'Hurried Invocation Of Art 311(2)(b)': Calcutta High Court Quashes A Dismissal Order For Want Of Reasons For Dispensing With Inquiry

A Division Bench comprising Justice Moushumi Bhattacharya and Justice Ajoy Kumar Mukherjee thus proceeded to quash the impugned orders of the Central Administrative Tribunal as well as the Appellate Authority and also directed the respondent authorities to release pensionary and other retirement benefits to the petitioner within a period of 6 weeks.

Background

The Court was adjudicating upon a plea by a 67-year-old widow of one late C. Mathai, a Sub-Inspector in the Andaman and Nicobar Police Department who had been dismissed from service on December 20, 2007 by the Director General of Police, Andaman and Nicobar Islands (Disciplinary Authority).

The issue in consideration before the Bench was whether Article 311(2)(b) of the Constitution of India could have been invoked by the Disciplinary Authority for summarily dismissing the petitioner's husband and whether the order could have been sustained by the Appellate Authority.

For context, Article 311 of the Constitution pertains to the dismissal, removal, or reduction in rank of any person employed in civil capacities under the Union or a State and mandates that no person who is a member of the aforesaid or holds a civil post under the Union or a State shall be dismissed or removed or reduced any 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 all the charges.

Observations

The Court observed that pursuant to the stipulations under Article 311(2) of the Constitution before dismissal it is mandatory to hold an inquiry and provide an opportunity of hearing. It was further held that an exception will only hold ground if it is impracticable to hold the inquiry and the onus is on the authority to record its satisfaction in writing as to the reason for the impracticability.

Enumerating further on the constitutional obligation under Article 311, the Court opined,

"The underlying presumption in Article 311 is that dismissal, removal or reduction in rank of a person employed in a civil capacity under the Union or State is not to be taken lightly or done without following due process. The threshold to prove dispensation of due process and compliance with the principles of natural justice is high in all matters but particularly heightened in Article 311(2)(b) of the Constitution of India. In essence, the constitutional obligation of recording reasons for departing from the norm must strictly be conformed with."

Pertinently, the Bench also remarked that the order of dismissal passed by the Disciplinary Authority in the instant case also reflects the existing ethics of society in general and the police force in particular.

Emphasizing that the invocation of power under Article 311 (2)(b) of the Constitution has been based on unproved presumptions, the Court remarked further,

"Not a single instance has been cited or relied upon to show that the "intimidation or common experience" with regard to witnesses deposing against delinquents actually took place with regard to the petitioner's husband. The justification is that "this kind of intimidation is a common tactic adopted by the unscrupulous police personnel". There is no reference to whether any such threat or intimidation was made by the petitioner's husband on proposed or probable witnesses. The conclusion arrived at of "compelling circumstances" for invoking Article 311(2)(b) is wholly unsupported by facts or even a credible justification."

The Court also noted that the impugned order of the Appellate Authority merely parrots the view of the Disciplinary Authority and that too after 11 years as the appeal was filed back in January 2008.

The Bench also observed with dismay that it is 'shocking' that the Appellate Authority had failed to refer to the judgment of the Special Court whereby the petitioner's husband was found not guilty of the offence punishable under The Prevention of Corruption Act, 1988.

Dismissing the contention that the holding of a departmental inquiry was not possible as mandated under Article 311(2)(b) of the Constitution since the complainant had turned hostile under the influence of the petitioner's husband, the Court observed,

"The position taken is that the departmental inquiry was not feasible since the complainant turned hostile reflecting the influence of Mr. Mathai. This is entirely unacceptable to us since no connection has been established between the power exerted by the petitioner's husband, if at all, and the complainant turning hostile. In any event, the complainant turning hostile is a event subsequent to the order of dismissal and hence cannot be a material reason for circumventing due process before passing the order of dismissal."

Accordingly, the Court set aside the order of the Disciplinary Authority dated 20th December 2017 and the order Appellate Authority dated 10/17th September 2018.

In order to do complete justice to the petitioner, the Court also directed the respondent authorities to release the pensionary and other retirement benefits which would have accrued to the petitioner's husband on his date of retirement within a period of six weeks after taking into account that she was a widow who had suffered the agony of her husband's unjust dismissal.

Case Title: Kunjumole v. The Union of India and others

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