Dharmendra Banjare Vs State of Chhattisgarh

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Digitally signed byRAVI RAVISHANKAR SHANKARMANDAVI MANDAVI Date: 2025.06.11 18:35:23 +0530

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2025:CGHC:11908

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 863 of 2025

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1 - Dharmendra Banjare S/o Komal Singh Banjare Aged About 35 Years R/o Nariyara P.S. Mulmula Posted As Constable P.S. Mulmula District - Janjgir - Champa (C.G.)

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2 - Durgesh Khute S/o Shri Tulsi Ram Khute Aged About 34 Years R/o Sajapali Akaltara Posted As Constable P.S. Mulmula District - Janjgir - Champa (C.G.)

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... Petitioner(s)

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versus

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1 - State Of Chhattisgarh Through The Secretary Home And Police Department Chhattisgarh Mahanadi Bhawan Mantralaya Naya Raipur Chhattisgarh District- Raipur (C.G.)

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2 - Director General Of Police Police Headquarter Naya Raipur District - Raipur (C.G.)

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3 - Inspector General Of Police Bilaspur Range Bilaspur District - Bilaspur (C.G.)

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4 - Superintendent Of Police Janjgir - Champa District - Janjgir - Champa (C.G.)

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... Respondent(s)

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(Cause-title taken from Case Information System)

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For Petitioners : Smt. Renu Kochar, Advocate

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For State/Respondent(s) : Mr. Suyashdhar Badgaiya, Dy. Govt. Adv.

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Hon'ble Shri Justice Amitendra Kishore Prasad

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Order on Board

10/03/2025

Heard Smt. Renu Kochar, learned counsel petitioners as well as Mr. Suyashdhar Badgaiya, learned Dy. Government Advocate for State/respondent/s.

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By way of this writ petition, the petitioner has prayed for following reliefs:

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“10.1 This Hon'ble Court may kindly be pleased to call for entire Records from the office of the respondent in respect of Petitioner's claim.

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10.2 The Hon'ble Court may kindly be pleased to direct the Respondents No.03 to pay interest amount.

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10.3 The Hon'ble Court may kindly be pleased to direct the Respondent No.02 to recover award amount as per award 06.10.2021 from respondent No.03.

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10.4 That, any other Writ, order directions or relief which this Hon’ble Court may deem fit may kindly be passed in favour of the petitioner.”

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Brief facts of the case is that the petitioners were posted as constable in Police Station Mulmula, District Janjgir Champa, (C.G). By memo dated 28.02.2022, the petitioners were alleged to be indulged in anti social activities, arguing with senior officers in drunken state, pointing riffle at the staff, which displays gross negligence towards duty and therefore they were suspended vide order No.1/22/105/2022 dated 28.02.2022 by respondent No. 4. (Annexure P/2). The petitioners were not been given chargesheet alleging the articles of charges against them which clearly shows that no opportunity of hearing was provided to them. Thereafter,

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the petitioners have moved an application under Right to Information Act to Public Information Officer regarding the documents of preliminary enquiry, the copy of complaint, and the CCTV footage. The Public Information Officer replied to the application of information sought to the petitioner No.2 and asked to deposit requisite information fees. The preliminary enquiry was conducted on the same day i.e 01.03.2022 and on the same date without affording any opportunity of hearing to the petitioners, neither supplying the article of charges nor asking for the reply to the charge sheet, the respondent authorities have concluded that petitioners are guilty of charges and vide order dated 02.03.2022 proceeded to remove the petitioners from services applying the provisions of Article 311(2)(b) of the Constitution of India. Being aggrieved by order dated 2.03.2022 the petitioners have preferred appeal dated 29.03.2022 and the appellate authority did not consider the grounds raised by petitioners and dismissed the appeal by order dated 15.07.2022. ( Annexure P/6.). Thereafter, the petitioners have filed mercy appeal against the order dated 28.2.2022 and 15.07.2022 whereby the Appellate Authority vide order dated 16.5.2023 has dismissed the case of petitioners, (Annexure P/7.) Thereby the petitioners have filed revision against the order dated 28.02.2022, 15.07.2022 and 16.05.2023, (Annexure P/8) which was also dismissed vide order dated 20.11.2024, (Annexure P/9) stating that earlier on submission of mercy petition representation by former constable-672 Durgesh

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Khunte and former constable-992 Dharmendra Vanjare for reinstatement in service, through mercy petition order No./Pumu/2/Appeal/A-12/M-1386/2023, dated 16.05.2023 of Police Headquarters, the mercy petition representation has been "dismissed" after due consideration and at present, no such fact/argument has been presented in defence against the allegations levelled in the application submitted by the former constables for reinstatement in service, which can be considered. Therefore, the application submitted by former constable-672 Durgesh Khunte and former constable-992 Dharmendra Banjare for reinstatement in service is "invalid", hence filed this instant petition.

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Learned counsel appearing for the petitioners submits that the factum of petitioner’s alleged to be indulged in anti social activities, arguing with senior officers in drunken state, pointing riffle at the staff has not been proved/established on the basis of any conclusive proof/material available on record, indeed, the same has been found proved by the respondent-department only on the basis of self-serving admission of the witnesses. As such, the impugned orders are liable to be set aside.

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On the other hand, learned State counsel would support the impugned orders and prays for dismissal of the petition.

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I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the record with utmost circumspection.

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In the case at hand, the petitioner's were not been given proper opportunity of hearing and on the basis of the powers conferred under sub-section (b) of the proviso to clause (2) of article 311 of the Indian Constitution, R. 992 Dharmendra Banjare and R. 672 Durgesh Khute were dismissed from service which is bad in the eyes of law as they have been charged for violating Rule 3(1) of the Rules of 1965 provides as under:

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“ 3. General -(1) Every Government servant shall at all times:—

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(i) maintain absolute integrity;

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(ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a Government servant.”

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Rule 3(1) of the Rules of 1965 clearly provides that every Government servant shall at all times maintain absolute integrity, maintain devotion to duty and do nothing which is unbecoming of a Government servant.

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A careful perusal of Rule 3(1) of the Rules of 1965 would show that the Government servant has been prohibited from keeping unlawful connections with undesirable persons who are involved in malpractices, without prior permission of the State Government, and they have to maintain the dignity and decorum with the senior officers and staff but, without affording an opportunity of hearing and passing order is injustice in the eyes of law, as such, in order to hold the petitioners guilty for committing misconduct under Rule 3(1) of the Rules of 1965, only on basis of the alleged admission

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on the part of some officials, the petitioners have been held guilty of misconduct, which is in the teeth of said Rules of 1965. Therefore, the respondents have miserably failed to prove that during the subsistence of misconduct, the petitioners have involved in malpractices and, similarly, charge of pointing gun has not been supported by any affidavit and is also not clearly established on record. There is nothing on record to substantiate the allegations made against the petitioners and that too for an order of removal from service without conducting any enquiry taking recourse of proviso to Article 311(2) of the Constitution of India.

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In order to bypass departmental enquiry, the Superintendent of Police must disclose reasons as to why it was not reasonably practicable to hold a regular departmental enquiry. The reasons should be recorded for framing an opinion that it was not reasonably practicable to hold departmental enquiry, proving the charges levelled against the delinquent employees.

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Earlier in a writ petition bearing WPS No. 2556 of 2011, this Court has passed order on12.04.2012. The relevant paras No.11 to 17 are as under :

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11. It will be useful to quote the provisions of Article 311 of the Constitution of lndia, which reads as under:

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"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

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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.

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(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

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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:

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Provided further that this clause shall not apply-

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(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

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(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

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(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.

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(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry

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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."

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12. Provisions of Article 311(2) provides that no person who is holding a civil post 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. It is further provided that the aforesaid provision shall not be applicable in case the dismissal or removal or reduction in rank was done on the ground of conduct which has led to his conviction on a criminal charge and under Article 311 (2) (b) where the authority empowered is satisfied that for some reason to be recorded by that authority in writing or under clause (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.

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13. The instant case, as pleaded by the leaned counsel for the respondents, comes within the purview of Article 311 (2) (b) of the Constitution. Before satisfaction of the authority empowered to dismiss or remove or to reduce him in the rank, reason has to be recorded in writing. Thus, mere satisfaction without recording reasons, the authority cannot invoke Article 311 (2) (b) of the Constitution for dispensing with enquiry, as required under the main provision of Article 311 (2) of the Constitution. Even the reasons recorded are also subject to judicial review, as the same should be strong, cogent and relevant for taking such a decision.

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14. A constitution Bench of the Supreme Court in Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, observed as under :

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"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity

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must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.

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Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out…"

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15. Another constitution Bench of the Supreme Court in Union of India and Another v. Tulsiram Patel, observed as under :

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"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.…

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The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.

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It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the

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allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was notreasonably practicable to hold any inquiry. …"

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16. In Jaswant Singh v. State of Punjab and Others the Supreme Court observed as under :

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"5.....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

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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 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."

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17. In Tarsem Singh v. State of Punjab & Others , the Supreme Court, while dealing with the requirement of Article 311(2) of the Constitution of India, observed as under:

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"11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document."

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The Hon’ble Supreme Court has dealt in the same aspect in the

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matter of Ex. Constable Chhote Lal v. Union of India and

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Others reported in (2000) 10 SCC 196 , in para 4 which reads as

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under :

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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.

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In another matter of Reena Rani v. State of Haryana and Others

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reported in (2012) 10 SCC 215, the Hon’ble Supreme Court has held as under :

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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.

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In view of the above, we hold that the learned Single Judge and the Division Bench of the High

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Court committed serious error by negating the appellant's challenge to her dismissal from service without enquiry. The Division Bench of the High Court did not examine the issue in a correct perspective and made general observations that each case is required to be decided on its own facts and no straight jacket formula can be adopted to decide whether it is reasonable and practicable to hold regular enquiry for imposing major penalty of dismissal from service. Such general observations could not have been made basis for approving her dismissal from service without enquiry.

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In Union of India v. Tulsiram Patel the Constitution Bench considered the scope of Clauses (a), (b) and (c) of the second proviso to Article 311. While dealing with Clause (b), Madon, J., who spoke for the majority of the Constitution Bench observed:

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"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 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 practi-

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cable 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 7 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

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disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the Government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty.

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The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not 8 recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.

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It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the rea-

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son must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.

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It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned Government servant to enable him to challenge the validity of the reasons in a departmental appeal or before a court of law and that failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the Government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would, however, be better for the disciplinary authority to communicate to the Government servant its rea-

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son for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the Government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the Government servant and the matter comes to the court, the court can direct the reasons to be produced, and furnished to the Government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons." (emphasis supplied)

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In Jaswant Singh v. State of Punjab , the two-Judge Bench referred to the ratio of Union of India v. Tulsiram Patel and observed:

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"5. ….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."

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By applying the ratio of above extracted observations to the facts of this case, we hold that the appellant's dismissal from service was ultra vires the provisions of Article 311 and the learned Single Judge and the Division Bench of the High Court committed serious error by upholding order

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dated 23.4.2010 passed by the Superintendent of Police.

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In the result, the appeal is allowed. The impugned judgment as also the order passed by the learned Single Judge are set aside and the writ petition filed by the appellant is allowed with the direction that she shall be reinstated in service and given all consequential benefits. However, it is made clear that this order shall not preclude the competent authority from taking action against the appellant in accordance with law. At the same time, we deem it necessary to observe that liberty given by this Court shall not be construed as a mandate for initiation of disciplinary proceeding against the appellant and the competent authority shall take appropriate decision after objectively considering the entire record.”

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In light of aforesaid pronouncement of the Hon’ble Supreme Court and further considering the facts and circumstances of the present case, it was not revealed that what was the reason due to which it was found that it was not practicable to hold departmental enquiry and hence, order of removal from service was passed under second proviso, clause (b) under Article 311(2) of the Constitution of India.

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Accordingly, all the impugned orders dated 28.02.2022, 15.07.2022 and 16.05.2023, and order dated 20.11.2024, passed by the respondent authorities are hereby set aside. The petitioners are directed to be reinstated in service. For back wages, both the petitioners are at liberty to file representation before the respondent/competent authority within four weeks from today and, same shall be considered and decided in accordance

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with law on its own merit after enquiring whether the petitioner was gainfully employed with the respondents/department during the aforesaid period.

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The writ petition is allowed to the extent indicated herein above.

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No cost.

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Sd/- (Amitendra Kishore Prasad) Judge

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Ravi Mandavi

Dharmendra Banjare v. State of Chhattisgarh

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Dharmendra Banjare v. State of Chhattisgarh

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