The Madhya Pradesh High Court recently comprising of a bench of Justice Sanjay Dwivedi observing that set aside an order of dismissal passed against a constable, who had been accused of committing rape against a fellow policewoman noting that the reason for dispensing with the regular departmental enquiry against him was not satisfactory.(Amit Chaurasia v. The State of M.P. & another)
Facts of the case
The petitioner/police constable has challenged his dismissal order which was passed against him on a complaint made by a lady constable for the offence punishable under Sections 452, 354, 354-Gh, 376 and 506 of the Indian Penal Code.
In view of the said complaint, the petitioner was placed under suspension and thereafter, exercising the powers provided under Article 311(2)(b) of the Constitution of India, the Superintendent of Police dismissed the petitioner from service observing therein that the conduct of the petitioner had stigmatized the image of the Police Department.
It may be noted that although, Article 311(2)(b) prescribes some eventualities, in which, the major penalty like dismissal can be inflicted without following the requirement of the principle of natural justice or without conducting a regular departmental enquiry (in case of public servant)
In essence, he was removed from service on the ground of registration of an offence against him by a woman constable and he argued that he could not have been removed from service without conducting any departmental enquiry against him.
The reason assigned by the dismissing authority was that, a challan had been filed and a criminal case is being tried by the competent Court, therefore, there is no justification for conducting the regular departmental enquiry and calling the prosecutrix for recording her statement in the said enquiry because that would tarnish her image, dignity and respect in the department.
The petitioner has filed this instant petition under Article 226 of the Constitution of India, the petitioner is questioning the legality, validity and propriety of the order whereby as per the provisions of Article 311(2)(b) of the Constitution of India, he has been dismissed from service and also challenging the order whereby he has been directed to vacate the Government Quarter as allotment made in his favour was cancelled in pursuance to his dismissal from service.
Contention of the Parties
Learned counsel for the petitioner submitted that the challenge is founded mainly on the ground that the order of dismissal from service has been passed in violation of principle of natural justice and contrary to the law for the reason that the petitioner being a civil servant and a regular employee of the Police Department, cannot be dismissed without conducting a regular departmental enquiry. More so, the provisions of Article 311(2)(b) of the Constitution of India are not applicable in the petitioner's case and the reason assigned in the order for not conducting the regular departmental enquiry is not only unreasonable but also unacceptable which makes the order vitiate and as such, it is claimed that the impugned order dismissing the petitioner from service deserves to be quashed.
On the other hand, the counsel appearing on behalf of Government has supported the order of dismissal and stated that the provisions of Article 311(2)(b) of the Constitution of India have rightly been applied while removing the petitioner from service.
Court's observations and Judgment
The court at the very outset, looking at the facts of the case, opined that the reason assigned by the Authority for not conducting a regular departmental enquiry was not only unreasonable but also unjustified.
The Court observed, "...for the reason that the prosecutrix in the criminal case will be a material witness and would appear before the Court for getting her statement recorded then there should be no hitch while appearing in the departmental proceeding that too before the officers of the Police Department as the prosecutrix is also a police constable and when she made a complaint to the police about the alleged crime, then she must not have any hesitation to get recorded her statement as a witness in the departmental enquiry and she cannot be allowed to have her cake and eat it too."
The bench also referred to the Supreme Court judgment in the case of Sahadeo Singh and others v. Union of India and others[(2003) 9 SCC 75], wherein it was observed that the dismissal without conducting a departmental enquiry on the ground of being not reasonably practicable, is open for judicial review, therefore, the objection raised by the respondents that the impugned order is appealable, is not sustainable in the eyes of law.
The bench dismissing the petition observed, "This Court has no hesitation to say that it is not a case in which the Disciplinary Authority can inflict the punishment of dismissal that too without conducting a regular departmental enquiry. The reason assigned in the impugned order for not conducting a regular departmental enquiry and for applying the provisions of Article 311(2)(b) of the Constitution of India is not found satisfactory for the reason that if at all that lady police constable can lodge the FIR and in relation to that would appear before the Court for getting her statement recorded, then that would not cause any harm to her dignity and respect but if she could have appeared before the Enquiry Officer for recording her statement, then that could damage her dignity and respect, cannot be considered to be a proper reason for not conducting the regular departmental enquiry and as such, the impugned order of dismissal dated 02.02.2021 (Annexure-P/2) is not sustainable in the eyes of law and is hereby set aside. However, a liberty is granted to the respondents that if they so desire, may conduct a regular departmental enquiry as has been provided under the provisions of the Rules, 1966 for imposing the penalty after giving an opportunity of hearing to the petitioner.
With the aforesaid, the petition filed by the petitioner stands allowed."
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