Manojit Ghosh vs Union Of India & Ors.
2012 Latest Caselaw 960 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     WP(C) No.885/2012 & CM No.1960/2012

%                          Date of Decision: 13.02.2012

Manojit Ghosh                                                .... Petitioner

                        Through   Mr.M.K.Singh, Advocate

                                   versus

Union of India & Ors.                                      .... Respondents

                        Through Mr.Ravinder Aggarwal,      Central     Govt.
                                Standing Counsel


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

CM No.1960/2012

Allowed subject to all just exceptions.

WP(C) No.885/2012

1. The petitioner has sought directions to cancel, withdraw or

rescind the order of his dismissal from service dated 24th March, 2008

passed by the Senior Commandant, CISF 5th Res.Bn. Ghaziabad, UP

and the order dated 25th July, 2009 passed by the Appellate Authority,

Dy.Inspector General/NZ, CISF Campus, NZ Headquarters, Saket, New

Delhi and the order dated 29th June, 2010 passed by the confirming

authority. The petitioner has also sought directions to the respondents

to transfer the entire record and documents pertaining to his case and

has also sought his reinstatement with benefits including arrears of pay

and allowance.

2. The brief facts to comprehend the controversies are that the

petitioner was appointed as a Constable under the Central Industrial

Security Force (CISF) on 2nd August, 1999 after being selected on duly

following the selection process, comprising of written test, physical test

and interview respectively. After selection, the petitioner had reported to

the Recruitment Training Centre, CISF at Bhilai in the State of Madhya

Pradesh for training and after training, he was posted to the office of

Commandant, CISF, 6th RB (A) at Vellore in the State of Tamil Nadu.

Later on, the petitioner was deputed to the CISF Unit at Bangalore

Airport.

3. The petitioner was also deputed to undergo commando training;

training in correct use of Arms; Maintenance and various functions and

Q.R.T. training, which were completed by him successfully and

thereafter, the petitioner was posted in the Airport Security Unit at

Vizaq in Andhra Pradesh. The petitioner had also undergone three

months of "VIP Security Course" and was thereafter selected for three

months of Commando Training at Barwah in Madhya Pradesh.

4. The petitioner contended that on the basis of his performances

during the commando training, he was enlisted as a member of a group

of 42 personnel for the purpose of being posted to the Indian Missions

Abroad. After being posted on temporary duty at the office of DIG, CISF,

Government Building Security, Jamnagar House, New Delhi, he was

directed to join the post of security personnel at the Embassy of India at

Kathmandu in Nepal for a period of two years. The petitioner had

arrived at Kathmandu on 6th November, 2005 pursuant to his order of

posting dated 20th October, 2005 and had assumed the charge of the

post of Security Guard (SG) at the Embassy of India at Kathmandu in

Nepal.

5. It was alleged that on 29th February, 2008, at about 2230 hours,

the petitioner had gone to the Hotel Radisson, Kathmandu and forcibly

entered into room No.118 by impersonating himself as a security guard

of the hotel. The room was occupied by Ms. Hande Apaydin (Turkish

national). The petitioner un-authorizedly entered the room and

thereafter outraged the modesty of Ms. Hande Apaydin by touching her

body parts with his hands despite strong protest by her. The petitioner

was nabbed by the hotel staff and handed over to Durbar Marg Police

Station where he was detained from 0000 hours to 1930 hours on 1st

March, 2008.

6. Since the misconduct of the petitioner was clearly established, as

a measure of damage control and with a view to save the country from

ensuing embarrassment, the officials of the Embassy of India at

Kathmandu persuaded Ms. Hande Apaydin, not to file a criminal case

against the petitioner on the basis of the assurance that action would

be taken against the petitioner and consequently, a compromise note

was also signed by Ms. Hande Apaydin. During the preliminary

investigation conducted against the petitioner, it was found that the

evidence on record clearly established the guilt on the part of the

petitioner and in the circumstances it was alleged that the misconduct

of the petitioner had not only tarnished the image of CISF and the

Indian Embassy in Kathmandu but also the country as a whole. The

petitioner was thereafter repatriated and was directed to report to the

CISF 5th Res./BN Ghaziabad for the disciplinary proceedings by order

dated 2nd march, 2008.

7. The respondents on taking into consideration that the incident

had taken place at Kathmandu, Nepal and that Ms. Hande Apaydin

(Turkish national), the victim and the complainant and the other

relevant witnesses i.e. hotel employees, members of the Kathmandu

police were not likely to come to India to tender their evidence in case

of conducting a departmental inquiry; that there was the possibility of

the petitioner terrorizing the witnesses if they came to India; that it

would be an irritant and reminder of unpleasant incident to the victim

and the other staff of the CISF and Indian Embassy; that there was

ample evidence adduced during the preliminary enquiry which

established the misconduct alleged against the petitioner; that the trial

would attract worldwide media attention and that the regular inquiry

would have had far reaching implications on the general discipline of

the force, therefore, it was held that it would not be reasonably

practicable to hold a regular departmental inquiry under Rule 36 of the

CISF Rules, 2001. The respondents, therefore, dispensed with holding

the regular inquiry by invoking the provisions of Rule 32(i) read with

Rule 34 and Rule 39 (ii) of the CISF Rules, 2001 and awarded the

penalty of dismissal from service by order dated 24th March, 2008.

8. Against the order of the dismissal dated 24th March, 2008, the

petitioner filed an appeal before the Appellate Authority. The Appellate

Authority considered the pleas and contentions put forward by the

appellant and upheld the penalty of dismissal from service imposed by

the Disciplinary Authority and consequently dismissed the appeal by

order dated 25th July, 2008.

9. The petitioner challenged the order of dismissal and the order

passed by the Appellate Authority by filing the Writ Petition being W.P.

(C) No.28800 (W) of 2008 before the High Court of Calcutta which was

not entertained on the ground that the High Court did not have the

jurisdiction by order dated 18th March, 2009. Thereafter, the petitioner

filed another writ petition before the Delhi High Court being WP(C)

No.1054/2010. Since the petitioner had not exhausted the already

existing alternate remedy of filing a Revision Petition under Rule 54 of

the CISF Rules, 2001, the petitioner was allowed to withdraw his writ

petition by order dated 19th February, 2010 with liberty to file a

Revision Petition against his order of dismissal and the dismissal of his

appeal by the Appellate Authority.

10. The petitioner, thereafter filed a revision petition dated 6th April,

2010. The revision petition was also dismissed by the Revisional

Authority by order dated 29th June, 2010. The Revisional Authority

while dismissing the revision petition held that the Disciplinary

Authority had enough and justified reasons warranting dispensing with

the regular departmental inquiry and that there was no valid reason to

proceed with the disciplinary inquiry against the petitioner at

Kathmandu itself. The plea of the petitioner that the officials had

unduly avoided the course of inquiry, on imaginary and fictitious

assumptions was also rejected by the Revisional Authority. While

dismissing the revision petition, the Revisional Authority noted as

under:-

"The plea of the petitioner is not acceptable. The statement of Sh.Surender Kumar Kapoor (AP&WO, BOS), Sh.Rajesh Chouhan (AP&WO), Ms.Hande Apaydin (Resident of Istanbul, Turkey), Statement of compromise note and signed between the parties at the Police Station and the statement given by the petitioner to the police clelarly shows that the petitioner was picked up by Nepal Police

from Hotel, Radisson for forcefully entering in the room No.118 of Hotel Radisson and outraging the modesty of Ms.Hande Apaydin. The petitioner was also given an opportunity to examine Ms. Hande Apaydin (Complainant) but he did not do so which is also very strange on the part of the petitioner of not examining the accuser, when he was occupy report furnished by the Hotel Authorities, after the incident the lady in question had checked out the Hotel on 2.3.2008. the Disciplinary authority after taking account the entire circumstances of the case found that if a regular inquiry is ordered the witnesses would not come to India for deposing their statements. It would be an irritant and reminder of unpleasant incident to the victim and the other staff of CISF and India Embassy, who were associated with the happening. As several countries are involved the trial would attract worldwide media attention and thus damage the reputation of the country and the general inquiry will have far reaching implications on the general discipline of the force. These unwarranted circumstances and prevailing situation was fair and just on the part of the Disciplinary Authority to conclude that it is not reasonably practicable to hold the inquiry but to take action by involving the provisions of rule 3( (ii) of CISF Rules, 2001. The petitioner himself has invited the nemesis, the petitioner is in."

11. The Revisional Authority also repelled the contention of the

petitioner that he had every reason to presume that there may have

been some other person who had committed the crime and that he was

falsely implicated to bear the brunt of the unfortunate incident and that

he has been dismissed from the service arbitrarily by taking shelter

under the provisions which exempt due inquiry in certain cases.

12. The Revisional Authority had noted that from the record, it is

evident that on 29th February, 2008 at about 2015 hours the petitioner

was on deputation with the Indian Mission, stationed abroad at

Kathmandu (Birganj, Nepal). He had gone out of the Embassy premises

for the purchase of a recharge coupon for his cell phone after taking

permission for about 5-10 minutes from Sh. Sardar Singh Badsera, AP

& WO/CISF (Sub Inspector/Exe.). However, he did not return to the

Embassy within the permitted period. Instead, he proceeded to the

Hotel Radisson, Kathmandu and forcibly entered into room No.118 at

about 2030 hours where Ms.Hande Apaydin (Turkish national) was

staying by impersonating himself as a security guard of the hotel. He

carried out an illegal search of the room and thereafter outraged the

modesty of Ms. Hande Apaydin by touching her body parts with his

hands despite strong protest by her. Ms. Hande Apaydin alerted the

hotel staff who came to the room and nabbed the petitioner and handed

him over to the Durbar Marg Police Station where the petitioner was

detained from 0000 hours to 1930 hours on 1st March, 2008. On

account of the diplomatic implications involved and sensitivity of the

case, the officials of the Indian Embassy had persuaded Ms. Hande

Apaydin not to file a criminal case and instead settle the matter by

signing a compromise note which was also signed by the petitioner.

Thereafter, the preliminary inquiry showed that the allegations against

the petitioner were made out. The Revisional Authority after considering

the pleas of the petitioner had held as under:-

"After due deliberation and objective assessment of evidence on record, I agree with the reason assigned by the Disciplinary Authority and upheld by the Appellate Authority for dispensing with inquiry and to invoke the provision of rule 39(ii) of CISF Rule, 2001. Both the authorities have considered and taken into account all the

aspects such as gravity of allegation, requirement of disciplined organisation and latent behaviour of the petitioner before coming to logical conclusion and in deciding the quantum of penalty and had a very reasonable and rational approach and did not leave any slot for intervention at this stage. There has been no miscarriage of justice. Any leniency to such a character in an Armed Force of the Union will be prejudicial and detrimental to force discipline. The petitioner has also not brought out any extenuating or mitigating facts and circumstances to dwell upon or to warrant different nuance."

13. The petitioner has challenged his order of dismissal from service,

the dismissal of his appeal and the dismissal of his revision petition on

the ground that the orders are illegal, unjustified and unsustainable.

The petitioner has alleged that he is a victim of circumstances based on

imaginary, false and fictitious allegations. The petitioner has further

contended that he was served with the order of suspension dated 3rd

March, 2008 at about 2200 hours, while he was undertaking a journey

on repatriation from the Indian Embassy at Kathmandu to New Delhi.

14. The petitioner has challenged the dispensing of the regular

inquiry on the ground that the respondents did not discharge with the

minimum obligation of ascertaining as to whether there had been even

the slightest possible legal material on record to conclude that the

departmental inquiry was not reasonably practicable. It is asserted by

the petitioner that there is nothing on the record to justify that the

summons and notices required to be served on the witnesses or the

complainant had been issued for requiring their appearance and that

their presence could not be secured inspite of the notices or summons.

According to the petitioner, the ground taken by the Disciplinary

Authority that the petitioner could have terrorized the witnesses and

complainant, if they had come to the India in case of any departmental

proceedings being initiated against the petitioner is based on surmises

and conjectures and cannot be a valid ground for dispensing with the

inquiry. The petitioner has alleged that the gravity of allegations made

against the petitioner cannot be the deciding the factor to dispense with

departmental inquiry. The petitioner also relied on (1985) 4 SCC 252,

Satya Vir Singh & Ors. v. Union of India & Ors. wherein it was held that

the disciplinary inquiry should not be lightly dispensed with on ipse

dixit of the Disciplinary Authority and that it should be done only when

it is not reasonably practicable to proceed with it. Reliance was also

placed on Chief Security Officer & Ors. v. Singasan Rabi Das, (1991)

SCC (L&S) 415 wherein it was held that the reason, that it is considered

not feasible or desirable to procure witnesses since they may become

ineffective in future is not a sufficient and good ground for dispensing

with the inquiry. The petitioner contended that since the complainant

withdrew the complaint by signing a compromise note this in itself is

sufficient evidence indicating the fact that no serious misconduct had

been committed by the petitioner and consequently, the Disciplinary

Authority had no ground to proceed against the petitioner without

considering the compromise note which in effect exonerates the

petitioner from any alleged misconduct. The petitioner has also

challenged his dismissal on the ground that there were no eye witnesses

to the incident and that the compromise was not prepared by the Senior

Officer who had asked the petitioner to sign the same at the police

station and inspite of this the petitioner had signed the same in good

faith without going through it, purely on account of necessity and under

duress.

15. Learned Central Govt. Standing Counsel, Mr.Ravinder Aggarwal,

who has appeared on advance notice has contended that it is apparent

that the petitioner has not denied that he had signed a compromise

note and in the circumstances, the plea of the petitioner that he had

been falsely implicated on some imaginary incident cannot be

sustained. The learned counsel has vehemently contended that the

inquiry had been dispensed with on the satisfaction arrived at by the

competent authority and that in any case the evidence on record before

the competent authority shows the guilt of the petitioner. He has

contended that the judicial review of the order dispensing with inquiry

is of the decision making process and not of the decision in itself and

has relied on A.K.Kaul v. Union of India, (1995) 4 SCC 73 and Union of

India & Ors. v. Balbir Singh & Ors. (1975) 5 SCC 216. Learned counsel

has also contended that the departmental inquiry has not been

dispensed with arbitrarily or illegally but is based on cogent reasons,

nor has the departmental inquiry been dispensed with on account of

any ulterior motive or merely in order to avoid the holding of any

inquiry, in the facts and circumstances of the case.

16. This Court has heard the learned counsel for the parties in detail.

As contended by the learned counsel for the respondents, it is not

denied by the petitioner that he had signed a compromise notice on the

fateful day that the alleged incident had taken place. In the

circumstances, it cannot be accepted that the petitioner has been

falsely implicated on account of some imaginary incident which had not

taken place. Though it had been contended specifically on behalf of the

respondents that the petitioner was at the Durbar Police Station at

Kathmandu from 0000 hours to 1930 hours at 1st March, 2008, this

fact has not been denied by the petitioner. No ulterior motive has been

imputed against the respondents to have falsely implicated the

petitioner. In the facts and circumstances, it is apparent that the

alleged incident had taken place. The plea on behalf of the petitioner

that since the compromise note was signed by the complainant and the

petitioner, it reflects that no serious misconduct was committed by the

petitioner and that the complainant had in effect withdrew her

complaint, rather inculpates the petitioner and, therefore, the plea that

such an incident had not taken place or that he had been implicated in

an imaginary incident, as contended by the petitioner deserves to be

repelled. Even if the same has to be accepted, the next question is

whether this Court can go into the justification given by the authorities

while dispensing with the regular inquiry. The reasons given by the

respondents to dispense with the inquiry are that the incident had

taken place at Kathmandu and the complainant was a Turkish national

and the relevant witnesses were the Hotel employees of Radisson Hotel,

at Kathmandu and the police authorities at Nepal and that

consequently they were not likely to come to India to tender their

evidence in case a regular departmental inquiry is conducted and that

there is a possibility of the petitioner creating unpleasant situation by

causing impediment in the smooth functioning of the inquiry; that it

would be an irritant and reminder of the unpleasant incident to the

victim and the other staff members of the CISF and Indian Embassy;

and that the trial would attract worldwide media attention which would

in turn have far reaching implications on the general discipline of the

force cannot be termed to be such reasons which were lightly

considered or were arbitrary while dispensing with the regular

departmental inquiry.

17. On the basis of the said reasons the Disciplinary Authority had

decided to dispense with the enquiry by invoking the power prescribed

under Rule 39(ii) of the CISF Rules, 2001.

Rule 39 of the CISF Rules 2001 is as under:

"39. Special procedure in certain cases - Notwithstanding anything contained in Rules 36 to 38

(i) where any penalty is imposed on an enrolled member of the Force on the ground of conduct which has led to his conviction on a criminal charge; or

(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) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit."

18. The above mentioned Rule is analogous to the provision of Article

311(2) of the Constitution of India. As per Article 311(2) (b) of the

Constitution also the penalty of dismissal, removal or reduction in rank

can be imposed on a delinquent without an enquiry, when the authority

that is empowered to do so, is satisfied that for some reasons, as

recorded by the authority in writing, it is not reasonably practicable to

hold such an enquiry. A perusal of the said provision would be relevant

to consider its import and meaning and to consider the validity of the

respondent‟s actions.

19. Article 311 of the Constitution contemplates certain safeguards

upon persons employed in civil capacities under the Union of India or a

State. The first safeguard which is prescribed under Clause (1) of

Article 311 is that such person cannot be dismissed or removed by an

authority subordinate to that by which he was appointed. The second

safeguard as given under Clause (2) of Article 311 is that he cannot be

dismissed, 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.

20. The second safeguard is, however, not available to an employee

absolutely when he is dismissed, removed or reduced in rank in any of

the three eventualities as mentioned in the second proviso to

Article 311(2). These three eventualities are set out in Clauses (a) to (c)

of the second proviso. Under Clause (a), such person can be dismissed,

removed or reduced in rank without any inquiry on the ground of

conduct which has led to his conviction on a criminal charge. Under

Clause (b), any of these three penalties can be imposed upon him where

the authority empowered to impose any of these penalties is satisfied

that for some reasons, to be recorded by that authority in writing, it is

not reasonably practicable to hold such inquiry. Under Clause (c), any

of the above penalties can be imposed upon him where the President or

the Governor of a state, as the case may be, is satisfied that in the

interest of the security of the State, it is not expedient to hold such an

inquiry.

21. Thus clearly the only obligation that needs to be complied with

while dispensing with the enquiry is that the Disciplinary Authority is

required to record valid reasons in writing for doing so. In the present

matter as discussed above the Disciplinary Authority had cited various

reasons on the basis of which he deemed it fit to dispense with the

enquiry. However, as per the petitioner these reasons are neither valid

nor sufficient to justify the Disciplinary Authority‟s decision of

dispensing with the enquiry.

22. Thus it is imperative to consider the scope of judicial review about

the reasons given by the Disciplinary authority while dispensing with

the enquiry. The Apex Court has analyzed this aspect in a catena of

cases of some of which are as follows:

23. In Union of India and Anr. v. Tulsiram Patel AIR 1985 SC 1416

the scope of judicial review has been considered at length. In para 138,

of the said judgment it has been held that in order to decide whether

the reasons are germane to Clause (b) of Article 311(2), the Court must

put itself in the place of disciplinary authority and consider what in the

then prevailing situation a reasonable man acting in a reasonable way

would have done. The relevant para is as follows:

"138. 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."

24. Similarly in Union of India and Anr. v. Balbir Singh and Anr.

1998(5) SCC 216, the Supreme Court considered the scope of judicial

review of the order of the Competent Authority to terminate the services

of an employee without holding an inquiry. After placing reliance on its

earlier judgments in A.K. Kaul and Anr. v. Union of India and Anr.

MANU/SC/0267/1995; and S.R. Bommai and Anr. v. Union of India

and Anr. MANU/SC/0444/1994, it observed that the order of the

Authority can be examined to ascertain whether it stood vitiated either

by malafides or is based on wholly extraneous and/or irrelevant

grounds. However, it was also observed that the Court cannot sit in

appeal over such an order or substitute its own decision for the

satisfaction of the Authority, so long as there is a material before the

Authority which is relevant for arriving at his satisfaction about

dispensation of inquiry. The Supreme Court enumerated the following

principles about the scope of judicial review in such a case :

(i) That the order would be open to challenge on the ground of malafides or being based wholly on extraneous and/or irrelevant grounds;

(ii) The burden is upon the authority who has passed the order to establish that circumstances which warranted the application of the provisions Article 311(2) were existing and the authority concerned had been subjectively satisfied on that count;

(iii) Even if some of the material, on which the action is taken, is found to be irrelevant, the Court would still not interfere so long as there is some relevant material sustaining the action;

(iv) The truth or correctness of the material cannot be questioned by the Court, nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the Authority;

(v) The ground of malafides takes in, inter alia, situations where the proclamation is found to be clear case of abuse of power or what is sometimes called as fraud on power; and

(vi) The Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the Authority is the best judge of situation and it was also in possession of information and material, on which the decision was based. However, its opinion/decision may not be conclusive.

25. In Indian Railway Construction Co. Ltd. v. Ajay Kumar reported

as (2003) 4 SCC 579, it was held by the Supreme Court that if two

views are possible about the possibility of holding the departmental

inquiry, it is not within the domain of the Court to substitute its view

with that of the Disciplinary Authority, as if the Court is sitting as

Appellate Authority over the decision of the Disciplinary Authority. It

was held that the contemporaneous circumstances can be duly taken

note of in arriving at a decision whether or not to dispense with an

inquiry. It was further held that what the High Court is expected to do

is to see whether there is any scope for judicial review and while doing

so it should focus on the impracticability or otherwise of holding the

enquiry. It was emphasized that the Court has to be slow to interfere in

any such matter unless the decision is tainted by any illegality,

procedural impropriety and irrationality impropriety. The relevant Para

is as follows:

"12. The power to dismiss an employee by dispensing with an enquiry is not to be so exercised as to circumvent the prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the court to substitute its view for that of the disciplinary authority as if the court is sitting as an appellate authority over the disciplinary authority. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. What the High Court was required to do was to see whether there was any scope for judicial review of the disciplinary authority's order dispensing with the enquiry. The focus was required to be on the impracticability or otherwise of holding the enquiry"

26. In the above matter the Apex Court further observed that the

High Court had not examined the question as to practicability or

otherwise of holding the enquiry in the correct perspective, since it had

proceeded on the footing as if the order was mala fide; even when there

was no specific allegation of mala fides and without any specific person

against whom mala fides were alleged being impleaded in the

proceedings. The Supreme Court noted that except for making a bald

statement regarding alleged victimization and mala fides, no specific

details were given. Thus it was held that the approach of the High Court

was not proper. The Supreme Court in para 22 and 23 had held as

under:

"22. Neither learned Single Judge nor the Division Bench has examined the question as to practicability or otherwise of holding the enquiry in the correct perspective. They have proceeded on the footing as if the order was mala fide; even when there was no specific allegation of mala fides and without any specific person against whom mala fides were alleged being impleaded in the proceeding. Except making a bald statement regarding alleged victimization and mala fides, no specific details were given.

23. Doubtless, he who seeks to invalidates or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill- will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that malafides in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order

impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (See S. Pratap Singh v.MANU/SC/0272/1963: The State of Punjab (1966)ILLJ458SC. It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in R.P. Royappa v. MANU/SC/0380/1973 : State of Tamil Nadu and Anr. (1974)ILLJ172SC , Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration."

27. Thus it is clear that the mere allegation on the part of the

petitioner that he had been falsely implicated in the matter without any

specific assertion imputing any malafides on the part of the

respondents, cannot in itself suffice for setting aside the order of

dismissal.

28. A Division Bench of this Court in a matter titled as „Ex. Sub.

Inspector Kewal Kumar Gogia Vs. Union of India (UOI) and Ors.", 126

(2006) DLT 595 having a similar factual matrix as in the present case,

had held that the Disciplinary Authority was justified in imposing the

penalty of dismissal while dispensing with the inquiry. In the said

matter the delinquent officer had been dismissed from the service

without conducting an enquiry for the reasons that it would have

been highly prejudicial to the general interest and discipline of the

Force to hold an enquiry and also that since the incident had taken

place at Zurich, Switzerland, and the victim as well as the other

witnesses belonged to Switzerland and it was not likely that they

could come to India to tender evidence in the regular departmental

enquiry. It was also apprehended that the enquiry would have

attracted world wide media attention. Thus the Disciplinary Authority

had dispensed with the enquiry which was upheld by this Court in

the similar facts and circumstances.

29. Considering the seriousness and sensitive nature of the

petitioner's duty and the fact that the incident had taken place on

foreign soil, that it would have not been possible for a foreign national

and other witnesses to the incident, including the Hotel staff and police

personnel of Nepal to have travelled to India merely for a departmental

enquiry, the reasons given by the Disciplinary Authority are relevant to

the provision of Rule 39(ii) of the CISF Rules as extracted hereinabove.

30. The petitioner has also contended that there was no material on

the record to presume that he would have terrorized the witnesses and

thus it could not have been a reason to have dispensed with the

enquiry. However, the aspect of whether or not the Disciplinary

Authority was justified in assuming that the petitioner would have

terrorized the said witnesses or created unpleasant situation if they

would have come to India has to be seen from the point of view of

assessment made by the Disciplinary Authority. Even if the satisfaction

reached by the Disciplinary Authority may be interpreted differently, the

Court will decline to interfere with the same and substitute its view with

that of the Disciplinary Authority.

31. The reasons given by the Disciplinary Authority, in the facts and

circumstances fully satisfy the mandate of Section 39 (ii) of the CISF

Rules, 2001. The petitioner has not imputed any malafides against the

respondents to establish that the enquiry had been dispensed in an

arbitrary manner. There has been sufficient material before the

Disciplinary Authority for the reasons given by it for dispensing with the

regular enquiry. In Tulsi Ram Patel (supra) the Supreme Court had

illustrated a few cases which are as under:

i. a situation which is of the creation of the concerned government servant himself or of himself acting in concert with others or his associates;

ii. though, the government servant himself is not a party to the bringing about of a situation yet the exigencies of a situation may require that prompt action should be taken and not taking prompt action may result in the trouble spreading and the situation worsening and at time becoming uncontrollable and necessary concomitance of such an action resulting from a situation which is not the creation of the authorities.

32. The incident which led to situation was the creation of the

petitioner himself solely leading to his detention by the police

authorities at Nepal. The petitioner was detained for a considerable

period and prompt action was required to avoid the situation worsening

and becoming uncontrollable and diplomatically embarrassing. The

actions of the respondents in entering into a settlement with the

woman, who had been molested by the petitioner, had resulted from a

situation which was not the creation of the respondents but was solely

attributable to the petitioner. The act of the respondents in dispensing

with the enquiry against the petitioner is open to judicial review on well

settled parameters of administrative law governing judicial review of

administrative actions. The counsel for the petitioner has however failed

to show and demonstrate any malafides imputed against the

respondents. The actions of the respondents are not based wholly on

extraneous and/or irrelevant grounds, nor it is a case of extraneous

and/or abuse of power or what is sometimes called fraud on power, i.e

where the power is exercised for achieving an oblique end. The truth or

correctness or adequacy of the material available before the

respondents, who have exercised the power conferred under the

enactment, cannot be revalued or weighed by this court while exercising

power of judicial review. Even if some of the material or reason on

which the action is taken is found to be irrelevant or not very material,

this court still will not interfere so long as there is some relevant

material available on which the action of the respondents can be

sustained.

33. For the foregoing reasons in the above noted facts and

circumstances, the petitioner has failed to make out any illegality or

irregularity or perversity in the action of the respondents which will

necessitate the exercise of power by this court under Article 226 of the

Constitution of India in dismissing the petitioner from service after

dispensing with the regular enquiry on the basis of the reasons

recorded by the respondents before his dismissal. The writ petition in

the facts and circumstances is without any merit and, therefore, it is

dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

February 13, 2012 vk