STATE OF BIHAR Vs. CHANDRA KISHOR LAL

JUDGEMENT

(1.) CLAUSE (2) of Article 311 of the Constitution embodies principles of natural justice. It directs informing the delinquent of the charge as against him, giving of a reasonable opportunity of being heard and holding of an enquiry into such charges. The second proviso to the said clause makes the said clause inapplicable, when, amongst others, 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 enquiry. In Union of India and Another vs. Tulsiram Patel, reported in AIR 1985 Supreme Court 1416, a Constitution Bench has held that the requirement of sub -clause (b) of clause (2) of Article 311 of the Constitution is that the holding of an enquiry is not reasonably practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. The Bench made it clear that a disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid holding of an enquiry or because the Department 'scase against the Government servant is weak and must fail. A later Supreme Court judgment in the case of Jaswant Singh vs. State of Punjab and Others, reported in AIR 1991 Supreme Court 385, after having had noted the above observations of the Constitution Bench clarified that the decision to dispense with departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority.

(2.) IN the instant case, the undisputed facts are that on 4th February, 1996, a first information report was lodged with the appropriate police authority in relation to involvement of the writ petitioner - respondent in the well known fodder scam matter. On 5th of February, 1996, the Police Department of the State conducted raid at the residence of the writ petitionerrespondent in course of enquiry pursuant to the said first information report, when the writ petitioner -respondent could not be located at his residence. It appears to be the contention of the State that the writ petitioner - respondent did not attend to his duties since 4th of February, 1996. On 8th of February, 1996, an order of suspension was issued which could not be served upon the writ petitioner -respondent inasmuch as he was not then attending his office. It does not appear from the records that any attempt was made to effect service of the suspension order upon the writ petitioner -respondent at his residence. Ultimately, the impugned order was passed on 11th March, 1996 dismissing the writ petitioner -respondent on the ground that the writ petitioner -respondent alongwith others embezzled Government funds to the tune of Rs 4.36 crores. While passing this order, sub -clause (b) of clause (2) of Article 311 of the Constitution was invoked. It was stated that it is not reasonably practicable to hold an enquiry inasmuch as in course of the raid by the police at the residence of the writ petitioner -respondent, he was not found at his residence and, accordingly, it was assumed that he is absconding.

(3.) TWO facts were known to the disciplinary authority, namely, (1) that on 5th February, 1996, a raid was conducted by the police at the residence of the writ petitioner -respondent when he was not found at his residence; and (2) that the writ petitioner -respondent is not attending his office from 4th of February, 1996 untin 11th of March, 1996. The question is whether a reasonable man, on the basis of these facts, could conclude or opine that the writ petitioner -respondent is absconding and, therefore, it is not reasonably practicable to hold an enquiry.