B.K. Mehta, J.
1. Since this group of petitions arises out of identical facts and raises common questions of law, I intend to dispose them by this common judgment.
2. Petitioner of Special Civil Application No. 683 of 1980 is Head Constable and President of Police Head Constables Union, Headquarters Ahmedabad and has put in about 36 years of service. He is a Harijan by casts and it is his grievance that respondent No. 2, who is the Deputy Commissioner of Police, Shahibag, had a grouse against him since the petitioner had made an application on 25th February 1980 to the Governor with a copy to the Inspector General of Police about the unseemly conduct of respondent No. 2 in abusing him in the morning of 22nd February 1980 in his disturbed state of mind due to formation of the Union. He alleges that the higher authorities were biased against all those members of the police staff who were associated with the Union activities. Respondent No. 2, therefore, by his order of March 17, 1980 dismissed the petitioner from service with immediate effect for the conduct attributed to him as detailed in the Appendix to the said order which was unbecoming of a member of the police force without holding disciplinary inquiry prescribed under the Rules purporting to act in exercise of the power conferred on him under Clause (b) of the second proviso to Article 311(2) of the Constitution, since in his opinion for the reasons separately recorded by him in writing, it was not reasonably practicable to hold inquiry as contemplated under Article 311(2). The petitioner has challenged the said order on various grounds urged in the petition.
3. Petitioner of Special Civil Application No. 684 of 1980 is a Police Constable and has put in about 15 years of service. He is an office bearer of the Police Constables Association which has aggrieved the respondent No. 2 who has developed a bias against all the members of the Police Staff associated with the Union activities. Respondent No. 2, who is the Deputy Commissioner of Police, Headquarters Ahmedabad, by his order of 17th March 1980 dismissed the petitioner from the police force of the State of Gujarat with immediate effect for the conduct totally unbecoming of a member of the police force as attributed to the petitioner and detailed in the Appendix to the said order without holding any inquiry since in his opinion for reasons recorded separately by him it was not reasonably practicable to hold inquiry contemplated by Article 311(2) of the Constitution. The petitioner has, therefore, moved this Court for appropriate writs, orders and directions to quash and set aside the said order.
4. Petitioner of Special Civil Application No. 685 of 1980 is a Head Constable in Ahmedabad City, Police Force and has put in about 28 years of service and happened to be Vice-President of the Ahmedabad Head Constables Association at all the relevant time. Respondent No. 2 had a grouse against the petitioner since he was elected as President of the Union and, therefore, he was disturbed on account of the Union activities. Respondent No. 2, therefore, by his order of 17th March 1980 dismissed the petitioner from the police force of the State of Gujarat with immediate effect for the conduct attributed to him as detailed in the Appendix to the said order which, in his opinion, was unbecoming of a member of the police force, without holding any inquiry since for the reasons recorded by him, it was not practicable to hold such an inquiry as envisaged under Article 311(2) of the Constitution. The petitioner has, therefore, moved this Court for appropriate writs, orders and directions to quash and set aside the said order.
5. Petitioner of Special Civil Application No. 685 of 1980 is an Armed Constable in the Ahmedabad City Police Force and has put in about 16 years of service. He is a member of the Executive Committee of the Police Constable Union and as such respondent No. 2 had a group against him for his Union activities. Respondent No. 2, therefore, by his order of 17th March 1980 dismissed the petitioner from the police force of the State of Gujarat with immediate effect for the conduct as detailed in Appendix to the said order which, in his opinion, was unbecoming of a member of the police force, without holding any inquiry as envisaged under Article 311(2) of the Constitution, as the same was not practicable for the reasons recorded by him separately. The petitioner challenged this order on the various grounds stated in the petition and prays for appropriate writs, orders and directions to quash and set aside the said order and the consequential relief's.
6. On behalf of the petitioners, the following contentions have been urged by their learned Advocate.
(1) The impugned orders are mala fide and in colorable exercise of the power and, therefore, void and ineffective inasmuch as they smack ex facie of victimisation of the petitioners for their recognised Union activities.
(2) The impugned orders are had in law and void inasmuch as they are in clear violation of the mandatory provisions of Section 26 of the Bombay Police Act, 1951 inasmuch as no opportunity has been given to the respective petitioner before the proposed penalty is inflicted and without recording any reasons in that behalf.
(3) The impugned orders are bad in law and void inasmuch as they are made on extraneous considerations since the conditions precedent for exercise of the power under Clause (b) of the Second proviso to Article 311(2) did not exist in fact.
7. These contentions have been sought to be repelled on behalf of the State Government by urging that the removal of the constitutional protection by exercise of the power under Clause (b) of Second Proviso to Article 311(2) of the Constitution deprives the aggrieved officer from the umbrella of all protections available either under the Constitution or the relevant statute governing his conditions of service. It was further urged on behalf of the State Government that the decision as to impracticability of inquiry is left to the disciplinary authority and it is; immune from judicial review of the court if and when challenged. The contention about mala fides was stoutly refuted by pointing out that it was only in the cases of the four petitioners that the action was taken though there were number of other office bearers of various Unions of the police staff as well as other individual members of the staff who have taken part in agitation and pursued police union activities.
8. Since the impugned orders in all these petitions are in identical terms, except so far as they relate to the objectional activities of each of the petitioners, I am setting out the material part of the order issued to the petitioner of Special Civil Application No. 683 of 1980 as under:
Whereas you Shadkaran Sheduram being a member of the (Ahraedabad City) Police force in the State of Gujarat holding the rank of Armed Head Constable are a member of the Civil Service of the State:
And whereas you are holding your office during the pleasure of the Governor:
And whereas you have been found to have indulged in the activities mentioned in the Appendix to this order:
And whereas the said activities constitute conduct so totally unbecoming of a member of the Police Force of the State as to render you unfit to be retained as such member;
And whereas I.R.C. Dimri, who am holding the post of Deputy Commissioner of Police, Armed Force & Training, Ahmedabad city, which is not subordinate to the authority winch appointed you, am satisfied under Sub-clause (b) of second proviso to Clause (2) of Article 311 of the Constitution of India that for the reasons separately recorded by me in writing, it is not reasonably practicable to hold the inquiry contemplated by the said Clause (2)
Now, therefore, I.R.C. Dimri, Dy. Commissioner of Police, Armed Forces & Training, in exercise of the powers conferred on me by sec 25 of the Bombay Police Act, 1951 read with Section 10 of the said Act, hereby dismiss you from service as a member of the Police Force of the State of Gujarat with immediate effect.
9. I will deal with' the contentions in the reverse order:
Re : Contention No. 3:
10. Article 311(3) no doubt gives finally 'to the decision of the Disciplinary Authority if a question arises whether it is reasonably practicable to hold such inquiry as envisaged in Article 311(2). On plain reading of Sub-article (3) it is clear that in a case where a question arises whether it is reasonably practicable to hold inquiry, the question cannot be determined by any authority other than the Disciplinary Authority and his decision is final in the sense that it cannot be appealed against or agitated before the higher authorities-departmentally or otherwise. Merely because finally is given to such decision, it cannot be said that it is immune from the judicial review of the Court, if it is challenged and more so when it is challenged by invoking extra ordinary jurisdiction of the High Court under Article 226 of the Constitution. A Full Bench of the Calcutta High Court in Mrinal Kanti Das Burman and Ors. v. State of W. Bengal and Ors. 1977 LAB.I.C. 628 was concerned with dismissal of a Government servant by the Governor of West Bengal without holding any inquiry in exercise of his powers under Clause (c) of the second proviso to Article 311(2) of the Constitution. A contention was urged that the decision of the Governor is not justifiable since otherwise it would amount to substitution of the view of the Court for that of the Governor. Rejecting this contention, it was held by the Full Bench that the satisfaction contemplated under the said provision being a subjective one, Courts of Law cannot substitute its view for those of the executive as to whether or not it would be expedient in the interest of the security of the State to dispense with the inquiry under Article 311(2); none-the-less, the Court is entitled to inquire whether the conditions precedent to the formation of such satisfaction have any factual basis or whether the executive had acted in good faith, or whether the relevant material was present to 'warrant such an action.
11. A Division Bench of the Bombay High Court in Mohomed Tayum v. Union of India and Ors. 1977 Lab. I.C. 1590 was concerned with a case of dismissal of a railway employee without holding an inquiry in exercise of power under Rule 14(H) of the Railway Servants (Discipline and Appeal) Rules, 1958. Rejecting the contention urged on behalf of the Railways that in either case of the exercise of power under Rule 14(ii) of the said Rules or under Clause (b) of the second proviso to Article 311(2) of the Constitution, the decision as to the impracticability of inquiry and reasonableness thereof is left of the dismissing authority and it would be not open to the Court to substitute its own decision or judgment in place thereof, the Division Bench, speaking through Deshpande (as he then was) held as under:
14. ...That such a decision is left to such an authority is, no doubt, true. But it is not immune from the judicial review of this Court if and when challenged. We have discussed and indicated how the considerations weighing with the respondent No. 3 are misconceived and irrelevant. Such decision deprives the public servant of the constitutional protection to his tenure of service as also to his good name and reputation. The safeguards provided against wrongful dismissal are as much in a the interest of the delinquent as of the good administration. That respondent No 3 or the reporting inspectors may have acted without malice and with lofty motives is besides the point. The readiness with which the respondent No. 3 proceeded to act under Rule 14(ii) and rely on the reports of the Vigilance Inspectors in both the cases, betrays lack of appreciation of the true scope of Rule 14(ii) the importance of the procedural safeguards afforded to the public servants and the responsibility of the disciplinary authority as adjudicator in such matters. Impracticability of enquiry may result from the peculiarity of the incident in particular or of the situation existing in general, making it impossible or useless to collect or produce any other material and give opportunity and hearing to the delinquent. Reasonableness of such impracticability has to be tested by balancing it against the constitutional safeguards secured for the public servants. No inflexible test of impracticability or its reasonableness can be evolved. This can admit of no hard and fast rules. Proper investigation and fair enquiry is expected to be the rule, and dispensation thereof, an exception to be resorted to only when collection and production of evidence and enquiry is not possible....
15. ...Any attempt to whittle down such security or dispensation of the safeguards will not be justified unless the circumstances enumerated in the proviso to Article 311(2) and incorporated under Rule 14(ii) are strictly found to exist.
12. In R.K. Misra v. The General Manager, Northern Railway, New Delhi and Anr. 1977 Lab. I.C. 643, the learned Single Judge of the Delhi High Court was concerned with dismissal of six railway employees without having been afforded an opportunity of hearing before the impugned orders of dismissal made against them under Rule 14(H) of the Railway Servants (Discipline and Appeal) Rules, 1958. The learned Single Judge addressed himself, in the first place, to the question, whether the orders of the Disciplinary Authority to the effect that it was not reasonably practicable to hold inquiry could be said to be valid in law. It was no doubt the common ground that no separate orders as envisaged by said rule were made in any of those cases recording the reasons as to how the holding of inquiry was reasonably not practicable and the orders dispensing with the inquiry were made as a part of the penalty orders of dismissal. The learned Single Judge considered the width and scope of the words 'is not reasonably practicable to hold an inquiry in the manner provided in these rules' and he was of the opinion that the words must be strictly construed in the context of the two-fold object of the inquiry which is, in the first place, to find out the truth and, secondly, to associate the delinquent servant in the process of inquiry by giving him an opportunity of hearing. On true construction of the said words, he was of the opinion that impracticability in holding the inquiry must, therefore, imply some physical or legal impediment to the holding of an inquiry. The nonavailability of witnesses or their unwillingness to support the charge cannot be relevant to that condition, namely, impracticability of holding an inquiry. The learned Judge, therefore, struck down the orders in bases where the inquiry was found to be not feasible since witnesses were not likely to come forward to give statements in the inquiry as they were under the threats of the co-workers. The learned Judge, therefore, held that the inquiry could not be said to be validly dispensed with the result that the delinquent servants were entitled to the protection of the rules enjoining the regular inquiry.
13. I am in respectful agreement with the view which these three High Courts have taken that though it is only for the Disciplinary Auth ority to decide as to whether it is reasonably practicable to hold an inquiry or not, and his decision is final; none-the-less, it is not immune from judicial scrutiny whether conditions precedent for exercise of the power of dispensation of the prescribed inquiry that it is not reasonably practicable to hold the inquiry is satisfied. Unless this condition is satisfied, the Disciplinary Authority cannot exercise the power dispensing the inquiry and since this is a power in nature of exception to the general obligation of holding a regular inquiry, it should be strictly construed. If the Disciplinary Authority has acted in colourable exercise of the power or has acted on irrelevant or non-existent material, the ultimate decision to dispense with the inquiry is vitiated and liable to be struck down.
14. In view of this legal position I have to consider, whether the respondent- State has been able to establish before this Court that the condition precedent for exercise of the power under Clause (b) of the Second Proviso to Article 311(2) has been satisfied. I have, therefore, to examine the finding made by the Disciplinary Authority that it is not practicable to hold an inquiry. It is really sad that no attempt has been made in the affidavit-in-reply filed on behalf of the State Government by the Disciplinary Authority as to what were the grounds or materials which weighed with the said authority in reaching the conclusion that it was not practicable to hold the inquiry. The respective petitioners have, in paragraphs 12, 13 and 15 averred that till this condition precedent is satisfied, the Disciplinary Authority cannot dispense with the regular inquiry and the satisfaction of the authority about the impracticability to hold inquiry must be based on circumstances which must be real, relevant and substantial. In the impugned orders, the grounds on which this satisfaction is arrived at have not been stated but it is recited, inter alia, that the reasons for this satisfaction have been separately recorded. In paragraph 10 of the affidavit-in-reply of the Disciplinary Authority-respondent No. 2 herein, it has been, inter alia, stated as under:
10. With reference to the contents of paragraphs 12 to 15 of the petition, I reiterate that it was after considering all the facts and circumstances of the case that 1 was personally satisfied that it was not reasonably practicable to hold the inquiry against the petitioner. 1 reiterate that the said satisfaction was recorded in writing in my file before I passed the order of dismissal dated 17th March 1980 (Annexure 'A').
I deny that if such powers are allowed to be exercised, it will give handle to eliminate employees who are allegedly not in the good books of the authority or that it will lead to abuse of powers. I beg to point out that there are thousands of police personnel participating in the lawful authorities of various police associations and various office bearers of such associations. The very fact that apart from the present petitioner and three others no action has been taken against any person is sufficient to show that the impugned action was not taken to punish for lawful union activities.
I further submit that the reasons for arriving at the aforesaid satisfaction are required to be recorded in writing, but they are not at all required to be communicated to the Government servant concerned. I, therefore, submit that the order of dismissal is perfectly legal and valid.
15. In my opinion this cannot be said to be a satisfactory explanation to the rule nisi issued by this Court. In spite of clear averments in the petition that the finding made by the Disciplinary Authority about this condition precedent to exercise the power of dispending with the inquiry could not be in the circumstances fanciful, imaginary or self created but must be such as to pass through the tests of reasonability, no attempt has been made in the affidavit-in-reply to meet with the averment. A demurrer in general terms has been made contending that all the relevant facts and circumstances were considered. It appears that the State Government is not properly advised in this matter in resting satisfied with such bear demurrer of such a clear and pointed averment in the petition. The result is that there is no material on the record of the petitions on the basis of which this Court can be persuaded to agree with the finding made by the Disciplinary Authority that it was not reasonably practicable to hold inquiry. In the circumstances, therefore, the third contention must be upheld that the impugned orders are vitiated and that the petitioners are entitled to the protection not only under Article 311(2) of the Constitution but also to that prescribed under the Discipline and Appeal Rules. Re: Contention No. 2:
16. This contention must also be upheld for the reason which have been stated in detail in the judgment disposing of Special Civil Application No. 3624 of 1980 (A.R. Singh Prin. Sec. Govt. of Guj. XXII G.L.R.), where I was concerned with the order of dismissal of a sub-Inspector of Police made by the Governor in exercise of the power under Clause (c) to the second Proviso of Article 311(2) of the Constitution of India without holding inquiry. After review of the relevant case law, this is what has been held in the said judgment:
in that view of the matter, therefore, the impugned order being an executive action of the Government, it cannot be successfully claimed by the State that the 'limitations prescribed if any in the Bombay Police Act, 1951 or the Bombay Police {Punishment and Appeal) Rules, 1956 circumscribing this 'power which is enabling in its nature can be overlooked. Though the obligation to hold inquiry as envisaged in Article 311(2) of the Constitution is dispensed with in cases referred to in Clauses (a), (b) and (c) of the 2nd proviso, if there are further limitations either in the Act or in the Rules which oblige the State Government to perform the act in a particular manner, I do not think that the State Government can circumvent the said limitations. It is, therefore, to be examined whether there is any limitation in the Act or in the Rules besides the prescribed inquiry in the disciplinary power of the State Government. Section 26 of the Bombay Police Act, 1951 is relevant on the point. It reads as under:
26. When any officer passes an order for finding, suspending, reducing, removing or dismissing a Police Officer, he shall record such order or cause the same to be recorded together with the reasons therefore and a note of the inquiry made, in writing, under his signature.
Provided that no order for reducing, removing or dismissing a Police Officer shall be passed without giving him a reasonable opportunity of showing cause against the action proposed to be taken against him except in cases referred to in the proviso (a) to Clause (2) of Article 311 of the Constitution.
(Emphasis supplied.)
The limitation prescribed under see, 26 of the Bombay police Act on a disciplinary power of the State Government is two-fold. In the main enactment of the section, the Disciplinary Authority has to record the order with (he reasons therefor and a note of the inquiry made in writing under his signature. In the proviso, the Disciplinary Authority is obliged to give a reasonable opportunity to the delinquent officer of showing cause against the proposed action save and except only in cases referred to in Clause (a) of the second proviso to Article 311(2), It should be recalled that the obligation contained in the proviso is one similar to be found in Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 considered and explained by the Supreme Court in T.R. Challapana's case (supra). Neither the main enactment of Section 26 of the Bombay Police Act, 1951 nor the proviso obliges a detailed inquiry as envisaged by Article 311(2) of the Constitution which the proviso to the said Article dispenses with in cases prescribed under Clauses (a), (b) and (c) thereof. The obligation to record reasons in the order for the proposed action and a reasonable opportunity to show cause against the action proposed to be taken are not the part and parcel of the inquiry envisaged under Article 311(2) of the Constitution. It should be further emphasised, and as a matter of fact, the position was fairly conceded by the learned Government Pleader that the provisions made in Clauses (a), (b) and (c) of the second proviso to Articles 311(2) are merely enabling powers and, therefore, they can be circumscribed by the law of Legislature or Parliament, as the case may be, and those limitations will operate on the State powers, save and except to the extent to which the obligation of holding inquiry as envisaged in Article 311(2) is dispensed with by the proviso. The learned Government Pleader, however, urged that the obligation to follow the procedure before imposing a penalty as laid down in the Act or the Rules flows from the provisions of Article 311 of the Constitution and they law down merely a procedure for matters covered by Article 311 of the Constitution, and if an order under Clause (c) of the second proviso to Article 311(2) dispenses with the opportunity to show cause against the action proposed to be taken, it must be construed as intended to refer not only to the action including inquiry into the truth of the charges against the delinquent servant but also the proposed penalty to be imposed after such inquiry. The width and scope of the inquiry envisaged under Article 311(2) has been explained in T.R. Challapana's case (supra) as comprising three stages of departmental inquiry before imposition of penalty, namely (i) framing of charge and holding of inquiry in presence of the employee; (ii) tentative conclusion regarding the proposed penalty on the basis of the report of guilt, and (iii) actual imposition of penalty. It is no doubt true that a Government servant was entitled of the constitutional right of hearing at two stages: first, at the stage of inquiry of the charge, and second, at the state of imposition of penalty. The second right of a Government servant is now taken away by the 42nd Amendment to the Constitution and, therefore, it cannot be claimed by a Government servant as his constitutional right to have bearing at the stage of imposition of penalty. Notwithstanding with the dispensation with this second opportunity if an Act of a Legislature enjoins the Disciplinary Authority to give an opportunity to a police officer before any major penalty is imposed against him of snowing cause against the proposed action and further enjoins the said Authority to make a reasoned order, it cannot be urged successfully that the Disciplinary authorities are under no obligation to comply with those formalities prescribed by the Act. The proviso to Section 26 of the Bombay Police Act incorporates a rule of natural justice that before taking a final action in the matter, the delinquent Government servant should be heard and a reasoned order should be made in that behalf so that the concerned Government servant cannot only point out circumstances for satisfying the Disciplinary authority that extreme penalty is not warranted and in case his circumstances do not impress the Disciplinary Authority to take the matter in appeal assailing the reasoning of the Disciplinary Authority on the basis of which the penalty is imposed. These are the minimum requirements of the principles of natural justice and fair play and these requirements cannot be equated with the inquiry envisaged either under Article 311(2) or prescribed under the service rules and, therefore, it cannot be contended that since such and enquiry is dispensed with, the authorities are under no obligation to hear the delinquent Government servant and to make a speaking order in the matter of penalty. I am of the opinion that it is not open to contend as the learned Government Pleader did since the Supreme Court in T.R. Challapana's case (supra) ruled that the power envisaged under Clause (a) of the second proviso to Article 311(2) is merely an enabling provision and the penalty order does not follow necessarily upon the contingency referred to in Clause (a) and the matter is left to the discretion of the Disciplinary authority to decide as to whether the delinquent servant is guilty of and what penalty should be imposed and in view of Rule 14(H) of the Railway Servants (Discipline & Appeal) Rules, 1968 the Disciplinary Authority must give an opportunity to a delinquent servant to state the circumstances against the proposed action of penalty. Assuming that the learned Government Pleader is right in his submission, even then the dispensation of inquiry will only include the dispensation of an opportunity to state the circumstances against the penalty which is described under proviso to Section 26. It, however, cannot be urged successfully that the main enactment of Section 26 which enjoins the Disciplinary Authority to record reasons before making the order of penalty is also dispensed with. The impugned order is, therefore, bad in law and void since it has been admittedly made without complying with the obligations prescribed in Section 26 of the Bombay Police Act.
17. For the aforesaid reasons, therefore, I am of the opinion that the petitioners here are on firm ground that the State Government and for that matter the Disciplinary Authority is bound by the mandate of the Legislature as given in Section 26 of the Bombay Police Act including the proviso thereto and, in any case, in so far as the Disciplinary Authority has not stated any reasons whatsoever for holding the petitioners guilty of the alleged activities, and, therefore, for the conduct of unbecoming of a member Police staff, the impugned orders are vitiated and liable to be quashed and set aside.
18. In view of this it is not necessary for me to go into the first contention urged on behalf of the petitioners. The result that these petitions are allowed and the orders impugned in these petitions all dated 17th March 1980 are quashed and set aside by writ of certiorari and a declaration is made that the petitioners continue in service all along as if the impugned orders were never made. Rule in each petition is made absolute accordingly with no order as to costs.