IMPORTANT POINT
The second proviso to clause (2) to Article 311 of the Constitution of India is based on public policy, is conceived in public interest and is to be employed for public good only where the conduct of the government servant is such that he deserves the punishment of dismissal or removal or reduction in rank.

Headnote:Constitution of India-Article 311(2)(b)- Order of dismissal in exercise of power under-Challenged-- Scope of judicial review-State of militancy in Punjab-Respondent, a Sub-Inspector of Police associated with investigation of a case-Complaint to SSP of extortion and continuing harassment by respondent-Enquiry-DSP reported that complaint was true stating that witnesses were terrorised by threats given by respondent-Exercise of power under Article 311(2)(b)-Whether justified? - Yes, considering facts and circumstances of the case-Judgment of Tribunal set aside.
       Held : We are, therefore, unable to agree with Sri P.P. Rao that there was no material upon which the S.S.P. could be satisfied that it is not reasonably practicable to hold a disciplinary enquiry against the respondent. One has to keep in mind the situation obtaining in Punjab in the year 1993 and must appreciate the orders passed by the S.S.P. in that context. We see no reason not to believe that the aforesaid power under clause (b) was invoked by the S.S.P. for proper reasons. The comments made against him by the Tribunal to the effect that he acted casually, is unacceptable besides being uncharitable. The Tribunal was also not justified in saying that the order of dismissal does not say that the respondent was responsible for intimidating and terrorising the complainant and the witnesses. It was an hypertechnical objection. The order read as a whole and the accompanying report of the D.S.P. and the endorsement of S.S.P. on the report do clearly establish that it was respondent who was intimidating and terrorising the said persons. (Para 14)
       (ii) Constitution of India-Article 311(2)(b)-Order of dismissal in exercise of power under-Challenged- Scope of judicial review-Respondent, Sub-Inspector of Police under Chandigarh Administration--One Advocate complained to SSP that respondent extorted money from him on pretext of a minor traffic violation-Enquiry reported that respondent committed gross misuse of his official position and extorted money-No report made that respondent had terrorised complainant or witnesses, if any-Exercise of power under Article 311(2)(b)--Whether justified ?-(No).
       Held : That the conclusion arrived at by the Tribunal in this matter needs no interference at our hands. We have pointed out hereinabove while discussing the facts of this case that no one had ever stated either before the S.P. (Headquarters) (preliminary enquiry officer) or before the S.S.P. that he has been terrorised, intimidated or threatened by the respondent. Only because the complainant Sri Raheja, Advocate, mentioned in his letter that he does not wish to proceed with the complaint in view of the compromise effected between him and the respondent by certain respectable elders, the S.S.P. inferred that the said complainant has been terrorised and intimidated. We are not satisfied that that is the only inference that flows from the complainant s second letter. The S.S.P. also does not say either in the order of dismissal-or anywhere in the record-that he had information to the above effect from some other source. In such a situation, the inference drawn by the S.S.P. cannot be said to be a reasonable or relevant one. In short, there was absolutely no material upon which the S.S.P. could be satisfied that it was not reasonably practicable to hold a disciplinary enquiry aganist the respondent because of the intimidation and threats held out by the respondent to the complainant or other witnesses, if any. (Para 15)

JUDGMENT

B.P. Jeevan Reddy, J.-Leave granted. Heard counsel for the parties.

2. Clause (2) of Article 311 of the Constitution of India declares that no person who holds a civil post under the Union or the State "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". The second proviso to clause (2), however, specifies three situations in which the requirements in clause (2) do not apply. Clause (b) of the second proviso states that "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 an inquiry", the enquiry and the opportunity provided by clause (2) can be dispensed with and punishment imposed straightaway. Clause (3) of Article 311 is really a continuation of clause (b) of the second proviso. Clause (3) says, "if, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such an 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".

3. In Union of India v. Tulsiram Patel1, it has been held by the Constitution Bench that the second proviso to Article 311 is based on public policy, is conceived in public interest and is to be employed for public good. The Constitution Bench has pointed out that the paramount thing to bear in mind is that the second proviso will apply only where the conduct of the government servant is such that he deserves the punishment of dismissal or removal or reduction in rank. It was further pointed out that once the above test is satisfied and the conditions specified in the relevant clause in the second proviso are satisfied, the said proviso is attracted and it would not be necessary to comply with the requirements specified in clause (2). That was a case where a large number of railway employees had participated in an illegal All-India strike and the Government had responded by ordering their dismissal en masse. The action was held to be justified in the circumstances. At the same time, it was held that recording of reasons for forming the requisite satisfaction is mandatory. Though it is not necessary that those reasons must find a place in the order of punishment, it was held, the authority must produce the same when called upon to do so by the Court. The desirability of incorporating the said reasons in the order imposing punishment was emphasised. It has been held by this Court in Collector of Monghyr v. Keshav Prasad Goenka2, that where the statute requires the recording of reasons, any action taken without recording the reasons is invalid. Here, of course, the requirement is contained in the constitutional provision itself.

4. It is true that clause (3) of Article 311 declares further that when a question arises whether it is reasonably practicable to hold an inquiry, the decision of the competent authority shall be final on that question. But that does not mean that the scope of judicial review is excluded altogether. In State of Rajasthan v. Union of India3, it was held that clause (5) of Article 356 (introduced by Constitution 38th Amendment Act and deleted by the 44th Amendment Act, which provided that "notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground") does not preclude the court from entertaining the challenge to a notification under Article 356(1) on the ground that the requisite satisfaction was formed mala fide or that it was founded on extraneous grounds, because it was pointed out, in either of those cases, there is in law no satisfaction as contemplated by clause (1) of Arti

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1996 Supreme(SC) 673

Cases Referred (5)