2026 INSC 234

1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 13860 OF 2024

MANOHAR LAL …APPELLANT(S)

VERSUS

COMMISSIONER OF POLICE & ORS. …RESPONDENT(S)

J U D G M E N T

J.K. MAHESHWARI , J.

1) The instant appeal is directed against the order dated 02.02.2023

passed by the Division Bench of the High Court of Delhi (hereinafter

‘High Court’) disposing of the writ petition filed by the appellant

questioning the order of dismissal from service dated 18.07.2017 passed

by Deputy Commissioner of Police (hereinafter ‘DCP’), New Delhi, the

Order of Appellate Authority dated 30.07.2018 and the Order dated

REPORTABLE

2

29.11.2022 passed by Central Administrative Tribunal, Principal Bench

at New Delhi (hereinafter ‘CAT’) in OA No. 744 of 2020.

2) The appellant was dismissed from service by the DCP, Delhi vide

order dated 18.07.2017, in exercise of the power under clause (b) of

second proviso to Article 311(2) of the Constitution of India without

conducting departmental inquiry. The reason assigned for not resorting

to the normal procedure prescribed under Delhi Police (Punishment and

Appeal) Rules, 1980 (hereinafter ‘1980 Rules’), was that Shri Govind

Sharma, Assistant Commissioner of Police (hereinafter ‘ACP’) in the

preliminary enquiry found that it would not be ‘reasonably practicable’

to conduct a regular departmental enquiry on account of reasonable

belief of threat, intimidation and inducement to the victim and thereby

creating the possibility of tampering of the vital evidence.

3) The appeal against the said order was dismissed by the Special

Commissioner of Police, Delhi vide order dated 30.07.2018 accepting the

reasons as indicated in the order of dismissal.

4) Being dissatisfied, the appellant filed OA No. 744 of 2020 before

CAT seeking quashment of his dismissal order and the order of the

appellate authority. The CAT referred to the stand as taken in the

counter affidavit of the State, relied upon some judgments and declined

3

to interfere, dismissing the Original Application filed by the appellant

vide order dated 29.11.2022. Writ Petition (Civil) No. 1309 of 2023 filed

before the High Court of Delhi by the appellant was dismissed, accepting

the same reasoning as taken by the DCP.

5) Ms. V. Mohana, learned senior counsel, appearing on behalf of the

appellant, referring to Section 21 of the Delhi Police Act, 1978

(hereinafter ‘1978 Act’) contends that the power of punishment

conferred upon the competent authority is not absolute; it is subject to

the provisions of Article 311 of the Constitution of India and the 1980

Rules referred above. Referring to Rule 6, she contend ed that

punishment mentioned at Serial Nos. (i) to (vii) of Rule 5 therein are

deemed to be ‘major penalties’ and the competent authority can award

the same after regular departmental inquiry. It is contended that as per

Rule 14(2), a punishment of major penalty ought to be awarded by the

appointing authority only after the regular departmental inquiry. Article

311(2) of the Constitution of India contemplates that if a person is a

member of a civil service of the Union or all India Service or a Civil

Service of a State or holds a civil post under the Union or a State, he

shall not be dismissed or removed or reduced in rank except after an

inquiry in which he has been informed of the charges against him and

has been afforded reasonable opportunity of being heard. The first

4

proviso contemplates that in case the penalty is required to be imposed

on the basis of evidence adduced during the inquiry, it would not be

necessary to afford an opportunity of making representation on the

proposed penalty. Clause (b) of second proviso states that where the

authority empowered to remove a person is satisfied for some reason to

be recorded in writing, to the effect that holding an inquiry is not

‘reasonably practicable’, the orders can be passed without adhering to

the general principle contemplated by Article 311(2).

6) In reference to above, learned senior counsel submits that after

registration of FIR No. 390 of 2017 on 28.06.2017, the appellant was

taken into custody on 29.06.2017 and released on bail on 14.10.2017.

In the meanwhile, the competent authority, vide order dated

18.07.2017, in exercise of power under clause (b) of second proviso of

Article 311 (2), indicating that possibility of traumatizing the witnesses

may not be ruled out, dismissed him from service. It is forcefully

contended that while the appellant was in custody, reason as assigned

of intimidating or traumatizing the witnesses are flimsy. In absence of

any convincing material, exercise of such extra-ordinary power ignoring

the procedure prescribed under the 1980 Rules is not permissible

otherwise it would amount to misuse of the power by the competent

authority. In support of these contentions, learned senior counsel has

5

placed reliance on the judgments of this Court in Union of India and

Anr. v. Tulsiram Patel and Others

1

, Jaswant Singh v. State of

Punjab and Ors.

2

, Ex. Const. Chhote Lal v. Union of India & Ors.

3

,

Sudesh Kumar v. State of Haryana and Ors.

4

, Tarsem Singh v.

State of Punjab

5

, State of Punjab v. Harbhajan Singh

6

, Reena Rani

v. State of Haryana

7

, and Risal Singh v. State of Haryana

8

.

7) It is urged that the dismissal order passed by the competent

authority and confirmed by the appellate authority is not legally

sustainable and the CAT as well as the High Court have committed grave

error in refusing to entertain the Original Application and the Writ

Petition challenging the same. Therefore, the order of dismissal is liable

to be quashed and set-aside.

8) Per contra, learned Additional Solicitor General Mr. Brijender

Chahar, representing the State, inter alia, relied upon the preliminary

inquiry of the ACP and the documents collected, DD entries of

1 (1985) 3 SCC 398

2 (1991) 1 SCC 362

3 (2000) 10 SCC 196

4 (2005) 11 SCC 525

5 (2006) 13 SCC 581

6 (2007) 15 SCC 217

7 (2012) 10 SCC 215

8 (2014) 13 SCC 244

6

information and proceedings and other relevant material in support of

his contentions. As per him, these documents reflect that the

complainant and witnesses could have been traumatized by the

egregious act of appellant and his associates who are in the police

department. Possibility of their association with criminals and to

approach the complainant or witnesses to intimidate or to induce them

for withdrawing from the case or to turn them hostile during trial cannot

be ruled out. In light of such apprehension, power exercised by the

competent authority for not proceeding with the normal procedure of

departmental inquiry is within the scope of its authority. It is contended

that the stand as taken by the Department has been accepted by the

CAT and the High Court; therefore, interference is not warranted.

9) After hearing learned counsel for the parties, we find that since the

power of punishment of the competent authority has been conferred

upon it vide Section 21 and the procedure as prescribed under Section

22 of the 1978 Act, they are relevant, hence, reproduced as under :

“21. Powers of punishment.— (1) Subject to the provisions

of article 311 of the Constitution and the rules, the Commissioner

of Police, Additional Commissioner of Police, Deputy

Commissioner of Police, Additional Deputy Commissioner of

Police, Principal of the Police Training College or of the Police

Training School or any other officer of equivalent rank, may

award to any police officer of subordinate rank any of the

following punishments, namely:—

7

(a) dismissal;

(b) removal from service;

(c) reduction in rank;

(d) forfeiture of approved service;

(e) reduction in pay;

(f) withholding of increment; and

(g) fine not exceeding one month’s pay.

(2) Subject to the rules—

(a) any police officer specified in sub-section (1) may

award the punishment of censure to any police officer of

subordinate rank;

(b) the Assistant Commissioner of Police may award

the punishment of censure to police officers of, or below, the rank

of Sub-Inspectors of Police;

(c) any police officer of, and above, the rank of

Inspector may award punishment drill not exceeding fifteen days

or fatigue duty or any other punitive duty to constables.

(3) Nothing in sub-section (1) or sub-section (2) shall affect

any police officer’s liability for prosecution and punishment for

any offence committed by him.

(4) The Commissioner of Police, Additional Commissioner of

Police, Deputy Commissioner of Police, Additional Deputy

Commissioner of Police, Principal of the Police Training College or

of the Police Training School, Assistant Commissioner of Police,

or any other police officer of equivalent rank may suspend any

police officer of subordinate rank who is reasonably suspected

to be guilty of misconduct, pending an investigation or enquiry

into such misconduct.

(5) An Inspector of Police may suspend any police officer

below the rank of Sub-Inspector of Police, who is reasonably

suspected to be guilty of misconduct, pending an investigation or

enquiry into such misconduct.

22. Procedure for awarding punishments. —When any

officer passes an order of awarding a punishment of dismissal,

removal from service, reduction in rank, forfeiture of service,

reduction in pay, withholding of increments or fine, he shall

8

record such order or cause the same to be recorded together with

the reasons therefor, in accordance with the rules.”

From perusal of above provisions, it is clear that subject to Article 311

of Constitution of India, Section 21 confers power upon the authorities

prescribed therein to impose various types of punishments as specified

in clauses (a) to (g) of sub-section (1) upon a police officer of subordinate

rank.

10) Further, Section 22 governs the procedure for awarding the

punishment of dismissal, removal and reduction of rank and casts

obligation upon the officer passing an order of punishment to record the

reasons for such order in accordance with the rules.

11) In this context, Rules 5 and 6 of 1980 Rules governing the

procedure as applicable to punishment orders, are reproduced as thus:–

“5. Authorised punishments - The Delhi Police Act, 1978

prescribed the following penalties :

(i) Dismissal, (ii) Removal from service, (iii) Reduction in rank

[for a specified period], (iv) Forfeiture of approved service, (v)

Reduction in pay, (vi) Withholding of increments, (vii) Fine not

exceeding one month's pay, (viii) Censure, (ix) Punishment drill

not exceeding 15 days or fatigue duty or any other punishment

duty to Constable only.

6. Classification of punishments and authorities

competent to award them - (i) Punishments mentioned at

Serial Nos. (i) to (vii) above shall be deemed 'major punishment'

and may be awarded by an officer not below the rank of the

appointing authority or above after a regular departmental

enquiry.

9

(ii) Punishment mentioned at Serial No. (viii) shall be called

'minor punishment' and may be awarded by the authorities

specified in sub-section (i) of Section 21 of the Delhi Police Act,

1978 after serving a show cause notice giving reasonable time to

the defaulter and considering his written reply as well as oral

deposition, if any for which opportunity shall be afforded on

request.

Authority competent to

award

Rank to whom it can be

awarded

(i) Deputy Commissioner of

Police and above

Inspector and below

(ii) Assistant Commissioner of

Police

Constable to Sub-Inspector

(iii) The punishment mentioned at Serial No. (ix) above may be

called Orderly Room punishment and shall be awarded after the

defaulter has been marched and heard in Orderly Room by the

Officer of and above the rank of Inspector as laid down in Section

21 (3) (c) of the Delhi Police Act, 1978.”

The present case relates to the punishment of dismissal. Therefore, as

per classification contained in Rule 6, it is a major penalty, which can

be inflicted after a regular departmental inquiry by a competent

authority as specified therein. The manner and procedure for awarding

the punishment is prescribed in Rule 14 and procedure for such regular

departmental inquiry that has to be obse rved for awarding said

punishment is contained in Rule 16. As such, in absence of the

applicability of clause (b) of second proviso to Article 311(2), the

procedure contemplates that Sections 21 and 22 and the rules

aforementioned ought to be followed for dismissal of an employee.

10

12) In the case at hand, since the order of dismissal of the appellant

has been passed in exercise of the power under clause (b) of second

proviso to Article 311(2) of Constitution of India, the said provision is

relevant to understand its ambit and scope, hence, reproduced as

under:

“311. Dismissal, removal or reduction in rank of

persons employed in civil capacities under the Union or a

State —

(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.

(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

[Provided that where it is proposed after such inquiry, to

impose 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:

Provided further that this clause shall not apply—

(a) where a person is dismissed or removed or

reduced in rank on the ground of conduct which has led to his

conviction on a criminal charge; or

(b) where the authority empowered to dismiss or

remove a person or to reduce him in rank is satisfied that for

some reason, to be recorded by that authority in writing, it is

not reasonably practicable to hold such inquiry; or

11

(c) where the President or the Governor, as the case

may be, is satisfied that in the interest of the security of the

State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a

question arises whether it is reasonably practicable to hold such

inquiry as is referred to in clause (2), the decision thereon of the

authority empowered to dismiss or remove such person or to

reduce him in rank shall be final.”

13) Upon perusal of the above, it is clear that as per Article 311(2) a

member of the civil service of the Union or a State may be dismissed or

removed or reduced in rank by the appointing authority after a regular

inquiry on charges which have been informed to him, affording him a

reasonable opportunity. As per first proviso thereto, in case an inquiry

is conducted for the purpose of imposing penalty, it is not necessary to

afford an opportunity to the appellant at the stage of penalty.

14) Clause (b) of the second proviso to Article 311(2) restricts the

applicability of Article 311(2) in a specific situation: (i) if the appointing

authority is satisfied that there should be deviation from mandate of

Article 311(2) because adherence to the same is not ‘reasonably

practicable’; and (ii) such reasons are to be recorded in writing.

Similarly, when such power is to be exercised under clause (c) of the

second proviso by the President or the Governor, they may, in the

interest of security of the State or if it is not expedient to hold such

inquiry, deviate from the applicable procedure.

12

15) Be that as it may, the present case relates to clause (b) of the

second proviso to Article 311(2), therefore, we need to discuss in detail

the applicability of the said provision in the facts of this case.

16) It is trite law that the decision of the appointing authority on the

issue of recording reasons in writing on its satisfaction as to why holding

an inquiry is not reasonably practicable may be subject to judicial review

under Article 226 by High Court or under Article 32 by the Supreme

Court. This Court in the Constitution Bench judgment rendered in the

case of Tulsiram Patel (Supra) reiterated the legal positions and

explained the same. The High Court in the impugned judgment has

relied upon paragraph 101 of the said judgment. Learned senior counsel

for the appellant contended before us that subsequent paragraphs, in

particular, paragraphs 130, 133 and 138, which enunciates the law

while interpreting Article 311(2) of the Constitution of India, have not

been considered. Therefore, for ready reference, we reproduce all the

aforesaid paragraphs as thus:

“101. Not only, therefore, can the principles of natural justice

be modified but in exceptional cases they can even be excluded.

There are well-defined exceptions to the nemo judex in causa

sua rule as also to the audi alteram partem rule. The nemo judex

in causa sua rule is subject to the doctrine of necessity and

yields to it as pointed out by this Court in J. Mohapatra &

Co. v. State of Orissa [(1984) 4 SCC 103 : (1985) 1 SCR 322, 334-

5] . So far as the audi alteram partem rule is concerned, both in

England and in India, it is well established that where a right to

13

a prior notice and an opportunity to be heard before an order is

passed would obstruct the taking of prompt action, such a right

can be excluded. This right can also be excluded where the

nature of the action to be taken, its object and purpose and the

scheme of the relevant statutory provisions warrant its exclusion;

nor can the audi alteram partem rule be invoked if importing it

would have the effect of paralysing the administrative process or

where the need for promptitude or the urgency of taking action

so demands, as pointed out in Maneka Gandhi case [(1978) 1

SCC 248 : (1978) 2 SCR 621, 676] at p. 681. If legislation and

the necessities of a situation can exclude the principles of natural

justice including the audi alteram partem rule, a fortiori so can a

provision of the Constitution, for a constitutional provision has a

far greater and all-pervading sanctity than a statutory provision.

In the present case, clause (2) of Article 311 is expressly excluded

by the opening words of the second proviso and particularly its

keywords “this clause shall not apply”. As pointed out above,

clause (2) of Article 311 embodies in express words the audi

alteram partem rule. This principle of natural justice having been

expressly excluded by a constitutional provision, namely, the

second proviso to clause (2) of Article 311, there is no scope for

reintroducing it by a side-door to provide once again the same

inquiry which the constitutional provision has expressly

prohibited. Where a clause of the second proviso is applied on an

extraneous ground or a ground having no relation to the situation

envisaged in that clause, the action in so applying it would be

mala fide, and, therefore, void. In such a case the invalidating

factor may be referable to Article 14. This is, however, the only

scope which Article 14 can have in relation to the second proviso,

but to hold that once the second proviso is properly applied and

clause (2) of Article 311 excluded. Article 14 will step in to take

the place of clause (2) would be to nullify the effect of the opening

words of the second proviso and thus frustrate the intention of

the makers of the Constitution. The second proviso is based on

public policy and is in public interest and for public good and the

Constitution-makers who inserted it in Article 311(2) were the

best persons to decide whether such an exclusionary provision

should be there and the situations in which this provision should

apply.

130. The condition precedent for the application of clause (b)

is the satisfaction of the disciplinary authority that “it is not

reasonably practicable to hold” the inquiry contemplated by

14

clause (2) of Article 311. What is pertinent to note is that the

words used are “not reasonably practicable” and not

“impracticable”. According to the Oxford English

Dictionary “practicable” means “Capable of being put into

practice, carried out in action, effected, accomplished, or done;

feasible”. Webster's Third New International Dictionary defines

the word “practicable” inter alia as meaning “possible to practice

or perform: capable of being put into practice, done or

accomplished: feasible”. Further, the words used are not “not

practicable” but “not reasonably practicable”. Webster's Third

New International Dictionary defines the word “reasonably” as

“in a reasonable manner: to a fairly sufficient extent”. Thus,

whether it was practicable to hold the inquiry or not must be

judged in the context of whether it was reasonably practicable to

do so. It is not a total or absolute impracticability which is

required by clause (b). What is requisite is that the holding of the

inquiry is not practicable in the opinion of a reasonable man

taking a reasonable view of the prevailing situation. It is not

possible to enumerate the cases in which it would not be

reasonably practicable to hold the inquiry, but some instances

by way of illustration may, however, be given. It would not be

reasonably practicable to hold an inquiry where the government

servant, particularly through or together with his associates, so

terrorizes, threatens or intimidates witnesses who are going to

give evidence against him with fear of reprisal as to prevent them

from doing so or where the government servant by himself or

together with or through others threatens, intimidates and

terrorizes the officer who is the disciplinary authority or members

of his family so that he is afraid to hold the inquiry or direct it to

be held. It would also not be reasonably practicable to hold the

inquiry where an atmosphere of violence or of general

indiscipline and insubordination prevails, and it is immaterial

whether the concerned government servant is or is not a party to

bringing about such an atmosphere. In this connection, we must

bear in mind that numbers coerce and terrify while an individual

may not. The reasonable practicability of holding an inquiry is a

matter of assessment to be made by the disciplinary authority.

Such authority is generally on the spot and knows what is

happening. It is because the disciplinary authority is the best

judge of this that clause (3) of Article 311 makes the decision of

the disciplinary authority on this question final. A disciplinary

authority is not expected to dispense with a disciplinary inquiry

lightly or arbitrarily or out of ulterior motives or merely in order

15

to avoid the holding of an inquiry or because the Department's

case against the government servant is weak and must fail. The

finality given to the decision of the disciplinary authority by

Article 311(3) is not binding upon the court so far as its power of

judicial review is concerned and in such a case the court will

strike down the order dispensing with the inquiry as also the

order imposing penalty. The case of Arjun Chaubey v. Union of

India [(1984) 2 SCC 578 : 1984 SCC (L&S) 290 : (1984) 3 SCR

302] is an instance in point. In that case, the appellant was

working as a senior clerk in the office of the Chief Commercial

Superintendent, Northern Railway, Varanasi. The Senior

Commercial Officer wrote a letter to the appellant calling upon

him to submit his explanation with regard to twelve charges of

gross indiscipline mostly relating to the Deputy Chief Commercial

Superintendent. The appellant submitted his explanation and on

the very next day the Deputy Chief Commercial Superintendent

served a second notice on the appellant saying that his

explanation was not convincing and that another chance was

being given to him to offer his explanation with respect to those

charges. The appellant submitted his further explanation but on

the very next day the Deputy Chief Commercial Superintendent

passed an order dismissing him on the ground that he was not

fit to be retained in service. This Court struck down the order

holding that seven out of twelve charges related to the conduct

of the appellant with the Deputy Chief Commercial

Superintendent who was the disciplinary authority and that if an

inquiry were to be held, the principal witness for the Department

would have been the Deputy Chief Commercial Superintendent

himself, resulting in the same person being the main accuser, the

chief witness and also the judge of the matter.

138. Where a government servant is dismissed, removed or

reduced in rank by applying clause (b) or an analogous provision

of the service rules and he approaches either the High Court

under Article 226 or this Court under Article 32, the court will

interfere on grounds well established in law for the exercise of

power of judicial review in matters where administrative

discretion is exercised. It will consider whether clause (b) or an

analogous provision in the service rules was properly applied or

not. The finality given by clause (3) of Article 311 to the

disciplinary authority's decision that it was not reasonably

practicable to hold the inquiry is not binding upon the court. The

court will also examine the charge of mala fides, if any, made in

16

the writ petition. In examining the relevancy of the reasons, the

court will consider the situation which according to the

disciplinary authority made it come to the conclusion that it was

not reasonably practicable to hold the inquiry. If the court finds

that the reasons are irrelevant, then the recording of its

satisfaction by the disciplinary authority would be an abuse of

power conferred upon it by clause (b) and would take the case

out of the purview of that clause and the impugned order of

penalty would stand invalidated. In considering the relevancy of

the reasons given by the disciplinary authority the court will not,

however, sit in judgment over them like a court of first appeal. In

order to decide whether the reasons are germane to clause (b),

the court must put itself in the place of the disciplinary authority

and consider what in the then prevailing situation a reasonable

man acting in a reasonable way would have done. The matter

will have to be judged in the light of the then prevailing situation

and not as if the disciplinary authority was deciding the question

whether the inquiry should be dispensed with or not in the cool

and detached atmosphere of a court-room, removed in time from

the situation in question. Where two views are possible, the court

will decline to interfere.”

17) Upon perusal of the judgment of the Constitution Bench in the

case of Tulsiram Patel (Supra), it is luculent that the constitutional

provision has a far greater and all-pervading sanctity than a statutory

provision, therefore, second proviso restricts application of Article 311(2)

only in the circumstances as contemplated under Clauses (a), (b) and (c)

of the second proviso. This clause uses the word “this clause shall not

apply”, therefore, Article 311(2) shall not apply in the contingencies in

clauses (a), (b) and (c) of the second proviso. The intention thereof has

been expressed indicating that there is no scope for reintroduction of

principles contained in Article 311(2) by a side door which the

17

constitutional provision has expressly excluded. It is further clarified in

the said judgement that if the second proviso is applied on an

extraneous ground or a ground having no relation to the situation

envisaged in that clause, the action of so applying would be mala fide

and therefore void. This Court indicated that in such cases the

invalidating factor may be referrable to the Article 14 distinguishing

between a situation where the proviso has been properly applied and

one where it has been improperly applied. Otherwise, if Article 14 is

applied in a manner to take the place of clause (2) that would mean to

nullify the effect of opening words of the second proviso and frustrate

the intention of makers of the Constitution. It is said that the second

proviso is based on public policy and is in public interest and for public

good.

18) The wording as used in clause (b) of the second proviso indicates

the satisfaction of the Disciplinary Authority by using the word “it is not

reasonably practicable to hold” the inquiry contemplated by clause 2 of

Article 311. The Court emphasised the meaning of “not reasonably

practicable” as juxtaposed against not “impracticable”. It is intended

that the requirement to hold an inquiry is not practicable in the opinion

of a reasonable man taking a reasonable view of the prevailing situation.

The Court contemplated certain situations therein and said that a

18

common man must bear in mind that numbers may coerce and terrify

while an individual may not. The reasonable practicability of holding an

inquiry is a matter of assessment to be made by the disciplinary

authority holding the post and it is he who must visualize what is

happening at the ground-zero. The Court clarified that the disciplinary

authority is not expected to dispense with a departmental inquiry lightly

or arbitrarily or out of ulterior motives or merely in order to avoid the

holding of an inquiry or because the Department’s case against the

government servant is weak and must fail. In this connection, referring

Article 311(3), it is held that the finality given to the decision of the

disciplinary authority is not binding upon the Courts and the scope of

judicial review is open to strike down the order dispensing with the

inquiry as also the order imposing penalty.

19) Further, the Court emphasised the words used in clause (b) of

second proviso that the disciplinary authority should record its reasons

in writing for its satisfaction that holding an inquiry is not reasonably

practicable. In case such reason is not recorded in writing or not valid

and justifiable, the order dispensing with the inquiry and the order of

penalty flowing therefrom would be void and unconstitutional.

Emphasising the scope of judicial review, it is said that in the matters

where administrative discretion is exercised, it is open to assail either

19

under Article 226 before High Court or under Article 32 before this

Court. Referring clause 3 of Article 311 and reiterating that the decision

of disciplinary authority indicating why it is not reasonably practicable

to hold an inquiry is not binding on Court and the scope of judicial

review is open. In the said contingency, the Court will examine the

charges of mala fides if any made in the Writ Petition. It is emphasised

that the Court, while exercising judicial review, would not sit as an

appellate court but it shall consider the situation due to which,

according to the disciplinary authority, it was not reasonably practicable

to hold an inquiry. While examining the relevance of the reasoning, the

Court ought to place itself as a disciplinary authority and consider

whether in the prevailing situation, a reasonable man acting in a

reasonable way, would have taken the same decision as taken by the

disciplinary authority. If the Court finds that the reasons are irrelevant,

then satisfaction of the disciplinary authority may be held to be an abuse

of power. In that situation, it would be open to the Court to take the case

out of purview of that clause and the order of penalty would stand

invalidated.

20) In view of the foregoing conclusions of the Constitution bench in

Tulsiram Patel (Supra), it can be safely observed that despite the use

of the words “this clause shall not apply” in the second proviso, it shall

20

not make power of Article 311(2) inapplicable. In fact, second proviso to

Article 311 is an exception for dispensing w ith the inquiry on

satisfaction by recording the reasons in writing by such authority.

21) In view of the analysis of the judgment of the Constitution Bench

in Tulsiram Patel (Supra), we have examined the impugned judgement

passed by the High Court wherein in paragraph 19, while referring to

the judgment of Sudesh Kumar vs. State of Haryana and Ors.

(2005) 11 SCC 525 in respect of the principle of audi alteram partem

and also referring to paragraph 101 of Tulsiram Patel (Supra), it has

been observed by the High Court that the appellate authority had heard

the appellant before affirming the decision of the disciplinary authority,

it appears that the judgment of Sudesh Kumar (Supra) has not been

appreciated in its true spirit by the High Court.

22) In our view, the reasoning as given by the High Court is

completely misplaced, in particular, when the Court is examining the

scope and applicability of clause (b) to the second proviso of Article

311(2), the reasoning assigned by the disciplinary authority ought to be

relevant for dispensing with an inquiry which is the issue involved in the

present case. Merely indicating that the reasons provided in writing have

already been held justified by the CAT would not be sufficient in the

context of law laid down by the judgment of Tulsiram Patel (Supra)

21

merely observing that opportunity of hearing has been afforded by the

appellate authority.

23) This case was heard on 04.02.2026. At the time of hearing,

learned ASG appearing on behalf of the State vociferously contended

that the reasoning to dispense with the inquiry finds its place in the

preliminary inquiry report of the ACP whereby it was found that the

complainant/witnesses have been traumatised, threatened or

intimidated by the action of the criminals specially the police personnel

involved therein and due to the close association of the police personnel

with the hard-core criminals, there was every possibility that the

appellant may approach the complainant/witnesses through his

associates to threaten and intimidate them.

24) In this context, the argument advanced by the learned counsel

for the appellant is that after lodging the FIR on 28.06.2017, the

appellant was sent to custody on 29.6.2017 and was released on bail on

14.10.2017. In the meanwhile, the dismissal order dated 18.07.2017

was passed. Therefore, we deemed it appropriate to call for the said

preliminary inquiry report which had not been placed before us for

consideration.

22

25) On production of the said preliminary inquiry report, we have

examined the contents thereof. In the said report, the ACP has collected

the information/documents in respect of the investigation of Constable

Manohar Lal, No. 362/Special Cell, PIS No. 28070974 (the appellant

herein). He has also recorded the statement of the complainant, SI

Hardeep Singh and other relevant persons. The details of the

appointments and posting were collected from all concerned offices.

Thereafter the details of the incidence were recorded. During preliminary

inquiry, the ACP collected documents viz DD entries of information and

proceedings of FIR No. 390/2017, arrest memo, personal search memo,

disclosure memo, pointing out memo, seizure memos of mobile phone,

recovery memos, PC remand, TIP Proceedings and other miscellaneous

facts and documents. In the report, the ACP has recorded the

statements of complainant Maniram, IO Hardeep Singh, HC Kuldeep

Singh and Ct. Devender, viz. reproduced as under:

“a) Complainant Maniram s/o Late Ram Prasad r/o

Vill. Sisahi, PS Rasoolabad, Distt Kanpur, UP, Aged 62

years – In his statement, he corroborated the facts as

mentioned in the FIR and his joining investigation,

participating of TIP and identification of Ct. Manohar Lal No.

362/Spl. Cell as one of the accused who had come to his

godown on 27/06/17, at about 6.00 PM and made enquiry

about the owner and details of goods/articles stored in

godown. He also came back at around 8.30 – 9.00 PM to

godown with a tempo and car. He also participated in

forcibly breaking open the room where logs of sandalwood

were kept and loading approx. 1355 Kg of sandalwood in

23

tempo. He also took away SIM of his mobile phone with the

help of other accused persons.

b) Statement of IO, SI Hardeep Singh D-5776, PIS No.

16150006, PS Bhalswa Dairy, mobile number -

8510901900- In his statement he stated that on receipt of

complaint of Mr. Maniram s/o Late Ram Prasad r/o Vill.

Sisahi, PS Rasoolabad, Distt Kanpur, UP above case

corroborated the facts as mentioned in the FIR NO. 390/17

dated 28/06/17 u/s 419/457/380/392/412/34 IPC PS

was registered in PS Bhalswa Dairy. He also stated that

during investigation he served notice u/s 160 of Cr.P.C. to

Ct Manohar Lal 362/Spl. Cell and on 30/06/2017, on the

basis of sufficient evidences, he was arrested in this case.

He prepared arrest memo and personal search. He had also

recorded the disclosure memo, prepared pointing out memos

and recovered case property on the instance of Ct. Manohar

Lal No. 362/Spl. Cell. He also stated that Ct. Manohar Lal

No. 362/Spl. Cell refused to participate in TIP proceedings

and during further investigation, the complainant identified

Ct. Manohar Lal No. 362/Spl. Cell as one of the accused

persons.

c) Statement of HC Kuldeep Singh No. 254/NW, PIS

No 28981354, P.S-Bhalswa Dairy, New Delhi. In his

statement, he has stated that on 30/06/2014, he alongwith

Constable Devender joined investigation of his case. On

30/06/2017, Constable Manohar Lal No. 362/Spl Cell

joined investigation and on the basis of sufficient evidences,

SI Hardeep Singh arrested him and prepared arrest memo,

personal search memo, disclosure statement, pointing out

memo and recovery memo of 14 jute bags containing 680.35

kgs of Sandalwood and he has signed on relevant

documents as true.

d) Statement of Ct Devender no 1227/NW, PIS No

29101653, P.S- Bhalswa Dairy, New Delhi. In his

statement, he has stated that on 30/06/2017, he alongwith

Head Constable Kuldeep Singh joined investigation of this

case. On 30/06/2014, Constable Manohar Lal No. 362/Spl

Cell joined investigation and on the basis of sufficient

evidences, SI Hardeep Singh arrested him and prepared

arrest memo, personal search memo, bags containing

24

680.35 kgs of Sandalwood and he has signed on relevant

documents as true.”

26) While concluding in the preliminary inquiry, ACP observed as

thus:

“From the above noted facts, information, documents and

statements, it is clearly established that Ct. Manohar Lal

No. 362/Spl. Cell, PIS No. 28070974 while posted in Special

Cell and on Earned Leaves, along with other police

personnel and public persons is found involved in robbery

case has shown grave misconduct, high handedness and

had brought bad name to the entire force of Delhi Police by

having acted in a manner highly unbecoming of a police

personnel.

From the preliminary enquiry conducted, it is revealed that

the complainant/witnesses of the case has been

traumatized by the egregious act of Ct. Manohar Lal No.

362/Spl. Cell and his associates. It appears that Ct.

Manohar Lal No. 362/Spl. Cell, still has close association

with criminals and there is every possibility that he may

approach the complainant through his associates to

threaten, intimate or induce him to withdraw from the case

or turn hostile during the trial.”

27) On perusal of conclusion of the preliminary report, it reveals that

the complainant/witnesses had been traumatized by the egregious acts

of the appellant and his associates. It has been recorded that the

appellant had close association with criminals and there was every

possibility that he might approach the complainant through his

associates to threaten, intimidate or induce him to withdraw from the

case or turn hostile during the trial.

25

28) After perusal of the statements of the complainant-Mani ram, SI

Hardeep Singh, HC Kuldeep Singh and Constable Devender Singh

reproduced above in the preliminary report, it can be seen that no

instance of traumatising the complainant or witnesses have been stated

by any witness in their statements. Whether the act as alleged in the

FIR is egregious in nature, would be a subject matter of trial. No material

showing connection of the appellant and his associates with criminals

which may reasonably demonstrate that there is a possibility of the

complainant or witnesses being approached through his associates with

an intent to threaten, intimidate or induce them to withdraw from the

case or turn hostile is on record. In absence of any material, in our view,

it is merely a presumption of the ACP who conducted the preliminary

enquiry and it cannot form the basis of a reasonable apprehension

which may be sufficient to dispense with the regular disciplinary

inquiry.

29) The DCP while passing the order of dismissal on 18.07.2017

recorded the following reasons:

“Ordinarily a departmental enquiry should be conducted

before imposing major punishment including dismissal

against the defaulter but the facts and circumstances of the

present case and the preliminary enquiry report of Sh.

Govind Sharma, ACP/SR are such th at it would not be

reasonably practicable to conduct a regular departmental

enquiry against the defaulter as there is a reasonable belief

26

of threat, intimidation and inducement to the victim and

thereby creating the possibility of tempering of the vital

evidence. Therefore, holding the regular departmental

enquiry in this case shall create fear in the mind of the

complainant, witness/es and discourage him/them from

deposing against the defaulter during the enquiry. Further,

an extended enquiry would only cause more trauma to the

complainant/victim. It is under these given set of compelling

circumstances that action under Article 311(2)(b) of The

Constitution of India has been invoked against Ct. Manohar

lal, No.362/Spl.Cell in this case.

Therefore, I, Sanjeev Kumar Yadav, Deputy Commissioner

of Police, Special Cell, New Delhi do hereby order to dismiss

Ct. Manohar Lal, No.362/Spl.Cell, PIS No. 28070974 from

service with immediate effect, under Article 311(2)(b) of The

Constitution of India. His suspension period from

30.06.2017 (date of his arrest) till the date of issue of this

order is decided as period “Not Spent on Duty” for all intents

and purposes and the same will not be regularized in any

manner.”

30) From the order of dismissal passed by the DCP, it is clear that

he has relied upon the preliminary inquiry report of the ACP and

recorded its satisfaction that holding an enquiry is not ‘reasonably

practicable’ and therefore, determined that this case is a fit case to apply

the exclusion as contained in clause (b) of second proviso to Article 311

(2).

31) After appreciating the reasoning given in the report of the ACP

as per the above discussion, in our view, in the statement of witnesses

no incident of traumatising the complainant and witnesses have been

recorded, therefore, nothing is available on record to accept the plea of

27

threatening, intimidation or inducement to any witness to turn hostile.

The disciplinary authority proceeded on the presumption of the ACP who

conducted preliminary enquiry without any material and concluded that

holding a regular enquiry is not reasonably practicable. Analysing the

purport of the proviso and the interpretation made in the judgment of

Tulsiram Patel (Supra) it was the duty of the disciplinary authority to

satisfy himself that such reasoning as indicated in the preliminary

enquiry report is based on some material, sufficient to dispense with an

enquiry. In absence of the same, merely belief or a presumption is not

sufficient to record such finding and to deviate from the normal

procedure. It is not out of place to mention that the order of dismissal

was passed on 18.07.2017. The appellant was taken into custody on

29.06.2017 and he was only be released on bail on 14.10.2017. In such

a situation it is clear that while he was in custody the order of dismissal

was passed. Therefore, it was incumbent upon the ACP holding the

preliminary enquiry to indicate any instances of threat from custody to

the complainant or to intimidate witnesses brought during investigation.

In the preliminary enquiry report none of the witnesses have indicated

about threat or intimidation or possibility of threat to turn those

witnesses hostile, therefore, we have no hesitation to say that the order

passed by the disciplinary authority dispensing with the enquiry as

28

required is without application of mind and cannot be sustained. In fact,

it is the duty of the disciplinary authority to record satisfaction how and

in what manner holding an enquiry is not reasonably practicable.In our

view, the authority has completely failed to understand the letter and

spirit of Tulsiram Patel (Supra) while passing the order that too without

any basis to dispense with normal procedure and directed dismissal

which cannot be countenanced.

32) In the similar set of facts, the relevance of the material placed for

recording the satisfaction by the Disciplinary Authority has been

considered by this Court in the case of Jaswant Singh (Supra). In the

said case, particularly in paragraph 5, the Court referred all the detailed

facts and also relied upon the observations in Tulsiram Patel (Supra).

The reasoning as given in the said judgement applies in the facts of this

case also, the relevant para 5 is reproduced as thus:

“5. The impugned order of April 7, 1981 itself contains

the reasons for dispensing with the inquiry contemplated by

Article 311(2) of the Constitution. Paragraph 3 of the said

order, which we have extracted earlier, gives two reasons

in support of the satisfaction that it was not reasonably

practicable to hold a departmental enquiry against the

appellant. These are (i) the appellant has thrown threats

that he with the help of other police employees will not allow

holding of any departmental enquiry against him and (ii) he

and his associates will not hesitate to cause physical injury

to the witnesses as well as the enquiry officer. Now as

stated earlier after the two revision applications were

allowed on October 13, 1980, the appellant had rejoined

29

service as Head Constable on March 5, 1981 but he was

immediately placed under suspension. Thereafter, two

show cause notices dated April 4, 1981 were issued against

him calling upon him to reply thereto within 10 days after

the receipt thereof. Before the service of these notices the

incident of alleged attempt to commit suicide took place on

the morning of April 6, 1981 at about 11.00 a.m. In that

incident the appellant sustained an injury on his right arm

with a knife. He was, therefore, hospitalised and while he

was in hospital the two show cause notices were served on

him at about 10.00 p.m. on April 6, 1981. Before the

appellant could reply to the said show cause notices

respondent 3 passed the impugned order on the very next

day i.e. April 7, 1981. Now the earlier departmental

enquiries were duly conducted against the appellant and

there is no allegation that the department had found any

difficulty in examining witnesses in the said inquiries. After

the revision applications were allowed the show cause

notices were issued and 10 days time was given to the

appellant to put in his replies thereto. We, therefore,

enquired from the learned counsel for the respondents to

point out what impelled respondent 3 to take a decision that

it was necessary to forthwith terminate the services of the

appellant without holding an inquiry as required by Article

311(2). The learned counsel for the respondents could only

point out clause (iv)(a) of sub-para 29(A) of the counter which

reads as under:

“The order dated April 7, 1981 was passed as the

petitioner's activities were objectionable. He was instigating

his fellow police officials to cause indiscipline, show

insubordination and exhibit disloyalty, spreading

discontentment and hatred, etc. and his retention in service

was adjudged harmful.”

This is no more than a mere reproduction of paragraph 3

of the impugned order. Our attention was not drawn to any

material existing on the date of the impugned order in

support of the allegation contained in paragraph 3 thereof

that the appellant had thrown threats that he and his

companions will not allow holding of any departmental

enquiry against him and that they would not hesitate to

cause physical injury to the witnesses as well as the

enquiry officer if any such attempt was made. It was

30

incumbent on the respondents to disclose to the court the

material in existence at the date of the passing of the

impugned order in support of the subjective satisfaction

recorded by respondent 3 in the impugned order. Clause (b)

of the second proviso to Article 311(2) can be invoked only

when the authority is satisfied from the material placed

before him that it is not reasonably practicable to hold a

departmental enquiry. This is clear from the following

observation at page 270 of Tulsiram case [(1985) 3 SCC 398

: 1985 SCC (L&S) 672 : 1985 Supp 2 SCR 131] : (SCC p.

504, para 130)

“A disciplinary authority is not expected to

dispense with a disciplinary inquiry lightly or

arbitrarily or out of ulterior motives or merely in order

to avoid the holding of an inquiry or because the

department's case against the government servant is

weak and must fail.”

The decision to dispense with the departmental enquiry

cannot, therefore, be rested solely on the ipse dixit of the

concerned authority. When the satisfaction of the concerned

authority is questioned in a court of law, it is incumbent on

those who support the order to show that the satisfaction is

based on certain objective facts and is not the outcome of

the whim or caprice of the concerned officer. In the counter

filed by respondent 3 it is contended that the appellant,

instead of replying to the show cause notices, instigated his

fellow police officials to disobey the superiors. It is also said

that he threw threats to beat up the witnesses and the

Inquiry Officer if any departmental inquiry was held against

him. No particulars are given. Besides it is difficult to

understand how he could have given threats, etc. when he

was in hospital. It is not shown on what material

respondent 3 came to the conclusion that the appellant had

thrown threats as alleged in paragraph 3 of the impugned

order. On a close scrutiny of the impugned order it seems

the satisfaction was based on the ground that he was

instigating his colleagues and was holding meetings with

other police officials with a view to spreading hatred and

dissatisfaction towards his superiors. This allegation is

based on his alleged activities at Jullundur on April 3, 1981

reported by SHO/GRP, Jullundur. That report is not

forthcoming. It is no one's contention that the said SHO was

31

threatened. Respondent 3's counter also does not reveal if

he had verified the correctness of the information. To put it

tersely the subjective satisfaction recorded in paragraph 3

of the impugned order is not fortified by any independent

material to justify the dispensing with of the inquiry

envisaged by Article 311(2) of the Constitution. We are,

therefore, of the opinion that on this short ground alone the

impugned order cannot be sustained.”

33) It is not out of place to say that the judgment of Tulsiram Patel

(Supra) has been appreciated by the Department and resultantly, the

Commissioner of Police has issued a circular dated 31.12.1998. Analysis

as made hereinabove, particularly in paragraphs 17, 18 and 19, have

been truly introduced in the circular of the department. The relevant

portion of the said circular is reproduced for ready reference as thus: -

“Instances have come to notice where provisions of Article

311(2)(b) of the Constitution were inappropriately invoked.

This article provides that no person as mentioned in

311(2)(b) shall be dismissed or removed or reduced in rank

except after an enquiry in which he has been informed of

the charge against him and given a reasonable opportunity

of being heard in respect of these charges.

Provided that where it is proposed after such enquiry to

impose upon him any such penalty, such penalty may be

imposed on the basis of the evidence adduced during such

enquiry and it shall not be necessary to give such person

any opportunity of making representation on the penalty

proposed. Provided further that this clause shall not apply

where an authority empowered to dismiss or to 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 enquiry.

Clause (3) of Article 311 provides that if in respect of such

person as aforesaid a question arises whether it is

reasonably practicable to hold such enquiry as it referred to

32

in clause (2) the decision thereon of the authority

empowered to dismiss or to remove such person or to reduce

him in rank shall be final.

From the above it is clear that a civil servant is not be

dismissed, removed or reduced in rank similarly under

Article 311(2)(b) of the Constitution of India but after holding

regular departmental enquiry against him. No doubt the

above provisions confers the power of infliction of above

penalties on the disciplinary authority but while doing so

circumstances will have to be mentioned in order to show

as to how it was not reasonably practicable to hold the

departmental action. In a number of authorities the

Court/Tribunal have evaluated the reasons given by the

disciplinary authority to see if really it was impracticable to

hold the enquiry and for those reasons are indifferent and

vague. Reliance may be placed in the judgment of the

Hon’ble Supreme Court of India in the case of Tulsi Ram

Patel AIR 1985 SC 1416 which reads as under:

“It would not be reasonably practicable to hold an enquiry

where the government servant, particularly through or

together with his associates, so terrorizes, threatens or

intimidates witnesses who are going to give evidence

against him with fear of reprisal as to present them for doing

so or where the government servant by himself or together

with or through others threatens, intimidates and terrorizes

the officer who is the disciplinary authority or members of

his family so that he is afraid to hold the enquiry or direct it

to be held. It would also not be reasonable practicable to

hold the enquiry where an atmosphere of violation or of

great indiscipline and insubordination prevails and it is

immaterial where the concerned government servant is or is

not a party to bringing such an atmosphere.

In this connection, we must bear in mind that numbers

coerce and terrify while an individual may not. The

reasonable practicability or holding an inquiry is a matter of

assessment to be made by the disciplinary authority. Such

authority is generally on the spot and knows what is

happening. It is because the disciplinary authority is best

judge of this that clause (3) of Article 311 makes the decision

of the disciplinary authority on this question final. A

disciplinary authority is not expected to dispense with a

disciplinary inquiry lightly or arbitrarily or out of ulterior

33

motives or merely in order to avoid the holding of an enquiry

or because the Department’s case against the government

servant is weak and must fail. The finality given to the

decision of the disciplinary authority by Article 311(3) is not

binding upon the court so far as its power of judicial review

is concerned and in such a case the court will strike-down

the order dispensing with the enquiry as also the order

imposing penalty.”

Power under Article 311(2) is not be used a short cut.

The police officers involved in the cases of Rape or

Dacoity or any such heinous offence have been dismissed

straightway under Article 311(2)(b) despite the fact that

criminal cases have been registered. Such dismissal

without holding D.Es. are illegal because in such cases D.E.

can be conveniently held.

It is once again emphasized that the Disciplinary

Authority should not take resort to Article 311(2)(b) lightly

but only in those cases where it is not reasonably

practicable to hold the enquiry. Whenever the disciplinary

authority comes to the conclusion that it is not reasonably

practicable to hold an enquiry he must record at length

cogent and legally tenable reasons for coming to such

conclusion. In the absence of valid reasons, duly reduced

in writing, no such order of dismissal etc. with resort to

Article 311(2)(b) can be sustained in law.

This circular supersedes the earlier circular No.25551-

631/29.12.93.”

34) The said circular was in supersession of all earlier circulars. A

further clarification was issued by the department on 11.09.2007 which

was in vogue on the date of passing of the order of dismissal. The

relevant portion of the clarificatory circular is also reproduced as thus:

“As analysis has been done by PHQ in 38 cases pertaining

to the period between 1.1.2000 to 31.12.2005 where action

under Article 311(2)(b) of the Constitution of India was taken

34

against the defaulters. The analysis shows that out of the

38 cases, the action of the department has been upheld by

CAT only in two cases and out of these two cases, in only

one case the action was upheld by the Hon’ble High Court

of Delhi. Most of these cases have been remanded back to

the Department by the Tribunal for initiating department

enquiry.

Though some cases are still pending in the Hon’ble High

Court for decision. In a majority of the cases, Disciplinary

Authorities have resorted to Article 311(2)(b) on

assumptions and conjectures. No speaking orders were

passed based on and supported by material/facts on record

for dispensing with prior enquiry. Orders for dismissal

were passed arbitrarily violating Article 311 and the

principles of natural justice.

Henceforth, it has been decided that whenever any

Disciplinary Authority intends to invoke Article 311(2)(b) of

the Constitution of India, he must keep in mind the judgment

in the case of UOI v. Tulsi Ram Patel, AIR 1985 SC 1416.

Only in cases where Disciplinary Authority is personally

satisfied on the basis of material available on the file that

the case is of such a nature that it is not practicable to hold

an enquiry in view of threat, inducement, intimidation,

affiliation with criminals etc and keeping in view the specific

circumstances of the case it is not possible that PWs will

depose against the defaulter and disciplinary authority has

no option but to resort to Article 311(2)(b) should such an

action be taken. Prior to such an order, a PE has to be

conducted and it is essential to being on record all such

facts. It has also been decided that before passing an order

under Article 311(2)(b) of the Constitution, Disciplinary

Authority has to take prior concurrence of Spl. CP/Admn.

This has the approval of C.P. Delhi.”

35) In the case at hand after registration of the FIR when the

appellant was in custody the order of dismissal was passed. He was

released only thereafter. As such, without indicating any instance of

35

intimidation, traumatising, threatening or persuading the complainant

or the witness to turn hostile from inside the jail, the belief or

presumption as recorded by the disciplinary authority is not sufficient

to bring the present case within the exception to Article 311(2) by

applying clause (b) of second proviso thereto. Thus, in our view, the

reasoning contemplated in the judgment of Jaswant Singh (Supra)

applies in the case at hand.

36) It is relevant to note that applying the judgment of Tulsiram

Patel (Supra), various cases have been decided by this Court indicating

what may be a sufficient reason and how and in what circumstances

holding a departmental enquiry is not reasonably practicable, and the

scope of judicial review in such cases. In the judgement of this Court in

Ex. Constable Chhote Lal (Supra) the Court held as thus:

“4. Having examined the rival contentions of the

parties and bearing in mind the law laid down by this Court

indicating the circumstances under which the inquiry under

Article 311(2), second proviso, clause (b) of the Constitution

can be dispensed with and applying the same to the facts

and circumstances and the reasons advanced by the

authorities in arriving at the decision, we have no hesitation

to come to the conclusion that the order dispensing with the

departmental inquiry is not in accordance with law and

necessarily the order of dismissal cannot be sustained. We

accordingly set aside the order of dismissal passed against

the appellant and permit the departmental authority to hold

an inquiry if so desired, in accordance with law and come

to the conclusion in the said proceeding.

36

5. Normally, an order of dismissal on being set aside,

the employee can claim back wages, but in this case we are

not inclined to grant back wages to the employee concerned,

more so, in view of the nature of charges against him.”

37) In the case of Tarsem Singh (Supra) this Court has observed

that the power of dispensing with the constitutional remedy of a

delinquent, should not be exercised lightly or arbitrarily, or out of

ulterior motive with the intent to avoid holding an enquiry. In the said

case in paras 10 and 14, this Court observed as thus:

“10. It is now a well-settled principle of law that a

constitutional right conferred upon a delinquent cannot be

dispensed with lightly or arbitrarily or out of ulterior motive

or merely in order to avoid the holding of an enquiry. The

learned counsel appearing on behalf of the appellant has

taken us through certain documents for the purpose of

showing that ultimately the police on investigation did not

find any case against the appellant in respect of the

purported FIR lodged against him under Section 377 IPC.

However, it may not be necessary for us to go into the said

question.

xxx xxx xxx

14. In view of the fact that no material had been placed

by the respondents herein to satisfy the Court that it was

necessary to dispense with a formal enquiry in terms of

proviso (b) appended to Clause (2) of Article 311 of the

Constitution of India, we are of the opinion that the

impugned orders cannot be sustained and they are set

aside accordingly. The appellant is directed to be reinstated

in service. However, in view of our aforementioned findings,

it would be open to the respondents to initiate a

departmental enquiry against the appellant if they so

desire. Payment of back wages shall abide by the result of

such enquiry. Such an enquiry, if any, must be initiated as

expeditiously as possible and not later than two months

from the date of communication of this order.”

37

38) This Court in the case of Risal Singh (Supra), emphasised that

while assigning the reason in writing it is imperative that such reason

must be plausible and based on definite material. In the said case, the

Court relied upon on para 130 on the judgment of Tulsiram Patel

(Supra) and referring the same concluded in paras 9 and 10 as thus:

“9. Tested on the touchstone of the aforesaid

authorities, the irresistible conclusion is that the order

passed by the Superintendent of Police dispensing with the

inquiry is totally unsustainable and is hereby annulled. As

the foundation founders, the order of the High Court giving

the stamp of approval to the ultimate order without

addressing the lis from a proper perspective is also

indefensible and resultantly, the order of dismissal passed

by the disciplinary authority has to pave the path of

extinction.

10. Consequently, we allow the appeal and set aside

the order passed by the High Court and that of the

disciplinary authority. The appellant shall be deemed to be

in service till the date of superannuation. As he has attained

the age of superannuation in the meantime, he shall be

entitled to all consequential benefits. The arrears shall be

computed and paid to the appellant within a period of three

months hence. Needless to say, the respondents are not

precluded from initiating any disciplinary proceedings, if

advised in law. As the lis has been pending before the

Court, the period that has been spent in Court shall be

excluded for the purpose of limitation for initiating the

disciplinary proceedings as per rules. However, we may

hasten to clarify that our observations herein should not be

construed as a mandate to the authorities to initiate the

proceeding against the appellant. We may further proceed

to add that the State Government shall conduct itself as a

model employer and act with the objectivity which is

expected from it. There shall be no order as to costs.”

38

39) In the case of Reena Rani (Supra) this Court has again applied

the law laid down in the judgment of Tulsiram Patel (Supra) and

Jaswant Singh (Supra) and held that the order of dismissal did not

disclose the reasons explaining why it was not reasonably practicable to

hold a regular departmental enquiry and applicability of the proviso in

such a case is not justified. The Court in para 7 in the said judgment

observed as under: -

“7. In the order of dismissal, the Superintendent of

Police has not disclosed any reason as to why it was not

reasonably practicable to hold regular departmental

enquiry. The learned Additional Advocate General fairly

stated that the order of dismissal does not contain the

reasons as to why it was not reasonably practicable to hold

regular departmental enquiry against the appellant. He also

admitted that no other record has been made available to

him which would have revealed that the Superintendent of

Police had recorded reasons for forming an opinion that it

was not reasonably practicable to hold regular

departmental enquiry for proving the particular charge(s)

against the appellant.”

40) On overall analysis of the intent of Article 311(2), it is vivid that

an employee holding a post in Union or State ought not to be dismissed

or removed by an authority subordinate to the one by which he was

appointed. It is further specified that a person shall be dismissed or

removed or reduced in rank after an inquiry supplying the charges if any

against him and giving a reasonable opportunity of being heard in

respect of those charges. The applicability of the said clause is restricted

39

in a situation wherein his conduct led to his conviction of criminal

charges or where the authority empowered who dismissed, removed or

reduced in rank records reason in writing upon satisfaction that it is not

‘reasonably practicable’ to hold an enquiry against him. In addition,

where such power has been exercised by the President or the Governor

it may be in the interest of security of the State or if not expedient to

hold such an enquiry, then exceptional power under clause (c) of second

proviso to Article 311 ought to be exercised.

41) In case such a decision invoking the extraordinary power is taken

by the competent authority in light of the judgment Tulsiram Patel

(Supra) within the parameter as discussed, the scope of judicial review

is available to the Constitutional Courts wherein the reasons as

assigned for satisfaction of the authority must be reasonable, valid,

justified and in writing. In addition, the satisfaction as recorded must

be the objective satisfaction on the basis of material brought on record

which ordinarily the disciplinary authority may take as a prudent

person. Otherwise, dispensing with the enquiry is not permissible in law.

In the present case, Section 21 of the 1978 Act confers power of

punishment and Section 22 prescribes the procedure for awarding such

punishment. The procedure as contemplated has been elaborated under

the 1980 Rules. In the present case, in our view, the power exercised by

40

the authority is completely without application of mind, thus, the

question of recording of satisfaction as affirmed by the appellate

authority, the CAT and the High Court does not arise. Therefore, we can

hold that the order dispensing with the regular procedure of inquiry is

arbitrary and consequently the order of dismissal of the appellant is

liable to be quashed and the orders of the CAT and the High Court

affirming the said dismissal order stand set aside.

42) In light of the above discussion, the irresistible conclusion is to

set aside the order passed by the CAT and the High Court and to quash

the order of dismissal passed by the DCP and confirmed by the appellate

authority. In consequence, the appellant shall forthwith be reinstated

with continuity of service. He shall be entitled for all consequential

benefits notionally. Since, the appellant is found involved in a criminal

case, therefore, in the facts of the case, back wages from the date of

dismissal till reinstatement are restricted to 50%.

43) The setting aside of the order passed under Article 311(2) proviso

(b) of the Constitution and direction for reinstatement shall be without

prejudice to the right of the respondent to take recourse as permissible

by initiating a departmental enquiry in accordance with law.

Accordingly, and with the aforesaid directions, the present appeal

stands allowed to the extent indicated. Parties to bear their own costs.

41

44) Pending application(s), if any, shall stand disposed of.

………………………………, J.

[J.K. MAHESHWARI ]

………………………………, J.

[ ATUL S. CHANDURKAR ]

New Delhi;

March 12, 2026.