MRIGENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner, Mrigendra Singh, while posted as Additional Superintendent of Police (Communal Intelligence) has been dismissed from service vide order dated 13th June, 2007, passed by the State Government without holding any enquiry under the provisions of Article 311 (2) second proviso clause (b) and (c) of the Constitution of India and proviso (ii) and (iii) of Rule 7 of the U. P. Government Servant (Discipline and Appeal) Rules, 1999, without affording any opportunity of hearing.

(2.) THE petitioner is a 1985 batch Officer of Provincial Police Service Department of State of U. P, who joined as Deputy Superintendent of Police in the month of November 1987. After discharging his duties in various capacity at various places he was at present functioning as Additional Superintendent of Police (Communal Intelligence), Head-quarters Lucknow. His service career has remained unblemished and at no point of time even any explanation has been called for from him. On the instructions of the Inspector General of Police (Intelligence) State of U. P. the petitioner wrote two letters on 7. 6,2007 to all Senior Superintendent of Police/superintendent of Police and Superintendent of Police (Regional), Intelligence Department, State of U. P. requiring them to furnish information as regards the various data of two communities namely the Christian and the Muslim on priority basis.

(3.) THE scheme of the aforesaid provision guarantees an inquiry into the alleged misconduct of the Government servant as a rule whereas dispensing with the same is an exception. Sub-clause (2) of Article 311 specifically prohibits dismissal, removal or reduction in rank of a Government servant without holding any inquiry and without giving him any opportunity of being heard in respect of the charges on which he may be subjected to any of the major punishment. Explanation to the aforesaid rule is given in second proviso wherein sub-clause (a), (b) and (c) do envisage a possibility when a person is dismissed, removed or reduced in rank on the ground of misconduct which has led to his conviction on a criminal charge or where the authority empowered to dismiss or remove or reduce 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 or where the President or the Governor, as the case may be, is satisfied that in the interest of the security by the State, it is not expedient to hold such inquiry. 7. In the instant case the impugned order of dismissal from service has been passed purportedly in exercise of the power under sub-clause (b) and (c ). For attracting sub-clause (b) it is essential that the authority empowered to inflict major punishment must feel satisfied that for some reason or the other, the in quiry cannot be held but that reason also has to be recorded in writing which should indicate that it was not reasonably practicable to hold such inquiry unless such a finding is recorded, the order passed under the said provision would be come bad.- 8. THE reason so recorded must also be valid and relevant and not merely a camouflage. It is not pure subjective satisfaction of the authority to dispense with the inquiry but his discretion is circumscribed by the requirement of recording such a reason which, of course, has to be a valid reason for which the inquiry cannot be practicably held. For example, if a Government servant is available the documents, witnesses or the material on which the inquiry is to be conducted and there! is no other legal or practical impediment, there would be no reason to dispense with the inquiry and pass the order of major punishment. 9. Sub-clause (2) of Article 311 which is the substantive provision, does not' lay down any exception nor confers any discretion upon the empowered authority of not holding an inquiry into the charge of misconduct against a Government servant and to pass order without affording any opportunity, it is only in the sec ond proviso that an exception is carved out but an exception cannot take a place of rule and has to be applied only in the circumstances given therein and as may be permissible under the said Article. 10. THE impugned order of dismissal from service does not record any reason as to how it was not reasonably practicable to hold an inquiry but even then, such a recital has been made in the impugned order. 11: THE Supreme Court in the case of Union of India v. Tulsiram Patel, (1985) 3 SCC 398 observed as under: "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 though it would be better to do so 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 need not contain detailed particulars, but must not be vague or just a repetition of the language of clause (b) of the second proviso. 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. " 12. Nothing has been brought on record nor produced before us to establish, that any reason making the holding of enquiry impracticable has been mentioned in the record. Thus it can safely be concluded that neither any such reasons were recorded elsewhere in the record, nor they find mention in the impugned order. In regard to the applicability of sub clause (c) which can be said, in no unambiguous terms that the said proviso would be. attracted only if the President, or the Governor, as the case may be, is satisfied, that holding of an inquiry would not be in the interest of the security of the State. THE satisfaction of the President or the Governor has to be on objective consideration of the issues involved and the material placed though the satisfaction has to be subjective. THE satisfaction has to be on the point that it would not be expedient to hold an inquiry in the interest of the security of the State. 13. If a challenge is made to an order passed under sub-clause (c) of second proviso of Article 311 of the Constitution, the judicial review would be permissible. THE facts of the case on the basis of which charges have been framed or levelled or found mentioned in the order of punishment, namely on the basis of which* the major punishment order has been passed, would be a relevant consideration for considering as to whether the inquiry if so held, would not have been in the interest of the security of the State. 14. On a challenge being made to the order passed under sub-clause (c), the question that it was not expedient to hold inquiry in the interest of the security of the State, would be open to judicial review on the same principles which are available for challenging the satisfaction of the President or the Governor under other provisions of the Constitution and on which any other order can be challenged. 15. THE Apex Court in the case of A. K. Kaul and another v. Union of India and another, (1995) 4 SCC 73, had an occasion to consider the order1 of dismissal of an officer in the Indian Intelligence Bureau in the Ministry of Home Affairs of the Government of India, passed under clause (c)field that there is nothing in the provision of Clause (c) of the second proviso to Article 311 of the Constitution which compels a departure from the principles laid down in S. R Bommai v. Union of India, (1994) 3 SCC 1 governing justiciability of the satisfaction of the President in the matter of exercise of power under Article 356. 16. THE Supreme Court also compared the proviso of sub clause (b) and (c) in the case of S. R. Bommai and observed that clause (b) of the second proviso to Article 311 (2) differs from clause (c) inasmuch as under clause (b) the competent authority is required to record in writing the reasons for its satisfaction and there is no such requirement in clause (c ). This difference does not mean that the satisfaction of the President or the Governor under clause (c) is Immune from judicial review and is not justiciable. It only means that the provisions contained in clause (c) are more akin to those contained in Article 356 (1) which also does not contain any requirement to record the reasons for the satisfaction of the President. Since the satisfaction of the President in the matter of making a proclamation under Article 356 (1) is justiciable within the limits indicated in S. R Bommai the satisfaction of the President or the Governor, which forms the basis for passing an order under clause (c) of the second proviso to Article 311 (2), can also be justiciable within the same limits. 17. As regards the scope of judicial review of the President's satisfaction, the view of the majority in S. R Bommai case was as follows: (i) the satisfaction of the President while making a proclamation under Article 356 (1) is justiciable (ii) it would be open to challenge on the ground of malafides or being based wholly on extraneous and/or irrelevant grounds (iii) even if some of the materials on which the action is taken is found to be relevant material sustaining the action (iv) the truth or correctness of the material cannot be questioned by the Court not will it go into the adequacy of the material and it will also not substitute its opinion for that of the President (v) the ground of malafides takes in inter alia situations where the proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power (vi) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Union Council of Ministers are the best judge of the situation and that they are also in possession of information and material and that the Constitution has trusted their judgement in the matter and (vii) this does not mean that the President and the Council of Minister are the final arbiters in the matter or that their opinion is conclusive. 18. On 'the question of justiciability of the President's satisfaction in the interest of the security of the State, the Court made following observation: "under clause (c) of the second proviso to Article 311 (2) the President or the Governor has to satisfy himself about the expediency in the interests of the security of the State to hold an enquiry as prescribed under Article 311 (2 ). But the consideration involving the interest of the security of the State cannot be said to be of such a nature as to exclude the satisfaction arrived at by the. President or the Governor in respect of the matters from the field of justiciability. Article 19 (2) of the Constitution permits the State to impose, by law, reasonable restrictions in the interest of the security of the State on the exercise of the right to freedom of speech and expression conferred by sub-clause (c) of clause (1) of Article 19. THE validity of the law imposing such restrictions under Article 19 (2) is open to judicial review on the ground that the restrictions are not reasonable or they are not in the interests of the security of the State, THErefore, the Courts can be said to be competent also to go into the question whether the satisfaction of the President or the Governor for passing an order under Article 311 (2) (c) is based on considerations having a bearing on the interests of the security of the State. In various cases, the Supreme Court has emphasized the distinction between security of the State and maintenance of public order and has observed that only serious and aggravated forms of public order which are calculated to endanger the security of the State would fall within the ambit of the security of the State. THE President or the Governor while exercising the power under Article 311 (2) (c) has to bear in mind this distinction. THE satisfaction of the President or the Governor for passing an order under Article 311 (2) (c) would be vitiated if it is based on circumstances having no bearing on the security of the State". 19. THE apex Court further held: "it is no doubt true that unlike clause (b) of the second proviso to Article 311 (2) which requires the authority to record in writing the reason for its satisfaction that it is not reasonably practicable to hold such inquiry, clause (c) of the second proviso does not prescribe for the recording of reasons for the satisfaction. But the absence of such a requirement to record reason for the satisfaction does not dispense with the obligation on the part of the Government concerned to satisfy the Court or the tribunal if an order passed under clause (c) of the second proviso to Article 311 (2) is challenged before such Court or tribunal that the satisfaction was arrived at after taking into account relevant facts and circumstances and was not vitiated by mala fides and was not based on extraneous or irrelevant considerations. THE provision in Articles 74 (2) and 163 (3) of the Constitution of India, precluding the Court from enquiring into whether any, and if so, what advice was tendered by the Ministers to the President or the Governor, do not permit the Government to withhold production in the Court of the material on which the advice of the Ministers was based. This is/however, subject to the claim of privilege under Sections 123 and 124 of the Evidence Act in respect of a particular document or record. THE said claim of privilege will have to be considered by the Court or tribunal on its own merit. But the upholding of such claim for privilege would not stand in the way of the Government concerned being required to disclose the nature of the activities of the employee on the basis of which the satisfaction of the President or the Governor was arrived at for the purpose of passing an order under clause (c) of the second proviso to Article 311 (2) so that the Court or tribunal may be able to determine whether the said activities could be regarded as having a reasonable nexus with the interest of the security of the State THE nature of activities in which employee is said to have indulged in must be distinguished from the material which supports his having indulged in such activities". 20. On the scope of judicial review their Lordship has further held as follows: "a distinction has to be made between judicial review and justiciability of a particular action. In a written constitution the powers of the various organs of the State are limited by the provisions of the Constitution. THE extent of those limitations on the powers has to be determined on an interpretation of the relevant provisions of the Constitution. Since the task of interpreting the provisions of the Constitution is entrusted to a Judiciary, it is rested with the power to test the validity of an action of every authority functioning under the Constitution on the touchstone of the Constitution in order to ensure that the authority exercising the power conferred by the Constitution does not transgress the imitations placed by the Constitution on exercise of that power This power of judicial review is, therefore, implicit in a written constitution and unless expressly excluded by a provision of the Constitution, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field falling within the purview of trie power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. Such matters are regarded as non-judiciable". 21. Applying the said principle in the case in hand if we examine the order of dismissal from service it makes evident that no reasons at all have been recorded saying that it was not reasonably practicable to hold inquiry. THE necessary mandatory requirement under sub-clause (b) has been apparently complied with by making a mere recital in the order, that it is not reasonably practicable to hold such inquiry. 22. Even in the counter-affidavit filed by the State no reasons have been shown nor there is any statement of fact that any such reasons have been1, recorded separately or find place on the record, the dictum of the Supreme Court in the case of Tulsi Ram Pate/ (supra) also does not support the State's action. THE only averment in the counter-affidavit is that the facts and circumstances of the instant case unambiguously establish that holding enquiry in the instant case, was not reasonably practicable, neither it was expedient to hold such an enquiry in the interest of security of the State. 23. ,this is hardly any reason in terms of the provisions of the sub-clause (b) and (c ). Though there is no requirement to record any reason while applying sub-clause (c) but the satisfaction of the Governor can be judicially reviewed as there has to be a reason for applying the exceptional rule. THE petitioner has been dismissed from service because he issued two letters dated 7th June, 2007 to the Senior Superintendent of Police/superintendent of Police, in the Intelligence Department in State of U. R requiring them to furnish information regarding two communities namely the Muslim and Christian on priority basis. Soon thereafter a news item was published in the newspaper on 11th June, 2007. On that very date the Additional Director General of Police (Intelligence) informed all the officers from whom the information was asked for, not to furnish any such information in pursuance to the letters issued by the petitioner and also stated that the aforesaid in formation is being collected through administrative channel. THE aforesaid chronological events establish beyond doubt that in pursuance to the letters written by the petitioner no information was sent by the concerned officers and before any information 0 could be sent the Additional Director General of Police directed them, not to send any information in pursuance to the letters of the petitioner. Though he also stated that the same very information is being gathered through the administrative channel. This means, that the information was to be collected and therefore, the recital made in the letters of the petitioner that he is asking this information on the instructions of the higher authority, cannot be said to be without basis. It is a different matter that on publication being made in the newspaper about the factum of asking this information, the action upon the petitioner's letter was stopped by the Additional Director General of Police but information aforesaid was being still gathered or was to be collected from the districts in question, meaning thereby, that the action of the petitioner cannot be said to be either without any authority or unreasonable. 24. We, may also take notice of the fact that the petitioner has specifically stated in the writ petition in paragraph 24 that the collection of such information has been done earlier also in the recent past and the Intelligence Department has been established for collection of informations relating to intelligence and particularly various sections within the Department, based on community specific activities, with a view that the whole section concerned may always remain well. prepared with upto date relevant and sufficient data at the hours of need and may furnish the same to the Agencies concerned of the State Government on demand, so that any communal disturbance may be well nipped in the bud and communal harmony and tranquillity be maintained and restored in the society utilizing those data in this behalf purposefully. THEse averments remained unrebutted in the counter-affidavit filed by the State and there is no denial of the said fact. It could also not be explained by the State that how the collection of the relevant information with respect to two communities namely the Christian and Muslim from the officers concerned, was in violation of any order or policy of the State Government nor it could be established that the petitioner acted 'on his own without, any instructions from the higher authority particularly when the petitioner had specifically stated in his writ petition that it was on the direction of the Inspector General of Police (Communal Intelligence) who had gone on leave, such letters were issued. THE very fact that the information even after the withdrawal of the aforesaid letters of the petitioner was being gathered, clarified the stand of the State that collection of such information was not Unauthorised nor would have been against the interest of the security of the State. It is also to be considered that the petitioner has not been inflicted with the punishment of dismissal from service for the reason that he actually collected such information and if the information so collected was divulged, it may effect the security of the State or for that reason it would not be expedient to hold any enquiry in the interest of the security of the State as the said information would stand disclosed, in case the enquiry is held. 25. Merely issuing letters asking for certain information, even if, it was a misconduct would not have been sufficient to dispense with the inquiry either on the ground that it was not reasonably practicable to hold the inquiry or it would endanger the security of the State. 1 26. THE scope of the enquiry would be only to see as to under whose authority such information was asked for by writing two letters. If such an inquiry is held for the aforesaid charge, it was not likely to divulge any information which might have been collected in pursuance of the two letters. It is not the information which was being asked for and which could have been sent in pursuance of those letters, was the subject matter of inquiry. We, though are of the view that writing of these letters in itself could not be a ground for dispensing with the service of the petitioner by an order passed without holding any inquiry but refrain ourselves from entering into the question as raised by the petitioner that for such an action in fact does not call for any disciplinary proceedings to be undertaken against the petitioner. Rule 7 of the U. P. Government Servant (Punishment and Appeal) Rules, 1999, cannot be applied for the same reasons and it cannot be stretched over and above and beyond the scope of the Constitutional provisions of Article 311 (2) sub-clause (b) and (c) of the Constitution of India. 27. For the reasons stated above, we conclude that the impugned order of dismissal from service is liable to be set aside on the ground that it does not stand protected either under the provisions of sub- clause (b) and (c) of second proviso to Article 311 of the Constitution nor the State Government has been able to establish that the information asked for by the petitioner was not in pursuance of the instructions of the higher authority namely the Inspector General of Police (Intelligence) nor that by asking such an information there occurred any danger to the security of the State particularly when no such information was sent, before the petitioner's services were dispensed with. One more aspect of the matter is that the petitioner was issued a show cause notice dated 12th June, 2007 giving him three days time to answer but without waiting for the aforesaid reply, within the given period of three days, the dismissal order has been passed on the very next day i. e. 13. 6. 2007. This itself shows undue haste in passing the order which order has been passed grossly in violation of the sub-clause (2) to Article 311 of the Constitution by illegally and arbitrarily applying the provisions of sub-clause (b) and (c) of the second proviso of Article 311 of the Constitution. 25. THE dismissal order dated 13. 6. 2007 is, therefore, quashed. THE petitioner shall be reinstated into service forthwith with consequential benefits. Liberty is, however, given to the State to hold inquiry afresh in accordance with the Rules, if it so desires. THE writ petition is allowed with costs. .