Semantic Analysis by spaCy
Dahibal Mistry Vs. State of Assam and ors.
Decided On : Jun-14-2007
Court : Guwahati
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State of Assam and ors.', 'casenote' => ' - - , I am satisfied with the findings that charged leveled against him is proved beyond all reasonable doubts who had failed to resist the extremists resulting snatching away of his arms and ammunitions while on duty. Further, I am satisfied that continuance in police service of AB. or b) Where the authority empowered todismiss 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 inquiry :or. ..(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. 6. An ordinary reading of the above provision particularly, Clause (c) of Article 311(2) of the Constitution would go to show that the holding of an inquiry vis-a-vis the opportunity of being heard to be given to the incumbent can be dispensed with if the President or Governor, as the case may be, is satisfied that in the interest of security of the State, it is not expedient to hold such inquiry. In other words, holding of any inquiry as prescribed under Clause (2) abovementioned can only be dispensed with if the President or Governor, as the case may, be satisfied that in the interest of security of the State such holding of inquiry is not necessary. 10. Having considered such reply as well as upon perusal of the findings of the Enquiry Officer in connection with Departmental Proceeding No. the petitioner, he was satisfied with the findings that the charged levelled against the petitioner was proved beyond reasonable doubt, it was recorded therein that continuance in police service of the petitioner would cause security risk to the State for which in terms of Article 311 (2) (c) of the Constitution read with Section 9 of the Act and Rule 66 of the Assam Police Manual (Part-III) the petitioner was dismissed from service. (c) Deprivation of good conduct pay;', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2007-06-14', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'Aftab Hussain Saikia, J.', 'judgement' => ' </p><p style="text-align: justify;">Aftab Hussain Saikia, J.</p><p style="text-align: justify;">1. Heard Mrs. N. Saikia, learned Counsel for the petitioner and Mrs. V.L. Singh, learned State Counsel, Assam representing the official respondents.</p><p style="text-align: justify;">2. The cardinal question posed in this writ petition is as to whether the impugned order dated 1.11.2000 issued by the respondent No. 3 dismissing the petitioner from service purportedly in terms of Article 311 (2) (c) of the Constitution of India read with Section 7 of the Assam Police Act, 1861 (for short, 'the Act') and Rule 66 of the Assam Police Manual (Part-III) is tenable in law.</p><p style="text-align: justify;">3. In the instant case, the petitioner who was working as AB/LN was dismissed from service by the impugned order dated 1.11.2000 basically by invoking the provisions of Article 311(2)(c) of the Constitution. For ready reference, the same be quoted as under:<p style="text-align: justify;">ORDER</p><p style="text-align: justify;">Perused the findings of the E.O. Shri A.C. Borah, APS, Addl. Supdt. of Police (S) Kokrajhar in connection with D/P No. 22/96 drawn up against delinquent AB L/N (H) 538 Dadhibal Mistry of Kokrajhar D.E.F., I am satisfied with the findings that charged leveled against him is proved beyond all reasonable doubts who had failed to resist the extremists resulting snatching away of his arms and ammunitions while on duty.</p><p style="text-align: justify;">Further, I am satisfied that continuance in police service of AB. L/N. (H) 538 Dadhibal Mistry of Kokrajhar, D.E.F. will couse security risk to the state and for which in terms of Article 311 (2) (c) of the Constitution of India R/W Section 7 of Police Act (V of 1861) and R/W Rule 60 of Assam Police Manual (Part-III) he is dismissed from service w.e.f. 1.11.2000. Also he shall not get any financial benefits during the periods of his suspension w.e.f. 18.6.96 to 21.8.96 except S/A only admissible as per rule.</p><p style="text-align: justify;">D.P. is disposed of accordingly.</p><p style="text-align: justify;">S/d IllegibleSuperintendent of Police, Kokrajhar1.11.2000.</p><p style="text-align: justify;">4. The main trust of argument of Mrs. Saikia, learned Counsel for the petitioner is that on the face of the impugned order itself it is manifestly apparent that the impugned order was not passed in consonance to the provisions of law enumerated under Article 311 (2) (c) of the Constitution of India.</p><p style="text-align: justify;">5. Before delving upon the submission of the learned Counsel for the petitioner, it would be necessary and apt to refer to the relevant Constitutional provisions:</p><p style="text-align: justify;">311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State-</p><p style="text-align: justify;">(1) No person who is a member of a civil service 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 authority subordinate to that by which he was appointed.</p><p style="text-align: justify;">(2) No such person as aforesaid shall be dismissed or removed or reduced in 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 those charges.</p><p style="text-align: justify;">Provided that where it is proposed after such inquiry, to imposed upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:</p><p style="text-align: justify;">Provided further that this clause shall not apply-</p><p style="text-align: justify;">a) Where a person is dismissed or removed orreduced in rank on the ground of conduct which has led to his conviction on a criminal charge: or</p><p style="text-align: justify;">b) Where the authority empowered todismiss 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 inquiry : or...</p><p style="text-align: justify;">(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of security of the State it is not expedient to hold such inquiry.</p><p style="text-align: justify;">6. An ordinary reading of the above provision particularly, Clause (c) of Article 311(2) of the Constitution would go to show that the holding of an inquiry vis-a-vis the opportunity of being heard to be given to the incumbent can be dispensed with if the President or Governor, as the case may be, is satisfied that in the interest of security of the State, it is not expedient to hold such inquiry. In other words, holding of any inquiry as prescribed under Clause (2) abovementioned can only be dispensed with if the President or Governor, as the case may, be satisfied that in the interest of security of the State such holding of inquiry is not necessary. Even the doctrine of natural justice for giving any opportunity of hearing to the incumbent in such case, is also not attracted.</p><p style="text-align: justify;">7. In the backdrop of this fact situation above and legal position, let us now notice briefly the factual matrix of this case as emerged from the show cause so served upon the petitioner on 14.7.96.</p><p style="text-align: justify;">8. The show cause notice dated 14.7.96 (Annexure-1 to the writ petition) referring to the proceeding No. 22/96 issued to the petitioner with the following allegations attached therewith:</p><p style="text-align: justify;">On 17.6.96 you were detailed at the Addl. Supdt. of Police, (B) Kokrajhar residence located at F.R.R.O. Office, Kokrajhar to perform Security Guard Commandar duty with Arms and ammunitions as per scale. At 7 P.M. some unknown miscreants entered in to the barrack and looted the Arms and ammunitions from the barrack. You are also found absent during the time of occurrence for which could not resist them. The amounts to your gross negligence and slackness in discharging lawful duty for which could not protect the Govt. property.</p><p style="text-align: justify;">You are, therefore, charged with gross misconduct, lawful negligence and dereliction of duty which render you unfit to remain in disciplined force.</p><p style="text-align: justify;">9. In respect of such show cause notice, the petitioner replied the show cause vide communication dated 5.7.06 wherein he has averred as under:</p><p style="text-align: justify;">That Sir, on 17.9.96 I along with the accompanied staff reach there in the F.R.R.O. office at about 6 P. M. and kept our Arms and Ammunitions in the Room attend for our sleeping and rest. Then I reported to Shri ABC/514 Ram Chandra Goala that today (17.6.90) I could not take my meal for the night due to some difficulties as my house and I am going to take my meal, to a nearby hotel and will come such immediately and I left the house keeping my Arms and Ammunitions thereafter locking the door of the room and giving the key of the lock to the ABC/514 Ram Chandra Goala and at about 7-10 P.M. and learnt ABC/514 Ram Chandra Goala that just after my departure some extremists forcibly entered the house premises and took the key of the door lock from ABC/514 Ram Chandra Goala under gun point and took my all the arms and ammunitions kept in the room under the bed of mine and the staff and left. The matter was informed to R.O., Kokrajhar over phone and after about 30 minutes the P.S. staff came to the spot.</p><p style="text-align: justify;">Therefore, I request your honour to be kind enough to consider my case sympathetically for the first time for such a mistake or remaining absent for 30.35 minutes from the duty post without any malice intention but to take meal for which act to your kindness, I shall remain ever pray and oblige. </p><p style="text-align: justify;">10. Having considered such reply as well as upon perusal of the findings of the Enquiry Officer in connection with Departmental Proceeding No. 22/96 as reflected in the impugned order itself, the petitioner was dismissed from service w.e.f. the date of issuance of the impugned order.</p><p style="text-align: justify;">11. The State respondents have refuted all the contentions and submissions made by the petitioner in this writ petition by filing response wherein it has been specifically stated in paragraph--8 that a Departmental proceeding (for, short, 'the D.P.') was initiated against the petitioner being D.P. No. 22/96 and an Enquiry Officer was also appointed for such purpose who in turn, after giving of opportunity of hearing to the petitioner found all the charges levelled against him to be proved beyond reasonable doubt and accordingly, the authority was justified and correct in dismissing the petitioner from service in invoking Article 31l(2)(c) of the Constitution read with Section 7 of the Act and Rule 66 of the Assam Police Mannual.</p><p style="text-align: justify;">12. No record has been produced by the official respondents at the time of hearing though the matter has been pending since 2000.</p><p style="text-align: justify;">13. On pointed query, the learned State Counsel, Assam has expressed that no such records have been handed over to the learned Counsel despite several intimations made to the authority concerned.</p><p style="text-align: justify;">14. On perusal of the impugned order, it is seen that although the authority in his impugned order demonstrated that on perusal of the findings of the Enquiry officer Shri A. C. Borah, in connection with D.P. No. 22/96 drawn up against the delinquent i.e. the petitioner, he was satisfied with the findings that the charged levelled against the petitioner was proved beyond reasonable doubt, it was recorded therein that continuance in police service of the petitioner would cause security risk to the State for which in terms of Article 311 (2) (c) of the Constitution read with Section 9 of the Act and Rule 66 of the Assam Police Manual (Part-III) the petitioner was dismissed from service.</p><p style="text-align: justify;">15. Be it mentioned here in that Section 7 of the Act provides for appointment, dismissal, etc. of inferior officers which reads as under:</p><p style="text-align: justify;">7 Appointment, dismissal, etc. of inferior officers--Subject to the provisions of Article 311 of the Constitution, and to such rules, as the State Government may from time to time make under this Act, the Inspector General Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think, remiss or negligent in the discharge of his duty or unfit for the same:</p><p style="text-align: justify;">or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely-</p><p style="text-align: justify;">(a) Fine to any amount not exceeding one month's payl;</p><p style="text-align: justify;">(b) Confinement to quarters for a term not exceeding fifteen days, with or without punishment-drill, extra guard, fatigue or other duty;</p><p style="text-align: justify;">(c) Deprivation of good conduct pay;</p><p style="text-align: justify;">(d) Removal from any office or distinction or special emoulment.</p><p style="text-align: justify;">16. Again Rule 66 of Assam Police Mannual (Part-III) prescribes the manner in which procedure to be drawn up in cases of major penalties and detailed process has been contemplated in the same provision.</p><p style="text-align: justify;">17. In view of the above, the impugned order goes to reflect that on one hand the petitioner was shown to be dismissed by holding a due enquiry through the departmental proceeding and at the same time he was shown to be dismissed by invoking the Constitutional provision of Article 311 (2) (c). It, therefore, appears to be confusing and ambiguous. However, it is obvious and clear from the perusal of materials available that no inquiry whatsoever against the petitioner was ever conducted by the authority concerned.</p><p style="text-align: justify;">18. Amazingly no relevant record has been made available to exhibit that such D.P. was ever proceeded against the petitioner save and except mere mentioning of the same in the impugned order.</p><p style="text-align: justify;">19. Be tht as it may, if the impugned dismissal order is accepted to have been passed by invoking Article 311(2) (c) of the Constitution, then it is important to note that there is no whisper on the face of the order itself that such order was passed to the satisfaction of the Governor or the President, as the case may be, as required under the above provisions of law. For dismissing or removing an employee/delinquent in exercise of power entrusted upon the authority under Article 311 (2) (c) of the Constitution, it is constitutional mandate that the same must be passed on satisfaction of the President or Governor, as the case may be and that too the satisfaction needs to be in the interest of security of the State.</p><p style="text-align: justify;">20. No such things i.e. (i) whether the im pugned order was passed to the satisfaction of the President or Governor and (ii) whether it was in the interest of security of the State, have been clarified on behalf of the respon dents. Only fact that was recorded in the im pugned order is that the authority i.e. the Su perintendent of Police, Kokrajhar was satis fied with the continuation in police service of the petitioner was against the security risk of the State and that is why in terms of Article 311 (2)(c) of the Constitution read with Sec tion 7 of the Act and Rule 66 of the Assam Police Mannual (Part III), he was dismissed from service. It is really shocking to believe that after four years of the alleged commission of the offence, the impugned order has been passed by invoking Article 311 (2)(c) which on the face of it, has no legs to stand due to non-compliance of the provisions of law.</p><p style="text-align: justify;">21. The term security of the State along with other expression namely 'Law and order' and 'Public Order' was explained by the Apex Court in Union of India and Anr v. Tulsiram Patel reported in : (1985)IILLJ206SC wherein in paragraph-140 observed as follows:</p><p style="text-align: justify;">140. The expression 'law and order', 'public order' and 'security of the State' have been used in diffierent Acts. Situations which affect' public order' are graver than those which affect' law and order' and situation which affect 'security of the State 'are graver than those which affect 'public order'. Thus, of these situations those which affect 'security of the State' are the gravest. Danger to the security of the State may arise from without or within the State. The expression 'security of the State' does not mean security of the entire country or a whole State. In includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by the State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the Stale can be affected. The way in which the security of the State is affected may be either open or clandestine. Amongst the more obvious acts which affect the security of the State would be disaffection in the armed Forces or para-military Forces. Disaffection in any of these Forces is likely to spread, for disaffected or dissatisfied members of these Forces spread such dissatisfaction and disaffection among other members of the Force and thus induce them out not to discharge their duties properly and commit acts or indiscipline, insubordination and disobedience to the orders of their superiors. Such a situation cannot be a matter affecting only law and order or public order but is a matter affecting vitally the security of the State. In this respect, Police Force stands very much stands very much on the same footing as a military or para-military for it is charged with the duty of ensuring and maintaining law and order and public order, and breaches of discipline and acts of disobedience and subordination on the part of the members of the police force cannot be viewed with less gravity than similar acts on the part of the members of the military or paramilitary Forces. How important the proper discharge of their duties by members of these Forces and the maintenance of discipline among them is considered can be seen from Article 33 of the Constitution. Prior to the Constitution (Fiftieth Amendment) Act, 1984, Article 33 provides as follows:</p><p style="text-align: justify;">33. Power to Parliament to modify the right conferred by this Part in their application to Forces, etc. Parliament may by law determine to what extent any of the rights conferred by this part shall, in their application to the members of the armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and maintenance of discipline among them.</p><p style="text-align: justify;">By the Constitution (Fiftieth Amendment) Act, 1984, the article was substituted. By the substituted article the scope of the Parliament's power to so restrict or abrogate the application of any of the fundamental rights' is made wider. The substituted Article 33 reads as follows:</p><p style="text-align: justify;">33. Power to Parliament in modify the right conferred by this Part in their application in Forces, etc. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to-</p><p style="text-align: justify;">(a) the members of the Armed Forcs: or</p><p style="text-align: justify;">(b) the members of the Forces charged with the maintenance of public order; or</p><p style="text-align: justify;">(c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counter-intelligence: or</p><p style="text-align: justify;">(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to clauses (a) to (c) be restricted or abrogated so as to ensure the proper discharge or their duties and the maintenance of discipline among them.</p><p style="text-align: justify;">Thus, the discharge of their duties by the members of these forces and the maintenance of discipline amongst them is considered of such vital importance to the country that in order to ensure this the Constitution has conferred power upon Parliament to restrict or abrogate any of the fundamental rights in their application to them.</p><p style="text-align: justify;">22. In the instant case, the action so exhibited by the petitioner as reflected in the show cause, cannot be said an offence affecting Security of the State warranting dismissal by the impugned order. On the other hand, if there was any D.P. proceeded against the petitioner as claimed by the official respondents, due to non availability of any record pertaining to such D.P., this Court has not option but to approve the statements made on oath in writ petition that no such inquiry as such was ever held as stated in paragraphs 9 and 10.</p><p style="text-align: justify;">23. The impugned order appears to be a double edged sword. On one side it is claimed that a departmental proceeding was conducted by the department concerned and accordingly, all the charges levelled against the petitioner was found to be proved and at the same breath, the authority wanted to dismiss him by invoking Article 311 (2)(c) of the Constitution of India without holding any inquiry, the same being dispensed with in the interest of the security of the State.</p><p style="text-align: justify;">24. In view of what has been stated, discussed and observed above, this Court is of the firm view that this impugned order smacks arbitrariness, highhandedness and auhtoritativeness on the part of the authority concerned and lacks transparency and the same cannot, therefore, stand in the eye of law.</p><p style="text-align: justify;">25. Consequently, the impugned order stands quashed and set aside.</p><p style="text-align: justify;">26. At this stage, it is stated at the Bar that the petitioner has been continuing in his service in view of the interim order dated 27.11.2000 by which the impugned order was stayed.</p><p style="text-align: justify;">27. In view of the above, no order pertaining to service benefits is necessary to be passed. It also appears that the petitioner has approached this Court immediately by filing this writ petition on 27.11.2000 challenging the impugned order dated 1.11.2000 which was stayed on 27.11.2000 itself.</p><p style="text-align: justify;">28. Accordingly, the Interim order passed on 27.11.2000 is also hereby made absolute.</p><p style="text-align: justify;">In the result, this writ petition succeeds and stands allowed. No costs.</p><p style="text-align: justify;">.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => null, 'ratiodecidendi' => '', 'respondent' => 'State of Assam and ors.', 'sub' => ';Service', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '126378' ) ) $title_for_layout = 'Dahibal Mistry Vs. State of Assam and ors. 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Saikia', (int) 2 => 'V.L. Singh', (int) 3 => 'Addl', (int) 4 => 'Saikia', (int) 5 => 'Dismissal', (int) 6 => 'Kokrajhar', (int) 7 => 'Chandra Goala', (int) 8 => 'Chandra Goala', (int) 9 => 'Chandra Goala', (int) 10 => 'Chandra Goala', (int) 11 => 'Kokrajhar', (int) 12 => 'Enquiry', (int) 13 => 'Shri A. C. Borah', (int) 14 => 'D.P.', (int) 15 => 'Su', (int) 16 => 'Kokrajhar', (int) 17 => 'Law', (int) 18 => 'Anr', (int) 19 => 'Tulsiram Patel', (int) 20 => 'D.P.', (int) 21 => 'stayed.27' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'P.M.', (int) 2 => 'P.M.' ), 'GPE' => array( (int) 0 => 'Counsel', (int) 1 => 'India', (int) 2 => 'AB', (int) 3 => 'Counsel', (int) 4 => 'India', (int) 5 => 'F.R.R.O.', (int) 6 => 'R.O.', (int) 7 => 'P.S.', (int) 8 => 'Police', (int) 9 => 'India' ), 'ORG' => array( (int) 0 => 'State Counsel', (int) 1 => 'APS', (int) 2 => 'Police (S) Kokrajhar', (int) 3 => 'AB L/N (H', (int) 4 => 'Dadhibal Mistry of Kokrajhar D.E.F.', (int) 5 => 'L/N. (H', (int) 6 => 'Dadhibal Mistry of Kokrajhar', (int) 7 => 'D.E.F.', (int) 8 => 'D.P.', (int) 9 => 'State', (int) 10 => 'State', (int) 11 => 'State', (int) 12 => 'State', (int) 13 => 'State', (int) 14 => 'F.R.R.O. Office', (int) 15 => 'Departmental Proceeding No', (int) 16 => 'State', (int) 17 => 'Departmental', (int) 18 => 'D.P.', (int) 19 => 'State Counsel', (int) 20 => 'Counsel', (int) 21 => 'State', (int) 22 => 'the State Government', (int) 23 => 'District Superintendents of Police', (int) 24 => 'State', (int) 25 => 'State', (int) 26 => 'Sec', (int) 27 => 'State', (int) 28 => 'the Apex Court', (int) 29 => 'Union of India', (int) 30 => 'State', (int) 31 => 'State', (int) 32 => 'State', (int) 33 => 'State', (int) 34 => 'State', (int) 35 => 'State', (int) 36 => 'State', (int) 37 => 'State', (int) 38 => 'State', (int) 39 => 'State', (int) 40 => 'Stale', (int) 41 => 'State', (int) 42 => 'State', (int) 43 => 'Force', (int) 44 => 'State', (int) 45 => 'Police Force', (int) 46 => 'Parliament', (int) 47 => 'Parliament', (int) 48 => 'the armed Forces or the Forces', (int) 49 => 'Parliament', (int) 50 => 'Parliament', (int) 51 => 'Parliament', (int) 52 => 'the Armed Forcs:', (int) 53 => 'State', (int) 54 => 'or(d', (int) 55 => 'Force', (int) 56 => 'Parliament', (int) 57 => 'State', (int) 58 => 'D.P.', (int) 59 => 'Court', (int) 60 => 'Court', (int) 61 => 'Bar', (int) 62 => 'Court' ), 'CARDINAL' => array( (int) 0 => '1.11.2000', (int) 1 => '3', (int) 2 => '2', (int) 3 => '1.11.2000', (int) 4 => '22/96', (int) 5 => '538', (int) 6 => '538', (int) 7 => '2', (int) 8 => '1.11.2000', (int) 9 => '18.6.96 to', (int) 10 => '21.8.96', (int) 11 => '2', (int) 12 => '2', (int) 13 => '14.7.96', (int) 14 => '22/96', (int) 15 => '17.6.96', (int) 16 => '5.7.06', (int) 17 => '17.6.90', (int) 18 => '10', (int) 19 => '22/96', (int) 20 => '22/96', (int) 21 => '2000.13', (int) 22 => '22/96', (int) 23 => '2', (int) 24 => '66', (int) 25 => '66', (int) 26 => '2', (int) 27 => '2', (int) 28 => '2)(c', (int) 29 => '2)(c', (int) 30 => '1985)IILLJ206SC', (int) 31 => '9', (int) 32 => '10.23', (int) 33 => '2)(c', (int) 34 => '27.11.2000', (int) 35 => '27.11.2000', (int) 36 => '1.11.2000', (int) 37 => '27.11.2000', (int) 38 => '27.11.2000' ), 'DATE' => array( (int) 0 => '1861', (int) 1 => '1861', (int) 2 => '14.7.96.8', (int) 3 => 'one month's', (int) 4 => 'fifteen days', (int) 5 => 'four years', (int) 6 => '1984', (int) 7 => '1984' ), 'LOC' => array( (int) 0 => 'Govt' ), 'WORK_OF_ART' => array( (int) 0 => 'Arms and Ammunitions' ), 'TIME' => array( (int) 0 => 'about 30 minutes', (int) 1 => '30.35 minutes', (int) 2 => '7 of the Act and Rule 66' ), 'ORDINAL' => array( (int) 0 => 'first' ), 'FAC' => array( (int) 0 => 'the Enquiry Officer' ) ) $desc = array( 'Judgement' => array( 'id' => '126378', 'acts' => '', 'appealno' => '', 'appellant' => 'Dahibal Mistry', 'authreffered' => '', 'casename' => 'Dahibal Mistry Vs. State of Assam and ors.', 'casenote' => ' - - , I am satisfied with the findings that charged leveled against him is proved beyond all reasonable doubts who had failed to resist the extremists resulting snatching away of his arms and ammunitions while on duty. Further, I am satisfied that continuance in police service of AB. or b) Where the authority empowered todismiss 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 inquiry :or. ..(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. 6. An ordinary reading of the above provision particularly, Clause (c) of Article 311(2) of the Constitution would go to show that the holding of an inquiry vis-a-vis the opportunity of being heard to be given to the incumbent can be dispensed with if the President or Governor, as the case may be, is satisfied that in the interest of security of the State, it is not expedient to hold such inquiry. In other words, holding of any inquiry as prescribed under Clause (2) abovementioned can only be dispensed with if the President or Governor, as the case may, be satisfied that in the interest of security of the State such holding of inquiry is not necessary. 10. Having considered such reply as well as upon perusal of the findings of the Enquiry Officer in connection with Departmental Proceeding No. the petitioner, he was satisfied with the findings that the charged levelled against the petitioner was proved beyond reasonable doubt, it was recorded therein that continuance in police service of the petitioner would cause security risk to the State for which in terms of Article 311 (2) (c) of the Constitution read with Section 9 of the Act and Rule 66 of the Assam Police Manual (Part-III) the petitioner was dismissed from service. (c) Deprivation of good conduct pay;', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2007-06-14', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'Aftab Hussain Saikia, J.', 'judgement' => ' </p><p style="text-align: justify;">Aftab Hussain Saikia, J.</p><p style="text-align: justify;">1. Heard Mrs. N. Saikia, learned Counsel for the petitioner and Mrs. V.L. Singh, learned State Counsel, Assam representing the official respondents.</p><p style="text-align: justify;">2. The cardinal question posed in this writ petition is as to whether the impugned order dated 1.11.2000 issued by the respondent No. 3 dismissing the petitioner from service purportedly in terms of Article 311 (2) (c) of the Constitution of India read with Section 7 of the Assam Police Act, 1861 (for short, 'the Act') and Rule 66 of the Assam Police Manual (Part-III) is tenable in law.</p><p style="text-align: justify;">3. In the instant case, the petitioner who was working as AB/LN was dismissed from service by the impugned order dated 1.11.2000 basically by invoking the provisions of Article 311(2)(c) of the Constitution. For ready reference, the same be quoted as under:<p style="text-align: justify;">ORDER</p><p style="text-align: justify;">Perused the findings of the E.O. Shri A.C. Borah, APS, Addl. Supdt. of Police (S) Kokrajhar in connection with D/P No. 22/96 drawn up against delinquent AB L/N (H) 538 Dadhibal Mistry of Kokrajhar D.E.F., I am satisfied with the findings that charged leveled against him is proved beyond all reasonable doubts who had failed to resist the extremists resulting snatching away of his arms and ammunitions while on duty.</p><p style="text-align: justify;">Further, I am satisfied that continuance in police service of AB. L/N. (H) 538 Dadhibal Mistry of Kokrajhar, D.E.F. will couse security risk to the state and for which in terms of Article 311 (2) (c) of the Constitution of India R/W Section 7 of Police Act (V of 1861) and R/W Rule 60 of Assam Police Manual (Part-III) he is dismissed from service w.e.f. 1.11.2000. Also he shall not get any financial benefits during the periods of his suspension w.e.f. 18.6.96 to 21.8.96 except S/A only admissible as per rule.</p><p style="text-align: justify;">D.P. is disposed of accordingly.</p><p style="text-align: justify;">S/d IllegibleSuperintendent of Police, Kokrajhar1.11.2000.</p><p style="text-align: justify;">4. The main trust of argument of Mrs. Saikia, learned Counsel for the petitioner is that on the face of the impugned order itself it is manifestly apparent that the impugned order was not passed in consonance to the provisions of law enumerated under Article 311 (2) (c) of the Constitution of India.</p><p style="text-align: justify;">5. Before delving upon the submission of the learned Counsel for the petitioner, it would be necessary and apt to refer to the relevant Constitutional provisions:</p><p style="text-align: justify;">311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State-</p><p style="text-align: justify;">(1) No person who is a member of a civil service 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 authority subordinate to that by which he was appointed.</p><p style="text-align: justify;">(2) No such person as aforesaid shall be dismissed or removed or reduced in 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 those charges.</p><p style="text-align: justify;">Provided that where it is proposed after such inquiry, to imposed upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:</p><p style="text-align: justify;">Provided further that this clause shall not apply-</p><p style="text-align: justify;">a) Where a person is dismissed or removed orreduced in rank on the ground of conduct which has led to his conviction on a criminal charge: or</p><p style="text-align: justify;">b) Where the authority empowered todismiss 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 inquiry : or...</p><p style="text-align: justify;">(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of security of the State it is not expedient to hold such inquiry.</p><p style="text-align: justify;">6. An ordinary reading of the above provision particularly, Clause (c) of Article 311(2) of the Constitution would go to show that the holding of an inquiry vis-a-vis the opportunity of being heard to be given to the incumbent can be dispensed with if the President or Governor, as the case may be, is satisfied that in the interest of security of the State, it is not expedient to hold such inquiry. In other words, holding of any inquiry as prescribed under Clause (2) abovementioned can only be dispensed with if the President or Governor, as the case may, be satisfied that in the interest of security of the State such holding of inquiry is not necessary. Even the doctrine of natural justice for giving any opportunity of hearing to the incumbent in such case, is also not attracted.</p><p style="text-align: justify;">7. In the backdrop of this fact situation above and legal position, let us now notice briefly the factual matrix of this case as emerged from the show cause so served upon the petitioner on 14.7.96.</p><p style="text-align: justify;">8. The show cause notice dated 14.7.96 (Annexure-1 to the writ petition) referring to the proceeding No. 22/96 issued to the petitioner with the following allegations attached therewith:</p><p style="text-align: justify;">On 17.6.96 you were detailed at the Addl. Supdt. of Police, (B) Kokrajhar residence located at F.R.R.O. Office, Kokrajhar to perform Security Guard Commandar duty with Arms and ammunitions as per scale. At 7 P.M. some unknown miscreants entered in to the barrack and looted the Arms and ammunitions from the barrack. You are also found absent during the time of occurrence for which could not resist them. The amounts to your gross negligence and slackness in discharging lawful duty for which could not protect the Govt. property.</p><p style="text-align: justify;">You are, therefore, charged with gross misconduct, lawful negligence and dereliction of duty which render you unfit to remain in disciplined force.</p><p style="text-align: justify;">9. In respect of such show cause notice, the petitioner replied the show cause vide communication dated 5.7.06 wherein he has averred as under:</p><p style="text-align: justify;">That Sir, on 17.9.96 I along with the accompanied staff reach there in the F.R.R.O. office at about 6 P. M. and kept our Arms and Ammunitions in the Room attend for our sleeping and rest. Then I reported to Shri ABC/514 Ram Chandra Goala that today (17.6.90) I could not take my meal for the night due to some difficulties as my house and I am going to take my meal, to a nearby hotel and will come such immediately and I left the house keeping my Arms and Ammunitions thereafter locking the door of the room and giving the key of the lock to the ABC/514 Ram Chandra Goala and at about 7-10 P.M. and learnt ABC/514 Ram Chandra Goala that just after my departure some extremists forcibly entered the house premises and took the key of the door lock from ABC/514 Ram Chandra Goala under gun point and took my all the arms and ammunitions kept in the room under the bed of mine and the staff and left. The matter was informed to R.O., Kokrajhar over phone and after about 30 minutes the P.S. staff came to the spot.</p><p style="text-align: justify;">Therefore, I request your honour to be kind enough to consider my case sympathetically for the first time for such a mistake or remaining absent for 30.35 minutes from the duty post without any malice intention but to take meal for which act to your kindness, I shall remain ever pray and oblige. </p><p style="text-align: justify;">10. Having considered such reply as well as upon perusal of the findings of the Enquiry Officer in connection with Departmental Proceeding No. 22/96 as reflected in the impugned order itself, the petitioner was dismissed from service w.e.f. the date of issuance of the impugned order.</p><p style="text-align: justify;">11. The State respondents have refuted all the contentions and submissions made by the petitioner in this writ petition by filing response wherein it has been specifically stated in paragraph--8 that a Departmental proceeding (for, short, 'the D.P.') was initiated against the petitioner being D.P. No. 22/96 and an Enquiry Officer was also appointed for such purpose who in turn, after giving of opportunity of hearing to the petitioner found all the charges levelled against him to be proved beyond reasonable doubt and accordingly, the authority was justified and correct in dismissing the petitioner from service in invoking Article 31l(2)(c) of the Constitution read with Section 7 of the Act and Rule 66 of the Assam Police Mannual.</p><p style="text-align: justify;">12. No record has been produced by the official respondents at the time of hearing though the matter has been pending since 2000.</p><p style="text-align: justify;">13. On pointed query, the learned State Counsel, Assam has expressed that no such records have been handed over to the learned Counsel despite several intimations made to the authority concerned.</p><p style="text-align: justify;">14. On perusal of the impugned order, it is seen that although the authority in his impugned order demonstrated that on perusal of the findings of the Enquiry officer Shri A. C. Borah, in connection with D.P. No. 22/96 drawn up against the delinquent i.e. the petitioner, he was satisfied with the findings that the charged levelled against the petitioner was proved beyond reasonable doubt, it was recorded therein that continuance in police service of the petitioner would cause security risk to the State for which in terms of Article 311 (2) (c) of the Constitution read with Section 9 of the Act and Rule 66 of the Assam Police Manual (Part-III) the petitioner was dismissed from service.</p><p style="text-align: justify;">15. Be it mentioned here in that Section 7 of the Act provides for appointment, dismissal, etc. of inferior officers which reads as under:</p><p style="text-align: justify;">7 Appointment, dismissal, etc. of inferior officers--Subject to the provisions of Article 311 of the Constitution, and to such rules, as the State Government may from time to time make under this Act, the Inspector General Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think, remiss or negligent in the discharge of his duty or unfit for the same:</p><p style="text-align: justify;">or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely-</p><p style="text-align: justify;">(a) Fine to any amount not exceeding one month's payl;</p><p style="text-align: justify;">(b) Confinement to quarters for a term not exceeding fifteen days, with or without punishment-drill, extra guard, fatigue or other duty;</p><p style="text-align: justify;">(c) Deprivation of good conduct pay;</p><p style="text-align: justify;">(d) Removal from any office or distinction or special emoulment.</p><p style="text-align: justify;">16. Again Rule 66 of Assam Police Mannual (Part-III) prescribes the manner in which procedure to be drawn up in cases of major penalties and detailed process has been contemplated in the same provision.</p><p style="text-align: justify;">17. In view of the above, the impugned order goes to reflect that on one hand the petitioner was shown to be dismissed by holding a due enquiry through the departmental proceeding and at the same time he was shown to be dismissed by invoking the Constitutional provision of Article 311 (2) (c). It, therefore, appears to be confusing and ambiguous. However, it is obvious and clear from the perusal of materials available that no inquiry whatsoever against the petitioner was ever conducted by the authority concerned.</p><p style="text-align: justify;">18. Amazingly no relevant record has been made available to exhibit that such D.P. was ever proceeded against the petitioner save and except mere mentioning of the same in the impugned order.</p><p style="text-align: justify;">19. Be tht as it may, if the impugned dismissal order is accepted to have been passed by invoking Article 311(2) (c) of the Constitution, then it is important to note that there is no whisper on the face of the order itself that such order was passed to the satisfaction of the Governor or the President, as the case may be, as required under the above provisions of law. For dismissing or removing an employee/delinquent in exercise of power entrusted upon the authority under Article 311 (2) (c) of the Constitution, it is constitutional mandate that the same must be passed on satisfaction of the President or Governor, as the case may be and that too the satisfaction needs to be in the interest of security of the State.</p><p style="text-align: justify;">20. No such things i.e. (i) whether the im pugned order was passed to the satisfaction of the President or Governor and (ii) whether it was in the interest of security of the State, have been clarified on behalf of the respon dents. Only fact that was recorded in the im pugned order is that the authority i.e. the Su perintendent of Police, Kokrajhar was satis fied with the continuation in police service of the petitioner was against the security risk of the State and that is why in terms of Article 311 (2)(c) of the Constitution read with Sec tion 7 of the Act and Rule 66 of the Assam Police Mannual (Part III), he was dismissed from service. It is really shocking to believe that after four years of the alleged commission of the offence, the impugned order has been passed by invoking Article 311 (2)(c) which on the face of it, has no legs to stand due to non-compliance of the provisions of law.</p><p style="text-align: justify;">21. The term security of the State along with other expression namely 'Law and order' and 'Public Order' was explained by the Apex Court in Union of India and Anr v. Tulsiram Patel reported in : (1985)IILLJ206SC wherein in paragraph-140 observed as follows:</p><p style="text-align: justify;">140. The expression 'law and order', 'public order' and 'security of the State' have been used in diffierent Acts. Situations which affect' public order' are graver than those which affect' law and order' and situation which affect 'security of the State 'are graver than those which affect 'public order'. Thus, of these situations those which affect 'security of the State' are the gravest. Danger to the security of the State may arise from without or within the State. The expression 'security of the State' does not mean security of the entire country or a whole State. In includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by the State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the Stale can be affected. The way in which the security of the State is affected may be either open or clandestine. Amongst the more obvious acts which affect the security of the State would be disaffection in the armed Forces or para-military Forces. Disaffection in any of these Forces is likely to spread, for disaffected or dissatisfied members of these Forces spread such dissatisfaction and disaffection among other members of the Force and thus induce them out not to discharge their duties properly and commit acts or indiscipline, insubordination and disobedience to the orders of their superiors. Such a situation cannot be a matter affecting only law and order or public order but is a matter affecting vitally the security of the State. In this respect, Police Force stands very much stands very much on the same footing as a military or para-military for it is charged with the duty of ensuring and maintaining law and order and public order, and breaches of discipline and acts of disobedience and subordination on the part of the members of the police force cannot be viewed with less gravity than similar acts on the part of the members of the military or paramilitary Forces. How important the proper discharge of their duties by members of these Forces and the maintenance of discipline among them is considered can be seen from Article 33 of the Constitution. Prior to the Constitution (Fiftieth Amendment) Act, 1984, Article 33 provides as follows:</p><p style="text-align: justify;">33. Power to Parliament to modify the right conferred by this Part in their application to Forces, etc. Parliament may by law determine to what extent any of the rights conferred by this part shall, in their application to the members of the armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and maintenance of discipline among them.</p><p style="text-align: justify;">By the Constitution (Fiftieth Amendment) Act, 1984, the article was substituted. By the substituted article the scope of the Parliament's power to so restrict or abrogate the application of any of the fundamental rights' is made wider. The substituted Article 33 reads as follows:</p><p style="text-align: justify;">33. Power to Parliament in modify the right conferred by this Part in their application in Forces, etc. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to-</p><p style="text-align: justify;">(a) the members of the Armed Forcs: or</p><p style="text-align: justify;">(b) the members of the Forces charged with the maintenance of public order; or</p><p style="text-align: justify;">(c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counter-intelligence: or</p><p style="text-align: justify;">(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to clauses (a) to (c) be restricted or abrogated so as to ensure the proper discharge or their duties and the maintenance of discipline among them.</p><p style="text-align: justify;">Thus, the discharge of their duties by the members of these forces and the maintenance of discipline amongst them is considered of such vital importance to the country that in order to ensure this the Constitution has conferred power upon Parliament to restrict or abrogate any of the fundamental rights in their application to them.</p><p style="text-align: justify;">22. In the instant case, the action so exhibited by the petitioner as reflected in the show cause, cannot be said an offence affecting Security of the State warranting dismissal by the impugned order. On the other hand, if there was any D.P. proceeded against the petitioner as claimed by the official respondents, due to non availability of any record pertaining to such D.P., this Court has not option but to approve the statements made on oath in writ petition that no such inquiry as such was ever held as stated in paragraphs 9 and 10.</p><p style="text-align: justify;">23. The impugned order appears to be a double edged sword. On one side it is claimed that a departmental proceeding was conducted by the department concerned and accordingly, all the charges levelled against the petitioner was found to be proved and at the same breath, the authority wanted to dismiss him by invoking Article 311 (2)(c) of the Constitution of India without holding any inquiry, the same being dispensed with in the interest of the security of the State.</p><p style="text-align: justify;">24. In view of what has been stated, discussed and observed above, this Court is of the firm view that this impugned order smacks arbitrariness, highhandedness and auhtoritativeness on the part of the authority concerned and lacks transparency and the same cannot, therefore, stand in the eye of law.</p><p style="text-align: justify;">25. Consequently, the impugned order stands quashed and set aside.</p><p style="text-align: justify;">26. At this stage, it is stated at the Bar that the petitioner has been continuing in his service in view of the interim order dated 27.11.2000 by which the impugned order was stayed.</p><p style="text-align: justify;">27. In view of the above, no order pertaining to service benefits is necessary to be passed. It also appears that the petitioner has approached this Court immediately by filing this writ petition on 27.11.2000 challenging the impugned order dated 1.11.2000 which was stayed on 27.11.2000 itself.</p><p style="text-align: justify;">28. Accordingly, the Interim order passed on 27.11.2000 is also hereby made absolute.</p><p style="text-align: justify;">In the result, this writ petition succeeds and stands allowed. 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State of Assam and ors.', 'casenote' => ' - - , I am satisfied with the findings that charged leveled against him is proved beyond all reasonable doubts who had failed to resist the extremists resulting snatching away of his arms and ammunitions while on duty. Further, I am satisfied that continuance in police service of AB. or b) Where the authority empowered todismiss 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 inquiry :or. ..(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. 6. An ordinary reading of the above provision particularly, Clause (c) of Article 311(2) of the Constitution would go to show that the holding of an inquiry vis-a-vis the opportunity of being heard to be given to the incumbent can be dispensed with if the President or Governor, as the case may be, is satisfied that in the interest of security of the State, it is not expedient to hold such inquiry. In other words, holding of any inquiry as prescribed under Clause (2) abovementioned can only be dispensed with if the President or Governor, as the case may, be satisfied that in the interest of security of the State such holding of inquiry is not necessary. 10. Having considered such reply as well as upon perusal of the findings of the Enquiry Officer in connection with Departmental Proceeding No. the petitioner, he was satisfied with the findings that the charged levelled against the petitioner was proved beyond reasonable doubt, it was recorded therein that continuance in police service of the petitioner would cause security risk to the State for which in terms of Article 311 (2) (c) of the Constitution read with Section 9 of the Act and Rule 66 of the Assam Police Manual (Part-III) the petitioner was dismissed from service. (c) Deprivation of good conduct pay;', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2007-06-14', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'Aftab Hussain Saikia, J.', 'judgement' => ' </p><p style="text-align: justify;">Aftab Hussain Saikia, J.</p><p style="text-align: justify;">1. Heard Mrs. N. Saikia, learned Counsel for the petitioner and Mrs. V.L. Singh, learned State Counsel, Assam representing the official respondents.</p><p style="text-align: justify;">2. The cardinal question posed in this writ petition is as to whether the impugned order dated 1.11.2000 issued by the respondent No. 3 dismissing the petitioner from service purportedly in terms of Article 311 (2) (c) of the Constitution of India read with Section 7 of the Assam Police Act, 1861 (for short, 'the Act') and Rule 66 of the Assam Police Manual (Part-III) is tenable in law.</p><p style="text-align: justify;">3. In the instant case, the petitioner who was working as AB/LN was dismissed from service by the impugned order dated 1.11.2000 basically by invoking the provisions of Article 311(2)(c) of the Constitution. For ready reference, the same be quoted as under:<p style="text-align: justify;">ORDER</p><p style="text-align: justify;">Perused the findings of the E.O. Shri A.C. Borah, APS, Addl. Supdt. of Police (S) Kokrajhar in connection with D/P No. 22/96 drawn up against delinquent AB L/N (H) 538 Dadhibal Mistry of Kokrajhar D.E.F., I am satisfied with the findings that charged leveled against him is proved beyond all reasonable doubts who had failed to resist the extremists resulting snatching away of his arms and ammunitions while on duty.</p><p style="text-align: justify;">Further, I am satisfied that continuance in police service of AB. L/N. (H) 538 Dadhibal Mistry of Kokrajhar, D.E.F. will couse security risk to the state and for which in terms of Article 311 (2) (c) of the Constitution of India R/W Section 7 of Police Act (V of 1861) and R/W Rule 60 of Assam Police Manual (Part-III) he is dismissed from service w.e.f. 1.11.2000. Also he shall not get any financial benefits during the periods of his suspension w.e.f. 18.6.96 to 21.8.96 except S/A only admissible as per rule.</p><p style="text-align: justify;">D.P. is disposed of accordingly.</p><p style="text-align: justify;">S/d IllegibleSuperintendent of Police, Kokrajhar1.11.2000.</p><p style="text-align: justify;">4. The main trust of argument of Mrs. Saikia, learned Counsel for the petitioner is that on the face of the impugned order itself it is manifestly apparent that the impugned order was not passed in consonance to the provisions of law enumerated under Article 311 (2) (c) of the Constitution of India.</p><p style="text-align: justify;">5. Before delving upon the submission of the learned Counsel for the petitioner, it would be necessary and apt to refer to the relevant Constitutional provisions:</p><p style="text-align: justify;">311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State-</p><p style="text-align: justify;">(1) No person who is a member of a civil service 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 authority subordinate to that by which he was appointed.</p><p style="text-align: justify;">(2) No such person as aforesaid shall be dismissed or removed or reduced in 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 those charges.</p><p style="text-align: justify;">Provided that where it is proposed after such inquiry, to imposed upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:</p><p style="text-align: justify;">Provided further that this clause shall not apply-</p><p style="text-align: justify;">a) Where a person is dismissed or removed orreduced in rank on the ground of conduct which has led to his conviction on a criminal charge: or</p><p style="text-align: justify;">b) Where the authority empowered todismiss 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 inquiry : or...</p><p style="text-align: justify;">(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of security of the State it is not expedient to hold such inquiry.</p><p style="text-align: justify;">6. An ordinary reading of the above provision particularly, Clause (c) of Article 311(2) of the Constitution would go to show that the holding of an inquiry vis-a-vis the opportunity of being heard to be given to the incumbent can be dispensed with if the President or Governor, as the case may be, is satisfied that in the interest of security of the State, it is not expedient to hold such inquiry. In other words, holding of any inquiry as prescribed under Clause (2) abovementioned can only be dispensed with if the President or Governor, as the case may, be satisfied that in the interest of security of the State such holding of inquiry is not necessary. Even the doctrine of natural justice for giving any opportunity of hearing to the incumbent in such case, is also not attracted.</p><p style="text-align: justify;">7. In the backdrop of this fact situation above and legal position, let us now notice briefly the factual matrix of this case as emerged from the show cause so served upon the petitioner on 14.7.96.</p><p style="text-align: justify;">8. The show cause notice dated 14.7.96 (Annexure-1 to the writ petition) referring to the proceeding No. 22/96 issued to the petitioner with the following allegations attached therewith:</p><p style="text-align: justify;">On 17.6.96 you were detailed at the Addl. Supdt. of Police, (B) Kokrajhar residence located at F.R.R.O. Office, Kokrajhar to perform Security Guard Commandar duty with Arms and ammunitions as per scale. At 7 P.M. some unknown miscreants entered in to the barrack and looted the Arms and ammunitions from the barrack. You are also found absent during the time of occurrence for which could not resist them. The amounts to your gross negligence and slackness in discharging lawful duty for which could not protect the Govt. property.</p><p style="text-align: justify;">You are, therefore, charged with gross misconduct, lawful negligence and dereliction of duty which render you unfit to remain in disciplined force.</p><p style="text-align: justify;">9. In respect of such show cause notice, the petitioner replied the show cause vide communication dated 5.7.06 wherein he has averred as under:</p><p style="text-align: justify;">That Sir, on 17.9.96 I along with the accompanied staff reach there in the F.R.R.O. office at about 6 P. M. and kept our Arms and Ammunitions in the Room attend for our sleeping and rest. Then I reported to Shri ABC/514 Ram Chandra Goala that today (17.6.90) I could not take my meal for the night due to some difficulties as my house and I am going to take my meal, to a nearby hotel and will come such immediately and I left the house keeping my Arms and Ammunitions thereafter locking the door of the room and giving the key of the lock to the ABC/514 Ram Chandra Goala and at about 7-10 P.M. and learnt ABC/514 Ram Chandra Goala that just after my departure some extremists forcibly entered the house premises and took the key of the door lock from ABC/514 Ram Chandra Goala under gun point and took my all the arms and ammunitions kept in the room under the bed of mine and the staff and left. The matter was informed to R.O., Kokrajhar over phone and after about 30 minutes the P.S. staff came to the spot.</p><p style="text-align: justify;">Therefore, I request your honour to be kind enough to consider my case sympathetically for the first time for such a mistake or remaining absent for 30.35 minutes from the duty post without any malice intention but to take meal for which act to your kindness, I shall remain ever pray and oblige. </p><p style="text-align: justify;">10. Having considered such reply as well as upon perusal of the findings of the Enquiry Officer in connection with Departmental Proceeding No. 22/96 as reflected in the impugned order itself, the petitioner was dismissed from service w.e.f. the date of issuance of the impugned order.</p><p style="text-align: justify;">11. The State respondents have refuted all the contentions and submissions made by the petitioner in this writ petition by filing response wherein it has been specifically stated in paragraph--8 that a Departmental proceeding (for, short, 'the D.P.') was initiated against the petitioner being D.P. No. 22/96 and an Enquiry Officer was also appointed for such purpose who in turn, after giving of opportunity of hearing to the petitioner found all the charges levelled against him to be proved beyond reasonable doubt and accordingly, the authority was justified and correct in dismissing the petitioner from service in invoking Article 31l(2)(c) of the Constitution read with Section 7 of the Act and Rule 66 of the Assam Police Mannual.</p><p style="text-align: justify;">12. No record has been produced by the official respondents at the time of hearing though the matter has been pending since 2000.</p><p style="text-align: justify;">13. On pointed query, the learned State Counsel, Assam has expressed that no such records have been handed over to the learned Counsel despite several intimations made to the authority concerned.</p><p style="text-align: justify;">14. On perusal of the impugned order, it is seen that although the authority in his impugned order demonstrated that on perusal of the findings of the Enquiry officer Shri A. C. Borah, in connection with D.P. No. 22/96 drawn up against the delinquent i.e. the petitioner, he was satisfied with the findings that the charged levelled against the petitioner was proved beyond reasonable doubt, it was recorded therein that continuance in police service of the petitioner would cause security risk to the State for which in terms of Article 311 (2) (c) of the Constitution read with Section 9 of the Act and Rule 66 of the Assam Police Manual (Part-III) the petitioner was dismissed from service.</p><p style="text-align: justify;">15. Be it mentioned here in that Section 7 of the Act provides for appointment, dismissal, etc. of inferior officers which reads as under:</p><p style="text-align: justify;">7 Appointment, dismissal, etc. of inferior officers--Subject to the provisions of Article 311 of the Constitution, and to such rules, as the State Government may from time to time make under this Act, the Inspector General Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think, remiss or negligent in the discharge of his duty or unfit for the same:</p><p style="text-align: justify;">or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely-</p><p style="text-align: justify;">(a) Fine to any amount not exceeding one month's payl;</p><p style="text-align: justify;">(b) Confinement to quarters for a term not exceeding fifteen days, with or without punishment-drill, extra guard, fatigue or other duty;</p><p style="text-align: justify;">(c) Deprivation of good conduct pay;</p><p style="text-align: justify;">(d) Removal from any office or distinction or special emoulment.</p><p style="text-align: justify;">16. Again Rule 66 of Assam Police Mannual (Part-III) prescribes the manner in which procedure to be drawn up in cases of major penalties and detailed process has been contemplated in the same provision.</p><p style="text-align: justify;">17. In view of the above, the impugned order goes to reflect that on one hand the petitioner was shown to be dismissed by holding a due enquiry through the departmental proceeding and at the same time he was shown to be dismissed by invoking the Constitutional provision of Article 311 (2) (c). It, therefore, appears to be confusing and ambiguous. However, it is obvious and clear from the perusal of materials available that no inquiry whatsoever against the petitioner was ever conducted by the authority concerned.</p><p style="text-align: justify;">18. Amazingly no relevant record has been made available to exhibit that such D.P. was ever proceeded against the petitioner save and except mere mentioning of the same in the impugned order.</p><p style="text-align: justify;">19. Be tht as it may, if the impugned dismissal order is accepted to have been passed by invoking Article 311(2) (c) of the Constitution, then it is important to note that there is no whisper on the face of the order itself that such order was passed to the satisfaction of the Governor or the President, as the case may be, as required under the above provisions of law. For dismissing or removing an employee/delinquent in exercise of power entrusted upon the authority under Article 311 (2) (c) of the Constitution, it is constitutional mandate that the same must be passed on satisfaction of the President or Governor, as the case may be and that too the satisfaction needs to be in the interest of security of the State.</p><p style="text-align: justify;">20. No such things i.e. (i) whether the im pugned order was passed to the satisfaction of the President or Governor and (ii) whether it was in the interest of security of the State, have been clarified on behalf of the respon dents. Only fact that was recorded in the im pugned order is that the authority i.e. the Su perintendent of Police, Kokrajhar was satis fied with the continuation in police service of the petitioner was against the security risk of the State and that is why in terms of Article 311 (2)(c) of the Constitution read with Sec tion 7 of the Act and Rule 66 of the Assam Police Mannual (Part III), he was dismissed from service. It is really shocking to believe that after four years of the alleged commission of the offence, the impugned order has been passed by invoking Article 311 (2)(c) which on the face of it, has no legs to stand due to non-compliance of the provisions of law.</p><p style="text-align: justify;">21. The term security of the State along with other expression namely 'Law and order' and 'Public Order' was explained by the Apex Court in Union of India and Anr v. Tulsiram Patel reported in : (1985)IILLJ206SC wherein in paragraph-140 observed as follows:</p><p style="text-align: justify;">140. The expression 'law and order', 'public order' and 'security of the State' have been used in diffierent Acts. Situations which affect' public order' are graver than those which affect' law and order' and situation which affect 'security of the State 'are graver than those which affect 'public order'. Thus, of these situations those which affect 'security of the State' are the gravest. Danger to the security of the State may arise from without or within the State. The expression 'security of the State' does not mean security of the entire country or a whole State. In includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by the State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the Stale can be affected. The way in which the security of the State is affected may be either open or clandestine. Amongst the more obvious acts which affect the security of the State would be disaffection in the armed Forces or para-military Forces. Disaffection in any of these Forces is likely to spread, for disaffected or dissatisfied members of these Forces spread such dissatisfaction and disaffection among other members of the Force and thus induce them out not to discharge their duties properly and commit acts or indiscipline, insubordination and disobedience to the orders of their superiors. Such a situation cannot be a matter affecting only law and order or public order but is a matter affecting vitally the security of the State. In this respect, Police Force stands very much stands very much on the same footing as a military or para-military for it is charged with the duty of ensuring and maintaining law and order and public order, and breaches of discipline and acts of disobedience and subordination on the part of the members of the police force cannot be viewed with less gravity than similar acts on the part of the members of the military or paramilitary Forces. How important the proper discharge of their duties by members of these Forces and the maintenance of discipline among them is considered can be seen from Article 33 of the Constitution. Prior to the Constitution (Fiftieth Amendment) Act, 1984, Article 33 provides as follows:</p><p style="text-align: justify;">33. Power to Parliament to modify the right conferred by this Part in their application to Forces, etc. Parliament may by law determine to what extent any of the rights conferred by this part shall, in their application to the members of the armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and maintenance of discipline among them.</p><p style="text-align: justify;">By the Constitution (Fiftieth Amendment) Act, 1984, the article was substituted. By the substituted article the scope of the Parliament's power to so restrict or abrogate the application of any of the fundamental rights' is made wider. The substituted Article 33 reads as follows:</p><p style="text-align: justify;">33. Power to Parliament in modify the right conferred by this Part in their application in Forces, etc. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to-</p><p style="text-align: justify;">(a) the members of the Armed Forcs: or</p><p style="text-align: justify;">(b) the members of the Forces charged with the maintenance of public order; or</p><p style="text-align: justify;">(c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counter-intelligence: or</p><p style="text-align: justify;">(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to clauses (a) to (c) be restricted or abrogated so as to ensure the proper discharge or their duties and the maintenance of discipline among them.</p><p style="text-align: justify;">Thus, the discharge of their duties by the members of these forces and the maintenance of discipline amongst them is considered of such vital importance to the country that in order to ensure this the Constitution has conferred power upon Parliament to restrict or abrogate any of the fundamental rights in their application to them.</p><p style="text-align: justify;">22. In the instant case, the action so exhibited by the petitioner as reflected in the show cause, cannot be said an offence affecting Security of the State warranting dismissal by the impugned order. On the other hand, if there was any D.P. proceeded against the petitioner as claimed by the official respondents, due to non availability of any record pertaining to such D.P., this Court has not option but to approve the statements made on oath in writ petition that no such inquiry as such was ever held as stated in paragraphs 9 and 10.</p><p style="text-align: justify;">23. The impugned order appears to be a double edged sword. On one side it is claimed that a departmental proceeding was conducted by the department concerned and accordingly, all the charges levelled against the petitioner was found to be proved and at the same breath, the authority wanted to dismiss him by invoking Article 311 (2)(c) of the Constitution of India without holding any inquiry, the same being dispensed with in the interest of the security of the State.</p><p style="text-align: justify;">24. In view of what has been stated, discussed and observed above, this Court is of the firm view that this impugned order smacks arbitrariness, highhandedness and auhtoritativeness on the part of the authority concerned and lacks transparency and the same cannot, therefore, stand in the eye of law.</p><p style="text-align: justify;">25. Consequently, the impugned order stands quashed and set aside.</p><p style="text-align: justify;">26. At this stage, it is stated at the Bar that the petitioner has been continuing in his service in view of the interim order dated 27.11.2000 by which the impugned order was stayed.</p><p style="text-align: justify;">27. In view of the above, no order pertaining to service benefits is necessary to be passed. It also appears that the petitioner has approached this Court immediately by filing this writ petition on 27.11.2000 challenging the impugned order dated 1.11.2000 which was stayed on 27.11.2000 itself.</p><p style="text-align: justify;">28. Accordingly, the Interim order passed on 27.11.2000 is also hereby made absolute.</p><p style="text-align: justify;">In the result, this writ petition succeeds and stands allowed. No costs.</p><p style="text-align: justify;">.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => null, 'ratiodecidendi' => '', 'respondent' => 'State of Assam and ors.', 'sub' => ';Service', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '126378' ) ) $title_for_layout = 'Dahibal Mistry Vs. State of Assam and ors. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Article 311', (int) 1 => 'Section 7 of the Assam Police Act', (int) 2 => 'Rule 66', (int) 3 => 'Article 311(2)(c', (int) 4 => 'Constitution', (int) 5 => 'Article 311', (int) 6 => 'Article 311', (int) 7 => 'Constitution', (int) 8 => 'Article 311(2', (int) 9 => 'Constitution', (int) 10 => 'Article 31l(2)(c', (int) 11 => 'Constitution', (int) 12 => 'Section 7 of the Act and Rule 66', (int) 13 => 'Article 311', (int) 14 => 'Constitution', (int) 15 => 'Section 9', (int) 16 => 'Section 7 of the Act', (int) 17 => 'Article 311 of the Constitution', (int) 18 => 'Constitutional', (int) 19 => 'Article 311', (int) 20 => 'Article 311(2', (int) 21 => 'Constitution', (int) 22 => 'Article 311', (int) 23 => 'Constitution', (int) 24 => 'Article 311', (int) 25 => 'Constitution', (int) 26 => 'Article 311', (int) 27 => 'Article 33 of the Constitution', (int) 28 => 'Constitution', (int) 29 => 'Article 33', (int) 30 => 'Constitution', (int) 31 => 'Article 33', (int) 32 => 'Constitution', (int) 33 => 'Article 311' ), 'PERSON' => array( (int) 0 => 'Aftab Hussain Saikia', (int) 1 => 'N. Saikia', (int) 2 => 'V.L. Singh', (int) 3 => 'Addl', (int) 4 => 'Saikia', (int) 5 => 'Dismissal', (int) 6 => 'Kokrajhar', (int) 7 => 'Chandra Goala', (int) 8 => 'Chandra Goala', (int) 9 => 'Chandra Goala', (int) 10 => 'Chandra Goala', (int) 11 => 'Kokrajhar', (int) 12 => 'Enquiry', (int) 13 => 'Shri A. C. Borah', (int) 14 => 'D.P.', (int) 15 => 'Su', (int) 16 => 'Kokrajhar', (int) 17 => 'Law', (int) 18 => 'Anr', (int) 19 => 'Tulsiram Patel', (int) 20 => 'D.P.', (int) 21 => 'stayed.27' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'P.M.', (int) 2 => 'P.M.' ), 'GPE' => array( (int) 0 => 'Counsel', (int) 1 => 'India', (int) 2 => 'AB', (int) 3 => 'Counsel', (int) 4 => 'India', (int) 5 => 'F.R.R.O.', (int) 6 => 'R.O.', (int) 7 => 'P.S.', (int) 8 => 'Police', (int) 9 => 'India' ), 'ORG' => array( (int) 0 => 'State Counsel', (int) 1 => 'APS', (int) 2 => 'Police (S) Kokrajhar', (int) 3 => 'AB L/N (H', (int) 4 => 'Dadhibal Mistry of Kokrajhar D.E.F.', (int) 5 => 'L/N. (H', (int) 6 => 'Dadhibal Mistry of Kokrajhar', (int) 7 => 'D.E.F.', (int) 8 => 'D.P.', (int) 9 => 'State', (int) 10 => 'State', (int) 11 => 'State', (int) 12 => 'State', (int) 13 => 'State', (int) 14 => 'F.R.R.O. Office', (int) 15 => 'Departmental Proceeding No', (int) 16 => 'State', (int) 17 => 'Departmental', (int) 18 => 'D.P.', (int) 19 => 'State Counsel', (int) 20 => 'Counsel', (int) 21 => 'State', (int) 22 => 'the State Government', (int) 23 => 'District Superintendents of Police', (int) 24 => 'State', (int) 25 => 'State', (int) 26 => 'Sec', (int) 27 => 'State', (int) 28 => 'the Apex Court', (int) 29 => 'Union of India', (int) 30 => 'State', (int) 31 => 'State', (int) 32 => 'State', (int) 33 => 'State', (int) 34 => 'State', (int) 35 => 'State', (int) 36 => 'State', (int) 37 => 'State', (int) 38 => 'State', (int) 39 => 'State', (int) 40 => 'Stale', (int) 41 => 'State', (int) 42 => 'State', (int) 43 => 'Force', (int) 44 => 'State', (int) 45 => 'Police Force', (int) 46 => 'Parliament', (int) 47 => 'Parliament', (int) 48 => 'the armed Forces or the Forces', (int) 49 => 'Parliament', (int) 50 => 'Parliament', (int) 51 => 'Parliament', (int) 52 => 'the Armed Forcs:', (int) 53 => 'State', (int) 54 => 'or(d', (int) 55 => 'Force', (int) 56 => 'Parliament', (int) 57 => 'State', (int) 58 => 'D.P.', (int) 59 => 'Court', (int) 60 => 'Court', (int) 61 => 'Bar', (int) 62 => 'Court' ), 'CARDINAL' => array( (int) 0 => '1.11.2000', (int) 1 => '3', (int) 2 => '2', (int) 3 => '1.11.2000', (int) 4 => '22/96', (int) 5 => '538', (int) 6 => '538', (int) 7 => '2', (int) 8 => '1.11.2000', (int) 9 => '18.6.96 to', (int) 10 => '21.8.96', (int) 11 => '2', (int) 12 => '2', (int) 13 => '14.7.96', (int) 14 => '22/96', (int) 15 => '17.6.96', (int) 16 => '5.7.06', (int) 17 => '17.6.90', (int) 18 => '10', (int) 19 => '22/96', (int) 20 => '22/96', (int) 21 => '2000.13', (int) 22 => '22/96', (int) 23 => '2', (int) 24 => '66', (int) 25 => '66', (int) 26 => '2', (int) 27 => '2', (int) 28 => '2)(c', (int) 29 => '2)(c', (int) 30 => '1985)IILLJ206SC', (int) 31 => '9', (int) 32 => '10.23', (int) 33 => '2)(c', (int) 34 => '27.11.2000', (int) 35 => '27.11.2000', (int) 36 => '1.11.2000', (int) 37 => '27.11.2000', (int) 38 => '27.11.2000' ), 'DATE' => array( (int) 0 => '1861', (int) 1 => '1861', (int) 2 => '14.7.96.8', (int) 3 => 'one month's', (int) 4 => 'fifteen days', (int) 5 => 'four years', (int) 6 => '1984', (int) 7 => '1984' ), 'LOC' => array( (int) 0 => 'Govt' ), 'WORK_OF_ART' => array( (int) 0 => 'Arms and Ammunitions' ), 'TIME' => array( (int) 0 => 'about 30 minutes', (int) 1 => '30.35 minutes', (int) 2 => '7 of the Act and Rule 66' ), 'ORDINAL' => array( (int) 0 => 'first' ), 'FAC' => array( (int) 0 => 'the Enquiry Officer' ) ) $desc = array( 'Judgement' => array( 'id' => '126378', 'acts' => '', 'appealno' => '', 'appellant' => 'Dahibal Mistry', 'authreffered' => '', 'casename' => 'Dahibal Mistry Vs. State of Assam and ors.', 'casenote' => ' - - , I am satisfied with the findings that charged leveled against him is proved beyond all reasonable doubts who had failed to resist the extremists resulting snatching away of his arms and ammunitions while on duty. Further, I am satisfied that continuance in police service of AB. or b) Where the authority empowered todismiss 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 inquiry :or. ..(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. 6. An ordinary reading of the above provision particularly, Clause (c) of Article 311(2) of the Constitution would go to show that the holding of an inquiry vis-a-vis the opportunity of being heard to be given to the incumbent can be dispensed with if the President or Governor, as the case may be, is satisfied that in the interest of security of the State, it is not expedient to hold such inquiry. In other words, holding of any inquiry as prescribed under Clause (2) abovementioned can only be dispensed with if the President or Governor, as the case may, be satisfied that in the interest of security of the State such holding of inquiry is not necessary. 10. Having considered such reply as well as upon perusal of the findings of the Enquiry Officer in connection with Departmental Proceeding No. the petitioner, he was satisfied with the findings that the charged levelled against the petitioner was proved beyond reasonable doubt, it was recorded therein that continuance in police service of the petitioner would cause security risk to the State for which in terms of Article 311 (2) (c) of the Constitution read with Section 9 of the Act and Rule 66 of the Assam Police Manual (Part-III) the petitioner was dismissed from service. (c) Deprivation of good conduct pay;', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Guwahati', 'court_type' => 'HC', 'decidedon' => '2007-06-14', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'Aftab Hussain Saikia, J.', 'judgement' => ' </p><p style="text-align: justify;">Aftab Hussain Saikia, J.</p><p style="text-align: justify;">1. Heard Mrs. N. Saikia, learned Counsel for the petitioner and Mrs. V.L. Singh, learned State Counsel, Assam representing the official respondents.</p><p style="text-align: justify;">2. The cardinal question posed in this writ petition is as to whether the impugned order dated 1.11.2000 issued by the respondent No. 3 dismissing the petitioner from service purportedly in terms of Article 311 (2) (c) of the Constitution of India read with Section 7 of the Assam Police Act, 1861 (for short, 'the Act') and Rule 66 of the Assam Police Manual (Part-III) is tenable in law.</p><p style="text-align: justify;">3. In the instant case, the petitioner who was working as AB/LN was dismissed from service by the impugned order dated 1.11.2000 basically by invoking the provisions of Article 311(2)(c) of the Constitution. For ready reference, the same be quoted as under:<p style="text-align: justify;">ORDER</p><p style="text-align: justify;">Perused the findings of the E.O. Shri A.C. Borah, APS, Addl. Supdt. of Police (S) Kokrajhar in connection with D/P No. 22/96 drawn up against delinquent AB L/N (H) 538 Dadhibal Mistry of Kokrajhar D.E.F., I am satisfied with the findings that charged leveled against him is proved beyond all reasonable doubts who had failed to resist the extremists resulting snatching away of his arms and ammunitions while on duty.</p><p style="text-align: justify;">Further, I am satisfied that continuance in police service of AB. L/N. (H) 538 Dadhibal Mistry of Kokrajhar, D.E.F. will couse security risk to the state and for which in terms of Article 311 (2) (c) of the Constitution of India R/W Section 7 of Police Act (V of 1861) and R/W Rule 60 of Assam Police Manual (Part-III) he is dismissed from service w.e.f. 1.11.2000. Also he shall not get any financial benefits during the periods of his suspension w.e.f. 18.6.96 to 21.8.96 except S/A only admissible as per rule.</p><p style="text-align: justify;">D.P. is disposed of accordingly.</p><p style="text-align: justify;">S/d IllegibleSuperintendent of Police, Kokrajhar1.11.2000.</p><p style="text-align: justify;">4. The main trust of argument of Mrs. Saikia, learned Counsel for the petitioner is that on the face of the impugned order itself it is manifestly apparent that the impugned order was not passed in consonance to the provisions of law enumerated under Article 311 (2) (c) of the Constitution of India.</p><p style="text-align: justify;">5. Before delving upon the submission of the learned Counsel for the petitioner, it would be necessary and apt to refer to the relevant Constitutional provisions:</p><p style="text-align: justify;">311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State-</p><p style="text-align: justify;">(1) No person who is a member of a civil service 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 authority subordinate to that by which he was appointed.</p><p style="text-align: justify;">(2) No such person as aforesaid shall be dismissed or removed or reduced in 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 those charges.</p><p style="text-align: justify;">Provided that where it is proposed after such inquiry, to imposed upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:</p><p style="text-align: justify;">Provided further that this clause shall not apply-</p><p style="text-align: justify;">a) Where a person is dismissed or removed orreduced in rank on the ground of conduct which has led to his conviction on a criminal charge: or</p><p style="text-align: justify;">b) Where the authority empowered todismiss 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 inquiry : or...</p><p style="text-align: justify;">(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of security of the State it is not expedient to hold such inquiry.</p><p style="text-align: justify;">6. An ordinary reading of the above provision particularly, Clause (c) of Article 311(2) of the Constitution would go to show that the holding of an inquiry vis-a-vis the opportunity of being heard to be given to the incumbent can be dispensed with if the President or Governor, as the case may be, is satisfied that in the interest of security of the State, it is not expedient to hold such inquiry. In other words, holding of any inquiry as prescribed under Clause (2) abovementioned can only be dispensed with if the President or Governor, as the case may, be satisfied that in the interest of security of the State such holding of inquiry is not necessary. Even the doctrine of natural justice for giving any opportunity of hearing to the incumbent in such case, is also not attracted.</p><p style="text-align: justify;">7. In the backdrop of this fact situation above and legal position, let us now notice briefly the factual matrix of this case as emerged from the show cause so served upon the petitioner on 14.7.96.</p><p style="text-align: justify;">8. The show cause notice dated 14.7.96 (Annexure-1 to the writ petition) referring to the proceeding No. 22/96 issued to the petitioner with the following allegations attached therewith:</p><p style="text-align: justify;">On 17.6.96 you were detailed at the Addl. Supdt. of Police, (B) Kokrajhar residence located at F.R.R.O. Office, Kokrajhar to perform Security Guard Commandar duty with Arms and ammunitions as per scale. At 7 P.M. some unknown miscreants entered in to the barrack and looted the Arms and ammunitions from the barrack. You are also found absent during the time of occurrence for which could not resist them. The amounts to your gross negligence and slackness in discharging lawful duty for which could not protect the Govt. property.</p><p style="text-align: justify;">You are, therefore, charged with gross misconduct, lawful negligence and dereliction of duty which render you unfit to remain in disciplined force.</p><p style="text-align: justify;">9. In respect of such show cause notice, the petitioner replied the show cause vide communication dated 5.7.06 wherein he has averred as under:</p><p style="text-align: justify;">That Sir, on 17.9.96 I along with the accompanied staff reach there in the F.R.R.O. office at about 6 P. M. and kept our Arms and Ammunitions in the Room attend for our sleeping and rest. Then I reported to Shri ABC/514 Ram Chandra Goala that today (17.6.90) I could not take my meal for the night due to some difficulties as my house and I am going to take my meal, to a nearby hotel and will come such immediately and I left the house keeping my Arms and Ammunitions thereafter locking the door of the room and giving the key of the lock to the ABC/514 Ram Chandra Goala and at about 7-10 P.M. and learnt ABC/514 Ram Chandra Goala that just after my departure some extremists forcibly entered the house premises and took the key of the door lock from ABC/514 Ram Chandra Goala under gun point and took my all the arms and ammunitions kept in the room under the bed of mine and the staff and left. The matter was informed to R.O., Kokrajhar over phone and after about 30 minutes the P.S. staff came to the spot.</p><p style="text-align: justify;">Therefore, I request your honour to be kind enough to consider my case sympathetically for the first time for such a mistake or remaining absent for 30.35 minutes from the duty post without any malice intention but to take meal for which act to your kindness, I shall remain ever pray and oblige. </p><p style="text-align: justify;">10. Having considered such reply as well as upon perusal of the findings of the Enquiry Officer in connection with Departmental Proceeding No. 22/96 as reflected in the impugned order itself, the petitioner was dismissed from service w.e.f. the date of issuance of the impugned order.</p><p style="text-align: justify;">11. The State respondents have refuted all the contentions and submissions made by the petitioner in this writ petition by filing response wherein it has been specifically stated in paragraph--8 that a Departmental proceeding (for, short, 'the D.P.') was initiated against the petitioner being D.P. No. 22/96 and an Enquiry Officer was also appointed for such purpose who in turn, after giving of opportunity of hearing to the petitioner found all the charges levelled against him to be proved beyond reasonable doubt and accordingly, the authority was justified and correct in dismissing the petitioner from service in invoking Article 31l(2)(c) of the Constitution read with Section 7 of the Act and Rule 66 of the Assam Police Mannual.</p><p style="text-align: justify;">12. No record has been produced by the official respondents at the time of hearing though the matter has been pending since 2000.</p><p style="text-align: justify;">13. On pointed query, the learned State Counsel, Assam has expressed that no such records have been handed over to the learned Counsel despite several intimations made to the authority concerned.</p><p style="text-align: justify;">14. On perusal of the impugned order, it is seen that although the authority in his impugned order demonstrated that on perusal of the findings of the Enquiry officer Shri A. C. Borah, in connection with D.P. No. 22/96 drawn up against the delinquent i.e. the petitioner, he was satisfied with the findings that the charged levelled against the petitioner was proved beyond reasonable doubt, it was recorded therein that continuance in police service of the petitioner would cause security risk to the State for which in terms of Article 311 (2) (c) of the Constitution read with Section 9 of the Act and Rule 66 of the Assam Police Manual (Part-III) the petitioner was dismissed from service.</p><p style="text-align: justify;">15. Be it mentioned here in that Section 7 of the Act provides for appointment, dismissal, etc. of inferior officers which reads as under:</p><p style="text-align: justify;">7 Appointment, dismissal, etc. of inferior officers--Subject to the provisions of Article 311 of the Constitution, and to such rules, as the State Government may from time to time make under this Act, the Inspector General Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think, remiss or negligent in the discharge of his duty or unfit for the same:</p><p style="text-align: justify;">or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely-</p><p style="text-align: justify;">(a) Fine to any amount not exceeding one month's payl;</p><p style="text-align: justify;">(b) Confinement to quarters for a term not exceeding fifteen days, with or without punishment-drill, extra guard, fatigue or other duty;</p><p style="text-align: justify;">(c) Deprivation of good conduct pay;</p><p style="text-align: justify;">(d) Removal from any office or distinction or special emoulment.</p><p style="text-align: justify;">16. Again Rule 66 of Assam Police Mannual (Part-III) prescribes the manner in which procedure to be drawn up in cases of major penalties and detailed process has been contemplated in the same provision.</p><p style="text-align: justify;">17. In view of the above, the impugned order goes to reflect that on one hand the petitioner was shown to be dismissed by holding a due enquiry through the departmental proceeding and at the same time he was shown to be dismissed by invoking the Constitutional provision of Article 311 (2) (c). It, therefore, appears to be confusing and ambiguous. However, it is obvious and clear from the perusal of materials available that no inquiry whatsoever against the petitioner was ever conducted by the authority concerned.</p><p style="text-align: justify;">18. Amazingly no relevant record has been made available to exhibit that such D.P. was ever proceeded against the petitioner save and except mere mentioning of the same in the impugned order.</p><p style="text-align: justify;">19. Be tht as it may, if the impugned dismissal order is accepted to have been passed by invoking Article 311(2) (c) of the Constitution, then it is important to note that there is no whisper on the face of the order itself that such order was passed to the satisfaction of the Governor or the President, as the case may be, as required under the above provisions of law. For dismissing or removing an employee/delinquent in exercise of power entrusted upon the authority under Article 311 (2) (c) of the Constitution, it is constitutional mandate that the same must be passed on satisfaction of the President or Governor, as the case may be and that too the satisfaction needs to be in the interest of security of the State.</p><p style="text-align: justify;">20. No such things i.e. (i) whether the im pugned order was passed to the satisfaction of the President or Governor and (ii) whether it was in the interest of security of the State, have been clarified on behalf of the respon dents. Only fact that was recorded in the im pugned order is that the authority i.e. the Su perintendent of Police, Kokrajhar was satis fied with the continuation in police service of the petitioner was against the security risk of the State and that is why in terms of Article 311 (2)(c) of the Constitution read with Sec tion 7 of the Act and Rule 66 of the Assam Police Mannual (Part III), he was dismissed from service. It is really shocking to believe that after four years of the alleged commission of the offence, the impugned order has been passed by invoking Article 311 (2)(c) which on the face of it, has no legs to stand due to non-compliance of the provisions of law.</p><p style="text-align: justify;">21. The term security of the State along with other expression namely 'Law and order' and 'Public Order' was explained by the Apex Court in Union of India and Anr v. Tulsiram Patel reported in : (1985)IILLJ206SC wherein in paragraph-140 observed as follows:</p><p style="text-align: justify;">140. The expression 'law and order', 'public order' and 'security of the State' have been used in diffierent Acts. Situations which affect' public order' are graver than those which affect' law and order' and situation which affect 'security of the State 'are graver than those which affect 'public order'. Thus, of these situations those which affect 'security of the State' are the gravest. Danger to the security of the State may arise from without or within the State. The expression 'security of the State' does not mean security of the entire country or a whole State. In includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by the State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the Stale can be affected. The way in which the security of the State is affected may be either open or clandestine. Amongst the more obvious acts which affect the security of the State would be disaffection in the armed Forces or para-military Forces. Disaffection in any of these Forces is likely to spread, for disaffected or dissatisfied members of these Forces spread such dissatisfaction and disaffection among other members of the Force and thus induce them out not to discharge their duties properly and commit acts or indiscipline, insubordination and disobedience to the orders of their superiors. Such a situation cannot be a matter affecting only law and order or public order but is a matter affecting vitally the security of the State. In this respect, Police Force stands very much stands very much on the same footing as a military or para-military for it is charged with the duty of ensuring and maintaining law and order and public order, and breaches of discipline and acts of disobedience and subordination on the part of the members of the police force cannot be viewed with less gravity than similar acts on the part of the members of the military or paramilitary Forces. How important the proper discharge of their duties by members of these Forces and the maintenance of discipline among them is considered can be seen from Article 33 of the Constitution. Prior to the Constitution (Fiftieth Amendment) Act, 1984, Article 33 provides as follows:</p><p style="text-align: justify;">33. Power to Parliament to modify the right conferred by this Part in their application to Forces, etc. Parliament may by law determine to what extent any of the rights conferred by this part shall, in their application to the members of the armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and maintenance of discipline among them.</p><p style="text-align: justify;">By the Constitution (Fiftieth Amendment) Act, 1984, the article was substituted. By the substituted article the scope of the Parliament's power to so restrict or abrogate the application of any of the fundamental rights' is made wider. The substituted Article 33 reads as follows:</p><p style="text-align: justify;">33. Power to Parliament in modify the right conferred by this Part in their application in Forces, etc. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to-</p><p style="text-align: justify;">(a) the members of the Armed Forcs: or</p><p style="text-align: justify;">(b) the members of the Forces charged with the maintenance of public order; or</p><p style="text-align: justify;">(c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counter-intelligence: or</p><p style="text-align: justify;">(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to clauses (a) to (c) be restricted or abrogated so as to ensure the proper discharge or their duties and the maintenance of discipline among them.</p><p style="text-align: justify;">Thus, the discharge of their duties by the members of these forces and the maintenance of discipline amongst them is considered of such vital importance to the country that in order to ensure this the Constitution has conferred power upon Parliament to restrict or abrogate any of the fundamental rights in their application to them.</p><p style="text-align: justify;">22. In the instant case, the action so exhibited by the petitioner as reflected in the show cause, cannot be said an offence affecting Security of the State warranting dismissal by the impugned order. On the other hand, if there was any D.P. proceeded against the petitioner as claimed by the official respondents, due to non availability of any record pertaining to such D.P., this Court has not option but to approve the statements made on oath in writ petition that no such inquiry as such was ever held as stated in paragraphs 9 and 10.</p><p style="text-align: justify;">23. The impugned order appears to be a double edged sword. On one side it is claimed that a departmental proceeding was conducted by the department concerned and accordingly, all the charges levelled against the petitioner was found to be proved and at the same breath, the authority wanted to dismiss him by invoking Article 311 (2)(c) of the Constitution of India without holding any inquiry, the same being dispensed with in the interest of the security of the State.</p><p style="text-align: justify;">24. In view of what has been stated, discussed and observed above, this Court is of the firm view that this impugned order smacks arbitrariness, highhandedness and auhtoritativeness on the part of the authority concerned and lacks transparency and the same cannot, therefore, stand in the eye of law.</p><p style="text-align: justify;">25. Consequently, the impugned order stands quashed and set aside.</p><p style="text-align: justify;">26. At this stage, it is stated at the Bar that the petitioner has been continuing in his service in view of the interim order dated 27.11.2000 by which the impugned order was stayed.</p><p style="text-align: justify;">27. In view of the above, no order pertaining to service benefits is necessary to be passed. It also appears that the petitioner has approached this Court immediately by filing this writ petition on 27.11.2000 challenging the impugned order dated 1.11.2000 which was stayed on 27.11.2000 itself.</p><p style="text-align: justify;">28. Accordingly, the Interim order passed on 27.11.2000 is also hereby made absolute.</p><p style="text-align: justify;">In the result, this writ petition succeeds and stands allowed. No costs.</p><p style="text-align: justify;">.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => null, 'ratiodecidendi' => '', 'respondent' => 'State of Assam and ors.', 'sub' => ';Service', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '126378' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Article 311, Section 7 of the Assam Police Act, Rule 66, Article 311(2)(c, Constitution, Article 311, Article 311, Constitution, Article 311(2, Constitution, Article 31l(2)(c, Constitution, Section 7 of the Act and Rule 66, Article 311, Constitution, Section 9, Section 7 of the Act, Article 311 of the Constitution, Constitutional, Article 311, Article 311(2, Constitution, Article 311, Constitution, Article 311, Constitution, Article 311, Article 33 of the Constitution, Constitution, Article 33, Constitution, Article 33, Constitution, Article 311
PERSON: Aftab Hussain Saikia, N. Saikia, V.L. Singh, Addl, Saikia, Dismissal, Kokrajhar, Chandra Goala, Chandra Goala, Chandra Goala, Chandra Goala, Kokrajhar, Enquiry, Shri A. C. Borah, D.P., Su, Kokrajhar, Law, Anr, Tulsiram Patel, D.P., stayed.27
NORP: J.1, P.M., P.M.
GPE: Counsel, India, AB, Counsel, India, F.R.R.O., R.O., P.S., Police, India
ORG: State Counsel, APS, Police (S) Kokrajhar, AB L/N (H, Dadhibal Mistry of Kokrajhar D.E.F., L/N. (H, Dadhibal Mistry of Kokrajhar, D.E.F., D.P., State, State, State, State, State, F.R.R.O. Office, Departmental Proceeding No, State, Departmental, D.P., State Counsel, Counsel, State, the State Government, District Superintendents of Police, State, State, Sec, State, the Apex Court, Union of India, State, State, State, State, State, State, State, State, State, State, Stale, State, State, Force, State, Police Force, Parliament, Parliament, the armed Forces or the Forces, Parliament, Parliament, Parliament, the Armed Forcs:, State, or(d, Force, Parliament, State, D.P., Court, Court, Bar, Court
CARDINAL: 1.11.2000, 3, 2, 1.11.2000, 22/96, 538, 538, 2, 1.11.2000, 18.6.96 to, 21.8.96, 2, 2, 14.7.96, 22/96, 17.6.96, 5.7.06, 17.6.90, 10, 22/96, 22/96, 2000.13, 22/96, 2, 66, 66, 2, 2, 2)(c, 2)(c, 1985)IILLJ206SC, 9, 10.23, 2)(c, 27.11.2000, 27.11.2000, 1.11.2000, 27.11.2000, 27.11.2000
DATE: 1861, 1861, 14.7.96.8, one month's, fifteen days, four years, 1984, 1984
LOC: Govt
WORK_OF_ART: Arms and Ammunitions
TIME: about 30 minutes, 30.35 minutes, 7 of the Act and Rule 66
ORDINAL: first
FAC: the Enquiry Officer