Manohar Lal vs. Commissioner Of Police

REPORTABLE


IN THE SUPREME COURT OF INDIA
2026 INSC 234
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
Signature Not Verified
Order of Appellate Authority dated 30.07.2018 and the Order dated
Digitally signed by
NIDHI AHUJA
Date: 2026.03.12
17:38:27 IST
Reason:
1

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
2

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 contended 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
3

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
4

placed reliance on the judgments of this Court in Union of India and
1
Anr. v. Tulsiram Patel and Others , Jaswant Singh v. State of
2 3
Punjab and Ors. , Ex. Const. Chhote Lal v. Union of India & Ors. ,
4
Sudesh Kumar v. State of Haryana and Ors. , Tarsem Singh v.
5 6
State of Punjab , State of Punjab v. Harbhajan Singh , Reena Rani
7 8
v. State of Haryana , and Risal Singh v. State of Haryana .
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, i nter 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
5

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:—
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(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
7

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.
8

(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.

(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 observed 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.
9

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

10

(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.
11

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
12

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
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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
14

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
15

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
16

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
17

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
18

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
19

not make power of Article 311(2) inapplicable. In fact, second proviso to
Article 311 is an exception for dispensing with 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)
20

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.
21

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
22

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
23

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.
24

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 that it would not be
reasonably practicable to conduct a regular departmental
enquiry against the defaulter as there is a reasonable belief
25

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
26

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
27

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
28

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
29

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
30

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
31

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
32

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
33

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
34

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.

35

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. ”
36

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. ”
37

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

………………………………, J.
[J.K. MAHESHWARI ]



………………………………, J.
[ ATUL S. CHANDURKAR ]

New Delhi;
March 12, 2026.
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