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2004 DIGILAW 811 (PAT)

Shailendra Kumar Ojha v. State of Bihar

2004-08-11

body2004
ORDER Heard counsel for the parties. 2. This writ application is directed against the order, as contained in annexure 3, issued vide mimo no. 1135 dated 2.12.2000, whereby and where under the petitioner has been dismissed from services in exercise of powers under Article 311 (2)(b) of the Constitution. 3. It appears that for an incident, which took place on 6/7.11 .2000 in the Secretariat Campus, where the petitioner along with some other employees of the Secretariat indulged into hooliganism and destruction of Government properly, a criminal case was instituted against the petitioner and others in Secretariat Police Station Case no. 672 of 200 under sections 143, 353, 427, 504 and 506 read with section 511 of the Indian Penal Code. After conclusion of the investigation, the petitioner and other persons were sent up for trial. In the meantime, a departmental proceeding was initiated against the petitioner and others and all were put under suspension. The case of the petitioner, however, was separated and it was dealt with under the provisions of Article 311 (2) (b) of the Constitution and by the order impugned he was dismissed from services on 2nd, December, 2000. Subsequently, the criminal trial ended in acquittal of the accused persons including the petitioner on 19.6.2002 and on the basis of the judgment of acquittal rest of the employees, who were put under suspension were reinstated on substantive posts with all consequential benefits. 4. Mr. Ganesh Pd. Singh, learned counsel for the petitioner, submitted that the power envisaged under Article 311 (2)(b) of the Constitution is absolute power of the State Government, but the same should be exercised sparingly. Learned counsel further submitted that a decision was taken by the appropriate Government to take disciplinary action against all persons, who indulged in the activity, prejudicial to the functioning of the Secretariat for their dismissal from services. but the authorities, for the reasons best known to them, only dismissed this petitioner under the special power as envisaged under Article 311 (2)(b) of the Constitution, whereas others were reinstated. Learned counsel therefore, submitted that it appears to be a case of discrimination, inasmuch as that all the equals should have been treated equally and not unequally. In this connection, learned counsel has referred to Annexure R-2/C appended with the supplementary counter affidavit filed on behalf of the State. 5. Learned counsel therefore, submitted that it appears to be a case of discrimination, inasmuch as that all the equals should have been treated equally and not unequally. In this connection, learned counsel has referred to Annexure R-2/C appended with the supplementary counter affidavit filed on behalf of the State. 5. From annexure R-2/C to the counter affidavit aforesaid, it is manifest that Home (Special) Department tock a decision on 6.11.2000 to take a disciplinary action against all such employees of the Secretariat, who participated in the incident dated 6.11.2000 for their dismissal from services and the decision, as such, was approved by the Chief Secretary of the State of Bihar. It is further manifest from the decision aforesaid that the authorities had not decided to dismiss/remove all such employees of the Secretariat in terms of Article 311 (2)(b) of the Constitution, who had participated in the incident dated 6.11.2000, but it appears that the petitioner alone was dismissed in terms of Article 311 (2)(b) of the Constitution, whereas others were reinstated. 6. Mr. S.K. Ghosh, learned AAG II, however, submitted that since the petitioner was the leader of the mob, he was much more accountable for the mischief committed by his followers therefore, the disciplinary authority thought it proper to dismiss the petitioner alone in exercise of power under Article 311 (2)(b) of the Constitution. 7. Article 311 of the Constitution reads as follows:- "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 enquiry 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 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 removed or reduced in rank en 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." 8. Clause 2(b) of article 311 of the Constitution empowers the authority to dismiss or remove a person or to reduce him in rank, in case it would be satisfied that for some reason to be recorded in writing, it would not be practicable and reasonable to hold such inquiry. The petitioner, as it is stated at the Bar, was removed from services by the Secretary of the Personnel and Administrative Reforms Department, Government of Bihar, Patna. 9. The power envisaged under Article 311 (2)(b) of the Constitution is the power to be exercised in special circumstance, where it would be difficult for the disciplinary authority to hold such inquiry, as it is required to be done in case of removal of a Government employee under the provision of the Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules, 1935. 10. 10. The question of jurisdiction of the authorities in exercising the special power under Article 311 (2)(b) cannot be disputed and this matter has been dealt with in case of Union of India and another Vs. Tulsiram Patel (AIR 1985 Supreme Court, 1416). But the question, which has been raised in this case, appears to be quite different from the main issue. 11. The order impugned has been assailed only on the ground that the same is discriminatory, inasmuch as that similarly situated persons, who were made accused along with the petitioner, were not proceeded against under this special provision, rather their orders of suspension were revoked and they were reinstated and also on the ground that the authorities had not decided to dismiss the petitioner alone in terms of Article 311 (2) (b) of the Constitution. 12. Form the materials on record, it appears that a mob consisting of more than 300 persons had participated in the incident, which occurred on 6.11.2000 and out of them only nine were identified, who had taken leading roles, and, accordingly, all were made accused in the criminal case and they were put on trial. It further appears that the appropriate authority on the same day, i.e. on 6.11.2000, took a decision to initiate departmental proceedings for their dismisal from services, but instead of doing so, the petitioner alone was proceeded against under special provisions of Article 311 (2) (b) of the Constitution, whereas others were merely put under suspension and subsequently reinstated with all consequential benefits. 13. Since the appropriate authority had taken a decision to proceed against all those persons in the same manner, the petitioner alone would not have been proceeded against under the special provisions, as laid down under Article 311 (2)(b) of the Constitution. Therefore the action of the authority concerned as taken vide annexure 3 amounts to discrimination as the equals have been treated unequally. 14. For the reasons aforementioned and without going into the merit of the case or without expressing any opinion on the power exercisable under Article 311 (2) (b) of the Constitution, the action of the State authority in proceeding against the petitioner alone is held to be arbitrary, unreasonable and discriminatory. 15. In the result, this application is allowed, the order impugned, as contained in annexure 3, is set aside and the petitioner is directed to be reinstated with all consequential benefits. 15. In the result, this application is allowed, the order impugned, as contained in annexure 3, is set aside and the petitioner is directed to be reinstated with all consequential benefits. However, the State authorities will be at liberty to proceed in the matter afresh in accordance with law. 16. No order as to costs.