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2024 DIGILAW 558 (ALL)

Hassandeen v. Union of India

2024-02-22

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1. This writ petition has been preferred by Hassandeen, once a Constable (General Duty) with the Central Industrial Security Force (for short ‘the CISF’) who has been dismissed from service by the Group Commandant, CISF Group Headquarters, Allahabad vide order dated 11.04.2012. This order has been affirmed in appeal by the Deputy Inspector General of Police, CISF, Allahabad vide order dated 14th August, 2012 and further upheld in revision by the Inspector General, North Sector, CISF, New Delhi on the 3rd of January, 2014 by an order of that date. 2. This is a case where the order of dismissal from service has been passed against the petitioner by the Disciplinary Authority in the exercise of powers under Rule 39 (ii) of the Central Industrial Security Force Rules, 2001 (for short ‘the Rules’) without holding an inquiry on grounds recorded in writing in the order impugned that it is not reasonably practicable to hold it. 3. The facts giving rise to this petition are: The petitioner was selected and appointed to the CISF as a Constable (General Duty) (for short ‘Constable GD’) in the year 1999. He was posted in the Fourth Battalion, Government Opium Factory, Ghazipur as Constable GD, CISF Unit, Ghazipur. During the period of his posting at the CISF Unit, Ghazipur, a First Information Report (for short ‘the FIR’) came to be lodged by the Station House Officer, Police Station Jaitpura, District Varanasi against the petitioner, besides another ten accused, giving rise to Crime No. 54 of 2012, under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) Police Station Jaitpura, District Varanasi. The FIR aforesaid was lodged on 29.02.2012. The petitioner was arrested by the Police in connection with the said crime on 17.03.2012 and remanded to judicial custody. The Group Commandant, CISF Group Headquarters, Allahabad was informed of the fact by the Senior Sub-Inspector, Police Station Jaitpura, District Varanasi by his letter of 18th March, 2012. In consequence, by an order dated 18.03.2012, the petitioner was placed under suspension by the Group Commandant w.e.f. 17.03.2012. On the 11th April, 2012, the Group Commandant proceeded to dismiss the petitioner from service invoking his powers under Rule 39(ii) of the Rules, without holding an inquiry on ground that it was not reasonably practicable. In consequence, by an order dated 18.03.2012, the petitioner was placed under suspension by the Group Commandant w.e.f. 17.03.2012. On the 11th April, 2012, the Group Commandant proceeded to dismiss the petitioner from service invoking his powers under Rule 39(ii) of the Rules, without holding an inquiry on ground that it was not reasonably practicable. The reasons to proceed on the basis that it was not reasonably practicable to hold an inquiry are carried in the impugned order of dismissal dated 11.04.2012. Allusion to these reasons shall be made during the course of this judgment. 4. The petitioner carried an appeal from the order of dismissal to the Deputy Inspector General of Police, CISF, Allahabad, the Appellate Authority, which was dismissed by an order dated 14th August, 2012. The petitioner then preferred a revision under Rule 54 of the Rules. The petitioner’s revision was not decided by the Inspector General for a long period of time. The petitioner, therefore, petitioned this Court by means of Writ (A) No. 794 of 2014, making a grievance of the delay in the decision of his revision. This Court by an order dated 8th January, 2014 disposed of the writ petition with a direction to the Inspector General to consider the same and decide expeditiously within a period of four months from the date of production of a certified copy of the order made in the writ petition aforesaid. In consequence, the Inspector General, the Revisional Authority by his order dated 3rd January, 2014 rejected the revision as barred by time. 5. Aggrieved, this writ petition has been preferred. 6. Heard Mr. Rajesh Kumar Singh, Advocate along with Mr. Mohammad Firoz Khan, learned Counsel for the petitioner and Mr. Piyush Mishra, learned Central Government Counsel appearing on behalf of respondents. 7. It is pointed out by the learned Counsel for the petitioner that the order of dismissal from service was passed dispensing with inquiry under Rule 33 of the Rules and adopting the drastic procedure envisaged under Rule 39(ii) on ground that it was not reasonably practicable to hold inquiry because of the petitioner’s involvement in Case Crime No. 54 of 2012. It is argued by the learned Counsel that it was not for the Disciplinary Authority to take cognizance of the petitioner’s acts of commission or omission that were subject matter of criminal investigation/criminal trial, a proceeding entirely different from those envisaged under Rule 39(i) of the Rules. It is urged that the Disciplinary Authority could not have considered the petitioner’s conduct that was subject matter of criminal investigation or trial, while exercising his powers under Rule 39(ii) of the Rules. The submission, therefore, is that powers under Section 39(ii) of the Rules were exercised by the Disciplinary Authority on irrelevant considerations. 8. It is next pointed out that the reason recorded in the impugned order dated 11.04.2012 is the improbability of witnesses turning up to testify against the petitioner. It is submitted that this reasoning is flawed, because it is not disclosed anywhere by the respondents that any endeavour was made to secure the presence of witnesses, but found them reluctant or hesitant. It is next submitted that if the ground is the non-availability of witnesses against the delinquent on account of fear etc. the names of witnesses should have been disclosed in the impugned order, that is to say, those witnesses, who were invited by the respondents to testify against the petitioner but declined. It is urged that the inference about improbability of witnesses turning up to testify, recorded in the impugned order is baseless and without material, rendering the foundation of the impugned order shaky. 9. It is next argued that Rule 39(ii) of the Rules contemplates dispensation of inquiry strictly under circumstances mentioned in that Rule. It is urged that the power is drastic, and, therefore, resort to Rule 39(ii) of the Rules should be made alone, if requirements of the Rule are strictly satisfied. The power cannot be exercised arbitrarily to bypass the inquiry, otherwise required to be undertaken. It is also argued that the proviso to Rule 39 contemplates that an enrolled member of the CISF may be given opportunity of making a representation against the penalty proposed before it is inflicted, which in this case has been observed in breach. It is next submitted by the learned Counsel for the petitioner, enlarging a point already made, that the procedure envisaged under Rule 39 is in the nature of a proviso to the holding of a regular inquiry under Rule 32. It is next submitted by the learned Counsel for the petitioner, enlarging a point already made, that the procedure envisaged under Rule 39 is in the nature of a proviso to the holding of a regular inquiry under Rule 32. This proviso reflects the constitutional mandate in Article 311 of the Constitution, which too makes the holding of an inquiry an imperative and dispensation remote in circumstances that make adherence to inquiry procedures, not reasonably practicable. In support of his contention, learned Counsel for the petitioner has placed strong reliance upon the decision of the Supreme Court in Union of India and Others vs. Ram Bahadur Yadav, (2022) 1 SCC 389 . Allusion to the principle laid down in Ram Bahadur Yadav (supra) and if it is in point for the petitioner, shall be made during the course of this judgment. It is, particularly, emphasized by the learned Counsel for the petitioner that in the absence of evidence to show that despite effort made, no witness was willing to come forward and testify against the petitioner, the Disciplinary Authority’s subjective satisfaction is flawed. 10. Mr. Piyush Mishra, learned Counsel for the respondents, refuting the submissions advanced on behalf of the petitioner, submits that there are detailed reasons recorded in the impugned order why the Disciplinary Authority has opined that it is not practicable to hold an inquiry. It is submitted that the circumstances in which the petitioner was found involved in the criminal case, where 25 containers of opium were stolen from the opium factory, being 558 kilograms and worth Rs. 4 crores, the prospects of witnesses coming forward are not there. This theft and removal of opium from the Government Opium Factory involved twelve persons, to wit, Gopal Dhare Asharam, Sheetal Jaiswal, Om Prakash Yadav, Tushar @ Babu Jaiswal, Constable Balu Nayak, S.I. Santosh Kumar, Assistant Commandant Khajan Singh, Constable K. Satish Kumar, Constable Hassandeen, Constable M. Bhaskar, Munna @ Rohit and Kamlesh @ Tuntun Kesari. The petitioner’s name figured, no doubt, in the statement of a co-accused, but on the foot of involvement of these CISF men, who were acting in concert with opium mafia and the material that was gathered in connection with arrest of the CISF Personnel, including an Assistant Commandant, the Disciplinary Authority formed a subjective satisfaction, for reasons recorded, to dispense with inquiry, finding it to be not reasonably practicable. Why it was not reasonably practicable, bearing in mind the material and circumstances, attending the petitioner’s act, is given in the impugned order. 11. It is no doubt true that the normal rule to impose a major penalty is one after holding due inquiry, for which an elaborate procedure is laid down under Rule 36 of the Rules. Rule 39 carves out an exception to Rules 36 to 38. It may be apposite to point out that whereas Rule 36 lays down the elaborate procedure to hold disciplinary proceedings in case of major penalties, Rule 37 prescribes the procedure for imposing minor penalties and Rule 38 the procedure for imposition of petty punishment. Rule 39, that is in the nature of a proviso to the normal procedure for the imposition of punishment of any kind, reads: “39. Special procedure in certain cases - Not with standing anything contained in rules 36 to 38: (i) where any penalty is imposed on an enrolled member of the Force on the ground of conduct which has led to his conviction on a criminal charge. (ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules. (iii) where the President is satisfied that in the interest of the security of the state, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the enrolled member of the Force may be given an opportunity of making representation against the penalty proposed to be imposed before any order is made in case under clause (i).” 12. The Rules have been framed by the Central Government in the exercise of their powers under Section 22 of the Central Industrial Security Force Act, 1968 (for short ‘the Act’), which confers wide powers on the Government to make Rules for carrying out the purposes of the Act. The scheme of the Rules, which envisages an ordinary mode for the imposition of a punishment of any kind and then an extraordinary mode in certain contingencies, orchestrates what Article 311 of the Constitution provides in the matter of dismissal, removal etc. The scheme of the Rules, which envisages an ordinary mode for the imposition of a punishment of any kind and then an extraordinary mode in certain contingencies, orchestrates what Article 311 of the Constitution provides in the matter of dismissal, removal etc. of a member of a civil service of the Union or a State, or a person holding a civil post under the Union or a State, to borrow almost the phraseology of Article 311(1). Article 311 of the Constitution reads: “311. Dismissal, removal or reduction in rank of persons employed in Civil capacities under the Union or a State: (1) No person who 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 this 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. (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. (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (c) where the President or the Governor, as the case may be, 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 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.” 13. A comparison of what the higher principles in the Constitution lay down in connection with removal of a civil servant of the Union or a State and the provisions of the Rules would show striking similarity. What proviso (b) to Article 311 (2) postulates, is clearly reflected in the provisions of Rule 39 of the Rules. There is one issue, which Mr. Rajesh Kumar Singh, learned Counsel for the petitioner raised, that deserves to be disposed of for a first. He submitted, relying on the proviso to Rule 39 of the Rules, that it postulates opportunity of making a representation against the proposed penalty imposed under Rule 39, which has been observed in breach by the respondents. A perusal of Rule 39 of the Rules would show that the proviso envisages provision of opportunity to make a representation against the proposed penalty before it is imposed, in case the order is made, invoking clause (i) of Rule 39 of the Rules. Clause (i) aforesaid contemplates digression from the ordinary rule of holding a departmental inquiry in case where any penalty is imposed on an enrolled member of the CISF on ground of conduct that has led to his conviction in a criminal case. The proviso to Rule 39, therefore, would have no application to the present case, where clause (ii) of Rule 39 has been invoked by the respondents to punish the petitioner. The aforesaid contention of the learned Counsel for the petitioner, therefore, has no force. 14. The proviso to Rule 39, therefore, would have no application to the present case, where clause (ii) of Rule 39 has been invoked by the respondents to punish the petitioner. The aforesaid contention of the learned Counsel for the petitioner, therefore, has no force. 14. A perusal of the impugned order shows that clause (ii) of Rule 39 has been invoked by the Disciplinary Authority to hold that it is not reasonably practicable to hold an inquiry on the following grounds, detailed in the impugned order (translated into English from Hindi): “(a) As would be seen from the FIR Case Crime No. 54 of 2012, registered on 29.02.2012 at 17:00 hours, the case property recovered is opium worth Rs. 4 crores, estimatedly where Constable GD Hassandeen’s name is also found involved. The proof comprises the FIR registered by the Police. (b) The local drug mafia, with whom Constable GD Hassandeen is involved command such terror and influence in the area, extending large, that there is no likelihood of any witness testifying against him or assisting in the departmental proceedings. (c) The members of the CISF have been put in so much fear that the Unit is facing such intimidating circumstances where members of the Force, avoid testifying against him. (d) Constable GD appears to have illegal connection to the drug mafia and on account of the terror and fear of the drug mafia, it is not possible that any witness would come forward. (e) This fact is proved from the police case that Constable GD Hassandeen is involved with those, who illegally trade in opium and to have a member on the force, who has connections with such antisocial elements, is not only fatal for the force, but also expose to extreme danger those establishments, where he is posted. (f) Most of the witnesses in this case are civilians, to produce whom is not possible. (g) The CISF is a Central Armed Police Force. It is an Armed Force of the Union. The CISF is posted to sensitive stations and places like Airports, Seaports, Units of the Atomic Energy Department, the Space Department, Metro Rail, Electricity, Iron Industry. The force (CISF) is detailed to internal security duty as well as election duty. The CISF requires to maintain a high decree of discipline. It is an Armed Force of the Union. The CISF is posted to sensitive stations and places like Airports, Seaports, Units of the Atomic Energy Department, the Space Department, Metro Rail, Electricity, Iron Industry. The force (CISF) is detailed to internal security duty as well as election duty. The CISF requires to maintain a high decree of discipline. (h) Gauging the circumstances, so that general administration and discipline do not break down and go out of control, leading to breach of peace, it would not be desirable to await such circumstances to come by.” 15. These reasons to dispense with the holding of a departmental inquiry and proceeding under Rule 39 was a decision taken by the Disciplinary Authority under circumstances recorded in that order. Broadly put, there was a Constable of the CISF posted at the Government Opium Factory, Ghazipur, Gopal Dhare Asharam Ganpat. According to the FIR, giving rise to Case Crime No. 54 of 2012, registered on 29.02.2012 at 17:00 hours at Police Station Jaitpura, District Varanasi, he was arrested during a raid by the Police in a house located under Nakhi Ghaat, near the Shailputri Temple, together with 25 containers full of 558 kilograms of raw opium, estimated to be worth Rs. 4 crores. The Constable had three members of the public with him, one of whom was able to make good his escape. The Constable was arrested along with two members of the public, going by the name, Sheetal Jaiswal and Om Prakash Yadav. All of them were arrested in the said crime. The arrest of these three in the raid and recovery of opium was done under the supervision of the Circle Officer, Chetganj. During interrogation of the three men arrested as aforesaid, revealed the involvement of Constable GD Hassandeen in the crime. After Hassandeen was brought to the Police Station and investigated, it was found that the 25 containers full of 558 kilograms of raw opium, stolen from the Government Opium Factory, had Hassandeen’s involvement too. He was arrested and sent to jail. Information was given by Police Station Chetganj on 18.03.2012 to the CISF. 16. After Hassandeen was brought to the Police Station and investigated, it was found that the 25 containers full of 558 kilograms of raw opium, stolen from the Government Opium Factory, had Hassandeen’s involvement too. He was arrested and sent to jail. Information was given by Police Station Chetganj on 18.03.2012 to the CISF. 16. It was at this stage and shortly after the petitioner was arrested and sent to jail that on 11.04.2012, the Disciplinary Authority invoked his powers under Rule 39(ii) of the Rules, assigning reasons in writing to hold that this was a case where it was not practicable to hold an inquiry, in the exercise of powers under the said Rule, proceeded to punish the petitioner with dismissal from service. The aforesaid order was passed on ground of his involvement in the criminal case and the circumstances of arrest, from which an inference was drawn that he was involved with national and international gang of opium smugglers. These were activities found to be harmful for the CISF, besides bringing it a bad name. 17. Now, the question to be determined is as what are the parameters on which power under Rule 39(ii) of the Rules can be exercised by the Disciplinary Authority to punish an enrolled member of the CISF, without holding an inquiry. This question engaged the attention of a Constitution Bench of the Supreme Court in Union of India and Another vs. Tulsiram Patel, (1985) 3 SCC 398 . The question was decided with reference to the provisions of clause (2) of Article 311, which we have already noticed hereinabove are pari materia to the Rules here. It is observed in Tulsiram Patel (supra) regarding the validity of Rules providing for exclusion of natural justice in the following terms: “106. It is not possible to accept this submission. The opening words of Article 309 make that article expressly “Subject to the provisions of this Constitution.” Rules made under the proviso to Article 309 or under Acts referable to that article must, therefore, be made subject to the provisions of the Constitution if they are to be valid. Article 310(1) which embodies the pleasure doctrine is a provision contained in the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to that article are subject to Article 310(1). Article 310(1) which embodies the pleasure doctrine is a provision contained in the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to that article are subject to Article 310(1). By the opening words of Article 310(1) the pleasure doctrine contained therein operates “Except as expressly provided by this Constitution.” Article 311 is an express provision of the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to Article 309 would be subject both to Article 310(1) & Article 311. This position was pointed out by Subba Rao, J. as he then was, in his separate but concurring judgment in Moti Ram Deka Case AIR 1964 SC 600 : (1964) 5 SCR 683 : (1964) 2 LLJ 467 at p. 734, namely, that rules under Article 309 are subject to the pleasure doctrine and the pleasure doctrine is itself subject to the two limitations imposed thereon by Article 311. Thus, as pointed out in that case, any rule which contravenes clause (1) or clause (2) of Article 311 would be invalid. Where, however, the second proviso applies, the only restriction upon the exercise of the pleasure of the President or the Governor of a State is the one contained in clause (1) of Article 311. For an Act or a rule to provide that in a case where the second proviso applies any of the safeguards excluded by that proviso will be available to a government servant would amount to such Act or rule impinging upon the pleasure of the President or Governor, as the case may be, and would be void as being unconstitutional. It is, however, a well-settled rule of construction of statutes that where two interpretations are possible, one of which would preserve and save the constitutionality of the particular statutory provision while the other would render it unconstitutional and void, the one which saves and preserves its constitutionality should be adopted and the other rejected. Such constitutionality can be preserved by interpreting that statutory provision as directory and not mandatory. It is equally well-settled that where a statutory provision is directory, the courts cannot interfere to compel the performance or punish breach of the duty created by such provision and disobedience of such provision would not entail any invalidity - See Craies on Statute Law, Seventh Edn. at p. 229. It is equally well-settled that where a statutory provision is directory, the courts cannot interfere to compel the performance or punish breach of the duty created by such provision and disobedience of such provision would not entail any invalidity - See Craies on Statute Law, Seventh Edn. at p. 229. In such a case breach of such statutory provision would not furnish any cause of action or ground of challenge to a government servant for at the very threshold, such cause of action or ground of challenge would be barred by the second proviso to Article 311(2).” 18. It is, therefore, in accord with the constitutional scheme that service rules excluding natural justice have to be reflections of clause (b) of the second proviso to Article 311(2) of the Constitution. 19. The parameters, on which the power to dispense with an inquiry under clause (b) of the second proviso to Article 311(2) of the Constitution is exercised, have been elaborately laid down by the Constitution Bench in Tulsiram Patel. In Tulsiram Patel, it has been held: “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 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 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. 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. The case of Arjun Chaubey vs. Union of India, (1984) 2 SCC 578 : 1984 SCC (L&S) 290 : (1984) 3 SCR 302 is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter. 131. It was submitted that where a delinquent government servant so terrorizes the disciplinary authority that neither that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent government servant either by himself or along with or through others makes the holding of an inquiry not reasonably practicable. 132. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent government servant either by himself or along with or through others makes the holding of an inquiry not reasonably practicable. 132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word “inquiry” in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex-parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2). 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. 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 particulars, 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.” 20. The aforesaid principles laid down by the Constitution Bench were followed by the Supreme Court in Southern Railway Officers Association vs. Union of India and Others, (2009) 9 SCC 24 . These principles were further followed and elaborated in a later decision of the Supreme Court in Ved Mitter Gill vs. Union Territory Administration, Chandigarh and Others, (2015) 8 SCC 86 . The facts in Ved Mitter Gill (supra) show that while Gill was posted as the Deputy Superintendent of Police, Model Jail, Burail, Chandigarh in January, 2004, four under-trials, three of whom were facing trial on the charge of assassinating a former Chief Minister of Punjab, Sri Beant Singh and another, escaped from Model Jail, Burail, Chandigarh by digging an underground tunnel. Gill was dismissed from service vide order dated 01.03.2004 by the Administrator, Union Territory of Chandigarh invoking clause (b) of the second proviso to Article 311(2). He challenged the order of dismissal dated 01.03.2004 by preferring departmental appeals to the Administrator of the Union Territory. Those appeals were dismissed as not maintainable vide order dated 11.02.2005. Gill moved the Central Administrative Tribunal through an Original Application, challenging the orders of his dismissal from service. The Central Administrative Tribunal vide order dated 30.01.2006 dismissed the Original Application. This order was impugned before the High Court in a writ petition, that came to be dismissed by an order dated 01.05.2006. It was against the order of the High Court that Gill appealed by special leave to the Supreme Court. Before the Supreme Court, the appeal preferred by Gill was heard along with transferred cases, that were writ petitions filed in the High Court by the other officers posted in Jail, who had similarly been dismissed and their writ petitions were still pending before the High Court by time Gill moved the Supreme Court by his petition for special leave to appeal. It was in the backdrop of these facts that after noticing the principles laid down in Tulsiram Patel, Tarsem Singh vs. State of Punjab, (2006) 13 SCC 581 , State of Punjab vs. Harbhajan Singh, (2007) 15 SCC 217 and other high authority that their Lordships held: “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. We have already extracted hereinabove the order dated 1-3-2004, whereby, the appellant Ved Mitter Gill was dismissed from service, with immediate effect. Its perusal reveals, that the punishment was based on reasons (recorded in the impugned order) divided into different compartments. The first is contained in the first paragraph, which deals with the duties and responsibilities vested with Ved Mitter Gill, as Deputy Superintendent, Model Jail, Burail, Chandigarh. The second component deals with the escape of four undertrials from Model Jail, Burail, Chandigarh. The first is contained in the first paragraph, which deals with the duties and responsibilities vested with Ved Mitter Gill, as Deputy Superintendent, Model Jail, Burail, Chandigarh. The second component deals with the escape of four undertrials from Model Jail, Burail, Chandigarh. Three of the undertrials, who had escaped, were involved in the assassination of Shri Beant Singh, a former Chief Minister of State of Punjab. The instant paragraph also records, the factum that the said three undertrials were having links with Babbar Khalsa International, a terrorist organisation. The fourth undertrial was being tried separately, for the offence of murder. The third component of the impugned order, relates to the material taken into consideration to evaluate the lapses committed by the appellant/petitioners, as would reveal their involvement with reference to the alleged delinquency, justifying the punishment of dismissal from service. 24. We shall now advert to the factual position emerging from the above. A reference was first of all made to the duties and responsibilities assigned to the appellant Ved Mitter Gill. Having detailed the express duties assigned to him in Paras 9 to 11 above, we have concluded therefrom, that the responsibility of all the jail inmates (safe custody of all prisoners) rested on his shoulders, and the petitioners herein, who assisted him in the same. The appellant Ved Mitter Gill was required to satisfy himself once in every twenty-four hours, about the safe custody of the prisoners. He was also duty-bound to visit every barrack, ward, cell and compartment every twenty-four hours. He was to be present every morning and evening, when the prisoners were taken out of the sleeping wards or cells or other compartments, and then, restored to the same. He was to make a daily report by daybreak and by night, that all the prisoners were present, and in safe custody. He was also required to report forthwith any unusual occurrence. He was required at least once a week to inspect clothing, beddings, as well as, other articles, by thoroughly checking all places frequented by the prisoners. And to make a report, if he discovered any prohibited article, during the checking. The petitioners were associated with the appellant and assisted him in discharging his aforementioned duties. Had the appellant Ved Mitter Gill, and the petitioners, performed their duties diligently, there could not have been any possibility, of the escape under reference. And to make a report, if he discovered any prohibited article, during the checking. The petitioners were associated with the appellant and assisted him in discharging his aforementioned duties. Had the appellant Ved Mitter Gill, and the petitioners, performed their duties diligently, there could not have been any possibility, of the escape under reference. It cannot be overlooked, that the escape was made good, by digging the escape tunnel, which measured ninety-four feet in length (with diagonal dimensions of 21” x 21”). Six separate reasons have been expressed by the competent authority in arriving at its conclusion. We have extracted the impugned order dated 1-3-2004, in its entirety, hereinabove. It fully establishes the inferences recorded by us. 25. The determination by the competent authority, when viewed dispassionately with reference to the duties assigned to Ved Mitter Gill, leaves no room for any doubt, that the competent authority was justified in concluding, that the four prisoners referred to above could never have escaped, if the appellant Ved Mitter Gill, and the petitioners, had diligently discharged the duties assigned to them. Having so concluded, about the responsibility and blameworthiness of the appellant/petitioners, there can be no doubt that the punishment of dismissal from service, was fully justified, as their delinquency had resulted in the escape of four dreaded prisoners. 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. On the question whether it was reasonably practicable to hold an inquiry, the competent authority has recorded its conclusion in the paragraphs, preceding the one depicting the involvement of the appellant/petitioners. Amongst the reasons indicated, it has been recorded, that Ved Mitter Gill being a senior, permanent and non-transferable officer of Model Jail, Burail, Chandigarh, his junior jail officers, who alone would have been witnesses in such departmental proceedings, were not likely to come forward to depose against him, for fear of earning his wrath in future. The links of the escaped undertrial prisoners with the Babbar Khalsa International, a known and dreaded terrorist organisation were also clearly expressed in the impugned order, as one of the reasons, for it being impracticable, to hold an inquiry against the appellant/petitioners. The links of the escaped undertrial prisoners with the Babbar Khalsa International, a known and dreaded terrorist organisation were also clearly expressed in the impugned order, as one of the reasons, for it being impracticable, to hold an inquiry against the appellant/petitioners. It is a matter of common knowledge, and it would be proper to take judicial notice of the fact, that a large number of terrorists came to be acquitted during the period in question, on account of the fact that witnesses did not appear to depose against them on account of fear, or alternatively, the witnesses who appeared before the courts concerned for recording their deposition, turned hostile, for the same reason. 27. The situation presented in the factual narration noticed in the impugned order clearly achieves the benchmark for the satisfaction at the hands of the competent authority that it would not have been reasonably practicable to hold a departmental proceeding against the appellant/petitioners in terms of the mandate contained under Article 311(2) of the Constitution of India. 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. In the present case, there is no serious dispute on this issue because the reasons for the satisfaction have been recorded by the competent authority in the impugned order (dated 1-3-2004) itself. 29. For the reasons recorded above, we are satisfied, that all the parameters laid down by this Court for a valid/legal application of clause (b) to the second proviso under Article 311(2) of the Constitution of India were duly complied with.” 21. Testing the petitioner’s case on the parameters laid down in Tulsiram Patel, and, particularly, Ved Mitter Gill, the first issue that requires consideration is the gravity of the charge. Was the charge grave enough, if proved at a full-fledged inquiry to entail the imposition of major penalty; particularly, dismissal from service, that has been ordered in this case. The charge against the petitioner is about being party to an act facilitating theft of 558 kilograms of opium from the Government Opium Factory, worth Rs. 4 crores. This act was committed in connivance with other members of the CISF and some mafiosi involved in opium smuggling, at least so far as the charge goes. The charge against the petitioner is about being party to an act facilitating theft of 558 kilograms of opium from the Government Opium Factory, worth Rs. 4 crores. This act was committed in connivance with other members of the CISF and some mafiosi involved in opium smuggling, at least so far as the charge goes. This charge, if proved at the inquiry against the petitioner, an enrolled member of a disciplined force dedicated to guard high security installations and establishments of the Government, would most certainly have entailed dismissal from service. Therefore, the first requirement to the exercise of power under Rule 39(ii) of the Rules is clearly established. 22. The other issue that merits consideration is: If the power to invoke Rule 39(ii) of the Rules, dispensing with the normal procedure of holding inquiry, was a valid exercise of discretion under the said Rule? The Disciplinary Authority derives power to dispense with departmental inquiry under Rule 39(ii), if it is satisfied that it is not reasonably practicable to hold an inquiry in the manner provided under the Rules and records reasons for its satisfaction. As laid down in Tulsiram Patel that the words ‘not reasonably practicable’ do not postulate a ‘total or absolute impracticability’ to borrow the words of their Lordships. All that is necessary is that to the understanding of a reasonable man, the holding of an inquiry in the circumstances should appear impracticable. There is remark in Tulsiram Patel, which is of utmost importance on the question what can be regarded as reasonably practicable. Though some illustrations are given there, but it is said that 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. 23. It is further observed in Tulsiram Patel that ‘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’. One of the illustrations given is of the government servant, who by himself or through his associates, terrorizes and suborns witnesses, making them stay away from testifying against him. This, as already said, is an illustration and there are others given by their Lordships. One of the illustrations given is of the government servant, who by himself or through his associates, terrorizes and suborns witnesses, making them stay away from testifying against him. This, as already said, is an illustration and there are others given by their Lordships. Ultimately, it depends upon the judgment of the Disciplinary Authority, who is abreast of the situation and located close at hand to judge the issue of practicability of holding an inquiry. This is not to say that the opinion of the Disciplinary Authority on the issue is final and not subject to scrutiny of this Court. It certainly is. However, the parameters of that scrutiny are limited to a classical secondary review. The material before the Disciplinary Authority in this case would show that it was wholesome. It was recorded by the Disciplinary Authority that the petitioner has connection with the drug mafiosi, who have such widespread terror in the area that it is not likely that anyone would testify against him in the departmental inquiry. 24. There is a further reason recorded, which is more dependable than the first. It is said that members of the CISF are so fearful and intimidated under the circumstances that no member of the CISF would testify against the petitioner. Now, the recording of this reason postulates that it is based on an objective assessment about members of the CISF available in the Unit, who would know about the happenings and the prevalent conditions about the terror struck by the the petitioner and his associates amongst the drug mafiosi. This opinion, being of the Group Commandant and one about members of the CISF available on the Unit, cannot be said to be one not based on any objective material. The satisfaction, of course, has to be subjective, which cannot be questioned. 25. There is still another reason, relevant to the issue in hand, recorded. It is said in the impugned order that most of the witnesses are civilian and it is difficult to produce them before the inquiry. This again is a relevant consideration, because after all what vests the Disciplinary Authority with the power to dispense with inquiry, is that it is ‘not reasonably practicable’ and not, as observed in Tulsiram Patel, an absolute impracticability. This again is a relevant consideration, because after all what vests the Disciplinary Authority with the power to dispense with inquiry, is that it is ‘not reasonably practicable’ and not, as observed in Tulsiram Patel, an absolute impracticability. The difficulty in securing the attendance of civilian witnesses, who are material, being witnesses of acts done by the petitioner, subject matter of inquiry, may not be reasonably practicable. This Court is, therefore, of opinion that the Disciplinary Authority, including the Appellate and the Revisional Authorities, who upheld the order in the part relating to the decision to dispense with inquiry for the impracticability of it, did so on very relevant considerations that cannot be faulted. 26. The last issue, or as their Lordships of the Supreme Court said in Ved Mitter Gill, ingredient for a valid application of clause (b) of the second proviso to Article 311(2) of the Constitution, which here would translate to Rule 39(ii) of the Rules, is the recording of reasons in writing by the competent Authority. Here, the reasons have been recorded very elaborately in the order itself, and, therefore, this issue also is clinched against the petitioner. 27. Before parting with the matter, this Court must consider the submission of the learned Counsel for the petitioner, based on the principle in Ram Bahadur Yadav. Learned Counsel for the petitioner has drawn the attention of the Court to Paragraph Nos. 14 and 17 of the report in Ram Bahadur Yadav to submit that the order impugned is a mechanical exercise of power to dispense with inquiry under Rule 39(ii) of the Rules, and, further, there is no objective material available, on the foot of which the Disciplinary Authority could have recorded its subjective satisfaction to dispense with the holding of inquiry. In Ram Bahadur Yadav, it is observed by the Supreme Court: “14. It is a settled legal position that when Rules contemplate method and manner to adopt special procedure, it is mandatory on the part of the authorities to exercise such power by adhering to the Rule strictly. Dismissal of a regular member of Force, is a drastic measure. Rule 161, which prescribes dispensing with an inquiry and to pass order against a member of Force, cannot be invoked in a routine and mechanical manner, unless there are compelling and valid reasons. Dismissal of a regular member of Force, is a drastic measure. Rule 161, which prescribes dispensing with an inquiry and to pass order against a member of Force, cannot be invoked in a routine and mechanical manner, unless there are compelling and valid reasons. The dismissal order dated 22-10-1998 does not indicate any reason for dispensing with inquiry except stating that the respondent had colluded with the other Head Constable for theft of non-judicial stamp papers. By merely repeating the language of the Rule in the order of dismissal, will not make the order valid one, unless valid and sufficient reasons are recorded to dispense with the inquiry. When the Rule mandates recording of reasons, the very order should disclose the reasons for dispensing with the inquiry. 17. In the judgment in Tarsem Singh vs. State of Punjab, (2006) 13 SCC 581 : (2008) 2 SCC (L&S) 140, this Court has categorically held that when the Authority is of the opinion that it is not reasonably practicable to hold inquiry, such finding shall be recorded on the subjective satisfaction by the authority, and same must be based on the objective criteria. In the aforesaid case, it is further held that reasons for dispensing with the inquiry must be supported by material.” 28. Whatever that we have said above, may be at the cost of some repetition, points out that the impugned order in this case is one that carries wholesome reasons that weighed with the Disciplinary Authority to invoke Rule 39(ii) of the Rules and dispense with inquiry on ground of the impracticability of it. For the said reason, the principle in Paragraph No. 14 of the report in Ram Bahadur Yadav does not come to the petitioner’s rescue at all. We have also indicated that there was objective material available with the Disciplinary Authority in the form of the FIR, the circumstances of arrest of a member of the CISF along with some men from the public, engaged in smuggling activities, the material about the petitioner’s involvement collected during police investigation and above all, the disinclination of members of the CISF available on the Unit to testify against the petitioner, on the foot of which, a subjective satisfaction was formed by the Disciplinary Authority to dispense with inquiry. For this reason, the principle in Paragraph No. 17 of the report in Ram Bahadur Yadav would also not avail the petitioner. 29. In the totality of circumstances, this Court does not find any good ground to interfere with the impugned orders in the exercise of our jurisdiction under Article 226 of the Constitution. 30. This petition fails and is dismissed. 31. There shall be no order as to costs.