W.P.(C)/10572/2023 of GOVT OF NCT OF DELHI AND ORS. Vs NEERAJ KUMAR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P.(C) 10572/2023 & CM APPL. 41113/2023

GOVT OF NCT OF DELHI AND ORS......PetitionersThrough:Ms. Laavanya Kaushik, GP

versus

NEERAJ KUMAR

.....RespondentThrough:Mr. Sachin Chauhan, Ms. RidhiDua,Mr.AbhimanyuBaliyan,Mr.Himanshu Raghav, Advs.

CORAM:HON'BLE MR. JUSTICE C. HARI SHANKARHON'BLE DR. JUSTICE SUDHIR KUMAR JAINJUDGMENT (ORAL)24.10.2024

C. HARI SHANKAR, J.

1.The respondent was working as Constable with the DelhiPolice. Vide order dated 8 April 2016, he was dismissed from service,invoking proviso (b) to Article 311 (2)[1]of the Constitution of India.

1 311.Dismissal, removal or reduction in rank of persons employed in civil capacities under theUnion or State. –

(1)No person who is member of civil service of the Union or an all-India service or acivil service of State or holds civil post under the Union or State shall be dismissed orremoved 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 afteran inquiry in which he has been informed of the charges against him and given reasonable opportunity ofbeing heard in respect of those charges:Provided that where it is proposed after such inquiry, to impose upon him any such penalty, suchpenalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not benecessary to give such person any opportunity of making representation on the penalty proposed:Provided further that this clause shall not apply –civil service of State or holds civil post under the Union or State shall be dismissed orremoved 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 afteran inquiry in which he has been informed of the charges against him and given reasonable opportunity ofbeing heard in respect of those charges:Provided that where it is proposed after such inquiry, to impose upon him any such penalty, suchpenalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not benecessary to give such person any opportunity of making representation on the penalty proposed:Provided further that this clause shall not apply –

(a)where person is dismissed or removed or reduced in rank on the ground of conductwhich has led to his conviction on criminal charge; or(b)where the authority empowered to dismiss or remove person or to reduce him in rank issatisfied that for some reason, to be recorded by that authority in writing, it is not reasonablypracticable to hold such inquiry; or(c)where the President or the Governor, as the case may be, is satisfied that in the interest ofthe security of the State it is not expedient to hold such inquiry.

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He appealed. The appeal was dismissed by the Appellate Authority on26 August 2016. By the impugned judgment dated 27 April 2023, thelearned Central Administrative Tribunal, whom the respondentpetitioned, has set aside both the orders. Aggrieved thereby, thepetitioners, who were the respondents before the learned Tribunal, hasapproached this Court under Article 226 of the Constitution of India.

2.The facts are brief. While he was working as Constable in theDelhi Police, on 21 April 2013, FIR 115/2013 was registered againstthe appellant at PS Chhawla under Section 302 read with Section 201of the Indian Penal Code, 1860. The respondent was charged withhaving murdered his parents, whose bodies were found in plot nearhis residence. It was also alleged, in the FIR, that the respondent hadadmitted to the crime before the Investigating Officer. The respondentwas arrested in connection with the FIR on 21 April 2013.Simultaneously, on the same day, the respondent was placed undersuspension. He was, thereafter, remanded to judicial custody by thelearned criminal court and was in judicial custody at the time when heinstituted OA 1038/2017 before the learned Tribunal.

3.The learned Tribunal notes, in the impugned judgment, thatcharge-sheet had already been filed against the respondent before thelearned Additional Sessions Judge who was in cognizance of the case.A preliminary investigation against the respondent had also beenconducted by the Assistance Commissioner of Police, PG Cell on 22May 2014.

4.In this scenario, the Additional Deputy Commissioner of Police,as the Disciplinary Authority[2], vide order dated 8 April 2016,dismissed the respondent from service. The order reads thus:

“Under these circumstances, I am of the view that Constable (Exe)Neeraj Kumar No.511 /ND has brought had name to the entirepolice official in such dastardly act would destroy the faith of thepeople in the law enforcement system and no witness will comeforward for any enquiry. The involvement of the Constable in suchcriminal act is not only undesirable, but it also amounts to seriousmisconduct and indiscipline, totally unbecoming of policeofficer. It is under these given set of compelling circumstances therules under Article 311(2) (b) of Constitution (Exe). Neeraj KumarNo. 51 1/ND should not be allowed to continue in police serviceand needs to be dismissed immediately without following theprocedure of regular Departmental Proceedings, although purposeof the fact finding is really not needed as the contents of case FIRNo. 115 dated 21.04.13 u/s 302/201 IPC, PS Chhawla, Delhi, hisdisclosure statement and the Preliminary Enquiry conducted intothe matter has proved his involvement in this case.”

5.The respondent appealed against the aforesaid order. Theappellate authority dismissed the appeal vide order dated 26 August2016.

6.Aggrieved thereby, the respondent approached the learnedTribunal by way of OA 1038/2017. The respondent prayed that theorders dated 8 April 2016 and 26 August 2016 be quashed and setaside and that he be reinstated in service with consequential benefits.

7.By the impugned judgment 27 April 2023, the learned Tribunalhas set aside the orders dated 8 April 2016 and 26 August 2016 on theground that no case for invocation of proviso (b) to Article 311 (2) ofthe Constitution was made out. Simultaneously, the petitioners have

2 “DA”, hereinafter

been granted liberty to initiate disciplinary proceedings against therespondent in accordance with law.

8.In arriving at this conclusion, the learned Tribunal has placedreliance on the judgment of the Constitution Bench of the SupremeCourt in UOI v Tulsiram Patel[3], generally regarded as the locusclassicus on the issue, as well as the decision in Satyavir Singh vUOI[4]. The reasoning of the learned Tribunal, following thesedecisions, is as under:

“13.We have gone through the records of the case thoroughlyand heard the arguments by both the counsels carefully. The Apexcourt in UOI v Tulsi Ram Patel has clearly held that invoking ofArticle 311() (b) in routine manner is bad in law. The apex Courtin this case held that:

“It is not possible to enumerate the cases in which it wouldnot be reasonably practicable to hold the inquiry, but someinstances by way of illustration may, however, be given. Itwould not be reasonably practicable to hold an inquirywhere the government servant, particularly through ortogether with his associates, so terrorizes, threatens orintimidate witnesses who are going to given evidenceagainst him with fear of reprisal as to prevent them fromdoing so or where the government servant by himself ortogether with or through other threatens, intimidates andterrorizes the officer who is the disciplinary authority ormember of his family so that he is afraid to hold the inquiryor direct it to be held. It would also not be reasonablypracticable to hold the inquiry where an atmosphere ofviolence or of general indiscipline and insubordinationprevails, and it is immaterial whether the concernedgovernment servant is or is not party to bringing aboutsuch an atmosphere. In this connection, we must bear inmind that numbers coerce and terrify while an individualmay not. The reasonable practicability of holding an inquiryis matter of assessment to be made by the disciplinaryauthority. Such authority is generally on the spot and knows

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what is happening. It is because the disciplinary authority isthe best judge of this that clause(3) of Article 311 makesthe decision of the disciplinary authority on this questionfinal. disciplinary authority is not expected to dispensewith disciplinary inquiry lightly or arbitrarily or out ofulterior motives or merely in order to avoid the holding ofan inquiry or because the Department's case against thegovernment servant is weak and must fail. The finalitygiven to the decision of the disciplinary authority by Article311(3) is not binding upon the court so far as its power ofjudicial review is concerned and in such case the courtwill strike down the order dispensing with the inquiry asalso the order imposing penalty.”

14.Based on this judgment, the Delhi Police issued Circularsvide their Vigilance wing cautioning against invoking Article311(2) (b) indiscriminately. As it is clear from the 2007 circular ofDelhi Police only when Disciplinary authority is satisfied on thebasis of material available on file that the case is such that it is notpracticable to hold Departmental Enquiry in view of threat,inducement, intimidation, affiliation with criminals etc. andkeeping in the special circumstances of the case it is not possiblethat witnesses will not depose against the delinquent official, thenonly Article 311(2)(b) may be invoked.

15.Perusal of the records of the instant case does not providereasonable ground to hold an priori view that the applicant,accused of murdering his parents may use threat, inducement, andintimidation to the probable witnesses, who belong to the samevillage. The Preliminary Enquiry conducted by ACP PG Cell wassubmitted by the respondents after being spoken on 17.4.2023.Perusal of the Preliminary Enquiry by ACP Anand Prakash dated5.1.2015 does not show any indication that the probable witnessesin any proposed disciplinary case would be intimated by theapplicant. The Preliminary Enquiry mentions the heinous nature ofoffence and the fact that the Judicial Court framed the chargesagainst the applicant. Moreover, the counsel for the applicant hasstated the Trial Court proceedings are undergoing smoothly andmany witnesses have deposed against the applicant. Though theapplicant is out of jail on bail, there is no reported threat orintimidation by the applicant to any of the witnesses in the criminalcase.Hence, there was noapparent reason that properdisciplinary proceedings could not have been held. The otherreason that disciplinary proceedings would have taken longertime does not obviate the need to follow due procedure of law andprinciples of natural justice. The Preliminary Enquiry dt. 5.1.2015of ACP Shri Anand Prakash specifically states:

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“For assessing the quantum of default, it goes withoutsaying that Const. Neeraj Kumar 511 /ND is memberof discipline0d force who had been put to all kind ofbasic training and being person conversant with lawand also required to enforce law, given the reason/ noticein the charge sheet, he was supposed to have recourse tothe protection of the Law/ Public Authorities, but theinvestigations concluded against him leading to the filingof charge sheet and the prima facie appreciation ofevidence and material on record by the trail court leadingto framing of formal charge against him and his wifeleads to the reason to believe that he inflicted more harmthan was necessary to inflict for the purpose of defenseof his own / self esteem and it was not situation that heought not to be master of his mind so it was maliceaforethought and the retaliation had no reasonablerelationship and the act was not that of reasonable manas reasonable man would have been provided to loose hisself control and was an act of superlative degree donevoluntarily. The submissions in the findings are meantfordisciplinarypurposesagainstConstableNeerajKumar No. 511/NDD only and none else.”16.From the allegations in the FIR and the subsequent chargesframed during judicial proceedings, the DA and the AppellateAuthority held the view that the conduct of the applicant wasunbecoming of police official and they wanted to imposeexemplary punishment to the applicant so that the rest of the policeforce would take note. From this it is clear that the DA and the AAhave concluded that the allegations against the appellant stoodalready proved. Grave misconduct is not contingent condition forinvoking Article 311(2) (b). As it has been held by the Apex Courtin Tulsi Ram case and several orders of this Tribunal cited by thecounsel for the applicant, what is most important factor in invokingarticle 311(2) (b) is the reasonable satisfaction based on materialfacts that it is impracticable to hold Disciplinary Proceedings. Inthe instant case, there was no material on record to show that it notpracticable to hold departmental proceedings. The impugned orderjust repeated “ad verbatim the phrase “facts and circumstances ofthe case are such that it would not be reasonably practicable toconduct regular departmental enquiry against the defaulterconstable as there is reasonable belief that the defaulter willinfluence the statements/ deposition of witnesses during DEproceedings and it will take considerable long period.”

It is mechanical quote from the various judgments /orders of theApex court and this tribunal. However, this statement is not backedbyfactsandcircumstancesofimpracticabilityofholding

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departmental enquiry because the applicant was using any threat,inducement, intimidation to the probable witnesses. Because therewas an FIR against the applicant for his alleged involvement in acriminal act, it cannot lead to reasonable presumption that theappellant would use threat/ inducement/intimidation/allurement toinfluence the probable witnesses in case departmental enquiry isheld. The alleged misconduct is not proved as yet and suchmisconduct is supposed to be proved in departmental enquiry.Furthermore, misconduct is not contingent condition for invokingArticle 311(2) (b) of the Constitution of India. In view of the thisthe impugned orders are based in law and hence are liable to setaside.”

9.The law on this issue is now crystallized. They can be found inthe following passages from the judgments of the Supreme Court inTulsiram Patel and Satyavir Singh:

Tulsiram Patel

“62.Before, however, any clause of the second proviso cancome into play the condition laid down in it must be satisfied. Thecondition for the application of each of these clauses is different. Inthe case of clause (a) government servant must be guilty ofconduct deserving the penalty of dismissal, removal or reduction inrank which conduct has led to him being convicted on criminalcharge. In the case of clause (b) the disciplinary authority must besatisfied that it is not reasonably practicable to hold an inquiry. Inthe case of clause (c) the President or the Governor of State, asthe case may be, must be, satisfied that in the interest of thesecurity of the State, it is not expedient to hold an inquiry. Whenthese conditions can be said to be fulfilled will be discussed laterwhile dealing separately with each of the three clauses. Theparamount thing, however, to bear in mind is that the secondproviso will apply only where the conduct of government servantis such as he deserves the punishment of dismissal, removal orreduction in rank. If the conduct is such as to deserve punishmentdifferent from those mentioned above, the second proviso cannotcome into play at all, because Article 311(2) is itself confined onlyto these three penalties. Therefore, before denying governmentservant his constitutional right to an inquiry, the first considerationwould be whether the conduct of the concerned governmentservant is such as justifies the penalty of dismissal, removal orreduction in rank. Once that conclusion is reached and thecondition specified in the relevant clause of the second proviso issatisfied, that proviso becomes applicable and the government

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servant is not entitled to an inquiry. The extent to which agovernment servant can be denied his right to an inquiry formedthe subject-matter of considerable debate at the Bar and we,therefore, now turn to the question whether under the secondproviso to Article 311(2) even though the inquiry is dispensedwith, some opportunity at least should not be afforded to thegovernment servant so that he is not left wholly without protection.As most of the arguments on this part of the case were common toall the three clauses of the second proviso, it will be convenient atthis stage to deal at one place with all the arguments on this part ofthe case, leaving aside to be separately dealt with the otherarguments pertaining only to particular clause of the secondproviso.

70.The position which emerges from the above discussion isthat the keywords of the second proviso govern each and everyclause of that proviso and leave no scope for any kind ofopportunity to be given to government servant. The phrase “thisclause shall not apply” is mandatory and not directory. It is in thenature of constitutional prohibitory injunction restraining thedisciplinary authority from holding an inquiry under Article 311(2)or from giving any kind of opportunity to the concernedgovernment servant. There is thus no scope for introducing into thesecond proviso some kind of inquiry or opportunity by process ofinference or implication. The maxim “expressum facit cessaretacitum” (“when there is express mention of certain things, thenanything not mentioned is excluded”) applies to the case. Aspointed out by this Court in B. Shankara Rao Badami v State ofMysore[5]this well-known maxim is principle of logic andcommon sense and not merely technical rule of construction. Thesecond proviso expressly mentions that clause (2) shall not applywhere one of the clauses of that proviso becomes applicable. Thisexpress mention excludes everything that clause (2) contains andthere can be no scope for once again introducing the opportunitiesprovided by clause (2) or any one of them into the second proviso.In Atkinson v. United States of America Government[6]Lord Reidsaid (at p. 232):“It is now well recognised that the court has power toexpand procedure laid down by statute if that is necessaryto prevent infringement of natural justice and is not plainlycontrary to the intention of Parliament.”

Here, however, the attempt is not merely to do something contraryto the intention of ‘Parliament’, that is, in our case, the ConstituentAssembly, but to do something contrary to an express prohibitioncontained in the Constitution. The conclusion which flows fromthe express language of the second proviso is inevitable and thereis no escape from it. It may appear harsh but, as mentioned earlier,the second proviso has been inserted in the Constitution as matterof public policy and in public interest and for public good just asthe pleasure doctrine and the safeguards for government servantprovided in clauses (1) and (2) of Article 311 have been. It is inpublic interest and for public good that government servant whohas been convicted of grave and serious offence or one renderinghim unfit to continue in office should be summarily dismissed orremoved from service instead of being allowed to continue in it atpublic expense and to public detriment. It is equally in publicinterest and for public good that where his offence is such that heshould not be permitted to continue to hold the same rank, that heshould be reduced in rank. Equally, where public servant byhimself or in concert with others has brought about situation inwhich it is not reasonably practicable to hold an inquiry and hisconduct is such as to justify his dismissal, removal or reduction inrank, both public interest and public good demand that suchpenalty should forthwith and summarily be imposed upon him; andsimilarly, where in the interest of the security of the State it is notexpedient to hold an inquiry, it is in the public interest and forpublic good that where one of the three punishments of dismissal,removal or reduction in rank is called for, it should be summarilyimposed upon the concerned government servant. It was arguedthat in case falling under clause (b)or (c), government servantought to be placed under suspension until the situation improves orthe danger to the security of the State has passed, as the case maybe, and it becomes possible to hold an inquiry. This argumentoverlooks the fact that suspension involves the payment at least ofsubsistence allowance and such allowance is paid at publicexpense, and that neither public interest would be benefited norpublic good served by placing such government servant undersuspension because it may take considerable time for thesituation to improve or the danger to be over. Much as this mayseem harsh and oppressive to government servant, this Courtmust not forget that the object underlying the second proviso ispublic policy, public interest and public good and the Court must,therefore, repel the temptation to be carried away by feelings ofcommiseration and sympathy for those government servants whohave been dismissed, removed or reduced in rank by applying thesecond proviso. Sympathy and commiseration cannot be allowedto outweigh considerations of public policy, concern for publicinterest, regard for public good and the peremptory dictate of aconstitutional prohibition.…

114.So far as Challappan[7]is concerned, it is not possible tofind any fault either with the view that neither clause (a) of thesecond proviso to Article 311(2) nor clause (i) of Rule 14 of theRailway Servants Rules is mandatory or with the considerationswhichhavebeensetoutinthejudgmentasbeingtheconsiderations to be taken into account by the disciplinaryauthority before imposing penalty upon delinquent governmentservant. Where situation envisaged in one of the three clauses ofthe second proviso to Article 311(2) or of an analogous service rulearises, it is not mandatory that the major penalty of dismissal,removal or reduction in rank should be imposed upon theconcerned government servant. The penalty which can be imposedmay be some other major penalty or even minor penaltydepending upon the facts and circumstances of the case.

124.Inthecourseoftheargumentscertainexecutiveinstructions issued by the Government of India were referred toand relied upon on behalf of the government servants. It isunnecessary to deal with these instructions in detail. At the highestthey contain the opinion of the Government of India on the scopeand effect of the second proviso to Article 311(2) and cannot bebinding upon the Court with respect to the interpretation it shouldplace upon that proviso. To the extent that they may liberalize theexclusionary effect of the second proviso they can only be taken asdirectory. Executive instructions stand on lower footing than astatutory rule for they do not have the force of statutory rule. Ifan Act or rule cannot alter or liberalize the exclusionary effect ofthe second proviso, executive instructions can do so even muchless.

129.The next contention was that even if it is not reasonablypracticable to hold an inquiry, government servant can be placedunder suspension until the situation improves and it becomespossible to hold the inquiry. This contention also cannot beaccepted. Very often situation which makes it not reasonablypracticable to hold an inquiry is of the creation of the concernedgovernment servant himself or of himself acting in concert withothers or of his associates. It can even be that he himself is not aparty to bringing about that situation. In all such cases neitherpublic interest nor public good requires that salary or subsistence

7 Divisional Personnel Officer, Southern Railway v T.R. Chellappan, (1976) 3 SCC 190

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allowance should be continued to be paid out of the publicexchequer to the concerned government servant. It should also beborne in mind that in the case of serious situation which rendersthe holding of an inquiry not reasonably practicable, it would bedifficult to foresee how long the situation will last and whennormalcy would return or be restored. It is impossible to draw theline as to the period of time for which the suspension shouldcontinue and on the expiry of that period action should be takenunder clause (b) of the second proviso. Further, the exigencies of asituation may require that prompt action should be taken andsuspending the government servant cannot serve the purpose.Sometimes not taking prompt action may result in the troublespreading and the situation worsening and at times becominguncontrollable. Not taking prompt action may also be construed bythe trouble-makers and agitators as sign of weakness on the partof the authorities and thus encourage them to step up the tempo oftheir activities or agitation. It is true that when prompt action istaken in order to prevent this happening, there is an element ofdeterrence in it but that is an unavoidable and necessaryconcomitance of such an action resulting from situation which isnot of the creation of the authorities. After all, clause (b) is notmeant to be applied in ordinary, normal situations but in suchsituations where it is not reasonably practicable to hold an inquiry.130.The condition precedent for the application of clause (b) isthe satisfaction of the disciplinary authority that “it is notreasonably practicable to hold” the inquiry contemplated by clause(2) of Article 311. What is pertinent to note is that the words usedare“notreasonablypracticable”andnot“impracticable”.According to the Oxford English Dictionary “practicable” means“Capable of being put into practice, carried out in action, effected,accomplished,ordone;feasible”. Webster'sThirdNewInternational Dictionary defines the word “practicable” inter alia asmeaning “possible to practice or perform : capable of being putinto practice, done or accomplished: feasible”. Further, the wordsusedarenot“notpracticable”but“notreasonablypracticable”. Webster's Third New International Dictionary definesthe word “reasonably” as “in reasonable manner: to fairlysufficient extent”. Thus, whether it was practicable to hold theinquiry or not must be judged in the context of whether it wasreasonably practicable to do so. It is not total or absoluteimpracticability which is required by clause (b). What is requisiteis that the holding of the inquiry is not practicable in the opinion ofa reasonable man taking reasonable view of the prevailingsituation. It is not possible to enumerate the cases in which itwould not be reasonably practicable to hold the inquiry, but someinstances by way of illustration may, however, be given. It wouldnot be reasonably practicable to hold an inquiry where the

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government servant, particularly through or together with hisassociates, so terrorizes, threatens or intimidates witnesses whoare going to give evidence against him with fear of reprisal as toprevent them from doing so or where the government servant byhimself or together with or through others threatens, intimidatesand terrorizes the officer who is the disciplinary authority ormembers of his family so that he is afraid to hold the inquiry ordirect it to be held. It would also not be reasonably practicable tohold the inquiry where an atmosphere of violence or of generalindiscipline and insubordination prevails, and it is immaterialwhether the concerned government servant is or is not party tobringing about such an atmosphere. In this connection, we mustbear in mind that numbers coerce and terrify while an individualmay not. The reasonable practicability of holding an inquiry is amatter of assessment to be made by the disciplinary authority.Such authority is generally on the spot and knows what ishappening. It is because the disciplinary authority is the best judgeof this that clause (3) of Article 311 makes the decision of thedisciplinary authority on this question final. disciplinaryauthority is not expected to dispense with disciplinary inquirylightly or arbitrarily or out of ulterior motives or merely in order toavoid the holding of an inquiry or because the Department's caseagainst the government servant is weak and must fail. The finalitygiven to the decision of the disciplinary authority by Article 311(3)is not binding upon the court so far as its power of judicial reviewis concerned and in such case the court will strike down the orderdispensing with the inquiry as also the order imposing penalty. Thecase of Arjun Chaubey v Union of India[8]is an instance in point.In that case, the appellant was working as senior clerk in theoffice of the Chief Commercial Superintendent, Northern Railway,Varanasi. The Senior Commercial Officer wrote letter to theappellant calling upon him to submit his explanation with regard totwelve charges of gross indiscipline mostly relating to the DeputyChief Commercial Superintendent. The appellant submitted hisexplanationandontheverynextdaytheDeputyChiefCommercial Superintendent serveda secondnotice on theappellant saying that his explanation was not convincing and thatanother chance was being given to him to offer his explanationwith respect to those charges. The appellant submitted his furtherexplanation but on the very next day the Deputy Chief CommercialSuperintendent passed an order dismissing him on the ground thathe was not fit to be retained in service. This Court struck down theorder holding that seven out of twelve charges related to theconduct of the appellant with the Deputy Chief CommercialSuperintendent who was the disciplinary authority and that if aninquiry were to be held, the principal witness for the Department

would have been the Deputy Chief Commercial Superintendenthimself, resulting in the same person being the main accuser, thechief witness and also the judge of the matter.

131.It was submitted that where delinquent governmentservant so terrorizes the disciplinary authority that neither thatofficer nor any other officer stationed at that place is willing tohold the inquiry, some senior officer can be sent from outside tohold the inquiry. This submission itself shows that in such casethe holding of an inquiry is not reasonably practicable. It would beillogical to hold that the administrative work carried out by seniorofficers should be paralysed because delinquent governmentservant either by himself or along with or through others makesthe holding of an inquiry not reasonably practicable.

132.It is not necessary that situation which makes the holdingof an inquiry not reasonably practicable should exist before thedisciplinary inquiry is initiated against government servant. Sucha situation can also come into existence subsequently during thecourse of an inquiry, for instance, after the service of charge-sheet upon the government servant or after he has filed his writtenstatement thereto or even after evidence has been led in part. Insuch case also the disciplinary authority would be entitled toapply clause (b) of the second proviso because the word “inquiry”in that clause includes part of an inquiry. It would also not bereasonably practicable to afford to the government servant anopportunity of hearing or further hearing, as the case may be,when at the commencement of the inquiry or pending it thegovernment servant absconds and cannot be served or will notparticipate in the inquiry. In such cases, the matter must proceedex parte and on the materials before the disciplinary authority.Therefore, even where part of an inquiry has been held and therest is dispensed with under clause (b) or provision in the servicerules analogous thereto, the exclusionary words of the secondproviso operate in their full vigour and the government servantcannot complain that he has been dismissed, removed or reduced inrank in violation of the safeguards provided by Article 311(2).

134.It is obvious that the recording in writing of the reason fordispensing with the inquiry must precede the order imposing thepenalty. The reason for dispensing with the inquiry need not,therefore, find place in the final order. It would be usual to recordthe reason separately and then consider the question of the penaltyto be imposed and pass the order imposing the penalty. It would,however, be better to record the reason in the final order in order toavoid the allegation that the reason was not recorded in writing

before passing the final order but was subsequently fabricated. Thereason for dispensing with the inquiry need not contain detailedparticulars, but the reason must not be vague or just repetition ofthe language of clause (b) of the second proviso. For instance, itwould be no compliance with the requirement of clause (b) for thedisciplinary authority simply to state that he was satisfied that itwas not reasonably practicable to hold any inquiry. Sometimes asituation may be such that it is not reasonably practicable to givedetailed reasons for dispensing with the inquiry. This would not,however, per se invalidate the order. Each case must be judged onits own merits and in the light of its own facts and circumstances.”

(Emphasis supplied)

Satyavir Singh

(29)If legislation and the necessities of situation can excludethe principles of natural justice including the audi alteram partemrule, fortiori so can provision of the Constitution such as thesecond proviso to Article 311(2).

(50)The three clauses of the second proviso to Article 311 arenot intended to be applied in normal and ordinary situations. Thesecond proviso is an exception to the normal rule and before anyof the three clauses of that proviso is applied to the case of civilservant, the conditions laid down in that clause must be satisfied.

(55)There are two conditions precedent which must be satisfiedbefore clause (b) of the second proviso to Article 311(2) can beapplied. These conditions are:before clause (b) of the second proviso to Article 311(2) can beapplied. These conditions are:

(i)there must exist situation which makes the holdingofaninquirycontemplatedbyArticle311(2)notreasonably practicable, and(ii)the disciplinary authority should record in writingits reason for its satisfaction that it is not reasonablypracticable to hold such inquiry.ofaninquirycontemplatedbyArticle311(2)notreasonably practicable, and(ii)the disciplinary authority should record in writingits reason for its satisfaction that it is not reasonablypracticable to hold such inquiry.

(56)Whether it was practicable to hold the inquiry or not mustbe judged in the context of whether it was reasonably practicableto do so.

(57)It is not total or absolute impracticability which isrequired by clause (b) of the second proviso. What is requisite isthat the holding of the inquiry is not practicable in the opinion of areasonable man taking reasonable view of the prevailing

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situation.

(58)The reasonable practicability of holding an inquiry is amatter of assessment to be made by the disciplinary authority andmust be judged in the light of the circumstances then prevailing.The disciplinary authority is generally on the spot and knows whatis happening. It is because the disciplinary authority is the bestjudge of the prevailing situation that clause (3) of Article 311makes the decision of the disciplinary authority on this questionfinal.

(59)It is not possible to enumerate the cases in which it wouldnot be reasonably practicable to hold the inquiry. Illustrative caseswould be—

(a)where civil servant, particularly through ortogether with his associates, so terrorizes, threatens orintimidates witnesses who are going to give evidenceagainst him with fear of reprisal as to prevent them fromdoing so, or

(b)where the civil servant by himself or together withor through others threatens, intimidates and terrorizes theofficer who is the disciplinary authority or members of hisfamily so that he is afraid to hold the inquiry or direct it tobe held, or(c)where an atmosphere of violence or of generalindisciplineandinsubordinationprevails,itbeingimmaterial whether the concerned civil servant is or is nota party to bringing about such situation.

In all these cases, it must be remembered that numbers coerce andterrify while an individual may not.

(60)The disciplinary authority is not expected to dispense witha disciplinary inquiry lightly or arbitrarily or out of ulteriormotives or merely in order to avoid the holding of an inquiry orbecause the Department's case against the civil servant is weakand must fail.

(64)The reason for dispensing with the inquiry need not containdetailed particulars but it cannot be vague or just repetition ofthe language of clause (b) of the second proviso.

(68)The submission that where delinquent governmentservant so terrorizes the disciplinary authority that neither thatofficer nor any other officer stationed at that place is willing tohold the inquiry, some senior officer can be sent from outside to

hold the inquiry cannot be accepted. This submission itself showsthat in such case the holding of an inquiry is not reasonablypracticable. It would be illogical to hold that administrative workcarried out by senior officers should be paralysed just because adelinquent civil servant either by himself or along with or throughothers makes the holding of an inquiry by the designateddisciplinaryauthorityorinquiryofficernotreasonablypracticable.”

10.In Tarsem Singh v State of Punjab[9], the charge against theappellant Tarsem Singh in this case was of outraging the modesty ofthe wife of resident of the locality, forcible extraction of money fromthe resident and, later, of sodomizing him. Paras 4 to 6 of the reportset out relevant facts:

“4.On the basis of the said allegations alone and without anyfurther material, PPS, Commandant, 4th Commando Battalion,Bahadurgarh, Patiala, on arriving at purported satisfaction thatthe appellant could win over aggrieved people as well as witnessesfrom giving evidence by threatening and other means, formaldepartmental proceeding need not be initiated. The said authorityfurther took into consideration report of preliminary enquiryconducted through Mr Gurbachan Singh, DSP/Adjutant, 4thCommando Battalion, Bahadurgarh, Patiala and, on that basisopined, “There seems no need of regular departmental enquiryagainst Tarsem Singh No. 4C/371”.

5.The appellant was dismissed from service. An appealthereagainst was preferred by the appellant. The appellate authorityheld:

“I have carefully examined the pleas of the representationalong with relevant record and find the same without anysubstance. Case FIR No. 228 dated 13-10-1997 underSections 377/34 IPC, Police Station Kotwali Barnala standsregistered against the appellant and his companions whichis under investigation and will be sent to the court forjudicial verdict in due course. The appellant is guilty ofgravest acts of misconduct proving complete unfitness forpolice service and the punishment awarded to him iscommensurate with the misconduct. I find no reasons to

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interfere with the orders already passed by the punishingauthority and the appeal is rejected.”

6.The appellant thereafter moved the Inspector General ofPolice, Commando Battalion, Bahadurgarh, Patiala, but he was notfavoured with any response thereto. The appellant thereafter filed awrit petition being Civil Writ Petition No. 14467 of 1999 in thePunjab and Haryana High Court. By an order dated 12-10-1999,the High Court directed the said authority to pass an appropriateorder and preferably speaking order within one month from theproduction of the certified copy thereof. Pursuant to or infurtherance of the said direction, the Inspector General of Police,upon hearing the appellant in person, passed an order dated 26-11-1999 dismissing the said representation stating that:

“From perusal of the record of the case, I am satisfied thatthe nature of the misconducts committed by the petitionerwhich are proved from the statements of various personsrecorded by Shri Gurbachan Singh DSP/Adjutant duringthe preliminary enquiry conducted by him under the ordersof the Commandant are of very grave and heinous natureand bring bad name to the police force of the State on thewhole, and there is every likelihood that none of the saidwitnesses may come forward to depose against thepetitioner in regular enquiry due to the fear of injury totheir lives. Thus, I am of the considered view that in viewof the abovesaid facts, it was not reasonably practical tohold regular enquiry before passing the dismissal order bythe Commandant and that the dismissal order dated 6-11-1997passedbytheCommandant,4thCommandoBattalion, Bahadurgarh, Patiala is perfectly in order and hasbeen passed on the basis of the record available on the fileand also by keeping in view that image of whole of thepolice force of the State shall be tarnished in regularenquiry and also that the witnesses may not come forwardto depose against the petitioner for fear of any injury ordanger to their lives. The said order has been correctlypassed under Exception (b) to second proviso to Article311(2) of the Constitution of India. Vide order dated 24-6-1998, the appellate authority has rightly dismissed theappeal. Hence, finding no force in the revision petition, Idismiss the same being without merit.”

The reasons adduced for dispensing with any disciplinary inquiryagainst Tarsem Singh before dismissing him from service are,therefore, clearly similar in flavour and, in fact, more detailed, than

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the reasons adduced in the order dated 8 April 2016, passed againstthe respondent in the present case. Nonetheless, when the disputetravelled upwards, the Supreme Court held that there was nolegitimate ground to dispense with the inquiry, reasoning thus:

“10.It is now well-settled principle of law that constitutionalright conferred upon delinquent cannot be dispensed with lightlyor arbitrarily or out of ulterior motive or merely in order to avoidthe holding of an enquiry. The learned counsel appearing on behalfof the appellant has taken us through certain documents for thepurpose of showing that ultimately the police on investigation didnot find any case against the appellant in respect of the purportedFIR lodged against him under Section 377 IPC. However, it maynot be necessary for us to go into the said question.

11.We have noticed hereinbefore that the formal enquiry wasdispensed with only on the ground that the appellant could winover aggrieved people as well as witnesses from giving evidence bythreatening and other means. No material has been placed ordisclosed either in the said order or before us to show thatsubjective satisfaction arrived at by the statutory authority wasbased upon objective criteria. The purported reason for dispensingwith the departmental proceedings is not supported by anydocument. It is further evident that the said order of dismissal waspassed, inter alia, on the ground that there was no need for aregular departmental enquiry relying on or on the basis of apreliminary enquiry. However, if preliminary enquiry could beconducted, we fail to see any reason as to why formaldepartmental enquiry could not have been initiated against theappellant. Reliance placed upon such preliminary enquirywithout complying with the minimal requirements of the principleof natural justice is against all canons of fair play and justice. Theappellate authority, as noticed hereinbefore, in its order dated 24-6-1998 jumped to the conclusion that he was guilty of grave acts ofmisconduct proving complete unfitness for police service and thepunishment awarded to him is commensurate with the misconductalthough no material therefor was available on record. It is furtherevident that the appellate authority also misdirected himself inpassing the said order insofar as he failed to take intoconsideration the relevant facts and based his decision onirrelevant factors.

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12.Even the Inspector General of Police in passing his orderdated 26-11-1999, despite having been asked by the High Court topass speaking order, did not assign sufficient or cogent reason.

He, like the appellate authority, also proceeded on the basis thatthe appellant was guilty of commission of offences which are graveand heinous in nature and bring bad name to the police force ofthe State on the whole. None of the authorities mentionedhereinbefore proceeded on the relevant material for the purpose ofarriving at the conclusion that in the facts and circumstances ofthe case sufficient cause existed for dispensing with the formalenquiry. This aspect of the matter has been considered by thisCourt in Jaswant Singh v. State of Punjab[10]wherein relying uponthe judgment of the Constitution Bench of this Court, inter alia,in Union of India v. Tulsiram Patel, it was held:

“Although Clause (3) of that article makes the decision ofthe disciplinary authority in this behalf final such finalitycan certainly be tested in court of law and interfered withif the action is found to be arbitrary or mala fide ormotivated by extraneous considerations or merely ruse todispense with the inquiry.”

13.In that case also like the present one, the attention of theCourt was not drawn to any material existing on the date ofpassing of the impugned order in support of the allegationscontained in the order dispensing with the departmental enquiry.

14.In view of the fact that no material had been placed by therespondents herein to satisfy the Court that it was necessary todispense with formal enquiry in terms of proviso (b) appended toClause (2) of Article 311 of the Constitution of India, we are of theopinion that the impugned orders cannot be sustained and they areset aside accordingly. The appellant is directed to be reinstated inservice. However, in view of our aforementioned findings, it wouldbe open to the respondents to initiate departmental enquiryagainst the appellant if they so desire. Payment of back wages shallabide by the result of such enquiry. Such an enquiry, if any, mustbe initiated as expeditiously as possible and not later than twomonths from the date of communication of this order.”

(Emphasis supplied)

The decision in Tarsem Singh, ex facie, covers the present case.

11.In UOI v Ram Bahadur Yadav[11], the allegation against the

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respondent Ram Bahadur Yadav[12]was that he had stolen non-judicialstamp papers worth over ₹ 1 crore, in collusion with others. The case arose under Rule 161 of the Railway Protection Force Rules, 1987which, like proviso (b) to Article 311 (2), allow dispensing with theholding of disciplinary inquiry where the competent authority is ofthe view that it is not reasonably practicable to do so. Significantly, inthat case, it was pointed out, by the Counsel for the State, before theSupreme Court, that Yadav had actually threatened witnesses whowere not willing to participate in the inquiry. Despite this, theSupreme Court held the decision to dispense with the disciplinaryinquiry to be unsustainable in law, reasoning thus:

“14.It is settled legal position that when Rules contemplatemethod and manner to adopt special procedure, it is mandatory onthe part of the authorities to exercise such power by adhering to theRule strictly. Dismissal of regular member of Force, is drasticmeasure. Rule 161, which prescribes dispensing with an inquiryand to pass order against member of Force, cannot be invoked ina routine and mechanical manner, unless there are compelling andvalid reasons. The dismissal order dated 22-10-1998 does notindicate any reason for dispensing with inquiry except stating thatthe respondent had colluded with the other Head Constable fortheft of non-judicial stamp papers. By merely repeating thelanguage of the Rule in the order of dismissal, will not make theorder valid one, unless valid and sufficient reasons are recorded todispense with the inquiry. When the Rule mandates recording ofreasons, the very order should disclose the reasons for dispensingwith the inquiry.

16.The respondent was only Head Constable during therelevant point of time and he was not in powerful position, so as tosay that he would have influenced or threatened the witnesses, hadthe inquiry been conducted. The very fact that they have conductedconfidential inquiry, falsifies the stand of the appellants that it wasnot reasonably practicable to hold an inquiry. The words “not

12 “Yadav”, hereinafter

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reasonably practicable” as used in the Rule, are to be understoodin manner that in given situation, ordinary and prudent manshould come to conclusion that in such circumstances, it is notpracticable. In the present case, there appears no valid reason todispense with inquiry and to invoke Rule 161 of the Rules. We arein agreement with the view taken by the High Court. In SahadeoSingh v. Union of India[13], this Court has held that in the facts andcircumstances of the said case, it was not reasonably practicable tohold fair inquiry, as such, it was held to be justifiable on the factsof the case. Whether it is practicable or not to hold an inquiry, is amatter to be considered with reference to the facts of each case andnature of charge, etc.

17. In the judgment in Tarsem Singh v. State of Punjab, this Courthas categorically held that when the Authority is of the opinionthat it is not reasonably practicable to hold inquiry, such findingshall be recorded on the subjective satisfaction by the authority,and same must be based on the objective criteria. In the aforesaidcase, it is further held that reasons for dispensing with the inquirymust be supported by material.”

(Emphasis supplied)

12.Significantly, following the decision in Tulsiram Patel, theDelhi Police itself issued Circulars dated 11 September 2007 and 18April 2018 which clearly set out the relevant circumstances whichhave to be borne in mind while invoking proviso (b) to Article 311 (2)of the Constitution. The learned Tribunal has, in para 8 of thejudgment under challenge, reproduced the relevant paragraphs fromthe said circulars and we deem it appropriate to do so likewise:

“8.Henceforth,ithasbeendecidedthatwheneveranyDisciplinary Authority intends to invoke Article 311 (2)(b) of theConstitution of India, he must keep in mind the judgment in thecase of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416. Only in caseswhere Disciplinary Authority is personally satisfied on the basis ofmaterial available on file that the case is of such nature that it isnot practicable to hold an enquiry in view of threat, inducement,intimidation, affiliation with Criminals etc. and keeping in view thespecific circumstances of the case it is not possible that PWs will

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depose against the defaulter and disciplinary authority has noOption but to resort to Article 311 (2) (b) should such an action betaken. Prior to such an order, PE has to be conducted and it is‘essential to bring on record all such facts. It has also been decidedthat before passing an order under. Article 311 (2) (b) of theConstitution, Disciplinary Authority has to take prior conclusion ofSpl. /Admn.”

13.Clearly, even as per the circular issued by the Delhi Police,before invoking proviso (b) to Article 311 (2) (b) of the Constitution,the DA has to be satisfied on the basis of the material available on thefile that the case was of such nature that “it is not practicable to holdan inquiry in view of threat, inducement, intimidation, affiliationwith criminals etc. and keeping in view the specific circumstances ofthe case it is not possible that PWs will deposit against thedefaulter…”. It is further ordained, in the said instructions, that, beforedispensing with the services of police official by invoking Article311 (2) (b) of the Constitution, preliminary inquiry has to beconducted and it is essential to bring on record all such facts. Theinstructions also require that before taking such decision, priorapproval of the Special Commissioner of Police has to be taken.Incidentally, one of the contentions of the respondent before thelearned Tribunal was that no such prior approval of the SpecialCommissioner had been obtained.

14.It is well settled that the Government is bound by the circularsissued by it.

15.Applying the principles contained in the decisions cited supra,and in the circulars issued by the Delhi Police, there is no ground

whatsoever for us to express an opinion in any way different from thatexpressed by the learned Tribunal in the impugned judgment. Theorder dated 8 April 2016, whereby the respondent’s services weredispensed with, does not contain single recital worth the name toindicate that it was not reasonably practicable to hold an inquiry. Allthat is said is that the offence of which the respondent was chargedwas dastardly act, which would destroy the faith of the people in lawenforcement system and amounted to serious misconduct andindiscipline, totally unbecoming of police officer. Apart from this,there is mere presumptive statement that “no witness will comeforward for any inquiry”. The basis for this assumption was notforthcoming before the learned Tribunal, and is not forthcomingbefore us.

16.If such reasoning is allowed, it would be permissible for therequirement of an inquiry to be dispensed with, and invoke proviso (b)to Article 311 (2) of the Constitution, in the case of every policeofficial who is charged with serious crime.

17.Ms. Laavanya Kaushik, learned Counsel for the petitioner,while striving at her best to defend the impugned order, emphasizedthe seriousness of the offence with which the respondent wasdischarged. The decisions cited supra make it clear that the gravity ofthe offence with which the officer is charged is extraneous to the issueof whether the holding of an inquiry was legitimately dispensed with.Besides, it has to be remembered that the respondent is still facingtrial. He has not been convicted. The petitioner is not trial court and

cannot presume that the respondent would ultimately be convicted. Itis for this reason, that the Supreme Court has advisably held that thegravity of the offence with which the respondent is charged is not arelevant consideration while examining whether circumstances existwhich justify dispensation with the requirement of holding formalinquiry.

18.It is also well settled, following Mohinder Singh Gill vElection Commissioner of India[14]that an order has to be sustained onthe basis of what is stated therein. It cannot be improved by way ofaffidavits in Court or arguments at the Bar. The order dated 8 April2016, whereby the respondent’s services were dispensed with has,therefore, to sink or swim on the basis of what is contained therein.The recitals in the said order, needless to say, do not satisfy therequisite indicia which could justify invocation of proviso (b) toArticle 311 (2) of the Constitution of India.

19.Incidentally, Mr. Sachin Chauhan, learned Counsel who appearson behalf of the respondent, also informs us that ultimately therespondent was acquitted in the criminal case.

20.We are in entire agreement with the reasoning of the learnedTribunal which is in accordance with law laid down by the SupremeCourt in the authorities already cited supra.

21.No cause for the interference with the impugned judgment is

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made out.

22.The petition is accordingly dismissed. No orders as to costs.

C. HARI SHANKAR, J.

OCTOBER 24, 2024/j

DR. SUDHIR KUMAR JAIN, J.

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