The dismissal order must be passed in compliance with the constitutional obligation under Article 311 of the Constitution of India and the relevant police rules, including providing a reason in writing for dispensing with the regular enquiry.

JUDGMENT :

(Arun Dev Choudhury, J.) :

1. Heard Mr. S Sarma and Mr. J Deka, learned counsels for the petitioner. Also heard Mr. D Nath, learned Senior Government Advocate representing the State.

2. The present writ petition is filed assailing the impugned order dtd. 2/7/2021 issued by the Deputy Commissioner of Police (ADMN), Guwahati whereby the petitioner was suspended with immediate effect. The further challenge is the order dtd. 11/10/2021 issued by the same authority dismissing the petitioner from service in exercise of power under Article 311 (2)(b) of the Constitution of India.

3. The background facts leading to filing of the present petition can be summarized as under:

(I) On 1/7/2021, one Sri Pabitra Kr. Medhi, President, Bharatia Janata Party, Nagarbera Mandal, Kamrup, Assam lodged a FIR against the petitioner, inter-alia, alleging that the petitioner uploaded a post in Facebook, commenting 'Pakistan Zindabad', 'Hindustan Murdabad' and also made anti national comment against the police administration and Hon'ble Chief Minister of Assam.

(II) Pursuant to such FIR, the petitioner was arrested on the same date i.e. on 1/7/2021 from Police Reserve, Guwahati and was produced before learned jurisdictional Judicial Magistrate on 2/7/2021. Subsequently, this court by order dtd. 1/8/2021 passed in BA No. 1550/2021 granted bail to the petitioner.

(III) According to the petitioner on being released on bail, he went to Police Reserve to resume his duty on 17/8/2021 and on that date he was served with the impugned suspension order dt. 2/7/2021.

(IV) The petitioner contends that he continued to remain present in the Police Reserve till 11/10/2021 and put his signature in the suspension register.

(V) Thereafter, on 11/10/2021, the impugned order of dismissal was passed in exercise of power under Article 311 (2) (b) of the Constitution of India. The same is under challenged in the present writ petition.

(VI) The Investigating Officer of Nagarbera P.S. case No. 86/2021 registered on the basis of FIR dt. 1/7/2021 has already filed final report under Sec. 173 of the Criminal Procedure Code being final report No. 6/2022 on 17/2/2022.

(VII) The said final report has been accepted by the Judicial Magistrate First Class, Boko, Kamrup. The said final report reflects the followings :

"After getting the Forensic report, I have forwarded the Original CD to SP Kamrup, with CFSL report for supervision and suggestion, accordingly, Addl. SP (HQ) Kamrup, Amingaon, suggested me to submit the case in FR as insufficient evidence against the arrested accused Md. Hussain Ali u/s 124(A)/153(A)/505(2) IPC R/W Sec. 67 of IT Act. Hence, I submit the case in FR as there is no prima facie to establish the case u/s 124(A)/153-A/505(2) IPC R/W Sec. 67 of IT Act against the arrested accused, and forwarded the FR to the Hon'ble Court. Further I pray to the Hon'ble Court to release the accused from this instant case. The result of the investigation has been informed to the complainant by serving notice. The CFSL report, seizure list copy enclosed with the FR ."

4. Mr. S Sarma, learned counsel for the petitioner submits that the condition precedent for invoking the extra ordinary power under Article 311 (2)(b) of the Constitution of India was not available in the given facts and circumstances of the present case inasmuch as a bare perusal of the impugned order dt. 11/10/2021 reflects that there is no satisfaction regarding the non-practicability of holding a departmental proceeding.

5. The learned counsel further submits that a perusal of the impugned order it is clear that the same has been passed on the basis of a report from the Superintendent of Police, Kamrup (Amingaon) and that on the basis of material gathered by the Superintendent of Police, the disciplinary authority was satisfied that the petitioner was involved in the offence beyond any reasonable doubt and accordingly the dismissal order was issued. Thus the impugned order was passed on the basis of satis