Madras High Court
M.Vasanthi vs The Deputy Inspector General Of ... on 30 June, 2023
1 W.P.(MD)NO.13058 OF 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.06.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.13058 of 2023
and
W.M.P(MD)No.11052 of 2023
M.Vasanthi ... Petitioner
Vs.
1. The Deputy Inspector General of Police,
Madurai Range,
Madurai.
2. The Superintendent of Police,
Madurai District,
Madurai. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the
records realting to orders passed by the first respondent in
C.No.A2/1343398/332/2021, R.O.No.147/2023 dated 11.04.2023 and
quash the same and consequently direct the respondents to reinstate the
petitioner.
For Petitioner : Mr.M.Subash Babu,
Senior counsel,
for M/s.Subash Law Office.
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2 W.P.(MD)NO.13058 OF 2023
For Respondents : Mr.Veera Kathiravan,
Additional Advocate General,
assisted by,
Mr.N.Ramesh Arumugam,
Government Advocate.
ORDER
The writ petitioner, who was holding the post of Inspector of
Police, was dismissed from service on 11.04.2023 by the disciplinary
authority without holding an enquiry. The question that arises for
consideration is whether the invocation of the second proviso to Clause
(2) of Article 311 of the Constitution of India r/w. Rule 3 of Tamil Nadu
Police Subordinate Service (D&A) Rules 1955 was justified in the facts
and circumstances of the case.
2. The writ petitioner was recruited as Sub-Inspector of Police in
the year 2004. She was promoted as Inspector of Police on 18.04.2018.
According to the petitioner, on 05.07.2021, while on duty at Nagamalai
Pudukkottai police station, she received information about exchange of
fake currency; acting on that basis, she intercepted the car bearing
registration No.TN-59-BE-8953 near Shanthi Lodge and seized two bags
from the persons involved; on search one bag was found to contain
papers and documents while the other bag contained only dresses; since
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there was no incriminating material, the persons concerned who were
brought to station were let off after interrogation.
3. On 06.07.2021, one K.Arshath lodged a written complaint
before the Superintendent of Police, Madurai (Rural), that he was
waiting near Shanthi Lodge, Nagamalai Pudukkottai carrying cash of Rs.
10 Lakhs; even as he was having transactions with one Karthick and
others, a police vehicle came to the spot; Inspector of Police Vasanthi got
down and the said Karthick grabbed the cash bag and gave it to her; the
said Arshath was also taken in the police vehicle and dropped at some
distance; when the petitioner insisted for return of his money, he was
asked to come the day to the police station on 06.07.2021 when the
petitioner contacted Nagamalai Pudukkottai police station, he was asked
to come to Thallakulam police station; Arshath met the petitioner outside
Thallakulam police station in her jeep; the petitioner told Arshath that
there was no cash in the bag and threatened him that if he repeated his
demand for return of cash, he will be booked in a narcotics case and
arrested.
4. Since serious allegations have been made against the police
officer, the Superintendent of Police, Madurai(Rural) ordered
preliminary enquiry. According to the report submitted on 13.07.2021,
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the complainant K.Arshath was without work on account of pandemic
condition; he wanted to earn money somehow; he approached one
Baskaran; the said Baskaran had told Arshath that one Pandi who is
known to him is having Indian currency printed in Pakistan and that he
would give currency twice or thrice in value in exchange; after further
nogitations, it was agreed that in exchange of Rs.10 Lakhs, Arshath
would be paid Rs.30 Lakhs by Pandi, Ukirapandi (Chettiar), Karthick
and Kundupandi; On 03.07.2021, the exchange could not fructify
because Arshath insisted on counting the sum of Rs.30 Lakhs physically;
since the group supplying the fake currency notes realized that Arshath
will not accept the exchanged notes without verification, they hatched a
conspiracy; the petitioner Ms.Vasanthi is said to be a relative of
Kundupandi; with her involvement, it was decided to grab Rs.10 Lakhs
from Arshath; accordingly, after confirming that Arshath had come with
Rs.10 Lakhs, the interception was organized; Arshath and others were
bundled into the police vehicle; Arshath was soon dropped and sent away
after being threatened; the petitioner thereafter went in her police vehicle
towards Thirumangalam and stopped near Srinivasa Colony; there
Chettiar and Kundupandi came in a Scorpio vehicle; Vasanthi handed
over both the bags to Chettiar; Chettiar gave Rs.2 Lakhs to Vasanthi and
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left; the remaining amount was shared among Kundupandi, Chettiar and
Karthick.
5. The preliminary report based its findings on the statement of
K.Palpandi @ Thirumangalam Pandi made during enquiry. The Sanjay
Gandhi (HC 2252) who was the driver who drove the vehicle also
broadly corroborated the sequence of events except receipt of Rs.2 Lakhs
from Chettiar. CDR details also confirmed that the petitioner was in
contact with Palpandi, Chettiar and Kundupandi. According to the
preliminary enquiry, the petitioner was emboldened to commit the crime
because she felt confident that Arshath would not dare to lodge
complaint because of the inherently illegal nature of the transaction.
6. Thereafter Crime No.18 of 2021 was registered on the file of the
Inspector of Police, DCB, Madurai on 27.07.2021. The petitioner figured
as the fifth accused. She was also suspended from service on the same
day by the Deputy Inspector General of Police, Madurai Range. On
06.09.2021, charge memo was issued. Arshath was shown as the first
witness while Baskaran as the second witness. Sanjay Gandhi, the police
driver was shown as the seventh witness. The petitioner filed W.P.
(MD)No.21790 of 2021 for keeping the disciplinary proceedings in
abeyance till disposal of the criminal case registered in Crime No.18 of
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2021 on the file of DCB, Madurai. The writ petition was dismissed on
04.07.2022.
7. In the meanwhile, the petitioner filed Crl.O.P.(MD)No.14120 of
2022 before this Court for quashing the criminal proceedings. Crime
No.18 of 2021 had been investigated and charge sheeted and taken
cognizance in C.C.No.87 of 2022 on the file of the Judicial Magistrate
No.I, Madurai. Quashing was sought on the ground that the matter had
been compromised. In the compromise memo, all the five accused
namely, Palpandi, Kundupandi, Ukkira Pandi, Karthick and the petitioner
herein had signed. The defacto complainant Arshath had also filed a
supporting affidavit. However, the quash petition was dismissed as
withdrawn on 04.08.2022.
8. The petitioner was arrested on 26.08.2021. She was granted bail
in Crl.O.P.(MD)No.14255 of 2021 on 08.10.2021. Since the prosecution
took the view that the defacto complainant had been influenced,
Crl.MP(MD).No.10321 of 2022 was filed for cancelling the bail. The
petition was disposed of in the following terms:-
“ i.The Inspector General of Police
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(South Zone) shall to constitute a special team
headed by an Additional Superintendent of
Police or a Deputy Superintendent of Police to
ascertain whether the accused in CC.No.87 of
2022 on the file of the learned Judicial
Magistrate No.I, Madurai in any manner have
attempted to influence the defacto complainant
or any other witnesses in Crime No.18 of 2021
by verifying, their call details and by
conducting proper investigation.
ii.If any attempt has been made by any of
the accused, to tamper the witnesses in CC.No.
87 of 2022, the petitioner / investigation officer
shall register a separate case for the offence
made thereon as against the accused concerned.
iii.The Inspector General of Police
(South Zone) shall also take necessary steps as
required under the witness protection scheme to
all the witnesses in CC No.87 of 2022 and shall
ensure a fair trial in this case.
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8 W.P.(MD)NO.13058 OF 2023
iv.The trial Court shall conduct a fair
trial in CC.No.87 of 2022 and dispose it as
expeditiously as possible.”
9. Pursuant to the direction given by this Court, the Inspector
General of Police(South Zone), Madurai constituted a special team
headed by an IPS officer. The statement of K.Arshath was recorded
under Section 164 of Cr.P.C. before Judicial Magistrate No.I, Madurai.
The special team after enquiry, confirmed that there was witness
tampering. Thereupon, Crime No.8 of 2023 was registered on the file of
DCB, Madurai against the petitioners and others for the offences under
Section 195A, 214 and 120B IPC.
10. In the disciplinary action initiated against the petitioner, an
enquiry officer was appointed. But without proceeding with the enquiry,
the impugned order came to be passed. Assailing the same, the present
writ petition has been filed.
11. The learned Senior counsel appearing for the petitioner
reiterated all the contentions set out in the affidavit filed in support of the
writ petition. He contended that the petitioner is under suspension and
therefore, the disciplinary authority could not have arrived at the
conclusion that it was not practicable to hold the enquiry. Such
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satisfaction is perverse. After appointing enquiry officer, the matter
should have been allowed to proceed to its logical conclusion and not
short-circuited. He relied on the decisions reported in (1985) 3 SCC 398
(Union of India V. Tulsiram Patel), (2012) 10 SCC 215 (Reena Rani V.
State of Haryana) and Risal Singh V. State of Haryana (2014) 13 SCC
244 and an unreported decision in CWP No.21363 of 2020 (O&M)
(Ramesh Kumar V. State of Haryana) dated 16.05.2023 decided by the
Punjab-Haryana High Court .He called upon this Court to set aside the
impugned order and grant relief as prayed for.
12. The respondents have filed a detailed counter-affidavit and the
learned Additional Advocate General took me through its contents. He
pointed out that the conduct of the petitioner had led to the passing of the
impugned order. He also relied on Tulsiram Patel to sustain the
impugned order. He pressed for dismissal of the writ petition.
13. I carefully considered the rival contentions and went through
the materials on record. Before testing the impugned order, let me cite
the relevant provisions. Article 311 of the Constitution of India is as
follows:-
“ 311. Dismissal, removal or reduction in
rank of persons employed in civil capacities under
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the Union or a State - (1) No person who is a member
of a civil service of the Union or an all-India service
or a civil service of a State or holds a civil post under
the Union or a State shall be dismissed or removed by
an authority subordinate to that by which he was
appointed.
(2) No such person as aforesaid shall be
dismissed or removed or reduced in rank except after
an inquiry in which he has been informed of the
charges against him and given a reasonable
opportunity of being heard in respect of those charges.
Provided that where it is proposed after such
inquiry, to impose upon him any such penalty, such
penalty may be imposed on the basis of the evidence
adduced during such inquiry and it shall not be
necessary to give such person any opportunity of
making representation on the penalty proposed:
Provided further that this clause shall not apply
—
(a) where a person is dismissed or removed or
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reduced in rank on the ground of conduct which has
led to his conviction on a criminal charge; or
(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) where the President or the Governor, as the
case may be, is satisfied that in the interest of the
security of the State it is not expedient to hold such
inquiry.
(3) If, in respect of any such person as aforesaid,
a question arises whether it is reasonably practicable
to hold such inquiry as is referred to in clause (2), the
decision thereon of the authority empowered to
dismiss or remove such person or to reduce him in
rank shall be final.”
Rule 3 of Tamil Nadu Police Subordinate Service (D&A) Rules
1955 is on similar lines. Rule 3 deals with the procedure where it is
porposed to be imposed what is known as major penalty on a member of
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the police subordinate service. Rule 3(d) is as follows:-
“ (i) All or any of the provisions of sub rules (a)
and (b) may, in exceptional cases, for special and
sufficient reasons to be recorded in writing, be waived
where there is a difficulty in observing exactly the
requirements of the sub rules and those requirements
can be waived without injustice to the person charged.
(ii) If any question arises whether it is
reasonably practicable to follow the procedure
prescribed in sub rule (b) the decision thereon of the
authority empowered to dismiss or remove such
person or reduce him in rank, as the case may be shall
be final.”
14. The petitioner is a member of the police subordinate service.
She was holding the rank of Inspector. A comparison of the second
proviso to Article 311(2) of the Constitution of India and Rule 3(d) of
Tamil Nadu Police Subordinate Service (D&A) Rules 1955 leads me to
the conclusion that a higher threashold and bench mark has been laid
down in Rule 3(d). There cannot be any dispute that a member of the
police subordinate service is entitled to the higher protection conferred
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under the rules over and above what is set out in Article 311 of the
Constitution of India. Under the second proviso to Article 311(2), it is
enough if the empowered authority comes to the conclusion that it is not
reasonably practicable to hold the enquiry. Under Rule 3(d), the
empowered authority must record special and sufficient reasons that
there is difficulty in exactly observing the procedural requirements set
out in the sub-rules. It must also be shown that the requirements have
been waived without injustice to the person charged. In other words,
there are twin requirements to be fulfilled.
15. The question that arises for consideration is whether both these
requirements have been met in this case. The leading case on the subject
is Union of India V. Tulsiram Patel (1985) 3 SCC 398. The discussion
pertaining to the second proviso is reproduced below verbatim:
“ 128. The main thrust of the arguments as regards Clause
(b) of the second proviso to Article 311(2) was that whatever the
situation may be minimal inquiry or at least an opportunity to
show cause against the proposed penalty is always feasible and
is required by law. The arguments with respect to a minimal
inquiry were founded on the basis of the applicability of Article
14 and the principles of natural justice and the arguments with
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respect to an opportunity to show cause against the proposed
penalty were in addition founded upon the decision in
Challappan's case. These contentions have already been dealt
with and negatived by us and we have further held that
Challappan's case in so far as it held that a government servant
should be heard before imposing a penalty upon him was
wrongly decided.
129. The next contention was that even if it is not
reasonably practicable to hold an inquiry, a government servant
can be placed under suspension until the situation improves and
it becomes possible to hold the inquiry. This contention also
cannot be accepted. Very often a situation which makes it not
reasonably practicable to hold an inquiry is of the creation of the
concerned government servant himself or of himself acting in
concert with others or of his associates. It can even be that he
himself is not a party to bringing about that situation. In all such
cases neither public interest nor public good requires that salary
or subsistence allowance should be continued to be paid out of
the public exchequer to the concerned government servant. It
should also be borne in mind that in the case of a serious
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situation which renders the holding of an inquiry not reasonably
practicable, it would be difficult to foresee how long the
situation will last and when normalcy would return or be
restored. It is impossible to draw the line as to the period of time
for which the suspension should continue and on the expiry of
that period action should be taken under Clause (b) of the second
proviso. Further, the exigencies of a situation may require that
prompt action should be taken and suspending the government
servant cannot serve the purpose. Sometimes not taking prompt
action may result in the trouble spreading and the situation
worsening and at times becoming uncontrolable. Not taking
prompt action may also be construed by the trouble-makers and
agitators as sign of weakness on the part of the authorities and
thus encourage them to step up the tempo of their activities or
agitation. It is true that when prompt action is taken in order to
prevent this happening, there is an element of deterrence in it but
that is an unavoidable and necessary concomitance of such an
action resulting from a situation which is not of the creation of
the authorities. After all, Clause (b) is not meant to be applied in
ordinary, normal situations but in such situations where is not
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reasonably practicable to hold an inquiry.
130. The condition precedent for the application of Clause
(b) is the satisfaction of the disciplinary authority that "it is not
reasonably practicable to hold" the inquiry contemplated by
Clause (2) of Article 311. What is pertinent to note is that the
words used are "not reasonably practicable" and not
"impracticable". According to the Oxford English Dictionary
"practicable" means "Capable of being put into practice, carried
out in action, effected, accomplished, or done; feasible".
Webster's Third New International Dictionary defines the word
"practicable" inter alia as meaning "possible to practice or
perform : capable of being put into practice, done or
accomplished : feasible". Further, the words used are not "not
practicable" but "not reasonably practicable". Webster's Third
New International Dictionary defines the word "reasonably" as
"in a reasonable manner : to a fairly sufficient extent". Thus,
whether it was practicable to hold the inquiry or not must be
judged in the context of whether it was reasonably practicable to
do so. It is not a total or absolute impracticability which is
required by Clause (b). What is requisite is that the holding of
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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 thretens, 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
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matter of assessment to be made by the disciplinary authority.
Such authority is generally on the spot and knows what is
happening. It is because the disciplinary authority is the best
judge of this that Clause (3) of Article 311 makes the decision of
the disciplinary authority on this question final. A disciplinary
authority is not expected to dispense with a disciplinary inquiry
lightly or arbitrarily or out of ulterior motives or merely in order
to avoid the holding of an inquiry or because the Department's
case against the government servant is weak and must fail. The
finality given to the decision of the disciplinary authority by
Article 311(3) is not binding upon the court so far as its power of
judicial review is concerned and in such a case the court will
strike down the order dispensing with the inquiry as also the
order imposing penalty. The case of Arjun Chaubey v. Union of
India is an instance in point. In that case, the appellant was
working as a senior clerk in the office of the Chief Commercial
Superintendent, Northern Railway, Varanasi. The Senior
Commercial Officer wrote a. letter to the appellant calling upon
him to submit his explanation with regard to twelve charges of
gross indiscipline mostly relating to the Deputy Chief
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Commercial Superintendent. The appellant submitted his
explanation and on the very next day the Deputy Chief
Commercial Superintendent served a second notice on the
appellant saying that his explanation was not convincing and
that another chance was being given to him to offer his
explanation with respect to those charges. The appellant
submitted his further explanation but on the very next day the
Deputy Chief Commercial Superintendent passed an order
dismissing him on the ground that he was not fit to be retained in
service. This Court struck down the order holding that seven out
of twelve charges related to the conduct of the appellant with the
Deputy Chief Commercial Superintendent who was the
disciplinary authority and that if an inquiry were to be held, the
principal witness for the Department would have been the
Deputy Chief Commercial Superintendent himself, resulting in
the same person being the main accusor, the chief witness and
also the judge of the matter.
131. It was submitted that where a delinquent government
servant so terrorizes the disciplinary authority that neither that
officer nor any other officer stationed at that place is willing to
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hold the inquiry, some senior officer can be sent from outside to
hold the inquiry. This submission itself shows that in such a case
the holding of an inquiry is not reasonably practicable. It would
be illogical to hold that the administrative work carried out by
senior officers should be paralysed because a delinquent
government servant either by himself or along with or through
others makes the holding of an inquiry not reasonably
practicable.
132. It is not necessary that a situation which makes the
holding of an inquiry not reasonably practicable should exist
before the disciplinary inquiry is initiated against a government
servant. Such a situation can also come into existence
subsequently during he course of an inquiry, for instance, after
the service of a charge-sheet upon the government servant or
after he has filed his written statement thereto or even after
evidence has been led in part. In such a case also the disciplinary
authority would be entitled to apply Clause (b) of the second
proviso because the word "inquiry" in that clause includes part
of an inquiry. It would also not be reasonably practicable to
afford to the government servant an opportunity of hearing or
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further hearing, as the case may be, when at the commencement
of the inquiry or pending it the government servant absconds and
cannot be served or will not participate in the inquiry. In such
cases, the matter must proceed ex parte and on the materials
before the disciplinary authority. therefore, even where a part of
an inquiry has been held and the rest is dispensed with under
Clause (b) or a provision in the service rules analogous thereto,
the exclusionary words of the second proviso operate in their full
vigour and the government servant cannot complain that he has
been dismissed, removed or reduced in rank in violation of the
safeguards provided by Article 311(2).
133. The second condition necessary for the valid
application of Clause (b) of the second proviso is that the
disciplinary authority should record in writing its reason for its
satisfaction that it was not reasonably practicable to hold the
inquiry contemplated by Article 311(2). This is a Constitutional
obligation and if such reason is not recorded in writing, the order
dispensing with the inquiry and the order of penalty following
thereupon would both be void and unconstitutional.
134. It is obvious that the recording in writing of the
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reason for dispensing with the inquiry must preceed 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.
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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. It
would, however, be better for the disciplinary authority to
communicate to the government servant its reason for dispensing
with the inquiry because such communication would eliminate
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the possibility of an allegation being made that the reasons have
been subsequently fabricated. It would also enable the
government servant to approach the High Court under Article
226 or, in a fit case, this Court under Article 32. If the reasons
are not communicated to the government servant and the matter
comes to the court, the court can direct the reasons to be
produced, and furnished to the government servant and if still
not produced, a presumption should be drawn that the reasons
were not recorded in writing and the impugned order would then
stand invalidated. Such presumption can, however, be rebutted
by a satisfactory explanation for the non-production of the
written reasons.
136. It was next submitted that though Clause (b) of the
second proviso excludes an inquiry into the charges made
against H government servant, it does not exclude an inquiry
preceding it, namely, an inquiry into whether the disciplinary
inquiry should be dispensed with or not, and that in such a
preliminary inquiry the government servant should be given an
opportunity of hearing by issuing to him a notice to show cause
why the inquiry should not be dispensed with so as to enable him
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to satisfy the disciplinary authority that it would be reasonably
practicable to hold the inquiry. This argument is illogical and is a
contradiction in terms. If an inquiry into the charges against a
government servant is not reasonably practicable, it stands to
reason that an inquiry into the question whether the disciplinary
inquiry should be dispensed with or not is equally not reasonably
practicable.
137. A government servant who has been dismissed,
removed or reduced in rank, by applying to his case Clause (b)
or an analogous provisions of a service rule is not wholly
without a remedy. As pointed out earlier while dealing with the
various service rules, he can claim in a departmental appeal or
revision that an inquiry be held with respect to the charges on
which the penalty of dismissal, removal or reduction in rank has
been imposed upon him unless the same or a similar situation
prevails at the tine of hearing of the appeal or revision
application. If the same situation is continuing or a similar
situation arises, it would not then be reasonably practicable to
hold an inquiry at the time of the hearing of the appeal or
revision. Though in such a case as the government servant if
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dismissed or removed from service, is not continuing in service
and if reduced in rank, is continuing in service with such
reduced rank, no prejudice could be caused to the Government or
the Department if the hearing of an appeal or revision
application, as the case may be, is postponed for a reasonable
time.
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
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27 W.P.(MD)NO.13058 OF 2023
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.”
16. In Jaswant Singh V. State of Punjab (1991) 1 SCC 362, it was
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28 W.P.(MD)NO.13058 OF 2023
held as follows:-
“ The decision to dispense with the departmental enquiry
cannot, therefore, be rested solely on the ipse dixit of the
concerned authority. When the satisfaction of the concerned
authority is questioned in a court of law, it is incumbent on those
who support the order to show that the satisfaction is based on
certain objective facts and is not the outcome of the whim or
caprice of the concerned officer.”
17. A recent decision of the Division Bench of Hon'ble Calcutta
High Court is equally relevant. In Kunjumole V. The Union of India
(WP.CT/1/2022 dated 26.08.2022) it was held as follows:-
“ 9. The above clause makes it clear that it is incumbent
on the authority to record its satisfaction in writing of the reason
as to why it would not reasonably be practicable to hold such
inquiry where the authority is empowered to dismiss a person.
The word “… reasonably practicable to hold ...” means that it is
not practicable to hold the inquiry based on certain factual
circumstances which are inalienable to the case before the
Disciplinary Authority. The word “reasonably” further indicates
that it is not a case of total impracticability but that holding of an
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29 W.P.(MD)NO.13058 OF 2023
inquiry is not practicable taking a reasonable view of the
relevant factual situation. What however is non-negotiable is that
the Disciplinary Authority must state its reason in writing for
dispensing with a disciplinary inquiry which would have an
indelible impact on the person who is removed, dismissed from
service or reduced in rank without an inquiry. The reason
recorded must reflect the attending circumstances which would
make it reasonably impracticable for the authority to hold the
inquiry before imposing the penalty.
10. Article 311(2) makes it clear that the rule is inquiry
hearing before dismissal. The exception slips in where it is
impracticable to hold the inquiry and the onus is on the authority
to record its satisfaction in writing as to the reason for the
impracticability. The underlying presumption in Article 311 is
that dismissal, removal or reduction in rank of a person
employed in a civil capacity under the Union or State is not to be
taken lightly or done without following due process. The
threshold to prove dispensation of due process and compliance
with the principles of natural justice is high in all matters but
particularly heightened in Article 311(2)(b) of the Constitution
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30 W.P.(MD)NO.13058 OF 2023
of India. In essence, the constitutional obligation of recording
reasons for departing from the norm must strictly be conformed
with. Invocation of the power without bowing down to the
constitutional mandate would render the order of penalty void
(Union of India vs. Tulsiram Patel, (1985) 3 SCC 398). ”
18. The Hon'ble Apex Court in Jaswant Singh had held that the
competent authority is obliged to record reasons when passing an order
under Clause (b) to the second proviso to Article 311(2). This obligation
is mandatory. Failure to do so will vitiate the order itself. The impugned
order passes muster on this score. It is on this ground Reena Rani and
Risal singh relied on by the learned Senior counsel for the petitioner are
distinguishable.
19. The disciplinary authority has passed a speaking order. The
very first paragraph contains the reason. After pointing out that the
petitioner has been charged in a grave criminal case, the disciplinary
authority notes that the delinquent had influenced the complainant. It is
true that the decision to dispense with the departmental enquiry cannot
rest solely on the ipse dixit of the concerned authority. It is the duty of
the authority to disclose to the Court the material in existence at the date
of the passing of the order in support of the subject to satisfaction
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31 W.P.(MD)NO.13058 OF 2023
recorded in the order.((Hari Niwas Gupta V. State of Bihar (2020) 3
SCC 153 quoting Jaswant Singh). The original note file recording the
satisfaction of the disciplinary authority was produced before me. I went
through it in full. The note runs to 12 paragraphs. It is handwritten. The
empowered authority has referred to the antecedent facts. Thereafter the
authority came to the conclusion that the departmental proceedings
would be made into a farce and not in public interest. In that view of the
matter, Article 311(2)(b) was invoked and the punishment of dismissal
was handed out to the petitioner.
20. The petitioner figured as A5 in Crime No.18 of 2021 on the file
of DCB, Madurai, for the offences under Sections 120B, 384, 389, 409,
420 and 506(i) IPC. The case was registered not at the drop of the hat.
The occurrence had taken place on 05.07.2021. Complaint was given on
06.07.2021. The case was registered only on 27.07.2021. Preliminary
enquiry was conducted by an Additional Superintendent of Police and
report was submitted on 13.07.2021. The Superintendent of Police after
due vetting gave direction for registering FIR only on 27.07.2021.
Thereafter, investigation was taken up and final report was filed on
14.12.2021. It was taken cognizance in C.C.No.87 of 2022 on the file of
Judicial Magistrate No.I, Madurai. Such a case could not have been
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32 W.P.(MD)NO.13058 OF 2023
compromised. Yet an arrangement of compromise was entered into with
the complainant. The petitioner had signed along with four other
accused. Since the High Court refused to quash the proceedings, Crl.O.P.
(MD)No.14120 of 2022 came to be withdrawn. It became obvious that
the petitioner had succeeded in reaching out to the star witness namely,
Arshath. Following the direction given by the High Court in Crl.M.P.
(MD)No.10321 of 2022, enquiry came to be conducted into the conduct
of the petitioner and that led to registration of Crime No.8 of 2023 on the
file of DCB, Madurai under Sections 195(A), 214 and 120B IPC. The
second case was registered against the petitioner based on the report of
the special team that was constituted by the South Zone IG pursuant to
the direction of this Court. The statement of Arshath was recorded under
Section 164 of Cr.P.C. On 20.03.2023 before Judicial Magistrate No.I,
Madurai. Arshath had narrated in detail as to how he was made to come
to the negotiating table. He had also stated that he was paid Rs.5 Lakhs
and that the remaining Rs.5 Lakhs would be paid after the case was
closed. This testimony of the complainant before the Judicial Magistrate
is fatal to the petitioner. It shows the extent to which the petitioner will
go to wriggle out of the consequences eminating from her conduct.
21. Public servants are in the civil department of the state as well
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33 W.P.(MD)NO.13058 OF 2023
as in the police / paramilitary / military. The yardstick applicable to a
clerk in the Revenue Department will not be the same as the one applied
to a member of the uniformed force. The rank occupied by the delinquent
will also determine the applicable standard. These are matters of nuonce.
That is why Clause (3) of Article 311 attaches finality to the decision of
the empowered authority. Of course this is subject to judicial review. The
parameters of review will vary from case to case. The petitioner was
holding the rank of Inspector of Police. Such a person can definitely
wield influence and possess the capacity to influence the witnesses. The
petitioner was holding officer rank in an uniformed service. The
materials on record indicate that she had grabbed Ten Lakhs of Rupees
from Arshath and later shared the proceeds of crime. After the case was
chargesheeted, she succeeded in coercing Arshath to compromise. This is
a matter of record. A quash petition on the strength of compromise memo
was filed before the High Court. The departmental enquiry against the
petitioner rested entirely on the testimony to be given by Arshath. The
very same Arshath in his affidavit filed in Crl.O.P.(MD)No.14120 of
2022 had gone to the extent of stating that a private money transaction
was exaggerated and improved by giving a criminal colour and that the
dispute could have been settled in the civil Court and that he did not
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34 W.P.(MD)NO.13058 OF 2023
want to proceed further since he had compromised the enire issue with
the accused and that he has no objection to quash the proceedings against
them. The very same Arshath subsequently gave statement under Section
164 of Cr.P.C. that he was pressurised into compromising the issue. The
role of the petitioner is too apparent and that led to registration of second
FIR against her. In these circumstances, the competent authority rightly
came to the conclusion that it was not reasonably practicable to conduct
the enquiry against the petitioner. As held by the Calcutta High Court,
the question to ask is not whether it is practicable to hold the enquiry but
whether it is reasonably practicable. If the witness turns hostile for
whatever reason, then the enquiry turns out to be false. I hold that the
satisfaction of the empowered authority is well founded.
22. Then comes the question of justice. Justice is not to be viewed
from a relative perspective. It is an absolute stand point. In a case of this
nature, it is all about fairness. The point is whether the empowered
authority acted capriciously or out of malice. If the authority had applied
her mind with reference to the materials on record and came to a
considered conclusion, then it means that there is no injustice. A losing
litigant will always cry that injustice had been done to her. After a careful
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35 W.P.(MD)NO.13058 OF 2023
scrutiny of the entire material on record, I am more than satisfied that by
waiving the procedural safeguards, no injustice had been done to the
petitioner. The order impugned in the writ petition is sustained. The writ
petition is dismissed. I however clarify that this order will not have any
bearing on the criminal prosecution pending against the petitioner. The
criminal case will be decided entirely on the strength of evidence
adduced before the concerned trial Courts. No costs.
30.06.2023
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
PMU
To
1. The Deputy Inspector General of Police,
Madurai Range,
Madurai.
2. The Superintendent of Police,
Madurai District,
Madurai.
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36 W.P.(MD)NO.13058 OF 2023
G.R.SWAMINATHAN, J.
PMU
W.P(MD)No.13058 of 2023
30.06.2023
https://www.mhc.tn.gov.in/judis
