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"Not Sufficient Compliance Of A. 311(2)": P & H HC Sets Aside Dismissal Order For Want Of Reasons For Dispensing With Inquiry [Read Order]

Mehal Jain
8 Sep 2020 2:17 PM GMT
Not Sufficient Compliance Of A. 311(2): P & H HC Sets Aside Dismissal Order For Want Of Reasons For Dispensing With Inquiry [Read Order]
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In absence of sufficient reasons recorded in writing dispensing with the requirement of holding inquiry in the alleged misconduct of employee by the authority, order of dismissal/removal from service of employee, passed in exercise of the powers under Clause (b) of the 2nd Proviso to Article 311(2) is not sustainable, the Punjab and Haryana High Court has held.

Justice Anil Kshetrpal was hearing a writ petition for quashing of order dated 04.03.2020 passed by the Commando Battalion, Mohali, dismissing the petitioner from service under Clause (b) of the 2nd Proviso to Article 311(2).

The Single Judge appreciated the facts of the case: The petitioner, a Constable in the Punjab Police, has two FIRs registered against him. The first is under Sections 376, 417, 506 of the IPC, the allegations being that in the year 2010 i.e. before the petitioner joined service, he had an affair with the first informant (alleged victim). They also made physical relations. It is alleged that after getting job, the petitioner stopped talking to the first informant and when she pressurized, he threatened her that she will be killed or kidnapped or harmed by throwing acid. The petitioner also threatened that he also has their photographs which would be uploaded on Facebook and Whatsapp. Therefore, the first informant kept mum over period of 9 years.

Second is a FIR under Sections 379B, 353, 186, 224, 225, 427, 148, 149 of the Indian Penal Code. This FIR has been registered by a Police Official with the allegation that when the police party went to arrest the petitioner, he after having been apprehended; ran away and various villagers named in the FIR scuffled with the members of the police party and snatched Rs.2200/- and Identity Card from the Wallet of the first informant. Another accused also gave a blow to a police official with some sharp edged weapon which hit on his little finger. The villagers also broke the wind screen of the Government Vehicle.

On the basis of these allegations, the concerned Commando Battalion had chosen to invoke Clause (b) of the 2nd Proviso to Article 311(2) to remove/dismiss the petitioner from the service while dispensing with the requirement of holding departmental enquiry.

"From careful reading of translation of the impugned order, it is apparent that no reason whatsoever has been recorded as to why holding of the inquiry is not reasonably practicable. What has been recorded is "it does not seem justified to conduct departmental inquiry at this stage". In the considered view of this Court, this is not sufficient compliance of the mandate of Article 311 of the Constitution of India ", said the bench.

The bench found that on a careful reading of Clause (b) of 2nd Proviso, it is apparent that the authority empowered to dismiss or remove a person or to reduce him in rank, has to record reasons in writing as to why it is not reasonably practicable to hold such inquiry. Such satisfaction has to be subjective satisfaction of the authority so empowered. "In the present case, careful reading of the impugned order shows that there is total absence of reasons in this regard. Mere observation that the departmental enquiry at this stage does not appear to be justified is not sufficient to invoke powers under Clause (b) of the 2ndProviso to Article 311(2) of the Constitution of India", opined the bench.

The bench noted that there are two FIRs against the petitioner. In the first one, the first informant/alleged victim has lodged the FIR after a period of 10 years. "It is not recorded that she feels terrorized or is refusing to appear in the departmental inquiry", said the court. Second FIR, being by a police official, the bench said that the allegations made in the FIR are required to be proved by the members of the police party alongwith the independent witness, if any.

"In the present case, neither the reasons in writing have been recorded by the authority nor they are born from the record", concluded the bench.

Accordingly, the impugned order was set aside, with the direction that the petitioner shall be entitled to be reinstated in service with consequential benefits. "However, it shall be open to the respondent to initiate departmental inquiry in the alleged misconduct, if any, of the petitioner", allowed the bench.

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