Shrikrishna Pandey vs Chhattisgarh Vidhan Sabha and Others

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 7-5-2011 (Annexure P/1) whereby the petitioner, working as Lower Division Clerk (for short ''the LDC '') in the Vidhan Sabha Secretariat, has been dismissed from service, under the provisions of Chapter IX Rule 10 of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (for short "the Rules, 1966"). The facts, in brief, necessary for adjudication of this petition are that the petitioner was appointed on the post of LDC vide order dated 29-9-2003. After completion of his probation period, he was regularized by order dated 3-12-2005. The petitioner was the elected President of the Chhattisgarh Vidhan Sabha Sachivalaya Shashkiya Karmachari Sangh. On account of certain illegalities and irregularities, the petitioner made representations before the respondent authorities regarding various demands of the employees. The petitioner applied for leave on 27-4-2011 and proceeded on leave without sanction, in anticipation of the same. The Government of Chhattisgarh, in exercise of the powers conferred by sub-section (1) of Section 4 of the Chhattisgarh Atyavashyak Sewa Sandharan Tatha Vichhinnata Nivaran Adhiniyam, 1979 (for short ''the Act, 1979''), passed an order dated 3-5-2011 declaring the services of the Chhattisgarh Vidhan Sabha Sachivalaya as essential services to prohibit refusal to work. Immediately thereafter, by notice dated 4-5-2011, the petitioner was directed to submit his reply regarding unauthorized absence from service, which amounts to misconduct i.e. unbecoming behaviour of the petitioner. The said notice was duly replied on 7-5-2011 at 4 p.m. and immediately thereafter, the impugned termination order dated 7-5-2011 was issued by the respondent No. 3.

Shri Sharma, learned counsel appearing for the petitioner would submit that the punishment of removal from service is a major penalty under Rule 10 of the Rules, 1966 and before passing the impugned order, proper departmental enquiry was necessary, as provided under Rule 14 of the Rules, 1966. He would next contend that on the contrary, the impugned order itself states that no enquiry is possible before termination of service. Thus, the action of the respondent authorities is illegal, arbitrary, mala fide, and deserves to be set aside.

On the other hand, Shri Pali, learned counsel appearing for the respondents would submit that the petition is liable to be dismissed on the ground of availability of alternative remedy. Under Rule 29 of the Rules, 1966 provisions for review has also been incorporated which has been ignored by the petitioner.

Shri Pali would next submit that the petitioner was born in Nepal and has not produced any document to show that he has given up the citizenship of Nepal and obtained the citizenship of India. The same is evident from the verification form, which was filled up by the petitioner himself. Thus, this petition suffers from inability caused vide Part II of the Constitution of India. The case of the petitioner is relatable to Article 311 (2) (b) of the Constitution of India, according to which, the order of dismissal has been passed by the respondent No. 3 i.e. the appointing/disciplinary authority.

Shri Pali would further submit that it is constitutionally permissible to dispense with holding of an enquiry if the disciplinary authority is satisfied that for some reasons it would not be reasonably practicable to hold such enquiry. The principles of natural justice do not flow from Article 14 of the Constitution of India. The demonstrations and strike comes within the purview of misconduct under the provisions of the Chhattisgarh Civil Services (Conduct) Rules, 1965. The petitioner has abetted other employees to remain on leave to effect the work of the Assembly, as 64 class-IV employee and 42 class-III employees made applications on 27-4-2011 for mass leave, which were rejected by the respondents on 28-4-2011. In such a situation, it was not necessary to hold an enquiry before passing the impugned order of termination from service.

The petitioner has fraudulently obtained ration card and domicile certificate suppressing various material facts. Further, the petitioner, who claims to be the President of the Society, is not recognized by the State Government. The petitioner has tried to pressurize the Government by putting black ribbon on the clothes, during the budget session of the Vidhan Sabha. The action of the petitioner himself is unbecoming of a Government servant as he has motivated, influenced, instigated his colleagues to join an indefinite relay hunger strike from 29-4-2011 for which he was seeking permission from the respondent authorities, which was rejected and no leave was granted to any of the employees. Even then, the petitioner proceeded on leave and did not join the duty. Various note sheets filed alongwith the return would show that the integrity of the petitioner, his conduct are such, that it was not thought proper to retain his services, thus, he was terminated from service by the impugned order.

Having given serious consideration to the submissions made by the learned counsel for the parties and also after perusal of the pleadings and the documents appended thereto, it is evident that the impugned order was passed on the date i.e. 7-5-2011 when reply to the notice dated 4-5-2011 was filed that gives a clear indication that there was no application of mind or the part of the authorities before passing the order.

Without going into the merits of the case, which requires proper enquiry, as the same has been dispensed with in the instant case, I proceed to take the issue of application of provisions of Article 311 (2) (b) of the Constitution of India, in the facts of the present case.

It is indisputable that before imposing a major penalty under Rule 10 of the Rules, 1966 and before passing the impugned order, proper departmental enquiry has to be conducted in accordance with the procedure laid down in Rule 14 of the Rules, 1966 and the same has not been done in the instant case.

It will be useful to quote the provisions of Article 311 of the Constitution of India, which reads as under:

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) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(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) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

Provisions of Article 311(2) provides that no person who is holdings civil post 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. It is further provided that the aforesaid provision shall not be applicable in case the dismissal or removal or reduction in rank was done on the ground of conduct which has led to his conviction on a criminal charge and under Article 311(2)(b) where the authority empowered is satisfied that for some reason, to be recorded by that authority in writing or under clause (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

The instant case, as pleaded by the learned counsel for the respondents, comes within the purview of Article 311(2)(b) of the Constitution. Before satisfaction of the authority empowered to dismiss or remove or to reduce him in the rank, reason has to be recorded in writing. Thus, mere satisfaction without recording reasons, the authority cannot invoke Article 311(2)(b) of the Constitution for dispensing with enquiry, as required under the main provision of Article 311(2) of the Constitution. Even the reasons recorded are also subject to judicial review, as the same should be strong, cogent and relevant for taking such a decision.

A constitution Bench of the Supreme Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, observed as under:

The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out...

Another constitution Bench of the Supreme Court in Union of India and Another Vs. Tulsiram Patel and Others, observed as under:

130.... A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the department''s case against the government servant is weak and must fail....

The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.

It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry...

In Jaswant Singh Vs. State of Punjab and others, the Supreme Court observed as under:

5.... The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by respondent 3 it is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he could have given threats, etc. when he was in hospital. It is not shown on what material respondent 3 came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at jullundur on April 3, 1981 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one''s contention that the said SHO was threatened. Respondent 3''s counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with of the inquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained.

In Tarsem Singh v. State of Punjab and others (2006) 13 SCC 581, the Supreme Court, while dealing with the requirement of Article 311(2) of the Constitution of India, observed as under:

We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document.

The decision of Tulsiram Patel (supra) was referred with approval in Southern Railway Officers Assn. and Another Vs. Union of India (UOI) and Others,

The impugned order does not record any reasons for dispensing with the enquiry as laid down in Rule 14 of the Rules, 1966.

The relevant portion of the official proceedings of the respondents read as under:

On perusal of the proceedings, which were filed with the return, it is found that no reason has been set out to take recourse to provisions of Article 311(2)(b) of the Constitution. It is mandatory to record reasons before the authority empowered expresses its satisfaction.

The proceedings contained allegations, which can be verified only after following the main provision of Article 311(2), which clearly provides that no person 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. Clause (b) is an exception carved out from the main provision. Thus, it was necessary to record reasons.

Since there is no reason at all for taking recourse to the exception, the decision of the authority is contrary to the constitutional provision of Article 311(2) of the Constitution. Rule 14 of the Rules, 1966 prescribes the procedure, which is in consonance with the provisions of Article 311(2) of the Constitution of India. On the allegations and averments, I do not propose to express any opinion, as no enquiry has been held in that respect.

Applying the well settled principles of law to the facts of the present case and for the reasons stated hereinabove, the impugned order dated 7-5-2011 (Annexure-P/1) is quashed. However, on the request of learned counsel appearing for the respondent authorities, liberty is reserved to the authority empowered to take decision to take appropriate steps, in accordance with the constitutional provisions as well as statutory rules, if so advised.

As an upshot, the writ petition is allowed to the extent indicated above. There shall be no order as to costs.