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2018 DIGILAW 671 (GAU)

Dhrubajyoti Tamuli v. State of Assam

2018-04-19

L.S.JAMIR

body2018
JUDGMENT & ORDER : 1. Heard Mr. SB Sarma, learned counsel for the petitioner and Mr. MR Adhikari, learned Addl. Senior Govt. Advocate for the respondents. 2. An FIR was lodged on 03.06.2015 before the Officer-in-Charge, Sonapur Police Station alleging commitment of dacoity and accordingly, Sonapuri PS Case No.158/2015 under Section 397 IPC was registered. In connection with the said complaint, the petitioner along with others was arrested by the police on 03.06.2015. Consequently, the petitioner was thereafter placed under Suspension by the order dated 12.06.2015 issued by the Commandant, 4th APBN, Kahilipara/respondent No.3. While the petitioner was under suspension, the respondent No.3 again passed an order dated 20.06.2015 stating interalia that it was not reasonably practicable to hold an inquiry as the petitioner has already been forwarded to judicial custody in a heinous crime and therefore, the petitioner was dismissed from service w.e.f. 12.06.2015 as per Article 311 (2) (b) of the Constitution of India. 3. Mr. SB Sarma, learned counsel for the petitioner submits that the present case is squarely covered by the order dated 22.02.2017 passed by this Court in W.P. (C) No.7543/2015 (Himangshu Sharma -Vs.- State of Assam and others) . 4. Mr. AR Adhikari, learned Additional Sr. Govt. Advocate on the other hand submits that the petitioner belongs to the uniform service where the highest degree of integrity is required. However, in the present case, the petitioner involved in a crime under Section 397 IPC and when a uniform personal involves in such crimes, the confidence of the people in the police force would deteriorate. He, therefore, submits that no inference is required in the order dated 20.06.2015. It is also submitted that the petitioner has confessed to his guilt before the Investigating Agency and a portion of the money that was looted has also been recovered from the petitioner. Therefore, to regain the public confidence, it was considered to be of utmost importance that the petitioner should be rendered with exemplary punishment and such exemplary departmental punishment would give a message to police personnel who dares to commit such heinous crime in future. Therefore, taking into consideration all the facts and circumstances of the case, the petitioner was rightly dismissed from service by the order dated 20.06.2015. 5. I have considered the submissions forwarded by the learned counsel for the parties. 6. Therefore, taking into consideration all the facts and circumstances of the case, the petitioner was rightly dismissed from service by the order dated 20.06.2015. 5. I have considered the submissions forwarded by the learned counsel for the parties. 6. It is undisputed that basing on the FIR dated 03.06.2015, Sonapur PS Case No. 158/2015 under Section 397 IPC was registered and that the petitioner was arrested on 03.06.2015 in connection with the said case. It is also undisputed that the petitioner was placed under suspension by the order dated 12.06. 2015. What has to be considered in this writ petition is whether the impugned order dated 20.06.2015 passed by the respondent No. 3 dismissing the petitioner from service w.e.f. 12.06.2015 as per Article 311 (2) (b) of the Constitution was warranted. 7. In the case of Sudesh Kumar Vs State of Haryana & Ors. reported in (2005) 11 SCC 525 , the Hon’ble Court has held that it is an established principle of law that an enquiry under Article 311 (2) is a rule and dispensing with an enquiry is an exception. In the case of Ved Mitter Gill Vs Union of Territory Administration, Chandigarh & Ors. reported in (2015) 8 SCC 86 , the Hon’ble Supreme Court has referred to the three parameters for valid invocation of Article 311 (2) (b) of the Constitution. For invoking Article 311 (2) (b), the respondents should be satisfied that it was not reasonably practicable to hold the departmental enquiry and the said satisfaction should be recorded in writing. It is also a constitutional obligation that if such reasons are not recorded in writing, the order dispensing with enquiry and the order of penalty following thereupon will both be void and unconstitutional. 8. In the present case in hand, the impugned order dated 20.06.2015, would indicate that it is without any proper reasons. Non-recording of proper reasons while passing the order dated 20.06.2015 dispensing with enquiry would invalidate the action taken by the respondents. The mere observation that the petitioner has been forwarded to judicial custody in a heinous crime, in the considered opinion of this Court, is not a cogent reason calling for dispensing with enquiry more particularly when it is an admitted fact that the petitioner is on bail. 9. The mere observation that the petitioner has been forwarded to judicial custody in a heinous crime, in the considered opinion of this Court, is not a cogent reason calling for dispensing with enquiry more particularly when it is an admitted fact that the petitioner is on bail. 9. Considering that the present case has been considered as to whether the invocation of Article 311 (2) (b) has been done in its proper perspective, this Court is not entering into the factual aspects concerning the case. The impugned order dated 20.06.2015 stands vitiated as the same was not preceded by an enquiry or by an opportunity of hearing the petitioner while dismissing him from service. 10. In that view of the matter, this writ petition is allowed and the impugned order dated 20.06.2015 is set aside and quashed but with no order as to cost. 11. However, it is open to the respondents to initiate an enquiry against the petitioner in accordance with law, if so advised.