Dulal Chandra Barua v. Inspector General of Police, Assam and Ors.
1982-04-07
B.L.HANSARIA, T.C.DAS
body1982
DigiLaw.ai
The petitioner was serving as a Constable under Sibsagar D. E. F. By an order passed on 27.8.75 he came to be dismissed from service with immediate effect because the appointing authority felt that he "is unfit to be retained in public service". The authority being further purportedly satisfied that "it Is not reasonably practicable to hold an enquiry," the dismissal order was passed with the aid of proviso (b) to Article 311(2) of the Constitution. This dismissal order has been challenged by the petitioner. 2. A perusal of proviso (b) makes it clear that the authority empowered to dismiss has to record its reasons for being satisfied that it is not reasonably practicable to hold such inquiry. From the affidavit-in-opposition filed on behalf of respondents 1, 2 and 3, we fund that the petitioner was considered to be a person of doubtful integrity, in disciplined and having unsatisfactory record of service. It has been further averred that the petitioner misappropriated Government money forging documents pertaining to pay etc. and considering these aspects of the matters and on accepting Handwriting Expert's opinion and being of the view that no other person would come up to tender free and frank evidence In an open enquiry and that such enquiry cannot be held without evoking discontentment in the Force, the petitioner was dismissed as authorised by the aforesaid proviso. Though this is the averment in the counter filed by the Deputy Inspector General of Police, Assam, from the records produced before us fey the learned Junior Government Advocate it appears that the Inspector General of Police, who had passed the impugned order, bad referred to an anonymous letter threatening revolt in the Constabulary if pay, Dearness Allowance, Medical Benefit, house rent and ration were not enhanced. The petitioner was thought to be the writer of this letter. The order passed in the file further states that "and whereas it is considered that an open enquiry in this matter as contemplated in Article 311 (2) is not reasonably practicable in view of the fact that excepting Handwriting Expert's opinion, no other direct evidence would be available and that holding of enquiry will have repercussion amongst the Constabulary", the dismissal order was passed without holding enquiry. 3.
3. Even if we ignore the difference in the two versions noted above, it is apparent that there could not have been any difficulty in obtaining the Handwriting Expert's evidence in the enquiry. The contention that no other direct evidence would be available is a guess-work and in any case it has nothing to do with the non-practicability of holding the enquiry. Another reason given in the above quoted order that the enquiry will have repercussions amongst the Constabulary is related to the fact of expediency in holding the enquiry. We do not think if this aspect has relevance in so far as proviso (b) to Article 311 (2) is concerned. It may incidentally mentioned that non-expediency of holding an enquiry is covered by proviso (c) which power can be applied by the named authority in the interest of security of the State. 4. This being the position, we are not satisfied if the power under proviso (b) was rightfully invoked in the present case. Thus the dismissal order is hit by Article 311 (2) of the Constitution and cannot be upheld. Accordingly we allow the petition and quash the order of dismissal. We may say that if there was any enquiry pending against the petitioner, the same could continue, if it is considered necessary by the appropriate authority.