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2007 DIGILAW 528 (PAT)

State Of Bihar v. Chandra Kishor Lal

2007-03-14

BARIN GHOSH, NAVANITI PRASAD SINGH

body2007
Judgment Barin Ghosh and Navaniti Pd.Singh JJ. 1. Clause (2) of Article 311 of the Constitution embodies principles of natural justice. It directs informing the delinquent of the charge as against him, giving of a reasonable opportunity of being heard and holding of an enquiry into such charges. The second proviso to the said clause makes the said clause inapplicable, when, amongst others, 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 enquiry. In Union of India and Another vs. Tulsiram Patel, reported in AIR 1985 Supreme Court 1416, a Constitution Bench has held that the requirement of sub-clause (b) of clause (2) of Article 311 of the Constitution is that the holding of an enquiry is not reasonably practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. The Bench made it clear that a disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid holding of an enquiry or because the Departments case against the Government servant is weak and must fail. A later Supreme Court judgment in the case of Jaswant Singh vs. State of Punjab and Others, reported in AIR 1991 Supreme Court 385, after having had noted the above observations of the Constitution Bench clarified that the decision to dispense with departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority. 2. In the instant case, the undisputed facts are that on 4th February, 1996, a first information report was lodged with the appropriate police authority in relation to involvement of the writ petitioner-respondent in the well known fodder scam matter. On 5th of February, 1996, the Police Department of the State conducted raid at the residence of the writ petitionerrespondent in course of enquiry pursuant to the said first information report, when the writ petitioner-respondent could not be located at his residence. It appears to be the contention of the State that the writ petitioner-respondent did not attend to his duties since 4th of February, 1996. It appears to be the contention of the State that the writ petitioner-respondent did not attend to his duties since 4th of February, 1996. On 8th of February, 1996, an order of suspension was issued which could not be served upon the writ petitioner-respondent inasmuch as he was not then attending his office. It does not appear from the records that any attempt was made to effect service of the suspension order upon the writ petitioner-respondent at his residence. Ultimately, the impugned order was passed on 11th March, 1996 dismissing the writ petitioner-respondent on the ground that the writ petitioner-respondent alongwith others embezzled Government funds to the tune of Rs 4.36 crores. While passing this order, sub-clause (b) of clause (2) of Article 311 of the Constitution was invoked. It was stated that it is not reasonably practicable to hold an enquiry inasmuch as in course of the raid by the police at the residence of the writ petitioner-respondent, he was not found at his residence and, accordingly, it was assumed that he is absconding. 3. The short question, in the instant case, therefore, is whether a reasonable man in the situation as was then prevailing and known to him, as set out above, could opine that it is not reasonably practicable to hold enquiry and whether such opinion can be said to be a reasonable view. 4. Two facts were known to the disciplinary authority, namely, (1) that on 5th February, 1996, a raid was conducted by the police at the residence of the writ petitioner-respondent when he was not found at his residence; and (2) that the writ petitioner-respondent is not attending his office from 4th of February, 1996 untin 11th of March, 1996. The question is whether a reasonable man, on the basis of these facts, could conclude or opine that the writ petitioner-respondent is absconding and, therefore, it is not reasonably practicable to hold an enquiry. 5. When the police conducted raid at the residence of the writ petitioner-respondent, it is possible that the writ petitionerrespondent, for genuine reasons, was not present at his residence and at the same time, it is also possible that in order to avoid his arrest, the writ petitioner-respondent removed himself from his residence at the time when the raid was conducted. In both the situations, it could not be concluded that the writ petitioner-respondent was absconding to avoid disciplinary proceeding. In both the situations, it could not be concluded that the writ petitioner-respondent was absconding to avoid disciplinary proceeding. 6. Bihar Service Code, which also governs part of the service conditions of the writ petitioner-respondent, in clause 76 thereof, provides that if a person remains absent from duty continuously for five years with or without leave, he shall cease to be in Government employment, in other words, if a person remains absent continuously for five years with or without leave, the same shall be deemed that the Government servant has abandoned his Government employment. When such is the condition of service, merely because the writ petitioner-respondent remained absent from duty for a period in excess of a month and seven days, could it be opined that the writ petitioner-respondent is absconding to avoid disciplinary proceeding. It does not appear to us that the same could be a conclusion of a reasonable man. 7. The question is could a reasonable man combining these two informations could come to a conclusion that the person concerned is absconding and, accordingly, it would not be reasonably practicable to hold an enquiry? A disciplinary proceeding is a separate independent proceeding than that of a criminal proceeding. It is now well settled in law that on the self same charges, a criminal proceeding as well as a disciplinary proceeding may be launched. In course of criminal investigation, the police has power to search, seize and arrest and, accordingly, may conduct raids for the purpose of search, seize as well as for the purpose of arrest, when the person against whom such investigation is in progress may devise his affairs in the manner which is most suitable to him. Because on a raid, the person could not be arrested or could not be apprehended and proceeding on the basis that to avoid such arrest, the person concerned did not attend to his duty for a period of a month and seven days, it could not be concluded that it would not be reasonably practicable to hold an enquiry because the person concerned is absconding. The question is absconding from whom? If the person is absconding from police, the situation is one but in the matter of dispensing with the enquiry, the conclusion must be that he is absconding for the purpose of avoiding the enquiry. The question is absconding from whom? If the person is absconding from police, the situation is one but in the matter of dispensing with the enquiry, the conclusion must be that he is absconding for the purpose of avoiding the enquiry. We feel that on the basis of the informations as were available, it could not be concluded by the disciplinary authority that the writ petitioner-respondent was absconding to avoid enquiry, as it could not be held so by a prudent person, and, accordingly, no opinion could be expressed that it was not reasonably practicable to hold an enquiry. 8. The writ Court while quashed the punishment order directed the authority concerned to proceed with the enquiry. We are told that the matter has not progressed. The authority concerned is at liberty to progress with the matter de novo from this stage in terms of the order already passed by the writ Court. The six months period as given by the writ Court shall start now subject to availability of record from the Central Bureau of Investigation/Court. 9. For the reasons as above, we would not interfere with the judgment and order under appeal. The appeal, accordingly, stands dismissed subject to the directions as above.