The Court emphasized that the power to dismiss an employee by dispensing with an enquiry should not be exercised to circumvent prescribed rules, and the Court's role is to determine if there is any infirmity in the decision-making process, not in the decision itself.

Arijit Pasayat, J.

Bitter relationship between the employer and the employee has resulted in a large number of litigations; unfortunately and inevitably creating an atmosphere of distrust. In most of the cases, the employer complains of misconduct by the employee concerned; while the employees usually plead victimization. The present case is no exception.

2. Starting point of the controversy was about two decades back. the respondent (hereinafter referred to as the employee) was appointed on a probation basis in May, 1981. His appointment was on temporary basis and he was not confirmed even after the initial period of probation. Alleging that he assaulted a senior officer and along with others ransacked the office creating chaotic condition, an order of dismissal was passed on 7.12.1983. On the alleged date of incident, information was lodged with police. The order was passed in respect of two employees the present appellant and one Mr. V.K. Talwar. It was pointed out in the order of dismissal that it would not be practicable to hold an enquiry before directing dismissal. The respondent-employee, on the order hand, alleged that the order of dismissal was the outcome of victimization. He took a stand in the writ petition filed before the Delhi High Court that because of union activities, he had become an eyesore of the management, and the order of dismissal without holding an enquiry was violative of law and was at variance with the requirements of Article 311 (2) of the Constitution of India, 1950 (in short the Constitution) .

3. Learned Single Judge was of the view that in a given case, enquiry can be dispensed with; but the case at hand was not of that nature. It was further held that the protection under Article 311 (2) was available and non-observance of the procedure vitiated the order of dismissal. The matter was challenged in Letter Patents Appeal before the Division Bench of the Delhi High Court by the present appellant.

4. It was submitted that there was no scope for judicial review of the order dispensing with enquiry. The order of dismissal was quashed on the ground that it was activated with mala fides. Though, it was observed that the decision whether an enquiry was to be conducted or not and could be dispensed with was primarily that of the concerned authority; it could not be his ipse dixi and in a given case could be judicially reviewed. In any event, Article 311 (2) had no application.

5. The Division Bench by the Impugned judgment held that Article 311 (2) was not attracted. However, it upheld the judgment of the learned Single Judge holding that on a limited judicial review, the order dispensing with enquiry was not sustainable. It was noted that the appellant before it did not argue about the sustainability of the reasons and only raised issues relating to scope of judicial review.

6. In support of the appeal, Mr. Mukul Rohtagi, learned Additional Solicitor General appearing for the appellant submitted that the Division Bench was not justified in upholding conclusions of the learned Single Judge about the scope of judicial review. Both the learned Single Judge and the Division Bench proceeded to deal with the matter as if mala fides had been established. There was no finding recorded that the incident did not take place. On the contrary, both the learned Single Judge and the Division Bench accepted that certain incident took place. After having held so, the plea on the presumptions ground that the respondent-employee was the victim of bias and the authorities acted with mala fides, cannot be sustained. There was no specific plea relating to mala fides and even persons who allegedly acted mala fide were not impleaded in the writ petition. Except making a vague statement that the management was activated with mala fides, there was not even a whisper as to how and why the management and who in particular would act with mala fides. The background scenario as projected by the respondent-employee does not in any way le