The principle of natural justice requires that disciplinary action should be based on a fair hearing and that dispensing with the inquiry should be limited to extreme cases.

Kalyan Jyoti Sengupta, J.

This writ petition is directed against two orders passed by the respondent Nos. 2 and 1 respectively. Respondent No.2 passed order dated 28th August, 2005 whereby the petitioner has been dismissed from service. This order has been passed dispensing with any formal inquiry as it is in the mind-set of the disciplinary authority, it was not reasonable or practicable to hold such inquiry. Therefore, it is admitted position no inquiry was held and, as such, no opportunity of hearing had been given before the impugned order was passed. When Rule permits and such Rule is not challenged before me, it has to be seen whether the Rule has been applied in the fact and circumstances of this case or not. The second order dated 12th December, 2005 has been passed by respondent No.1, appellate authority, who had affirmed it.

2. It appears from the two orders that the petitioner is found to have been absent when he was deputed for discharging duty as a Security personnel attached to a judicial officer. On inquiry, his absence was to be found and it was further found that while absenting himself from duty, he attended the court cases pending against him under various sections of I.P.C.

3. Ordinarily, subjective satisfaction of the disciplinary authority is not examined by the Court in exercise of power of judicial review. But, when the question of rationality and reasonableness with regard to the applicability of Rule is raised, the Court can certainly examine into these aspects to scrutinize decision dispensing with the inquiry.

4. In my view, the dispensing of the inquiry should be made in extreme cases where there would be a possibility of uncontrollable or unmanageable further hazards not only in relation to the administration but also in relation to any member of the public. Unauthorised absence simplicitor or involving in the criminal cases pending against him cannot be such extreme case where the inquiry should be dispensed with. From the impugned orders, I do not find that the Judicial Officer himself made any complaint against the petitioner. The department has relied upon its own source of information which necessarily is third party. Therefore, the report submitted by such source cannot always be a gospel truth to dispense with inquiry, unless it is verified with the real complainant.

5. Had it been a case of repeated absence for which the petitioner has been punished in past that could have been a case of dispensation with the inquiry. Therefore, I do not find in this case, the punishment has been imposed with established procedure of law.

6. Taking totality of the entire facts of the case, I feel that the petitioner should be given a hearing as I find in the writ petition the petitioner had and still has documents to explain why he was absent. As far as pendency of the criminal cases are concerned, the said fact ipse dixit is not misconduct for which inquiry should be dispensed with and further punishment should be imposed.

7. Therefore, I direct the revising authority on application made by the petitioner, to examine this aspect after giving hearing to the petitioner and shall allow him to place all the materials to explain his conduct before him. Therefore, the petitioner shall make an application within fortnight from the date of receipt of copy of this order to the said authority who shall complete this exercise within a period of two months from the date of receipt of copy of the application. If it is found that the petitioner had taken valid and lawful permission, obviously, that will be a factor to recall the order. This decision shall be taken on merit and not on technical ground of delay or limitation. In the event, no application is made by the petitioner within the time stipulated above, order passed herein shall stand recalled and the writ petition in that event shall stand dismissed.

8. The writ petition is disposed of.