HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1937 of 2005 (S/S) Constable 268 A.P. Dharmendra Rathi …. Petitioner .. Versus State of Uttaranchal & others … Respondents Mr. A.V. Pundir, Advocate for the petitioner. Mr. K.P. Upadhyay, learned Additional Chief Standing Counsel for the State of Uttarakhand. 9th July, 2009 Hon’ble Sudhanshu Dhulia, J. The petitioner who was a constable (bearing constable no. 268) in Uttarakhand Civil Police and was appointed in the police service on 24.2.2002 has presently challenged the order dated 7.2.2005 passed by his appointing authority the Senior Superintendent of Police, Haridwar who while exercising his powers under Rule 8 of Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rule, 1991 (hereinafter referred to as the “Rules”), has dispensed with an inquiry and a disciplinary proceeding and straightway dismissed the petitioner from service. The validity of this order as well as the consequent order dated 15.9.2005 passed by the appellate authority are in challenge before this Court in the present writ petition. The petitioner was appointed w.e.f. 24.2.2009 and after undergoing nine months’ training, was finally inducted as a constable in Uttarakhand civil police. The allegation against the petitioner is that while he was at Haridwar he was assigned to go for a training to 40 Bn P.A.C., Haridwar, which was to be commenced from 3.2.2005 to 15.3.2005 and for which he had already taken leave on 2.2.2005. However, instead of joining the training he indulged in a drunken brawl 2 with his fellow constable, namely, Nishant Malik and consequently ran away to Delhi. Subsequently thereafter his brother and sister lodged a complaint with the Senior Superintendent of Police that they have received phone calls from the petitioner that he has been kidnapped, etc., etc. On preliminary inquiry conducted by the Reserved Inspector, it was found that the petitioner indulged in a drunken brawl with his fellow Constable Nishant Malik and thereafter he fled. The entire story of the petitioner that he has been beaten by Nishant Malik was fabricated by the petitioner. Moreover, according to the Senior Superintendent of Police in its impugned order, this incident has been published widely in media which has in turn given a bad image to the police force in Uttarakhand in general and in Haridwar in particular. For these reasons, the Senior Superintendent of Police, Haridwar exercising his powers under Rule 8 (2) (b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (from hereinafter referred to as ‘the Rules, 1991’) dismissed the petitioner from service. Rule 8 of the Rules, 1991, reads as under : “8. Dismissal and removal. – (1) No Police Officer shall be dismissed or removed from service by an authority subordinate to the appointing authority. (2) No Police Officer shall be dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceedings as contemplated by these rules : Provided that this rule 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 3 reason to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) All orders of dismissal and removal of Head Constables or Constables shall be passed by the Superintendent of Police. Cases in which the Superintendent of Police recommends dismissal or removal of a Sub-Inspector or an Inspector shall be forwarded to the Deputy Inspector General concerned for orders. (4) (a) The punishment for intentionally or negligently allowing a person in police custody or judicial custody to escane shall be dismissal unless the punishing authority for reasons to be recorded in writing awards a lessor punishment. (b) Every officer convicted by the Court for an offence involving moral turpitude shall be dismissed unless the punishing authority for reasons to be recorded in writing considers it otherwise.” According to the learned counsel for the petitioner, Sri A.V. Pundir as well as the Additional Chief Standing Counsel, Sri K.P. Upadhyay, the aforesaid rules are also applicable in case of the petitioner. In the present case, therefore, a constable of Uttarakhand police who is a Government servant has been dismissed from service without affording any opportunity of hearing or show cause, thus admittedly the petitioner has been denied even his right of hearing under the principles of natural justice and fair play. 4 One of the two basic principles of administrative law is that no one should be condemned without being heard or more precisely the principle of “audi alteram partem”. This principle is a century old principle older than any statute or even the Constitution of India. It finds expression in the Constitution of India, namely, under Article 14 which provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. More importantly and in fact more precisely it finds expression in Article 311 of the Constitution of India, which says that no person who is a member of civil service either of the Union of India or of the State 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. Of course, there is a rider attached to this in a proviso, and for a ready reference Article 311 of the Constitution of India on which the entire subject to the present writ petition in fact the res, is referred below : “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 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 5 evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply – (a) where a person is dismissed or 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 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.” Apart from Article 311 of the Constitution of India, there are analogous provisions in different State services as well as different services under the Union of India which provide, more or less, the same provisions as given in Article 311 of the Constitution of India. Rule 8 of the Rules which, inter alia, applies in the case of the present petitioner also gives an analogous provision particularly Clause (2) of Rule 8 and the second proviso given under Article 311 of the Constitution of India. Therefore, whereas the police authority definitely have 6 power under the Rules, the source of these Rules lie in the Constitution of India, namely, under Article 311. A bare perusal of Article 311 of the Constitution of India read with the analogous provisions in the Rules makes one thing very clear that no Government servant is liable to 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. This is the rule. However, there are certain exceptions to this rule and these exceptions are given in second proviso of Article 311 of the Constitution of India as well as in the proviso to the Rules. Admittedly there are three contingencies where a proper enquiry or a disciplinary proceeding can be dispensed with under the second proviso to Article 311 of the Constitution of India as well as under the proviso to Rule 8 of the Rules. These three contingencies would be – (a) where a person is dismissed 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. Clearly this is not a case where situation is as contemplated in (a) or (c) exists. This is clearly a case where the appointing authority has exercised its power under (b). The Senior Superintendent of Police, Haridwar does have powers to remove or dismiss or reduce the rank of a constable without 7 holding an inquiry or disciplinary proceedings, in case a contingency so demands. However, the only question is whether these powers have been exercised by the Senior Superintendent of Police with due diligence or in other words whether the situation demanded an exercise of these powers and also whether full compliance of the rules and the law has been made by such authority while passing such an order in his purported exercise of these powers. First and foremost, it has to be seen that Article 311 (3) clearly states that once an appointing authority comes to a decision that it is not 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. In other words, the superior authorities cannot even question the decision of the appointing authority. It is for this reason that second proviso to Article 311 (2), namely, proviso 2 (b) states that when such an authority is satisfied that for some reasons to be recorded by that authority in writing it is not reasonably practicable to hold such inquiry, he may do so. In other words, not only such an authority will have to come to the conclusion that it is not reasonably practicable to hold such inquiry but he must assign such reasons in writing. However, in the present case, it is found that only a bald statement has been made by the Senior Superintendent of Police, Haridwar that it is not practicable to hold an inquiry. He has not assigned the reasons why he has come to the conclusion that such an inquiry is not practicable. Merely to hold that the action of the petitioner has depleted the image of the police department is no reason for dismissing the petitioner from his service. Moreover, in the opinion of this Court, there is no apparent reason not to hold an inquiry and disciplinary proceedings in the present matter and under the facts and circumstances of the case, the punishment could only have been imposed against the petitioner after holding an inquiry and disciplinary proceedings, as prescribed under the 8 law. Since it has not been done, it clearly invites interference by this Court. There are, in fact, three stages to proceed under Article 311 of the Constitution of India as well as analogous provisions to the Rules referred above. First the charges against the person must be so grave that in case they are proved they must invite a major penalty such as dismissal, removal or reduction in rank. Therefore, the first question which must come up before this Court is whether the charges against the petitioner were so grave! Undoubtedly, the police is a disciplinary force and the conduct by the petitioner definitely invited disciplinary proceedings and an inquiry and after these charges are proved, it can be a possibility where the petitioner may have been given a major penalty. Therefore assuming that the conduct of the petitioner was such as to have invited a major penalty, the second question would be for the concerned authority to come to the conclusion that “it is not reasonably practicable to hold” inquiry as is contemplated under the second proviso to Article 311 of the Constitution of India or under the Rules. Whether such an enquiry was practicable or not must be judged in the context of whether it was reasonably practicable to do so or not. In other words, the requirement of law is a judgment of a reasonable or a practical person taking a reasonable view of the prevailing situation. The question before this Court, therefore, would be whether the charges against the petitioner were so grave or whether the situation was delicate enough or whether there were any such allegations against the petitioner that he would terrorize the witnesses or any such apprehension then the answer would be in negative. The disciplinary authority is not expected to dispense with the disciplinary proceedings in a light or a casual manner or even arbitrarily or merely in order to avoid the holding of an inquiry because the department’s case against the incumbent is weak and may fail. A great responsibility is given to the concerned officer who must 9 exercise this discretion with utmost caution having conscious of the fact that while dispensing with an inquiry he is actually denying the incumbent his valuable right of being heard and, therefore, the circumstances must be clear and present before the concerned authority to dispense with the inquiry before he takes a decision of dispensing with a disciplinary proceeding. Sadly, this has not happened in this case. What is more important is that the third stage has again been violated. Where even if it was not reasonably practicable for the concerned authority to hold an inquiry and even if such a situation warranted that no disciplinary inquiry should be made then again before dispensing with such an inquiry, the officer must give his reasons in writing as a requirement of second proviso. This has again not been done. The seminal case on this aspect is the case of Union of India and another v. Tulsiram Patel, (1985) 3 SCC 398 which is a decision of Constitution Bench of the Hon’ble Supreme Court which holds law on the subject. In Tulsiram Patel case, the Constitution Bench of the Hon’ble Supreme Court had an occasion to examine and interpret Articles 309, 310 as well as 311 but more particularly Article 311 (2) and the second proviso particularly in the light of the 42nd Amendment. Although, by and large, the orders impugned in the case where the authorities had dispensed away with the inquiry and the disciplinary proceedings were upheld. The majority Judges had observed that clause (2) of Article 311 gives a constitutional mandate to the principles of natural justice and more particularly the principle of “audi Alteram Partem” by providing that a civil servant shall not be dismissed or removed from service or reduced in rank until after an inquiry in which he has been informed of the charges against him and has been given reasonable opportunity of hearing in respect of those charges. This safeguard provided for a civil servant under clause (2) of Article 311 is taken away when the second proviso to that clause becomes applicable. However, the 10 majority of Judges had also pointed out that the most important aspect to be borne in mind is that the second proviso will apply only where the conduct of the government servant is such that he deserves dismissal, removal or reduction in rank and before denying a government servant his constitutional right to an inquiry. The first consideration would be whether the conduct of a government servant is such as justifies the penalty of dismissal, removal or reduction in rank and only after such a conclusion is reached, the conditions specified in the second proviso become applicable, as it has already been referred above. It would, therefore, be necessary to quote the view of the majority of Judges on this which states as follows : “134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not 11 reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.” The procedure adopted by the authorities in the present case, does not meet the requirement of Article 311 of the Constitution of India or Rule 8 of the Rules. It is in violation of the paradigm set in the Tulsiram Patel’s case as well. Moreover, an appeal was also filed by the petitioner where the appellate authority has also repeated what the appointing authority had to say. There is absolutely no application of mind by the appellate authority. Therefore, this Court holds as follows : The orders dated 7.2.2005 and 15.9.2005 being totally in violation of principle of natural justice and fair play as well as in violation of second proviso to Article 311 of the Constitution of India as well as in violation of Rule 8 of the Rules are liable to be set aside and are hereby set aside. It is directed that the petitioner will be immediately taken back in service with all service benefits applicable to him. With these observations, writ petition is allowed. No order as to costs. (Sudhanshu Dhulia, J.) 9.7.2009 Avneet