High Court
Case Details
WP(C) 2221/2011 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE DR.(MRS) JUSTICE INDIRA SHAH We have heard Mr. H Buragohain, learned Central Government Counsel, appearing on behalf of the petitioners, and Mr. AR Sikdar, learned counsel, for the sole res pondent. We have also heard Mr. MK Choudhury, learned Senior counsel, appearing as Amicus Curiae. 2. The material facts, leading to this writ petition, may, in brief, be set out as under: (i) Sri Chakreswar Talukdar, husband of the sole respondent, while functioni ng as Sub-Post Master (in short, ’SPM’) at Bengtol Sub Post Office, in the distr ict of Chirang, Bodoland Territorial Autonomous Development Council, was reporte d by the Post Master, Dhubri Head Post Office, vide letter, dated 07-07-2001, as having been found to have retained excess cash with him. Pursuant to the inform ation, so received by the Divisional Post Office, on 10-07-2001, Sub-Divisional Inspector of Post Offices [hereinafter referred to as ’SDI(P)]’, Bongaigaon, vis ited the Bengtol Sub-Post Office, on 18-07-2001, to ascertain the correctness of the allegation of retention of excess cash by Sri C Talukdar, husband of the so le respondent. On his visit to Bengtol Sub Post Office, SDI(P) found Bengtol post offic (ii) e closed and the Sub-Post Master, Sri Talukdar, absent from duty. On 19-07-2011, SDI(P) reported to the Superintendent of Post Offices, Goalpara Division, Dhubr i, over telephone, that excess cash, if any, retained at Bengtol Sub-Post Office , could not be ascertained due to unauthorized absence of Sri Talukdar since 17- 07-2001. On receipt of this report, Divisional Superintendent of Post Office, Go alpara Division, Dhubri, accompanied by other postal officials, visited, on 20-0 7-2001, Bengtol Sub Post Office and found the office closed. Nobody could tell t he team of the Superintendent of Post Office, Goalpara Division, Dhubri, as to w here Sri Talukdar was and/or where the keys of the post office were. (iii) Having failed to trace out Sri Talukdar as well as the keys of the post office, which Sri Talukdar had been holding, information was lodged, on 20.07.20 01, with the In-charge, Bengtol Police Outpost, regarding suspension of the work of the said Sub-Post Office (SPO) and unauthorized absence of its SPM, Sri Talu kdar. However, the In-Charge, Bengtol Police Outpost, expressed his inability to help the Superintendent of Pose Office, Goalpara Sub-Division, in opening the SPO without assistance/permission of the District Magistrate, Kokrajhar. On the following day, i.e., on 21-07-2001, the Superintendent of Post Office, Goalpara Division, Dhubri, approached the District Magistrate, Kokrajhar, who, in turn, d eputed one Magistrate to open the Post Office on 21-07-2001 itself. (iv) Thus, with the help of the District Magistrate, Kokrajhar, Bengtol SPO was opened, on 21-07-2001, at about 1700 hours, the lock, on the steel almirah, was broken and the Magistrate, on duty, prepared an inventory in presence of wit nesses and handed over the articles, including cash, stamps, etc., lying therein , to the Superintendent of Post Office, Goalpara Division. The documents and the books of accounts, so recovered, revealed several anomalies in the books of acc ounts maintained by Sri Talukdar, when he had attended the SPO on 13-07-2001 and 14-07-2001. (v) As the inventory revealed misappropriation of money by Sri Talukdar, inf ormation was lodged, in this regard, in writing, with the Officer-in-Charge, Bas ugaon Police Station, on 23-07-2001, by the SDI(P), Bongaigaon, and Basugaon Pol ice Station Case No. 71 of 2001, under Section 409 IPC, came to be accordingly r egistered against the said Sri Chakreswar Talukdar, husband of the sole responde nt herein, and the police investigation commenced. (vi) Apart from a divisional level enquiry, which was conducted, by the Posta l Department, the police, on completion of investigation, submitted, eventually, on 30-05-2002, a charge-sheet, in Basugaon Police Station Case No. 71 of 2001 a forementioned, seeking prosecution of Sri Talukdar, under Section 409 IPC, showi ng him as an absconder. (vii) Thereafter, the present respondent, as wife of Sri Talukdar, filed a rep resentation, on 10-11-2003, before the Deputy Commissioner, Bongaigaon, stating to the effect, inter alia, that her husband had been traceless since 17-07-2001 and, in his absence, she, along with her two daughters, had been facing financia l hardship and, hence, out of the provident fund, gratuity, pension, etc, some a mount may be given to her so as to enable her to meet her critical financial con dition. The said representation was forwarded, on 12-11-2003, by the Deputy Comm issioner, Bongaigaion, to the Post Master General, Guwahati. This was followed b y a report/certificate, dated 29-08-2005, issued by the Superintendent of Police , Kokrajhar, stating to the effect, inter alia, that during investigation of the case, accused Sri C. Talukdar was found to have misappropriated Government mone y, while he had been working as SPM at Bengtol SPO, but he could not be arrested during investigation, because he had absconded.
Legal Reasoning
What follows from the above discussion is that ordinarily, no Government servant can be dismissed or removed from service until after an enquiry is held , wherein he is informed of the charges against him and has been given reasonabl e opportunity of being heard in respect of the charges, which are levelled again st him. The safeguard, so provided to a Government servant, by Clause (2) of Art icle 311 is, however, taken away, when the Second proviso to Clause (2) of Artic le 311 of the Constitution of India becomes applicable. The Constitution Bench, in Tulsi Ram Patel (supra), has clearly held, in this regard, as follows: (cid:28)70. The position which emerges from the above discussion is that the keywords o f the second proviso govern each and every clause of that proviso and leave no s cope for any kind of opportunity to be given to a government servant. The phrase (cid:28)this clause shall not apply (cid:29) is mandatory and not directory. It is in the natu re of a constitutional prohibitory injunction restraining the disciplinary autho rity from holding an enquiry under Article 311(2) or from giving any kind of opp ortunity to the concerned government servant. There is thus no scope for introdu cing into the second proviso some kind of enquiry or opportunity by a process of inference or implication. The maxim (cid:28)expressum facit cessare tacitum (cid:29) ( (cid:28)when th ere is express mention of certain things, then anything not mentioned is exclude d (cid:29)) applies to the case. As pointed out by this Court in B. Shankara Rao Badami v. State of Mysore, this well-known maxim is a principle of logic and common sen se and not merely a technical rule of construction. The second proviso expressly mentions that clause (2) shall not apply where one of the clauses of that provi so becomes applicable. This express mention excludes everything that clause (2) contains and there can be no scope for once again introducing the opportunities provided by clause (2) or any one of them into the second proviso & & & & & & & & & & Equa lly, where a public servant by himself or in concert with others has brought abo ut a situation in which it is not reasonably practicable to hold an enquiry and his conduct is such as to justify his dismissal, removal or reduction in rank, b oth public interest and public good demand that such penalty should forthwith an d summarily be imposed upon him; and similarly, where in the interest of the sec urity of the State, it is not expedient to hold an enquiry, it is in the public interest and for public good that where one of the three punishments of dismissa l, removal or reduction in rank is called for, it should be summarily imposed up on the concerned government servant & & & & & & & & &.. Much as this may seem harsh and o ppressive to a government servant, this Court must not forget that the object un derlying the second proviso is public policy, public interest and public good an d the Court must, therefore, repel the temptation to be carried away by feelings of commiseration and sympathy for those government servants, who have been dism issed, removed or reduced in rank by applying the second proviso. Sympathy and c ommiseration cannot be allowed to outweigh considerations of public policy, conc ern for public interest, regard for public good and the peremptory dictate of a constitutional prohibition. & & & & & & & & & &.. After all, it is not as if a government servant is without any remedy when the second proviso has been applied to him. There are two remedies open to him, namely, departmental appeal and judicial rev iew. (cid:29) (Emphasis is added) 23. From the above observations, what emerges is that a Government servant c an be dismissed from service without holding enquiry if the disciplinary authori ty finds, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an enquiry in the manner provided in the Rules. Though this Rule, permitting enquiry to be dispensed with, appears to be harsh, the fact re mains, as indicated in Tulsi Ram Patel (supra), that this Rule has been made, as a matter of public policy, in public interest and for public good. Where a publ ic servant places himself in a situation, wherein it is not reasonably practicab le to hold an enquiry and his conduct, at the same time, is such as would warran t and justify his dismissal from service, there is no impediment in taking recou rse to this power by a disciplinary authority in public interest and public good inasmuch as removing a Government servant without holding any enquiry, in such a case, would be in public interest and public good. 24. As observed in Tulsi Ram Patel (supra), the condition precedent for the application of clause (b) to the second Proviso to Clause (2) of Article 311 is the satisfaction of the disciplinary authority that (cid:28)it is not reasonably pract icable to hold (cid:29) the enquiry contemplated by clause (2) of Article 311. What is p ertinent to note is that the words used are (cid:28)not reasonably practicable (cid:29) and not (cid:28)impracticable (cid:29). The Oxford English Dictionary defines (cid:28)practicable (cid:29) to mean (cid:28)C apable of being put into practice, carried out in action, effected, accomplished , or done; feasible (cid:29). According to the Webster’s Third New International Diction ary, the word (cid:28)practicable (cid:29) means, inter alia, (cid:28)possible to practice or perform : capable of being put into practice, done or accomplished: feasible (cid:29). Further, the words used are not (cid:28)not practicable (cid:29) but (cid:28)not reasonably practicable (cid:29). Webst er’s Third New International Dictionary defines the word (cid:28)reasonably (cid:29) as (cid:28)in a r easonable manner: to a fairly sufficient extent (cid:29). 25. Thus, whether it was practicable to hold enquiry or not, in a given case , must be adjudged in the context of facts, which were in existence or available before the disciplinary authority at the time, when the decision as regards dis missal or removal of service of a Government servant is required to be taken by the disciplinary authority. It is not a total or absolute impracticability, whic h is required by clause (b). What is requisite is that the holding of the enquir y is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. 26. A disciplinary authority is not expected to dispense with a disciplinar y enquiry lightly or arbitrarily or out of ulterior motives or merely to avoid h olding of an enquiry or because the Department’s case against the government ser vant is weak and is likely to fail. Consequently, the finality, given to the dec ision of the disciplinary authority by Article 311(3), is not binding upon the court so far as its power of judicial review is concerned and, in such a case, t he court will strike down the order, dispensing with the enquiry as also the ord er imposing penalty if the Court happens to find that it was reasonably practica ble to hold enquiry. (See Union of India and others -vs- Tulsi Ram Patel, report ed in (1985) 3 SCC 398). The learned Amicus Curiae is correct, therefore, in submitting that a si 27. tuation, which makes the holding of an enquiry not reasonably practicable, may e ven exist before an enquiry is initiated or may arise even after the enquiry has been initiated, i.e., such a situation can develop before the enquiry commences or during the progress of the enquiry or subsequent to initiation of the enquir y. The reference, made, in this regard, by the learned Amicus Curiae to the obse rvations of the Constitution Bench, appearing at Para 132, in Tulsi Ram Patel (s upra), are not at all misplaced inasmuch as the relevant observations read as un der: (cid:28)132. It is not necessary that a situation which makes the holding of an enquiry not reasonably practicable should exist before the disciplinary enquiry is init iated against a government servant. Such a situation can also come into existenc e subsequently during the course of an enquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case al so the disciplinary authority would be entitled to apply clause (b) of the seco nd proviso because the word (cid:28)enquiry (cid:29) in that clause includes part of an enquiry . It would also not be reasonably practicable to afford to the government servan t an opportunity of hearing or further hearing, as the case may be, when at the commencement of the enquiry or pending it the government servant absconds and ca nnot be served or will not participate in the enquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority . Therefore, even where a part of an enquiry has been held and the rest is dispens ed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and th e government servant cannot complain that he has been dismissed, removed or redu ced in rank in violation of the safeguards provided by Article 311(2). (cid:29) (Emphasis is added) 28. There can be no doubt that when the reasons are not recorded by a discip linary authority for reaching the satisfaction that it is not ’reasonably pract icable’ to hold enquiry, such an order would be bad in law, because it is the ob ligation of the disciplinary authority to record the reasons as to why holding of an enquiry was not ’reasonably practicable’. In the absence of an order recor ding satisfaction of the disciplinary authority, dispensing with enquiry, the or der of penalty ought to be interfered with. 29. However, contrary to what has been submitted by Mr. Sikdar, learned coun sel for the respondent, that an order, dispensing with an enquiry, has to be sep arately made and such an order has to precede the order of dismissal and that a combined order, dispensing with the enquiry as well as removing a Government ser vant from service, is bad in law, the Constitution Bench, in Tulsi Ram Patel (su pra), has observed, at para 134, as follows: (cid:28)134. It is obvious that the recording in writing of the reason for dispensing w ith the enquiry must precede the order imposing the penalty. The reason for disp ensing with the enquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question o f the penalty to be imposed and pass the order imposing the penalty. It would, h owever, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the enquir y need not contain detailed particulars, but the reason must not be vague or jus t a repetition of the language of clause (b) of the second proviso. For instance , it would be no compliance with the requirement of clause (b) for the disciplin ary authority simply to state that he was satisfied that it was not reasonably practicable to hold any enquiry. Sometimes a situation may be such that it is no t reasonably practicable to give detailed reasons for dispensing with the enquir y. This would not, however, per se invalidate the order. Each case must be judge d on its own merits and in the light of its own facts and circumstances. (cid:29) (Emphasis is ad ded) 30. A microscopic reading of the observations made above, in Tulsi Ram Patel (supra), clearly shows that although the Constitution Bench has pointed out th at the reason, in writing, for dispensing with an enquiry, has to be recorded an d such recording of reasons must precede the order imposing penalty and that it is not necessary that the final order, dismissing an employee from service, shal l also contain a reason for dispensing with the enquiry and that usually, there would be two separate orders - one recording the reason for dispensing with the enquiry and the other imposing the penalty, yet the Constitution Bench, having o bserved this far, has pointed out and made it crystal clear that it would be bet ter to record reason, in the final order itself, so as to avoid possibility of the allegation that the reason, in writing, had not been recorded before the fin al order was made, but has been subsequently fabricated. The Supreme Court has a lso pointed out, in Para 135 of Tulsi Ram Patel (supra), that though the reason, dispensing with the enquiry, is necessary to be recorded in writing, there is no obligation to communicate the reason to the Government servant. The relevant observations, appearing at para 135 of Tulsi Ram Patel (supra), read as under: (cid:28)135. It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned government servant to enable h im to challenge the validity of the reasons in a departmental appeal or before a court of law and that failure to communicate the reasons would invalidate the o rder. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the enquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. As clause (3) of Article 311 makes the decision of the disciplinary aut hority on this point final, the question cannot be agitated in a departmental a ppeal, revision or review. The obligation to record the reason in writing is pro vided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) pr operly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would, however, be better for the discipli nary authority to communicate to the government servant its reason for dispensi ng with the enquiry because such communication would eliminate the possibility o f an allegation being made that the reasons have been subsequently fabricated. I t would also enable the government servant to approach the High Court under Arti cle 226 or, in a fit case, this Court under Article 32. If the reasons are not c ommunicated to the government servant and the matter comes to the court, the cou rt can direct the reasons to be produced, and furnished to the government servan t and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Su ch presumption can, however, be rebutted by a satisfactory explanation for the n on-production of the written reasons. (cid:29) (Emphasis is added) 31. Though it had also been contended, in Tulsi Ram Patel (supra), that hold ing of an enquiry is necessary in order to determine whether disciplinary enquir y should be dispensed with or not and that in such a preliminary enquiry, the Go vernment servant shall be given an opportunity of hearing by giving him a notice to show cause, the Supreme Court has remarked that this argument is illogical. 32. It is immense importance to note that the Supreme Court, in no uncertain words, has pointed out, in Tulsi Ram Patel (supra), that though an order, passe d by a disciplinary authority, recording reasons for dispensing with the enquiry , is justiciable, the Court must put itself in the place of the disciplinary aut hority and consider what was the then prevailing situation and what a reasonabl e man, acting in a reasonable way, would have done and that the matter will have to be judged in the light of the then prevailing situation and not as if the di sciplinary authority was deciding the question - whether the enquiry should be dispensed with or not - in cool and detached atmosphere of a court-room, removed in time, from the situation in question. The Supreme Court has also pointed out , in Tulsi Ram Patel (supra), that where two views are possible, Court will decl ine to interfere. The relevant observations, appearing in para 137, read as unde r: (cid:28)137. A government servant who has been dismissed, removed or reduced in rank by applying to his case clause (b) or an analogous provision of a service rule is not wholly without a remedy. As pointed out earlier while dealing with the vario us service rules, he can claim in a departmental appeal or revision that an enqu iry be held with respect to the charges on which the penalty of dismissal, remov al or reduction in rank has been imposed upon him unless the same or a similar s ituation prevails at the time of hearing of the appeal or revision application. If the same situation is continuing or a similar situation arises, it would not then be reasonably practicable to hold an enquiry at the time of the hearing of the appeal or revision. Though in such a case as the government servant if dismi ssed or removed from service, is not continuing in service and if reduced in ran k, is continuing in service with such reduced rank, no prejudice could be caused to the Government or the Department if the hearing of an appeal or revision app lication, as the case may be, is postponed for a reasonable time. (cid:29) asis is added) 33. In the light of what have been observed and held above, it becomes abund antly clear that while considering the reason, recorded by a disciplinary author ity dispensing with an enquiry, a Court must put itself in the place of a disci plinary authority and, then, consider, in the light of the prevailing situation at the relevant point of time, whether a reasonable man, acting in a reasonable way, would have dispensed with the enquiry or not. In fact, even when two views are possible on the course of action, which the disciplinary authority could h ave had adopted, the Court would decline to interfere if the reason, assigned by a disciplinary authority for choosing to dispense with enquiry, is a reasonabl y possible view. 34. What logically follows from the above discussion is that the learned Tri bunal ought to have considered the correctness, legality and/or validity of the (Emph impugned order, dated 10-02-2006, passed by the disciplinary authority, in the l ight of the facts and attending circumstances as were obtainable on the date of making of the order, i.e., on 10.02.2006, and not on the day of the making of th e order by the learned Tribunal on 08.07.2010. 35. Consequently, the view, expressed by the learned Tribunal, that when the learned Chief Judicial Magistrate has declared the husband of the respondent he rein as absconder on 02-06-2006, the disciplinary authority could not have trea ted the petitioner’s husband as an absconder on 02-06-2006, is, in our considere d view, a wholly incorrect approach inasmuch as the learned Tribunal misses out the point that it was not at all necessary for the disciplinary authority to w ait for the Chief Judicial Magistrate, Kokrajhar, to record as to whether the re spondent’s husband was or was not an absconder. It was for the disciplinary auth ority and the disciplinary authority alone to decide, on 10.02.2006, whether, in the facts and attending circumstances of the case, as existing on 10-02-2006 , the enquiry, as contemplated by Rule 19, was or was not reasonably practicable . With regard to the above, we may also point out that long before the lea 36. rned Chief Judicial Magistrate passed its order declaring the petitioner’s husba nd as an absconder, several warrants had been issued by the learned Chief Judici al Magistrate against the respondent’s husband treating him as an absconder, bec ause the charge sheet, which the police had submitted, clearly described the res pondent’s husband as an absconder. Whether the respondent’s husband had, in fact , absconded or not is not the question; the question is whether, in the facts an d attending circumstances of the case, as obtainable on 10-02-2006, the discipli nary authority’s satisfaction that the respondent’s husband was an absconder and , therefore, it was not reasonably practicable to hold the enquiry is or is not correct. For this purpose, the order, dated 10-02-2006, is reproduced below: (cid:28)WHEREAS a statement of articles of charges was framed against Chakreswar Talukd ar, Ex-SPM Bengtal S.O. under Rule-14 of CCS (CCA) Rules, 1965 but due to prolon ged absconding of Shri Talukdar the said memorandum of charges could not be serv ed to the Official. The article of charges and the statement of imputation of mi sconduct or misbehaviour on the basis of which the charges were framed against t he said Shri Chakreswar Talukdar was as below- ANNEXURE-I Statement of articles of charge framed against Shri Chakreswar Talukdar, the the n SPM, Bengtal S.O. (Now under deemed to have been placed under suspension and a bsconder since 17-07-01). ARTICLE-I That the said Shri Chakreswar Talukdar while functioning as SPM, Bengtal S.O. d uring the period from 31-03-2000 onwards remained unauthorised absent from dutie s w.e.f. 17-07-2001 keeping Bengtal S.O. closed and his movements were not known till this day and his continued absence in duty without proper permission unaut horizedly was subversive of discipline which invites disciplinary action against Shri Talukdar as codified in Rule -62 & 63 of Postal Manual Volume-III. This a lso attracts the provision of Rule-3(1) (ii) and (iii) of CCS (Conduct) Rules,19 64. ARTICLE-II That during the aforesaid period and while functioning as such in the aforesaid office the said Shri Chakreswar Talukdar has kept Bengtal S.O. closed and absco nded himself w.e.f. 17-07-2001 keeping shortage of cash to the tune of Rs. 1,03, 809.42 (Rupees One Lakh three thousand eight hundred nine and paise forty two ) only in the office. The above shortage of cash was charged as U.C.P. on 21-07-20 01. By doing the above acts the said Shri Chakreswar Talukdar violated the provi sion of Rule-58 of P&T FHB Volume-1, Rule -658 of P & T Manual Volume -VI Part I II and also Rules 3(1) (i), (ii), (iii) of CCS (Conduct) Rules, 1964. ANNEXURE-II Statement of imputation of misconduct or misbehaviour in support of the articles of charge framed against Shri Chakreswar Talukdar the then SPM, Bengtal S.O. No w under deemed to have been placed under suspension and absconder since 17-07-01 . ARTICLE-I That the said Shri Chakreswar Talukdar while functioning as SPM, Bengtal S.O. d uring the period from 31-03-2000 onwards remained absent unauthorizedly from du ties w.e.f. 17-07-2001 keeping in Bengtal S.O. closed without any information. H is movement was also not known. On enquiry at Bengtal S.O. on 20-07-2001 it was revealed that Bengtal S.O. remained closed from 17-07-01 and Shri Talukdar is ab sconding since 17-07-01. Nobody could tell where about of Shri Talukdar as well as the disposal of office keys. Being failed to open the P.O. on 20-07-01 a repo rt was lodged at Bengtal Police out post regarding suspension of P.O. works and authorized absence of Shri Talukdar. Lastly, the Bengtal S.O. was opened on 21-0 7-01 in presence of Shri A.K.Tribedi, EAC, Kokrajhar (District Magistrate) and o thers, after observing all formalities. By doing the above acts the said Shri Ta lukdar Subversive of discipline which invites disciplinary against him as codifi ed in Rule 62 and 63 of Postal Manual Vol-III and by his continued absence from duty the said Shri Talukdar has also displayed lack of devotion to duty and acte d in a manner which is unbecoming of a Govt. Servant violating the provision of Rule 3 (1) (ii) & (iii) of CCS (Conduct) Rules, 1964. ARTICLE - II That Shri Chakreswar Talukdar while working as SPM Bengtal S.O. during the perio d from 30-03-2000 onwards absconded himself w.e.f. 17-07-01 keeping the office c losed and suspending the P.O. works. The office was then opened with the help of Magistrate after observing necessary formalities on 21-01-2001. As inventory wa s prepared by the Magistrate himself in presence of the staff and other witnesse s and following cash and stamps were found:- Cash Stamp Revenue Duo from BOs = = = Rs. 2776.10 Rs. 6701.00 Rs. 1400.00 Rs.10877.10 Rs. 7080.09 Rs.17957.19 Total = Total S.O. a/c book of the office (current) was then examined and found that said Shri Talukdar had written up S.O. a/c book upto 13-07-2001 and as per S.O. a/c book dtd. 13.07.01 closing balance of Bangtal S.O. was as below:- Cash = Rs. 1,07,540.02 = Rs. 2753.50 Stamp Revenue = Rs. 140.00 Duo from BOs = Rs. 6030.09 Rs. 1,16,463.61 Said Shri Talukdar was performed his duties on 14.07.01 and written up B.O. summ ary upto 14.07.01 but did not maintain the S.O. a/c book upto 14.07.01. As per B .O. Summary dated 14.07.01 a sum of Rs. 7080.09 showed ue from its Branch Office s. Shri Talukdar also issued M.O. for Rs. 1613/- paid M.O. for Rs.2000/- and pai d bill for Rs. 40/- respectively on 14.07.01 as per voucher found available. But all the above amount was not brought into a/c on 14.07.01. Besides stamp worth Rs.5730/- was remitted to Bengtal S.O. on 10.07.2001 by the SPM, Bongaigaon S.O ., but the amount found not acknowledged and brought into a/c till 14.07.01. All the transactions stated above had been taken into account and assessed closing balances as follows. CB dated 13.07.01 Stamp remitted to Bengtal but not acknowledged = Rs. 1,16,463.61 = Rs. 5,730.00 M.O. issued but not bring to account. Total receipt side = = Rs. 1613.00 Rs. 1,23,806.61 Less M.O. paid and bills paid = Rs. 2040.00 CB = Rs. 1,21,766.61 But on physical verification the executive Magistrate found Rs. 10,877.10 as cas h/stamp/Revenue balance in the office. A sum of Rs. 7080.09 was due from its BOs and hence the total shortage was (Rs. 1,21,766.61- 17,957.19) = Rs. 1,03,809.42 (Rs. One lakh three thousand eight hundred and paise forty two only). The above shortage of amount was charged as UCP in the daily a/c of Bangtal S.O. on 21.07.01. By doing the above acts the said Shri Chakreswar Talukdar violated the provision of Rule 58 of P & T Financial Hand Book Volume-1, Rule-658 of P & T Manual Volu me-VI Part-III and failed to maintain absolute integrity and devotion to duty an d acted in a manner of unbecoming a Govt. Servant violating Rule-III (1) (i) (ii ) (iii) of CCS (Conduct) Rules, 1964. S.O. a/c book of Bengtal S.O. dtd. 21.07.01 Containing period from 31.03 Inventory dtd. 21.07.01 of Bengtal S.O. prepared by Shri A.K. Tribedi, E ANNEXURE -III List of documents by which the articles of charges framed against Shri Talukdar the then SPM, Bengtal, S.O. are proposed to be sustained. (1) AC Kokrajhar in presence of Shri B.K. Marak, SPOs, Dhubri and other witnesses. (2) .2000 to 21.07.2001. (3) i H.O. on 26.07.01. (4) int UCP. (5) 01. S.O. daily account of Bengtal S.O. dtd. 21.07.01 duly accounted by Dhubr B.O. Summary of Bengtal S.O. covering period from 18.01.2000 to 23.07.20 Debit Charge for Rs. 1,03,809.42 dtd.21.07.01 from Dhubri H.O. dated aga ANNEXURE - IV List of witnesses by whom the article of charges framed against Shri Chakreswar Talukdar the then, SPM, Bengtal, S.O. are proposed to be sustained. 1. 2. 3. 4. 5. 7. Shri A.K. Trebedi, EAC, Kokrajhar Shri B. K. Marak, SPOs, Dhubri Shri B. U. Ahmed, IPOs (PG)/Dhubri Shri J. Karmakar, IPOs Bongaigaon Shri S. K. Choudhury, O/S Mail Bongaigaon Shri Tamir Uddin Ahmed, PA, Kokrajhar, H.O The said Shri Chakreswar Talukdar Govt. money to the tune of Rs. 1,03,80 9.42 (Rupees one lakh three thousand eight hundred nine and paise forty two) onl y in his official capacity and absconded keeping Bengtal S.O. closed from 17.07. 01. The matter was reported to Police and the Police authority registered the ca se against the said Shri Chakreswar Talukdar under Basugaon P.S. Case No. 71/200 1 under section 409 IPC. The police submitted charge sheet bearing No. 27 dated 30.05.2002 before the Hon’ble Court of CJM. Kokrajhar showing the accused as abs conder. The case is now subjudiced in the said Hon’ble Court in case No. GR 450/ 2001. The Supdt. of Police, Kokrajhar vide his leter No. KJR/Crime/9/2005/5203 d td 29-08-05 granted a certificate stating that the accused Shri Chakreswar Taluk dar is absconding and the Hon’ble CJM, Kokrajhar has also issued order dated 21. 11.05 declaring the accused as prolonged absconder. Since the whereabouts of the said Shri Chakreswar Talukdar is not known and the Police/Court authority have also certified that the said Shri Chakreswar Talukdar is absconding and therefore, it is not reasonably practicable to hold oral enquiry under Rule-14 of CCS (CCA) Rules, 1965 against the said Shri Chakre swar Talukdar.
Arguments
(viii) Non-Bailable Warrant of Arrest as well as Proclamation & Attachment, iss ued by the Chief Judicial Magistrate, Kokrajhar, to apprehend the accused, Sri C Talukdar, too, proved futile as his whereabouts could not be found out. (ix) The Disciplinary Authority , therefore, decided to keep the petitioner’s husband as suspended. Though the suspension order was sent to the delinquent of ficial, through registered post, to his last place of duty as SPM, Bengtol SPO, the same was returned unserved with the remark, ’addressee absconded’. 3. In course of time, charges were framed and as the charge-sheet could not be served on the petitioner’s husband, an order was made, on 10-02-2006, by the disciplinary authority dismissing the petitioner’s husband from duty in terms of the provisions of Rule 19(ii) of the Central Civil Services (Classification, Conduct and Appeal) Rules, 1965, (hereinafter referred to as the CCS (CCA) Rules , 1965), read with Article 311 (2)(b) of the Constitution of India, dispensing w ith the requirement of holding of enquiry against Sri Talukdar on the charges, w hich had been framed against him, the enquiry having been dispensed with on the ground that it was not ’reasonably practicable’ to hold an enquiry in terms of R ule 14 of the CCS (CCA) Rules, 1965. 4. Subsequent to the dismissal of her husband from service, the respondent herein filed Original Application (in short, ’OA’) under Rule 19 of the CCS(CCA) Rules, which gave rise to OA No. 66 of 2009, wherein her case, briefly stated, was as under: Her husband, Sri Chakreswar Talukdar, had not been heard of since 17-07-2001 and , hence, he can be presumed to have not remained alive and that she apprehends t hat her husband had been kidnapped by the extremists for demanding money as Beng tol area had been affected by extremist elements and though she had lodged a mis sing report, in this regard, requesting the police to trace out her husband, the police had refused to entertain such a request on the plea that a case had alre ady been registered against her husband. This apart, the Chief Judicial Magistra te came to declare her husband as an absconder as late as on 20-06-2006; whereas the disciplinary authority, having treated the petitioner’s husband as an absco nder, dismissed him from service, without holding enquiry, as early as on 10.02. 2006, i.e., about four months before the petitioner’s husband was formally decla red as absconder by the Chief Judicial Magistrate, Kokrajhar. The petitioners herein, who were respondents in the OA, filed their writ 5. ten statement resisting the OA and pointing out that in the facts and attending circumstances of the case, the disciplinary authority was wholly justified and acted within the ambit of its powers in not holding the enquiry as envisaged by Rule 14 of the CCS (CCA) Rules, 1965, because the said Sri Talukdar had been fou nd absconding and it was not reasonably practicable to hold enquiry and that hav ing found the said Sri Talukdar responsible for misappropriation of Government m oney, he had to be dismissed and, hence, the order of his dismissal, passed, on 10-02-2006, may not be interfered with. 6. By order, dated 08-07-2010, the learned Tribunal, however, took the view that since the learned Chief Judicial Magistrate, Kokrajhar, had declared the p etitioner’s husband absconder as late as on 20.06.2006, the present respondent’s husband, Sri Talukdar, could not have been treated, on 10.02.2006, by the disci plinary authority, as absconder. This apart, according to the learned Tribunal, the disciplinary authority had not paid subsistence allowance during the period of suspension of Sri Talukdar, the charge-sheet had not been served on him and no opportunity of hearing had been accorded to him and, hence, his dismissal fro m service was wholly illegal and untenable in law. Aggrieved by the order, dated 08-07-2010, aforementioned, this writ peti 7. tion has been made, under Article 226 of the Constitution of India, by the petit ioners herein, who were, as already indicated above, respondents in the OA. With the help of this writ petition, the present petitioners, who were respondents i n the OA, have put into challenge the correctness and validity of the order, dat ed 08-07-2010, aforementioned, passed by the learned Tribunal, and seek issuance of appropriate direction or directions. 8. Presenting the case on behalf of the petitioners, Mr. H Buragohain, lear ned Central Government Counsel, submits that if the facts and circumstances, as were available before the disciplinary authority, on 10-02-2006 (when the order of dismissal of the respondent’s husband was made by the disciplinary authority) , are born in mind, it would be unfair and incorrect to say that the order, date d 10.02.2006, passed by the disciplinary authority, does not give sufficient rea son as to why the disciplinary authority considered that it was not ’reasonably practicable’ to hold an enquiry in terms of the requirements of Rule 14 of CCS (CCA) Rules, 1965, and as to why the order of dismissal had to be made without h olding enquiry. The learned Tribunal, according to Mr. Buragohain, learned Centr al Government Counsel, fell in serious error in considering the case against the present petitioners not in the light of the facts as were available before the disciplinary authority on 10-02-2006, when the impugned order, dispensing with t he enquiry and dismissing the respondent’s husband from service, was made inasmu ch as the learned Tribunal has passed the presently impugned order on the basis of the materials as became available, before the learned Tribunal, on the date of the passing of the order; whereas the correctness and/or legality of the orde r, dated 10.02.2006, which the disciplinary authority had passed, ought to have been considered in the light of the materials, which were available before the d isciplinary authority on the date of making of the order, dated 10.02.2006, afor ementioned. 9. In support of his submission that the petitioners had acted within the a mbit of their powers and with full justification in dismissing the petitioner’s husband by taking the view that it was not reasonably practicable to hold an enq uiry into the charges, which were framed against the respondent’s husband as reg ards his unauthorized absence from duty and also misappropriation of Government money, Mr. Buragohain has placed reliance on Union of India and others -vs- Tuls i Ram Patel, reported in (1985) 3 SCC 398. 10. Controverting the submissions made on behalf of the petitioners, Mr. Sik dar, learned counsel, submits that the learned Tribunal has clearly and correctl y noted, in its order, which stands impugned in the present writ petition, that the learned Chief Judicial Magistrate had declared the petitioner’s husband as a n absconder by order, dated 20-06-2006, whereas the disciplinary authority had p assed an order, dismissing the petitioner’s husband, as far back as on 10-02-200 6, treating the petitioner’s husband as an absconder, though until a declaration from the Chief Judicial Magistrate, Kokrajhar, was made to the effect that the respondent’s husband had been an absconder, he (i.e., the respondent’s husband) could not have been, and must not have been, treated and described by the discip linary authority as an absconder. 11. Before the declaration was made by the learned Chief Judicial Magistrate as regards the fact that the petitioner’s husband was an absconder, treating th e petitioner’s husband, as an absconder, by the disciplinary authority, was, con tends Mr. Sikdar, wholly illegal and untenable in law. Relying upon the decision in Tulsi Ram Patel (supra), Mr. Sikdar submits that Tulsi Ram Patel (supra) cle arly lays down that an order, dispensing with an enquiry on the ground that hold ing of the enquiry was not reasonably practicable, ought to have preceded the or der of dismissal; but in the case at hand, the order dispensing with the enquiry and dismissing the respondent’s husband from service, came to be made by a cons olidated order, passed on 10-02-2006. 12. As far as the learned Amicus Curiae is concerned, he has submitted that dispensing with enquiry on the ground that holding of enquiry was not reasonably practicable can be taken before the enquiry is commenced and the decision, disp ensing with the enquiry on the ground that it is not reasonably practicable to h old the enquiry, can be taken even after an enquiry has commenced. This apart, t he reasons, assigned by a disciplinary authority, for taking the view that it i s not reasonably practicable to hold enquiry is an act, which is justiciable in nature. Mr. Choudhury, learned amicus curiae, also submits that justification an 13. d/or legality or validity of an order, dispensing with a disciplinary enquiry, h as to be adjudged by referring to the facts and circumstances, which were in exi stence on the day, when the decision, not to hold enquiry, was taken on the grou nd that it was not reasonably practicable to hold the enquiry and that the corr ectness or validity of an order, dispensing with the enquiry, cannot be consider ed and determined with reference to a date or situation subsequent to the date, when the decision to dispense with the enquiry was taken. 14. Mr. Choudhury, learned amicus curiae, further submits that in the case a t hand, the petitioners do not appear to have committed any error, in the light of the decision in Tulsi Ram Patel (supra), in passing a consolidated order, on 10-02-2006, holding that it was not reasonably practicable to hold an enquiry an d also in dismissing the petitioner’s husband from service inasmuch as the enqui ry, in the absence of the petitioner’s husband, was, rightly concluded the disci plinary authority, not reasonably practicable. 15. While considering the present writ petition, it needs to be noted that d ismissal from service is, admittedly, a major penalty as specified in Clause (v) of Rule 11 of the CCS (CCA) Rules, 1965, and this major penalty cannot, in the light of the provisions of Rule 14 of CCS (CCA) Rules, 1965, be imposed on a del inquent employee without holding an enquiry inasmuch as Rule 14(i) clearly lays down that no order, imposing any of the penalties specified in clauses (v) to (i x) of Rule 11, shall be made except after an enquiry is held, as far as may be, in the manner provided in this Rule. Sub-Rule (1) of Rule 14 is reproduced belo w: (cid:28)14. PROCEDURE FOR IMPOSING MAJOR PENALTIES: (1) No order imposing any of the penalties specified in clauses (v) to (ix) of R ule 11 shall be made except after an enquiry held, as far as may be, in the mann er provided in this rule and rule 15, or in the manner provided by the Public Se rvants (Inquiries) Act, 1850 (37 of 1850), where such enquiry is held under that Act. (cid:29) (Empha sis is added) 16. However, Rule 19 of the CCS (CCA) Rules, 1965, provides for imposition o f major penalty without holding any enquiry, though enquiry is, otherwise, requi red by Rule 14 inasmuch as Rule 19 of CCS (CCA) Rules, 1965, lays down as follow s: (cid:28)19. Special procedure in certain cases: Notwithstanding anything contained in rule 14 to rule 18- (i) where any penalty is imposed on a Government servant on the ground of conduc t, which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied for reasons to be recorded b y it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules, or (iii) where the President is satisfied that in the interest of the security of t he State, it is not expedient to hold any enquiry in the manner provided in thes e rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Government servant may be given an opportunity of making repre sentation on the penalty proposed to be imposed before any order is made in a ca se under clause (i): Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule. (cid:29) (Emphas is is added) 17. A bare reading of Rule 19 clearly shows that whenever the disciplinary a uthority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an enquiry in the manner provided in the Rule s, the disciplinary authority may pass an order indicating such circumstances l eading to its conclusion that it is not reasonably practicable to hold an enquir y. 18. From a conjoint reading of Rule 14 and Rule 19, it becomes abundantly cl ear that ordinarily, a Government servant cannot be dismissed from service on th e ground of misconduct without holding an enquiry. This general rule is, however , subject to certain exceptions and one of the exceptions, which stands incorpor ated in Rule 19(ii), is where the disciplinary authority is satisfied, for reas ons to be recorded by it in writing, that it is not reasonably practicable to ho ld an enquiry in the manner provided in the rules. 19. The exception, as provided by Clause (ii) of Rule 19, is broadly in tune with Clause (b) of the Second Proviso to Clause (2) of Article 311 of the Const itution of India. For clarity of the purpose, Article 311 is reproduced below: (cid:28)311. Dismissal, removal or reduction in rank of persons employed in civil capac ities under the Union or a State.-(1) No person who is a member of a civil servi ce 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 autho rity 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 enquiry in which he has been informed of the charges against hi m and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such enquiry, to impose upon him any su ch penalty, such penalty may be imposed on the basis of the evidence adduced dur ing such enquiry and it shall not be necessary to give such person any opportuni ty of making representation on the penalty proposed: Provided further that this clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground of c onduct 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 enquiry; or (c) where the President or the Governor, as the case may be, is satisfied that i n the interest of the security of the State it is not expedient to hold such enq uiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such enquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such perso n or to reduce him in rank shall be final. (cid:29) (Emphasis is ad ded) From a cautious reading of Article 311, as a whole, and Clause (b) of th 20. e Second Proviso to Clause (2) of Article 311, in particular, it becomes abundan tly clear that no member of civil service of the Union or State or who holds a c ivil post, under the Union or State, can be dismissed or removed except upon hol ding an enquiry in which the Government servant is informed of the charges again st him and given reasonable opportunity of being heard in respect of the charges . This general rule, requiring hearing of the Government servant, on the charges , by holding an enquiry, is subject to the conditions as contemplated by the Sec ond Proviso to Clause (2) of Article 311. One of such exceptions is incorporated in Clause (b) of the Second proviso to Clause (2) of Article 311 of the Constit ution of India. 21. Clause (b) of the Second proviso to Clause (2) of Article 311 of the Con stitution of India clearly lays down that where the authority, empowered to dism iss or remove a person or to reduce him in rank, is satisfied that for some reas on, to be recorded by that authority in writing, that it is not reasonably pract icable to hold such enquiry, the enquiry may be dispensed with. 22.
Decision
In view of the above the undersigned, in exercise of powers conferred by Rule 19 (ii) of CCS (CCA) Rules, 1965 decided to finalize the Rule-14 case of S hri Chakreswar Talukdar without conducting oral enquiry. I have gone through the case very carefully and also examined all the re cords and relevant facts in the case and observed that the offence committed by Shri Chakreswar Talukdar is of serious nature and due to his misdeeds the depart ment had to sustain huge loss and valued customers of the department had to suff er during the period of unauthorized closing of the office. SO Shri Chakreswar T alukdar is not fit perodn retained in service and he deserves severe punishment. So orders are passed against Shri Chakreswar Talukdar as below. ORDER I, Shri R. Rabha, Supdt. of Post Offices, Goalpara Division, Dhubri here by order that Shri Chakreswar Talukdar, Ex-SPM, Bengtal S.O. and now under deeme d suspension be (cid:28)dismissed (cid:29) from service with immediate effect. (cid:29) 37. From a careful reading of the order, dated 10-02-2006, what clearly tran spires is that charges were framed against the respondent’s husband by the disci plinary authority in terms of Rule 14 of the CCS (CCA) Rules, 1965; but the enq uiry could not be held, because the respondent’s husband was found absconding an d the memorandum of charges could not be served on him. When a Government employ ee absconds and the charges cannot be served on him, it cannot be said that with out service of charges, the disciplinary authority is disempowered from taking a decision dispensing with the holding of the enquiry. The article of charges, as reproduced above, clearly reveal that the cha 38. rges were very grave and serious inasmuch as the charges relate to misappropriat ion of Government money and these accusations had not been refuted by the respon dent’s husband, because the charge-sheet could not be served on him. On 10-02-20 06, the disciplinary authority had, before it, the police report showing that t he respondent’s husband was an absconder. The disciplinary authority also had, before it, the materials showing that there was misappropriation of Government m oney by the respondent’s husband. In such circumstances, when the charges had no t been denied and disputed, because of unauthorized absence of the respondent’s husband, the holding of the enquiry, as contemplated by Rule 14, was not only un necessary, but was wholly impracticable inasmuch as without serving notice on th e respondent’s husband, the enquiry could not have been held and when the notice could not be served on respondent’s husband, the disciplinary authority had no option, but to dispense with the enquiry. 39. The disciplinary authority was, therefore, not wrong in recording in it s order, dated 10-02-2006, that since the whereabouts of the respondent’s husban d was not known and the police had certified that the respondent’s husband had b een absconding, it was not reasonably practicable to hold enquiry in terms of Ru le 14 of CCS (CCA) Rules, 1965, against the respondent’s husband and, therefore, the disciplinary authority decided to finalise the disciplinary proceeding by resorting to its power conferred by Rule 19(2) of the CCS (CCA) Rules, 1965, and , having found that the misconduct, committed by the respondent’s husband, was s erious in nature and due to his misconduct, the Department concerned had to sust ain huge loss and valued customers of the Department had to suffer, during the p eriod, when the post office remained closed, the respondent’s husband was not fi t to be retained in service and deserved the severe punishment of dismissal from service with immediate effect. We do not find that the order, so made on 10-02- 2006, suffers from any infirmity, legal or factual. 40. In the circumstances mentioned above, it is clear, for the reasons, whic h we have already discussed above, that the learned Tribunal seriously fell in e rror in allowing the OA. 41. No doubt, the respondent, as wife of the delinquent employee, or her dau ghter, would suffer from dismissal of Chakreswar Talukdar, the fact remains that the only question, which was required to be decided was whether dispensing with enquiry was legally valid in the facts and in the light of the then prevailing situation of the case at hand and when the answer to this question was in the af firmative, the act of dispensing with the enquiry, on the part of the disciplina ry authority, cannot but be regarded, as observed in Tulsi Ram Patel (supra), an act done in public interest and public good. 42. In the result and for the reasons discussed above, this writ petition su cceeds and the order, dated 08-07-2010, passed by the learned Tribunal, is hereb y set aside. 43. reciation for the valuable assistance rendered by the learned Amicus Curiae. Before parting with this writ petition, we place on record our great app In terms of the above observations and directions, this writ petition sh 44. all stand disposed of. 45. . No order as to costs.