The main legal point established in the judgment is the requirement for the disciplinary authority to record in writing the satisfaction regarding the non-practicability of holding an enquiry under Article 311(2)(b) of the Constitution of India, and the adherence to the principles of natural justice in disciplinary proceedings.

ORDER :

1. Heard Mr. I Rafique learned counsel for the petitioner. Also heard Mr. T Chutia, learned Additional Senior Govt. Advocate appearing for the respondents.

2. The present writ petition is filed assailing an impugned order dated 11.10.2021 issued by the respondent No.6, whereby in exercise of power under sub-clause (b) of the provision 2 of Article 311 of the Constitution of India, the petitioner, namely UBC Raj Babu Singh was dismissed from service with immediate effect.

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

I. The petitioner while working as constable (UBC/295) posted at Fancy Bazar Outpost, Guwahati, an FIR was lodged before the Officer-in-charge Latashil PS on 23.06.2021 alleging that on the said date at around 6.45 am some persons forcibly trespassed into the house of the informant and kidnapped his father from the house.

II. On the basis of the said FIR, Latashil PS Case No.217/2021 was registered initially under sections 448/365/34 IPC and later on, section 364A/120(B) IPC was added. The petitioner was arrested in connection with the aforesaid Latashil PS case on 29.06.2021. Subsequently, the petitioner was granted bail by this court by an order dated 29.09.2021 passed in Bail Application No.2510/2021. Thereafter the impugned order dated 11.10.2021 was passed dismissing the petitioner from service as discussed hereinabove and such order is under challenge.

4. Mr. I Rafique, 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 dated 11.10.2021 reflects that there is no satisfaction regarding the non-practicability of holding a departmental proceeding.

5. Mr. Rafique, learned counsel for the petitioner also submits that when a person is dismissed in exercise of power under Article 311 (2) (b) of the Constitution of India, merit of the allegation cannot be determined, rather the disciplinary authority is to come to a satisfaction that it is not reasonably practicable to hold an enquiry and in the present case no such satisfaction is reflected, either in the order impugned or in the affidavit-in-opposition filed by the respondent authority. In support of such submission, Mr. Rafique relies on the judgment of Hon’ble Apex court passed in Reena Rani vs. State of Haryana and Others reported in (2012) 10 SCC 215 and the case of Hari Niwas Gupta vs. the State of Bihar and another reported in (2020) 3 SCC 153.

6. Per contra, Mr. T.C. Chutia, learned Additional Senior Government Advocate submits that the scope of judicial review of an order passed in exercise under Article 311 (2) (b) of the Constitution of India is very limited. The disciplinary authority has come to a conclusion that the involvement of the petitioner was established and such action of the petitioner being a part of disciplined force is not acceptable inasmuch the conduct on the part of the petitioner is unbecoming of an official serving to protect the citizens. Such subjective satisfaction of the employer cannot lightly be interfered in exercise of power of judicial review.

7. It is submitted by Mr. Chutia that when a member of disciplined force commits crime against citizen, who are otherwise to protect such citizen from crime, it is not practicable to hold an enquiry, more so in view of the fact that report of the Assistant Commissioner of Police, Panbazar, Guwahati clearly establishes involvement of the petitioner in committing the offence. Relying on the judgment of the Hon’ble Apex Court passed in Satyavir Singh and Other vs Union of India and others reported in (1985) 4 SCC 252, Mr. Chutia urges that as the authority by giving due reason passed the order, this court may not like to sit as an appellate authority to decide the relevancy of such reason like a court of appeal