Rajnish Kumar Singh vs The State Of Bihar
2021 Latest Caselaw 114 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Civil Writ Jurisdiction Case No.8054 of 2020
     ======================================================

Rajnish Kumar Singh, Gender-Male, aged about 32 years, S/o Ramlakhan Singh, Resident of Village - Masuda, P.O. - Sakri-Khurd, P.S. - Mehdiya, District - Arwal, Pin - 804428.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Home Department, Government of Bihar, Patna.

2. The Director General of Police-cum-I.G. of Police, Bihar, Patna.

3. The D.I.G. of Police, Patna.

4. The Senior S.P. of Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Ranjit Jha, Adv.

For the Respondent/s : Mr. AC to SC-8 ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT Date : 13-01-2021

Heard the learned counsel for the petitioner

as well as the State.

2. The petitioner, a constable, has

challenged his dismissal from service by order dated

26.03.2020 passed by the Senior Superintendent of

Police, Patna as also the order in appeal dated Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

27.07.2020 (Memo No. 269) passed by the Inspector

General of Police, Patna, whereby the order of dismissal

has been upheld.

3. On 25.03.2020, the S.H.O. of Danapur

Police Station received an information that some police

personnel are extracting illegal gratification under the

garb of implementing the lock-down direction which was

ordered in view of the COVID-19 pandemic. The S.H.O.,

Danapur, in order to verify the correctness of such

information, reached Danapur, where he found a person

by the name of Sonu Sah lying injured with a gun-shot

in his leg. He is said to have told the S.H.O. that he was

shot at by one of the constables who were demanding

illegal gratification from him. Those constables were not

wearing their nameplates on their uniform. The injured

person was brought to Danapur Sub-Divisional Hospital

for treatment and a case was registered vide Danapur

P.S. Case No. 234 of 2020, dated 25.03.2020, under

Sections 307, 386, 325, 504, 506 and 34 of the Indian

Penal Code read with Section 27 of the Arms Act. Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

4. The matter was inquired into and in the

course of inquiry, it was found that the petitioner and

two other constables, who had been deployed at Danapur

Court for security duty, were involved in demanding

illegal gratification and injuring the aforesaid Sonu Sah.

The inquiry revealed that three rounds of ammunition

which was disbursed to one of the constables, viz.,

Anirudh Kumar, was found missing. It was affirmed

from the inquiry that constable Anirudh Kumar had

opened fire from his service pistol. All the three

constables including the petitioner were arrested and

forwarded to judicial custody. No satisfactory

explanation was given by them for having gone to the

place of occurrence while they had been deployed for

security duty at Danapur Court.

5. On the aforesaid facts, the Senior

Superintendent of Police, Patna, by exercising his powers

under Article 311 (2) (b) of the Constitution of India,

dismissed the petitioner from service vide his order dated

26.03.2020. The dismissal was made effective from the Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

date of the occurrence, i.e., from 25.03.2020.

6. A perusal of the order dated 26.03.2020

indicates that the Senior Superintendent of Police, Patna

took note of the fact that during the lock-down period

and promulgation of National Disaster Management Act,

essential services were maintained. Despite that, such

an action was resorted to by the petitioner and two

others which has besmirched the name of the police

force and the nature of the offence committed would,

therefore, fall in the category of rarest of the rare cases.

It was held by the Senior Superintendent of Police that

the petitioner and two others are in custody and,

therefore, the departmental proceeding against them

cannot be held.

7. The appeal of the petitioner also did not

succeed on the same grounds.

8. The challenge to the aforesaid orders is

on the sole ground that no departmental proceeding was

initiated against the petitioner nor any show-cause notice

was given to him to ascertain his point of view and an Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

order of dismissal has been passed, which has been

affirmed in appeal.

9. It has further been submitted on behalf

of the petitioner that the punishment imposed upon him

is highly excessive and that no reason has been assigned

for dispensing with the inquiry before dismissing him by

taking resort to the provisions contained in Article 311

(2) (b) of the Constitution of India.

10. Article 311 of the Constitution of India

reads as hereunder:

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under 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:

Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

[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 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 Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

remove such person or to reduce him in rank shall be final.]"

11. In Union of India & Anr. Vs.

Tulsiram Patel : (1985) 2 SCC 398, the Constitution

Bench of the Supreme Court decided several issues

relating to Articles 309, 310 and 311 of the Constitution

of India.

12. The safeguard provided to a civil

servant by Clause (2) of Article 311 of the Constitution

of India is taken away, when a penalty is imposed on the

conduct of a government servant which has led to his

conviction on a criminal charge or where it is not

reasonably practicable to hold an inquiry or where the

President or the Governor, as the case may be, is

satisfied that no inquiry should be held in the interest of

security of the State.

13. It was decisively held in Tulsiram

Patel (supra) and Satyavir Singh & Ors. Vs. Union

of India & Ors. : AIR 1986 SC 555 that the language

of the second proviso of Article 311 (2) of the

Constitution of India is plain and unambiguous. The Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

constitutional prohibition appearing in Article 311 (2) is

not directory but mandatory and is in the nature of a

constitutional prohibitory injunction, restraining the

disciplinary authority from holding an inquiry under

Article 311 (2) of the Constitution of India or from giving

any kind of opportunity to the concerned civil servant in

a case where anyone of the three clauses of the second

proviso becomes applicable. The Supreme Court has

clarified that in the second proviso, no inquiry of any

kind or opportunity to show-cause need be introduced.

Such a decision was based on the maxim, expressum

facit cessare tacitam" (where there is express mention of

certain things, then anything not mentioned is excluded).

The principle/maxim is based on logic and commonsense

and is for a public purpose.

14. However, Clause (b) of the second

proviso to Article 311 of the Constitution of India

stipulates two conditions precedent which must be

satisfied before dispensing with a departmental enquiry.

These are (i) the existence of a situation which makes Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

the holding of an inquiry contemplated by Article 311 (2)

not reasonably practicable and (ii) the disciplinary

authority ought to record in writing its reason for its

satisfaction that it is not reasonably practicable to hold

such an inquiry.

15. It must be clarified that whether it was

practicable to hold the inquiry or not is to be judged in

the context of whether it was reasonably practicable to

do so. The Supreme Court has very amply clarified that

it is not the total and absolute impracticability which is

required under Clause (b) of the second proviso, but

practicability of a reasonable man taking a reasonable

view of the prevailing situation. The assessment is to be

of the disciplinary authority and the reasons are required

to be penned down. If the reasons are not recorded or

the reasons are not found to be genuine or satisfactory

or warranted in a situation, the order cannot be

sustained in the eyes of law.

16. From the perusal of the order passed

by the disciplinary authority, it appears that the Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

requirement of a proceeding has been dispensed with on

the ground that a serious misconduct has been reported

against the petitioner and others during COVID-19

period and that the petitioner is in custody.

17. The gravity of the offence is not the

consideration for invoking Article 311 (2) of the

Constitution of India or any service rules, but the

impracticability of holding of an inquiry is. The gravity of

the misconduct can be taken into account only with

respect to fixing the quantum of punishment, but not for

the purpose of dispensing with the inquiry. The two

reasons, viz., serious misconduct and the petitioner being

in custody, which can be inferred from the order of the

disciplinary authority, do not constitute a good ground

for invocation of the Article 311 (2) (b) of the

Constitution of India.

18. There is nothing on record to indicate

that inquiry could not have been held. All that was

required to be projected as a matter of evidence in the

inquiry, if it would have been held, that the petitioner Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

was not required to go to the place where illegal

gratification was demanded and the victim was shot at in

his leg; that the petitioner was disbursed the arm and

the ammunition and that he had accompanied the two

others to the place of occurrence. His identification by

the victim would have been the most clinching evidence

with respect to the misconduct and the offence.

19. There could be a situation where the

petitioner may have resisted the conduct of his

associates or may not have been present at the place of

occurrence or he may have accompanied his other two

associates to some distance but would have returned to

his duties. Every person has a right to be defended.

True it is that if illegal gratification was demanded and

the victim was shot at in case of non-payment, this is

one of the most grievous misconduct on the part of a

police constable who is deployed to maintain law and

order and to provide safety to people at large. A

protector becoming a predator cannot be tolerated.

Nonetheless, what is of equal importance is that a wrong Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

person ought not to be penalized for any action which he

has not committed or is not directly or even remotely

responsible for. It is precisely for this reason that the

constitutional mandate is that no government servant

could be dismissed without an inquiry.

20. The provisions of Article 311 (2) (b) of

the Constitution of India is only an exception to such

requirement of inquiry.

21. Since no reason/plausible reason has

been recorded, it is difficult for this Court to sustain the

aforesaid order.

22. The appellate order also does not

address the aforesaid issue, viz., the requirement of

dispensing with the inquiry and recording of such reason.

23. Both the orders, referred to above,

therefore are deficient on that account.

24. In Jaswant Singh Vs. State of

Punjab and Ors. : (1991) 1 SCC 362 , a police

personnel was dismissed from service but the superior

police officer, while exercising the powers of revision, Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

remanded the case of that officer for a reconsideration

and fresh orders. Shortly, thereafter, an attempt was

made by that police personnel to commit suicide. A

show-cause notice was served upon him to explain his

conduct but before he could reply, an order of dismissal

was passed, invoking Clause (b) of the second proviso to

Article 311 (2) of the Constitution of India and the

corresponding provision of the Punjab Police Rules,

giving two reasons in support of his satisfaction that it

was not practicable to hold a departmental inquiry, viz.,

that he had threatened that he will not allow the holding

of a departmental enquiry and that he and his associates

would cause physical injuries to the witnesses as well as

the Inquiry Officer. The order of dismissal was not

interfered with by the High Court but the Supreme

Court, on being satisfied that no material was disclosed

to be in existence on the date of passing of the order of

dismissal in support of the subjective satisfaction of the

authority concerned regarding the necessity of holding an

inquiry, held that since a departmental enquiry was Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

conducted against that personnel in the past and no

difficulty was posed in examining the witnesses, it was

difficult to accept the reason that because of the threat

given by the police personnel, the departmental enquiry

has been forfeited and an order of dismissal has been

passed. The Supreme Court went on to state that the

decision to dispense with the departmental enquiry

cannot be rested solely on the ipse dixit of the concerned

authority. The personal assessment of the disciplinary

authority may not be sufficient.

25. For almost similar reasons, the

Supreme Court in Chief Security Officer & Ors. Vs.

Singasan Rabi Das : (1991) 1 SCC 729 , held that if

there is total absence of sufficient materials or good

grounds for dispensing with the inquiry, the order of

punishment cannot be sustained.

26. In Tarsem Singh Vs. State of

Punjab & Ors. : (2006) 13 SCC 581 , the dismissal of

a police constable who was charge-sheeted for outraging

the modesty of a woman and having carnal intercourse Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

against the law of nature with a migrant labourer, by

invoking Article 311 (2) (b) of the Constitution of India,

was not sustained on the ground that the assessment of

the disciplinary authority that the delinquent could win

over aggrieved people or the witnesses from giving

evidence, was not sufficient or real as no material was

placed or disclosed in such order to show that the

subjective satisfaction of the authority was based on

objective criteria. The ground that the conduct of the

delinquent which was of a very grave and heinous

nature, capable of bringing bad name to the police force

of the State, was not accepted for justifying the

forfeiting of regular departmental enquiry. The Supreme

Court in that instance lamented that if a preliminary

inquiry was conducted in the action, there was no reason

why formal departmental enquiry should have been

avoided.

27. The principles which are to be followed

for dispensing with a departmental enquiry by invoking

Article 311 (2) (b) of the Constitution of India have been Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

very well delineated by series of decisions of the

Supreme Court, following the Constitutional Bench

judgment in Tulsiram Patel (supra) [refer to Reena

Rani Vs. State of Haryana & Ors. : (2012) 10 SCC

215 and Risal Singh Vs. State of Haryana & Ors. :

(2014) 13 SCC 244].

28. The order of dismissal passed by the

disciplinary authority does not at all refer to the

circumstances holding the conduct of the departmental

enquiry against the petitioner to be impracticable. In

fact, no ground has been assigned but the impression of

the disciplinary authority has been penned down that the

conduct of the petitioner is very grave and has brought

bad name to the police force. Such action by anyone,

much less a police personnel, is condemnable but

obviating the necessity of a departmental enquiry/regular

enquiry may not be totally relatable to the gravity of the

offence, but impracticability of holding an inquiry.

29. The orders impugned in the present

petition fall foul of the aforesaid requirement under Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

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

30. Both the orders are, therefore, set

aside.

31. However, regard being had to the

circumstances and the nature of the accusation, this

Court does not deem it expedient to direct for

reinstatement of the petitioner straightway. This Court

also refrains from even remotely suggesting that there

could not be any invocation of Article 311 (2) (b) of the

Constitution of India in the circumstance. What this

Court directs that a fresh decision be taken by the

disciplinary authority, within a period of eight weeks

from the date of receipt/production of a copy of this

order, whether the petitioner should be dismissed from

service without affording him an inquiry by invoking the

provision of Article 311 (2) (b) of the Constitution of

India. In case, it is found that there are sufficient

reasons for holding that the inquiry would not be

practicable, the reasons for the same must be recorded

in the order. A reasoned order is, therefore, required to Patna High Court CWJC No.8054 of 2020 dt.13-01-2021

be passed. In case, it is found that a departmental

enquiry would be necessary, that decision also shall be

taken by the disciplinary authority and in that event, the

inquiry should be conducted with urgent dispatch and a

final decision be taken.

32. Since, there is no direction for

reinstatement of the petitioner, this Court only cautious

that whatever decision has to be taken, it must be done

with due diligence, urgent dispatch and without loosing

any time.

33. The petition stands allowed to the

extent indicated above.

(Ashutosh Kumar, J) Praveen-II/-

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          19.01.2021
Transmission Date       N/A