Ikramuddin
Ahmed Borah Vs. Superintendent of Police, Darrang & Ors [1988] INSC 304 (27 September 1988)
Ojha, N.D. (J) Ojha, N.D. (J) Venkataramiah, E.S. (J)
CITATION:
1988 AIR 2245 1988 SCR Supl. (3) 323 1988 SCC Supl. 663 JT 1988 (3) 814 1988
SCALE (2)1502
CITATOR
INFO : R 1991 SC 385 (4)
ACT:
Constitution
of India, 1950: Article 311(2)(b)--`Not reasonably practicable to hold such
enquiry'--Interpretation of--The holding of the enquiry is not practicable in
the opinion of a reasonable man taking a reasonable view of the prevailing
situation--Non availability of witnesses account of fear of the officer
concerned--A sufficient ground.
% Assam Police Manual: Part Ill Rule l I
(X) and Column 11--Sub- Inspector--Appointed by Principal Police Training College--Dismissal Superintendent--Whether
valid and legal.
HEAD NOTE:
The
appellant who was a Sub-Inspector of Police was dismissed by the Superintendent
of Police by an order dated 29th January, 1973, exercising powes under clause (b) of the second proviso to Article
311(2) of the Constitution of India. The appellant preferred an appeal to the
Inspector General of Police, and the said appeal Having been dismissed, he
challenged the order of dismissal as well as the appellate order in an
application under Article 226 of the Constitution in the High Court. A Division
Bench, however, dismissed the application.
In the
appeal by special leave to this Court, it was contended on behalf of the
appellant that:
(1)
the appellant having been appointed as Sub-Inspector of Police by the Inspector
General of Police, the order of his dismissal by the Superintendent of Police
was illegal being in contravention of Article 311(1) of the Constitution, and
(2) the
provisions of clause (b) of the second proviso to Article 311(2) of the
Constitution were not attracted to the facts of the case and consequently the
order of dismissal was illegal having been passed without compliance with the
requirements of Article 311(2).
Dismissing
the Appeal, the Court,
HELD:
1. The Superintendent of Police and Principal, Police Training College, Assam
are authorities having coordinate jurisdiction to appoint Sub-Inspectors under
Rule PG NO 324 11(X) and Schedule Column II of the Assam Police Manual, Part
III. [329E; 328H] In the instant case, the appellant having been appointed by
the Principal Police Training College Darrang, Assam, and having been dismissed
by the Superintendent of Police, Darrang, District Tejpur who was a coordinate
authority, the submission that the order of dismissal was illegal as having
been passed by an authority subordinate to that by which he was appointed has
no substance. [329E-F]
2.
While construing the words "it is not reasonably practicable to hold such
enquiry" used in clause (b) of the second proviso to Article 311(2) it was
held in Union of India v. Tulsi Ram Patel and Others, [1985] Supplement 2 SCR
131, that 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. 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. One of the
illustrations justifying clause (b) of the second proviso to Article 311(2)
being invoked, is the non availability of the witnesses on account of fear of
the officer concerned. [330G-H; 331A-B, 332A]
In the
instant case, it is apparent from the order of dismissal that this was the main
ground for invoking the said clause (b). The Superintendent of Police who
passed the order of dismissal was the best authority on the spot to assess the
situation in the circumstances prevailing at the relevant time and this Court
does not find any good ground to interfere with the view taken by the
Superintendent of Police in this behalf. In such matters the Court will not sit
in judgment over the relevancy of the reasons given by the disciplinary
authority for invoking clause (b) like a Court of appeal. Even in those cases
where two views are possible, the Court will decline to interfere. [332A-B. C]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 977 of 1976.
From
the Judgment and Order dated 8.3.1976 of the Guwahati High Court in Civil Rule
No. 261 of 1973.
D.N Mukherjee,
N.R. Choudhary and Ranjan Mukherjee for the Appellant.
PG NO
325 Prabir Choudhary for the Respondents.
The
Judgment of the Court was delivered by OJHA, J. This appeal by special leave
has been preferred against the Judgment dated 8th March, 1976 of the Guwahati High Court in Civil Rule No. 261 of 1973.
The appellant who was a Sub- Inspector of Police in Assam was dismissed by the Superintendent
of Police, Darrang district, Tezpur, by Order dated 29th January, 1973. This order was passed without compliance with the
requirements of Article 311(2) of the Constitution on the ground that it was a
case to which the provisions of clause (b) of the second proviso to Article
311(2) were attracted. The appellant preferred an appeal to the Inspector-General
of Police, Assam (Shillong). The said appeal having been dismissed he
challenged the order of dismissal as well as the appellate order under Article
226 of the Constitution in Civil Rule No. 261 of 1973 referred to above. The
various submissions made on behalf of the appellant did not, however, find favour
with the Learned Judges who heard the civil rule mentioned above resulting in
its dismissal by the judgment appealed against.
Two
submissions have been made by learned counsel for the appellant:
(i)
The appellant having been appointed as Sub-Inspector of Police by the Inspector
General of Police, the order of his dismissal by the Superintendent of Police, Darrang,
was illegal being in contravention of article 311(1) of the Constitution.
(ii)
The provisions of clause (b) of the second proviso to article 311(2) of the
Constitution were not attracted to the facts of the instant case and
consequently the order of dismissal was illegal having been passed without
compliance with the requirements of article 311(2).
In
order to appreciate these submissions, it would be useful to extract article
311 of the Constitution. It reads:
"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 PG NO 326 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 in rank on the ground of conduct which has led to his conviction Oil 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 hold
such inquiry; or (c) where the President or the Governor, as he 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 ia
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." Having heard learned
counsel for the parties, we find it difficult to agree with any of the
submissions referred to above, In support of his first submission, learned
counsel for the appellant placed reliance on a Memo dated 7th July, 1967 from
the office of the Inspector- General of Police which According to him was the
letter of appointment whereby the appellant was appointed as a Sub-Inspector of
Police.
According
to learned counsel for the appellant this being so the order of dismissal
having been passed by the Superintendent of Police, Darrang, who was admittedly
"an PG NO 327 authority subordinate to that by which the appellant was
appointed", was on the face of it illegal.
With
regard to this submission, we are of the opinion that the said Memo cannot be
treated as the letter of appointment of the appellant. It reads as hereunder:
"Express:
Office
of the Inspector General of Police:
Assam Memo No. F/1/93/Vol. 16/51 Shillong,
the 7th July, 1967.
From: Shri
P.C. Das, I.P.S., Deputy Inspector General of Police (P) Assam To Md. Ikramuddin Ahmed Borah, Ward No. III, P.O. Mariani, (Jorhat), Dist. Sibsagar,
Subject: Recruitment of temporary Sub-Inspector of Police (Unarmed Branch) for
1967 You are hereby informed that you are provisionally selected for
appointment as temporary Sub-Inspector of Police (U.B.) subject to final and
satisfactory police verification report.
Please
report to the Principal, Police Training College, Dergaon on 17th July 1967 positively for training failing
which your name will be struck off the list of selected candidates.
The
details relating to books & uniform required for training in the college
should be obtained from the Principal, Police Training College, Dergaon on your joining for the training.
Your
provisional appointment letter will be issued by the Principle, Police Training College, Dergaon on joining." PG NO
328 In pursuance of the aforesaid Memo the Principal Police Training College, Dergaon, issued Memo dated 17th July, 1967, the relevant portion whereof reads
as under:
"OFFICE
OF THE PRINCIPAL: Police Training College:
Dergaon.
APPOINTMENT
LETTER Memo No. 10712(A) PTC dated, Dergaon, the 17th July 1967.
Shri Ikramuddin
Ahmed Borah, s/o Late A. Ahmed Borah Vill.
Mariani,
P.O. Mariani, P.S. Mariani, Dist. Sibsagar is hereby informed that he has been
provisionally appointed as a Cadet Sub-Inspector of Police in Assam with effect
from 17-7-1967 A.N. He should provide himself with the books and uniforms.
2 to
6..................
7.
Principal, Police Training College, Assam may expel or discharge him any time
during the training if his progress or discipline or behaviour shows that he is
not likely to be tit for Police service.
Principal
Police Training College,
Assam, Dergaon.
Even
on a bare perusal of the two Memos mentioned above, it is apparent that by Memo
dated 7th July, 1967 which was issued by the Deputy Inspector General of
Police, the appellant was only informed that he had been provisionally selected
for appointment as temporary Sub-Inspector of Police (U.B.)and the order of
appointment was to be issued by the Principal, Police Training College which
indeed was issued by the subsequent Memo dated 17th July, 1967. This memo seems
to have been sent by the Deputy Inspector General of Police as President of the
Selection Board constituted for the purpose according to the procedure for
appointment of a Sub-Inspector to be found in Assam Police Manual in Part III.
Rule 11(x) at the relevant time as it appears from the judgment appealed
against read as hereunder:
PG NO
329 "11. (x) Direct recruitment of Sub-Inspectors:
The
final selection will be made by the Deputy Inspector General of Police sitting
as President of a Selection Board, which will consist of himself and 2
Superintendents of Police appointed by the Inspector -General of Police. The
order of appointing Probationary Sub-Inspectors will be issued by the
Superintendents of Police of the Districts from which the candidates are
nominated." Rule 66 deals with proceedings to be drawn up in cases of
major punishment. The said rule contains a schedule.
Item
No. 3 of column I refers to Sub-Inspector of Police. Column II indicates that
the appointing authorities of a Sub-Inspector of Police inter alia are
Superintendent of Police; S.P./S.S.P./C.I.D.; Commandant of Battalion,
Principal, APTC (that is Assam Police Training College).
Deputy
Inspector General of Police is shown as the final appellate authority. Rule
11(x) and the schedule referred to above are the relevant provisions in
pursuance whereof the selection was made of the appellant vide Memo dated 7th July 1967 and the appointment order was
issued by the Principal Training College, Dergaon vide Memo dated 17th July, 1967.
Consequently,
Superintendent of Police and Principal, Police Training College, Assam, are authorities having coordinate
jurisdiction according to column Il of the schedule. The appellant having been
appointed by Principal Police Training College Dergaon, Assam, and having been
dismissed by the Superintendent of Police, Darrang, who was a coordinate
authority, the submission made by the learned counsel for the appellant that
the order of dismissal was illegal having been passed by an authority
sub-ordinate to that by which he was appointed. obviously therefore has no
substance.
Coming
to the second submission, we find it necessary to refer to the order of
dismissal in extenso. It reads:
"D.O.
No. 320 dated 29.1.73.
Whereas
it has been made to appear before me that proby.
Sub-Inspector
of Police Ikramuddin Ahmed Borah was appointed as proby. Sub-Inspector of
Police on l7.7.67 against a temporary vacancy;
AND PG
NO 330 Whereas said Ikramuddin Ahmed Borah since his joining the department,
his service in all branches of Police work where he had been tried leaves much
to be desired and that consistent efforts by his senior officers for improving
his work has proved abortive and further that despite the above drawbacks the
said S.I.'s conduct and integrity has recently been found to be doubtful and
the said S.I. has been recently misusing his official position to the detriment
of general social well-being and to his personal gain.
AND
Whereas I am satisfied that it is not reasonably practicable to hold any
inquiry as contemplated under Clause (2) of Article 311 of the Constitution of
India because of non-availability of witnesses who would not testify against
the said S.I. of Police out of various considerations such as fear and because
of the likelihood of causing of damage to the Police image and administration
before the general public in the event of holding of such an enquiry;
Now,
therefore, in exercise of powers under proviso (b) clause (2) of Article 311 of
the Constitution of India, l, Shri P.N. Goswami, Superintendent of Police Darrang
District, Tezpur, hereby order that said Ikramuddin Ahmed Borah be dismissed
from the force with effect from the date of issue of this order. Said Ikramuddin
Ahmed Borah is accordingly dismissed from the police service.
Sd/-
P.N. Goswami (P.N. Goswami) Superintendent of Police, Darrang, District Tezpur."
The scope of clause (b) of the second proviso to Article 311(2) and of Article
311(3) came up for consideration before a Constitution Bench of this Court in
Union of India and Anr v. Tulsi Ram Patel and Others, [1985] supplementary 2
S.C.R., page 131. While construing the clause "it is not reasonably
practicable to hold such enquiry" used in clause (b) aforesaid, it was
held:
PG NO
331 "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 ......" With regard to Article 311(3) of the Constitution
after pointing out that 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 judicial review in matters where administrative discretion
is exercised, it was held:
"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 matter 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." PG NO
332 One of the illustration justifying clause (b) of the second proviso to
Article 311(2) being invoked, as indicated above, is the non-availability of
the witnesses on account of fear of the officer concerned. In the instant case
as is apparent from the impugned order of dismissal this was the main ground
for invoking the said clause (b). On the material on record, it is not possible
for us to make the view that there was an abuse of power by the disciplinary
authority in invoking clause (b). The Superintendent of Police who passed the
order of dismissal was the best authority on the spot to assess the situation
in the circumstances prevailing at the relevant time and we do not find any
good ground to interfere with the view taken by the Superintendent of Police in
this behalf. As pointed out in the case of Tulsi Ram Patel supra, in such
matters, the Court will not sit in judgment over the relevancy of the reasons
given by the disciplinary authority for invoking clause (b) like a Court of
first appeal and that even in those cases where two views are possible, the
Court will decline to interfere. In this view of the matter, we do not find any
substance in the second submission either.
In the
result, this appeal fails and dismissed but in the circumstances of the case
there would be no order as to costs.
N.V.K.
Appeal dismissed.
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