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Himachal Pradesh High Court · body

2007 DIGILAW 241 (HP)

SANJEEV KUMAR SHARMA v. STATE OF H. P.

2007-06-15

M.R.VERMA, VIJAY PAL SINGH

body2007
JUDGEMENT M.R. Verma, J. (Retd.) Chairman:- The applicant herein has prayed for the grant of following reliefs:- (i) to set aside and quash the impugned orders Annexures P-A and P-B dated 16.1.1993 and 14.11.1995 respectively, (ii) to direct the respondents to reinstate the applicant forthwith and to treat the period of forced un-employment as on duty, (iii) to issue directions to the respondents to pay to the applicant difference of pay with effect from 26.11.1992 when he was placed under suspension and full pay w.e.f. 16.1.1993 till the date of his reinstatement; and (iv) to grant such other consequential service benefits, which the Honble Tribunal may deem fit, proper and just in facts and circumstances of the matter, besides those flowing by quashing orders Annexures P-A and P-B. 2. The case of the applicant, as made out in the Original Application, is that he was holding the post of Constable/Driver in the Police Department of the Government of Himachal Pradesh. After the passing out from Police Training School, Junga in February, 1989, but for a short spell when he was deputed to Forensic Science Laboratory, Bharari he remained attached to the 1st H.P. Armed Police Battalion, Junga. For doing exceptionally good work and exhibiting a high sense of devotion and dedication to duty during 1989-90, he was given appreciation letter "A" class dated 31.5.1990 with cash award of Rs. 50/- by the Director General of Police, Himachal Pradesh. A copy of the appreciation letter is Annexure-PD. However, the services of the applicant were brought to an end by his dismissal on suspicion, misunderstanding, false charges of negligence, dereliction of duty, disobedience, causing loss to government" and misuse of Vehicle after issuing him a show cause notice but without holding an inquiry. A copy of the appreciation letter is Annexure-PD. However, the services of the applicant were brought to an end by his dismissal on suspicion, misunderstanding, false charges of negligence, dereliction of duty, disobedience, causing loss to government" and misuse of Vehicle after issuing him a show cause notice but without holding an inquiry. The applicant was not given reasonable time even to file reply to the show cause notice as the respondent No.4 was in hurry to dismiss the applicant from services and, as a result, impugned order Annexure P-A came into being which in itself indicates that the competent authority did not apply its mind before invoking the provisions of Article 311(2)(b), and acted with a prejudiced mind, most arbitrarily, illegally and unconstitutionally invoked the said provisions with a view to dispense with the departmental enquiry without recording reasons, whereas it was incumbent on the Commandant first Himachal Pradesh Armed Police Battalion, Junga to have held an enquiry into the matter as laid down in Articles 311 of the Constitution read with Rule 16.2 of Punjab Police Rules. Failure to do so, renders Annexure P-A as illegal and void. In the appeal preferred by the applicant vide Annexure P-G the Appellate Authority also did not address itself to the mandatory provisions of Rules 16.1. and 16.2 of the Punjab Police Rules, as applicable in Himachal Pradesh. Contrary to the law, laid down by the Honble Apex Court, the applicant was denied personal hearing by the Appellate authority in a case where pre-decisional enquiry was not held as contemplated under Article 311(2)(b) of the Constitution which vitiates the order Annexure P-B passed by the Appellate authority. It is further alleged that Appellate Authority acted in a partisan manner and deprived the applicant of his source of livelihood capriciously, arbitrarily by throwing the principles of natural justice to winds. Being dissatisfied with the decision of the Appellate authority Annexure P-B, the applicant filed second appeal before respondent No.2 vide Annexure P-H. However, respondent No.2 did not care to decide the second appeal till date, hence, the present Original Application. 3. The respondents contested the claim of the applicant in their written reply. It has been claimed that the applicant had been rightly dismissed from service for various acts of misconduct and disobedience brought on record without any element of bias. 3. The respondents contested the claim of the applicant in their written reply. It has been claimed that the applicant had been rightly dismissed from service for various acts of misconduct and disobedience brought on record without any element of bias. It is admitted that no departmental enquiry was held against the applicant, but he was served with show cause notice for dismissed from service for various acts of omission and commission brought on record without any mala-fide or prejudice against him and was given reasonable opportunity to defend himself by issue of show cause notice. It is also claimed that the provisions of article 311(2)(b) of the Constitution of India were rightly invoked as he was involved in smuggling activities as reported by the SHO, Police Station Sadar, Shimla and his activities were found prejudicial to the interest of state. It is also claimed that the impugned order of punishment passed by the competent authority and maintained by the Appellate Authority, is in-conformity with the PPR 16.1 and 16.2. The existence of any extraneous reason/consideration in dismissing the applicant has been denied. 4. We have heard the learned counsel for the applicant and the learned Additional Advocate General for the respondents and have perused the material on record as also the record of inquiry. 5. It was contended by the learned counsel for the applicant that in view of the nature of the alleged misconduct of the applicant a regular departmental inquiry was practicable and no reason whatsoever has been assigned by the concerned authority to justify its whimsical and stray averment in the show cause notice that regular departmental inquiry against the applicant was not practicable. Therefore, in the absence of any reason to dispense with the inquiry the impugned order of penalty of dismissal and appellate order maintaining the said penalty are violative of the Constitution, and thus liable to the quashed. 6. On the other hand the learned Additional Advocate General has contended that the appropriate authority had recorded reasons vide show cause notice Annexure P-1 about its satisfaction that regular departmental inquiry against the applicant was not practicable and such decision of the appropriate authority is final and dismissal is based on the allegations not denied by the applicant when called upon to do so vide Annexure P-1, hence, liable to be maintained/sustained. 7. 7. It will be expedient to refer to the provisions of Article 311 of the Constitution at the very outset of properly appreciate the rival contentions for the parties both the whom rely on the said provisions to support their rival claim. 8. Article 311 of the Constitution of India reads as under: - "Art. 311. Dismissal, removal or reduction in rank of persons employed in Civil capacities under the Union or a State:- (1) No Person whom 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 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 clause 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 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 is not expedient to hold such inquiry. (d) 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.)" 9. (d) 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.)" 9. It is clear on a bare reading of the Article (Supra) that it provides the following constitutional safeguards to the civil servants:- (i) that a person employed in civil capacity under the Union or State shall not be dismissed or removed from service by an authority subordinate to the authority by which he was appointed, and (ii) that no such person shall be dismissed or removed or reduced in rank except after an inquiry as contemplated under clause (2) supra. 10. There are however following exceptions to the safeguards provided under Articles 311 (2) (Supra) where the shall be no need of inquiry or of giving notice:- (i) Where a person is dismissed or removed from service or reduced in rank on the ground of conduct which has resulted in his conviction on a criminal charge; or (ii) Where the authority empowered to dismiss or remove a person from service 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 (iii) Where the President or the Governor as the case may be, is satisfied that in the interests of the security of the State it is not expedient to hold such inquiry." 11. For the purpose of the decision of the case in hand exception (ii) (Supra) that is clause (b) of second proviso to Articles 311(2) (Supra) is relevant. This clause will apply to a case where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied for the reasons to be recorded by such authority in writing that an inquiry under Article 311(2) (Supra) is not reasonably practical. By clause 3 of Article 311, the decision of such authority has been made final. By clause 3 of Article 311, the decision of such authority has been made final. 12.lt may however, be pointed out here that the decision of the competent authority under clause (b) though has been made final by Clause (3) but such finality does not save the decision from being tested on the grounds of arbitrariness, mala fides, extraneous consideration or merely a ruse to dispense with the inquiry. Therefore, as and when the satisfaction of the authority is questioned/assailed in a Court/Tribunal the authority has to show that its satisfaction is based on certain objection facts and is not the outcome of the whim or caprice of that authority. 13. In the case in hand, it is not in dispute that the competent authority decided not to hold regular inquiry. We have specifically asked and given time to enable collection of information as to whether before initiating the action of calling upon the applicant to show cause against the proposed penalty, the competent authority after due application of mind to the facts recorded the reason(s) of its satisfaction that holding of inquiry was not reasonably practicable. The submission of the learned Addl. Adv. General in this regard is that there is no record of the competent authority having recorded the reasons for its requisite satisfaction separately but for the first time such reason has been mentioned in the show cause notice Annexure P-1 only. The reason assigned for the requisite satisfaction of the concerned authority is thus available only in Annexure P-1. 14. The first part of Annexure P-1 contains the alleged facts constituting the acts of mis-conduct committed by the applicant. Such acts as imputed to him are absence from duty, disobedience of the directions/order of the superiors, negligence in the discharge of duties, misuse of official vehicle on different dates, changing spare parts of the vehicle and thereby causing loss to the State and indulging in smuggling by Taxi while wearing police uniform. It is followed by the reason for dispensing with enquiry English translation whereof is that it was not only impossible to inquire into these facts but was a matter of shame for the police department. This is admittedly the only reason available in the contemporaneous record for the not holding the inquiry. 15. It is followed by the reason for dispensing with enquiry English translation whereof is that it was not only impossible to inquire into these facts but was a matter of shame for the police department. This is admittedly the only reason available in the contemporaneous record for the not holding the inquiry. 15. A perusal of the Annexures, particularly Annexures-PA and PF annexed to the original application, the correctness whereof is not in dispute reveal that evidence to prove the charges/allegations aforesaid against the applicant was available and is referred to in these documents. None of the allegations is such in which inquiry could not have reasonably practicable. The enquiry could not be dispensed with for the reason that it would have been a matter of shame for the police department. The reason as contained in Annexure-P/1 is apparently a mere ruse to avoid inquiry and not a valid and lawful reason for dispensing with the inquiry. 16.lt may also be noticed here that in their reply filed by the respondents, perhaps after realizing the inherent insufficiency of the reason in Annexure-P/1 tried to justify the dispensing of the inquiry by supplementing the reasons for so doing by claiming as follows:- "Para 6(g)".........The provision of the Article 311(2)(b) of the Constitution of India has rightly been invoked in the case of the applicant, as he was involved in the smuggling activities, as reported by the SHO, P.S. Sadar, Shimla. His activities were found prejudicial to the interests of State and thus there was no use to hold the departmental inquiry. The provision of Art. 311(2)(b) of the Constitution of India has rightly been invoked as the applicant was indulging himself in smuggling activities by putting police uniform and using the car of the department. Thus, there was no need to hold an enquiry." AND Para 6(J) ".......there was no need to hold the departmental enquiry and the applicant has .rightly been dismissed under Article 311(2)(b) of the Constitution of India. It was not mandatory to hold the departmental enquiry for the charge leveled against the applicant..." 17. The aforesaid reasons apart from no reasonable for dispensing with the inquiry were not recorded at the relevant time and are merely an after though and thus of no help to the respondent in justifying their stand. 18. It was not mandatory to hold the departmental enquiry for the charge leveled against the applicant..." 17. The aforesaid reasons apart from no reasonable for dispensing with the inquiry were not recorded at the relevant time and are merely an after though and thus of no help to the respondent in justifying their stand. 18. In view of the above discussion, the decision of the disciplinary authority to dispense with the regular inquiry against the applicant is illegal and unconstitutional rendering the impugned orders Annexure PA and PB illegal and unsustainable. 19. As a result, the orders Annexures PA and PB are quashed and set aside and the respondents are directed to give all the consequential reliefs/benefits to the applicant within four weeks of the passing of this order. No order as to costs. 20. It may however, be clarified that nothing contained hereinabove shall be construed to have debarred the respondents from initiating departmental proceedings against the applicant for the alleged grave misconduct in accordance with the relevant rules and the- law.