The judgment emphasizes the importance of complying with the procedural requirements for dismissal under Rule 39 of 2001 Rules and Article 311 of the Constitution of India.

Sudhanshu Dhulia, J.

1. Heard Mr. Yogesh Pacholia, Advocate for the petitioner and Mr. V.B.S. Negi, Assistant Solicitor General of India for the respondents.

2. The petitioner was a constable in Central Industrial Security Force (From hereinafter referred to as CISF). At the relevant time, he was posted for quarter guard duty at CISF Unit Oil and Natural Gas Corporation Campus, Dehradun. On the night of 17.9.2009 while the petitioner was on duty, the petitioner had some scuffle with another constable of CISF namely, D. K. Chand. It is alleged, that the petitioner fired from his rifle and consequently D.K. Chand sustained injuries on his chest. Consequently an FIR was also lodged under Section 307 in which a chargesheet has been filed and the petitioner is presently facing trial in Dehradun. Meanwhile the petitioner has been dismissed from service vide order dated 23.9.2009 by the Senior Commandant CISF Unit BHEL, Haridwar (Annexure No. 1 to the writ petition). Evidently, the order has been passed by invoking powers under Rule 39 of the Central Industrial Security Force Rules, 2001 which reads as follows:-

“39. Special procedure in certain cases.- Notwithstanding anything contained in rules 36 to 38-

(i) where any penalty is imposed on an enrolled member of the Force on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or

(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:

Provided that the enrolled member of the Force may be given an opportunity of making representation against the penalty proposed to be imposed before any order is made in case under clause (i).”

3. The powers given to the authority under the said rule is para materia to the provisions of Article 311 of the Constitution of India. Article 311 of the Constitution of India reads as follows :-

“311. Dismissal, Removal or reduction in rank of persons employed in civil capacities under the Union or a State. – (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid 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.

[Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply –

(a) where a person is dismissed 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 President 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 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.”

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