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2016 DIGILAW 86 (GUJ)

Rajumiya Hanif Saiyed v. State of Gujarat

2016-01-12

ABHILASHA KUMARI

body2016
JUDGMENT Abhilasha Kumari, J. (Oral) - By preferring this petition under Article-226 of the Constitution of India, the petitioner has assailed the order dated 15.02.2003, passed by respondent No.3, whereby the petitioner has been dismissed from service by resorting to the provisions of Clause-(b) to the second proviso of Article-311(2) of the Constitution of India. The petitioner has further assailed the order dated 30.10.2003, passed by the Appellate Authority, rejecting his appeal, as well as the order dated 24.03.2006, passed by the State Government, whereby the Revision Application of the petitioner has also been rejected. 2. Briefly stated, the facts of the case, as garnered from the material on record, are that the petitioner was appointed as an Unarmed Police Constable, by an order dated 09.07.1980. During the course of his service, an offence was registered against him at Bapunagar Police Station, being C.R.No. I-157/1994. The offence was registered under Section-120B of the Indian Penal Code, Sections-4 and 5 of the Explosive Substances Act, 1908, as well as Sections-3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1985. The petitioner was placed under suspension by an order dated 24.06.1994. A charge-sheet was issued to the petitioner on 26.05.1995. Pursuant to the FIR lodged against the petitioner, Criminal Case No.235/1998 was registered in the Sessions Court, in which the petitioner came to be discharged, vide order dated 23.02.1999. However, the departmental proceedings against the petitioner were continued. During the pendency of the departmental proceedings, seven different offences were registered against the petitioner at Bapunagar and Rakhial Police Stations, which are as below : Sr. No. Date C.R.No. Offences Police Station 1 28/02/2002 67/2002 under section 143, 147, 148, 149, 185, 435, 436, 302, 395, 397, 398 of IPC and Section 135(1) of Bombay Police Act. Bapunagar 2. 01/03/2002 69/2002 U/S.143, 147, 148, 149, 336, 337, 435, 436, 186, 188, 395, 302, 397, 398 of IPC and section 25(1)(b)(a), 27 of the Arms Act. Bapunagar 3. 02/03/2002 74/2002 under section 143, 147, 148, 149, 186, 336, 337, 435, 436,302 of the IPC and section 25(1)(b)(a), 27 of the Arms Act. Bapunagar 4. 28/02/2002 78/2002 under section 143, 147, 148, 149, 435, 436, 337 of the IPC and section 135(1) of Bombay Police Act. Bapunagar 5. 28/02/2002 22/2002 under section 143, 147, 148, 149, 302 of the IPC and section 135(1) of the Bombay Rakhial Police Act. Bapunagar 6. Bapunagar 4. 28/02/2002 78/2002 under section 143, 147, 148, 149, 435, 436, 337 of the IPC and section 135(1) of Bombay Police Act. Bapunagar 5. 28/02/2002 22/2002 under section 143, 147, 148, 149, 302 of the IPC and section 135(1) of the Bombay Rakhial Police Act. Bapunagar 6. 03/03/2002 29/2002 under section 143, 147, 148, 109, 353, 183, 188, 435, 427 of the IPC and section 135(1) of the Bombay Police Act. Rakhial 3. Respondent No.3, the Commissioner of Police, Ahmedabad City, being the Disciplinary Authority, passed the impugned order dated 15.02.2003, stating that the petitioner had not responded to the notices issued to him and was not found at his residence, therefore, he has not cooperated or remained present in the departmental proceedings though he is under suspension. Respondent No.3 has further noted that the Criminal Cases filed against the petitioner indicate his active involvement in the communal riots that took place in Ahmedabad City in the year 2002, and the petitioner was seen to be heading a mob with dangerous weapons in his hand, in connection with which he also came to be arrested. It is further stated by respondent No.3 in the said order, that the petitioner has displayed criminal tendencies, which amounts to grave misconduct, looking to the fact that he is a member of the Police Force. As the petitioner has remained in jail and has come into contact with criminal elements, it is very likely that he would intimidate the witnesses, who would not dare to testify against him. Looking to the number of criminal cases pending against the petitioner, the departmental inquiry would not be concluded for a long period of time. Respondent No.3 has further stated that keeping in mind the criminal tendencies displayed by the petitioner, it is likely that he would commit the same offence again in the future, therefore, it would not be reasonably practicable to keep the departmental proceedings pending for such a long time. On the above grounds, it was ordered that the petitioner be dismissed from service under the provisions of Article-311(2) Second Proviso Clause-(b), as it was not reasonably practicable to hold an inquiry. Against the said order of the Disciplinary Authority, an appeal was preferred by the petitioner to respondent No.2, which came to be rejected by an order dated 30.10.2003. On the above grounds, it was ordered that the petitioner be dismissed from service under the provisions of Article-311(2) Second Proviso Clause-(b), as it was not reasonably practicable to hold an inquiry. Against the said order of the Disciplinary Authority, an appeal was preferred by the petitioner to respondent No.2, which came to be rejected by an order dated 30.10.2003. The Revision Application preferred by the petitioner against the order of the Appellate Authority before respondent No.1-State Government, has also been rejected by an order dated 24.03.2006. Aggrieved by the above three orders, the petitioner has approached this Court by way of the present petition. 4. Mr.S.R.Yadav, learned advocate for the petitioner, has submitted that the petitioner has been discharged in the first offence registered against him on the ground that no prima-facie evidence was found. Further, the petitioner has been acquitted in all seven criminal cases that were pending against him. The said offences alleged against the petitioner, therefore, cannot be made a ground for his dismissal from service without holding a regular inquiry. 4.1 It is further submitted that, the reasons given by respondent No.3 for not holding a departmental inquiry, including the reason that the petitioner had joined hands with criminals and there is hardly any likelihood of his reformation, are not good reasons for dispensing with the requirement of holding a departmental inquiry before imposing the major penalty of dismissal against the petitioner. 4.2 That the petitioner has remained in service from the year 1980 upto 1994, without any blemish, blot or adverse record. It is only thereafter that the offences were registered against him, in which the petitioner was wrongly implicated, as is now clear from his acquittal in the criminal cases. 4.3 It is contended that the petitioner was very much present at home, as he was under suspension and was drawing Subsistence Allowance. It is not correct on the part of the respondents to say that the petitioner did not respond to the notices or remain present in the proceedings of the departmental inquiry. It is submitted that the respondents had not advertised the notice of the departmental proceedings in the newspaper. The petitioner had appointed a Next Friend but no notice was issued to the Next Friend by respondent No.3. It is submitted that the respondents had not advertised the notice of the departmental proceedings in the newspaper. The petitioner had appointed a Next Friend but no notice was issued to the Next Friend by respondent No.3. As the principles of natural justice have not been observed in the case of the petitioner, the entire departmental proceedings, including the impugned orders, deserve to be quashed and set aside. 4.4 It is argued on behalf of the petitioner that the departmental proceedings suffer from malafides on the part of the Departmental Authorities, against the petitioner, as false and fabricated offences were registered against him. Some of the offences were even registered on the same date. The petitioner has been made a scapegoat by certain Police Officers and his services have been terminated without granting him an opportunity to lead evidence. Hence, the departmental proceedings are bad on this count, as well. 4.5 In support of the above submissions, learned counsel for the petitioner has placed reliance upon the following judgments : (i) Union of India and others v. Dinanath Shantaram Karekar and others, reported in AIR 1998 SC 2722 . (ii) Reena Rani v. State of Haryana and others, reported in (2012) 10 SCC 215 . (iii) Ex.Constable Chhote Lal v. Union of India and others, reported in (2000) 10 SCC 196 . (iv) Dr. Abdulsattar R. Mansuri v. State of Gujarat and others, reported in 2014(3) GLR 2292. 4.6 On the strength of the above submissions, it is urged by learned counsel for the petitioner that the petition be allowed. 5. The petition has been strongly contested by Mr. Dhawan Jayswal, learned Assistant Government Pleader, appearing for the respondents. Learned Assistant Government Pleader has submitted that the impugned orders passed by the respondents are justified, on the facts and in the circumstances of the case. The petitioner has not cooperated in the departmental proceedings. As many as twenty notices have been issued to the petitioner to remain present, though only seventeen notices have been placed on record with the affidavit-in-reply. The petitioner had remained present on two occasions before the Appellate Authority, but had requested for adjournments and, thereafter, never filed his defence statement. It was for the petitioner to keep his Next Friend present on the dates of hearing and the respondents are not liable to serve notices on the Next Friend. The petitioner had remained present on two occasions before the Appellate Authority, but had requested for adjournments and, thereafter, never filed his defence statement. It was for the petitioner to keep his Next Friend present on the dates of hearing and the respondents are not liable to serve notices on the Next Friend. The very fact that the petitioner was present on two occasions is proof enough of the fact that the petitioner was aware of the departmental proceedings, but did not remain present, deliberately. After he has neglected to remain present and participate in the departmental proceedings, the petitioner cannot take advantage of the situation and say that the principles of natural justice have been violated, as the order has been passed without hearing the petitioner. 5.1 Learned Assistant Government Pleader has submitted that the invocation of Article-311(2) Second Proviso, Clause-(b) of the Constitution of India by respondent No.3, is absolutely justified on the facts and in the circumstances of the case. The petitioner was involved in serious offences at the time when the departmental proceedings were commenced against him. It is a different matter that the petitioner was discharged in the first offence on a technical ground and has been acquitted in the seven criminal cases registered against him. However, the fact remains that the allegations against the petitioner were that he has committed grave misconduct by his alleged involvement in serious offences such as rioting, murder, unlawful assembly, mischief by fire explosives, causing hurt by endangering life and safety of others and heading a mob with dangerous weapons. The petitioner is a Police Constable, therefore, his involvement in such serious offence is sufficient ground for not holding a departmental inquiry against him, for which action adequate reasons have been recorded by the Disciplinary Authority. 5.2 It is next contended that it is a matter of record that notices were issued to the petitioner but he did not respond. It is recorded in the order passed by respondent No.3 that the petitioner was not found at his residence when the notices were sought to be served. The respondents have tried to serve the notices by every possible means and have even instructed the concerned Office from where the petitioner collects his Subsistence Allowance to inform the petitioner to remain present in the departmental proceedings. The respondents have tried to serve the notices by every possible means and have even instructed the concerned Office from where the petitioner collects his Subsistence Allowance to inform the petitioner to remain present in the departmental proceedings. However, the petitioner has not remained present, for which the respondents are not to blame. 5.3 That the petitioner has remained in jail and has come into contact with criminal elements. Respondent No.3 has given detailed reasons in the order dated 15.02.2003, for the invocation of the provisions of Article-311(2), Second Proviso, Clause-(b), against the petitioner, as it was not reasonably practicable to hold a departmental inquiry in the present case. The said reasons are valid ones, having been necessitated due to the conduct of the petitioner, therefore, this Court may not interfere with the impugned orders. 5.4 Learned Assistant Government Pleader has also distinguished the judgments cited on behalf of the petitioner by submitting that the case of Union of India and others v. Dinanath Shantaram Karekar and others (Supra.), was regarding the service of the charge-sheet, as the delinquent, in that case, could not be found. The facts of that case are totally different to the facts of the present case, therefore, this judgment would not be applicable in the present case. 5.5 Regarding Reena Rani v. State of Haryana and others (Supra.), cited by learned advocate for the petitioner, learned Assistant Government Pleader has submitted that the invocation of Article-311(2) Second Proviso Clause-(b), in that case, was found to be bad as no reasons were given. In the present case, the facts are different as adequate reasons have been given by respondent No.3. 5.6 Learned Assistant Government Pleader has submitted that the case of Ex. Constable Chhote Lal v. Union of India and others (Supra.), is also not applicable, as the facts of the case before the Supreme Court are totally different to the facts of the present case. 5.7 Regarding the case of Dr. Abdulsattar R. Mansuri v. State of Gujarat and others (Supra.), learned Assistant Government Pleader has submitted that the said case was one of no evidence, which is not the case in the present matter. Moreover, the said judgment is not on the point of Article-311(2) Second Proviso Clause-(b). 5.7 Regarding the case of Dr. Abdulsattar R. Mansuri v. State of Gujarat and others (Supra.), learned Assistant Government Pleader has submitted that the said case was one of no evidence, which is not the case in the present matter. Moreover, the said judgment is not on the point of Article-311(2) Second Proviso Clause-(b). 5.8 Learned Assistant Government Pleader has placed heavy reliance upon a recent judgment of the Supreme Court in Ved Mitter Gill v. Union Territory Administration, Chandigarh and others, reported in (2015) 8 SCC 86 , by submitting that in the present case, the conduct of the petitioner is such that would justify the punishment of dismissal and the Competent Authority has clearly recorded its satisfaction that it is not reasonably practicable to hold an inquiry, in terms of Article-311(2) Second Proviso Clause-(b), by recording sound reasons for arriving at this conclusion, as mandated by the Supreme Court in Ved Mitter Gill v. Union Territory Administration, Chandigarh and others (Supra.). 5.9 On the above grounds, it is urged by the learned Assistant Government Pleader that the petition be rejected. 6. In rejoinder, Mr. S.R.Yadav, learned advocate for the petitioner, apart from reiterating the submissions advanced earlier, has added that the petitioner has not received any of the notices issued by the respondents and it is wrong to state that he has not remained present in the departmental proceedings. If he were absent, the Presiding Officer could have made a report of this and issued notice to the petitioner. 7. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, contents of the other pleadings and the documents on record. This Court has also considered the judgments cited at the Bar. 8. It is not disputed that the petitioner was dismissed from service for having violated Rule-3(i), (ii) and (iii) of the Gujarat Civil Services (Conduct) Rules, 1971 (“the Conduct Rules”, for short), which is as follows : “3. General :- (1) Every Government servant shall at all times- (i) maintain absolute integrity. (ii) maintain devotion to duty, and (iii) do nothing which is unbecoming of a Government servant. General :- (1) Every Government servant shall at all times- (i) maintain absolute integrity. (ii) maintain devotion to duty, and (iii) do nothing which is unbecoming of a Government servant. [Explanation:- A Government servant, who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him, shall be deemed to be lacking in devotion to duty within the meaning of clause (ii).] (2) ***** (3) *****” (emphasis supplied) 9. The allegations against the petitioner are of misconduct, flowing from his involvement in the offences under Sections-4 and 5 of the Explosive Substances Act, 1908 and Sections-3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 and certain serious offences under the Indian Penal Code, including Section-120B. Apart from the first offence registered against the petitioner which ended in discharge due to lack of prima-facie evidence, seven other criminal cases were registered against him for serious offences such as murder, involvement in communal riots, unlawful assembly, mischief by fire explosives, causing hurt by endangering life or safety of others and heading a mob. It is another matter that the petitioner was acquitted in all seven criminal cases. 10. It is a settled position of law that a departmental inquiry can be held side by side with a criminal case, as in a departmental inquiry, it is the conduct of the Government employee concerned that is to be seen and not his guilt or innocence beyond a reasonable doubt, as is required in criminal cases. The standard of proof in a criminal case is proof beyond a reasonable doubt whereas in a departmental inquiry it is preponderance of probability. In view of this aspect, placing the petitioner under suspension on allegations of involvement in the offences indicated in the order of respondent No.3 cannot be held to be unjustified. Misconduct is described in Rule-3(1)(i) to (iii) of the Conduct Rules and involvement in such offences and serving a jail term would be covered under the definition of misconduct. 11. The petitioner was called upon to participate in the departmental proceedings, put his statement of defence, lead evidence and plead his case, before appropriate findings could be arrived at by the Competent Authority. However, the petitioner did not participate in the departmental inquiry, in spite of issuance of several notices to him. 11. The petitioner was called upon to participate in the departmental proceedings, put his statement of defence, lead evidence and plead his case, before appropriate findings could be arrived at by the Competent Authority. However, the petitioner did not participate in the departmental inquiry, in spite of issuance of several notices to him. It is the case of the petitioner that he was very much present at home, since he was placed under suspension and was receiving Subsistence Allowance. According to the learned counsel for the petitioner, no notices were served to the petitioner or his Next Friend. It has been submitted that the very fact that the Next Friend was appointed, shows that the petitioner was present in the departmental proceedings. 12. A perusal of the record, including the documents annexed to the affidavit-in-reply filed by respondent No.1, indicates that several notices were issued to the petitioner for his participation in the departmental proceedings. The petitioner did appear on one or two occasions before the concerned Authority, but requested for adjournments. There is no material on record to indicate that pursuant to asking for adjournments, the petitioner actually participated in the departmental proceedings by filing his defence statement or keeping his Next Friend present, on the next date. The respondents are bound to issue notice to the petitioner but not to his Next Friend. It is for the petitioner to ensure the presence of his Next Friend on the required dates. The very fact that the petitioner was present on one or two occasions and had requested for the grant of adjournments, clearly indicates that he was very well aware of the departmental proceedings but did not cooperate in them by remaining present on the required dates or filing his statement of defence and leading evidence, for reasons best known to him. The petitioner, therefore, cannot be permitted to take advantage to his own lapses which appear to be a deliberate, by turning around and saying that the principles of natural justice have been violated as he was not heard. 13. Learned advocate for the petitioner has placed reliance upon the judgment of the Supreme Court in Union of India and others v. Dinanath Shantaram Karekar and others (Supra.). In that case, the Supreme Court has held as below : “10. 13. Learned advocate for the petitioner has placed reliance upon the judgment of the Supreme Court in Union of India and others v. Dinanath Shantaram Karekar and others (Supra.). In that case, the Supreme Court has held as below : “10. Where the disciplinary proceedings are intended to be initiated by issuing a charge sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "Communication" cannot be invoked and "Actual Service" must be proved and established. It has already been found that neither the charge-sheet nor the show-cause notice were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated.” 14. The facts of that case are different from the facts obtaining in the case in hand. In the present case, in spite of asking for adjournments on certain occasions, the petitioner has consciously remained absent and did not participate in the departmental inquiry, submit his statement of defence or lead evidence. In such a situation, it cannot be said that the petitioner was not granted an opportunity to file his reply or that he was unaware of the departmental proceedings. It is clear from the material on record that the petitioner was aware of the departmental proceedings. There was, therefore, no reason to publish the notice in the newspaper, as has been submitted by the learned advocate for the petitioner. The judgment in Union of India and others v. Dinanath Shantaram Karekar and others (Supra.), is not helpful to the case of the petitioner. 15. This brings us to the crux of the matter, which is the invocation of Article-311(2), Second Proviso, Clause-(b), of the Constitution of India. This provision is in the nature of an exception to Article- 311(1) and (2), which mandates that no civil servant of the Union or of a State shall be dismissed, 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. 16. The exception in Article-311(2) Second Proviso Clause-(b) reads as below : “Provided further that this clause shall not apply - (a) ***** (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) ***** ” 17. Before examining the order passed by respondent No.3, whereby reasons have been recorded why it is not reasonably practicable to hold an inquiry against the petitioner, it may be fruitful to advert to certain leading judicial precedents in this regard. 18. In Union of India and another v. Tulsiram Patel, reported in (1985) 3 SCC 398 , a Constitution Bench of the Supreme Court has dealt with this very issue at length and laid down principles of law that are followed to this day. The relevant paragraphs of the said judgment are as below : “130. The condition precedent for the application of clause (b) is the satisfaction of 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". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished : feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's 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. 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 terrorizes, 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 other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is 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 concerned Government servant 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. 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 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 Department's 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. *****. 131. ***** 132. ***** 133. 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. *****. 131. ***** 132. ***** 133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. 134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particular, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances. 135. ***** 136. ***** 137. ***** 138. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances. 135. ***** 136. ***** 137. ***** 138. Where a Government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and the approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court-room, removed in time from the situation in question. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court-room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere.” (emphasis supplied) 19. Recently, the Supreme Court had occasion to deal with a case where the issue regarding the invocation of Article-311(2), Second Proviso Clause-(b), of the Constitution of India was at issue, in the case of Ved Mitter Gill v. Union Territory Administration, Chandigarh and others (Supra). In that case, one of the appellants therein was holding the charge of Deputy Superintendent of Police, Model Jail, Chandigarh, and the other appellants were also holding responsible posts. While the appellant was discharging his duties in the said capacity, four under-trial prisoners, who were facing trial for the assassination of a former Chief Minister of Punjab and another person who was being tried for the charge of murder, escaped from the jail by digging an underground tunnel. The First Information Report was registered and the appellant(s) came to be detained by invoking Clause-(b) of the Second Proviso to Article-311(2) of the Constitution of India. The Advisor to the Administrator, Union Territory, Chandigarh, dismissed the appellant(s) from service with immediate effect. The order of dismissal was assailed by the appellant(s) before the Central Administrative Tribunal, which rejected the Original Application. The order of the Tribunal was challenged by preferring a Writ Petition in the High Court of Punjab and Haryana, which came to be rejected. In this manner, the matter reached the Supreme Court. The Supreme Court arrived at the conclusion that the appellant(s), one of whom was the Deputy Superintendent of Police in the Jail, were responsible for the safety of the prisoners and if such duties were performed diligently, the four persons accused of the assassination of the Chief Minister, could not have escaped by digging a ninety four feet long underground tunnel. Thus, it was concluded that the punishment of dismissal was justified, as the delinquency of the appellant(s) resulted in the escape of four dreaded prisoners. Thus, it was concluded that the punishment of dismissal was justified, as the delinquency of the appellant(s) resulted in the escape of four dreaded prisoners. The Supreme Court further found that the order of the Competent Authority dismissing the appellant was a very reasoned one, as the requirements of Article- 311(2) Second Proviso Clause-(b) had been duly complied with. In the above background, the Supreme Court, after referring extensively to the earlier judgment of the Constitution Bench of the Supreme Court in Union of India and another v. Tulsiram Patel (Supra.), held as below : “22. We shall now advert to the impugned order to determine, whether the three parameters laid down for the valid invocation of clause (b) to the second proviso under Article 311(2) of the Constitution of India, were made out. 23. The first ingredient, which is a prerequisite to the sustainable application of the above clause (b) is, that the delinquency alleged should be such as would justify, any one of the three punishments, namely, dismissal, removal or reduction in rank. ***** 24. ***** 25. ***** 26. The second ingredient which needs to be met for a valid exercise of clause (b) to the second proviso under Article 311(2) of the Constitution of India, is the satisfaction of the competent authority, that it was not reasonably practicable, to hold a regular departmental enquiry against the employees concerned. ***** 27. ***** 28. The third essential ingredient, for a valid application of clause (b) to the second proviso under Article 311(2) of the Constitution of India is that, the competent authority must record the reasons of the above satisfaction in writing.*****” 20. Applying the principles of law laid down by the Supreme Court in the above-referred judgments to the facts of the present case, there is no doubt that the offences alleged against the petitioner were extremely serious in nature such as taking part in communal riots, murder, unlawful assembly, mischief by fire explosives, causing hurt by endangering life or personal safety of others and heading a mob with dangerous weapons etc. It is required to be kept in mind that the petitioner is a Police Constable, whose preliminary duty is to maintain law and order and not to go against the law or act in a manner that is perceptibly unlawful. It is required to be kept in mind that the petitioner is a Police Constable, whose preliminary duty is to maintain law and order and not to go against the law or act in a manner that is perceptibly unlawful. The conduct of the petitioner as a Government Servant and a member of the Police Force is governed by the Conduct Rules and does not behove his involvement in offences of such a nature. It cannot, therefore, be said that the misconduct of the petitioner, as alleged, would not justify one of the three punishments, namely, dismissal, removal or reduction in rank. The aspect that the petitioner has been acquitted in the criminal cases is hardly relevant in a departmental inquiry, as the standard of proof in a criminal case is beyond reasonable doubt which cannot be made the basis in a departmental inquiry, where it is the preponderance of probability. This Court is, therefore, satisfied that the first ingredient, as culled out by the Supreme Court, is satisfied in the case of the petitioner. 21. The second ingredient regarding the reason why it was not “reasonably practicable” to hold a departmental inquiry, is brought out from the order dated 15.02.2003, passed by respondent No.3, as affirmed by order dated 30.10.2003, passed by respondent No.2 and the order dated 24.03.2006, passed by respondent No.1. The petitioner was arrested for the offences alleged against him and was in jail for a certain period of time. He was also stated to be absconding for some time. Respondent No.3 has noted in the order dated 15.02.2003, that the conduct of the petitioner displays a tendency for involvement in criminal activities and that he has a criminal bent of mind, in spite of being a member of the Police Force. It is further stated in the said order that having been incarcerated in prison, the petitioner has come into contact with certain criminal elements, therefore, there is all likelihood that he would intimidate the witnesses in the departmental inquiry, who would not dare to depose against him. It is recorded that several notices have been issued to the petitioner, for his participation in the inquiry, but he did not remain present and some of the notices could not be served as he was not found at his residence. It is recorded that several notices have been issued to the petitioner, for his participation in the inquiry, but he did not remain present and some of the notices could not be served as he was not found at his residence. It is stated that the criminal cases against the petitioner would take a long time in concluding and it would be meaningless to protract the departmental inquiry for such a long time. It has, therefore, been concluded by respondent No.3, that for the above reasons, and as there is sufficient material on record for the dismissal of the petitioner, it is not reasonably practicable to hold a departmental inquiry. The petitioner has been dismissed by invoking the provisions of Section-311(2) Second Proviso Clause-(b). One of the reasons for dispensing with the inquiry is that the petitioner had criminal connections and his participation in unlawful activities, as indicated herein above, pertains to the internal security of the State. It would raise a strong apprehension in the minds of the witnesses who would be called upon to depose in the departmental proceedings. This is a valid reason why it was not reasonably practicable to hold a departmental inquiry against the petitioner, apart from the wilful absence of the petitioner, himself, in the proceedings. 22. Insofar as the necessity of recording reasons is concerned, the concerned authority has recorded reasons for the invocation of Article-311(2) Second Proviso Clause-(b). In the view of this Court, there has been a valid application of the said constitutional provision on the part of the Disciplinary Authority, and the three ingredients culled out by the Supreme Court in Ved Mitter Gill v. Union Territory Administration, Chandigarh and others (Supra), have been satisfied. 23. For the above reasons, the judgment cited on behalf of the petitioner would not be applicable to the facts of the present case. 24. A submission has been advanced on behalf of the petitioner that the departmental inquiry has been initiated in a mala fide manner, as certain Police Officers have made the petitioner a scapegoat. The allegations of mala fides are vague and are not supported by any material on record. It is a settled position of law that mala fides not only have to be pleaded, but also have to be proved. The allegations of mala fides are vague and are not supported by any material on record. It is a settled position of law that mala fides not only have to be pleaded, but also have to be proved. There is nothing on record to indicate who are the Police Officers who had ill-will towards the petitioner and why, and in what manner, he was victimised by them. The aspect that certain offences have been registered against the petitioner on the same, or successive dates, is not indicative of mala fides, as alleged on behalf of the petitioner. 25. For the afore stated reasons, this Court is of the considered view that no illegality has been committed by the respondents in passing the impugned orders. 26. The petition, therefore, cannot be accepted. Hence, it stands rejected. Rule is discharged. There shall be no orders as to costs. Application dismissed.