Kewal Ram 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, seeking quashing of the dismissal order dated 05.10.2021, bearing No. 1887/Misc./Complaints/2021-Pers-III, and the consequential Office Order No. 154/2021 dated 08.10.2021, with a direction for his reinstatement in service with consequential benefits. The applicant has also challenged the consequential order dated 29.10.2021 directing him to vacate the official residential accommodation.

The main issue arising for consideration is whether the competent authority was justified in dispensing with a regular departmental inquiry against the applicant 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 brief factual matrix of the case is that the applicant joined the Central Bureau of Investigation (CBI) as a Constable on 20.08.2005 and was subsequently promoted to the post of Head Constable on 03.02.2017. At the relevant time, he was posted in the Banking, Securities and Fraud Branch of the CBI at New Delhi. The impugned dismissal order dated 05.10.2021 records that an allegation had been made against the applicant in respect of an incident dated 24.09.2021 involving a female contractual employee engaged for cleaning and sweeping work at the CBI Headquarters. FIR/RC No. 34(A)/2021 was registered on 29.09.2021, and the applicant was arrested on 03.10.2021.

Thereafter, the competent authority, invoking clause (b) of the second proviso to Article 311(2) of the Constitution of India, read with Rule 11 of the aforesaid Rules, dismissed the applicant from service with immediate effect vide order dated 05.10.2021. The order records the satisfaction of the competent authority that it was not reasonably practicable to hold a departmental inquiry and that the reasons for dispensing with the inquiry had been recorded separately in writing. It further records that the applicant’s activities did not warrant his continuation in service in the public interest. A consequential office order dated 08.10.2021 was also issued.

The applicant has challenged the aforesaid orders, contending that the constitutional requirements for dispensing with a departmental inquiry were not satisfied.

Learned counsel for the applicant contended that the respondents had acted in violation of the principles of natural justice and the constitutional protection guaranteed under Article 311 of the Constitution of India. It was submitted that the applicant had rendered more than sixteen years of service and that, on the basis of an alleged complaint made by a female contractual employee, the respondents proceeded with extraordinary haste to dismiss him from service without affording him an opportunity to explain his position or defend himself against the allegations.

Learned counsel for the applicant submitted that the power under Article 311(2)(b) is exceptional in nature and can be invoked only when the competent authority is objectively satisfied, on the basis of relevant material, that it is not reasonably practicable to hold a regular departmental inquiry. According to him, the seriousness of the allegations or the registration of a criminal case cannot, by themselves, justify dispensing with the constitutionally prescribed procedure.

It was further contended that no material had been placed on record to establish that the applicant had threatened or intimidated the complainant or that any circumstances existed which rendered it not reasonably practicable to hold a departmental inquiry.

Learned counsel for the applicant placed reliance upon the judgments of the Hon’ble Supreme Court in Maneka Gandhi v. Union of India, 1978 AIR 597; Sayeedur Rehman v. State of Bihar & Ors., (1973) 3 SCC 333; Channabasappa Basappa Happali v. State of Mysore, AIR 1972 SC 32; Union of India v. Tulsiram Patel, (1985) 3 SCC 398; and Tarsem Singh v. State of Punjab & Ors., (2006) 13 SCC 581. Reliance was also placed upon Manohar Lal v. Commissioner of Police & Ors., Civil Appeal No. 13860 of 2024, decided on 12.03.2026 and reported in 2026 INSC 234, in support of the contention that the satisfaction required under Article 311(2)(b) must be based upon objective and relevant considerations and cannot rest upon mere apprehensions or conjectures.

Learned counsel for the applicant further submitted that the respondents had themselves undertaken an investigation into the allegations, registered FIR/RC No. 34(A)/2021 and collected material, including the statements of the complainant under Sections 161 and 164 of the Code of Criminal Procedure. A charge-sheet was subsequently filed before the competent criminal court. It was argued that these circumstances demonstrated that the allegations were capable of investigation and that the respondents had not established why the available material could not be examined in a regular departmental inquiry.

It was also contended that the respondents had failed to follow the applicable Government of India instructions governing complaints of sexual harassment at the workplace, including the DoP&T Office Memorandum dated 16.07.2015. Learned counsel further challenged the registration of the FIR/RC and alleged discriminatory treatment in comparison with other employees.

On these grounds, learned counsel for the applicant prayed that the impugned dismissal order and consequential orders be quashed and that the applicant be reinstated in service with all consequential benefits.

Per contra, learned counsel for the respondents, referring to the counter reply, submitted that the Original Application was devoid of merit and deserved to be dismissed. A preliminary objection was also raised regarding the mis-joinder and non-joinder of parties. It was contended that Respondent Nos. 1 and 2 had no role in the matter and that Respondent No. 3 was the appointing authority of the applicant.

Learned counsel for the respondents submitted that the impugned dismissal order had been passed in accordance with Article 311(2)(b) of the Constitution of India, read with Rule 11 of the Delhi Special Police Establishment (Subordinate Ranks) (Discipline and Appeal) Rules, 1961. It was contended that the competent authority had considered the facts and circumstances of the case and had recorded its satisfaction that holding a departmental inquiry was not reasonably practicable.

Referring to the allegations, learned counsel for the respondents submitted that the complaint was made by a female employee engaged through an outsourced agency for cleaning and sweeping work at the CBI Headquarters. According to the complaint, on 24.09.2021, the applicant had allegedly held the complainant from behind and touched her inappropriately and had thereafter again approached her and behaved improperly. It was submitted that the complainant was frightened by the incident and reported the matter to senior officers of the organisation.

Learned counsel for the respondents further submitted that FIR/RC No. 34(A)/2021 had been registered in connection with the incident and that the complainant’s statements were recorded under Sections 161 and 164 of the Code of Criminal Procedure. Upon completion of the investigation, a charge-sheet was filed before the competent criminal court on 29.12.2021 for offences under Sections 354 and 354-A of the Indian Penal Code. He contended that, having regard to the nature and seriousness of the allegations, the competent authority apprehended that the complainant, being an outsourced employee, could be won over, intimidated or influenced by the applicant if a departmental inquiry were held. It was further submitted that conducting such an inquiry could expose the complainant to further harassment and threats, adversely affect the morale of the staff, particularly female employees, and undermine the safe and women-friendly working environment of the organisation.

Learned counsel for the respondents further submitted that the applicant had allegedly fled from the place of occurrence and thereafter remained unauthorisedly absent from duty. It was also pointed out that, while posted at CBI, Jaipur, in 2010, the applicant had previously been found in an inebriated condition while on duty, for which a punishment of withholding of two increments had been imposed.

According to the respondents, the aforesaid circumstances, considered collectively, justified dispensing with a departmental inquiry and invoking Article 311(2)(b) of the Constitution of India.

With regard to the applicant's subsequent acquittal by the learned Chief Metropolitan Magistrate, New Delhi, vide judgment dated 15.09.2022, learned counsel for the respondents submitted that the acquittal was based upon the benefit of doubt arising from the complainant's failure to identify the applicant during the trial. It was contended that the subsequent acquittal did not invalidate the decision taken by the competent authority on the basis of the circumstances prevailing at the time of dismissal.

The respondents denied the allegations of mala fides, bias and discrimination and prayed that the Original Application be dismissed.

We have carefully considered the submissions advanced by learned counsel for both parties and have perused the pleadings and the material placed on record.

The issue before us is whether the competent authority was justified in dispensing with the departmental inquiry by invoking Article 311(2)(b) of the Constitution of India. At the outset, we clarify that the present adjudication is confined to the legality of dispensing with the inquiry. We are not required to determine the truth or falsity of the allegations against the applicant, nor do we express any opinion on his criminal liability.

Article 311(2) of the Constitution of India provides a constitutional safeguard against dismissal, removal or reduction in rank without the prescribed opportunity of defence. The second proviso to Article 311(2) recognizes certain exceptional circumstances in which the requirement of holding an inquiry may be dispensed with. Clause (b) thereof applies where the competent authority is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to hold such an inquiry.

The power under Article 311(2)(b) is, therefore, an exceptional power and must be exercised with due care and caution. The satisfaction of the competent authority must be based upon relevant material having a reasonable nexus with the conclusion that holding a departmental inquiry is not reasonably practicable. The mere seriousness of the allegations or the desirability of removing an employee from service cannot, by itself, satisfy this constitutional requirement.

The Hon'ble Supreme Court in. Tulsiram Patel (supra) explained the scope of the power under Article 311(2)(b) and held that the satisfaction of the competent authority is subject to judicial review. The Court's scrutiny is directed towards examining whether the decision has been taken on relevant material and whether the circumstances relied upon reasonably support the conclusion that an inquiry is not practicable. The requirement that reasons be recorded in writing is not a mere formality. The reasons must be relevant to the question of practicability and must disclose a rational basis for dispensing with the ordinary disciplinary procedure.

The principle emerging from Tarsem Singh (supra) also emphasizes that the exceptional power cannot be exercised merely on the basis of apprehensions unsupported by an adequate factual foundation. The power is not intended to provide a substitute for a regular inquiry whenever the allegations are serious or the disciplinary authority anticipates administrative difficulties.

We have also considered the judgment of the Hon'ble Supreme Court in Manohar Lal (supra) relied upon by the applicant. The legal principles laid down in the aforesaid judgments require the authority to establish a rational and sustainable basis for concluding that holding a departmental inquiry was not reasonably practicable.

In the present case, the respondents have relied upon the seriousness of the allegations, the status of the complainant as an outsourced employee, the apprehension that she could be won over, intimidated or influenced, the possibility of further harassment, the alleged adverse impact on staff morale and the applicant's alleged conduct after the incident.

We are conscious that allegations of inappropriate physical contact with a female employee are serious and require prompt and appropriate action. The respondents were under an obligation to protect the complainant and to ensure a safe and dignified working environment, particularly for women employees. Nevertheless, the seriousness of the allegations and the need for appropriate disciplinary action must be distinguished from the separate constitutional requirement that holding an inquiry was not reasonably practicable.

The respondents have specifically contended that the complainant, being an outsourced employee, could be intimidated, influenced or won over by the applicant. Such an apprehension cannot be dismissed as irrelevant merely because the complainant was employed through an outsourced agency. At the same time, the complainant's contractual status, by itself, does not establish that she could not participate in a departmental inquiry or that the inquiry could not be conducted fairly.

For invoking Article 311(2)(b), the authority must have a sufficient factual basis for concluding that the apprehended risk renders the inquiry not reasonably practicable. A general apprehension that a complainant or witness might be influenced cannot automatically dispense with the prescribed procedure. The possibility of intimidation must be examined in the context of the material available to the competent authority and the circumstances prevailing at the relevant time.

In this context, the judgment of the Hon'ble Delhi High Court in Neeraj Agarwal v. Secretary, DoPT & Ors., reported in 2025:DHC:11844-DB, is relevant to the extent that it examines the constitutional requirement governing the invocation of Article 311(2)(b) in the case of a CBI officer. The principle that a general apprehension of witness intimidation, without adequate factual support, may not justify dispensing with a departmental inquiry is pertinent to the present controversy.

We apply the aforesaid principle to the facts of the present case without overlooking the nature of the allegations or the respondents' responsibility to safeguard the complainant.

The respondents have also relied upon the registration of FIR/RC No. 34(A)/2021, the investigation undertaken into the allegations, the statements recorded during the investigation and the subsequent filing of a charge-sheet before the criminal court.

These circumstances establish that the allegations were the subject of a criminal investigation. However, the registration of a criminal case or the filing of a charge-sheet does not, by itself, demonstrate that a departmental inquiry was not reasonably practicable. The two proceedings serve different purposes and are governed by their respective procedures. The respondents were required to demonstrate why the material relating to the allegations could not reasonably be examined in a departmental inquiry, with appropriate safeguards for the complainant and other witnesses. On the material presently forming the basis of the impugned action, the apprehension of intimidation and the pendency of criminal proceedings do not, without an adequate factual foundation, establish the requisite constitutional condition.

We have also considered the respondents' submission that the incident adversely affected the morale of the staff and the safe working environment of the organisation. The need to maintain discipline, protect female employees and preserve confidence in the workplace is undoubtedly important. However, these considerations may justify appropriate administrative and disciplinary action in accordance with law; they do not automatically establish that a departmental inquiry cannot reasonably be held.

The distinction between an employee's alleged unsuitability for continued service and the impracticability of conducting an inquiry is material. Even where the competent authority considers an employee's continued presence undesirable, the constitutional exception can be invoked only if the separate requirement under Article 311(2)(b) is satisfied.

The respondents have further relied upon the applicant's alleged departure from the place of occurrence, his subsequent unauthorised absence and the previous punishment imposed upon him in 2010. Even assuming these circumstances to be relevant to the applicant's conduct, they do not, by themselves, establish that a departmental inquiry into the allegations arising from the incident dated 24.09.2021 was not reasonably practicable.

The alleged unauthorized absence could have been dealt with in accordance with the applicable disciplinary rules. Similarly, the previous punishment could be considered for an appropriate purpose where permitted by law. Neither circumstance, without more, establishes the jurisdictional condition necessary for dispensing with an inquiry under Article 311(2)(b).

We are also conscious of the respondents' contention that the competent authority recorded its satisfaction in writing. However, the recording of satisfaction is not conclusive by itself. The reasons must be examined to determine whether they are supported by relevant material and whether they reasonably establish that a regular departmental inquiry was not practicable.

On an assessment of the grounds advanced by the respondents, we find that the seriousness of the allegations, the general apprehension regarding the complainant being influenced, the pendency of the criminal proceedings and the administrative concerns expressed by the respondents cannot, without a sufficiently specific factual foundation, cumulatively satisfy the constitutional requirement. The material relied upon does not establish why an inquiry could not reasonably have been held by adopting appropriate safeguards.

The applicant has also relied upon the subsequent acquittal dated 15.09.2022. We do not consider it necessary to determine the effect of the acquittal on the merits of the allegations. The validity of the impugned dismissal order must primarily be assessed with reference to the circumstances existing when the power under Article 311(2)(b) was exercised on 05.10.2021. The subsequent acquittal does not, by itself, establish that the allegations were false. Equally, the registration of the FIR and the filing of the charge-sheet did not automatically justify dispensing with the departmental inquiry. Our conclusion rests on the failure to establish the necessary constitutional condition for invoking Article 311(2)(b).

In view of the aforesaid facts and circumstances of the case, we are of the considered view that the respondents have not sufficiently established that it was not reasonably practicable to hold a regular departmental inquiry against the applicant. The jurisdictional condition for invoking Article 311(2)(b) of the Constitution of India has, therefore, not been established on the grounds relied upon in support of the impugned action.

In view of the foregoing discussion, we are of the considered view that the respondents have failed to establish that it was not reasonably practicable to hold a regular departmental inquiry against the applicant. Consequently, the invocation of Article 311(2)(b) of the Constitution of India cannot be sustained in the facts and circumstances of the present case. We, therefore, hold that the impugned dismissal order dated 05.10.2021 is legally unsustainable and liable to be set aside. It is, however, clarified that our findings are confined to the legality of dispensing with the departmental inquiry and shall not be construed as exonerating the applicant from the allegations levelled against him.

In view of the aforesaid, the present Original Application is partly allowed. The impugned dismissal order dated 05.10.2021, bearing No. 1887/Misc./Complaints/2021-Pers-III, passed under Article 311(2)(b) of the Constitution of India read with Rule 11 of the Delhi Special Police Establishment (Subordinate Ranks) (Discipline and Appeal) Rules, 1961, along with the consequential Office Order No. 154/2021 dated 08.10.2021, is hereby quashed and set aside.

The respondents are directed to reinstate the applicant in service with continuity of service. However, the applicant's entitlement to back wages and other consequential monetary benefits for the period during which he remained out of service shall be considered and decided by the competent authority in accordance with the applicable rules and law. The competent authority shall pass a reasoned and speaking order in this regard, as expeditiously as possible, preferably within three months from the date of receipt of a certified copy of this order.

The consequential order dated 29.10.2021 directing the applicant to vacate the official residential accommodation shall also stand set aside to the extent that it is founded upon the dismissal order quashed herein. The applicant's entitlement to retention or restoration of the said accommodation shall be considered by the respondents in accordance with the applicable rules and the consequences flowing from his reinstatement.

It is clarified that this order shall not preclude the respondents from initiating or proceeding with disciplinary proceedings against the applicant in accordance with law, if otherwise permissible, subject to the applicable rules and legal limitations. No opinion has been expressed on the merits of the allegations against the applicant.

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

Pending MA(s), if any, shall also stand disposed of accordingly.