Abhishek Tiwari vs Director & Ors.

Hon’ble Mr. B. Anand, Member (A)

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, challenging the order dated 03.09.2021, whereby he was dismissed from service by invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India, read with Rule 11 of the Delhi Special Police Establishment (Subordinate Ranks) (Discipline and Appeal) Rules, 1961. The principal question which arises for our consideration is whether the competent authority was justified in dispensing with the regular departmental inquiry on the ground that it was not reasonably practicable to hold such an inquiry.

The brief facts of the case are that the applicant was serving as a Sub-Inspector in the Central Bureau of Investigation (CBI). Allegations were levelled against him regarding disclosure of confidential information and documents relating to Preliminary Enquiry No. PE2232021A0001 and Regular Case No. RC2232021A0003 to Shri Anand Dilip Daga, an advocate, allegedly in exchange for an iPhone 12 Pro. In connection with the said allegations, a separate criminal case, being RC2182021A0005, was registered on 31.08.2021 and the applicant was arrested on 01.09.2021. Thereafter, vide order dated 03.09.2021, the competent authority dismissed the applicant from service without holding a regular departmental inquiry. The said order records that the competent authority was satisfied that it was not reasonably practicable to hold a departmental inquiry and that the reasons for such satisfaction had been recorded separately in writing. The competent authority also recorded its satisfaction that the applicant’s activities did not warrant his continuation in service in the public interest. Aggrieved by the said order, the applicant has approached this Tribunal.

Learned counsel for the applicant assailed the impugned order dated 03.09.2021, contending that the respondents had arbitrarily invoked Article 311(2)(b) of the Constitution of India without establishing any circumstance which rendered it not reasonably practicable to hold a regular departmental inquiry. It was submitted that the impugned order suffered from non-application of mind and was based on extraneous considerations. He also alleged that the action was actuated by mala fide intentions following a change in the applicant’s supervisory officer.

Learned counsel for the applicant further pointed out that the criminal case was registered on 31.08.2021, whereas the dismissal order was passed on 03.09.2021, and contended that the decision to dispense with the inquiry had been taken in haste and without sufficient material to justify the exercise of such an exceptional power.

In support of his contention, learned counsel for the applicant placed reliance upon Union of India v. Tulsiram Patel, (1985) 3 SCC 398, Jaswant Singh v. State of Punjab, (1991) 1 SCC 362, Inspector Prem Chand v. Government of NCT of Delhi & Ors., (2007) 4 SCC 566, G.M. Tank v. State of Gujarat & Anr., (2006) 5 SCC 446, Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr., (1999) 3 SCC 679, Tarsem Singh v. State of Punjab & Ors., (2006) 13 SCC 581, and Neeraj Agarwal v. Secretary, DoPT & Ors., W.P.(C) No. 83/2023, decided on 24.12.2025 and reported in 2025:DHC:11844-DB, to submit that a mere apprehension of influencing or intimidating witnesses, without any proper factual foundation, would not justify dispensing with a departmental inquiry under Article 311(2)(b) of the Constitution of India.

Learned counsel for the applicant also referred to the Government instructions contained in the Ministry of Home Affairs Office Memoranda No. F.39/30/54-Ests. dated 07.06.1955 and No. 39/8/64-Ests. (A) dated 04.09.1964, stipulating that in cases which, upon investigation, are found fit to be sent to Court and wherein the offences involve bribery, corruption or other criminal misconduct resulting in substantial loss of public funds, departmental action should not precede prosecution. On these grounds, learned counsel for the applicant prayed for quashing of the impugned order and for reinstatement of the applicant with all consequential benefits.

Per contra, learned counsel for the respondents, while referring to the counter reply, submitted that the allegations against the applicant were grave in nature and pertained to the disclosure of confidential information relating to sensitive investigations being conducted by the CBI. It was contended that holding a regular departmental inquiry in the prevailing circumstances could adversely affect the investigation as well as the functioning of the organisation.

Learned counsel for the respondents further submitted that there was an apprehension that the applicant might influence or terrorise witnesses and that it would be difficult to secure the participation of witnesses other than the co-accused persons. It was also submitted that the applicant’s continued presence in the organisation, the payment of subsistence allowance during the prolonged period of suspension, the difficulty in assigning official duties to him, and the possible adverse impact on the morale and credibility of the organisation were relevant considerations warranting the course adopted by the respondents. Learned counsel submitted that the competent authority had separately recorded its reasons in writing and had exercised the power vested in it after duly considering the circumstances of the case. Reliance was placed upon Satyavir Singh v. Union of India, (1985) 4 SCC 252 and Ajit Kumar v. State of Jharkhand, Civil Appeal No. 2420 of 2011.

We have heard the learned counsel for both the parties and have gone through the pleadings as well as the material placed on record. We have also perused the office records produced by the learned counsel for the respondents and returned the same to him after obtaining a photocopy thereof for the record.

The constitutional protection under Article 311(2) is intended to ensure that a government servant is not dismissed or removed from service, or reduced in rank, without being afforded the protection contemplated therein. The second proviso to Article 311(2), however, recognises certain exceptional circumstances in which the requirement of holding an inquiry may be dispensed with. Clause (b) thereof applies where the authority empowered to dismiss or remove a government servant, or to reduce him in rank, is satisfied that it is not reasonably practicable to hold such inquiry. The power under Article 311(2)(b) is thus an exceptional power and has to be exercised with care and caution. The satisfaction of the competent authority must be based upon relevant material and circumstances having a reasonable nexus with the conclusion that holding a departmental inquiry is not reasonably practicable. The mere fact that the allegations are serious, or that the inquiry may be inconvenient or may take some time, cannot by itself justify dispensing with the inquiry.

In the present case, the impugned order dated 03.09.2021 records that the competent authority was satisfied that it was not reasonably practicable to hold a departmental inquiry and that the reasons for such satisfaction had been recorded separately in writing. The question, therefore, is not whether reasons were recorded at all, but whether the reasons so recorded, when examined in the light of the material available on record, sufficiently establish the constitutional requirement that it was not reasonably practicable to hold a departmental inquiry.

The reasons relied upon by the respondents, as reflected from the record and the pleadings, relate, inter alia, to the sensitive nature of the information allegedly disclosed by the applicant, the possible effect upon the ongoing investigation, the apprehension that witnesses could be influenced or intimidated, the difficulty of securing witnesses other than co-accused persons, and the administrative and organisational consequences of retaining the applicant in service. The respondents have also referred to the applicant’s suspension, payment of subsistence allowance and the difficulty in entrusting him with official duties.

We are conscious of the fact that the allegations against the applicant are serious and concern the alleged disclosure of sensitive and confidential information by an officer of the CBI. There can also be no dispute that the integrity and confidentiality of an investigation are matters of considerable importance, especially in a premier organization like the CBI. However, the seriousness of the allegations, by itself, is not the test prescribed under Article 311(2)(b). What is required to be established is that, in the particular circumstances of the case, holding a departmental inquiry was not reasonably practicable.

In this regard, the judgment of the Hon’ble High Court of Delhi in Neeraj Agarwal v. Secretary, DoPT & Ors. (supra) is of particular relevance. The said case also concerned a CBI officer against whom action had been taken by invoking Article 311(2)(b) of the Constitution of India, dispensing with the requirement of a regular departmental inquiry. The grounds relied upon therein for dispensing with the inquiry included, inter alia, the apprehension that, being an officer of the CBI, the petitioner could intimidate or influence witnesses and terrorise the Inquiry Officer. The Hon’ble High Court, upon examining the reasons recorded by the competent authority, held that such apprehensions, being broad and anticipatory and unsupported by any adequate factual foundation, did not satisfy the constitutional requirement that it was not reasonably practicable to hold a departmental inquiry. The Court also emphasized the requirement of an independent satisfaction of the competent authority in exercise of the power under Article 311(2)(b). The judgment is of particular relevance to the issue before us, as the respondents in the present case have similarly sought to justify the invocation of Article 311(2)(b) primarily on the apprehension that the applicant could influence or intimidate witnesses. The aforesaid judgment was carried in appeal before the Hon’ble Supreme Court in SLP (Civil) Diary No. 26209/2026, which was dismissed, thereby leaving the judgment of the Hon’ble High Court undisturbed.

In the present case, however, we do not find specific material demonstrating that any particular witness had been threatened, intimidated or influenced by the applicant, or that any witness had expressed unwillingness or inability to participate in a departmental inquiry on account of the applicant. There is also no sufficient material before us to establish that appropriate safeguards could not have been adopted to protect the identity of witnesses or the confidentiality of sensitive information during the departmental inquiry. The apprehension that witnesses might be influenced, without supporting circumstances demonstrating why such risk rendered the departmental inquiry not reasonably practicable, cannot by itself satisfy the constitutional requirement under Article 311(2)(b). In fact, a perusal of the file notings of the Respondent No. 4 reveals that he came to the conclusion within a span of 3 days, i.e. between 31.08.2021 (the date of the registration of the Criminal case) and 03.09.2021 (the date of passing of the dismissal order) that “It is not feasible to hold a departmental enquiry in this case because his continuation in service, even under suspension, would be detrimental to the investigation of the criminal case, as there are every chance that he will try to hamper the integrity and sanctity of investigation.” We cannot permit the invocation of the provisions of Article 311(2)(b) on the basis of such conjunctures, without even making an attempt to hold an inquiry.

We may also observe that there is a clear distinction between a case where the continued presence of an employee is considered undesirable and a case where it is not reasonably practicable to hold a departmental inquiry against him. While the former may justify appropriate administrative action in accordance with law, the latter requires specific circumstances showing why a departmental inquiry cannot reasonably be held. The two situations, therefore, cannot be treated as one and the same.

Similarly, the fact that the applicant may remain under suspension for a considerable period, that subsistence allowance may have to be paid, or that it may be difficult to entrust him with official duties, cannot by themselves constitute circumstances rendering a departmental inquiry not reasonably practicable. These considerations may explain the respondents’ concern regarding the applicant’s continued retention in service, but they do not, in the absence of a sufficient factual foundation, justify dispensing with the departmental inquiry altogether.

We have also considered the reliance placed by the learned counsel for the respondents upon Satyavir Singh v. Union of India, (1985) 4 SCC 252 and Ajit Kumar v. State of Jharkhand, Civil Appeal No. 2420 of 2011. There can be no dispute that the expression “not reasonably practicable” does not mean that holding a departmental inquiry must be absolutely impossible. However, the exceptional power under Article 311(2)(b) can be validly exercised only when the circumstances before the competent authority reasonably show why a regular departmental inquiry could not practicably be held. The judgments relied upon by the respondents do not dispense with this requirement of a proper factual basis.

Having regard to the totality of the circumstances, we are of the considered view that the reasons relied upon by the respondents do not sufficiently establish that it was not reasonably practicable to hold a regular departmental inquiry against the applicant. The seriousness of the allegations, the registration of the criminal case, the sensitive nature of the investigation, the apprehension regarding witnesses and the administrative difficulties referred to by the respondents, either individually or cumulatively, do not, in the facts of the present case, satisfy the constitutional requirement under Article 311(2)(b).

We accordingly hold that the necessary jurisdictional condition for dispensing with the departmental inquiry under Article 311(2)(b) of the Constitution of India has not been established and, therefore, the impugned order dated 03.09.2021 cannot be sustained in law and is liable to be set aside. We clarify that our findings are confined to the legality of dispensing with the departmental inquiry and that we have not expressed any opinion on the merits of the allegations levelled against the applicant. Accordingly, setting aside the dismissal order shall not be construed as an exoneration of the applicant from the said allegations.

In view of the aforesaid facts and circumstances, the present Original Application is partly allowed. The impugned order dated 03.09.2021 is hereby quashed and set aside. The respondents are directed to reinstate the applicant in service with continuity of service. The applicant’s entitlement to back wages and other consequential monetary benefits shall be considered and decided by the competent authority in accordance with law and the applicable rules, by passing a reasoned and speaking order, as expeditiously as possible and preferably within a period of three months from the date of receipt of a certified copy of this order. It is, however, clarified that this order shall not preclude the respondents from initiating disciplinary proceedings against the applicant in accordance with law, if otherwise permissible.

In the facts and circumstances, there shall be no order as to costs.