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Satya Vir Singh and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1786 of 1980
Judge
Reported inILR1981Delhi713; 1982LabIC663
ActsConstitution of India - Article 226; Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rule 10
AppellantSatya Vir Singh and ors.
RespondentUnion of India and ors.
Advocates: Madan Lokur,; P.R. Mridual and; D.P. Wadhawa, Advs
Cases ReferredR. K. Misra v. General. Manager Northern
Excerpt:
constitution of india - articles 226 and 311(2)(b)--scope--in what circumstances a departmental enquiry under central civil services (classification control and appeal) rules, 1965, rule 10, can be dispensed with.; the facts of the present case are the petitioners 1 to 4 are employees of the research and analysis wing of the govt. of india against whom orders of dismissal had been passed and the petitioners 5 to 51 apprehend contemplated dismissal action against them and are under suspension. petitioner no. 52 is the employees association of the research and analysis wing (raw) of the government of india which is an intelligence wing of the government of india. the employees of the raw had been seeking to ventilate grievances against employment conditions and the government of india had.....goswamy, j. (1) the main question which has been canvassed and falls for considerat'onin this petition is whether the orders of the disciplinary authority to the effect that it was not reasonably practicable to hold an inquiry could be said to be valid in law. (2) this petition, under article 226 of the constitution of india, has been filed by 52 petitioners, challenging the order of dismissal passed against the petitioners nos. i to 4 and contemplated action of dismissal against petitioners nos. 5 to 51. petitioner no. 52 is the employees association. it is alleged in the petition that petitioners nos. i to 4 were till recently employees of the research & analysis wing (hereinafter referred to as the raw) of the government of india. the petitioners nos. 5 to 51 are still employees of raw.....
Judgment:

Goswamy, J.

(1) The main question which has been canvassed and falls for considerat'onin this petition is whether the orders of the Disciplinary Authority to the effect that it was not reasonably practicable to hold an inquiry could be said to be valid in law.

(2) This petition, under Article 226 of the Constitution of India, has been filed by 52 petitioners, challenging the order of dismissal passed against the petitioners Nos. I to 4 and contemplated action of dismissal against petitioners Nos. 5 to 51. Petitioner No. 52 is the employees association. It is alleged in the petition that petitioners Nos. I to 4 were till recently employees of the Research & Analysis Wing (hereinafter referred to as the RAW) of the Government of India. The petitioners Nos. 5 to 51 are still employees of Raw and are under suspension. The Raw is an Intelligence Wing of the Government of India and is concerned in intelligence gathering and analysis of overseas affairs. A sister Organisation viz., the Intelligence Bureau were initially formed in 1904 but was reorganized and reinforced in 1948. Initially the Intelligence Bureau was concerned with domestic and inter-national affairs but since 1968 it is concerned only with domestic affairs. The Raw was a branch of Intelligence Bureau and is now a separate department since 1968 and is concerned with Inter-national affairs. For some time past, the employees of the Intelligence Bureau and the Raw had been seeking to ventilate their grievances regarding the terms of office, pay scales, recruitment, transfers and other general grievances. Realizing the difficulties faced by the employees of the Raw, the Government of India set up Staff Councils and Apex Councils for each department separately. However, the Staff Councils and Apex Councils were not functioning as anticipated by the employees of the various departments and thereforee the employees of each department separately decided to form their own associations so as to be able to effectively ventilate their grievances. The Government of India being aware of the desire of the employees of various Intelligence Wings functioning under it, was vehemently opposed to the formation of any association of the employees. Nevertheless', the employees of the Intelligence Bureau went ahead and formed an association which was subsequently registered as a society by the Registrar of Societies. By these developments, the employees of the Raw actively began to consider the formation and registration of an association for their benefit. Several steps were taken by the employees of the Raw towards this end. Meetings were organized and discussions took place regarding the aims and objections of the association and the office bearers etc. Finally the employees of the Raw formed an association on 14-2-1980 and the same was registered on 30-6-1980 by the Registrar of Societies, Delhi. This fact was unlimited to the respondents who thought it fit to thwart the effectiveness of the association for reasons best known to them. The employees of the Raw after the formation of the association elected office bearers of the association, in order to stall the activities of the association. The respondents took various steps in this direction by seeking to transfer the Vice-President of the Raw Employees Association.the association, however, sought to represent against some of the arbitrary actions of the Government. The main actions against which the association moved were that several members of the Ministerial Staff of the Raw Were asked to perform security duties, which had been happening for quite some time, but since the association was formed only some time back the employees were not able to take any sort of concerted action against the directions to the employees of the Raw to perform, security duties. The grievance of the employees was that the respondent should either give a special allowance to the employees performing security duty which was over arid above their usual duties or the employees be exempted from performing such duties. On 15-8-1980 the respondents were informed by the association that unless a decision was taken in this regard within the period of one month the employees would have no other alternative but to refrain from performing, the security duties. A day before the date when the notice period was to expire i.e. 14*9-1980, the Director of Raw called some representatives of the employees for discussions regarding the special allowance and or the exemption from special duty. In the said meeting the Director told the representatives of the employees that it was not possible for him to accede to the demands of the employees. Consequently w.e.f. 15-9-1980 the employees of the Raw decided to stop performing the special duty. The Director, however, assured the employees that he would look .into the grievances of the employees, but this assurance was only to delay the decisions and was meant to break the unity of the employees. Since nothing was done by the respondent in H this regard and also because the employees of the Raw had other outstanding grievances, the association decided to send a comprehensive Charter of Demands for the redressal of their grievances.

(3) The other grievance of the employees was that some times in February 1980 the various branches of the Department of Raw were being shifted to the new building being constructed for Raw Office at Lodhi Road. On or around 25-11-1980 during the process of shifting one Col. Baghchi, Assistant Director slapped one of the employees of fie Raw for damage caused to legs of the sofa being transferred to the new building. This inflamed all the other employees who were involved in the process of shifting. The matter was referred to the office bearers who met the Deputy Director on the same day and requested him that some action be taken in this regard. No action was either taken nor was any assurance given to the employees that action would be taken. Feeling aggrieved, the employees also met the Deputy assembled on 26-11-1980 at Lodhi Road and the representatives of the employees also met the Deputy Director and requested that Col. Bagchi be sent back to the parent Organisation. They requested the Deputy Director (Establishment) to take a decision within two days in this regard.

(4) The next grievance of the employees was that prior to the office of the Raw being shifted to the new building at Lodhi Road, the various branches and departments were spread out all over the city in various buildings. One such branch, viz. the C.I.S. had its office in a hutment near the South Block. Central Secretariat. In the C.I.S., for the purpose of security, a register was maintained which showed the entry of the persons into the office of the C.I.S., the security guard at the office of the C.I.S. would have no knowledge of the identity of the employees. Before entry was granted to the employee, the security guard had to check the identity card of the employee and also enter his name in the register. After the various offices were shifted in one centralised place, namely the building at Lodhi Road. it was not necessary to maintain such a strict security measure. The association represented against such a security measure as they were feeling inconvenience but no action was taken. The representatives of the employees of the Raw went to meet the Deputy Directors (CIS) to protest against the restrictions on their movements, but the said Deputy Director refused to withdraw the order and categorically informed the representatives of the employees to this effect. Several attempts were made by the employees to persuade the Deputy Director but he did not agree to the demand of the employees. A serious situation thereby arose when the employees were with the Deputy Director till late in the evening when four trucks toads of Delhi Police and Central Reserve Police Force were called by the respondents to take action against the employees. The situation until the police was called was quite peaceful and thereforee the employees of the Raw who were in the building at the time when the Police was called, were surprised when the police and C.R.P.F. began to lathi-charge them without any justification. The Delhi Police went to the extent of mercilessly beating 31 employees of the Raw who were preseat' inside the room of the Deputy Director. Thereafter the said 31 employees were arrested and taken into custody at about 8.30 p.m. The next day i.e. on 28-11-1980 the 31 employees were released on bail. As a result of the events the employees of the Raw spontaneously refused to work on 28-ll-1980 until the police cases were withdrawn. On 29-11-1980 the employees of the Raw went on all India pen down strike and refused to work until the police cases were withdrawn and. the orders passed by the Deputy Director (CIS) with regard to the so-called security measures were also withdrawn.

(5) It is further alleged that thereafter some of the petitioners were surprised to receive separate order issued by the Joint Director wherein it was stated that since the disciplinary proceedings was contemplated, thereforee, in exercise of the power conferred by sub-rule (1) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 placing the petitioners under suspension with immediate effect. The petitioners wanted to make oral representations to the Director but, as per the procedure followed in the Raw none of the petitioners were permitted to meet the Director. Thereafter the petitioners Nos. I to 4 were served with orders of dismissal and it was stated the orders dismissing the remaining petitioners are on their, way but have not yet been received by the petitioners. It is aga'ast this action that the present petition was filed on various grounds which we will deal with later.

(6) Along with the petition an application for stay of the operation of the impugned order was also filed. A Division Bench of this Court issued rule and also directed notice in the application for stay. In reply to the said notice it was stated that besides the petitioners No. I to 4, petitioners Nos. 36, 39, 42 and 47 had also been dismissed and orders to that effect had been issued before the petition came up for hearing before this Court. At a subsequent stage it was also stated by the counsel for the respondents that besides the 8 petitioners who had already been dismissed, the other petitioners will not be dismissed from service without holding a proper inquiry in accordance with law. In these circumstances, we arc concerned with only the 8 petitioners namely petitioners Nos.. I to. 4, 36, . 39, 42 and 47 in this petition.

(7) In the counter-affidavit of Shri M. G. Aneja, Deputy Secretary to the Government of India, Cabinet Secretariat, filed on behalf of the respondents, it was denied that the suspensions and dismissals were in any way connected with the formation and activities of the association or its members. It was stated that the orders had to be issued due to the illegal action of the employees on 27-11-1980 and the subsequent events. According to affidavit, the events which led to the arrest, suspension and dismissal of some employees started in the fore-noon on. 27-11-1980. On that day sometimes after the office had started, a number of staff members led by Sarvashri -S'. Bakshi, G SEO; N. K. Sood, PA; B. K. Yadav, Assistant and J. P. Dixit, Daftry collected in the galleries leading to the C.I.S. rooms and protested against the security regulations and demanded their immediate withdrawal. They were threatening in their attitude and not pacified by the Explanationn given by the concerned officers. More employees joined them and they turned aggressive, breaking into various rooms of the C.I,S. unit Many of them forced their entry into the room of Shri M. D. Dittia, Deputy Director (C.I.S.),and cornered him as also Shri U.N.B. Rao, Assistant Director and Shri A. K. Sikka, Sfo, who were in the loom. The crowd forced the three officers to stand in a corner and did not allow them either to do their work or to move from the spot. They thus kept these three officers in wrongful confinement. The crowd kept on shouting slogans against the Organisation and the officers. The slogans were obscene, abusive threatening and personal in nature. Slogans were also shouted regularly in favor of the employees' association. At different stages, the senior officers of the Organisation tried to reason with them and also informed them that the Director was in the new building to talk to a few of them to find out their complaints. The ring leaders and the crowd were not agreeable to any talk unless their demand for the withdrawal of the security regulation was acceded to. They were also not willing to let the three officers confined by them, who they considered hostages, move out until and unless the Director went there and announced the withdrawal of the security regulations. Till late in the evening, even after the office closed at 5.15 p.m. they coil! inside to wrongfully confine the three officers. All possible avenues of breaking the stalemate having failed and as the gherao of the officers continued, the local police was requested to come in and deal with the situation. At about 8.30 p.m. the local police entered the new building premises and went to the gallery in front of the C.I.S. branch. While some of the agitators who were in the gallery escaped, those inside the room closed the door to prevent the police party from entering the room. The police had to force open the door and rescue the three officers. In the process, the police arrested 31 agitators, who were found inside the room, vide F.I.R. No. 311 dated 27th November, 1980 of Police Station Lodhi Colony under Sections 342/506/353/186/332-34 Indian Penal Code . and section 7 of the Criminal Law Amendment Act. Two of the accused were arrested later on 29th November, 1980 and 2nd December, 1980 respectively. In accordance with Rule 10(l)(b) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, the disciplinary authority suspended them as a crim'nal offence was under investigation against them. Next day i.e. on 28-11-1939, the agitators continued to be in a belligerent and indisciplined mood. Many of the employees did not perform their duties on that day. They collected inside the building and in the premises in groups, stopping work in many branches. A large number of them went round shouting slogans. 'There were speeches in the corridors of the office also. Insubordination, indisciplined activities, abstention from work, moving around in and outside the building, threatening the willing workers and making speeches inciting the staff to abstain from work .and defy orders were resorted to. On 29-11-1980 in a letter issued in the name of the employees' association, the agitators demanded the immediate withdrawal of, the criminal case and the security regulation followed in the C.I.S. The letter said that pending favorable consideration of the demands, the employees will go on a pendown strike with immediate effect. As these unreasonable dema.nds were not conceded to by the department, a large number of employees resorted to pen-down strike. The agitators regularly organized, attended and addressed meetings which were held twice daily during office hours. By in amatory speeches, intimidation and threats held out openly and in personal conversations, the agitators forced a large number of employees to join and continue the pen-down strike They were in an aggressive and coercive mood. The atmosphere, thereforee, during these days had surcharged with tension and there was widespread collective coercion, intimidation and threats by the agitators. In the circumstances, sortie employees who were taking leading, active and aggressive role in, the agitation and indulging in indisciplined activites were suspended by the Disciplinary Authority during the next few days.

(8) It was further pleaded that the leaders of the agitation in Delhi, had, in the meantime, tried to spread the Agitation to all other units of the Organisation in the country. As a sequel to this, many of the employees, in the Special Bureau, Lucknow also resorted to agitation. The leaders of the agitation in Lucknow indulged in coercion, intimidation and collective threats and, in view of the inter-action and connection between the situation at Delhi and Lucknow, the atmosphere there was also abnormal and charged with tension. The suspended employees continued to incite and intimidate the working employees and deliver inflamatory speeches calling for collective disobedience of orders and insubordination and indulged in misconduct of grave nature. They went to the extent of revealing in public sensitive information pertaining to the working of the department. Ten of them, including two from Lucknow were, thereforee, dismissed by the Disciplinary Authority on 6th December, 1980. None of the 33 employees arrested in the criminal case was dismissed as the matter was sub judice. The dismissal orders were issued by the Disciplinary Authority in exercise of the powers vested in him under Article 311(2)(b) of the Constitution of India read with Rule Ii and 19 of the Css (CC&A;) Rules 1965. This action was taken by the Disciplinary Authority after considering all the relevant facts and the prevailing circumstances and having come to the conclusion that the punishment of dismissal was warranted in respect of these employees and that it was not reasonably-practicable to hold regular departmental enquiry as envisaged in Article 311(2) of the Constitution and Rule 14 of the Ccs (CC&A;) Rules, 1965. It was further stated in the affidavit that the sequence of events clearly shows that it was the totally unprovoked, unwarranted and unreasonable demand of ., a group of employees to withdraw a perfectly valid and legitimate security requirement, and their subsequent action in taking law into their own hands, committing criminal offences, abstaining from work and instigating, coercing and intimidating other employees to abstain from work that compelled the respondents to take steps to ensure that the Organisation's work did not suffer and the large scale intimidation was controlled and halted as early as possible. The actions taken by the respondents were within the rules and regulations and totally devoid of any mala fide. The various allegations of maia fide relating to the activities of the employees' association etc. were denied and it was asserted that Raw being a Security and Intelligence Organisation which is dealing with many sensitive matters effecting national security and relations with other countries, could not tolerate such unlawful activities. It was further stated in the counter affidavit that the action was taken by the Disciplinary Authority After considering all the relevant facts and the prevailing circumstances and having come to the conclusion that the punishment of dismissal was warranted in respect of those eight employees and that it was not reasonably practicable to hold a departmental enquiry as envisaged by Article 311(2) of the Constitution and Rule 14 of the Ccs (CC&A;) Rules 1965 as due to the prevailing collective intimidation the witnesses would not co-operate and as the agitators had declared their intention to carry on the agitation indefintely. The concerned Disciplinary Authority recorded in writing that it is not reasonably practicable to hold such enquiry and pass orders of dismissal. Leave was sought in the affidavit to produce the relevant records at the time of hearing.

(9) The first contention of the learned counsel for the petitioner was that the impugned order does not disclose any reason for dispensing with the enquiry and as such the same is vitiated. In reply Mr. Mridul, the learned counsel for the respondent contended that the reasons have been disclosed in the counter affidavit and it has also been pleaded that separate reasons in the case of each of the petitioners have been recorded. It was also contended that the satisfaction of the Disciplinary Authority by virtue of express provision and constitutional mandate of Article 311(3) has been made final and is not justiciable. In order to appreciate this contention, it is necessary to notice the relevant provisions of Article 311 of the Constitution : 'Art. 311

(2)No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry 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 further that this clause shall net apply

(A)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on 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 to hold such inquiry; or

(C)where the Pres'.dent or the Governor, as 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 is 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.

(10) Clause (a) to the proviso states that the dismissal or removal or reduction in rank on the ground of conduct which has led to conviction on a criminal charge, would deprive a person concerned of the opportunities contemplated by clause (2) of Article 311. The fact of conviction on a criminal charge is an objective fact and it can be examined whether, in fact, there was such a conviction to deprive the person concerned of the opportunities contemplated by Article 311. The functions in clause (3) cannot to delegated by the President to anyone else in the case of a civil servant of the Union of India. The President has to be satisfied personally that in the interest of the security of the State, it is not expedient to hold an inquiry contemplated by clause (2). The clause does not require any reason to be recorded in writing or otherwise and as such the satisfaction of the President is subjective and not objective. However, clause (b) to the proviso depends upon the satisfaction of the authority concerned that for some reasons to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry. Since reasons have to be recorded, the satisfaction of such an authority will be an objective satisfaction and the reason can be examined by a Court of law but, of course the extent permissible. There is not express or implied requirement of law that the reasons have to be communicated to the aggrieved employee. In R. K. Misra v. General Manager, Northern Railway, New Delhi & another, 1977 (2) SLR 127, the learned Single Judge of the Court held that in the cases falling under clause (b) it was open to Court to go into the matter as to whether the order was passed on irrelevant or extraneous reasons which were not germane to the question to be decided by the Disciplinary Authority in spite of the finality attaching to such a'n order under clause (3) of the Article. Same view was expressed by a Division Bench of Punjab & Haryana High Court in the case of Boota Ram: Constable and Another v. The State of Punjab, and Another, 1980 (2) S. L. R. 185. In State of West Bengal and others v. Narendra Narayan Dass, 1978 (1) S. L. R. 646, the Division Bench of Calcutta High Court was concerned with clause (c) in Article 311(2) and it was held that in a society aspiring to be governed by the rule of law the scope and extent of judicial review would depend not on the question whether the power is statutory or constitutional but on the terms of the grant of the power. If the power conferred is exercisable on fulfillment of certain conditions the exercise of such power is subject to judicial review though .to .a limited extent.

(11) Faced with the .settled view of various High Courts in the cases referred to above, learned counsel for the respondent sought leave to file an additional affidavit and to produce the relevant records before us. The leave, grayed for, was granted and as a consequence the additional affidavit of Shri Narain Kak, Joint D':rector, Cabinet Secretariat, Government of India, New Delhi was field. Along with the affidavit the individual orders concerning all the 8 dismissed employees were also filed. It was stated in the said affidavit that 32 petitioners were suspended on account of their involvement in an illegal 'gherao' on 27-11-1980 for which an F.. 1. R. was lodged and they were arrested for criminal offence and a criminal case is pending against them. As their cases .were sub-judice, on legal advice, it was thought desirable that departmental action against them could be taken only. after their cases were decided in the court. Out of the remaining 19 petitioners, 17 were suspended on different date's between 1-12-1980 and 6-12-1980 for acts of misconduct other than participation in the illegal 'gherao' on 27-11-1980. Two other petitioners were suspended for similar reasons on 9-12-1980. Out of the 17 petitioners suspended

'between 1-12-1980 and 6-12-1980, 8 were dismissed from service on 6-12-1980. Petitioners Nos. 1, 4 and 42 had been placed under suspension on 1-12-1980 for serious acts of misconduct. Similarly, petitioners Nos. 2, 36 and 39 were placed under suspension on 2-12-1980 and petitioner Nos. 47 and petitioners No. 3 on 3-12-1980 for serious acts of misconduct. These petitioners, who were dismissed, were very aggressive and virulent and had on different occasions jointly and severally, directly and indirectly, openly and secretly committed gross acts of indiscipline, violation of Central Government Servant's Conduct Rules and committed breaches of secur'ty. The said petitioners had played a very prominent and violent role in the agitation as also in intimidating, scaring and threatening loyal employees and officers of the Organisation. It was further stated that in the case of these 8 petitioners, the Disciplinary Authority took, inter-alia, notice of the following amongst other facts :

(a) that the afore-mentioned 8 employees had been committing serious acts of indiscipline and misconduct openly defying and threatening fellow employees and senior: Officers including the Disciplinary Authority;

(B)that these 8 persons had played the most dominant and virulent role in the agitation and had contributed most to the undermining of discipline and normal working of the offices concerned;

(C)that the fellow employees who could have been natural witness in any departmental proceedings were not prepared to take the risk of deposing against these 8 defaulters for fear of reprisals against themselves/their families: this was because of intimidatory tactics adopted by these persons; and

(D)that it had become imperative to take appropriate action against those as provided under the rules to prevent further damage to the working of the Department and to national security by the actions of these employees on whom the fact of suspension and the prospect of departmental action had no effect.

(12) From the detailed orders passed against each of the 8 employees, the salient facts have also been summarised and it would be sufficient to reproduce the same in the case of petitioner No. I :

(1)Satyavir Singh, Field Assistant (Petitioner No. 1)

(I)Leading and active role in the agitation.

(II)One of those who were directing the course of agitation.

(III)Delivered inflamatory speeches on 1-12-1980, 2-12- 1980, 3-12-1980 and 4-12-1980; inciting the striking employees to continue the strike from inside; threatening senior officers with dire consequences, if any action was taken against the agitating employees; and intimidating working employees to abstain from work.

(13) It has further been alleged in the supplementary affidavit that the atmosphere of the entire department was thoroughly surcharged with fear and tuition and there was wide spread collective coercion, intimidation and threats by agitators. It was pointed out that any inquiry in these circumstances would have been a mockery and travesty of justice apart from the fact that such an inquiry would have further inflamed the situation and would have caused detriment to the public interest and seriously impaired the vital interest involving national security.

(14) Faced with these averments in the supplementary B affidavit, the learned counsel, for the petitioners, contended that even these grounds were not sufficient to come to a conclusion that it was not reasonably practicable to hold an inquiry. Reliance was placed on the case of R. K. Misra v. General. Manager Northern (Supra). In that case it was held that the words 'is not reasonably practicable to hold an inquiry in the manner provided in these rules' must thereforee, be strictly construed in the context of two-fold object of such an inquiry. The reason for not holding an inquiry in that case was stated to be that it was unlikely that any Witness will come forward to give the statement in the departmental inquiry if the same was held in view of the threats given by the staff and this reason was found to be insufficient by the learned Judge of this Court. With respect we are unable to agree with this reasoning of the learned Single Judge. In our view, it is not necessary that there should be physical or legal impediments to the holding of an inquiry and it would be enough compliance with the provision if the reasons given for dispensing with the enquiry are germane and not extraneous. If the possible witnesses are under threats or coercion, it cannot be disputed that no impartial inquiry is possible. In State of West Bengal and others v. Naranbra Narayan Dass (supra), the Division Bench of Calcutta High Court laid down the scope of judicial review in such matters and it was held that it was necessary for the Courts to find out whether conditions precedent to the exercise of the powers had any factual basis and the Courts can also inquiry whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in any material respect. In Boota Ram Constable & another v. State of Punjab & Others (supra), the Division Bench of the Punjab & Haryana High Court, after discussing the entire case law, came to the following conclusions in paragraph 21 of th& judgment:

'HAVING noticed the nature and the character of the satisfaction which is to be arrived at by the empowered authority and the consitutional' finality attaching to the decision of not holding an inquiry, it appears to be plain that the exercise of power under Article 311(2)(b) of the Constitution is not easily assailable if not virtually impregenable. A challenge to the satisfaction or decision of not holding an inqu'ry can possibly be raised only if both the letter and spirit of the law are violated by the non-recording of any reason whatsoever. Secondly such a decision can be perhaps be successfully assailed only if it is clearly established that the reason or reasons recorded by the empowered authority are not at all germane to the issue and in fact are wholly extraneous thereto. Lastly, the exercise of the power under Article 311(2)(d) of the Constitution could obviously be assailed on the ground of established mala fide which would then render the action as a fraud on the power granted by the Constitution. Without intending to be wholly exhaustive, it appears to me, the action under Article 311(2)(b) of the Constitution can be assailed within the Limited confines of the aforementioned situations and not otherwise.'

--- *** ---

Once we accept the law laid down by the Punjab and Haryana High Court and the Calcutta High Court which we respectfully do all that we have to find out is whether the reasons stated in the counter-affidavit were germane or extraneous. It cannot be disputed that the entire atmosphere of the department was thoroughly surcharged with fear and tension and there was wide spread collective coercion, intimidation and threats by the agitators. The working of the entire department was at a stand still and senior officers of the department were 'gheraod'. As a result the police had to intervene and criminal cases were registered against various employees. In spite of the criminal cases, the strike in the department, continued and the 8 employees who have been dismissed took active part in the entire agitation. As is disclosed against each of these employees they were responsible for giving .threats and intimidating other employees of the department. They had also threatened physical injuries to the employees who did not join the agitation and went to the extent of threatening their families as well. It is also clear that in spite of the suspension of few employees the situation had not improved and the events. There was no likelihood of the situation coming to normal. In such a situation even if the inquiry had been ordered, the same would have been of no use inasmuch as the entire working had been paralysed and loyal employees had been threatened with dire consequence. There is no reason to disbelieve the affidavit wherein it is stated that the posture adopted by the agitating employees had been so aggressive and threatening and it was impossible for the material witnesses to come forward and tender evidence against any of the instigators. We are, thereforee, of the opinion that the action of the Disciplinary Authority does not suffer from lack of good faith and the reasons for dispensing with the inquiry are germane, and are, thereforee, not open to attack. The last contention of the learned counsel for the petitioner was that since no second show-cause notice was. given the order was invalid in view of rule 15(4) of the C.C.S. Rules. The learned counsel for the petitioner lost sight of the fact that the said rule stood amended after the amendment of Article 311 by 42nd Amendment of the Constitution. The amended Article rule 15 of the C.C.S. Rules does not require any second show cause notice. In any case once the satisfaction is recorded that it is not reasonably practicable to hold an inquiry what is dispensed with is not the inquiry alone but what is clause (2) of Article 311 becomes inapplicable in its entirety and clause (2) does not talk merely of an inquiry in the limited sense in which it is understood but in a comprehensive sense of process by which a reasonable opportunity is afforded to a civil servant. In that sense the inquiry would include the issue of a show cause notice, as indeed a further notice after a particular penalty has been proposed to be imposed on him. It is, thereforee, not possible to accept this contention also. For the reasons recorded above, we find no merit in this petition which is hereby dismissed. However, considering the circumstances of the case, the parties are left to bear their own costs.


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