak with Shri U. K. Tari, advocates for the petitioner. Shri A.N.S. Nadkarni, Advocate General with Shri P. A. Kamat, Government Advocate for the respondents. CORAM : SMT. NISHITA MHATRE & P. V. HARDAS,JJ. DATE : 10th March, 2004. JUDGMENT ( Per Smt. Nishita Mhatre,J.) This Writ Petition relates to the exercise of powers by the Disciplinary Authority under Clause (b) of the Second Proviso to Article 311(2) of the Constitution of India. The petitioner takes exception to the Order of dismissal passed against him, after dispensing with a departmental enquiry. - 2 - The facts giving rise to the present petition are as follows: The petitioner was appointed as a Police Constable in the State on 23rd January, 1971. He was promoted to the post of Head Constable within a period of three years on lst August, 1974. The petitioner had successfully completed certain Technical Tests held by the Board of Examination of Arms and Ammunition in the year 1964, while serving in the Defence Force, the petitioner was posted in the Goa Police Armoury for carrying out inspection and repairs to arms. During the period 1981-1982 additional charge was given to the petitioner to discharge his duty in the Armoury Workshop. However, according to the petitioner he was never given charge of the Civil Arms and Magazine rifles as these were contained in a different section of the Armoury. The petitioner has stated in the petition that from time-to-time certificates were issued to him by the respondent no.1 acknowledging his good work in the field of maintenance and cleansing of small arms at various police stations, including the Police Headquarters at Panaji. Under the provisions of the Bombay Police Manual Vol.II, which are also applicable to the Goa Police Force, the Deputy Superintendent of Police and Police Inspector of Headquarters conduct regular inspections at the Armoury. From 1970 onwards, the Defence Officer of the rank of Captain was also deputed by the Central Government for carrying out yearly audit at the Armoury. This audit was then - 3 - carried out by the Inspector General of Police from the year 1987 onwards. Sometime in 1990, charges were levelled against the Goa Police for supplying ammunition to criminals in Karnataka State. An enquiry was held by the Central Bureau of Investigation, Bangalore and the records of ammunition which were in the custody of the petitioner were checked and verified by the C.B.I. and the Committee appointed by the respondents. The Committee verified the registers of ammunition in co-relation with the ammunition issued and the dead stock register from 26th April, 1987 to 12th January, 1990 and certified that the records maintained by the petitioner were correct. It appears that the Inspector of Police (Investigation Cell, Hyderabad), visited Goa on 12th June, 1992, on the basis of a complaint that mauzar rifles and arms were supplied from Goa Police Armoury to Peoples’ War Group of Andhra Pradesh. Immediately the next day, i.e. on 13th June, 1992, the petitioner was arrested by the Hyderabad Police and taken to the State of Andhra Pradesh. He was detained in Police custody and it was only on a petition for habeas corpus being filed in this Court that it was disclosed that the petitioner was charged under the Terrorist and Disruptive Activities Act ("TADA Act" for short) and was detained at Hyderabad. On 13th June, 1992, when the petitioner was arrested, he was placed under suspension with immediate effect. The reason for his suspension was that he was - 4 - arrested by the Andhra Pradesh intelligence branch for his alleged involvement in illegal arms transactions. The petitioner was then released on bail by the designated court under TADA Act on 2nd July, 1996. The trial was completed and on 9th April, 1999, the petitioner was acquitted of the charges levelled against him. The order of acquittal was confirmed by the Apex Court on 21st November, 2000. After the petitioner was granted bail in Hyderabad, the Deputy Superintendent of Police (Crime Branch) Panaji, arrested the petitioner again on 26th September, 1997, under TADA Act and various Sections of the Indian Penal Code and Section 13 of the Prevention of Corruption Act, 1938. The petitioner was then enlarged on bail on 3rd January,1998 by the designated Court under the TADA Act at Panaji. On 4th November, 1997, i.e. when the petitioner was under arrest in Panaji, he was dismissed from service without holding any enquiry, purportedly in exercise of the powers conferred on the respondent nos.2 and 3 by the Second Proviso to Article 311 of the Constitution of India. Since the petitioner was under arrest when the order of dismissal was passed, it was not possible for him to file an appeal within the statutory period. On being enlarged on bail on 7th January, 1998, the petitioner applied for copies of the - 5 - inventory proceedings referred to in the order of dismissal in order to prefer a statutory appeal. The petitioner thereafter on 22nd January, 1998, preferred an appeal and was informed orally that his appeal could not be considered as the dismissal order was issued under the constitutional provisions. The petitioner, therefore, approached this Court in Writ Petition No.285 of 1998. This Court directed the respondents to decide the appeal after hearing the petitioner. By an Order dated 28th January, 1999, the petitioner was informed that his appeal had been disposed of. No hearing was given to him. The present Writ Petition has been filed challenging the Order of dismissal as well as the appellate Order. 2. The Order of dismissal dated 4th November, 1997, has been passed ostensibly in exercise of the power under Clause (b) of the Second Proviso to Article 311(2) of the Constitution of India. It is stated in the order of dismissal that consequent to the arrest of the petitioner verification of the Goa Police Armoury was ordered and during the course of which it was found that the petitioner, while posted from 1981 to 1992, i.e. up to the time of his arrest, in the Police Armoury had manipulated and falsified official records with a view to misappropriate Government property and had thereby sold huge quantities of arms and ammunition belonging to the Government to terrorist organizations. Further, it is stated that on checking of the records and after completion of the - 6 - inventory proceedings, it was found that several fire arms of various descriptions and several rounds of ammunition of different calibre were missing from the Police Armoury during the period when the petitioner was working in Armoury. It is then stated in the dismissal order that since the petitioner is facing criminal charges both in Hyderabad and in Goa, a regular departmental enquiry was not possible. Paragraphs 5 and 6 of the dismissal Order read as under:- 5. And whereas, the said HC-1454, Laxman K. Patil (Under Suspension) is facing criminal charges both in Hyderabad, Andhra Pradesh and in Goa, and a regular Deparmental Enquiry is not possible for the following reasons:- a) His contacts with terrorist organisation and his presence even under suspension pose a security threat to police armouries in Goa. b) Since offences committed by him are prejudicial to the unity and integrity of the Nation and to the security of the State, his presence pose the risk of other policemen being subverted to such anti-national organisation. c) Nature of the acts of the Head Constable, Laxman K. Patil is prejudicial to the security of the State and his retention in the Police Department even under suspension any longer will not be proper and against discipline and will amount to endorsement of such anti-national activities. 6. And whereas, the undersigned who is the Appointing Authority is fully satisfied that the said HC-1454, Laxman K, Patil has committed serious deception and crime most unbecoming of a Government servant, specially of a member of a disciplined force by selling arms and ammunitions which he was supposed to safeguard. Such arms have been passed on to anti-national - 7 - extremist organisation like People’s War Group which has no faith in rule of law and has been involved in large scale killing and looting. His retention in the police force amounts to approval of his anti-national activities and will adversely affect the morale and discipline of other policemen. Policemen are supposed to protect life and property of the citizens but Head Constable, Laxman K. Patil by his acts has been responsible for some of the acts of killings of innocent people. It is not reasonably practicable to give the said HC-1454, Laxman K. Patil (Under Suspension) an opportunity of showing cause as to why he should not be dismissed from service for the reasons explained above." 3. The Appellate Authority by its Order dated 28th January, 1999, dismissed the appeal. The Appellate Authority held that the Disciplinary Authority had acted within its jurisdiction while dispensing with departmental enquiry on the basis that it was reasonably not practicable to hold one. The Appellate Authority also observed that it was not possible to get hold of the witnesses who had been receiving weapons and ammunition from the appellant (petitioner herein) for activities which have cost many human lives and since the security of the State required that the petitioner be removed from service the extreme step of invoking Clause (b) of the Second Proviso to Article 311 (2) of the Constitution were necessitated. 4. In the counter filed by the third respondent, i.e. the Superintendent of Police, it is averred that there was "material to show that the petitioner had earned illegal money by selling/transferring arms and ammunition from the Goa Police Armoury to anti-social/terrorist elements". It is also - 8 - disclosed that the investigating committee, which has been appointed by the Deputy Inspector General of Police to investigate in respect of the complaints regarding missing ammunition from the Police Armoury, had submitted its report which mentioned that the petitioner was involved in manipulation of the records of the Arms Register and misappropriation of arms from the Goa Police Armoury. It has also been stated that the deparmtental enquiry against the petitioner was not held as it was reasonably not practicable to hold such an enquiry in view of the petitioner’s links with terrorist organizations. The respondents have placed on record together with their affidavit Final Form/Report under Section 173 Criminal Procedure Code, which indicates that no chargesheet had been issued to the petitioner for want of substantial evidence against him. 5. The Report of the Committee constituted to enquire into the missing arms and ammunition has also been placed on record. This Report indicates that certain ammunition was missing and that the stock register did not tally with the existing stock. It also mentions that two kit bags belonging to the petitioner were found in the Armoury Workshop. As both these kit bags were locked, they were broken open on 19th June, 1992 (in the absence of the petitioner), and rounds of ammunition were found in them. The Committee observed that the petitioner was responsible for disappearance of the weapons, specially since some of the - 9 - missing weapons were recovered from his personal kit bags. The Committee has also observed that the missing number of weapons could not be ascertained since the weapons register had not recorded the number. It also observed that while handing over charge to the present incumbent in 1984, the petitioner had not handed over any Portuguese weapons. 6. While the respondent had taken action against the petitioner of dismissing him without an enquiry, he was exonerated of the charges levelled against him and was acquitted by the designated Court under the TADA Act in Hyderabad. The challenge to his acquittal was dismissed by the Apex Court and the acquittal was confirmed. 7. In the present case, the petitioner has challenged the Order of dismissal on various grounds. Shri Sonak, learned counsel for the petitioner, submits that the so-called reasons contained in the impugned Order do not give any evidence of the reasonable impracticability to hold the enquiry. He submits that the presumed conduct of the petitioner cannot be a basis on which the enquiry can be dispensed with. The learned counsel submits that the Proviso to Article 311 (2) of the Constitution does not invest the authority with power to dismiss without an enquiry, but the authority has power to dispense with an enquiry if it is found that it would not be reasonably practicable to hold one. The learned counsel submits that the reasons given in the - 10 - Dismissal Order for dispensing with the enquiry are not germane and relevant and are not sufficient to exercise powers under Clause (b) of the Second Proviso to Article 311 of the Constitution. He relies on the judgments in the cases of Workmen of Hindustan Steel Ltd. & Anr. vs. Hindustan Steel Workmen of Hindustan Steel Ltd. & Anr. vs. Hindustan Steel Workmen of Hindustan Steel Ltd. & Anr. vs. Hindustan Steel Ltd. & Ors. Ltd. & Ors. Ltd. & Ors., 1984 (Supp) SCC 554, Satyavir Singh & Ors. vs. Satyavir Singh & Ors. vs. Satyavir Singh & Ors. vs. Union of India & Ors. Union of India & Ors. Union of India & Ors., (1985) 4 SCC 252, Union of India & Anr. Union of India & Anr. Union of India & Anr. vs.Tulsiram Patel, vs.Tulsiram Patel, vs.Tulsiram Patel, AIR 1985 SC 1416, A. K. Kaul & Anr. vs. A. K. Kaul & Anr. vs. A. K. Kaul & Anr. vs. Union of India & Anr. Union of India & Anr. Union of India & Anr., (1995) 4 SCC 73, Chief Security Officer Chief Security Officer Chief Security Officer & Ors. vs. Singasan Rabi Das & Ors. vs. Singasan Rabi Das & Ors. vs. Singasan Rabi Das, (1991) 1 SCC 729, Jaswant Jaswant Jaswant Singh vs. State of Punjab & Ors. Singh vs. State of Punjab & Ors. Singh vs. State of Punjab & Ors., (1991) 1 SCC 362, S. S. S. J.Meshram vs. Union of India & Ors., J.Meshram vs. Union of India & Ors., J.Meshram vs. Union of India & Ors., 1987 (Supp) SCC 164, Union of India & Ors. vs. R. Reddappa & Anr., Union of India & Ors. vs. R. Reddappa & Anr., Union of India & Ors. vs. R. Reddappa & Anr., (1993) 4 SCC 269, Chandigarh Administration, Union Territory, Chandigarh & Chandigarh Administration, Union Territory, Chandigarh & Chandigarh Administration, Union Territory, Chandigarh & Ors. vs. Ajya Manchanda & Ors., Ors. vs. Ajya Manchanda & Ors., Ors. vs. Ajya Manchanda & Ors., (1996) 3 SCC 753, Mohomed Mohomed Mohomed Rayum vs. Union of India & Ors., Rayum vs. Union of India & Ors., Rayum vs. Union of India & Ors., 1977 Lab.I.C. 1590, and Union of India & Ors. vs. N. K. Chanda Roy & Ors. Union of India & Ors. vs. N. K. Chanda Roy & Ors. Union of India & Ors. vs. N. K. Chanda Roy & Ors., 1976 Lab. I.C. 860. The learned counsel submits that the Dismissal Order was open to judicial review and this Court in exercise of its powers under Article 226 of the Constitution ought to set aside the same, as it is clearly illegal. While assailing the Appellate Authority’s Order, the learned counsel submits that the Appellate Authority has to restrict itself to decide whether the reasons given by the Disciplinary Authority are genuine. The Appellate Authority cannot add to the reasons for dispensing with the enquiry, which, according to the learned counsel it has done, by observing in the Order - 11 - that it was not possible to get hold of the witnesses who had been receiving weapons and ammunition from the petitioner for activities which had cost many human lives. 8. The learned counsel also submits that the reasons stated in the Dismissal Order for dispensing with the enquiry are that the petitioner was alleged to have links with terrorist organization and that he was a security threat to the Police Armouries in Goa. He submits that these are reasons which only the President or the Governor, as the case may be, can consider for deciding whether it would be expedient to hold an enquiry in the interest of the security of the State. The learned counsel submits that if the reason for not holding an enquiry is that it was prejudicial to the security of the State, such a reason can be stated only by the President or the Governor under Clause (c) of the Second Proviso to Article 311 of the Constitution. In support of this submission he relies on the cases of Workmen of Hindustan Workmen of Hindustan Workmen of Hindustan Steel Ltd vs. Hindustan Steel Ltd., Steel Ltd vs. Hindustan Steel Ltd., Steel Ltd vs. Hindustan Steel Ltd., (supra) and Satyavir Satyavir Satyavir Singh vs. Union of India Singh vs. Union of India Singh vs. Union of India, (supra). In any event, submits the learned counsel, imposition of the punishment of dismissal without following the rules of natural justice when the petitioner had worked for 20 years, was extremely harsh and uncalled for. 9. Per contra, the learned Advocate General has submitted before us that the Disciplinary Authority had - 12 - arrived at the conclusion that it was not reasonably practicable to hold an enquiry specially since the petitioner had links with a terrorist organization or had sold arms to that organization. He submits that once the Disciplinary Authority has arrived at a conclusion that the petitioner had links with a terrorist organization, it must be held that the authority had acted well-within its powers by dispensing with the enquiry under Clause (b) of the Second Proviso to Article 311 (2) of the Constitution. He submits that this exercise of power was neither arbitrary nor capricious. There was sufficient material before the Disciplinary Authority to take the view it has done that it would be reasonably impracticable to hold a disciplinary enquiry against the petitioner. The learned Advocate General strenuously urges before us that when a civil servant has terrorist links and is involved in matters of misappropriation of arms, the enquiry must be dispensed with and the penalty of dismissal would be justified. He further submits that the reasons for dispensing with the enquiry are germane and sufficiency of the reasons cannot be considered by this Court. He submits that a progressive and purposeful interpretation is required to be placed on Clause (b) of the Second Proviso to Article 311 (2) of the Constitution. He submits that if by dispensing with the enquiry the Disciplinary Authority has intended to suit a larger noble purpose, namely of public interest or public good, then this Court should not interfere with the assessment made by the Disciplinary Authority to dispense with the - 13 - enquiry. The learned Advocate General was at pains to point out that it is necessary for us to consider the state of the nation and the threat of terrorists, which the nation faces in the present times. He submits that this Court ought not to interfere with the decision taken by the Disciplinary Authority, which was a reasonable view, to dispense with the enquiry. The learned Advocate General relies on the judgments in the cases of Sahadeo Singh & Ors. vs. Union of India & Sahadeo Singh & Ors. vs. Union of India & Sahadeo Singh & Ors. vs. Union of India & Ors. Ors. Ors., 2003 AIR SCW 940, Chairman & Managing Director, United Chairman & Managing Director, United Chairman & Managing Director, United Commercial Bank & Ors. vs. P. C. Kakkar Commercial Bank & Ors. vs. P. C. Kakkar Commercial Bank & Ors. vs. P. C. Kakkar, 2003 AIR SCW 944, State Bank of India vs. Samarendra Kishore Endow & Anr. State Bank of India vs. Samarendra Kishore Endow & Anr. State Bank of India vs. Samarendra Kishore Endow & Anr., 1994 (2) SCC 537, Union Territory, Chandigarh & Ors. vs. Mohinder Union Territory, Chandigarh & Ors. vs. Mohinder Union Territory, Chandigarh & Ors. vs. Mohinder Singh Singh Singh, 1997 (3) SCC 68, Indian Railway Construction Company Indian Railway Construction Company Indian Railway Construction Company Ltd. vs. Ajay Kumar Ltd. vs. Ajay Kumar Ltd. vs. Ajay Kumar, 2003 (4) 579, Ikrammudin Ahmed Borah Ikrammudin Ahmed Borah Ikrammudin Ahmed Borah vs. Superintendent of Police & Ors. Darrang & Ors. vs. Superintendent of Police & Ors. Darrang & Ors. vs. Superintendent of Police & Ors. Darrang & Ors., 1988 (Supp) SCC 663, Union of India & Ors. vs. K. K. Dhawan, Union of India & Ors. vs. K. K. Dhawan, Union of India & Ors. vs. K. K. Dhawan, 1993 (2) SCC 56, and Kuldip Singh vs. State of Punjab & Ors. Kuldip Singh vs. State of Punjab & Ors. Kuldip Singh vs. State of Punjab & Ors., AIR 1997 SC 79, besides the other judgments referred to hereinabove which have been cited on behalf of the petitioner. 10. The case of Union of India vs. Tulsiram Patel Union of India vs. Tulsiram Patel Union of India vs. Tulsiram Patel (supra) which was decided by the Apex Court, considered various aspects of the pleasure doctrine encompassed in Articles 310 and 311 of the Constitution. It also considered the interpretation to be placed on the Second Proviso to Article 311 (2) of the Constitution and various circumstances in which an enquiry can be dispensed with while dismissing a - 14 - civil servant from service. 11. In the case of Satyavir Singh vs. Union of Satyavir Singh vs. Union of Satyavir Singh vs. Union of India India India (supra), Madon, J., speaking for the Bench has paraphrased the findings of the Apex Court in the case of Tulsiram Patel Tulsiram Patel Tulsiram Patel (supra). It would be advantageous to reproduce certain portions of the judgment which read as under:- (55) there are two conditions precedent which must be satisfied before clause (b) of the second proviso to Article 311(2) can be applied. These conditions are:- (i) There must exist a situation which makes the holding of an inquiry contemplated by Article 311(2) not reasonably practicable; and (ii) The disciplinary authority should record in writing its reasons for its satisfaction that it is not reasonably practicable to hold such inquiry. (56) 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. (57) It is not a total or absolute impracticability which is required by clause (b) of the second proviso. 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. (58) The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of the prevailing situation that clause (3) of Article 311 makes the decision of the disciplinary authority on - 15 - this question final. (59) It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be - (a) where a civil 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