Rajiv Sharma, J.
1. The husband of the petitioner Sh. Inder Singh was appointed as a Driver in the respondent-corporation on 8.12.1987. A notice was issued to Sh. Inder Singh on 11.2.1999 whereby the appointing authority had come to a conclusion that he was not a fit person to be retained in the service of the corporation and penalty of removal was proposed. He was granted 15 days time to submit his representation. He filed reply/representation on 5.3.1999. He was removed from the service of the respondent- corporation vide office order dated 25.4.2000. He preferred an appeal against the same on 29.7.2000 and as per the averments contained in the petition it was rejected on 9.4.2001.
2. Ms. Ranjana Parmar, Advocate has strenuously argued that late husband of the petitioner Sh. Inder Singh could not be removed without holding regular inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. She also contended that Sh. Inder Singh was permanent employee of the corporation and no independent decision was taken by the appointing authority/disciplinary authority to dispense with the requirement of domestic inquiry as per Rule 19 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. She has further contended that the respondent-corporation could not resort to Section 25-F of the Industrial Disputes Act, 1947 to dispense with the requirement of regular domestic inquiry. She lastly contended that the appeal has been rejected without a speaking order.
3. Mr. Adarsh Sharma, Advocate has supported the order dated 25.4.2000. According to him, the respondent-corporation has been declared as essential services vide notification dated 11.9.1990 and is also a public utility under Section 2-N of the Industrial Disputes Act, 1947. He lastly contended that it was neither practicable nor possible to hold an inquiry against the unauthorized absence of the petitioner to avoid inconvenience and loss of time and finances.
4. I have heard the learned Counsel for the parties and have perused the pleadings carefully.
5. The petitioner's husband was regularized as a Driver on 8.12.1987. A notice was issued to him on 11.2.1999, as noticed above, for alleged misconduct as enumerated therein. He has filed the reply to the same on 5.3.1999. The disciplinary authority has not taken into consideration at all the reply filed by Sh. Inder Singh dated 5.3.1999 while removing him from the service of the corporation. It is necessary for the disciplinary authority to take into consideration the reply/representation filed by the delinquent.
6. It is not disputed by Mr. Adarsh Sharma, Advocate that the punishment is imposed upon the permanent employees of the corporation as per the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In the present case, the misconduct has been attributed to the petitioner. The main misconduct attributed to the petitioner is his repeated unauthorized absence. In view of the serious allegations contained in the notice itself of alleged misconduct, it was necessary to hold inquiry as per Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In case it was not practicable to hold an inquiry then the provisions contained in Rule 19 (ii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 were required to be followed. The respondent-corporation has neither pleaded nor produced any record to substantiate that at any given time separate reasons were recorded for dispensing with the requirement of holding of regular inquiry as mentioned in the notice dated 11.2.1999. The recording of reasons separately to dispense with the inquiry is mandatory. The reasons assigned even in the notice for not holding the inquiry against the petitioner is that the corporation is a public utility as per the provisions of the Industrial Disputes Act, 1947 and it would have avoided to disrupt the operation of the corporation and to avoid inconvenience besides loss of time and finances. This cannot constitute cogent reason to dispense with the inquiry. No cogent reasons have been assigned why it was not practicable to hold inquiry against the petitioner for his alleged unauthorized absence. The respondent-corporation has adopted a noble method of dispensing with the services of husband of the petitioner late Sh. Inder Singh by dispensing with the inquiry by invoking Section 25-F of the Industrial Disputes Act, 1947. Once the misconduct has been attributed to the petitioner, domestic inquiry was required to be held as per Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The phraseology employed in the notice also suggests that in normal circumstances, the inquiry was required to be held and the reasons assigned in the notice are not convincing to dispense with the inquiry.
7. The language employed in Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and Article 311 of the Constitution of India are more or less pari materia. The law laid down by the Hon'ble Supreme Court while interpreting Article 311 of the Constitution of India will also be applicable while interpreting Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
8. It will be apposite at this stage to reproduce Sub-rule (ii) of Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which reads thus:
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonable practicable to hold an inquiry in the manner provided in these rules.
9. It is also be appropriate to reproduce the phraseology employed in Article 311 (2) proviso (b) of the Constitution of India, which reads thus:
311 (2) (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 reasonable practicable to hold such inquiry.
10. It is evident from the phraseology employed in Sub-rule (ii) of Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as well as Article 311 (2) proviso (b) of the Constitution of India that they are pari materia. It is true it is that Article 311 of the Constitution will not apply to the employees of the respondent-Corporation but the principles contained therein will apply to the employees of the respondent- corporation in view of Rule 19 (ii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The interpretation provided by the Supreme Court to Article 311 (2) proviso (b) of the Constitution of India will be applicable to Sub-rule (ii) of Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as well.
11. Their Lordships of the Hon'ble Supreme Court in Union of India v. Tulsi Patel : (1985)IILLJ206SC have held as under:
The condition precedent for the application of Clause (b) is the satisfaction of the disciplinary authority that 'it is not reasonable practicable to hold' the inquiry contemplated by Clause (2) of Article 311. What is pertinent to note is that the words used are 'not reasonably practicable' and not 'impracticable'. According to the Oxford English Dictionary 'practicable' means 'Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible'. Webster's Third New International Dictionary defines the word 'practicable' inter alia as meaning 'possible to practice or perform: capable of being put into practice, done or accomplished: feasible'. Further, the words used are not 'not practicable' but 'not reasonably practicable'. Webster's Third New International Dictionary defines the word 'reasonably' as 'in a reasonable manner: to a fairly sufficient extent'. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by Clause (b). What is requisite is that the holding of the 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 the cases in which it would not be reasonable practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or though others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A 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 government servant is weak and must fail. The finality given to the decision 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 the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent Northern Railway, Varanasi. The Senior Commercial officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscip0line mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed on order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter.
The second condition necessary for the valid application of Clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following there upon would both be void and unconstitutional.
It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, 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 inquiry need not contain detailed particulars, but the reason must not be vague or just 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 disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.
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 malafides, if any made in the writ petition. In examining the relevancy of the reasons, the court will consieder4 the situation which according to the disciplinary authority made it come to the 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 matte 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 court room, removed in time from the situation in question. Where two views are possible, the court will decline to interfere.
12. Similarly, their Lordships of the Hon'ble Supreme Court in Jaswant Singh v. State of Punjab : AIR1991SC385 have held as under:
The impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311 (2) of the Constitution. Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it was not reasonably practicable to hold a departmental enquiry against the appellant. These are (i) the appellant has thrown threats that he with the help of other police employees will not allow holding of any departmental enquiry against him and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Now as stated earlier after the two revision applications were allowed on October 13, 1980, the appellant had rejoined services as Head Constable on March 5, 1981 but he was immediately placed under suspension. Thereafter, two show cause notices dated April 4, 1981 were issued against him calling upon him to reply thereto within 10 days after the receipt thereof. Before the service of these notices the incident of alleged attempt to commit suicide took place on the morning of April 6, 1981 at about 11.00 a.m. In that incident the appellant sustained an injury on his right arm with a knife. He was, therefore, hospitalized and while he was in hospital the two show cause notices were served on him at about 10.00 p.m. on April 6, 1981. Before the appellant could reply to the said show cause notices respondent 3 passed the impugned order on the very next day i.e. April 7, 1981. Now the earlier departmental enquiries were duly conducted against the appellant and there is no allegation that the department had found any difficulty in examining witnesses in the said inquiries. After the revision applications were allowed the show cause notice was were issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned Counsel for the respondents to point out what impelled respondent 3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as required by Article 311 (2). The learned Counsel for the respondents could only point out Clause (iv) (a) of sub-para 29(A) of the counter which reads as under:
The order dated April 7, 1981 was passed as the petitioner's activities were objectionable. He was instigating his fellow police officials to cause indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful.This is no more than a mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he had his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent 3 in the impugned order. Clause (b) of the second proviso to Article 311 (2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at page 270 of Tulsiram case: (SCC p. 504 para 130) A 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 government servant is weak and must fail. The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by respondent No. 3 it is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he has given threats, etc. when he was in hospital. It is not shown on what material respondent 3 came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at Jullundur on April 3, 1981 reported by SHO/GRP, Jullunder. That report is not forthcoming. It is no one's contention that the said SHO was threatened. Respondent 3's counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with of the inquiry envisaged by Article 311 (2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained.
13. In Chief Security Officer and Ors. v. Singasan Rabi Das : (1991)ILLJ308SC , their Lordships of the Hon'ble Supreme Court have held that there was total absence of sufficient material or good ground for dispensing with the inquiry. Their Lordships have held as under:
In our view it is not necessary to go into the submission made by Dr. Anand Prakash because we find that in this case the reason given for dispensing with the enquiry is totally irrelevant and totally insufficient in law. It is common ground that under Rules 44 to 46 of the said Rules the normal procedure for removal of an employee is that before any order for removal from service can be passed the employee concerned must be given notice and an enquiry must be held on charges supplied to the employees concerned. In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witness of the security/other railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result the appeal fails and is dismissed. There will be no order as to costs.
14. The Apex Court in Ex. Constable Chhote Lal v. union of India and Ors. : (2000)10SCC196 has held as under:
Mr. Yadav, learned Counsel appearing for the appellant contends that though the employer has the power to dispense with an inquiry under Article 311 (2), second proviso, Clause (b) of the Constitution but the conditions precedent for exercising that power have now been indicated in several decisions of this Court and in the present case, those conditions precedent cannot be said to have been satisfied. Mr. Choudhary, the learned Senior Counsel appearing for the respondents, on the other hand, contended that the appellant himself being a Police Constable could have influenced the witnesses who would have come in the department inquiry and if on that ground the departmental authorities apprehended that the inquiry would not be reasonable and fair, the conclusion cannot be interfered with.
Having examined the rival contentions of the parties and bearing in mind the law laid down by this Court indicating the circumstances under which the inquiry under Article 311 (2), second proviso, Clause (b) of the Constitution can be dispensed with and applying the same to the facts and circumstances and the reasons advanced by the authorities in arriving at the decision, we have no hesitation to come to the conclusion that the order dispensing with the departmental inquiry is not in accordance with law and necessarily the order of dismissal cannot be sustained. We accordingly set aside the order of dismissal passed against the appellant and permit the departmental authority to hold an inquiry if so desired, in accordance with law and come to the conclusion in the said proceeding.
15. The Apex Court in Sudesh Kumar v. State of Haryana and Ors. (2005) 11 SCC 525 has held that an inquiry under Article 311 (2) is a rule and dispensing with the inquiry is an exception. Their Lordships have held as under:
It is now an established principle of law that an inquiry under Article 311 (2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311 (2) (b) must satisfy for reasons to be recorded that it is not reasonable practicable to hold an inquiry. A reading of the termination order by invoking Article 311 (2) (b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonable practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23.12.1999, the visa of the complainant was extended up to 22.12.2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.
A reasonable opportunity of hearing enshrined in Article 311 (2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if inquiry is held where he has been informed of the charges levelled against him. In the instant case, the mandate of Article 311 (2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant.
16. The disciplinary authority was required to record reasons separately as has been held by the Constitution Bench in Union of India v. Tulsi Patel : (1985)IILLJ206SC (supra) before taking decision to dispense with the inquiry.
17. The reasons as assigned in the order for not holding inquiry are based on the ipse dixit of the disciplinary authority as discussed hereinabove.
18. Accordingly, in view of the observations made hereinabove and the law laid down by their Lordships of the Hon'ble Supreme Court, it is held that it was necessary for the respondent-corporation to hold regular domestic inquiry against the petitioner for his alleged misconduct enumerated in notice dated 11.2.1999. The removal of the petitioner vide office order dated 25.4.2000 is declared bad in law.
19. Consequently, the petition is allowed. Annexure A-4 dated 25.4.2000 is quashed and set aside. The petitioner's husband late Sh. Inder Singh shall be deemed to be in employment of the respondent- corporation with all consequential benefits. There shall, however, be no order as to costs.