Service matter – Dismissal from service dispensing with a disciplinary inquiry -not valid- Sting operation – ASI caught in video while taking bribe – Telecasted in T.V. channels also – the S.P. dismissed ASI dispensing with disciplinary inquiry – challanged – High court dismissed the writ – Apex court held that No disciplinary authority is vested with power to dispense with a disciplinary proceedings and as such his orders are terminated as well as the orders of High court also as it is not merits and set aside the both orders and further held that the disciplinary authority is at liberty to initiate proceedings against appellant , the time taken in these proceedings shall be excluded for the purpose of limitation =
This is clear from the following
observation at page 270 of Tulsiram case: (SCC p.504, para
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 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.”
Recently, in Reena Rani v. State of Haryana[3], after
referring to the various authorities in the field, the Court ruled
that when reasons are not ascribed, the order is vitiated and
accordingly set aside the order of dismissal which had been
concurred with by the Single Judge and directed for reinstatement
in service with all consequential benefits. It has also been
observed therein that the order passed by this Court would not
preclude the competent authority from taking action against the
Appellant in accordance with law.
10. Tested on the touchstone of the aforesaid authorities, the
irresistible conclusion is that the order passed by the
Superintendent of Police dispensing with the inquiry is totally
unsustainable and is hereby annulled.
As the foundation founders,
the order of the High Court giving the stamp of approval to the
ultimate order without addressing the lis from a proper perspective
is also indefensible and resultantly, the order of dismissal passed
by the disciplinary authority has to pave the path of extinction.
11. Consequently, we allow the appeal and set aside the order
passed by the High Court and that of the disciplinary authority.
The appellant shall be deemed to be in service till the date of
superannuation.
As he has attained the age of superannuation in
the meantime, he shall be entitled to all consequential benefits.
The arrears shall be computed and paid to the appellant within a
period of three months hence.
Needless to say, the respondents are
not precluded from initiating any disciplinary proceedings, if
advised in law.
As the lis has been pending before the Court, the
period that has been spent in Court shall be excluded for the
purpose of limitation for initiating the disciplinary proceedings
as per rules.
However, we may hasten to clarify that our
observations herein should not be construed as a mandate to the
authorities to initiate the proceeding against the appellant.
We
may further proceed to add that the State Government shall conduct
itself as a model employer and act with the objectivity which is
expected from it. There shall be no order as to costs.
2014 (May.Part)http://judis.nic.in/supremecourt/filename=41542
DIPAK MISRA, N.V. RAMANA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2839 OF 2011
Risal Singh Appellant
VERSUS
State of Haryana & Ors. Respondents
J U D G M E N T
Dipak Misra, J.
In this appeal, by special leave, the assail is to the
defensibility of the judgment and order dated 21.11.2008 passed by
the High Court of Punjab and Haryana at Chandigarh in C.W.P. No.
19816/2008 whereby the Division Bench has concurred with the order
of dismissal of the appellant passed by the Government after
dispensing with the inquiry as provided under Article 311(2)(b) of
the Constitution.
2. The broad essential facts which need to be adumbrated for
the decision of the present appeal are that the appellant, an
Assistant Sub-Inspector (Ad hoc Sub-Inspector) serving in the
Department of Police in the State of Haryana, as alleged, was
involved in a corruption sting operation in a television channel.
Because of the said alleged sting operation, the Superintendent of
Police, Mewat at Nuh, vide order dated 19.06.2008, after referring
to the news item in the television channel, proceeded to pass the
following order:
“…..
2. The above said act on the part of above official shows
his criminal activities. He being a member of a disciplined
force is responsible for protecting the life and property of
the citizen of this country, but instead of discharging his
duty honestly and sincerely he himself has indulged in
criminal activities. As such he has not only tarnished the
image of the Haryana Police but also has rudely shaken faith
of the citizens of Haryana in the entire Police force, who is
supposed to be their protectors. He has acted in a most
reprehensible manner. Which is unexpected from a member of
disciplined force and undoubtedly extremely prejudicial to the
person safety and security of citizen.
3. The involvement of said police official in such a
shameful criminal activity has eroded the faith of common
people and his continuance in the force is likely to cause
further irreparable loss to the functioning and credibility of
Haryana Police. The defaulter has acted in a manner highly
unbecoming of police official. After such act of serious
misconduct. If he is allowed to continue in the Police force,
it would be detrimental to public interest.
4. Keeping in view the overall circumstances of above
operation, I K.K. Rao, IPS, Superintendent of Police, Mewat at
Nuh, in exercise of the powers conferred under Article
311(2)(b) of Constitution of India I hereby order the
dismissal of SI Rishal Singh No. 133/GGN with immediate
effect. A copy of this order be delivered to him free of
cost.”
3. Being aggrieved by the aforesaid order, the appellant
preferred a civil writ petition and the High Court without
adverting to the essential contention that no reason had been
ascribed for dispensing with the inquiry under Article 311(2)(b)
opined that prompt action was required to be taken to avoid
spreading of trouble and, therefore, the order passed by the
authority was justified.
4. Ms. S. Janani, learned counsel for the appellant has
submitted that the power with the employer rests to dispense with
the inquiry invoking the constitutional provision, yet appropriate
reasons have to be ascribed and in absence of ascription of
reasons, the order is vitiated in law and the eventual consequence
would be quashment of the order of dismissal.
5. Mr. Manjit Singh, learned counsel for the State submitted
that regard being had to the nature of allegations, the
Superintendent of Police, who is the competent authority, thought
it appropriate to dispense with the inquiry and, hence, the order
of dismissal cannot be flawed.
6. We have already reproduced the order passed by the competent
authority. On a bare perusal of the same, it is clear as day that
it is bereft of reason. Non-ascribing of reason while passing an
order dispensing with enquiry, which otherwise is a must,
definitely invalidates such an action. In this context, reference
to the authority in Union of India and Anr. v. Tulsiram Patel[1] is
apposite. In the said case the Constitution Bench, while dealing
with the exercise of power under Article 311(2)(b), has ruled thus:
“130. The condition precedent for the application of clause
(b) is the satisfaction of the disciplinary authority that
“it is not reasonably practicable to hold” the inquiry
contemplated by clause (2) of Article 311. What is pertinent
to note is that the words used are “not reasonably
practicable” and not “impracticable”. According to the
Oxford English Dictionary “practicable” means “Capable of
being put into practice, carried out in action, effected,
accomplished, or done; feasible”. Webster’s Third New
International Dictionary defines the word “practicable”
inter alia as meaning “possible to practice or perform :
capable of being put into practice, done or accomplished:
feasible”. Further, the words used are not “not practicable”
but “not reasonably practicable”. Webster’s Third New
International Dictionary defines the word “reasonably” as
“in a reasonable manner: to a fairly sufficient extent”.
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.”
7. In Jaswant Sing v. State of Punjab and Others[2] the Court,
while dealing with the exercise of power as conferred by way of
exception under Article 311(2)(b) of the Constitution, opined as
follows:
“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 page 270 of Tulsiram case: (SCC p.504, para
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 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.”
8. After so stating, the two-Judge Bench quashed the order of
dismissal and directed the appellant to be reinstated in service
forthwith with the monetary benefits. Be it noted, it was also
observed therein that it would be open to the employer, if so
advised, notwithstanding the lapse of time, to proceed with the
disciplinary proceedings.
9. Recently, in Reena Rani v. State of Haryana[3], after
referring to the various authorities in the field, the Court ruled
that when reasons are not ascribed, the order is vitiated and
accordingly set aside the order of dismissal which had been
concurred with by the Single Judge and directed for reinstatement
in service with all consequential benefits. It has also been
observed therein that the order passed by this Court would not
preclude the competent authority from taking action against the
Appellant in accordance with law.
10. Tested on the touchstone of the aforesaid authorities, the
irresistible conclusion is that the order passed by the
Superintendent of Police dispensing with the inquiry is totally
unsustainable and is hereby annulled. As the foundation founders,
the order of the High Court giving the stamp of approval to the
ultimate order without addressing the lis from a proper perspective
is also indefensible and resultantly, the order of dismissal passed
by the disciplinary authority has to pave the path of extinction.
11. Consequently, we allow the appeal and set aside the order
passed by the High Court and that of the disciplinary authority.
The appellant shall be deemed to be in service till the date of
superannuation. As he has attained the age of superannuation in
the meantime, he shall be entitled to all consequential benefits.
The arrears shall be computed and paid to the appellant within a
period of three months hence. Needless to say, the respondents are
not precluded from initiating any disciplinary proceedings, if
advised in law. As the lis has been pending before the Court, the
period that has been spent in Court shall be excluded for the
purpose of limitation for initiating the disciplinary proceedings
as per rules. However, we may hasten to clarify that our
observations herein should not be construed as a mandate to the
authorities to initiate the proceeding against the appellant. We
may further proceed to add that the State Government shall conduct
itself as a model employer and act with the objectivity which is
expected from it. There shall be no order as to costs.
………………………….J.
(DIPAK MISRA)
………………………….J.
(N.V. RAMANA)
NEW DELHI
MAY 13, 2014
———————–
[1] (1985) 3 SCC 398
[2] (1991) 1 SCC 362
[3] (2012) 10 SCC 215
———————–
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