1. In this application filed under Section 19 of the Administrative Tribunals Act, 1985 the applicant Sri Abdul Latif who was a peon in the office of the Income Tax Officer, Raigarh has challenged the legality and propriety of the order passed by the third respondent on 30.12.87 (A8) dismissing him from service in purported exercise of powers vested on him under CCS CCA Rules, 1965 dispensing with the enquiry as he was satisfied that it was not reasonably practicable to hold an enquiry into his misconduct of assaulting Sri K.K. Dhand, Tax Assistant Ward Circle II, Income Tax Office, Raipur along with his accomplice on 16.12.1987 in the office premises of the Inspecting Assistant Commissioner of Income Tax, Range II, Raipur and that by doing so he had exhibited conduct unbecoming of a Government servant "violating Clause iii of Sub-clause (i) of Rule 3 of CCS (Conduct) Rules, 1964", as also the order of the second respondent, the appellate authority refusing to entertain his appeal (A1) on the ground that such appeal docs not lie against this order Annexure A8.
2. The applicant challenges the order of the third respondent dismissing him from service dispensing with the enquiry on the ground that the order has been made by exercising the power mala fide with a view to throw the applicant out of service on account of his personal animity and vengeance towards him. The following are the allegations in that regard in brief: - 3. The applicant who was the Executive Committee member of a Trade Union during 1986-87 and was an active worker. While he was posted at Raipur having received several complaints of irregularities etc.
committed by the Inspecting Assistant Commissioner (Sri D.P. Kar who issued the impugned order Annexure A8)wrote a letter to the Secretary of the Association asking him to look into the matter. A copy was sent to Sri D.P. Kar also. Sri D.P. Kar got annoyed and sent Annexure A41 letter to the Secretary of the Union on 19th March 1987 making a query whether a member of the Union could make complaints about a superior officer and threatening that severe departmental action would be taken against the applicant. On 27.3.87 the applicant wrote Annexure A40 letter to the second respondent, Commissioner of Income Tax with copies to the Central Board of Direct Taxes and Central Bureau of Investigation alleging corrupt practices of Sri D.P. Kar. Very shortly thereafter the applicant was served with two memos A42 and A43 by the Income Tax Officer and on 3.4.87 Sri D.P. Kar, Inspecting Asstt.
Commissioner transferred the applicant to Raigarh with special instruction that the applicant should join at Raigarh on 6.4.87. He was relieved on 3.4.87 itself. The applicant was not given any joining time at all, The General Secretary of the Association on 22.4.87 wrote a letter to the third respondent (A47) complaining about harassment of the applicant by Mr. D.P. Kar. The applicant on transfer could join at Raigarh only on 15.4.87. On 23.4.87 the applicant wrote a letter to the Commissioner of Income Tax, Jabalpur stating that he was transferred to Raigarh by Sri D.P. Kar because he had sent complaint about him, that Sri Kar was harassing him and to avoid future harassment of the applicant by Sri D.P. Kar requesting him that the applicant may be transferred to any place out of the jurisdiction of Sri D.P. Kar, I.A.C (A48). Again on 4.5.87 the applicant made representation to the second respondent complaining of harassment by the IAC (D.P. Kar) and requesting for a personal hearing (A49). On 8.5.87 the applicant received A50 memo stating that the IAC desired to have applicant's explanation as to why he did not join at Raigarh on 6.4.87 itself. On 19.5.87 the second respondent sent a letter A52 to IAC (D.P. Kar) asking him to get some details from the applicant in the matter of complaints made by the applicant against Sri Kar (A52). The applicant wrote to the Commissioner that he would directly send him the details because if he sent them through Sri D.P. Kar it may not be forwarded.
The IAC Sri Kar on 29.6.87 conveyed the adverse entry in applicant's ACR(A38). The request of the applicant for transfer out of jurisdiction of Sri D.P. Kar was turned down by Commissioner and this was conveyed to the applicant on 26.6.87(A54). The applicant inferring that the Commissioner of Income Tax, Jabalpur is favouring Sri D.P. Kar in his harassment against the applicant on 14.7.87 gave a notice of hunger strike. On 20.7.87 the Commissioner sent A37 letter to the applicant directing him to send details and documents in proof of his allegations against D.P. Kar. The applicant sent A36 letter stating that he would produce proof of a person who would give evidence about construction of house by D.P. Kar. The applicant was further harassed by Sri D.P. Kar and therefore, finally the applicant went to Jabalpur seeking a personal hearing by the Commissioner in the matter of harassment by Sri D.P. Kar. However, the permission was refused by letter A14 dated 10.12.87 on the ground that the IAC (Mr. D.P. Kar) has not permitted such meeting. Therefore on 10.12.87 the applicant gave a written submission to the Commissioner of Income Tax pleading for his intervention and save him from the torture of Sri D.P. Kar, the Inspecting Assistant Commissioner. It was in the background of the facts and circumstances that the impugned order was passed by Mr. D.P.Kar. The applicant prays that the mala fide order may be set aside and he be reinstated with all consequential benefits.
4. The respondents in the reply statement do not dispute the issue of various orders and letters as also receipt of the letters and complaints by the applicant as mentioned in the application. About A47 letter of the Secretary of the Association to Commissioner of Income Tax, Jabalpur regarding which it is only stated "it seems the letter referred to by the applicant has not been received in CIT s office." However, the mala fides alleged has been refuted and the impugned orders are sought to be justified. The order Annexure A8 of the third respondent dismissing the applicant is sought to be justified in reply to para 4 xxxiv of the O. A. It is worth while to reproduce this part of the reply statement: "Para 4(xxxiv) Not admitted. There is no mala fide intention on the part of Shri D.P. Kar. In fact, the Disciplinary action was taken against him and he was dismissed from service because of an incident of assault by him, on Shri K.K. Dhand, UDC on 16.12.87. He has not made any reference to this incident of assault committed by him, but has stated irrelevant details regarding complaints filed by him against Shri D.P. Kar and his transfer from Raipur to Raigarh in April, 1987. Prior to his transfer in April 1987 Shri Latif was working continuously for a number of years and his transfer was overdue. On the 16th December, 1987 at about 5.30 p.m. the applicant who I was working as a peon at the Income Tax Office, Raigarh at that time, entered the premises of IAC, Range-2, Raipur and assaulted Shri K.K. Dhand, UDC causing grevious injuries to him. The incident occurred at about 5.30 p.m. in the evening when the employees were returning from the office and was witnessed by a number of staff. The IAC, Range-2 had visited Shri K.K. Dhand in the hospital and had found bleeding injuries on his nose and eyes. An F.I.R. was lodged to the police on the same evening. Shri D.V. Singh, ITO E-Ward, Raipur was asked by the IAC to make a preliminary enquiries. The ITO recorded the statement of seven eye-witnesses to the incident which are on record. The statement of these witnesses make it very clear that the applicant along with some outsiders had assaulted Shri K.K. Dhand on 16.12.87 at 5.30 p.m. when Shri Dhand was starting his scooter to return home. The blood stains on the ground were there till next morning. On that day the staff of IAC, Range-2 and Circle-2 submitted a petition 1 before the IAC, Range-2 stating that the life of members of staff was unsafe due to assaulting attitude of the applicant and his friends who were outsiders to the Deptt.
The services of the applicant has been terminated provoking the provisions of the Rule 19(2) of the CCS(CCA) Rules and provisions (b) to Clause (2) of Article 311 of the Constitution of India. Rule 19 of the CCS(CCA) Rules empowers the Disciplinary Authority to pass an order of penalty where he is satisfied for reasons recorded in writing, that it is not reasonably practicable to hold an enquiry in the manners provided in these rules. The proviso (b) of Clause (2) of Article 311 of the Constitution of India also empowers the appropriate authority to dismiss or remove a person or reduce his rank of such authority is satisfied, because of reasons to be recorded in writing that it is not reasonably practicable to hold an enquiry. Clause (2) of Article 311 provides that if in respect of any person such a question arises whether it is reasonably practicable to hold such an enquiry is referred to in Clause (2) the decision therein of the authority empowered to dismiss or remove such person or; to reduce his rank shall be final. In the case of the applicant, the IAC, Range-2, Raipur who was the proper Disciplinary Authority has recorded an elaborate note on 30.12.87 giving the reasons because of which he was satisfied that it is not reasonably practicable to hold an enquiry. This note vividly describes the incident of assault and misconduct by the applicant over a number of years prior to the incident of assault on Shri K.K. Dhand and the details of disciplinary proceedings and enquiries instituted against the applicant from time to time. The reasons recorded are very sound and adequate to satisfy the conditions stipulated in Rule 19(2) of the CCS(CCA) Rules and Article 311 (2) (b) of the Constitution of India.
In view of above, the disciplinary action taken by the Respondents is in order and no interference is called for." 5. Mr. M.N. Banerjee, the learned Counsel appearing for the applicant argued that as the allegation that the applicant had made complaints against the applicant about some corrupt practices, that the applicant made several complaints to the second respondent of harassment of the applicant by Sri D.P. Kar, and requested that the applicant might be transferred out of the jurisdiction of Sri D.P. Kar which the second respondent did not agree, that the request of the applicant to meet the Commissioner of Income Tax to personally represent his grievances of harassment by Mr. Kar on 10.12.87 was not acceded to as the IAC Mr. Kar did not permit it, and that the applicant gave notice of hunger strike for the alleged reason that the Commissioner was favouring the IAC who harassed the applicant are not denied by the respondents in the reply statement, the reasonable conclusion that can be safely drawn is that the IAC Mr. Kar who imposed the capital penalty of dismissal from service without holding an enquiry as required in accordance with the provisions of Rule 14 of the CCS(CCA) Rules did not act fairly and in fact was abusing his powers. The learned Counsel further argued that the alleged assault was a figment of imagination cooked up because the applicant made some complaints about Mr. Kar and that there was no situation at all which would have justified invoking powers of Disciplinary Authority under Rule 19(2) of the CCS(CCA) Rules. He argued that the Commissioner of Income Tax, the appellate authority also did not render justice to him. The Counsel argued that it is one of the rare and cruel abuse of power to wreck personal vendetta.
6. Mr. Da Silva, the Sr. Central Government Standing Counsel produced for our perusal a note alleged to have been prepared before the impugned order A8 was passed by the third respondent. He argued that as the situation did not admit of holding an enquiry, the third respondent was justified in invoking the powers under Rule 19(ii) of the CCS(CCA) Rules and no interference is called for.
7. On a close scrutiny of the pleadings and the documents as also the reason recorded in the file by the third respondent allegedly before passing the impugned order Annexure A8, we are not convinced at all that the third respondent acted fairly and justifiably. In the back ground of the fact that the applicant had made complaints of corruption against the third respondent, that the applicant thereafter complained to the Commissioner of Income Tax of harassment by Sri D.P, Kar repeatedly, that as the Commissioner of Income Tax did not agree to transfer the applicant out of the charge of Mr. D.P. Kar even though the applicant requested that to save him from the harassment of Sri D.P. Kar he may be transferred, that the applicant gave notice for a hunger strike for that reason, that the applicant's request for permission to meet the Commissioner to represent his grievances was not granted by Sri D.P. Kar do not to our mind disclose a fair and unbiased mind of a disciplinary authority. We have gone through the reason stated to have been recorded by Sri D.P. Kar, third respondent before passing the impugned order A8. It narrates that he heard that at 5.30 p.m, the applicant inflicted injury on Mr. Dhand, that Sri Dhand was taken to hospital, that he saw Mr. Dhand in the hospital, that Mr.
Dhand had bleeding injury on the nose, that the ITO recorded statement of seven witnesses, that the applicant had been departmentally proceeded against thrice previously for misconduct of the same nature, that once penalty was imposed and that the applicant may threaten witnesses and therefore it is not normally practicable to hold an enquiry. We are not satisfied that the circumstances mentioned in the note would enable a reasonable man to come to the conclusion that an enquiry was not reasonably practicable. There is no statement in the record that the applicant threatened the disciplinary authority.
Therefore, there would not have been any difficulty in framing a charge. The provision of Rule 19(2) of the CCS(CCA) Rules are to be invoked when it becomes reasonably not practicable. It can be done after framing charge and even during the course of enquiry if situation warranting such step arises. Therefore, there was no justification for not even framing a charge, Further the allegation that on a previous occasion when the applicant was proceeded departmentally the very witness did not give evidence as the applicant threatened the witness is no reason to conclude that the applicant might threaten the witnesses in this case also. To hold that it is not reasonably practicable to conduct an enquiry for reason of threat to the witness such a threat should be there. A conclusion by the Disciplinary Authority that the applicant might threaten witness is not a sound reason to dispense with the enquiry. In this regard it is worthwhile to quote para 6 of the Government of India Instruction contained in G.I., Dept. of Pers. & Trg. O.N. No. 11012/11/85-Est. (A) dated the 11th November, 1985 and 4th April, 1986.
"6. There are two conditions precedent which must be satisfied before action under Clause (b) of second proviso is taken against a Government servant. These conditions are - (i) There must exist a situation which makes the holding of an inquiry contemplated by Article 311(2) not reasonably practicable.
What is required is not holding of inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate all the cases in which it would not be reasonably practicable to hold the inquiry.
Illustrative cases would be- (a) Where a civil servant, through or together with his associates, terrorizes, threatens or intimidates witnesses who are likely to give evidence against him with fear of reprisal in order to prevent them from doing so; or (b) Where the civil servant by himself or with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that the officer is afraid to hold the inquiry or direct it to be held; or (c) Where an atmosphere of violence or of general indiscipline and insubordination prevails at the time the attempt to hold the inquiry is made.
The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and is, therefore, bound to fail.
It is important to note that the circumstances of the nature given in 'the illustrative cases, or other circumstances which make the disciplinary authority conclude that it is not reasonably practicable to hold the inquiry, should actually subsist at the time when the conclusion is arrived at. The threat, intimidation or the atmosphere of violence or of a general indiscipline and insubordination, for example, referred to in the illustrative cases, should be subsisting at the time when the disciplinary authority arrives at his conclusion. It will not be correct on the part of the disciplinary authority to anticipate such circumstances as those that are likely to arise, possibly later in time, as grounds for holding that it is not reasonably practicable to hold the inquiry and, on that basis, dispense with serving a charge-sheet on the Government servant.
(ii) Another important condition precedent to the application of Clause f b) of the second proviso to Article 311(2) or Rule 119(11) of the CCS (CCA) Rules, 1965, or any other similar rule is that the disciplinary authority should record in writing the reason or reasons for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2) or corresponding provisions in the service rules. This is a constitutional obligation and, if the reasons are not recorded in writing, the order dispensing with the inquiry and the order of penalty following it would both be void and unconstitutional. It should also be kept in mind that the recording in writing of the reasons for dispensing with the inquiry must precede an order imposing the penalty. Legally speaking, the reasons for dispensing with the inquiry need not find a place in the final order itself, though they should be recorded separately in the relevant file. In spite of this legal position, it would be of advantage to incorporate briefly the reasons which led the disciplinary authority to the conclusion that it was not reasonably practicable to hold an inquiry in the order of penalty.
While the reasons so given may be brief, they should not be vague or they should not be just a repetition of the language of the relevant rules." 8. As there was no threat to the IAC, the IAC should have framed the charge. The notes containing decision does not show that the applicant had threatened witnesses. Therefore, we are of the view that there was no justifiable reason for the third respondent to dispense with the enquiry and dismiss the applicant.
9. The Disciplinary authority has to act fairly and justify. The statutory powers, even to dismiss an employee are vested in the competent Disciplinary Authority with the presumption that the important powers would be exercised by it in a fair and judicial manner. The principle to be borne in mind by the Courts while an order under Sub-clause (b) of 2nd proviso to Article 311(2) of the Constitution is challenged has been laid down by the Apex Court in its celebrated ruling in Union of India and Another v. Tulsiram Patel, AIR 1985 SC 1416=1985(2) SLJ 145. It is profitable to reproduce paragraph 137 of the judgment: "137. Where a government servant is dismissed, removed or reduced in rank by applying Clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether Clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by Clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the Court. The Court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it come to conclusion that it was not reasonably practicable to hold the inquiry. If the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by Clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the Court will not, however, sit in judgment over them like a Court of first appeal in order to decide whether the reasons are germane to Clause (b), the Court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a Courtroom, removed in time from the situation in question.
Where two views are possible, the Court will decline to interfere." 10. Our discussion above of the decision taken by the third respondent and the circumstances prevailing would clearing show that the impugned order Annexure A8 was issued abusing the power.
11. In the conspectus of facts and circumstances and the position of law as discussed above, we have no hesitation to hold that the exercise of power under Rule 19(2) of the CCS(CCA) Rules by the third respondent to dismiss the applicant dispensing with the enquiry by impugned order Annexure A8 cannot be sustained. Since Mr. D.P. Kar is not impleaded in this case in his personal capacity, we restrain ourselves from making any observation about mala fides. It is sufficient to state the power is seen to have been exercised without justifiable reason. It is also seen that the decision has been taken in undue haste. It is pertinent to note that in the impugned order that the provision of CCS(CCA) Rules under which he allegedly derived power to dispense with the enquiry has not been stated. It is also seen that the time at which the alleged assault was made by the applicant also is not made mention of. However, in the notes containing the decision the time and date of occurrence is mentioned. It has also been mentioned that powers under second proviso to Article 311(2) is being invoked. This causes suspicion as to whether the decision recorded was actually recorded before issuing the order of dismissal.
12. The appellate authority has refused to exercise jurisdiction to deal with the appeal on the ground that the decision taken by the third respondent could not be challenged in appeal or revision. Since the powers under CCS(CCA) Rules alone was exercised by the third respondent, the appellate authority has jurisdiction to decide the appeal. Even otherwise the appellate authority can entertain an appeal.
It is provided in Government of India instructions referred to supra.
13. In the result, we allow the application and set aside the impugned orders Annexure A1 and A8 and direct the respondents to reinstate the applicant in service forthwith with all consequential benefits and to pay him the entire back wages for the period he was kept out of service within a period of two months from the date of receipt of a copy of this order. There is no order as to costs.