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2001 DIGILAW 373 (PAT)

Sita Ram Paswan v. State Of Bihar

2001-04-23

NAGENDRA RAI, S.K.KATRIAR

body2001
Judgment Nagendra Rai, J. 1. The appellant has filed the present appeal under Clause 10 of the Letters Patent of the Patna High Court against the order dated 27-3-2001 passed by a learned Single Judge of this Court in CWJC No. 3912 of 2001 dismissing the writ application filed by the appellant challenging the order dated 6-2-2001 (Annexure-5 to the writ application) passed by the Transport Commissioner, respondent No. 3 herein, dismissing him from service by taking recourse to the provision of Second proviso to Article 311 (2) of the Constitution of India. 2. The appellant was posted as Enforcement Sub-Inspector in the District of Gopalganj since 1996. On 12-1-2001, respondent No. 3-Transport Commissioner, issued an order directing the appellant to join at headquarters at Patna within three days from the date of issuance of the order. The said order was served upon the appellant. On 15-1-2001, the appellant jointed in the department at Patna and on the following day, he proceeded on leave without the same being approved by the competent authority till 31-1-2001. On 18-1-2001 at 6.30 p.m. while the respondent No. 3-Transport Commissioner, Sri N.K. Sinha was in the midst of holding a departmental meeting in his chamber along with Joint Transport Commissioner, Undersecretary, Registrar and other staff, an M.L.A. having been elected from Gopalganj constituency, namely, Sri Anirudh Prasad @ Sadhu Yadav along with two bodyguards armed with AK-47 rifles and 10 to 15 persons armed with fire-arms entered into his chamber and they took the office in ransom in the sense that they asked the other officers present in the meeting to leave the place by show of arms. The door of the chamber was closed and then at the gun point, the Transport Commissioner was forced to put his signature on the order purporting to be an order transferring back the appellant to Gopalganj after expiry of his leave on 31-1-2001. The mob led by the said M.L.A. also got an office order issued and said order was also served upon the person present there. 3. It is admitted position that the said M.L.A. is the brother the present Chief Minister of Bihar and brother-in-law of the President of the ruling party. The respondent-Transport Commissioner informed about the said incident to the Chief Secretary, State of Bihar and the Chief Minister, Bihar. 3. It is admitted position that the said M.L.A. is the brother the present Chief Minister of Bihar and brother-in-law of the President of the ruling party. The respondent-Transport Commissioner informed about the said incident to the Chief Secretary, State of Bihar and the Chief Minister, Bihar. He also reported the matter to the Police, but no action was taken from any of the agency. Later on, when hue and cry was raised, the police registered a case on the basis of clarification given by the respondent-Transport Commissioner with regard to certain news. In the FIR, the offences were shown bailable. The police with a view to please the persons in power went to the residence of the said M.L.A. and granted him bail, It further appears from the record that in pursuance of the said order of transfer, the appellant joined at Gopalganj and the District Transport Officer informed on 1-2-2001 to the Transport Commissioner about his joining. It is to be mentioned here that the appellant joined at Gopalganj without any relieving order having been issued by the competent authority. When no action was taken by the aforesaid authority, i.e. head of the executive, head of the State Services as well as the police, respondent-Transport Commissioner, came to the conclusion that it was not reasonably practicable to hold inquiry with regard to misconduct of the appellant and passed the order by taking recourse to the provision of second Proviso to Article 311 (2) of the Constitution of India. 4. From perusal of Annexure-5 to the memo of appeal, it is evident that the respondent-Transport Commissioner has narrated the entire facts and also indicated the circumstances under which he was passing the order in exercise of power under Article 311(2)(b) of the Constitution of India. 5. Mr. Tarakant Jha, the learned Counsel for the appellant, submitted two points. Firstly, he submitted that the appellant was not present when the aforesaid incident took place in the chamber of the Transport Commissioner, and, as such, it cannot be presumed that what was done by the said M.L.A. and his hench men, was done at the instance of the appellant. Secondly, he submitted that the order is vitiated by malafide as the Transport Commissioner is himself the accuser as well as the disciplinary authority passing the impugned order. Secondly, he submitted that the order is vitiated by malafide as the Transport Commissioner is himself the accuser as well as the disciplinary authority passing the impugned order. Elaborating his submission, he submitted that allegation has been made by the Transport Commissioner and FIR has been lodged and, as such, passing an order by him is malafide in the sense that he has become the Judge as well as the witness in the same case. 6. The learned Counsel appearing for the State on the other hand supported the order passed by the learned Single Judge. 7. The relevant provisions of Article 311 of the Constitution of India are as follows: 311. (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 sub-ordinate 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 these 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) xx xx xx (b) Where an 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) xx xx xx (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. 8. Doctrine of Pleasure is embodied in Article 310 of the Constitution of India. Clauses (1) and (2) to Article 311 of the Constitution of India give protection to the members of Civil services. 8. Doctrine of Pleasure is embodied in Article 310 of the Constitution of India. Clauses (1) and (2) to Article 311 of the Constitution of India give protection to the members of Civil services. The said protection has been withdrawn by the Second Proviso to Clause (2) to Article 311 of the Constitution of India and said withdrawal of protection is in public interest and based on public policy. If the conditions mentioned in the proviso are fulfilled then the inquiry as provided in Clause (1) and (2) to Article 311 of the Constitution of India can be dispensed with and the major punishments as provided therein can be awarded. Proviso (b) to Clause (2) of Article 311 dispenses with the inquiry when the disciplinary authority arrived at the satisfaction that it is not reasonably practicable to hold the inquiry. The said word was interpreted by the Constitution Bench of the Apex Court in the case of Union of India V/s. Tulsiram Patel -- , and it was held that the said words cannot be interpreted to mean total or absolute impracticability. 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. The disciplinary authority who is at the spot is the best judge of the matter and it is for him to assess as to whether the inquiry is to be dispensed with or not. It was also held in that case that though the finality has been given to the decision of the disciplinary authority under Article 311 of the Constitution of India, but the same is not binding upon the Court and in exercise of judicial review, it can interfere with the order and their Lordships referred to the case of Arjun Chaubey V/s. Union of India -- where the order was interfered with on the ground that the disciplinary authority was accuser with regard to some of the charges for which inquiry was dispensed with. The relevant paragraph dealing with the said question is 130 of the said judgment which runs as follows. The condition precedent for the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by Clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". The relevant paragraph dealing with the said question is 130 of the said judgment which runs as follows. The condition precedent for the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by Clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done, feasible". Websters Third New International Dictionary defines the word practicable" inter alia as meaning" possible to practise or perform: capable of being put into practice, done or accomplished: feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Websters Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, 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. It is not a total or absolute impracticability which is required by clause (b). 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. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorises, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through others threatens intimidates and terrorises the officer who is the disciplinary authority or afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the government servant concerned is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority on this question final. 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 Departments 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. 9. Once the order has been passed in exercise of power under the second proviso to Article 311(2) of the Constitution of India indicating the reasons for not holding an inquiry the order attains finality in view of the provision contained under Clause (3) to Article 311 of the Constitution of India but as held by the Constitution Bench in the case of Tulsiram Patel (supra), the order is subject to judicial review and it can be challenged on the ground that the order was passed on extraneous consideration or on irrelevant ground or as a result of malafide, However, the truth or correctness of the materials cannot be questioned nor can it be gone into the adequacy of the material. Even in the case of mala fide, the Court will not interfere unless it is found to be abuse of power or fraud on power. See -- , Union of India and Anr. V/s. Balbir Singh and Anr. 10. So far as the first submission raised by the learned Counsel for the appellant is concerned, it is apparent from the record that the appellant was posted at Gopalganj and he had completed his tenure there. Thereafter he was transferred from there and asked to join at the headquarters at Patna. V/s. Balbir Singh and Anr. 10. So far as the first submission raised by the learned Counsel for the appellant is concerned, it is apparent from the record that the appellant was posted at Gopalganj and he had completed his tenure there. Thereafter he was transferred from there and asked to join at the headquarters at Patna. On 18-1-2001, the member of legislative Assembly along with his two body-guards armed with sophisticated modern fire-arms and other hench men all armed with fire-arms entered into the office of the Transport Commissioner, took the office to ransom, intimidated and by use of force obtained an order retransferring the appellant to the same place. An office order was also issued by use of force and thereafter the appellant joined on the basis of the said order and the District Transport Officer sent a communication to the Transport Commissioner informing about the same. Though the Transport Commissioner has not stated in the impugned order that the appellant was present at the time when the aforesaid episode happened, but the fact is that the appellant enjoyed the fruits of the order obtained by coercion and force. It is only indicative of the fact that the entire thing was done at the instance of the appellant and to help the appellant. A matter can be proved either by direct evidence or by circumstantial evidence. The circumstances indicated above lead to only one inference that at the instance of the appellant, the said M.L.A. along with two body-guards armed with AK-47 rifles as well as his hench men, all armed with fire-arms went to the Chambers of the Transport Commissioner and after driving out the persons present there manhandled the Commissioner and obtained the transfer order and as such the learned Single Judge, in our view, rightly held that the appellant has hand in the episode which had taken place on the aforesaid date and the appellant has full protection of the men in power. 11. So far as the second submission raised on behalf of the appellant is concerned, it is be seen as to whether the order is vitiated on the ground that the Transport Commissioner being accuser, cannot pass the impugned order as a disciplinary authority. 11. So far as the second submission raised on behalf of the appellant is concerned, it is be seen as to whether the order is vitiated on the ground that the Transport Commissioner being accuser, cannot pass the impugned order as a disciplinary authority. The facts narrated above clearly show that the appellant has a protection of a powerful M.L.A. who is the brother of the present Chief Minister and brother-in-law of the President of the ruling Party who is in power. In spite of the matter being brought to the notice, of the Chief Secretary and the Chief Minister, no action was taken. In such a situation, it is not possible to expect that any action would be taken against the appellant either by an officer superior to the appellant or by the Government. In such a situation whether the competent authority to pass the order under the aforesaid provision will tie his hands and leave the appellant. The Apex Court in the case ofArjun Chaubey V/s. Union of India AIR 1994 SC 1356 held that a disciplinary authority cannot be a witness as well as a judge as in that case the scale of the justice will not be even. The said case was considered by the Apex Court in the case of Tulsiram Patel (supra) where in paragraph 131 of the judgment, it was held as follows. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent government servant either by himself or along with or through others makes the holding of an inquiry not reasonably practicable. 12. Even in the case of Arjun Chaubey (supra), the Apex Court made the aforesaid observation taking into consideration the facts of the case and held in paragraph 7 of the judgment that misbehaviour on the part of the employee on that part was not serious as to cure or condone the infirmity in the order of dismissal passed in that case by the authority, who had made some of the allegation. 13. In the present case, the situation as is evident from the record are such that the respondent-Transport Commissioner moved all the authorities of the State including the Chief Secretary and the Chief Minister of the State and informed about such incident. 13. In the present case, the situation as is evident from the record are such that the respondent-Transport Commissioner moved all the authorities of the State including the Chief Secretary and the Chief Minister of the State and informed about such incident. The Government has also not proceeded in the matter in view of the facts stated above. When the Superior Officers of the State have preferred career to character and escapism to discharge of the duty, then it cannot be reasonably expected for them to take any action in the matter. This is really a case where, in my view, doctrine of necessity will have to be applied as neither any superior officer in the State would have courage to take any action in the matter, nor the Government is interested in taking action in the matter and in such a situation, if the disciplinary authority will sleep over the matter, the result would be that the law breakers will have supremacy and it will encourage the law breakers to harass the officers discharging their official duties. This is one of such cases where the aforesaid provision has to be applied in true sense. Thus, the second submission raised on behalf of the appellant is also rejected. 14. From pe/usal of the impugned order, it is clear from the circumstances mentioned in the order including the episode of 18-1-2001, the conduct of the appellant, protection (given by the high-ups of the State to the appellant, and the conduct of the personswho have taken the office of the Transport Commissioner to ransom show that the holding of the inquiry is not reasonably practicable in this case. 15. Accordingly, we fully agree with the view taken by the learned Single Judge. The appeal is dismissed. S.K.Katriar, J. 16 I have the privilege and the advantage of hearing the judgment dictated by Brother Nagendra Rai, J. in Court. I agree with the conclusion arrived at by him. However, I wish to add my own views. 17. Nemo Judexln Causa Sua. No person can be a judge in his own case. This general rule, however, has a few exceptions. A Judge who would otherwise be disqualified may act in a case of necessity where no other Judge has jurisdiction. I agree with the conclusion arrived at by him. However, I wish to add my own views. 17. Nemo Judexln Causa Sua. No person can be a judge in his own case. This general rule, however, has a few exceptions. A Judge who would otherwise be disqualified may act in a case of necessity where no other Judge has jurisdiction. It was observed as follows in the case of Serjeant V/s. Dale, (1877) 2 Q. B.D. 558: By the common law, a Judge who has an interest in the result of a suit is disqualified from acting except in cases of necessity, where no other Judge has jurisdiction. The following passage from Administrative Law by Craig (Third edition, 1994, Page 333) is relevant in the present context: The normal rules against bias will be displaced in circumstances where the individual whose impartiality is called in question is the only person empowered to act. Thus, in the Dimes case (1852) 3 H.C.L. 759, 787) it was held that the Lord Chancellors signature on an enrolment orderwhich was necessary in orderforthe case to proceed to the House of Lords, was unaffected by his share-holding in the Company because no other person was given the power to so sign. Similarly, in Philipsv. Eyre, (1870 L.R. 6 Q. B.); See also Re Manchester (Ringway Airport) Compulsory Purchase OttferC\935) 153 L.T. 219; Jeffsv. New Zealand Dairy Production & Marketing Board(1967) 1 AC. 551; if Wilkinson V/s. Barking Corporation (1948) 1 K.B. 721, it was held that the Governor of a Colony could validly assent to an Act of Indemnity which protected, inter alia, his own actions because the relevant Act had to receive the signature. Parliament has at different times made statutory exceptions to the rule against bias, allowing justices to sit who have some kind of interest in the subject-matter of the action. Also see -- (Laxmi ChandAgarwa N. State oftl.P.), and Natural Justice by H.H. Marshall. The following statement of the law appearing in Administrative Law by Wade and Forsyth (7th edition, 1994, Page 476) is to the same effect: ...there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity (1982 PL 628 (R.R.S. Tracey); for otherwise there is no means of deciding and the machinery of justice or administration will break down. Natural justice then has to give way to necessity (1982 PL 628 (R.R.S. Tracey); for otherwise there is no means of deciding and the machinery of justice or administration will break down. This point made an appearance in Dimes V/s. Grand Junction Canal, (1852) 3 HLC 759. (Emphasis mine) 18. The second exception is brought about the statute. If the statute itself confers a power on an authority and imposes a duty on it which may have the effect of making him a judge in his own cause or to decide a dispute in which he has anofficial bias, the doctrine of bias stands qualified to the extent of the statutory authorisation. The following passage from Judicial Review of Administrative Action by S.A. de smith (Third edition, 1980, Page 277) illumines the position: ...what would be the position in English administrative law if a Minister were to be called upon to decide whether or not to confirm an order made by a local authority affecting his own property? He could not lawfully transfer to another Minister his duty to decide. He might depute one of his own officials to make the decision; the decision would nevertheless be made in the Ministers name. It is submitted that the validity of the decision could not be challenged merely on the ground that the Minister was in a sense Judge in his own cause; for the legal duty to decide the class of matter to which he belonged had been cast upon him, and upon him alone. If it were possible to show that the Minister had, in fact failed to consider the merits of the order for reasons of personal interest, his decision could be successfully challenged.... The statement of the law in Wade and Forsyth (supra) at Page 477 is to the same effect, and concludes by stating that "...The Court will naturally not allow statutory machinery to be frustrated in this way. Re Manchester (Ringway Airport) Compulsory Purchase Order (1935) 153 LT219. For similar reasons, a Governor of a colony may validly assent to an act of indemnity for his own actions, since otherwise the Act could not be passed at all. Philips V/s. Eyre, (1870) LR6 Q.B. 1. Re Manchester (Ringway Airport) Compulsory Purchase Order (1935) 153 LT219. For similar reasons, a Governor of a colony may validly assent to an act of indemnity for his own actions, since otherwise the Act could not be passed at all. Philips V/s. Eyre, (1870) LR6 Q.B. 1. It is generally supposed, likewise, that a minister must act as best he can even in a case where he, for instance, himself owns property which will be benefited if he approves a development plan...". 19 The third exception relates to the category of departmental proceedings where the disciplinary authority is the Judge in his own cause. He takes the decision to initiate disciplinary proceedings, to frame charges, to appoint inquiry officer or enquire himself, takes the decision on the inquiry report, and passes the final order. Reference may be made to the judgments reported in -- (Choudhary V/s. Union of India), and -- (Ramesh Chandra v, Union}. 20. Another recognised exception is arbitration proceedings. The arbitration clause quite often stipulates that the Government or governmental agency, or the Company, assigning the contract will nominate the arbitrator, generally giving the designation of one of its officers in the event of a dispute between the parties. Reference in this connection may be made to the judgment of a learned Single Judge of this Court in Bharat Refractories Ltd. V/s. R.K. Das: 1997 (2) BLJR 1207 : 1997 (1) PLJR 737 . 21. The present case is thus covered by the third exception stated above. 22. For the facts stated in the impugned order and discussed in the judgment of Brother Rai, J. with which I fully agree, proviso (b) to Article 311 (2) of the Constitution is manifestly available to the disciplinary authority. I am convinced that the disciplinary authority is fully justified in reaching the conclusion that it is not reasonably practicable to hold an iinquiry. A person of the rank of Secretary-cum-Commissioner has been terrorised into subservience, and was forced to sign the transfer order by putting him under fear of being beaten up and that of life in his office chamber in the Secretariat by threatening to use sophisticated weapons. The State Government at all levels up to the Chief Secretary has remained absolutely unmoved obviously because of the fear of being beaten up and that of their lives. The State Government at all levels up to the Chief Secretary has remained absolutely unmoved obviously because of the fear of being beaten up and that of their lives. Full sister of the M.L.A. who lead the team of goons is the Chief Minister of the State, and her husband is the President of the ruling party in power. The employee joined the new place of posting without being relieved at the place of previous posting, and no objection is raised at either of the two places. A person of the rank of Enforcement Sub-Inspector has been able to organise such a massive show of terrorism of extra-ordinary dimensions in the main Secretariat without a word of protest. Who will risk his life or would like to be beaten up for conducting the inquiry or coming as a witness. I am reminded of trie observations of the Supreme Court in the case of Rudal Sah V/s. State of Bihar AIR 1983 SC 1986, though made in a slightly different context, that "there is darkness all around in the present administration of the State of Bihar". If there has to be one case, it is the present one which would be covered by proviso (b) to Article 311 (2) of the Constitution.