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1989 Supreme(Gau) 39
GAUHATI HIGH COURT
B.L.Hansaria, S.K.Homchaudhuri, JJ.
Birendra Kumar Hazarika: Mahadev Singh: Abidur Rahman: S.N.Hazarika -Appellant
Versus
State of Assam -Respondent
Civil Rule Nos. 709, 739, 740 and 809 of 1987
Decided On : 08-03-1989
M.Nath, U.C.Das, S.S.Dey, S.Huda, P.C.Kataki, G.K.Bhattacharyya, D.R.Gogoi, B.P.Bora, A.M.Majumdar, P.K.Goswami
The preservation of the morale of the police force is not a relevant consideration in determining whether it is reasonably practicable to hold an enquiry under clause (b) of the second proviso to Article 311(2) of the Constitution.
Headnote:
ARTICLE 311 - DISMISSAL FROM SERVICE - REASONABLE PRACTICABILITY OF HOLDING ENQUIRY - INVOCATION OF CLAUSE (B) OF THE SECOND PROVISO - RELEVANCE OF PRESERVATION OF MORALE OF POLICE FORCE - OPPORTUNITY OF BEING HEARD - CLEAN HANDS DOCTRINE - SCOPE AND OBJECT OF APPOINTING COMMISSION OF INQUIRY - REQUIREMENTS OF NATURAL JUSTICE.
Fact of the Case:
Four police officers were dismissed from service following a Commission of Inquiry's finding that they were responsible for the death of a person in police custody. The officers challenged their dismissals, arguing that they were not given a reasonable opportunity to defend themselves and that the invocation of clause (b) of the second proviso to Article 311(2) of the Constitution was improper.
Finding of the Court:
The court held that the reason given for dispensing with the enquiry under clause (b) of the second proviso, namely, the preservation of the morale of the police force, was irrelevant to the question of reasonable practicability of holding the enquiry. The court also held that the opportunity given to the officers before the Commission of Inquiry was not a sufficient substitute for the requirements of Article 311(2) of the Constitution, as the officers were not informed of the specific charges against them and were not given an opportunity to defend themselves against the proposed action of dismissal.
Issues: 1. Whether the invocation of clause (b) of the second proviso to Article 311(2) of the Constitution was proper in the circumstances of the case. 2. Whether the officers were given a reasonable opportunity to defend themselves before the Commission of Inquiry. 3. Whether the opportunity given to the officers before the Commission of Inquiry was a sufficient substitute for the requirements of Article 311(2) of the Constitution.
Ratio Decidendi: 1. The court held that the reason given for dispensing with the enquiry under clause (b) of the second proviso, namely, the preservation of the morale of the police force, was irrelevant to the question of reasonable practicability of holding the enquiry. The court relied on the Supreme Court's decision in Union of India vs. Tulshi Ram Patel, which held that the expression "not reasonably practicable" used in clause (b) means that holding of the enquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. The court held that the preservation of the morale of the police force was not a relevant consideration in determining whether it was reasonably practicable to hold the enquiry. 2. The court held that the officers were not given a reasonable opportunity to defend themselves before the Commission of Inquiry. The court noted that the notices issued to the officers under section 5(2) read with section 8-B of the Commissions of Inquiry Act, 1952, did not spell out the specific charges against them and did not inform them that the finding of the Commission could lead to their dismissal. The court held that this was not sufficient to meet the requirements of Article 311(2) of the Constitution, which requires that a person be informed of the charges against him and given a reasonable opportunity to defend himself. 3. The court held that the opportunity given to the officers before the Commission of Inquiry was not a sufficient substitute for the requirements of Article 311(2) of the Constitution. The court noted that the Commission was appointed for a different purpose, and not for the purpose of deciding whether the officers should be dismissed from service. The court held that the officers could not have known that the opportunity given to them by the Commission was to examine the question of their dismissal.
Final Decision: The court allowed the petitions, set aside the impugned orders of dismissal, and made the rules absolute. However, the court observed that it would be open to the disciplinary authorities to proceed against the officers even now in accordance with law.
All the four writ petitioners were police officers of different ranks. They have come to be dismissed from their services in the wake of the finding given in January, 1987 by a learned Judge of this Court who conducted an enquiry under the Commissions of Inquiry Act, 1952, for short the Act, relating to the death of one Subhash Sarma while in police custody. The contentions advanced against the orders of dismissal passed on different dates of July, 1987 being the same, all these Civil Rules were heard together and are being disposed of by this common judgment.
2. As the four orders of dismissal are similarly worded we may note the order passed in Civil Rule No. 709/87.
“Whereas by Notification No. PLA. 490/84/6, dated 19fh September, 1984 the Government constituted a Commission of Inquiry „ consisting of Justice S. Haque, Judge, Guwahati High Court, to inquire into and report on the circumstances leading to the death, of Shri Subhash Sarma in Police Custody, at Guwahati Medical College on 17.7.84.
-And-
Whereas the said Commission of Inquiry in its report dated 19.1.87 found that the following Police Officers viz Sri Birendra Kumar Hazarikia, now Additional Superintendent of Police, North Lakhimpur, was one of the four Police Officers for the injuries caused to Shri Subhash Sarma and as a consequence there of his death in police custody.
-And-
Whereas the said Commission of Inquiry recommended deferent action against the above named four Police Officers for restoration of public confidence in the Police Force and to discourage repetition of such atrocious conduct of the Police Officers as revealed during the said Inquiry.
-And -
Whereas the said Police Officer Sri Birendra Kumar Hazarika participated in the conduct of the said inquiry by Justice S. Haque and had the fullest opportunity of showing cause and defending himself against the allegations brought against him relating to the death of Sri Subhash Sarma,
Now, therefore, the Governor of Assam, being satisfied from the report of the said Commission of Inquiry that the conduct of the said officer in .relation to the death of Sri Subhash Sarma is so utterly unbecoming of a member of the police force that his further continuance as member of the police force is detrimental to the moral of the Police Force and being further satisfied in terms of Articl 311(2)(b) read with Rule 10 (ii) of the Assam Services (Discipline and Appeal) Rules, 1964 that it is not reasonably practicable to hold any further inquiry because the delay in holding any further inquiry will not be conducive to the morale of the Police Force, the Governor of Assam is pleased to dismiss Shri Birendra Kumar Hazarika, Additional S. P. from service with immediate effect."
3. The first submission advanced by Shiri Mazumdar and Shri Kataky who have appeared for the petitioners is that the dismissal of the incumbents without holding any enquiry contemplated by Article 311 (2) of the Constitution and Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, for short the Rules, is unconstitutional and illegal. The second contention is that invocation of clause (b) of the second proviso to Article 311 (2) of the Constitution and Rule 10 (ii) of the Rules has introduced a serious infirmity in the orders of dismissal inasmuch as the ground given for stating that holding of "further enquiry" is not reasonably practicable-the same being that delay in holding enquiry will not be conducive to the morale of the police force-is an altogether irrelevant consideration and is not at all germane to the question of reasonable practicability of holding further enquiry.
4. The impugned orders assume that the opportunity made available to the learned Commission of Inquiry to the petitioners relating to the allegations against them was sufficient
