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2018 DIGILAW 392 (JK)

Mudasir Yousuf Bhat v. Union of India

2018-06-05

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioner is primarily aggrieved of the order dated 23.02.2008 issued by respondent No. 5. The petitioner was dismissed from service w.e.f 23.02.2008 by invoking Article 311 (2) (b) read with Rule 27(ii)(cc) of the CRPF Rules, 1955. The petitioner availed of remedy of appeal filed before respondent No. 4, which too was dismissed on 02.02.2015. The order of the appellate authority aforesaid is also subject matter of challenge in this petition. 2. Briefly put, the facts stated in the petition are that the petitioner was appointed as General Duty Constable in Central Reserve Police Force (CRPF) vide order No. R-II-1/2005-Estt-V issued by Additional DIGP Group Centre CRPF Rambagh, Srinagar in the month of December, 2005. It is stated by the petitioner that he availed of leave in the month of February to be with his family for some time. The leave was sanctioned by the respondents for a period w.e.f 03.02.2008 to 18.02.2008. The petitioner submits that no sooner did he reach his home town, he was arrested by the police in connection with F.I.R No. 46 of 2008 registered at Police Station, Pulwama under Section 7/27 Arms Act and Section 3/4 of the Explosives Act. It is stated that because of his arrest, the petitioner could not resume his duties on expiry of leave period nor could he intimate the respondents about the same. It is further pleaded that during the period the petitioner was under arrest, he was also detained under Public Safety Act twice. The detention orders were challenged by the petitioner in this Court and were quashed. The F.I.R registered against the petitioner culminated into filing of the challan before the Court of Principal Sessions Judge, Pulwama. The petitioner claims that he faced trial, which ultimately ended in his acquittal. It is next pleaded by the petitioner that consequent upon his acquittal from the criminal case and his release from detention, the petitioner approached the respondents for resumption of his duties. It is, at this point of time, claims the petitioner, that he was informed that he was placed under suspension on 22.02.2008, i.e, on the date of his detention and was thereafter, dismissed from service by having recourse to Article 311 (b) and Rule 27(ii)(cc) of the CRPF Rules. 3. It is, at this point of time, claims the petitioner, that he was informed that he was placed under suspension on 22.02.2008, i.e, on the date of his detention and was thereafter, dismissed from service by having recourse to Article 311 (b) and Rule 27(ii)(cc) of the CRPF Rules. 3. Being aggrieved of the order of dismissal, the petitioner claims that he filed an appeal before the appellate authority in terms of Rule 28 of the CRPF Rules but the same was dismissed by the appellate authority without any application of mind and ignoring the points raised by the petitioner. The order of dismissal of appeal dated 16.02.2012 became subject matter of challenge in SWP No. 676/2012 which was allowed by a Bench of this Court vide its judgment dated 24.12.2014. The order of the appellate authority dated 16.02.2012 was set aside and the appellate authority was directed to consider the appeal, hear the petitioner and allow him to urge the grounds whatever available to him and take a decision within a period of four weeks. The petitioner submits that his appeal was once again considered by the appellate authority, who vide his order dated 02.02.2015 rejected the appeal, thus, upholding the order of dismissal of the petitioner from service. 4. Feeling dissatisfied with the decision of the appellate authority, the petitioner has filed the instant writ petition. Not only the order of appellate authority dated 22.02.2015 but the order of dismissal 02.02.2015 has also been assailed. 5. Learned counsel for the petitioner has challenged the impugned orders primarily on two counts:- (i) That in the given facts and circumstances of the case, invocation of Article 311 (2) (b) of the Constitution of India and Rule 27(ii) (cc) of the CRPF Rules was wholly unjustified inasmuch as, there was no material available with the disciplinary authority to come to the conclusion that it was not reasonably practicable to hold regular inquiry. (ii) That the order of dismissal impugned in the petition and the rejection of the appeal by the appellate authority are not sustainable for the reason that the services of the petitioner have been dispensed with in clear violation of principles of natural justice. (ii) That the order of dismissal impugned in the petition and the rejection of the appeal by the appellate authority are not sustainable for the reason that the services of the petitioner have been dispensed with in clear violation of principles of natural justice. (iii) That the reasons given in the order of the dismissal impugned to justify the dispensation of inquiry in terms of Article 311(2) (b) do not constitute material on the basis of which a reasonable person could have derived satisfaction that the holding of the regular inquiry against the petitioner was not reasonably practicable. The reasons given are Ipse Dixit of the disciplinary authority and not germane to the dispensation of the departmental inquiry in terms of Article 311 (2) (b) and Rule 27 (ii)(cc) of the CRPF Rules. 6. The respondents have filed their reply affidavit. It is stated by the respondents that the petitioner overstayed the leave sanctioned in his favour and did not turn up to resume his duties. The respondents received an information from Sr. Superintendent of Police District Pulwama (J&K) on 20.02.2008 that one IED fitted in a glass and one hand grenade was recovered from the petitioner. Consequently, case F.I.R No. 47/2008 was registered. It is pleaded by the respondents in their objections that the preliminary investigation conducted by SSP District Pulwama revealed that petitioner had been working as an undercover agent for Hizbul Mujahiddin, a banned terrorist outfit. It also came to fore that the petitioner being in contact with the terrorists physically and telephonically was providing them the most strategic information regarding the movement and deployment of his unit engaged in counter insurgency operations. The information supplied by the SSP, Pulwama upon his preliminary investigation also divulged that the explosive material recovered from the possession of the petitioner was actually handed over to him by HM Terrorists to be planted in the petitioner’s own Battalion i.e CRPF BN Hqs (183 BN) DC Office Complex, Pulwama. It is, thus, pleaded that taking note of the aforesaid subversive activities of the petitioner, a decision was taken to dismiss him from the service. It is submitted that feeling aggrieved of his order, the petitioner filed an appeal before the appellate authority, which was rejected being devoid of any substance. 7. It is, thus, pleaded that taking note of the aforesaid subversive activities of the petitioner, a decision was taken to dismiss him from the service. It is submitted that feeling aggrieved of his order, the petitioner filed an appeal before the appellate authority, which was rejected being devoid of any substance. 7. Having heard learned counsel for the parties and perused the record, I am of the considered opinion that the order impugned is unsustainable as the disciplinary authority has not ascribed any reasons for dispensing with the inquiry. Simply, because the petitioner was involved in subversive activities and his further retention in the CRPF was detrimental to the interest of force cannot be a ground for invoking the provisions of Article 311 (2) (b). The sine qua non for invoking the power of dispensation of inquiry for imposing the major penalty on a delinquent is a subjective satisfaction of the disciplinary authority derived on objective assessment of the material making it reasonably impracticable to hold regular inquiry. 8. Before I refer to the case law, which supports the conclusion arrived at me hereinabove, it is necessary to advert to the provisions of Article 311(2)(b) of the Constitution of India and Rule 27 (ii) (cc) of the CRPF Rules. Article 311 of the Constitution of India as applicable to the State of J&K is in pari-materia with Section 126 of the Constitution of J&K. It is, thus, apt to first reproduce Section 126 of the State Constitution, which reads as under:- “Dismissal, reduction or removal of persons employed in civil capacities under the State.- (1) No person who is a member of a civil service of the State or holds a civil post under the 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 and where it is proposed after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry: Provided that this sub-section shall not apply- (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which was 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 Governor 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 reasonable to hold such inquiry as is referred to in sub-section (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final].” Article 311(2) (b) of the constitution as applicable to State of J&K is also reproduced herein under which reads thus:- “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or State (1)............................................................................. [(2)........................................................................... (a) .......................................................................... (b) where the authority empowered to dismiss or remove a person or to reduce him in rank satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c)............................................................................” The provisions of Rule 27 (ii)(cc) also make similar provision, which for facility of reference is also reproduced hereunder:- “27(ii)(cc):- (i)................................................. (ii) where the authority competent to impose the penalty is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules; or (iii).................................................” From a plain reading of the provisions of Article 311(2)(b), Rule 27(ii)(cc) of CRPF Rules and 126 of the State Constitution, it is clear that for imposing the penalty of dismissal/removal and reduction of rank it is not always mandatory to hold an inquiry in consonance with principles of natural justice and the same can be dispensed with, if the disciplinary authority is satisfied that it is not reasonably practicable to hold such inquiry. The satisfaction is to be arrived at by the disciplinary authority on the basis of objective assessment of relevant material. Amongst others, the interpretation and scope of Clause-b of Article 311 (2) fell for consideration before the Constitution Bench of the Supreme Court in the case of Union of India and anr. Vs. Tulsiram Patel and others; 1985 SCC (3) 398. The observations of the Hon’ble Supreme Court made in paragraph 130 of the judgment are apt to be noticed and the same are reproduced hereunder:- “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”. 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 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 terrorizes, threatens or intimidates 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 terrorizes the officer who is the disciplinary authority or members 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 an 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 reasonably 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. 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.” In the aforesaid judgment, it was further held that for the inviting the applicability of clause (b) of Article 311 (2), the disciplinary authority should record in writing its reasons for its satisfaction that it was not reasonably practicable to hold the regular inquiry as contemplated by Article 311 (2). In paragraph 133 of the same judgment, the Hon’ble Supreme Court held thus:- “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 there-upon would both be void and unconstitutional.” The law laid down by the Constitution Bench in Tulsiram Patel’s case (supra) has been consistently followed and reiterated by the Supreme Court in the subsequent judgments. 9. In the case of Jaswant Singh Vs. 9. In the case of Jaswant Singh Vs. State of Punjab and others; AIR 1991 SC 385 , the order of dismissal of a police officer ordered by Assistant Inspector General, Government Railway Police, Patiala by invoking clause (b) of the second proviso to Article 311(2) was quashed by the Supreme Court on the ground that dispensation of inquiry by the disciplinary authority on the satisfaction that delinquent was instigating his colleagues and was holding meetings with other police officials with a view to spread hatred and dissatisfaction to his superiors was vitiated on the ground that the correctness of the information received by the disciplinary authority from the SHO/GRP Jalandhar has not been verified by the disciplinary authority and that there was no independent material with the disciplinary authority to justify the dispensing with the inquiry as envisaged in Article 311(2) of the Constitution. On somewhat similar ground, another order of dismissal of police officer namely Kuldip Singh in Punjab Police ordered by dispensing with the inquiry was held to be bad in the case of Chandigarh Administration, Union Territory, Chandigarh and others Vs. Ajay Manchanda; AIR 1996 SC 3152 . The concluding para of the judgment reads thus:- “15. Now, coming to the case against Kuldip Singh, we are of the opinion that the conclusion arrived at by the Tribunal in this matter needs no interference at our hands. We have pointed out hereinabove while discussing the facts of this case that no one had ever stated either before the S.P (Headquarters) (preliminary enquiry officer) or before the S.S. P that he has been terrorised, intimidated or threatened by the respondent. Only because the complainant Sri Raheja, Advocate, mentioned in his letter that he does not wish to proceed with the complaint in view of the compromise effected between him and the respondent by certain respectable elders, the S.S.P inferred that the said complainant has been terrorised and intimidated. We are not satisfied that that is the only inference that flows from the complainant’s second letter. The S.S.P also does not say either in the order of dismissal-or anywhere in the record-that he had information to the above effect from some other source. In such a situation, the inference drawn by the S.S.P cannot be said to be a reasonable or relevant one. The S.S.P also does not say either in the order of dismissal-or anywhere in the record-that he had information to the above effect from some other source. In such a situation, the inference drawn by the S.S.P cannot be said to be a reasonable or relevant one. In short, there was absolutely no material upon which the S.S.P could be satisfied that it was not reasonably practicable to hold a disciplinary enquiry against the respondent because of the intimidation and threats held out by the respondent to the complainant or other witnesses, if any. Accordingly the appeal arising from Special Leave Petition (C) 26970 of 1995 is dismissed. No Costs.” The same principle of law has been reiterated in the case of Sudesh Kumar Vs. State of Haryana; (2005) 11 SCC 525 . Paragraph 05 of the judgment, which is relevant in the context of controversy involved in this petition is reproduced hereunder:- “5. It is now established principle of law that an inquiry under Article 311 (2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.” Later judgments on the issue also restate the same principles of law as were laid down in Tulsiram Patels’ case (supra); [see (2006) 13 SCC 581 and also (2014) 13 SCC 244 ]. 10. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.” Later judgments on the issue also restate the same principles of law as were laid down in Tulsiram Patels’ case (supra); [see (2006) 13 SCC 581 and also (2014) 13 SCC 244 ]. 10. From the conspectus of judicial opinion on the subject, it is now well settled that a constitutional right conferred upon the delinquent under Article 311(2) cannot be dispensed with lightly or arbitrarily. It cannot be used as an alternative and shortcut to the holding of regular inquiry. The decision to dispense with the departmental inquiry cannot be rested solely on the ipse dixit of the delinquent authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of whim or caprice of the concerned officer. 11. From the order impugned, I have noticed that formal inquiry was dispensed with only on the ground that petitioner was a person of known criminal background having links with criminals/enemies/agents and his remaining in the force would tarnish the image of the prestigious force, apart from causing loss of life to the force personnel. Nowhere, in the order impugned, it has been stated by the disciplinary authority that because of some conduct of the petitioner, it is not reasonably practicable to hold a regular inquiry. No doubt, the petitioner was involved in commission of serious offences for which he was later on acquitted by the trial Court. It is also on record that he was twice slapped with detention order for his supposedly subversive activities. It may or may not be true that the petitioner was having links with the banned terrorist organization and was perceivably potential threat to the force but that alone could not have been reason to dismiss him from service in violation of Constitutional mandate envisaged under Article 311 of the Constitution read with Rule 27(ii)(cc) of the CRPF Rules. The disciplinary authority has not indicated any reason worth the name on the basis of which he arrived at satisfaction that it was not reasonably practicable to hold a regular inquiry against the petitioner. The disciplinary authority has not indicated any reason worth the name on the basis of which he arrived at satisfaction that it was not reasonably practicable to hold a regular inquiry against the petitioner. The reasons indicated in the impugned order adumbrated hereinabove clearly do not constitute relevant material on the basis of which a reasonably person could arrive at a satisfaction that it is not reasonably practicable to hold inquiry. 12. Tested on the touchstone of legal position discussed hereinabove, it is found that there was no material available with the disciplinary authority to arrive at a satisfaction that it was necessary to dispense with a formal inquiry in terms of Article 311(2)(b) or Rule 27 (ii)(cc) of the CRPF Rules. 13. That being so, the order of dismissal impugned and the order of the appellate authority rejecting the appeal of the petitioner are not sustainable in law and they are accordingly quashed. The petitioner is held entitled to be reinstated forthwith. However, in view of the seriousness of the allegations against the petitioner indicated in the order of dismissal, it would be open to the respondents to initiate regular departmental inquiry, if the respondents so desire. In case the respondents decide to hold regular departmental inquiry against the petitioner, the petitioner shall be deemed to be under suspension. His reinstatement and payment of back wages, however, shall depend upon the result of such inquiry and the action, if any, taken by the disciplinary authority thereupon. Such an inquiry, if decided to be held against the petitioner by the respondents shall be initiated at the earliest and in any case within four weeks from the date of receipt of copy of this order. The respondents shall make every endeavour to conclude the inquiry, if any, initiated within two months from the date, the petitioner is served with the charges. 14. Writ petition is disposed of accordingly.