Union Of India And 3 Ors. vs Rajendra Kumar Mishra And Anr.
2018 Latest Caselaw 475 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 08.02.2018
 
Delivered on10.05.2018
 
Case :- WRIT - A No. - 885 of 2017
 

 
Petitioner :- Union Of India And 3 Ors.
 
Respondent :- Rajendra Kumar Mishra And Anr.
 
Counsel for Petitioner :- Rajnish Kumar Rai
 
Counsel for Respondent :- Bhagi Rathi Tiwari
 

 
With 
 

 
Case :- WRIT - A No. - 888 of 2017
 

 
Petitioner :- Union Of India And 3 Ors.
 
Respondent :- Anil Kumar Mishra And Anr.
 
Counsel for Petitioner :- Rajnish Kumar Rai
 
Counsel for Respondent :- Anurag Mishra,Saumya Mandhyan
 

 
With
 

 
Case :- WRIT - A No. - 67 of 2017
 

 
Petitioner :- Union Of India And 3 Ors.
 
Respondent :- Mehar Pratap Singh And Anr.
 
Counsel for Petitioner :- Satish Chaturvedi
 
Counsel for Respondent :- Anurag Mishra,Saumya Mandhyan
 

 
With 
 

 
Case :- WRIT - A No. - 63635 of 2015
 

 
Petitioner :- Union Of India And 3 Others
 
Respondent :- Sanjay Kumar And Another
 
Counsel for Petitioner :- Satish Chaturvedi
 
Counsel for Respondent :- Bhagi Rathi Tiwari,Adarsh Bhushan, Arpan Srivastava, S.C.
 

 
With
 

 
Case :- WRIT - A No. - 55726 of 2016
 
Petitioner :- Rajendra Kumar Mishra
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Bhagi Rathi Tiwari
 
Counsel for Respondent :- A.S.G.I., Purnendu Kumar Singh, Satish Chaturvedi
 
Hon'ble Pankaj Mithal,J.

Hon'ble Saral Srivastava,J.

(Delivered by Hon'ble Saral Srivastava, J.)

1. We have heard Sri Satish Chaturvedi, along with Sri Rajnish Kumar Rai, learned counsel for the petitioners and Sri Anil Bhushan, learned Senior Counsel, Sri Bhagi Rathi Tiwari, and Ms. Somya Madhyan, for the private contesting parties in all the five writ petitions and perused the record.

2. The Union of India has preferred four writ petitions out of five in this bunch of writ petitions assailing the judgment of the Tribunal whereby the Tribunal has quashed the dismissal order and appellate order against the respondent employees and remitted the matter back to the Disciplinary Authority to hold the enquiry afresh as per Rules by independent authority.

3. Rajendra Kumar Mishra (respondent in Writ Petition No. 885 of 2017) has preferred Writ-A No.- 55726 of 2016 praying for quashing of the judgment of the tribunal to the extent it directs the Disciplinary Authority to hold the enquiry afresh against him. The Challenge in the said writ petition is on the ground that during the pendency of the original application the petitioner namely Rajendra Kumar Mishra has retired and there is no provision under which the disciplinary proceedings can be continued after the retirement. Since, the fate of the writ petition preferred by Rajendra Kumar Mishra is dependent upon the fate of the four writ petitions preferred by the Union of India, therefore, we would first deal with the writ petitions preferred by Union of India.

4. Since, the common issue arises in all the writ petitions preferred by Union Of India, therefore, all the writ petitions have been heard together and are being decided by a common judgment.

5. The matter relates to the department of Accountant General, U.P., Allahabad.

6. The facts of the case as it manifest from the record is that on 24.02.2012, the authorities of the Accountant General office decided to make routine check for the purpose of checking of attendance of the employees. Being infuriated with checking of attendance, a mob of 150-200 employees of the office of the Accountant General (A & E) - I and II, U.P., Allahabad led by few employees assembled in the corridor of the ground floor of multi storied building in front of chamber of Sri Sachin Kapoor, Deputy Accountant General/Administration, office of the Accountant General (A & E) -II and gheraoed the chamber of Sri Sachin Kapoor. The mob shouted disrespectfully and raised slogans and indulged in using abusive language against Sri Sachin Kapoor. The mob rampantly indulged in vandalism and broke the windows, pulled out the curtains and set them on fire. The mob indulged in all kind of vandalism and threw the broken glasses, broom sticks, bottle of acid etc. with an intention to hurt Sri Sachin Kapoor and other persons present in the chamber. Three biometric machines installed at the ground floor of multi storied building were broken. There was complete chaos in the office. There was no discipline and subordination in the campus. This demonstration as per the record continued about 5 hours with a purpose to force the authorities to accede to the demands of the employees. Some of the officers were confined to the chambers.

7. The authorities found that four persons namely Rajendra Kumar Mishra, Sanjay Kumar, Anil Kumar Mishra and Mehar Pratap Singh were leading the mob. The competent authority passed an order of suspension against all the four employees on 25.02.2012. It further transpires from the record that the Disciplinary Authority came to the conclusion that it was not reasonably practicable to hold an enquiry and consequently exercising the power under Rule 19 (ii) of the Central Civil Services (Classification, Control and Appeal) Rules ,1965 [hereinafter referred as Rules,1965] read with clause (b) of second proviso to Article 311(2) of the Constitution of India dispensed with the enquiry against the aforesaid persons and passed order of dismissal on 07.03.2012 against all the four persons.

8. The dismissal order dated 07.03.2012 is identical in the case of all the four persons and, therefore, the dismissal order of one of the employees namely Rajendra Kumar Mishra is being reproduced herein-below:-

"Whereas Shri Rajendra Kumar Mishra, Sr. Accountant (under suspension), Personal Number D/713, in the office of the A.G. (A&E)-II, U.P., Allahabad on Friday the 24th February, 2012 at about 04.15 PM, led a group of about 150 to 200 employees in the corridor of old Multi-storied Building in front of the chamber of Dy. Accountant General (Admn.), Office of the A.G. (A&E)-II, U.P., Allahabad and in concert with those employees staged demonstrations, shouted disrespectful and provocative slogans against senior officers to protest checking of attendance. He also broke the bio-metric attendance machine installed in the corridor. He threatened the senior officers present in the chamber of Dy. Accountant General (Admn.), Office of A.G. (A & E)-II, U.P., Allahabad and abused them in very filthy language. Besides this he also led a group of about 300 employees and in concert with those employees staged demonstrations, shouted disrespectful and provocative slogans in front of the chamber of Accountant General (A&E)-I, U.P., Allahabad. Thereafter he participated in 'Bherao' and noisy demonstration in front of said chamber and illegally made the senior officers hostages in the chamber till 10.45 PM on that day.

And Whereas the absence from office was a chronic problem in respect of certain employees in the office of A.G. (A&E)-II, U.P., Allahabad who used to vanish after marking attendance in the Bio-metric system at the start of the day. However, the staff used to call their colleagues whenever inspections started and such people would come to office in 20-30 minutes, Allahabad being a small place. In such a situation the office was not able to take concrete action against the absent employees who used to slip away again. Thus attendance checks were proving to be ineffective and there was not even any salutary effect of attendance checks. Due to this situation a surprise check was undertaken in the afternoon of 24 Feb 2012, after which acts of vandalism, destruction of office property, intimidation etc. were resorted to.

And Whereas the undersigned, having the power to dismiss or remove the said Shri Rajendra Kumar Mishra from service, is fully satisfied that for the reasons which have been recorded in writing, it is not reasonably practicable to hold an inquiry in the manner provided in the Rule 14 of C.C.S. (C.C.A.) Rules, 1965.

And Whereas on the consideration of the relevant facts and circumstances of the case, it is considered that the conduct of the said Shri Rajendra Kumar Mishra is such as to warrant the imposition of the penalty of dismissal from service on him as he was clearly caught in the CCTV recordings of 24.2.2012 at 16:16 hrs. breaking one of the biometric machines in the office of the Accountant General (A&E)-II, Uttar Pradesh, Allahabad. The images of CCTV give a clear picture of said Shri Rajendra Kumar and he has been identified with reference to photographs contained in his service records. The destruction of office property is an act of vandalism resorted to by said Shri Rajendra Kumar Mishra and others, with the motive to intimidate the competent authority in the office to desist from enforcing attendance and discipline by surprise checks in future. Such acts needs to be dealt firmly in the interest of maintaining the sanctity and decorum of Government office. The office of the Accountant General (A&E)-II, Uttar Pradesh, Allahabad is a public office interacting with the public at large. Maintaining proper discipline in office is of paramount importance.

And Whereas such unlawful acts of resorting to vandalism, high handedness, intimidating tactics, gherao, demonstration, shouting slogans, illegal confinement of higher officers and destruction of office property with a motive of preventing the competent authority from discharging the official duty of enforcing attendance and discipline in the office, is unbecoming of a Government Servant contravening the provisions of Rule 3(1) (iii) and 7 (ii) of C.C.S. (Conduct), Rules, 1964.

Now, therefore, in exercise of the powers, conferred by Rule 19(ii) of the C.C.S. (C.C.A.) Rules, 1965 read with clause (b) of second proviso to Article 311(2) of the Constitution of India, the undersigned imposes upon the said Shri Rajendra Kumar Mishra, Sr. Accountant (under suspension), Personal Number D/713 the penalty of dismissal from service as provided in Rule 11(ix) of the aforesaid rules with immediate effect from the date of issue of this order."

9. Thereafter, all the four employees preferred the departmental appeal under Rule 27 of the Rules,1965 against the order dated 07.03.2012 before The appellate authority namely the Accountant General (A & E)- II, U.P., Allahabad vide order dated 27.11.2012 rejected the appeal of the employees.

10. The aforesaid four employees preferred separate Original Applications challenging the dismissal order and the order of the appellate authority dismissing the appeals. The Tribunal decided Original Application No. 1797 of 2012 preferred by Sanjay Kumar vide order dated 18.08.2015. The order of the Tribunal in Original Application No.1797 of 2012 was followed by the Tribunal in the cases of other employees. The Tribunal quashed the order of dismissal as well as order passed by appellate authority and further directed that the suspension of the employees shall be deemed to have continued in force from the date of original order of dismissal i.e. 07.03.2012 and shall remain in force until the competent authority takes a decision as per the provisions of Rule 10 of the Rules of 1965. The tribunal gave liberty to the disciplinary authority to initiate disciplinary proceedings against the employees as per rules preferably by an independent authority and further that grant of consequential benefit including pay and other allowances would depend upon the outcome of disciplinary proceedings, if initiated, against the employees.

11. The Tribunal allowed the original application mainly on three grounds; namely that since the Disciplinary Authority himself was an affected party and a witness in the episode, therefore, an element of prejudice and mala fide cannot be ruled out and hence, any impartial assessment by the Disciplinary Authority about the situation was doubtful. Secondly, the Tribunal was of the view that in the facts of the present case, the situation seems to have subsided and normalcy had been restored after some days and as such, the ground on which the Disciplinary Authority had come to the conclusion that it was not reasonably practicable to hold an enquiry was not sufficient to dispense with the enquiry. Third ground was that the reasons recorded by the Disciplinary Authority for dispensing with the enquiry was not incorporated in the order of dismissal and this fact, in the opinion of the Tribunal may not amount to any legal infirmity, but it would have been more appropriate if the reasons have been stated in the final order inasmuch as recording of reasons in the separate file had to precede prior to issuance of dismissal order.

12. In the aforesaid background, the petitioners have challenged the order of the Tribunal. Learned counsel for the petitioners made the following submissions in challenging the order of the Tribunal:-

(i) The Tribunal has erred in recording the finding that the Disciplinary Authority could not make any independent, fair and impartial assessment and further, the decision of the Disciplinary Authority smacks of element of prejudice and mala fide in dispensing with the enquiry against the employees while passing the dismissal order inasmuch as the Tribunal has failed to appreciate the circumstances in which the Disciplinary Authority had taken such a decision and further, in the facts of the present case, the doctrine of necessity which is an exception to the rule of bias comes into play.

(ii) It is evident from the record that the Disciplinary Authority had made subjective satisfaction of the situation and after assessing the situation had decided to dispense with the enquiry and invoke the provisions of Rule 19(ii) of Rules, 1965 read with Article 311(2) of the Constitution of India to pass an order of punishment. It is the exclusive domain of the Disciplinary Authority to decide in a given case as to whether it is not reasonably practicable to hold enquiry and once the decision has been taken on the basis of assessment of the facts situation prevailing on the ground, the courts have no role to test the validity of the ground unless the same have been demonstrated to be outcome of mala fide exercise of the power on the part of the authority.

(iii) Thirdly, the record reveals that the reasons to dispense with the enquiry has been recorded in a separate file prior to issue of dismissal order and dismissal order also recites about recording of reasons for dispensing with the enquiry and as such the finding of the Tribunal that it would have been more appropriate if the reasons had been stated briefly in the final order also is as these reasons must have been recorded in the file prior to issuance of dismissal order is perverse and against the record.

13. Thus, the contention of the petitioner is that none of the grounds contended by the respondents which found favour with the Tribunal in allowing the original application is sustainable in law. It is contended that in the present case all ingredients which call for exercise of power under Rule 19(ii) of the Rules, 1965 read with Art.311(2) of the Constitution of India are present, therefore, the Disciplinary Authority was justified in dispensing with the disciplinary enquiry in passing the punishment order.

14. Learned counsel for the petitioners in support of the aforesaid contention has relied upon the judgements of the Apex Court in Ved Mitter Gill Vs. Union Territory Administration, Chandigarh & Ors. AIR 2015 SC 1776, Satyavir Singh and others Vs. Union of India and others AIR 1986 SC 555 and Union of India and another Vs. Tulsiram Patel AIR 1985 SC 1416.

15. Learned counsel for the respondents have submitted that it is settled law that where the Disciplinary Authority is complainant and witness in a disciplinary proceeding he should not act as Disciplinary Authority inasmuch as, there would always be an element of bias and prejudice on the part of the Disciplinary Authority in taking a decision in such a disciplinary proceeding.

16. Learned counsel for the respondents have on the said issue relied upon judgments in the cases of Arjun Chaubey Vs. Union of India and others AIR 1984 SC 1356, State of U.P. Vs. Mohd. Nooh AIR 1958 SC 86 and S. Parthasarathi Vs. State of Andhra Pradesh AIR 1973 SC 2701.

17. It is also contended by the respondents that there is an office memorandum which provides that where the Disciplinary Authority is a complainant or witness in a disciplinary proceeding another officer should be specified as Disciplinary Authority by a speaking order by President under Rule 14 (2) of the Rules, 1965. It is contended that some other Disciplinary Authority should have been appointed to take a decision with regard to the aforesaid employees alleged to have participated in the protest.

18. It is also contended that there were 41 employees including the four respondents in the present bunch of petition against whom disciplinary proceedings were initiated, but the President vide order dated 18.06.2012 in case of other 37 employees had appointed other Disciplinary Authority and not one who was to be a witness in the disciplinary proceedings.

19. Learned counsel for the respondents has further submitted that the material on the basis of which disciplianry authority arrived at a conclusion to dispense with the enquiry was not sufficient to justify the dispensation of enquiry. The disciplinary authority has acted illegally and arbitrarily in dispensing with the enquiry against the aforesaid four employees whereas the authorities had decided to hold enquiry under Rule 14 of the Rules, 1965 against the said 37 employees who were also part of the said agitation.

20. It is further contended by the respondents that it is not a case where the protest had continued for a long time and the atmosphere had cooled down the very next day of the alleged incident and, therefore, the passing of punishment order after about 15 days from the date of the alleged incident under the pretext that it would not be reasonably practicable to hold enquiry is not sustainable. The respondents in support of said submission has relied upon the following judgments:-

(i) Union of India and another Vs. Tulsiram Patel AIR 1985 SC 1416 (ii) Rishal Singh Vs. State of Haryana and others 2014 (13) SCC 244 (iii) Surya Mani Sharma and others Vs. Union of India and others 2011 (14) SCC 280 (iv) Sudesh Kumar Vs. State of Haryana and others 2005 (11) SCC 525.

21. Learned counsel for the respondents have alleged that the order of punishment is not a non-speaking order inasmuch as the same does not contain the reasons recorded in the file by the Disciplinary Authority for dispensing with the disciplinary enquiry. As per the learned counsel for the respondents that the recording of reasons on the basis of which the appellate authority formed an opinion not to hold disciplinary enquiry must be incorporated in the impugned order to avoid any manipulation or fabrication with regard the reasons recorded in the separate file for invoking the power under Rule 19 (ii) of the Rules, 1965.

22. Learned counsel for the respondents submits that recording of reasons prior to passing the order of punishment is a condition precedent for invoking power under Rule 19(ii) of the Rules, 1965. In this regard, following decisions have been relied upon by the learned counsel for the petitioners:-

(i) Union of India and another Vs. Tulsiram Patel AIR 1985 SC 1416 (ii) Jaswant Singh Vs. State of Punjab and others AIR 1991 SC 385 (iii) Surya Mani Sharma and others Vs. Union of India and others 2011 (14) SCC 280.

23. We have heard learned counsel for the parties and perused the record.

24. Before dealing with the rival contention of the parties it would be appropriate to appreciate the judgments of the Apex Court laying down the conditions and parameters which has to exist in a case where the authorities decide to invoke power under Rule 19 (ii) of the Rules, 1965 for dispensing with the enquiry in passing the punishment order.

25. It would be useful to have a glance at Rule 19 (ii) of the Rules, 1965 and second proviso to Article 311 of the Constitution of India which are reproduced herein-below:-

"19. Special procedure in certain cases

Notwithstanding anything contained in Rule 14 to Rule 18--

(i) .....

(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, or

(iii) .....

311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-- (1) .....

[(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 in it 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) ....

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c)....".

26. The leading judgment of the Apex Court on the issue is Tulsi Ram Patel (supra) and paragraphs 128 to 137 of the said judgment have been referred to and relied upon by the learned counsel of both the parties. The relevant paragraphs of the aforesaid judgments shall be referred to at the appropriate place while dealing with the submission of the parties.

27. The Apex Court in the case of Ved Mitter Gill (supra) following the judgment of Tulsi Ram Patel (supra) has laid down three conditions which are mandatory for invoking Rule 19 (ii) of the Rules, 1965. Paragraph 15 of the judgment in case of Ved Mitter Gill (supra) is reproduced herein-below:

"15. Before delving into the pointed issues canvassed at the hands of the learned counsel representing appellant/petitioners, it is necessary for us to notice the parameters laid down by this Court for invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India. Insofar as the instant aspect of the matter is concerned, the norms stipulated by this Court for the above purpose, require the satisfaction of three ingredients. Firstly, that the conduct of the delinquent employee should be such as would justify one of the three punishments, namely, dismissal, removal or reduction in rank. Secondly, the satisfaction of the competent authority, that it is not reasonably practicable to hold an inquiry, as contemplated under Article 311(2) of the Constitution of India. And thirdly, the competent authority must record the reasons of the above satisfaction in writing."

28. In the instant case, we have to see as to whether the Disciplinary Authority had acted within the parameters laid down in paragraph 15 of the judgment in case of Ved Mitter Gill (supra) for invoking Rule 19(ii) of the Rules, 1965.

29. As per the said judgment, the first condition to invoke the power under Rule 19(ii) of the Rules, 1965 is that the conduct of delinquent employee should be such as would justify one of the three punishments namely dismissal, removal and reduction in rank.

30. As is manifest from the record of the case, it is admitted position that all the four employees were part of the agitation. The record further reveals that they were leading the agitation and as per the record the agitation had turned violent resulting in vandalism and hooliganism. The mob had indulged into breaking the ventilators, windows and had thrown the broken glasses, room sticks, bottles of acid etc. upon the officers. The officers had been locked in their chambers. The bio-metric machines installed in the building were damaged. The officers were abused with impunity. There was a complete failure of subordination amongst the employees. The facts in the present case reflect that the ground situation was such that the authorities in order to maintain the discipline had to take immediate action against those employees who had indulged in violent protest.

31. While assessing the conduct of the respondent employees, it would also be necessary to consider the fact as to whether the authorities were justified in conducting routine check which had led to agitation by the authorities. The authorities conducted a routine check in public interest in order to see as to whether the employees were present in the office during working hours and discharging their duties properly. The authorities were well within their right to conduct the routine attendance check to maintain discipline in the office in public interest for public good and as such the authorities can be faulted with for making the inspection. A duty is cast upon the authorities to ensure that the no employee should leave his chair without valid reason and without due intimation to his Superior Authority so that the efficiency of work in order to achieve the set target is maintained. Thus, there cannot be any valid reason for raising agitation by the employees against the checking of attendance by the authorities. Thus, the conduct of an employee who had led or participated in an agitation with an intention to prevent the authorities from making attendance checking of employee which is for public good and carried out with a view to maintain discipline and efficiency in the office amounts to a conduct of unbecoming of a Government Servant.

32. In this regard, it is useful to notice Rules 3 (iii) and 7 (ii) of the Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as the 'Rules, 1964'). Rule 3 (iii) of the Rules, 1964 provides that every Government Servant shall at all times, do nothing which is unbecoming of a Government Servant. Rule 7 (ii) of the Rules, 1964 puts a restriction upon a Government Servant not to resort to or in any way abet any form of strike or coercion or physical duress in connection with any matter pertaining to his service or the service of any other Government servant. Any Government servant is expected to abide by the Rules, 1964.

33. In the case in hand, as has been stated above, the conduct of the respondents employees in leading the agitation which was totally unwarranted and illegal with an intent to interfere in running of the administration can in no way be justified. Such kind of act by any Government servant amounts to an act of unbecoming of a Government servant, particularly, in view of the Rule 7 (ii) of the Rules, 1964 which completely prohibits the employee not to resort or in any way abet any form of strike. Thus, in the facts of the present case, it is clear that the conduct of the employees was such which amount to unbecoming of a Government servant and consequently, warrants major punishment in the form of one of three punishments namely dismissal, removal and reduction in rank. Thus, it is crystal clear from the record as stated above, that first condition for invoking Rule 19 (ii) of the Rules, 1965 is present in the instant case.

34. Now coming to the second condition as to whether the satisfaction of the competent authority that it would not be reasonably practicable to hold an enquiry was correct and based upon proper appreciation of facts on record. It would be useful to notice the submission of both the parties on the said issue and true facts. The details facts with regard to the occurrence of the incident had been detailed in the earlier part of the judgment, and in the light of those facts, a glance over the punishment order extracted above indicates the charges against the employees which compelled the authorities to dispense with the enquiry required immediate action.

35. The first paragraph of the punishment order recites about the conduct of the employees; the same is again reproduced in sub-paragraphs in order to appreciate the gravity of misconduct committed by theses employees:

(i) Whereas Shri Rajendra Kumar Mishra, Sr. Accountant (under suspension), Personal Number D/713, in the office of the A.G. (A&E)-II, U.P., Allahabad on Friday the 24th February, 2012 at about 04.15 PM, led a group of about 150 to 200 employees in the corridor of old Multi-storied Building in front of the chamber of Dy. Accountant General (Admn.), Office of the A.G. (A&E)-II, U.P., Allahabad and in concert with those employees staged demonstrations, shouted disrespectful and provocative slogans against senior officers to protest checking of attendance.

(ii) He also broke the bio-metric attendance machine installed in the corridor. He threatened the senior officers present in the chamber of Dy. Accountant General (Admn.), Office of A.G. (A & E)-II, U.P., Allahabad and abused them in very filthy language.

(iii) Besides this he also led a group of about 300 employees and in concert with those employees staged demonstrations, shouted disrespectful and provocative slogans in front of the chamber of Accountant General (A&E)-I, U.P., Allahabad. Thereafter he participated in 'Gherao' and noisy demonstration in front of said chamber and illegally made the senior officers hostages in the chamber till 10.45 PM on that day."

36. It is further case of the petitioner in the supplementary counter reply before the tribunal that the aforesaid employees continued to hold agitation and participated unauthorizedly w.e.f. 27.02.2012 in front of gate no.1 of the premise of office of the Accountant General (A & E)- I and office of Accountant General (A & E)-II, U.P., Allahabad. It is also stated that the aforesaid employees were part of a group consisting of a few other officials and outsiders who created a traffic Jam on 01.03.2013 in front of gate no. 1 during the office hours and indulged in activities of abusing and shouting slogans. It is also stated that though many of the staff members were eye witness to the incident of 24.02.2012 but they were not willing to give the evidence against all the four employees. Since the situation was worsening, the Disciplinary Authority recorded the reasons for dispensing with the enquiry and thereafter passed the order of punishment dated 07.03.2012.

37. In this regard, it would be useful to have a glance at the departmental appeal preferred by the employees and there is no averment in the departmental appeal disputing the facts recited in the punishment order. The main ground on which the dismissal order was challenged in the appeal was that in order to invoke Rule 19(ii) of the Rules, 1965, the reason for dispensing with the enquiry should be such that in the opinion of an a reasonable man it is not reasonably practicable to hold the enquiry after taking stock of the situation prevailing on the ground. The relevant portion of the ground of memo of appeal is reproduced herein-below:

"In this background I submit grounds in support of my appeal for revocation of the order of summary dismissal which are as under:-

1. That the provisions under Article 311(2) (b) provide for rarest of the occasions where penalty of dismissal without holding any enquiry has been made. Before resorting to this course, the competent disciplinary authority has to satisfy that a situation which is obtaining in the office premises is such that an enquiry might result in violence or the accused person (s) themselves are of such violent nature that they may terrorize the witnesses produced by prosecuting authority and/or tamper with evidence. This matter of action under Article 311(2) (b) had been adjudicated in the Supreme Court and it satisfied before any action under (b) of proviso (2) of Article 311 is taken against the government servant.

(i) There must exist a situation which makes the holding of an enquiry contemplated by Article 311(2) not reasonably practicable. What is required is that holding of 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 all cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be:

(a) Where a Civil Servant, through or together with his associate terrorizes, threatens or intimidates witnesses who are likely to give evidence against him with fear or reprisal in order to prevent them from doing so; or

(b) Where a Civil Servant by himself or with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that the officer is afraid to hold the inquiry on direct it to be held: or

(c) Where an atmosphere of violence or of general indiscipline and insubordination prevails at the time the attempt to hold the inquiry is made."

38. Paragraph No. 2 of the departmental appeal of employees reads as under:

''That at this stage I reserve my right to answer the allegation against me which can only be presented if an enquiry is held.'

39. The Apex Court in paragraph No.102 in Tulsi Ram Patel (Supra) judgment, while rejecting the argument of employees regarding violation of principal of natural justice has held that the employee can demonstrate in appeal that the charges made against him are not true. Paragraph No.102 of the judgment in the case of Tulsi Ram Patel (Supra) is extracted hereinbelow:

"102. In this connection, it must be remembered that a government servant is not wholly without any opportunity. Rules made under the proviso to Article 309 or under Acts referable to that Article generally provide for a right of appeal except in those cases where the order of dismissal, removal or reduction in rank is passed by the President or the Governor of a State because they being the highest Constitutional functionaries, there can be no higher authority to which an appeal can lie from an order passed by one of them. Thus, where the second proviso applies, though there is no prior opportunity to a government servant to defend himself against the charges made against him he has the opportunity to show in an appeal filed by him that the charges made against him are not true. This would be a sufficient compliance with the requirements of natural justice. In Maneka Gandhi's case (AIR 1978 SC 597) and in Liberty Oil Mills and others v. Union of India and others (1984) 3 SCC 465: (AIR 1984 SC 1271), the right to make a representation after an action was taken was held to be a sufficient remedy, and an appeal is a much wider and more effective remedy than a right of making a representation.

40. In the instant case, it is admitted that the findings or allegations in the punishment order have not been rebutted or disputed by the employees. It is also clear from the record that the presence of four employees on the spot was not disputed and they were identified by the officers on the spot. Thus, in the light of the aforesaid fact, we would examine as to whether the reasons recorded by the authority for holding that it is not reasonably practicable to hold an enquiry is justified or not.

41. The reasons recorded by the authorities for not holding the enquiry is reproduced herein-below:-

"a. He was clearly caught in the CCTV recordings of 24.2.2012 at 16:24 hrs. breaking one of the biometric machines in the office of the Accountant General (A&E)-II, Uttar Pradesh, Allahabad. The images of CCTV give a clear picture of said Shri Sanjay Kumar and he has been identified with reference to photographs contained in his service records.

b. Officers and staff of both the A&E offices are not ready to come forward to depose against him in view of his violent behaviour and general atmosphere of terror created.

c. Death threat given to Sri Kapoor, his family members, to Miss Saumya Parihar as well as to me as Deputy Accountant General (Admn.) and as Disciplinary Authority.

d. Despite the presence of three Group Officers his behaviour went unabated.

e. Continuous agitation by him with the help of some other employees and some outsiders.

f. Selective threatening to the officers and staff outside office premises with the help of other suspended officials and outsiders by creating a traffic jam and individually threatening eye witness during the traffic jam even when Section 144 was in force and police was present, the FIR dated 2.3.2012 is placed in the file."

42. The Apex Court in paragraph 130 in case of Union of India Vs. Tulsi Ram Patel (supra) has held that whether it was practicable to hold the enquiry or not must be judged in the context of whether it was reasonably practicable to do so. In the same paragraph, the Apex Court has given some illustrations wherein it would not be reasonably practicable to hold the enquiry. Paragraphs 130 and 137 of the aforesaid judgment are reproduced herein-below:-

"130. ...... Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to given evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause(3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail."

137. Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and the approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause (b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a court room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere."

43. In the case of Ved Mitter Gill (supra) the Apex Court upheld the decision of Disciplinary Authority for dispensing with the disciplinary enquiry wherein the charged employee had indulged in a conspiracy to help the prisoners charged with terrorists activities in escaping from jail by digging tunnel.

44. In the case of Satyavir Singh (supra), the Apex Court relied upon the observation in the case Tulsi Ram Patel (supra) that sometimes not taking prompt action may result in the trouble spreading and the situation worsening and at times becoming uncontrollable and may at times be construed by the trouble- makers and agitators as sign of weakness on the part of the authorities and to encourage them to step up the tempo of activities or agitation and thereafter upheld the decision of the Disciplinary Authority to dispense with the enquiry where the charged employees were engaged in a protest which continued for a long.

45. The fact situation on the spot, if analysed, in view of the detailed narration of chain of events in the counter affidavit that the agitation was continued even after the charged employees were suspended leaves no manner of doubt that in such a situation the opinion of a reasonable man taking a reasonable view of prevailing situation would be that holding an enquiry is not reasonably practicable. The facts of the present case are very much akin to illustrations referred in Paragraph No.130 of the judgment of Tulsi Ram Patel (supra) wherein the Apex Court held that in such a situation it is not reasonably practicable to hold an enquiry.

46. The Disciplinary Authority in detail has recorded reasons for dispensing with the enquiry after making assessment of the prevailing situation. In our considered opinion facts situation as emerges from the record indicates that the Disciplinary Authority was justified in dispensing with the enquiry and the decision of the Disciplinary Authority is in consonance with the parameters laid in paragraph 130 of the judgment of the Apex Court in Union of India Vs. Tulsi Ram Patel (supra).

47. Now coming to the judgments relied upon by the learned counsel for the respondents on the issue as to whether in the facts of the present case the Disciplinary Authority was justified in dispensing with the enquiry, we find that those judgments are not applicable in the facts of the present case.

48. So far as the judgment in the case of Rishal Singh (supra) relied upon by the respondent is concerned, in that case the enquiry was dispensed with Article 311(2) (b) of the Constitution of India as the charged officer was found involved in a corruption in a sting operation on a television channel. The Apex Court set aside the order of the Disciplinary Authority as it found that the reasons to dispense with the enquiry was not supported with the material. The said case does not come in aid to the respondents as facts of the said case are totally different from the facts of the present case.

49. Second judgment namely Surya Mani Sharma (supra) relied upon by the respondents is also of no help to the respondents inasmuch as in the said case the Apex Court set aside the order of the Disciplinary Authority on the ground that the Authorities could not place any material either by filing a counter affidavit or otherwise that any reason has been recorded to justify the action of not holding an appropriate enquiry.

50. The judgment of the Apex Court in Sudesh Kumar (supra) relied upon by the respondents does not help the respondents inasmuch as in the said case the Apex Court found that the reasons for dispensing with the disciplinary enquiry are not sufficient.

51. So far as the submission of the learned counsel for the respondents on the strength of the judgment in Union of India Vs. Tulsi Ram Patel (supra) that the Disciplinary Authority is not expected to dispense with the disciplinary enquiry with an ulterior motive inasmuch in the case in hand it is evident from the record that the Disciplinary Authority exercised the power with ulterior motive, therefore, the reasons recorded by the Authorities are not sustainable. The said contention of the respondents is unfounded and without any basis inasmuch as the respondents could not point out from the material on record that the Disciplinary Authority was prejudiced or had any grudge or ill motive against the employees. Thus, for the reasons given above, we find that the second condition that the reasons recorded by the Authorities that it is not reasonably practicable to hold the enquiry is justified and based on subjective satisfaction of the appreciation of the material on record in the facts of the present case.

52. Now coming to the third condition that the competent authority must record the reasons for the satisfaction in writing, it is clear from the record that the Disciplinary Authority has recorded the reasons extracted herein-above with regard to the satisfaction that it is not reasonably practicable to hold the enquiry. The Disciplinary Authority in the punishment order extracted herein-above has stated that he (Disciplinary Authority) is fully satisfied that for the reasons which have been recorded in writing it is not reasonably practicable to hold the enquiry in the manner provided in Rule 14 of the Rules, 1965. Thus, it is manifest from the record that the Disciplinary Authority before proceeding to invoke the power under Rule 19(ii) of the Rules, 1965 recorded the reasons and, therefore, the necessary condition is also fulfilled for invoking the power under Rule 19 of the Rules, 1965.

53. The requirement of law as held by the Apex Court in Tulsi Ram Patel (supra) is that the reasons are required to be recorded by the Disciplinary Authority before passing the punishment order. It is not necessary that the reasons should be incorporated in the punishment order. The purpose of recording the reasons prior to passing of punishment order is that the Disciplinary Authority should not manipulate the reasons or should not be a process of afterthought for manipulating reason to justify the dismissal order. Paragraphs 133, 134 and relevant part of paragraph 135 of the judgment in Union of India Vs. Tulsi Ram Patel (supra) are reproduced herein-below:

"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 proceed the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particular, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.

135. ......It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned government servant to enable him to challenge the validity of that reasons in a departmental appeal or before a court of law and the failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc."

54. It is no doubt true that though in order to invoke the power under Rule 19(ii) of the Rules, 1965, it is not necessary that the reasons must be stated in the punishment order that it is not reasonably practicable to hold the enquiry, but it is the mandatory on the part of disciplinary authority that he should record reasons first as to why it is not reasonably practicable to hold the enquiry and thereafter he may proceed to pass an order of punishment order.

55. The contention of the respondents that as the punishment order does not contain the reasons recorded by the Disciplinary Authority as to why it is not reasonably practicable to hold enquiry therefore the dismissal order is misconceived and against the record for the reasons that the respondents did not bring any material on record to indicate that the Disciplinary Authority has recorded the reasons for dispensing with the enquiry after passing of the punishment order. Further as stated above, the punishment order itself recites that the reasons have been recorded which is manifest from the underlined portion of the punishment order extracted above. Thus for invoking the power under Rule 19(ii) of the Rules, 1965, the third condition namely recording of reasons for dispensing with the enquiry must precede the passing of punishment order is also present in the instant case.

56. Now coming to the issue of element of bias on the part of the Disciplinary Authority in taking action against the respondents, we have to analyze the said contention on the basis of the facts in the present case. So far as the judgments of the Apex Court relied upon by the learned counsel for the respondents namely Arjun Chaubey (supra) and S. Parthasarathi (supra), it is clear from the said judgment that where the Disciplinary Authority is either a complainant or one of the witness in the disciplinary proceedings, he should not act as a Disciplinary Authority.

57. But the Apex Court in paragraph 12 of the judgment in M/s. J. Mohapatra & Co. and another Vs. State of Orissa and another AIR 1984 SC 1572 has laid down an exception to the aforesaid principles of bias. Paragraph 12 of the said judgment is reproduced herein-below:

"12. There is, however, an exception to the above rule that no men shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. Thus, in The Judges v. Attorney-General for Saskatchewan,(1) the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were bound to act exnecessitate. The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters. The High Court, however, wrongly applied this doctrine to the author-members of the Assessment Sub-Committee. It is true, the members of this Sub-Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director, Higher Education, etc. There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such non-official author-members from resigning from the committee on the ground of their interest in the matter."

58. The Apex Court also in paragraph 101 in the case of Tulsi Ram Patel (supra) following the judgment in M/s. J. Mohapatra Co. (supra) has held that the principles of natural justice can be excluded in exceptional cases.

59. The contention of the respondents that the Disciplinary Authority should not have exercised the power and some other Authority should have acted as Disciplinary Authority is misconceived and is without substance. Considering the fact that in a given situation the Apex Court has recognized that the rule of natural justice can be excluded. Now the issue of bias as contended by the learned counsel for the respondents can be analyzed from the facts situation of the present case. It is not in dispute that all the employees were present on the spot. Further, it was not in dispute that the Disciplinary Authority and other officers were abused by the mob and there was complete insubordination and indiscipline amongst the staff which needed urgent action in order to control the situation and, therefore, in the facts of the present case on the touchstone of the principle of doctrine of necessity as held by the Apex Court in M/s. J. Mohapatra Co. (supra), the action of the Disciplinary Authority is justified and the principles of bias is not attracted in the case in hand.

60. Now coming to the last contention of the respondents that 37 employees were charged out of 41 employees, the Disciplinary Authority had dispensed with the enquiry only against 4 employees and this action of the Disciplinary Authority is arbitrary, illegal and in violation of Article 14 of the Constitution of India. The said contention is also misconceived in the light of paragraph 17 of the judgment of the Apex Court in Satyavir Singh (supra) which is extracted herein-below:

"17. The next point which was urged was that while eight employees were dismissed for their part in the agitation which took place in Delhi, in respect of the agitation which took place in the Lucknow office of the RAW only two employees of that office were dismissed and, therefore, there was no application of mind on the part of the disciplinary authority. It is very difficult to understand this argument. We do now how what precisely the situation at Lucknow was and how many employees were actively engaged in leading the agitation, and the fact that it was thought fit to dismiss only two employees of the Lucknow Office cannot lead to the conclusion that the Appellants were wrongly dismissed without any application of mind."

61. It is only the authorities present on the spot who could assess as to who are the persons actively engaged in the agitation against whom immediate action is required to be taken to control the situation. We do not find anything from the record nor could the respondents point out from the record that the authorities have acted with some prejudiced mind or with ulterior motive to invoke power under Rule 19(ii) of Rules of 1965 against the respondent employees. Thus, the submission of the respondent that they have been discriminated is misconceived and rejected.

62. We have held that all the conditions which are mandatory for invoking power under Rule 19 of the Rules, 1965 are present in the present case, therefore, the order of the Disciplinary Authority confirmed in appeal are in accordance with law and the Tribunal has erred in quashing the said orders. Consequently, we set aside the order dated 03.10.2016 passed by the Tribunal impugned in all the four writ petitions of Union of India. The writ petitions preferred by the Union of India are allowed.

63. Now coming to the Writ-A No. 55726 of 2016 (Rajendra Kumar Mishra Vs. Union of India and 4 others), the petitioner has prayed the following reliefs:

"(i) Issue a writ, order or direction in the nature of certiorari partly quashing the impugned orders dated 03.10.2016 passed by the respondent No.5 (CAT, Allahabad) (Annex. No.1) relating to relief claim in O.A. No.1775 of 2012 and quashing the orders in respect of deemed suspension to be passed, payment of back wages including suspension and dismissal period, subject to outcome of disciplinary proceedings to be held by independent authority, in the case of the petitioner.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents for release of all consequential benefits,with further directions for immediate payment of all back wages and to pay retirement benefits after 31.07.2013 with the quashing of dismissal orders dated 07.03.2012 by Hon'ble Tribunal to be paid within one month.

(iii) Issue any other and further order, which this Hon'ble court may deem fit and proper in the facts and circumstances of the case.

(iv) Award the cost incurred before the Tribunal and made in the instant writ petition."

64. Since we have set aside the order of the Tribunal dated 03.10.2016, therefore, the reliefs claimed in the aforesaid writ petitions cannot be granted. Consequently, Writ-A No.55726 of 2016 (Rajendra Kumar Mishra Vs. Union of India and 4 others) is dismissed.

65. Thus, for the reasons stated above, all the four writ petitions preferred by Union of India are allowed and the Writ-A No. 55726 of 2016 (Rajendra Kumar Mishra Vs. Union of India and 4 others) is hereby dismissed. There shall be no order as to costs.

Order Date :-10.05.2018

S.Sharma