Rajiv Sharma, J.@mdashPetitioner was appointed as Driver in the respondent-corporation on March 18, 1994. Petitioner suffered ailment with effect from June 1, 2000 and he applied for the medical leave, which was duly sanctioned in his favour. Thereafter since the petitioner was not fit to resume his duties, respondent-corporation decided to constitute a Medical Board to ascertain whether the petitioner is fit to discharge his duties or was feigning illness. The Medical Board was constituted on June 19, 2000. Petitioner appeared before the duly constituted Medical Board. The certificate issued by the Medical Board is Annexure A-3. The Medical Board opined that petitioner was suffering from epilepsy and was not fit for the job of a Driver. Therefore, it was advised that he could be offered some other job than that of a Driver. However, respondent-corporation instead of proceeding with the matter under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995'', issued a show cause notice to the petitioner on November 6, 2000 to the effect why the penalty of removal from service be not imposed upon him. He was given 15 days time to file reply to the show cause notice. He filed reply to the show cause notice, vide Annexure A-5 dated December 11, 2000. The Disciplinary Authority, without taking into consideration the reply filed by the petitioner, proceeded to impose the penalty of removal upon the petitioner by invoking the provisions of Section 25-F of the Industrial Disputes Act, 1947, vide office order dated April 12, 2001. Petitioner filed an appeal against the order dated April 12, 2001 to the Managing Director of the respondent-corporation. He substituted the imposition of penalty of ''compulsory retirement'' in place of ''removal from service'' upon the petitioner. Mr. L.N. Sharma has strenuously argued that the procedure adopted by the respondent-corporation initially to remove the petitioner on April 12, 2001 and then to impose the penalty of compulsory retirement, is in contravention of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. According to him, the petitioner was regularly appointed Driver and no inquiry has been instituted against him. He has also argued that the respondent-corporation has come to a wrong conclusion that the petitioner was willfully absent from June 1, 2000. He then contended that in case Disciplinary Authority comes to a conclusion that it is not practicable to hold inquiry against the delinquent, then separate reasons are required to be recorded. According to him, in this case no separate reasons have been recorded by the Disciplinary Authority. He lastly contended that the petitioner was regularly appointed employee, thus, the provisions of Section 25-F could not be invoked.
2. Mr. Adarsh Sharma has supported the orders passed by the Competent Authority.
3. I have heard the learned counsel for the parties and have perused the pleadings carefully.
4. The petitioner was appointed as a regular Driver on March 18, 1994. He fell sick, which led to constitution of Medical Board on June 19, 2000. He was thoroughly medically examined by the experts and it was opined that the petitioner suffers from generalized epilepsy. The Court can take judicial notice of the fact that the person suffering from epilepsy cannot be permitted to perform the duties of a Driver. The Medical Board has advised that since the petitioner was not fit to perform the duties of Driver, he should have been given light work. The respondent corporation devised a noble method of terminating the petitioner, who was regularly appointed, by invoking the provisions of Section 25-F of the Industrial Disputes Act, 1947. Petitioner was not working on daily wage basis. He was working as a regular Driver and in case there was alleged misconduct against him, the same was required to be looked into by instituting proper disciplinary proceedings. He was sanctioned medical leave with effect from May 5, 2000 to May 25, 2000. It was difficult for him to discharge the duties of a Driver and this fact was within the knowledge of the respondent-corporation, which led to constitution of the Medical Board, as noticed above. The Medical Board has opined the petitioner not fit to discharge the duties of a Driver.
5. The respondent-Corporation has not placed any tangible material on record to establish that it was not practicable to hold an enquiry. The reasons for dispensing with the enquiry must be supported by documents.
6. Their Lordships of the Hon''ble Supreme Court in Tarsem Singh v. State of Punjab and Others (2006) 13 SCC 581 have held as under:
9. It is not disputed before us that in awarding the punishment of dismissal from service upon the appellant no formal enquiry was held under provision (b) appended to Clause (2) of Article 311 of the Constitution of India, which read as under:
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State-(1)
(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 further that this clause shall not apply-
(a)...
(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;
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 u/s 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. The appellate authority, as noticed hereinbefore, in its order dated June 24, 1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefore was available on record. It is further evident that the appellate authority also misdirected himself in passing the said the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.
12. Even the Inspector General of Police in passing his order dated November 26, 1999, despite having been asked by the High Court to pass a speaking order, did not assign sufficient or cogent reason. He, like the appellate authority, also proceeded on the basis that the appellant was guilty of commission of offences which are grave and heinous in nature and bring a bad name to the police force of the State on the whole. None of the authorities mentioned hereinbefore proceeded on the relevant material for the purpose of arriving at the conclusion that in the facts and circumstances of the case sufficient cause existed for dispensing with the formal enquiry. This aspect of the matter has been considered by this Court in Jaswant Singh v. State of Punjab wherein relying upon the judgment of the Constitution Bench of this Court, infer alia, in
Although Clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a Court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry.
7. The petitioner was a confirmed employee and the penalty of removal was a major penalty. The services of the petitioner could not be terminated without holding a regular enquiry. Their Lordships of the Hon''ble Supreme Court in
8. Apart from that, on a cursory look of the statutory provision of the constitution of the Parishad Working Committees, it would be clear that before imposing any major penalty against an employee, namely, an order of termination of service, an order of, termination of service, an inquiry must be held in the manner specified in the statutory rules by which the disciplinary authority shall frame definite charges on the basis of allegations on which an inquiry shall be proposed and opportunity must be given to the employee to submit a written statement stating therein whether he/she desires to be heard in person and no order of termination also can be passed without the approval of the Managing Committee. On" this count alone, therefore, the High Court was, in our view, in grave error in dismissing the writ petition of the writ petitioner.
9. Accordingly, the impugned judgment of the High Court is set aside and the order of termination passed against the appellant is quashed and the writ petition stands allowed. However, it would be open to the authorities, if they so desire, to initiate disciplinary proceedings against the appellant for her termination from service and if such disciplinary proceedings are initiated, the authorities shall give proper opportunity of hearing and permit the parties to adduce evidence in support of their respective stands and after giving such opportunity, the disciplinary authorities thereafter shall give hearing to the appellant and then pass a final order on the question of termination of service of the appellant in compliance with the statutory rules concerned applicable to the appellant.
8. The case of the petitioner was also required to be looked into by the respondents under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The petitioner was suffering from epilepsy and his case was required to be considered with sensitivity and sympathetically. He was required to be offered alternative employment.
9. Their Lordships of the Hon''ble Supreme Court in
47. It has to be kept in mind that this case is not one of the normal cases relating to a person''s claim for employment. This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity. This is a case which has to be handled with sensitivity and not with bureaucratic apathy, as appears to have been done as far as the appellant is concerned.
10. In the removal order dated April 12, 2001, it is held that it was not practicable to hold inquiry against the petitioner. In the show cause notice dated November 6, 2000, it is mentioned that the petitioner remained willfully absent from June 1, 2000. In this case regular inquiry was required to be instituted against the petitioner in accordance with law.
11. This Court in C.W.P. (T) No. 7897/2008, titled Hem Lata v. Himachal Road Transport Corporation and Another, decided on June 19, 2009 has held as under:
It is not disputed by Mr. Adarsh Sharma, Advocate that the punishment is imposed upon the permanent employees of the corporation as per the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In the present case, the misconduct has been attributed to the petitioner. The main misconduct attributed to the petitioner is his repeated unauthorized absence. In view of the serious allegations contained in the notice itself of alleged misconduct, it was necessary to hold inquiry as per rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In case it was not practicable to hold an inquiry then the provisions contained in Rule 19(ii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 were required to be followed. The respondent-corporation has neither pleaded nor produced any record to substantiate that at any given time separate reasons were recorded for dispensing with the, requirement of holding of regular inquiry as mentioned in the notice dated February 11, 1999. The recording of reasons separately to dispense with the inquiry is mandatory. The reasons assigned even in the notice for not, holding the inquiry against the petitioner is that the corporation is a public utility as per the provisions of the Industrial Disputes Act, 1947 and it would have avoided to disrupt the operation of the corporation and to avoid inconvenience besides loss of time and finances. This cannot constitute cogent reason to dispense with the inquiry. No cogent reasons have been assigned why it was not practicable to hold inquiry against the petitioner for his alleged unauthorized absence. The respondent-corporation has adopted a noble method of dispensing with the services of husband of the petitioner late Sh. Inder Singh by dispensing with the inquiry by invoking Section 25-F of the Industrial Disputes Act, 1947. Once the misconduct has been attributed to the petitioner, domestic inquiry was required to be held as per rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The phraseology employed in the notice also suggests that in normal circumstances, the inquiry was required to be held and the reasons assigned in the notice are not convincing to dispense with the inquiry.
The language employed in rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and Article 311 of the Constitution of India are more or less pari materia. The law laid down by the Hon''ble Supreme Court while interpreting Article 311 of the Constitution of India will also be applicable while interpreting rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. It will be apposite at this stage to reproduce sub-rule (ii) of rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which reads thus:
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonable practicable to hold an inquiry in the manner provided in these rules.
It is (will) also be appropriate to reproduce the phraseology employed in Article 311 (2) provision (b) of the Constitution of India, which reads thus:
311(2)(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 reasonable practicable to hold such inquiry.
It is evident from the phraseology employed in sub-rule (ii) of Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as well as Article 311(2) provision (b) of the Constitution of India that they are pari materia. It is true that Article 311 of the Constitution will not apply to the employees of the respondent-Corporation but the principles contained therein will apply to the employees of the respondent-corporation in view of Rule 19 (ii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The interpretation provided by the Supreme Court to Article 311(2) provision (b) of the Constitution of India will be applicable to sub-rule (ii) of Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as well.
Their Lordships of the Hon''ble Supreme Court in Union of India v. Tulsi Patel (supra), have held as under:
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. 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 officer 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 inquiry 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 dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent Northern Railway, Varanasi. The senior Commercial officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter.
The second condition necessary for the valid application of Clause (b) of the second provision 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 there upon 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 provision. 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. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.
Where a government servant is dismissed, removed or reduced in rank by applying Clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether Clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by Clause (3) of Article 311 to the disciplinary authority''s decision that it was not reasonably practicable to hold the inquiry is not binding upon the Court. The Court will also examine the charge of mala fides, if any made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by Clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the Court will not, however, sit in judgment over them like a Court of first appeal. In order to decide whether the reasons are germane to Clause (b), the Court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matte will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a Court room, removed in time from the situation in question. Where two views are possible, the Court will decline to interfere.
Similarly, their Lordships of the Hon''ble Supreme Court in
The impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311 (2) of the Constitution. Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it was not reasonably practicable to hold a departmental enquiry against the appellant. These are (i) the appellant has thrown threats that he with the help of other police employees will not allow holding of any departmental enquiry against him and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Now as stated earlier after the two revision applications were allowed on October 13, 1980, the appellant had rejoined services as Head Constable on March 5, 1981 but he was immediately placed under suspension. Thereafter, two show cause notices dated April 4, 1981 were issued against him calling upon him to reply thereto within 10 days after the receipt thereof. Before the service of these notices the incident of alleged attempt to commit suicide took place on the morning of April 6, 1981 at about 11.00 a.m. In that incident the appellant sustained an injury on his right arm with a knife. He was, therefore, hospitalized and while he was in hospital the two show cause notices were served on him at about 10.00 p.m. on April 6, 1981. Before the appellant could reply to the said show cause notices respondent 3 passed the impugned order on the very next day i.e. April 7, 1981. Now the earlier departmental enquiries were duly conducted against the appellant and there is no allegation that the department had found any difficulty in examining witnesses in the said inquiries. After the revision applications were allowed the show cause notice was issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned counsel for the respondents to point out what impelled respondent 3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as required by Article 311(2). The learned counsel for the respondents could only point out Clause (iv)(a) of sub-para 29(A) of the counter which reads as under:
The order dated April 7, 1981 was passed as the petitioner''s activities were objectionable. He was instigating his fellow police officials to cause indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful.
This is no more than a mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. 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 3 in the impugned order. Clause (b) of the second provision 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 of
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. In the counter filed by respondent No. 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 has 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, Jullunder. 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
In our view it is not necessary to go into the submission made by Dr. Anand Prakash because we find that in this case the reason given for dispensing with the enquiry is totally irrelevant and totally insufficient in law. It is common ground that under Rules 44 to 46 of the said Rules the normal procedure for removal of an employee is that before any order for removal from service can be passed the employee concerned must be given notice and an enquiry must be held on charges supplied to the employees concerned. In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witness of the security/other railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result the appeal fails and is dismissed. There will be no order as to costs.
The Apex Court in
Mr. Yadav, learned counsel appearing for the appellant contends that though the employer has the power to dispense with an inquiry under Article 311(2), second provision, Clause (b) of the Constitution but the conditions precedent for exercising that power have now been indicated in several decisions of this Court and in the present case, those conditions precedent cannot be said to have been satisfied. Mr. Choudhary, the learned senior counsel appearing for the respondents, on the other hand, contended that the appellant himself being a Police Constable could have influenced the witnesses who would have come in the department inquiry and if on that ground the departmental authorities apprehended that the inquiry would not be reasonable and fair, the conclusion cannot be interfered with. Having examined the rival contentions of the parties and bearing in mind the law laid down by this Court indicating the circumstances under which the inquiry under Article 311(2), second provision, Clause (b) of the Constitution can be dispensed with and applying the same to the facts and circumstances and the reasons advanced by the authorities in arriving at the decision, we have no hesitation to come to the conclusion that the order dispensing with the departmental inquiry is not in accordance with law and necessarily the order of dismissal cannot be sustained. We accordingly set aside the order of dismissal passed against the appellant and permit the departmental authority to hold an inquiry if so desired, in accordance with law and come to the conclusion in the said proceeding.
The Apex Court in Sudesh Kumar v. State of Haryana and Others, (2005) 2 SCC 525 has held that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. Their Lordships have held as under:
It is now an established principle of law that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated December 23, 1999, the visa of the complainant was extended up to December 22, 2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.
A reasonable opportunity of hearing enshrined in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if inquiry is held where he has been informed of the charges levelled against him. In the instant case, the mandate of Article 311(2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant.
The disciplinary authority was required to record reasons separately as has been held by the Constitution Bench in Union of India v. Tulsi Patel, (supra) before taking decision to dispense with the inquiry.
The reasons as assigned in the order for not holding inquiry are based on the ipse dixit of the disciplinary authority as discussed hereinabove.
12. Respondent-corporation has committed following illegalities:
(i) regular inquiry has not been held by the respondent corporation and no separate reasons have been brought to the notice or the Court that it was not practicable to hold inquiry against the petitioner;
(ii) petitioner was a regular employee of the respondent corporation and his services could not be terminated by invoking Section 25-F of the Industrial Disputes Act, 1947;
(iii) the petitioner was suffering from epilepsy and his case was squarely covered under the mandatory provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure A-6 dated April 12, 2001 and the order passed by the Appellate Authority imposing penalty of compulsory retirement upon the petitioner, are quashed and set aside. The respondents are directed to reinstate the petitioner in service and thereafter to consider his case u/s 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Petitioner is entitled to all the consequential benefits. Needful be done within a period of two months after the production of certified copy of this judgment by the petitioner. No costs.
