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Judgment
V. Narasingh, J
Heard learned counsel for the Petitioner and the learned counsel for the State.
The Petitioner who was working as a constable in the Odisha Police District Headquarter, Bhadrak has assailed the order of dismissal dated 17.12.2019 at Annexure-4 passed by the Superintendent of Police, Bhadrak in purported exercise of power conferred under Article 311(2)(b) of the Constitution of India read with Sub Rule (ii) of Rule-18 of the Odisha Civil Service (Classification, control and Appeal) Rule 1962 and affirmed by the Appellate Authority at Annexure-7. For convenience of ready reference the impugned order at Annexure-4 and the Appellate Authority at Annexure-7 are extracted hereunder:
“xxx xxx xxx
Annexure-4
ODISHA POLICE
DISTRICT HEADQUARTERS, BHADRAK
No. 2014/ RO Dated. 17.12.2019
ORDER
…………AND WHEREAS, in view of the above facts, the full departmental enquiry is dispensed with and urgent necessity of dismissal of constable/573 Jagatpati Hansdah has arisen since it is not reasonably practicable to hold the enquiry considering the public good since the said Constable has damaged faith of police in public eyes and affected sentiments of local people.
AND WHEREAS, I have applied my mind judiciously with the view that his continuation in the police department will damage the image of police further in public eyes and will affect sentiments of public.
.......... Hence, in exercise of powers conferred under Art-311(2)(b) of the Constitution of India read with Sub Rule(ii) of Rule-18 of Odisha Civil Service (Classification, Control and Appeal) Rules 1962, I Rajesh Pandit, IPS, Superintendent of Police, Bhadrak dismiss C/573 Jagatpati Hansdah from Government Service with immediate effect on this 17th day of December, 2019.
xxx xxx xxx
Annexure-7
Order passed by Shri Himanshu Kumar Lal, IPS, I.G. of Police, Eastern Range, Balasore on the appeal petition filed by Ex.C/573 Jagatpati Hansda of Bhadrak district preferred against the order of dismissal from service issued vide Bhadrak D.O.No. 2014 dt. 17.12.2019
……………There is no dispute with the fact that the appellant being involved in criminal case was suspended and subsequently dismissed from service under provision (b) to Article 311(2) of the Constitution of India. The disciplinary authority has exercised the extraordinary power conferred on him under the above provision of the Constitution. The appellant is guided under Police Manual Rules and not OCS (CCA) Rules. While dismissing the appellant from service, the disciplinary authority has recorded reason of disposing the enquiry as laid down in PMR. Since the appellant was involved in heinous crime like sexual assault and the case was subsequently charge sheeted to face the trail action of the disciplinary authority seems to be just and proper.
I agree with findings of Disciplinary Authority. The Disciplinary Authority has imposed the punishment applying his judicious mind and maintaining all the decorum of the discipline in the department. Hence, the appeal petition is devoid of merit and rejected.
xxx xxx xxx”
On a bare perusal of the memorandum of appeal, it is seen that the Petitioner has extracted the dictionary meaning of “not reasonably practicable” by referring to the “Webster’s Third New International Dictionary” and stated that the exercise of power in the given case is ex facie arbitrary.
Since the Appellate Authority did not dispose of the appeal in time, the Petitioner approached this Court by filing W.P.(C) No.7421 of 2021 in which by order dated 01.03.2021 appeal was directed to be considered within a period of two months from the communication of the said order.
On such consideration, the appeal of the Petitioner was dismissed by order dated 30.07.2021 by the I.G of Police, Eastern Range, Balasore-Opposite Party No.3. Assailing both the order passed at Anexure-4 & 7, the present writ petitioner has been preferred, as noted.
5A. It is apt to note that the Petitioner is the sole accused in Bhadrak Town P.S. Case No.385, dated 16.12.2019, under Sections 376(1)/493/417/312/506 of IPC and it is stated at the Bar that he is now facing trial pending in the Court of learned S.D.J.M., Bhadrak.
It is submitted by the learned counsel for the Petitioner that the Petitioner joined as a constable in the year 2009 and till the incident happened in the year 2019, there was no allegation against him and on extraneous consideration the allegation has been made and being swayed away by such allegation, the impugned orders have been passed. Hence, the same are liable to be set aside and to fortify his submission that prima facie condition precedent for exercise of the power under Article 311(2)(b) is non-existent, learned counsel for the Petitioner relies on the following judgments;
i. Union of India and Anr. Vs. Tulsiram Patel and Anr., AIR 1985 SC 1416
ii. Tarsem Singh Vs. State of Punjab and Ors, (2006) 13 SCC 581
iii. Risal Singh Vs. State of Haryana and Ors, (2014) 13 SCC 244
iv. State of Orissa & Others Vs. Amulya Kumar Champatiray, 2017 (Supp-II) OLR-107
For convenience of ready reference Article 311(1) and (2)(b) is extracted hereunder:
xxx xxx xxx
“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) Xxx
(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) xxx
(3) xxx
xxx xxx xxx”
Referring to the leading Judgment under Article 311(2)(b), in the case of Tulsiram Patel (Supra), it is urged by the learned counsel for the Petitioner that the decision of the Disciplinary Authority is not binding in Court and does not in any way curtail the power of the Judicial Review.
It is his further submission that the impugned order ought to have recorded the reasons for its satisfaction that it was not “reasonably practicable” to hold the enquiry contemplated under Article 311(2)(b) in writing. And, in the absence thereof the impugned order is liable to be set aside.
Per contra, learned counsel for the State submits that taking into account that the Petitioner belongs to the Disciplined force and the nature of allegation, filing of the charge sheet and the matter being pending trial, there is no illegality or improper exercise of power by the Disciplinary Authority as well as the Appellate Authority in passing the impugned orders warranting interference by this Court.
It is his further submission that the Petitioner admittedly, belongs to a disciplined force and since it affected the image and moral of the police personnel, right action has been taken. In this context he refers to the paragraph-8 of the counter affidavit, which inter alia contained the stand of the Opposite Party. The same is culled out hereunder for convenience of ready reference;
“xxx xxx xxx
Therefore, keeping in view of the public interest, public good, public order & faith for Police administration, the extraordinary situation which was arising due to the involvement of the petitioner in heinous crime of sexual assault on victim lady Constable against her will and consent repeatedly with false assurance to marry her, threatened her with dire consequences and to damage her reputation by exposing her obscene photograph viral. Hence, in exercise of powers conferred under Article 311(2) (b) of the constitution of India r/w. sub-rule-ii) of Rule 18 of Odisha Civil Service (Classification, Control & Appeal) Rules, 1962, the petitioner was dismissed from Govt, Service w.e.f. 17.12.2019 vide Annexure-4 by the then S.P. Bhadrak.
xxx xxx xxx”
Admittedly, the Petitioner belongs to the disciplined force and so also the victim. The contentions raised by the learned counsel for the Petitioner has to be examined on the touch stone of the judgments relied upon which, inter alia, lay down the proposition of law as referred to the hereinabove in the case of Tulsiram Patel (Supra) that the reasons have to be reflected for taking the extra ordinary step of dispensing with the Enquiry and secondly, which ought to indicate why it is not reasonably practicable “to hold such enquiry”.
There is an interesting feature of this case which ought to be noticed. In as much as by taking into account the nature of allegation on 16.12.2019, the suspension order was passed by 17.12.2019 by the Disciplinary Authority- the Superintendent of Bhadrak. In the said suspension order, it has been stated thus;
“xxx xxx xxx
The above activities is not expected from the member of a disciplined department. As a departmental proceeding enquiry is being contemplated against him for the above reason, APR Const./573 Jagatpati Hansda is hereby placed under suspension w.e.f 17.12.2019 A.M for his gross misconduct, indiscipline conduct & moral turpitude.
xxx xxx xxx”
There is nothing on record to indicate the reason which impelled the authorities to take recourse to extraordinary measure and dispense with the services of the Petitioner in terms of Article 311 (2) (b) by the impugned order at Annexure-4. by the selfsame Authority and on the same date i.e. on 17.12.2019. In such view of the matter, this Court is persuaded to hold that in view of the judgments cited above the order of the Disciplinary Authority as well as the Appellate Authority does not stand scrutiny in terms of the law laid down by the Apex Court in the case of Tulsiram Patel (Supra) and followed subsequently in several judgment noted above and the order passed by this Court in the case of State of Orissa & Others Vrs Amulya Kumar Champatiray, 2017 (Supp-II) OLR-107, the impugned order of dismissal at Annexure-4 dated 17.12.2019 passed by the Superintendent of Police, Bhadrak and the Appellate order dated 30.07.2021 at Annexure-7 is liable to be quashed. Accordingly it is so directed.
14A. Having held so the next question that confronts this Court, is the relief which can be granted to the Petitioner.
Learned counsel for the Petitioner submits that since the orders are not sustainable ex facie being violative of the dictum of the Apex Court and not within the parameters as laid down under Article 311(2)(b) of the Constitution, the logical consequence is that the Petitioner should be directed to be reinstated with all consequential financial and service benefits.
Such submission is opposed by the learned counsel for the State on the ground that since the order is interfered on “technical grounds”, inter alia for not containing reasons, taking into account the nature of allegation, such relief ought not to be granted.
It is trite that the judgments rendered by the Apex Court have to be followed in the facts of each case. In this context this Court respectfully refers to the judgment of the Apex Court in the case of Haryana Financial Corporation Vrs. Jagdamba Oil Mills reported in (2002) 3 SCC 496 and in the case of Islamic Academy of Education and another Vrs. State of Karnataka and others reported in (2003) 6 SCC 697.
Taking into account the nature of allegation, this Court is not persuaded to hold that in the case at hand the reinstatement of the present Petitioner in service can be directed.
In the factual matrix of the present case taking into account the nature of allegation, this Court directs that in view of quashment of the order of dismissal and the Appellate order at Annexure 4 and 7 respectively, the Authority shall conduct an enquiry in terms of the Police Manual and conclude the same within the period of six months from the date of receipt/ production of copy of this judgment.
In the event, the enquiry is not concluded within the aforesaid period and the delay is not attributable to the Petitioner, it shall be open for the Petitioner to seek relief of reinstatement.
Accordingly, the writ petition stands disposed of. No costs.
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