Manohar Lal Vs. Commissioner of Police & Ors.
2026 Latest Caselaw 198 SC

Manohar Lal Vs. Commissioner of Police & Ors.

[Civil Appeal No. 13860 of 2024]

J.K. Maheshwari, J.

1) The instant appeal is directed against the order dated 02.02.2023 passed by the Division Bench of the High Court of Delhi (hereinafter 'High Court') disposing of the writ petition filed by the appellant questioning the order of dismissal from service dated 18.07.2017 passed by Deputy Commissioner of Police (hereinafter 'DCP'), New Delhi, the Order of Appellate Authority dated 30.07.2018 and the Order dated REPORTABLE 29.11.2022 passed by Central Administrative Tribunal, Principal Bench at New Delhi (hereinafter 'CAT') in OA No. 744 of 2020.

2) The appellant was dismissed from service by the DCP, Delhi vide order dated 18.07.2017, in exercise of the power under clause (b) of second proviso to Article 311(2) of the Constitution of India without conducting departmental inquiry. The reason assigned for not resorting to the normal procedure prescribed under Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter '1980 Rules'), was that Shri Govind Sharma, Assistant Commissioner of Police (hereinafter 'ACP') in the preliminary enquiry found that it would not be 'reasonably practicable' to conduct a regular departmental enquiry on account of reasonable belief of threat, intimidation and inducement to the victim and thereby creating the possibility of tampering of the vital evidence.

3) The appeal against the said order was dismissed by the Special Commissioner of Police, Delhi vide order dated 30.07.2018 accepting the reasons as indicated in the order of dismissal.

4) Being dissatisfied, the appellant filed OA No. 744 of 2020 before CAT seeking quashment of his dismissal order and the order of the appellate authority. The CAT referred to the stand as taken in the counter affidavit of the State, relied upon some judgments and declined to interfere, dismissing the Original Application filed by the appellant vide order dated 29.11.2022. Writ Petition (Civil) No. 1309 of 2023 filed before the High Court of Delhi by the appellant was dismissed, accepting the same reasoning as taken by the DCP.

5) Ms. V. Mohana, learned senior counsel, appearing on behalf of the appellant, referring to Section 21 of the Delhi Police Act, 1978 (hereinafter '1978 Act') contends that the power of punishment conferred upon the competent authority is not absolute; it is subject to the provisions of Article 311 of the Constitution of India and the 1980 Rules referred above. Referring to Rule 6, she contended that punishment mentioned at Serial Nos. (i) to (vii) of Rule 5 therein are deemed to be 'major penalties' and the competent authority can award the same after regular departmental inquiry.

It is contended that as per Rule 14(2), a punishment of major penalty ought to be awarded by the appointing authority only after the regular departmental inquiry. Article 311(2) of the Constitution of India contemplates that if a person is a member of a civil service of the Union or all India Service or a Civil Service of a State or holds a civil post under the Union or a State, he shall not be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and has been afforded reasonable opportunity of being heard.

The first proviso contemplates that in case the penalty is required to be imposed on the basis of evidence adduced during the inquiry, it would not be necessary to afford an opportunity of making representation on the proposed penalty. Clause (b) of second proviso states that where the authority empowered to remove a person is satisfied for some reason to be recorded in writing, to the effect that holding an inquiry is not 'reasonably practicable', the orders can be passed without adhering to the general principle contemplated by Article 311(2).

6) In reference to above, learned senior counsel submits that after registration of FIR No. 390 of 2017 on 28.06.2017, the appellant was taken into custody on 29.06.2017 and released on bail on 14.10.2017. In the meanwhile, the competent authority, vide order dated 18.07.2017, in exercise of power under clause (b) of second proviso of Article 311 (2), indicating that possibility of traumatizing the witnesses may not be ruled out, dismissed him from service. It is forcefully contended that while the appellant was in custody, reason as assigned of intimidating or traumatizing the witnesses are flimsy.

In absence of any convincing material, exercise of such extra-ordinary power ignoring the procedure prescribed under the 1980 Rules is not permissible otherwise it would amount to misuse of the power by the competent authority. In support of these contentions, learned senior counsel has placed reliance on the judgments of this Court in Union of India and Anr. v. Tulsiram Patel and Others1, Jaswant Singh v. State of Punjab and Ors.2, Ex. Const. Chhote Lal v. Union of India & Ors.3, Sudesh Kumar v. State of Haryana and Ors.4, Tarsem Singh v. State of Punjab5, State of Punjab v. Harbhajan Singh6, Reena Rani v. State of Haryana7, and Risal Singh v. State of Haryana8.

7) It is urged that the dismissal order passed by the competent authority and confirmed by the appellate authority is not legally sustainable and the CAT as well as the High Court have committed grave error in refusing to entertain the Original Application and the Writ Petition challenging the same. Therefore, the order of dismissal is liable to be quashed and set-aside.

8) Per contra, learned Additional Solicitor General Mr. Brijender Chahar, representing the State, inter alia, relied upon the preliminary inquiry of the ACP and the documents collected, DD entries of information and proceedings and other relevant material in support of his contentions. As per him, these documents reflect that the complainant and witnesses could have been traumatized by the egregious act of appellant and his associates who are in the police department.

Possibility of their association with criminals and to approach the complainant or witnesses to intimidate or to induce them for withdrawing from the case or to turn them hostile during trial cannot be ruled out. In light of such apprehension, power exercised by the competent authority for not proceeding with the normal procedure of departmental inquiry is within the scope of its authority. It is contended that the stand as taken by the Department has been accepted by the CAT and the High Court; therefore, interference is not warranted.

9) After hearing learned counsel for the parties, we find that since the power of punishment of the competent authority has been conferred upon it vide Section 21 and the procedure as prescribed under Section 22 of the 1978 Act, they are relevant, hence, reproduced as under:

"21. Powers of punishment.-

(1) Subject to the provisions of article 311 of the Constitution and the rules, the Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police, Additional Deputy Commissioner of Police, Principal of the Police Training College or of the Police Training School or any other officer of equivalent rank, may award to any police officer of subordinate rank any of the following punishments, namely:-

(a) dismissal;

(b) removal from service;

(c) reduction in rank;

(d) forfeiture of approved service;

(e) reduction in pay;

(f) withholding of increment; and

(g) fine not exceeding one month's pay.

(2) Subject to the rules-

(a) any police officer specified in sub-section (1) may award the punishment of censure to any police officer of subordinate rank;

(b) the Assistant Commissioner of Police may award the punishment of censure to police officers of, or below, the rank of Sub-Inspectors of Police;

(c) any police officer of, and above, the rank of Inspector may award punishment drill not exceeding fifteen days or fatigue duty or any other punitive duty to constables.

(3) Nothing in sub-section (1) or sub-section (2) shall affect any police officer's liability for prosecution and punishment for any offence committed by him.

(4) The Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police, Additional Deputy Commissioner of Police, Principal of the Police Training College or of the Police Training School, Assistant Commissioner of Police, or any other police officer of equivalent rank may suspend any police officer of subordinate rank who is reasonably suspected to be guilty of misconduct, pending an investigation or enquiry into such misconduct.

(5) An Inspector of Police may suspend any police officer below the rank of Sub-Inspector of Police, who is reasonably suspected to be guilty of misconduct, pending an investigation or enquiry into such misconduct.

22. Procedure for awarding punishments.-

When any officer passes an order of awarding a punishment of dismissal, removal from service, reduction in rank, forfeiture of service, reduction in pay, withholding of increments or fine, he shall record such order or cause the same to be recorded together with the reasons therefor, in accordance with the rules."

From perusal of above provisions, it is clear that subject to Article 311 of Constitution of India, Section 21 confers power upon the authorities prescribed therein to impose various types of punishments as specified in clauses (a) to (g) of sub-section (1) upon a police officer of subordinate rank.

10) Further, Section 22 governs the procedure for awarding the punishment of dismissal, removal and reduction of rank and casts obligation upon the officer passing an order of punishment to record the reasons for such order in accordance with the rules.

11) In this context, Rules 5 and 6 of 1980 Rules governing the procedure as applicable to punishment orders, are reproduced as thus:-

"5. Authorised punishments-

The Delhi Police Act, 1978 prescribed the following penalties: (i) Dismissal, (ii) Removal from service, (iii) Reduction in rank [for a specified period], (iv) Forfeiture of approved service, (v) Reduction in pay, (vi) Withholding of increments, (vii) Fine not exceeding one month's pay, (viii) Censure, (ix) Punishment drill not exceeding 15 days or fatigue duty or any other punishment duty to Constable only.

6. Classification of punishments and authorities competent to award them-

(i) Punishments mentioned at Serial Nos. (i) to (vii) above shall be deemed 'major punishment' and may be awarded by an officer not below the rank of the appointing authority or above after a regular departmental enquiry.

(ii) Punishment mentioned at Serial No. (viii) shall be called 'minor punishment' and may be awarded by the authorities specified in sub-section (i) of Section 21 of the Delhi Police Act, 1978 after serving a show cause notice giving reasonable time to the defaulter and considering his written reply as well as oral deposition, if any for which opportunity shall be afforded on request.

(iii) The punishment mentioned at Serial No. (ix) above may be called Orderly Room punishment and shall be awarded after the defaulter has been marched and heard in Orderly Room by the Officer of and above the rank of Inspector as laid down in Section 21 (3) (c) of the Delhi Police Act, 1978."

The present case relates to the punishment of dismissal. Therefore, as per classification contained in Rule 6, it is a major penalty, which can be inflicted after a regular departmental inquiry by a competent authority as specified therein. The manner and procedure for awarding the punishment is prescribed in Rule 14 and procedure for such regular departmental inquiry that has to be observed for awarding said punishment is contained in Rule 16. As such, in absence of the applicability of clause (b) of second proviso to Article 311(2), the procedure contemplates that Sections 21 and 22 and the rules aforementioned ought to be followed for dismissal of an employee.

12) In the case at hand, since the order of dismissal of the appellant has been passed in exercise of the power under clause (b) of second proviso to Article 311(2) of Constitution of India, the said provision is relevant to understand its ambit and scope, hence, reproduced as under:

"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

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

13) Upon perusal of the above, it is clear that as per Article 311(2) a member of the civil service of the Union or a State may be dismissed or removed or reduced in rank by the appointing authority after a regular inquiry on charges which have been informed to him, affording him a reasonable opportunity. As per first proviso thereto, in case an inquiry is conducted for the purpose of imposing penalty, it is not necessary to afford an opportunity to the appellant at the stage of penalty.

14) Clause (b) of the second proviso to Article 311(2) restricts the applicability of Article 311(2) in a specific situation:

(i) if the appointing authority is satisfied that there should be deviation from mandate of Article 311(2) because adherence to the same is not 'reasonably practicable'; and

(ii) such reasons are to be recorded in writing. Similarly, when such power is to be exercised under clause (c) of the second proviso by the President or the Governor, they may, in the interest of security of the State or if it is not expedient to hold such inquiry, deviate from the applicable procedure.

15) Be that as it may, the present case relates to clause (b) of the second proviso to Article 311(2), therefore, we need to discuss in detail the applicability of the said provision in the facts of this case.

16) It is trite law that the decision of the appointing authority on the issue of recording reasons in writing on its satisfaction as to why holding an inquiry is not reasonably practicable may be subject to judicial review under Article 226 by High Court or under Article 32 by the Supreme Court. This Court in the Constitution Bench judgment rendered in the case of Tulsiram Patel (Supra) reiterated the legal positions and explained the same.

The High Court in the impugned judgment has relied upon paragraph 101 of the said judgment. Learned senior counsel for the appellant contended before us that subsequent paragraphs, in particular, paragraphs 130, 133 and 138, which enunciates the law while interpreting Article 311(2) of the Constitution of India, have not been considered. Therefore, for ready reference, we reproduce all the aforesaid paragraphs as thus:

"101. Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra & Co. v. State of Orissa [(1984) 4 SCC 103 : (1985) 1 SCR 322, 334- 5] . So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded.

This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi case [(1978) 1 SCC 248 : (1978) 2 SCR 621, 676] at p. 681. If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution, for a constitutional provision has a far greater and all-pervading sanctity than a statutory provision.

In the present case, clause (2) of Article 311 is expressly excluded by the opening words of the second proviso and particularly its keywords "this clause shall not apply". As pointed out above, clause (2) of Article 311 embodies in express words the audi alteram partem rule. This principle of natural justice having been expressly excluded by a constitutional provision, namely, the second proviso to clause (2) of Article 311, there is no scope for reintroducing it by a side-door to provide once again the same inquiry which the constitutional provision has expressly prohibited.

Where a clause of the second proviso is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action in so applying it would be mala fide, and, therefore, void. In such a case the invalidating factor may be referable to Article 14. This is, however, the only scope which Article 14 can have in relation to the second proviso, but to hold that once the second proviso is properly applied and clause (2) of Article 311 excluded.

Article 14 will step in to take the place of clause (2) would be to nullify the effect of the opening words of the second proviso and thus frustrate the intention of the makers of the Constitution. The second proviso is based on public policy and is in public interest and for public good and the Constitution-makers who inserted it in Article 311(2) were the best persons to decide whether such an exclusionary provision should be there and the situations in which this provision should apply.

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 intimidates witnesses who are going to give 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 others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held.

It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final.

A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. 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 [(1984) 2 SCC 578 : 1984 SCC (L&S) 290 : (1984) 3 SCR 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.

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 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. 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."

17) Upon perusal of the judgment of the Constitution Bench in the case of Tulsiram Patel (Supra), it is luculent that the constitutional provision has a far greater and all-pervading sanctity than a statutory provision, therefore, second proviso restricts application of Article 311(2) only in the circumstances as c