// 7 //
Party No.5 to pass the order of dismissal in exercise of
the power conferred under Art-311(2)(b) of the
Constitution of India.
3.8. It is also contended that the Appellate Authority-
Opp. Party No.4 without proper appreciation of the
grounds of appeal taken by the petitioner under
Annexure-3 and subsequently under Annexure-5,
rejected the same and that too without following the
case law governing the field so enclosed with the
Revised Appeal under Annexure-5, vide order issued
under Annexure-4 and 6 respectively.
3.9. It is further contended that Hon'ble Apex Court in
the case of Union of India Vrs. Tulsiram Patel and
others, reported in 1985 (3) SCC 398, has framed the
guideline where power under Art-311 can be exercised
by the Disciplinary Authority. Hon'ble Apex Court in
the case of Tulsiram Patel in para- 55, 62, 130, 132,
133, 135,137 & 138 of the said judgment has held as
follows-:
// 8 //
55. None of these three Articles (namely, Articles
309,310 and 311) sets out the grounds for dismissal,
removal or reduction in rank of a government servant or
for imposition of any other penalty upon him or states
what those other penalties are.
These are matters which are left to be dealt with by Acts
and rules made under Article 309. There are two classes
of penalties in service jurisprudence, namely, minor
penalties and major penalties. Amongst minor penalties
are censure, with holding of promotion and with holding
of increments of pay. Amongst major penalties are
dismissal or removal from service, compulsory
retirement and reduction in rank. Minor penalties do not
affect the tenure of a government servant but the
penalty of dismissal or removal does because these two
penalties bring to an end the service of a government
servant. It is also now well established that compulsory
retirement by way of penalty amounts to removal from
service. So this penalty also affects the tenure of a
government servant. Reduction in rank does not
terminate the employment of a government servant, and
it would, therefore, be difficult to say that it affects the
tenure of a government servant. It may however, be
argued that it does bring to an end the holding of office
in a particular rank and from that point of view it affects
the government servant's tenure in the rank from which
he is reduced. It is unnecessary to decide this point
because Article 311(2) expressly gives protection as
against the penalty of reduction in rank also.
Xxx xxx xxx
62. Before, however, any clause of the second proviso
can come into play the condition laid down in it must be
satisfied. The condition for the application of each of
these clauses is different. In the case of clause (a) a
government servant must be guilty of conduct deserving
the penalty of dismissal, removal or reduction in rank
which conduct has led to him being convicted on a
criminal charge. In the case of clause (b) the disciplinary
authority must be satisfied that it is not reasonably
practicable to hold an inquiry. In the case of clause (c)
the President or the Governor of a State, as the case
may be, must be satisfied that in the interest of the
security of the State, it is not expedient to hold an
inquiry. When these conditions can be said to be fulfilled
will be discussed later while dealing separately with
each of the three clauses. The paramount thing,
however, to bear in mind is that the second proviso will
apply only where the conduct of a government servant is
such as he deserves the punishment of dismissal,
removal or reduction in rank. If the conduct is such as to
deserve a punishment different from those mentioned
above, the second proviso cannot come into play at
all, because Article 311 (2) is itself confined only to these
three penalties. Therefore, before denying a government
servant his constitutional right to an inquiry, the first
consideration would be whether the conduct of the
concerned government servant is such as justifies the
// 9 //
penalty of dismissal, removal or reduction in rank. Once
that conclusion is reached and the condition specified in
the relevant clause of the second proviso is satisfied,
that proviso becomes applicable and the government
servant is not entitled to an inquiry. The extent to which
a government servant can be denied his right to an
inquiry formed the subject-matter of considerable debate
at the Bar and we, therefore, now turn to the question
whether under the second proviso to Article 311(2) even
though the inquiry is dispensed with, some opportunity
at least should not be afforded to the government
servant to that he is not left wholly without protection.
As most of the arguments on this Part of the case were
common to all the three clauses of the second proviso, it
will be convenient at this stage to deal at one place with
all the arguments on this part of the case, leaving aside
to be separately dealt with the other arguments
pertaining only to a particular clause of the second
proviso.
Xxx xxx xxx
130. The condition precedent for the application of
clause (b) is the satisfaction of the disciplinary authority
that "it is not reasonably practicable to hold" the inquiry
contemplated by clause (2) of Article 311. What is
pertinent to note is that the words used are "not
reasonably practicable" and not "impracticable".
According to the Oxford English Dictionary "practicable"
means "Capable of being put into practice, carried out in
action, effected, accomplished, or done; feasible".
Webster's Third New International Dictionary defines the
word "practicable" inter alia as meaning "possible to
practice or perform : capable of being put into practice,
done or accomplished : feasible". Further, the words
used are not "not practicable" but "not reasonably
practicable". Webster's Third New International
Dictionary defines the word "reasonably" as "in a
reasonable manner : to a fairly sufficient extent". Thus,
whether it was practicable to hold the inquiry or not
must be judged in the context of whether it was
reasonably practicable to do so. It is not a total or
absolute impracticability which is required by clause (b).
What is requisite is that the holding of the inquiry is not
practicable in the opinion of a reasonable man taking a
reasonable view of the prevailing situation. It is not
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
// 10 //
insubordination prevails, and it is immaterial whether
the concerned government servant is or is not a party to
bringing about such an atmosphere. In this connection,
we must bear in mind that numbers coerce and terrify
while an individual may not. The reasonable
practicability of holding an inquiry is a matter of
assessment to be made by the disciplinary authority.
Such authority is generally on the spot and knows what
is happening. It is because the disciplinary authority is
the best judge of this that clause(3) of Article 311 makes
the decision of the disciplinary authority on this question
final. A disciplinary authority is not expected to
dispense with a disciplinary inquiry lightly or arbitrarily
or out of ulterior motives or merely in order to avoid the
holding of an inquiry or because the Department's case
against the government servant is weak and must fail.
The finality given to the decision of the disciplinary
authority by Article 311(3) is not binding upon the court
so far as its power of judicial review is concerned and in
such a case the court will strike down the order
dispensing with the inquiry as also the order imposing
penalty. The case of Arjun Chaubey v. Union of India
and others, [1984] 3 S.C.R. 302, is an instance in point.
In that case, the appellant was working as a senior
clerk in the office of the Chief Commercial
Superintendent, Northern Railway, Varanasi. The Senior
Commercial Officer wrote a letter to the appellant calling
upon him to submit his explanation with regard to
twelve charges of gross indiscipline mostly relating to
the Deputy Chief Commercial Superintendent. The
appellant submitted his explanation and on the very
next day the Deputy Chief Commercial Superintendent
served a second notice on the appellant saying that his
explanation was not convincing and that another chance
was being given to him to offer his explanation with
respect to those charges. The appellant submitted his
further explanation but on the very next day the Deputy
Chief Commercial Superintendent passed an order
dismissing him on the ground that he was not fit to be
retained in service. This Court struck down the order
holding that seven out of twelve charges related to the
conduct of the appellant with the Deputy Chief
Commercial Superintendent who was the disciplinary
authority and that if an inquiry were to be held, the
principal witness for the Department would have been
the Deputy Chief Commercial Superintendent himself,
resulting in the same person being the main accuser, the
chief witness and also the judge of the matter.
Xxx xxx xxx
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
// 11 //
second proviso because the word "inquiry" in that clause
includes part of an inquiry. It would also not be
reasonably practicable to afford to the government
servant an opportunity of hearing or further hearing, as
the case may be, when at the commencement of the
inquiry or pending it the government servant absconds
and cannot be served or will not participate in the
inquiry. In such cases, the matter must proceed ex parte
and on the materials before the disciplinary authority.
Therefore, even where a part of an inquiry has been
held and the rest is dispensed with under clause (b) or a
provision in the service rules analogous thereto, the
exclusionary words of the second proviso operate in
their full vigour and the government servant cannot
complain that he has been dismissed, removed or
reduced in rank in violation of the safeguards provided
by Article 311(2).
133. The second condition necessary for the valid
application of clause (b) of the second proviso is that the
disciplinary authority should record in writing its
reason for its satisfaction that it was not reasonably
practicable to hold the inquiry contemplated by Article
311(2). This is a Constitutional obligation and if such
reason is not recorded in writing, the order dispensing
with the inquiry and the order of penalty following
thereupon would both be void and unconstitutional.
134. It is obvious that the recording in writing of the
reason for dispensing with the inquiry must 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
// 12 //
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
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.
Xxx xxx xxx xxx
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 time 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 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
// 13 //
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.
3.10. Learned counsel for the Petitioner also relied
on another decision of the Hon'ble Apex Court reported
in 2023 SCC OnLine SC 617, Dr.V.R. Sanal Kumar
Vs. Union of India and Others. Placing reliance on
the decision in the case of Tulsiram Patel, Hon'ble
Apex Court in Paragraph-25 of the said judgment has
held as follows:
25. The aforesaid conclusion would take us to the next
question as to whether the non-interference with the
order of dismissal warrants any interference. In this
context, it is required to be noted that the retrospectivity
given to the order of dismissal from 01.09.2003 was
// 14 //
interfered with, by the Tribunal. It has become final
and it was given effect to by the respondent
organization by modifying the date of its effect from the
date of the order of dismissal. While considering the
above question, it is relevant to refer again to the
decision of the Constitution Bench in Tulsiram Patel's
case (supra). Though it was held that such an order
would be open to challenge on the ground of mala fides
or being based wholly on extraneous grounds, it is
relevant to note that in the case on hand, the order of
dismissal is not put to challenge on any of such
grounds. Going by the decision in Tulsiram Patel's case
(supra), when once such a power is invoked to
dispense with inquiry the consideration as to what
penalty should be imposed upon a delinquent employee
must be ex-parte. In other words, on that question no
opportunity of being heard is to be given. Even- after
holding so, in paragraph 114 of Tulsiram Patel's case
(supra), it was held that in order to arrive at a decision
as to which penalty should be imposed, the
disciplinary authority has to take into consideration the
various factors set out in T.R. Chellappan's case
(supra). Then, the question is what are such factors to
be taken into account in that regard in terms of T.R.
Chellappan's case (supra). A scanning of the decision
in T.R. Chellappan's case (supra), would go to show
that it was held therein that the disciplinary authority
while deciding the question as to what penalty should
be imposed on the delinquent employee in the facts and
circumstances of a particular case would have to take
into account the entire conduct of the delinquent
employee, a gravity of the misconduct committed by
him, the impact which his misconduct is likely to have
on the administration and other
extenuating circumstances or redeeming features if any
present in the case and so on and so forth. Such
aspects were looked into by the Tribunal. We have also
referred hereinbefore the acts and omissions on the
part of the appellant having regard to his role as a
scientist/engineer in ISRO and the role of ISRO as the
space agency of India. It is not the mere unauthorized
absence of the appellant that actually weighed with the
authority and evidently, the organization is perfectly
justified in casting suspicion on the honesty, integrity,
reliability, dependability and trustworthiness in view of
the factual situation obtained in this case, as explained
in the counter affidavit, besides entertaining the stand
that his unauthorized association with foreign
institution, especially in the area of propulsion, which
is a strategic research and development subject in the
organization and based on which the nation's rocketry
and ambitious launch vehicle programs are/were
advancing, was a matter of concern for the security of
the State. When such acts/conduct occur/occurs from a
scientist in a sensitive and strategic organization, the
decision to impose dismissal from service cannot be
said to be illegal or absolutely unwarranted. In other
words, we do not find any reason to hold that the
judgment of the High Court, dismissing the challenge
against the order of the Tribunal warrants any kind of
interference in exercise of the power under Article
// 15 //
136 of the Constitution of India. The appeal, therefore,
must fail and accordingly it is dismissed, however,
without any cost."
3.11. Learned counsel also relied on the decision in
the case of State of Orissa and Others vs. Amulya
Kumar Champatiray. This Court in Para-7 & 8 has
held as follows:-
"7. It is evident from the constitutional provision as
contained under Article 311 that the order of dismissal or
removal can only be passed after providing adequate and
sufficient opportunity of being heard to the delinquent
employee subject to some exception, one of such exception is
that the order of dismissal or removal can be recorded in
writing to show that the enquiry is not reasonably
practicable. We are concerned with this proviso since it is
the subject matter of issue raised by the parties in the
instant writ petition.
8. The proviso to Article 311(2) is attracted when the
authority is satisfied from the materials placed before him
that it is not reasonably practicable to hold a departmental
inquiry. That decision to do so cannot rest solely on the ipse
dixit of the concerned authority. It is incumbent on those
who support the order to show that the satisfaction is based
on certain objective facts ad is not the outcome of whim and
caprice. There must be independent material to justify the
dispensing with the inquiry envisaged by Article 311(2) of the
Constitution of India. The authority empowered to dismiss
etc. must record his reason in writing for denying the
opportunity under Clause 2 before making the order of
dismissal etc. and the reasons recorded must ex facie show
that it was not reasonably practicable to hold a disciplinary
enquiry".
3.12. Placing reliance on the ground taken in the
writ petition and the case laws as cited (supra), learned
counsel for the petitioner vehemently contended that
since after placing the petitioner under suspension vide
// 16 //
order dated 21.10.2021 under Annexure-1, no
proceeding was initiated against the petitioner, there
was no occasion on the part of Opp. Party No.5 to pass
the order of dismissal on the ground of initiation of 8
(eight) nos. of departmental proceedings and 6 (six)
nos. of criminal proceedings against the petitioner. It is
accordingly contended that the impugned order of
dismissal passed by Opp. Party No.2 vide order dated
24.10.2021 under Annexure-2 so confirmed by the
Appellate Authority vide order under Annexure-4 and 6
are not sustainable in the eye of law and requires
interference of this Court.
4. Mr. M.R. Mohanty learned Addl. Govt. Advocate
on the other hand made his submission basing on the
stand taken in the counter affidavit. It is contended
that even though petitioner entered into service as
Constable in the year 1995, but since his initial joining,
petitioner was proceeded with in 8(eight) nos. of
departmental proceeding and 6 (six) nos. of criminal
cases.
// 17 //
4.1. It is further contended that in course of
investigation in Infocity P.S. Case No.222 dated
10.10.2021 so registered under Section 364(A) of the
IPC read with Section 302 of the IPC, it is found that
the deceased was found dead in the hotel bar, run by
the petitioner, violating COVID-19 guideline. Basing on
the report submitted by the IIC in the aforesaid Infocity
P.S. on 11.10.2021, Opp. Party No.5 being the
disciplinary authority caused an enquiry into the
allegation against the petitioner. After completion of the
enquiry by the Addl. DCP, Bhubaneswar UPD, a report
was submitted on 21.10.2021 under Annexure-A/3
series. In the said report, it was held that petitioner has
direct implicitly with regard to running of the bar,
where the deceased was found dead in the night of
09.10.2021. Petitioner accordingly was placed under
suspension vide order dated 21.10.2021 under
Annexure-1.
4.2. It is also contended that petitioner was found
involved in 8 (eight) nos. of departmental proceeding
// 18 //
and 6(six) nos. of criminal cases and as per the report
submitted under Annexure-A/3 series, petitioner was
also found guilty. Accordingly, petitioner though was
placed under suspension vide order dated 21.10.2021
under Annexure-1, but taking into account the Enquiry
Report submitted under Annexure-A/3, involvement of
the petitioner in 8(eight) nos. of departmental
proceeding and 6 nos. of criminal cases, Disciplinary
Authority-Opp. Party No.5 thought it proper to
terminate the petitioner from his services with passing
of the impugned order of dismissal dated 24.01.2022
under Annexure-2, in exercise of power conferred
under Art-311(2)(b) of the Constitution of India. Article-
311(2)(b) reads as follows:-
"311(2)(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;"
4.3. Placing reliance on the aforesaid provision,
learned Addl. Govt. Advocate contended that taking
into account the involvement of the petitioner in
Infocity P.S. Case No.222 dated 10.10.2021 and
// 19 //
involvement of the petitioner in 8 (eight) nos. of
departmental proceedings as well as 6 (six) nos. of
criminal cases, disciplinary authority came to a
conclusion that, it is not practicable to hold enquiry
against the petitioner. Accordingly, in exercise of the
power conferred under Art-311(2)(b) of the Constitution
of India, petitioner was rightly dismissed from his
services vide order dated 24.10.2021 under Annexure-
2. Opp. Party No.5 while passing the impugned order of
dismissal has also assigned sufficient reason, for not
being practicable on his part to hold any enquiry.
4.4. It is contended that in two of the proceedings,
petitioner was imposed with the punishment of one
black and in 2 other proceedings; he was imposed with
the punishment of censure. In 2 (two) of the
proceedings, petitioner was exonerated from the
charges. Out of the 6 (six) criminal proceedings
initiated against the petitioner, petitioner has only been
acquitted in one and in the other 5 (five) criminal
proceedings, pending against the petitioner, petitioner
// 20 //
has been charge-sheeted. Stand taken by the Opp.
Parties in Para-7 and 9 of the counter reads as follows:-
"7. That in reply to para-4 of the writ petition the
allegation made by the petitioner is not correct. It is
humbly submitted that; during course of investigation of
Infocity PS Case No.222, dt.10.10.21, U/S-364 (A) IPC
turned to Section U/s-364 (A)/302 IPC by IIC Infocity PS
it is ascertained that, Manish Anurag who is the
deceased in above noted case along with his friends
were present at South City Bar on dtd.09.10.21 night
which is located at village Bhagabanpur under
Tamando PS for consuming liquor. Manish was detained
by the staffs of the bar for clearance of bill. The
petitioner Prasanna Kumar Behera is running the said
bar illegally violating the rule of COVID-19 guide lines.
Petitioner and his associates are regular visitor of the
Bar for consumption of liquor and dancing with the bar
girls and others to the tune of music. In this connection
IIC Infocity PS submitted a report to disciplinary
authority vide D.R. No.2485/Infocity PS. dt.11.10.21,
basing on the report the disciplinary authority
instructed to Sri P.K. Rout. OPS-1. Addl. DCP, BBSR
UPD to cause an enquiry into the allegation against
nefarious activity of Sri Prasanna Kumar Behera,
Secretary, OPH&C, BBSR UPD vide D.R. No.417/Con.
dt.11.10.21. After completion of enquiry Sri P.K. Rout,
OPS-I, AddI. DCP, BBSR UPD submitted his enquiry
report vide letter No.2561/HR(Estt.) dt.21.10.21. On
receipt of the enquiry report of Sri P.K. Rout. OPS-I,
Addl. DCP, BBSR UPD, the disciplinary authority
suspended the petitioner with effect from 21.10.2021
vide D.O. No.5016, dt.21.10.2021 for his gross
misconduct and negligence of duty. For better
appreciation the copy of letter No.2485/Infocity P.S.
dt.11.10.21, letter No.417/Con. dt.11.10.21 and letter
No.2561/HR (Estt.) dt.21.10.2021 are annexed
herewith as Annexure -A/3 Series.
xxxx xxxx xxxxx
9. That in reply to the averments made in Paragraph 6
of the Writ Petition, it is humbly submitted that 08 nos.
of Departmental Proceeding have been initiated against
the petitioner due to gross misconduct etc. in different
occasion and 06 numbers of criminal cases have been
registered against the petitioner including vigilance case
// 21 //
out of two numbers of case were charge sheeted and
four numbers of cases are pending under investigation
in as follow: -
(i) PTC Angul Prog. No.5/97 was initiated for his
desertion from L&O duty at Brahmabarada. The
petitioner was found guilty and awarded with one
Black Mark.
(ii) Erstwhile Khordha Dist- Prog. No.38/2006 was
initiated for his misconduct, unauthorised absent and
disobedience of order. The Appellant was found guilty
and awarded one Black Mark.
(iii) Erstwhile Khordha Dist- Prog. No.6/2006 was
initiated for his unauthorized absent from duty and
gross misconduct. The appellant was found guilty and
awarded with a Censure and without pay.
(iv). In BBSR UPD Prog. No.17/2016 was initiated for
creating unpleasant situation arising out of stalking a
lady constable in the O/o the DCP, BBSR exhibiting his
highhandedness and criminal bent of mind. The
appellant was awarded with a Censure in SB.
(v). In BBSR UPD Prog. No.42/2017 was initiated for his
indiscipline conduct and negligence in duty during
inauguration of the OPH@CA building BBSR UPD at
Reserve Police Line, BBSR, which is pending in
prosecution stage.
(vi). BBSR UPD Prog. No.10/2020 was initiated for his
gross misconduct and dereliction of duty as he along
with his & others associates were found congregated at
road side in front of Jaydev Bhavan and were indulged
in consuming alcohol violating the Covid-19 guidelines,
which is pending in prosecution state.
(vii). In Erstwhile Khordha Prog. No.3/2006 was
initiated for his criminal misconduct and unauthorised
absent being involved in Laxmisagar P.S Case was
No.159/2005, the Petitioner exonerated from charge as
the appellant was acquitted by the court by the ground
of lack of sufficient evidence as the case was
compromised.
(viii). In Erstwhile Khordha Dist. Prog. No.16/2005 was
initiated for his misconduct and unauthorised absent
and disobedience of order. The petitioner was
exonerating from charge.
// 22 //
(ix). Laxmisagar P.S. Case No. 159 dtd. 9.8.2005 U/s
294/341/342/323 /379/506/34 IPC/25/27 Arms Act
was registered against Prasanna Ku. Behera and
others for assaulting one Narayan Mohanty, snatching
of gold chain and threatened him by means of revolver.
The case was charge sheeted and acquitted as during
trial the victim claimed to have not seen Prasanna Ku.
Behera present at the time of alleged incident. This is
another judicial testimony where the witnesses to the
incident and the Complt. also turned hostile and did not
depose against the serving police personnel. This
implies his influence to manipulate his victims and other
witnesses to his crimes.
(x). Sahidnagar P.S. Case No. 338 did. 20.10.2012 U/s
341/323/294/427/379/506/34 IPC was registered
against Prasanna Ku. Behera and others for assaulting
the Camera Assistant of Kanak TV namely Gagan Ku.
Jena and snatching of cash of Rs. 500/- with other
articles. The case was charge sheeted under the above
Sections of Law against Prasanna Ku. Behera. The case
ended in acquittal as both the parties entered into a
compromise. This case reinforces the repeated criminal
intimidation of public. In this instance he has not spared
the Surprisingly. persons. media no departmental
proceeding has been drawn or action taken for this
grave allegation. This case has also ended in acquittal
due compromise thus implying his capability to
influence the victims and to witnesses.
(xi). Khandagiri P.S. Case No. 31 dtd.28.1.2010 U/s
420/468/471/ 294/506/34 IPC was registered on the
written report of complainant Debaraj Routray against
Prasanna Ku. Behera and others for forgery for the
purpose of cheating using as genuine a forged document
in respect of land situated in Patrapada Mouza and
complt. dire consequences. The case is pending abused
the with investigation. This allegation indicates his
involvement in land related matters and cheating. In
this case he has surrendered in the Court and is out on
bail. It is noteworthy that the Bar coming up in present
instance of misconduct is situated in the same locality
where he has In this instance he has not spared the
Surprisingly. persons. media no departmental
proceeding has been drawn or action taken for this
grave allegation. This case has also ended in acquittal
due compromise thus implying his capability to
influence the victims and to witnesses.
// 23 //
(xi). Khandagiri P.S. Case No. 31 dtd.28.1.2010 U/s
420/468/471/ 294/506/34 IPC was registered on the
written report of complainant Debaraj Routray against
Prasanna Ku. Behera and others for forgery for the
purpose of cheating using as genuine a forged document
in respect of land situated in Patrapada Mouza and
complt. dire consequences. The case is pending abused
the with investigation. This allegation indicates his
involvement in land related matters and cheating. In
this case he has surrendered in the Court and is out on
bail. It is noteworthy that the Bar coming up in present
instance of misconduct is situated in the same locality
where he has committed the above FIR mentioned
crime.
(xii). Dhauli P.S. Case No. 4 dtd. 12.1.2019 U/s 406/34
IPC was registered against Prasanna Kumar Behera
and others on the written report of Sanatan Seth
regarding criminal breach of trust in respect of a tractor.
The case is pending investigation. The FIR indicates
about his involvement in real estate business. It also
indicates abuse of his position as policeman. On perusal
of records, it is seen that no departmental action has
been initiated against C/1634 Prasanna Kumar Behera
in this instance also. This shows the extent of spread of
his tentacles inside the department as a result no action
is even being initiated. This is only due to him being a
policeman and a leader of Police Constable and
Havildar Association.
(xiii). Tamando P.S. Case No. 221 dtd. 22.10.2021 U/s
269/270/168/385/386/506/120-B IPC / 52(a)Odisha
Excise Act/96 Odisha Urban Police Act/3 Epidemic
Disease Act, 1997/5 Odisha Fireworks and
Loudspeaker RegulationAct, 1958. The gist of the FIR is
that, Prasanna Ku. Behera and others were running a
Bar with dancing programme without any valid licence,
selling liquor without any authority till late of the night
violating Covid 19guidelines and committing other
offenses. In this case he has been arrested on 23.10.21
and forwarded to Court. This case shows his
involvement in business even being a policeman and
Govt. servant. Also, this highlights his debasement,
moral turpitude and anti-social characteristic.
(xiv). Bhubaneswar Vigilance PS case No.32.
dtd.30.10.21, U/S-13 (2), r/w 13 (1) (b)/12 P.C. Act. as
amended in the year 2018 has been registered against
the petitioner and others. On the allegation of
possession of disproportionate assets to the tune of
// 24 //
Rs.6,97,15,057.00 to their known source of income. The
investigation of the case is in progress.
There was ample evidence against the petitioner
to have committed the crime in different P. Ss of this
UPD. Hence, the appointing authority has carefully
analyzed the evidence on record and was of considered
view that it is not reasonably practicable tohold a proper
departmental enquiry and further continuance of
petitioner in the police force is likely to cause irreparable
loss to the morale, functioning and credibility of the
Police Department in the State Odisha. Accordingly,
taking into consideration of the above facts, the
appointing authority has rightly dismissed the petitioner
from service vide DO No. 5035 dated 24.10.2021 by
giving a well-reasoned speaking order.
That in view of the settled position of law in the
case of Union Territory, Chandigarh and others-vs-
Mohindar Singh, report in AIR 1997 SC 1201. justifying
recourse of Article 311. clause 2 (b) of adian
Constitution and as the petitioner is similarly placed
being Police Officer against whom member of the Public
would not be willing to depose fearing harassment, so,
in order to restore public faith it was felt expedient in
the interest of public service to take exemplary
disciplinary action to restore morale. faith and
credibility of Police for which the authority had passed
the impugned order without recourse of any disciplinary
proceeding inquiry against the appellant as per
OCS(CCA) Rule, 1962."
4.5. It is contended that petitioner even though
challenging the order of dismissal, preferred an appeal
under Annexure-3, the same was rejected by the
Appellate Authority-Opp. Party No.4 vide order dated
21.01.2022 under Annexure-4. Not only that revised
appeal filed by the petitioner under Annexure-5, was
once again rejected by the Opp. Party No.4 vide his
// 25 //
order dated 02.04.2022 under Annexure-6. The
appellate authority-Opp. Party No.4 exercised the
power of appellate authority, in terms of the provisions
contained under Section 25 of the Orissa Urban Police
Act, 2003. Section 25 of the Act reads as follows:-
"Sec. 25 Discipline and Penalties
(1) The Director General of Police, the Commissioner,
the Additional and penalties. Commissioner, the
Deputy Commissioner, the Additional Deputy
Commissioner and the Assistant Commissioner
shall have the same powers to suspend, discipline
and penalise the police officers of subordinate ranks
as may have been given to them or to police officers
of their equivalent ranks in the State by or under the
Police Act, 1861 and while doing so they shall
follow the same procedure and award the same
penalties as prescribed by or under the said Act.
(2) An appeal against any order of punishment
passed against a police officer of subordinate rank
shall lie in the same manner and be subject to same
conditions and limitations as prescribed by or under
the Police Act, 1861."
4.6. Learned Addl. Govt. Advocate accordingly
contended that since during his continuance in the
department, that too in police department, petitioner
who happens to be a Constable, was implicated in 8
(eight) nos. of departmental proceedings and 6(six) nos.
of criminal cases and was found involved in Infocity
P.S. Case No.222 dated 10.10.2021, no illegality or
// 26 //
irregularity can be found with the impugned order of
dismissal passed by Opp. Party No.5 in exercise of
power conferred under Art-311(2)(b) of the Constitution
of India. In support of his submission, reliance was
placed to the decisions of the Hon'ble Apex Court
reported in AIR 1997 SC 1201 (Union Territory,
Chandigarh and others Vrs. Mohindar Singh),
Satyavir Singh & UOI & Others (1985 (4) SCC 252,
Kuldeep Singh Vs. State of Punjab & Others (1996
(10) SCC 659) and Ikrammuddin Ahmad Borar Vs.
Supdt. of Police Darrong & Others (AIR 1988 SC-
2245).
4.7. Hon'ble Apex Court in the case of Mohindar
Singh in Para-5 & 6 has held as follows:-
"5. We are unable to understand the reasoning of the
Tribunal when it says that the reason given by the Senior
Superintendent of Police is not sufficient reason for
dispensing with the enquiry under proviso (b) to Article
311(2). The order of dismissal recites that "it is not
reasonably practicable to hold an enquiry against SI
Mohinder Singh CHG/1 for the reason that the witnesses
cannot come forward freely to depose against him in a
regular departmental enquiry". Clauses (2) and (3) of
Article 311, insofar as they are relevant, read thus:
// 27 //
"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 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) ***
(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) ***
(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."
6. Clause (3) of Article 311, it may be noticed, declares
that where a question arises whether it is reasonably
practicable to hold an inquiry as contemplated by clause
(2), the decision of the authority empowered to dismiss
such person shall be final on that question."
4.8. Hon'ble Apex Court in the case of Satyavir Singh
in Para-15 & 23 has held as follows:-
"15. Though several contentions were raised in the said writ
petition, in view of the judgment in Tulsiram Patel case [(1985)
3 SCC 398: 1985 SCC (L&S) 672] the only contention taken at
the hearing of these two appeals was that the said orders of
// 28 //
dismissal were passed mala fide and the reasons given therein
for dispensing with the inquiry were not true and that an
inquiry was reasonably practicable. Several points were urged
in support of this contention.
xxxx xxxxx xxxx xxxxx
23. We are, therefore, of the opinion that clause (b) of the
second proviso to Article 311(2) and Rule 19 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965, were
properly applied to the case of each of the appellants and the
impugned orders of dismissal were validly passed against
them."
4.9. Hon'ble Apex Court in the case of Kuldeep Singh
in Para-8 has held as follows:-
"8. Proviso (b) to Article 311(2) says that the enquiry
contemplated by clause (2) need not be held
"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
enquiry".
Clause (3) of Article 311 expressly provides that
"If, in respect of any such person as aforesaid, the
question arises whether it is reasonably practicable to
hold such enquiry 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."
These provisions have been the subject-matter of
consideration by a Constitution Bench of this Court
in Union of India v. Tulsiram Patel [(1985) 3 SCC 398 :
1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] . It
would be appropriate to notice a few relevant holdings
in the said judgment: (SCR pp. 205-74 : SCC pp. 454-
507, paras 62-138)
"... before denying a government servant his
constitutional right to an inquiry, the first consideration
would be whether the conduct of the government
servant concerned is such as justifies the penalty of
dismissal, removal or reduction in rank. Once that
conclusion is reached and the condition specified in
the relevant clause of the second proviso is satisfied,
// 29 //
that proviso becomes applicable and the government
servant is not entitled to an enquiry.
***
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 government servant
concerned is or is not a party to bringing about such
an atmosphere. ... 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. ...
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....
***
Where a government servant is dismissed, removed
or reduced in rank by applying clause (b) or an
analogous provision of the service rules and he
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. ... 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. ... 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."
4.10. Hon'ble Apex Court in the case of Ikrammuddin
Ahmad Borar in Para-11 to 13 has held as follows:-
"11. The scope of clause (b) of the second proviso to
Article 311(2) and of Article 311(3) came up for
consideration before a Constitution Bench of this Court
in Union of India v. Tulsiram Patel [(1985) 3 SCC 398 :
// 30 //
1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] . While
construing the clause "it is not reasonably practicable
to hold such enquiry" used in clause (b) aforesaid it
was held: (SCC p. 503, para 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 intimidates
witnesses who are going to give evidence against him
with fear of reprisal as to prevent them from doing so"
12. With regard to Article 311(3) of the Constitution
after pointing out that where a government servant is
dismissed, removed or reduced in rank by applying
clause (b) or an analogous provision of the service
rules and he 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 judicial review in matters where
administrative discretion is exercised, it was held:
(SCC p. 507, para 138)
"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
// 31 //
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.
13. One of the illustrations justifying clause (b) of the
second proviso to Article 311(2) being invoked, as
indicated above, is the non-availability of the
witnesses on account of fear of the officer concerned.
In the instant case as is apparent from the impugned
order of dismissal this was the main ground for
invoking the said clause (b). On the material on record,
it is not possible for us to take the view that there was
an abuse of power by the disciplinary authority in
invoking clause (b). The Superintendent of Police who
passed the order of dismissal was the best authority
on the spot to assess the situation in the
circumstances prevailing at the relevant time and we
do not find any good ground to interfere with the view
taken by the Superintendent of Police in this behalf. As
pointed out in the case of Tulsiram Patel [(1985) 3 SCC
398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] in
such matters, the court will not sit in judgment over the
relevancy of the reasons given by the disciplinary
authority for invoking clause (b) like a court of first
appeal and that even in those cases where two views
are possible, the court will decline to interfere. In this
view of the matter, we do not find any substance in
the second submission either."
5. Having heard learned counsel for the parties and
considering the submissions made, this Court finds
that petitioner was appointed as a Constable vide
No.C/1634 in the year 1995. It is not disputed that
petitioner during his continuance in the department,
// 32 //
was involved in 8 (eight) nos. of departmental
proceedings and 6 (six) nos. of criminal cases.
5.1. Taking into account the involvement of the
petitioner in 8 (eight) nos. of departmental proceedings
and 6 (six) nos. of criminal cases and the stand taken
in the counter affidavit as well as the decisions relied
on by the learned Addl. Govt. Advocate, it is the view of
this Court that petitioner has been rightly terminated
from his services vide order dated 24.10.2021 under
Annexure-2 of Opp. Party No.5 in exercise of the power
conferred under Art-311(2)(b) of the Constitution of
India, so confirmed by the Appellate authority-Opp.
Party No.4 vide order under Annexure-4 and 6. Opp.
Party No.5 as found from order dated 24.10.2021
under Annexure-2 has also assigned sufficient reason
as to why it is not practicable to hold enquiry against
the petitioner.
5.2. The decision relied on by the learned counsel for
the petitioner, as per the considered view of this Court,
// 33 //
cannot be made applicable, taking into account the
gravity and seriousness of the allegations made against
the petitioner in the departmental proceedings and
criminal proceedings.
5.3. It is also the view of this Court that since
petitioner is working in Police Department, where
Discipline and Good Conduct is of prime importance,
conduct of the petitioner as found from the record does
not permit this Court to accept the stand of the learned
counsel appearing for the petitioner that petitioner has
been illegally dismissed vide order dated 24.10.2021
under Annexure-2.
5.4. In any view of the matter, this Court finds no
illegality or irregularity with the impugned order of
dismissal so passed on 24.10.2021 under Annexure-2
and confirmed by Opp. Party No.4 vide order dated
22.01.2022 under Annexure-4 and 02.04.2022 under
Annexure-6. Accordingly, this Court is not inclined to
// 34 //
interfere with the impugned orders and dismiss the
Writ Petition.
6. The Writ Petition accordingly stands dismissed.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 12th December, 2025/Basudev
Location: High Court of Orissa, Cuttack
