Akhtar Hussain vs Union Territory Chandigarh & Ors.

Per: SH. RAMESH SINGH THAKUR MEMBER (J):

All the above four Original Applications are taken up together for disposal, as a common question of law and facts are involved in all these cases. With the consent of learned counsels for the parties, the facts are being extracted from O.A.No.229/2025 (Akhtar Hussain Vs. UT Police Chandigarh) and the said case has been treated as a lead case.

The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 against the following :-

By filing the present Original Application, the applicant has sought the following relief(s):-

The facts as encapsulated in the present Original Application are that the Applicant joined the Respondent Department as Constable on 09.05.1988 and completed recruit training at PTC Madhuban, Karnal, securing Second position in merit and receiving a Commendation Certificate Class-II from the DGP, PTC Madhuban. He was promoted as Head Constable on 11.09.2009, ASI on 29.11.2019 and Sub-Inspector on 31.08.2021. During his service, he earned 23 Good Entries between 1989 and 21.07.2021, with only one Censure dated 20.09.2001 for an irregularity while posted at Police Station Mani Majra. However, on 06.10.2023, FIR No. RC0052023A0028 was registered against him under Section 120-B IPC and Section 7 of the Prevention of Corruption Act (Annexure A-1), and he was arrested by CBI ACB, Chandigarh at 10:30 PM after duty hours. Thereafter, vide order dated 10.10.2023, the Respondents dismissed him from service with immediate effect by invoking Clause (b) of the second proviso to Article 311(2) of the Constitution (Annexure A-2), allegedly without adhering to the parameters prescribed by DoPT OMs dated 11.11.1985 and 04.04.1986 (Annexures A-3 & A-4).

The Applicant was released on bail by the Hon'ble Special Judge, CBI Court, Chandigarh on 18.12.2023 (Annexure A-5). He preferred an appeal dated 03.01.2024 (Annexure A-6), contending that the competent authority was required to satisfy itself and record reasons before dispensing with the departmental enquiry under Article 311(2)(b), and that his dismissal was arbitrary and contrary to law. The appeal was rejected vide order dated 19.10.2024 (Annexure A-7) without properly considering his pleas or the settled legal position. The Applicant thereafter filed a revision petition dated 07.11.2024 (Annexure A-8), reiterating his contentions and relying upon judgments of the Hon'ble Punjab & Haryana High Court holding that departmental enquiry cannot be dispensed with mechanically.

The Applicant also filed OA No. 1595 of 2024, which was disposed of on 20.12.2024 with a direction to the Revisionary Authority to decide the revision petition by passing a reasoned and speaking order in accordance with law and rules within eight weeks (Annexure A-9). Despite the said direction, the revisionary Authority rejected the revision vide order dated 10.02.2025 (Annexure A-10) without adequately considering the Applicant's pleas, relevant judicial precedents and the material on record. The Applicant submits that the impugned action is illegal, arbitrary, unsupported by evidence, contrary to the prescribed procedure and amounts to an improper invocation of the exceptional power under Article 311(2)(b), causing grave prejudice and severe financial hardship to the Applicant and his family. The impugned orders, therefore, are alleged to be contrary to the applicable rules and law, violative of Article 21 of the Constitution, and liable to be set aside.

The respondents have filed a written statement whereby it has been submitted that the applicant has suppressed material facts and has approached this Hon'ble Tribunal with unclean hands. The impugned orders were passed in accordance with law, after following the prescribed procedure and principles of natural justice. The present OA is therefore devoid of merit, and this Hon'ble Tribunal cannot sit as a Court of appeal to reappreciate the evidence.

That the applicant, SI Akhtar Hussain No. 1597/CHG, was dismissed from service vide order dated 10.10.2023 by invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India. The dismissal arose from a serious corruption case involving a CBI trap, wherein the applicant was allegedly caught demanding a bribe. The competent authority recorded its satisfaction that, considering the gravity of the misconduct, its impact on public trust and the possibility of influencing witnesses or destroying evidence, it was not reasonably practicable to hold a regular departmental enquiry.

That clause (b) of the second proviso to Article 311(2) permits dismissal, removal or reduction in rank where the competent authority, for reasons to be recorded in writing, is satisfied that it is not reasonably practicable to hold an enquiry. Accordingly, the competent authority recorded reasons in the dismissal order dated 10.10.2023 and exercised the constitutional power under the said provision.

That the DoPT OM dated 11.11.1985 provides that a civil servant dismissed under clause (b) of the second proviso to Article 311(2) may claim in appeal or revision that an enquiry be held regarding the charges, unless the situation contemplated by the proviso continues to exist. The applicant, however, did not seek such an enquiry in his appeal/revision but sought setting aside of the dismissal order dated 10.10.2023. The respondents accordingly contend that the requirements of the DoPT OMs dated 11.11.1985 and 04.04.1986 were duly considered and complied with.

That subsequently, the applicant was charge sheeted on 16.05.2025 for offences under Section 120-B IPC read with Section 7(a) of the Prevention of Corruption Act and Section 7(a) of the P.C. Act, in CIS No. PC/18/2023, CBI v. Krishan Kumar & Others. Charges have been framed and the matter was listed for prosecution evidence. The order dated 16.05.2025 is annexed as Annexure R-1. The respondents therefore contend that, in view of the pending criminal proceedings and charges framed against the applicant, the dismissal order dated 10.10.2023 cannot be quashed.

Rejoinder has been filed by the applicant whereby it has been submitted as under:-

The learned counsel for the applicant has also placed on record some additional information vide MA No. 235 of 2025 showing that similarly placed police officers/officials arrested in criminal cases were generally suspended after arrest and, in several cases, subsequently reinstated or otherwise treated differently, whereas the applicant was subjected to differential treatment. The details of FIRs, officers and their subsequent service status are relied upon to establish discriminatory and unequal treatment in violation of Articles 14 and 16 of the Constitution of India. It is submitted that this comparative information has a direct and vital bearing on the adjudication of the case and is therefore prayed to be taken on record in the interest of justice, equity and fair play.

We have heard the learned counsels for the parties and have carefully gone through the pleadings and law point put forth by them.

Learned counsel for the applicant argued that the impugned order of dismissal dated 10.10.2023, passed by invoking the second proviso to Article 311(2)(b) of the Constitution, is wholly unsustainable in law, as the mandatory conditions for dispensing with a departmental inquiry were not satisfied. It was submitted that holding of a departmental inquiry is the rule and dispensing with it is an exceptional power, which can be exercised only when the disciplinary authority, on the basis of relevant and objective material existing at the time of passing the order, records a genuine satisfaction that it is not reasonably practicable to hold such inquiry.

Learned counsel submitted that the requirements laid down in the DoP&T OMs dated 11.11.1985 and 04.04.1986 were completely absent in the present case. The circumstances relied upon for dispensing with the inquiry must actually exist when the decision is taken and cannot be based upon a mere apprehension of what may happen in future. There was no material showing that the complainant or any witness had been threatened, intimidated or was unwilling to participate in the departmental proceedings because of the applicant. Thus, the satisfaction recorded by the disciplinary authority was founded on surmises, conjectures and presumptions rather than objective material.

It was further argued that the disciplinary authority did not make any genuine effort to conduct a departmental inquiry before invoking Article 311(2)(b). The mere seriousness or gravity of the allegations cannot by itself render an inquiry impracticable; rather, serious allegations warrant a greater opportunity to the delinquent to defend himself. Learned counsel relied upon Union of India v. Tulsiram Patel, Jaswant Singh v. State of Punjab and Ikramuddin Ahmed Borah v. Superintendent of Police, Darrang, to contend that the satisfaction of the authority cannot rest upon its mere ipse dixit and must be supported by objective and relevant material. The reasons must be specific and must not be vague or merely reproduce the language of Article 311(2)(b).

Learned counsel further relied upon Sudesh Kumar v. State of Haryana, submitting that reasonable opportunity under Article 311(2) includes an effective opportunity to defend oneself, cross-examine prosecution witnesses and lead defence evidence, which can ordinarily be exercised only through a regular departmental inquiry. The applicant was deprived of this valuable constitutional and procedural safeguard. Reliance was also placed upon Ex-Constable Chottu Lal v. Union of India, wherein mere status as a police constable was held insufficient to presume that the delinquent would influence or intimidate witnesses so as to justify dispensing with the inquiry.

Learned counsel also placed reliance upon the judgment of the Hon'ble Punjab and Haryana High Court in Baljinder Singh v. State of Punjab & Ors., CWP No. 8612 of 2021, decided on 13.05.2024, wherein it was held that a mere assertion that witnesses would not come forward due to fear of the delinquent does not satisfy the constitutional requirement for dispensing with an inquiry. It was submitted that the present case stands on an even stronger footing, as there is no specific material or complaint demonstrating any threat or intimidation by the applicant. The applicant also relied upon the decision of this Hon'ble Tribunal in Sandeep Sharma v. Union of India & Ors., OA No. 060/902/2023, decided on 12.12.2024, wherein the order of removal was set aside in similar circumstances.

Learned counsel argued that the exercise of power under Article 311(2)(b) is subject to judicial review and the impugned orders are liable to be interfered with as the authorities failed to consider relevant material, relied upon irrelevant considerations and arrived at their satisfaction without any rational basis. It was further submitted that the authorities have proceeded on predetermined notions regarding the applicant's guilt, even though the criminal proceedings are yet to attain finality. The applicant's long and otherwise unblemished service, past good entries and length of service were also not properly considered while imposing the extreme penalty of dismissal, rendering the punishment excessive and disproportionate.

Learned counsel accordingly submitted that the impugned order dated 10.10.2023 and the consequential appellate/revisional orders suffer from non-application of mind, absence of objective material, failure to satisfy the mandatory requirements of Article 311(2)(b), denial of reasonable opportunity of defence and violation of principles of natural justice. It was therefore prayed that the impugned orders be quashed and set aside and the applicant be granted all consequential benefits in accordance with law.

During the course of the arguments, the learned counsel for the applicant also shown us a Chart whereby it is submitted that the applicants' cases deserve sympathetic and equitable consideration in view of the treatment accorded to similarly situated police officials. The comparative record shows that the concerned officials had substantial service experience and commendable service records, including numerous good entries and certificates/appreciations for professional and exemplary conduct. Despite their involvement in criminal cases and subsequent termination, they were granted bail at different stages.

Whereas the learned counsel for the respondents argued that the applicant had suppressed material facts and approached the Hon'ble Tribunal with unclean hands. It was argued that the impugned orders were passed in accordance with law, following the prescribed procedure and principles of natural justice, and that the present OA was devoid of merit, as the Tribunal could not sit as a Court of appeal to reappreciate the evidence. It was further argued that the applicant, SI Akhtar Hussain No. 1597/CHG, was dismissed from service vide order dated 10.10.2023 by invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India, in connection with a serious corruption case arising out of a CBI trap, wherein he was allegedly caught demanding a bribe. The competent authority had recorded its satisfaction that, considering the gravity of the misconduct, its impact on public trust and the possibility of influencing witnesses or destroying evidence, it was not reasonably practicable to hold a regular departmental enquiry.

Learned counsel further argued that the requirements of clause (b) of the second proviso to Article 311(2), as well as the DoPT OMs dated 11.11.1985 and 04.04.1986, had been duly considered and complied with. It was argued that although the DoPT OM dated 11.11.1985 permits a dismissed employee to seek an enquiry into the charges in appeal or revision, the applicant had not sought such an enquiry and had instead sought setting aside of the dismissal order.

It was also argued by the learned counsel for the respondents that the applicant was subsequently charge sheeted on 16.05.2025 in CIS No. PC/18/2023, CBI v. Krishan Kumar & Others, for offences under Section 120-B IPC read with Section 7(a) of the Prevention of Corruption Act and Section 7(a) of the P.C. Act, and that charges had been framed and the matter was pending for prosecution evidence. Thus, in view of the pending criminal proceedings and the charges framed against the applicant, the respondents argued that the dismissal order dated 10.10.2023 could not be quashed.

We have considered the rival submissions advanced by the learned counsel for the parties and have carefully examined the pleadings, documents placed on record and the legal position governing the exercise of power under clause (b) of the second proviso to Article 311(2) of the Constitution of India. The short question which arises for our consideration is whether, in the facts and circumstances obtaining on the date of the applicant's dismissal, the competent authority was justified in dispensing with the departmental enquiry on the ground that it was not reasonably practicable to hold such enquiry.

There can be no quarrel with the settled legal position that the formal rule under Article 311(2) of the Constitution is that a civil servant against whom disciplinary action is proposed is entitled to a reasonable opportunity of defending himself in a departmental enquiry. The power under clause (b) of the second proviso to Article 311(2) is an exceptional constitutional power and, therefore, has to be exercised strictly within the parameters prescribed by the Constitution and the law laid down by the Hon'ble Supreme Court. The existence of serious allegations, registration of a criminal case or even the arrest of a delinquent employee, by themselves, do not automatically dispense with the requirement of a departmental enquiry. The competent authority must arrive at the requisite satisfaction, on the basis of relevant and objective material, that it is not reasonably practicable to hold such enquiry, and such satisfaction must be recorded in writing.

The aforesaid principle has been authoritatively reiterated by the Hon'ble Supreme Court in Manohar Lal v. Commissioner of Police & Ors., Civil Appeal No. 13860 of 2024, decided on 12.03.2026, reported as 2026 INSC 234. The said judgment is of particular relevance to the controversy before us, as it also concerned the dismissal of a police constable by invoking clause (b) of the second proviso to Article 311(2), without conducting a departmental enquiry, on the ground that was not reasonably practicable to hold such enquiry. The justification advanced therein substantially rested upon apprehension of threat, intimidation or inducement of the victim/witnesses and possible tampering with evidence.

In Manohar Lal (supra), the Hon'ble Supreme Court, after considering the constitutional scheme and the law laid down in Union of India v. Tulsiram Patel, Jaswant Singh v. State of Punjab and other precedents, reiterated that the satisfaction of the competent authority for dispensing with a departmental enquiry under Article 311(2)(b) is subject to judicial review. The reasons recorded by the authority must be reasonable, valid, justified and in writing, and the satisfaction must be an objective satisfaction based upon material brought on record which a prudent disciplinary authority could reasonably rely upon. The Court made it clear that the extraordinary power cannot be exercised merely on conjectures, surmises or general apprehensions.

The Hon'ble Supreme Court further held in Manohar Lal that where the allegation is that the delinquent may threaten, intimidate or induce witnesses or tamper with evidence, there must be material on record from which such apprehension can reasonably be founded. A mere possibility or general apprehension that, because the delinquent is a police official, he may be in a position to influence witnesses, cannot by itself satisfy the constitutional requirement. The Court found, on the facts before it, that the exercise of power under Article 311(2)(b) was without proper application of mind and consequently quashed the dismissal order.

The decision in Manohar Lal is not merely an affirmation of the general principle that reasons are required; it lays emphasis upon the quality and evidentiary foundation of those reasons. The constitutional requirement is not fulfilled by recording, in abstract terms, that the delinquent may influence witnesses, intimidate them or tamper with evidence. The authority must demonstrate from the material available to it why, in the particular factual situation, holding a departmental enquiry was not reasonably practicable. Thus, the distinction between a real impediment to holding an enquiry and a mere apprehension of a possible impediment assumes decisive significance.

The aforesaid principle finds further support from the decision of this Tribunal in Sandeep Sharma v. Northern Railway, OA No. 060/902/2023, decided on 12.12.2024. The said matter was also decided by this very Bench and involved invocation of the exceptional procedure dispensing with the ordinary departmental enquiry. The Tribunal examined the legality of dispensing with the enquiry in the light of Article 311(2) and the applicable disciplinary rules and ultimately allowed the Original Application.

Although the statutory framework in Sandeep Sharma was not identical to the present case, the underlying constitutional principle is the same, namely, that the ordinary disciplinary process cannot be displaced by an exceptional procedure without the existence of circumstances which genuinely justify such departure. The said decision is therefore relevant as persuasive authority, while the subsequent judgment of the Hon'ble Supreme Court in Manohar Lal is binding upon us under Article 141 of the Constitution of India.

Applying the aforesaid principles to the present case, we find that the dismissal order dated 10.10.2023 was passed immediately after registration of the CBI case and arrest of the applicant. The reasons relied upon by the respondents essentially relate to the seriousness of the allegations, the alleged impact upon public confidence and the possibility that the applicant might influence witnesses or interfere with evidence. However, from the material placed before us, we do not find any specific and contemporaneous material demonstrating that any witness had actually been threatened or intimidated by the applicant, that any witness had expressed unwillingness to participate in departmental proceedings, or that any concrete circumstance existed which rendered the holding of a departmental enquiry impracticable.

It is important to distinguish between the gravity of the alleged misconduct and the practicability of holding a departmental enquiry. The former may undoubtedly be relevant for determining the appropriate disciplinary consequence after the misconduct is established in accordance with law. It cannot, by itself, establish the latter. Similarly, the fact that the applicant was a police officer, or that the allegations arose out of a CBI trap, cannot lead to an automatic presumption that the applicant would necessarily influence witnesses or tamper with evidence. Such a presumption, without supporting objective material, would amount to replacing the constitutional requirement of satisfaction with conjecture.

The respondents have also relied upon the subsequent charge-sheet dated 16.05.2025 and the fact that charges have been framed in the criminal proceedings. We are unable to accept that such subsequent developments can validate the invocation of Article 311(2)(b) made on 10.10.2023. The legality of the decision to dispense with the departmental enquiry has to be tested with reference to the circumstances and material which existed when the competent authority took that decision. Subsequent events may have their own legal consequences, but they cannot retrospectively supply the foundational facts necessary to justify an otherwise invalid exercise of the exceptional constitutional power.

The fact that the applicant subsequently came to be charge-sheeted in the criminal case or that charges have been framed does not dispense with the requirement of examining whether, on 10.10.2023, it was reasonably practicable to hold a departmental enquiry. Criminal proceedings and departmental proceedings operate in distinct fields and are governed by different considerations. The pendency or progress of a criminal prosecution cannot, by itself, retrospectively convert a departmental enquiry which was practicable on the date of dismissal into one which was constitutionally impracticable.

We also find substance in the grievance of the applicant regarding the consideration of his appeal and revision. The applicant had specifically challenged the invocation of clause (b) of the second proviso to Article 311(2) and had relied upon judicial precedents as well as the DoP&T instructions. The appellate and revisional authorities were, therefore, required to examine whether the exceptional circumstances necessary for dispensing with the enquiry actually existed and whether the reasons recorded by the disciplinary authority were supported by relevant material. The mere affirmation of the original order, without meaningful consideration of the specific challenge, would not cure a foundational defect in the exercise of the constitutional power.

The applicant's long service, promotions and good entries cannot, by themselves, exonerate him from the allegations which are the subject matter of the pending criminal proceedings. At the same time, these circumstances could not be wholly disregarded while considering an extreme consequence such as dismissal without a regular departmental enquiry. We make it clear that we are not expressing any opinion whatsoever on the merits of the criminal case or the guilt or innocence of the applicant. The issue before us is confined to the legality of dispensing with the departmental enquiry under Article 311(2)(b).

As regards the comparative material placed on record by the applicant, the same cannot by itself establish a right to identical treatment in every case, since the factual circumstances of individual criminal and disciplinary cases may differ. However, once specific instances of similarly situated police officials have been placed before the authorities, the question of differential treatment is not wholly irrelevant and ought to receive appropriate consideration. Nevertheless, our conclusion in the present matter does not rest upon the comparative chart. It rests principally upon the failure of the respondents to establish, by objective and contemporaneous material, the foundational requirement that it was not reasonably practicable to hold a departmental enquiry.

On an overall consideration of the matter, and particularly in view of the binding law laid down by the Hon'ble Supreme Court in Manohar Lal v. Commissioner of Police & Ors., 2026 INSC 234, we are of the considered view that the respondents have failed to demonstrate that, on 10.10.2023, circumstances existed which rendered a departmental enquiry not reasonably practicable. The reasons recorded by the disciplinary authority substantially proceed on the seriousness of the allegations and a generalized apprehension regarding witnesses and evidence, without sufficient objective material demonstrating an actual impediment to the holding of the enquiry. The constitutional threshold for invoking clause (b) of the second proviso to Article 311(2) is, therefore, not satisfied.

The ratio of Manohar Lal assumes added significance in the present case because the factual foundation relied upon by the respondents is substantially similar: in both cases, the exceptional power was invoked in respect of a police official and the justification included apprehension of influencing witnesses or tampering with evidence. The Hon'ble Supreme Court has made it clear that such apprehension must have an objective factual foundation and cannot be accepted merely because of the nature of the employee's post or the seriousness of the allegations. In the absence of such material, dispensing with the enquiry becomes arbitrary.

Consequently, the order dated 10.10.2023 dismissing the applicant from service, having been passed by dispensing with the departmental enquiry without satisfying the requirements of Article 311(2)(b), cannot be sustained in law. The consequential appellate order dated 19.10.2024 and revisional order dated 18.02.2025, being founded upon the said dismissal order, also cannot be allowed to stand.

Accordingly, the Original Application is allowed. The impugned order dated 10.10.2023, appellate order dated 19.10.2024 and revisional order dated 18.02.2025 are quashed and set aside. The respondents shall, however, remain at liberty to proceed against the applicant in accordance with the applicable service rules and law, if so advised, without prejudice to the pending criminal proceedings and subject to all legal requirements.

The question of reinstatement, continuity of service, consequential benefits and treatment of the intervening period shall be considered by the competent authority in accordance with the applicable rules and law. In this regard, the competent authority shall take an appropriate decision within a period of three months from the date of receipt of a certified copy of this order.

The remaining Original Applications, namely OA Nos. 337/2025, 347/2025 and 353/2025, involve substantially the same question of law and similar factual circumstances. They shall accordingly stand disposed of in terms of the present order.

There shall be no order as to costs.

A copy of this order be kept in the connected files.