SHUKDEO OJHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The order of dismissal of petitioner issued under the signature of the then Director, Health Services (Respondent No. 3) contained in Memo No. 541 dated 15.6.2001, annexed as Annexure-11, is under; challenge in this writ application. The order passed by the appellate authority (Annexure-15) is also under challenge along with the said dismissal order.

(2.) The order (Annexure-11) apparently has been passed by the respondent No. 3 invoking his powers under Clause (b) of second proviso to Article 311(2) of the Constitution of India. Mere reference to Clause (b) of second proviso to Article 311(2) of the Constitution of India makes it clear that there was no inquiry and no show cause notice was issued and no opportunity was given to the delinquent prior to the order of his dismissal issued by the respondent Director. Invoking powers under the said Clause (b) presupposes that the disciplinary authority was satisfied that recourse to the procedural requirements of said Clause (b) was found 'not reasonably practicable'. Recourse to this exceptional clause puts a burden on the authority, invoking the powers, to satisfy a court of law, in case of a challenge (as in this case), that his satisfaction for taking recourse to the said clause was based on objective considerations. Hence, in view of the challenge in this case by the petitioner to the exercise of powers by respondent No. 3 invoking his powers in terms of the said Clause (b) for dismissing him, burden lay on the respondents to satisfy this Court that the exercise of powers by the Disciplinary authority, namely, respondent No. 3, was within the parameters of the powers of a disciplinary authority under the said clause. Therefore, learned Counsel for the respondents was called upon to advance his arguments first, on the question of satisfaction of the disciplinary authority, namely, respondent No. 3, in invoking the said Clause (b) of Article 311(2).

(3.) Opening his arguments, learned Counsel for the respondents straightway placed reliance on the celebrated case of Union of India v. Tulsiram Patel, 1985 3 SCC 398 to justify the action of respondent Director. He referred to paragraphs 61, 64, 70, 159, 160 and 172 of the judgment in particular.