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Arun Kumar vs The State Of Bihar & Ors on 30 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.19765 of 2016

Arun Kumar, Son of Sri Indradev Singh, Resident of Village- Bishunpur, P.S.-
Bind, District- Nalanda.

…. …. Petitioner/s
Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, Dept. of Registration, Excise and Prohibition,
Government of Bihar, Patna.

3. District Magistrate, Kaimur.

…. …. Respondent/s

Appearance :

For the Petitioner/s : Mr. Prabhakar Singh, Advocate
For the Respondent/s : Mr. Vivek Prasad, GP-7

CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL JUDGMENT
Date: 30-04-2018

It is feeling aggrieved by the order of dismissal dated

25.5.2016 bearing Memo No.2673 dated 31.5.2016 of the Principal

Secretary, Department of Registration, Excise and Prohibition,

Government of Bihar passed in purported exercise of powers vested

under Article 311(2) (b) of the Constitution of India that the

petitioner is before this Court invoking the extraordinary jurisdiction

under Article 226 of the Constitution of India.

With the consent of the parties the writ petition is heard

with a view to its final disposal at the stage of admission itself.

The allegations are rather serious and draw its foundation

from an FIR arising from Durgawati P.S. Case No.137 of 2016

registered for the offences punishable under sections 341, 342, 166,

379, 384, 386, 389, 506/34 of the Indian Penal Code and section
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 2

65(b) (c) of the Bihar Excise Act, 2016.

The prosecution case briefly stated is that one Satnam

Singh, a resident of Village Khurda, District- Hoshiyarpur in the

State of Punjab has alleged that while he was travelling in his Swift

Dezire car bearing registration no.PB-12L- 2021 and crossed the

Toll Plaza in the district of Kaimur that he was stopped by some

police officials on the pretext of search of the vehicle. According to

the informant, some of the officials were in civil dress while others

were in the uniform. It is alleged that some of the officials took the

informant and other occupants to a distance from the car while the

others drew a bottle of liquor and alleged that it was found in the car.

It is the allegation of the informant that he is a Teetotaler and no

liquor was present in the car but his statement was not believed

under the threat of serious prosecution, fine and imprisonment. A

demand of Rs.1,00,000/- was made for a let of. It is stated that

ultimately these officials coerced him to pay Rs.25,000/-. The

informant was forced into a Sumo vehicle bearing registration

no.UP65AC-3461 and brought to station road, Mohaniya where the

ATM was closed. The informant was thereafter taken to Bhabhua

and under threat of encounter, forced to draw Rs.20,000/- at about

1.00 AM from an A.T.M. located near the S.P. residence. It is

alleged that when the car suffered problem, the informant was

shifted to another Sumo car bearing registration no.JH-01M-0744
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 3

and brought to the Toll Plaza and in between also made to fill up

petrol. After the return at the Toll Plaza, the informant gave

Rs.20,000/- which he had drawn from the ATM and Rs.5000/- from

his own possession. It is alleged by the informant that later on he

discovered that a sum of Rs.25,000/- which was kept in the

dashboard of the car was also removed by these Policemen. It is

alleged that since he had to go to Kolkata for looking up his driver

who had suffered accident that there was a delay in lodging the FIR,

a copy of which is at Annexure 1 to the writ petition.

As I have observed, the allegations are rather serious and

confirm to the level of misuse of the Prohibition Law enforced in the

State w.e.f. 1.4.2016 by those who have been given the

responsibility of its enforcement.

Reverting back to the issue in hand, on institution of the

FIR on 23.5.2016 that the District Magistrate, Kaimur after holding

preliminary enquiry, recommended for initiation of disciplinary

proceeding against the accused which obviously included the

petitioner as well, vide his letter dated 25.5.2016 addressed to the

Principal Secretary, Department of Registration, Excise and

Prohibition, a copy of which is at Annexure-3 to the writ petition.

Rather interestingly, it is on mere receipt of the recommendation

from the District Magistrate, Kaimur for initiating disciplinary

proceeding against the accused that the impugned order of dismissal
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 4

has been passed by the Principal Secretary in purported exercise of

powers vested under Article 311(2)(b) of the Constitution of India

and feeling aggrieved the petitioner is before this Court.

I have heard Mr. Prabhakar Singh, learned counsel

appearing for the petitioner and Mr. Vivek Prasad, learned

Government Pleader No.7 for the State and I have perused the

records.

The only issue which arises for consideration in this writ

petition is whether the power exercised by the Principal Secretary to

dismiss the petitioner is in tune with the stipulation present in Article

311(2) (b) of the Constitution of India.

While it is the argument of Mr. Singh, learned counsel

appearing for the petitioner that such powers have to be exercised

with due care and caution and not in a whimsical manner as having

been done in the present case where it is within two days of the

institution of the FIR and on the very date of receipt of

recommendation of the District Magistrate, Kaimur for initiation of

disciplinary proceeding that the Principal Secretary recording the

opinion that it was not practicable to hold enquiry, has decided to

exercise the powers vested under Article 311(2)(b) of the

Constitution of India which does not record any subjective

satisfaction nor is supported by the facts accompanying, the

arguments have been contested by the learned State Counsel in
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 5

reference to the circumstance that, since the petitioner was

absconding hence it was not practicable to hold any proceeding.

According to the learned State Counsel it is taking note of the

unimpeachable evidence against the petitioner that the power has

been exercised which suffers no infirmity.

Interestingly, both, learned counsel for the petitioner as well

as the State have relied upon a Constitution Bench judgment of the

Supreme Court rendered in the case of Union of India vs. Tulsiram

Patel reported in AIR 1985 SC 1416.

Having heard learned counsel for the parties, in my opinion,

the only issue which arises for consideration is whether in the

circumstances discussed the recourse taken by the Principal

Secretary, Department of Registration, Excise and Prohibition, to

waive of the requirement of a regular departmental proceeding

relying upon the provisions underlying Article 311(2) (b) of the

Constitution of India requires an interference and/or whether the

materials on record confirm to the satisfaction of the Principal

Secretary to record the order of dismissal while exercising such

powers.

It is taking note of the nature of dispute that this Court vide

order passed on 29.3.2018 directed the Principal Secretary to file his

affidavit and pursuant whereto an affidavit is filed on behalf of the

Principal Secretary through the Special Superintendent, Excise,
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 6

Headquarter, Patna on 19.4.2018 who while discussing the materials

which persuaded the Principal Secretary to order for the dismissal of

the petitioner, under Article 311(2) (b) of the Constitution of India,

has mentioned in paragraphs 18 and 19 that since the petitioner was

absconding without intimation, it was not practicable to provide him

opportunity of hearing.

Article 311(2)(b) of the Constitution of India reads thus:

“311. Dismissal, removal or reduction in rank
of persons employed in civil capacities under
the Union or a State.

… …. …. …. …. …
…. …. …. …. …. …
(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-

…. …. …. …. … ….
…. …. …. …. … ….

(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;”

It is manifest from a plain reading of the provision that

while the substantive part upholds the requirement of a departmental
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 7

proceeding, the exceptions are provided in the second proviso

attached to Article 311(2) which inter alia empowers the

Disciplinary Authority to dismiss or remove or reduce a person in

rank if he is satisfied, for the reasons to be so recorded, that it was

not practicable to hold such enquiry. The two pre-requisites for such

exercise manifestly is that:

(a) There must exist a situation which renders holding of any

such enquiry reasonably not practicable; and

(b) The Disciplinary Authority must record sound reasons in

support of his satisfaction.

It is undisputed that the power vested in the Disciplinary

Authority to waive of the necessity of a disciplinary proceeding

under the second proviso to Article 311(2), is an extreme measure

and has to be exercised in extreme circumstances for it forfeits a

valuable legal right vested in a delinquent. It is not on mere ipse-

dixit that such power is to be exercised rather it is after recording

subjective satisfaction explaining why it was not reasonably

practicable to hold an enquiry that such power can be exercised.

Since both the parties have relied on the same Constitution

Bench judgment rendered by the Supreme Court in the case of

Tulsiram Patel (supra), I am persuaded to reproduce the instances

given by way of illustration by the Supreme Court to exercise such

powers and which reads thus:

Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 8

“130. …. ….. …. …. …. ….

…. ….. ….. …. …. ….

Thus, whether it was practicable to hold the inquiry or
not must be judged in the context of whether it was
reasonably practicable to do so. It is not a total or
absolute impracticability which is required by clause

(b). What is requisite is that the holding of the inquiry
is not practicable in the opinion of a reasonable man
taking a reasonable view of the prevailing situation. It
is not possible to enumerate the cases in which it
would not be reasonably practicable to hold the
inquiry, but some instances by way of illustration may,
however, be given. It would not be reasonably
practicable to hold an inquiry where the government
servant, particularly through or together with his
associates, so terrorizes, threatens or intimidates
witnesses who are going to give evidence against him
with fear of reprisal as to prevent them from doing so
or where the government servant by himself or
together with or through others threatens, intimidates
and terrorizes the office who is the disciplinary
authority or members of his family so that he is afraid
to hold the inquiry or direct it to be held. It would also
not be reasonably practicable to hold the inquiry where
an atmosphere of violence or of general indiscipline
and insubordination prevails, and it is immaterial
whether the concerned government servant is or is not
a party to bringing about such an atmosphere. In this
connection, we must bear in mind that numbers coerce
and terrify while an individual may not. The
reasonable practicability of holding an enquiry is a
matter of assessment to be made by the disciplinary
authority. Such authority is generally on the spot and
knows what is happening. It is because the disciplinary
authority is the best judge of this that clause (3) of
Article 311 makes the decision of the disciplinary
authority on this question final. 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
finality given to the decision of the disciplinary
authority by Article 311(3) is not binding upon the
court so far as its power of judicial review is concerned
and in such a case the court will strike down the order
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 9

dispensing with the inquiry as also the order imposing
penalty. …. …. …. …. …. ….

…. …. …. …. ….. …..”
(Emphasis supplied by me)

The opinion expressed by the Constitution Bench in

Tulsiram Patel (supra) has been followed in a subsequent judgment

of the Supreme Court reported in AIR 1991 SC 385 (Jaswant Singh

vs. State of Punjab) and the observations are present at paragraph 5:

                           "5. .... ....         .... ....         .....    .... .....
.... ..... It was incumbent on the respondents to

disclose to the Court the material in existence at the
date of the passing of the impugned order in support of
the subjective satisfaction recorded by respondent No.3
in the impugned order. Clause (b) of the second proviso
to Article 311(2) can be invoked only when the
authority is satisfied from the material placed before
him that it is not reasonably practicable to hold a
departmental enquiry. This is clear from the following
observation at p.270 (of 1985 (Supp) 2 SCR 131): (at p.
1479 of AIR 1985 SC 1416) of Tulsi Ram's case:

"A disciplinary authority is not expected to
dispense with a disciplinary authority 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 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 yet another judgment reported in (2006)13 SCC 581

(Tarsem Singh vs. State of Punjab) the position has been reiterated
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 10

at paragraphs 10 and 11 which are reproduced hereunder:

"10. It is now a well-settled principle of law that
a constitutional right conferred upon a delinquent
cannot be dispensed with lightly or arbitrarily or out of
ulterior motive or merely in order to avoid the holding
of an enquiry. The learned counsel appearing on behalf
of the appellant has taken us through certain
documents for the purpose of showing that ultimately
the police on investigation did not find any case
against the appellant in respect of the purported FIR
lodged against him under Section 377 IPC. However, it
may not be necessary for us to go into the said
question.

11. 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. It is
further evident that the said order of dismissal was
passed, inter alia, on the ground that there was no need
for a regular departmental enquiry relying on or on the
basis of a preliminary enquiry. However, if a
preliminary enquiry could be conducted, we fail to see
any reason as to why a formal departmental enquiry
could not have been initiated against the appellant.
Reliance placed upon such a preliminary enquiry
without complying with the minimal requirements of
the principle of natural justice is against all canons of
fair play and justice. ... ... ... .... ..."

In so far as the allegations which lie at the foundation of the

impugned order is concerned, as I have observed at the outset that

the same appears to be very serious but then even if the seriousness

of an allegation can be a foundation for the nature of penalty to be

imposed, it cannot be the reason for waiving of an enquiry by taking
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 11

recourse to the privilege of Article 311(2) (b) of the Constitution of

India. In fact, the District Magistrate, Kaimur after holding a

preliminary enquiry at his level has indeed recommended for

holding a disciplinary proceeding against the accused persons

through his letter dated 25.5.2016 addressed to the Principal

Secretary but it appears that the Principal Secretary has got swayed

with the allegations to pass the impugned order on the same date i.e.

25.5.2016 after observing that since the petitioner was

unauthorisedly absent from the office he was incapable of service of

notice and this conduct of the petitioner has given the impetus for

the satisfaction drawn by the competent authority on the genuineness

of the allegation.

The FIR was instituted on 23.5.2016, the District

Magistrate, Kaimur sent his report on 25.5.2016 and on the same

date the Principal Secretary has drawn satisfaction that it was not

reasonably practicable to hold an enquiry since the petitioner was

absconding and thus notice also cannot be served. According to him

the allegations were found true for inviting an order of dismissal.

The petitioner has enclosed an order of this Court passed in Criminal

Miscellaneous No.29864 of 2016 at Annexure 2 to inform that since

the petitioner apprehended his arrest that he had taken the judicial

recourse for obtaining bail which was granted only on 6.9.2016 and

hence the reason for the petitioner in not showing up.
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 12

While responding to the charge that since the petitioner was

absconding, the notice was incapable of service, it is mentioned in

the rejoinder that such satisfaction has been recorded without the

botheration of issuance of show cause to the petitioner and which

statement of the petitioner is uncontested because the Principal

Secretary himself admits in the impugned order that no notice was

issued to the petitioner because he was absconding. May be, there

are materials present in the report of the District Magistrate, Kaimur

which persuaded the Principal Secretary to record his satisfaction on

the truthfulness of allegation for inviting the punishment of

dismissal but then neither the seriousness of allegation nor the

materials supportive thereof can be a foundation for waiving of the

necessity of a regular disciplinary proceeding and/or to forfeit the

valuable legal right in the petitioner of being heard in support of his

defence.

Though oft repeatedly held by Courts that it is not on

personal satisfaction that such mandatory exercise can be waived of

rather satisfaction has to rest on cogent reasons and has to be

subjective yet in the present case it is within 2 days of the institution

of the FIR and on the same date on receipt of the recommendation of

the District Magistrate, Kaimur for initiating disciplinary proceeding

against the accused that the Principal Secretary has in a hurried

manner proceeded to order for the dismissal of the petitioner
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 13

upholding the allegations and observing that due to unauthorized

absence of 2 days, the department is incapable to serve notice on the

petitioner. Such is not the mandate of Article 311(2) (b) of the

Constitution of India and if such extreme powers vested, are

permitted to be exercised in such routine matter, then in my opinion,

not only it would give alarming results, there also would be no

necessity of framing disciplinary rules, regulations or service

conditions for the Government employees because every case can be

disposed of simply on the basis of allegation, the materials

connected therewith and the satisfaction recorded by the

Disciplinary Authority for waiving the necessity of a regular

proceeding.

There is nothing on record to suggest why there arose a

need to waive of the disciplinary proceeding even when it was

suggested by the District Magistrate, Kaimur. Certainly the 2 days

alleged unauthorized absence of the petitioner in between the date of

institution of FIR and the passing of the order cannot form a reason.

A hurriedly done exercise in a disciplinary matter apart

from reflecting arbitrariness, has normally proved disastrous and the

case in hand is no exception because despite absence of sound

reasons to back the decision to waive of a proceeding yet the

decision was taken only to be held unsustainable. In my opinion the

sooner the authorities performing the duties of a disciplinary
Patna High Court CWJC No.19765 of 2016 dt.30-04-2018 14

authority would realize this, the better it would be because such

whimsical action only gives a leeway to a delinquent facing

misconduct.

For the reasons so discussed the order of dismissal passed by the

Principal Secretary, Department of Registration, Excise and Prohibition

dated 25.5.2016 at Annexure 4 in purported exercise of powers vested

under Article 311(2) (b) of the Constitution of India, is held de hors the

stipulation present thereunder and thus cannot be upheld and is

accordingly quashed and set aside. The petitioner is reinstated.

As rightly suggested by the District Magistrate, Kaimur, the

respondents would draw a formal proceeding against the petitioner under

the provisions of the Bihar Government Servants (Classification, Control

and Appeal) Rules, 2005 and take it to its logical conclusion and in the

nature of the allegation facing the petitioner, let the exercise be completed

expeditiously and within 3 months of receipt/production of this judgment.

It would be at the discretion of the Disciplinary Authority either to put the

petitioner under suspension or to take him back on duty. The payment of

back wages however, shall abide by the result of such proceeding.

The writ petition is allowed with the direction aforementioned.

(Jyoti Saran, J)
SKPathak/-

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Uploading Date 02-05-2018
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