# Hassandeen v. Union of India & Ors

- **Citation:** (2024) 3 ILRA 627
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-22
- **Case number:** Writ A No. 13228 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hassandeen-v-union-of-india-ors-51719
- **Pages:** 17

## Headnote

Service Law - Disciplinary Proceedings -
Dispensation of Inquiry - Petitioner, a
Constable (General Duty) with the Central
Industrial Security Force (CISF), challenged his
dismissal from service under Rule 39(ii) of the
CISF Rules, 2001, without holding an inquiry, on
grounds of involvement in a criminal case under
the NDPS Act, 1985 - Held, the Disciplinary
Authority validly invoked Rule 39(ii), dispensing
with
inquiry,
as
it
was
not
reasonably
practicable due to the petitioner's alleged
connection with drug mafia, creating fear
among CISF members and civilians, making it
unlikely for witnesses to testify - Reasons
recorded
in
the
dismissal
order
dated
11.04.2012 were sufficient and based on
objective material, including the FIR and police
investigation - No violation of procedural
fairness. (Paras 14, 15, 21, 23, 24, 25, 26, 28)

Service Law - Rule 39(ii) of CISF Rules -
Reasonably
Practicable
Standard
-
The
Disciplinary Authority's decision to dispense with
inquiry under Rule 39(ii) was challenged as
arbitrary - Held, as per Tulsiram Patel and
Ved Mitter Gill , the standard for dispensing with
inquiry is "not reasonably practicable," not
absolute impracticability - The Disciplinary
Authority's subjective satisfaction, based on the
628 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner's involvement in a serious crime (theft
of 558 kg opium worth Rs. 4 crores) and the
terror induced by associated drug mafia, was
supported by objective material and relevant
considerations - The decision was not a
mechanical exercise of power, distinguishing the
case from Ram Bahadur Yadav . (Paras 17, 19,
20, 22, 27, 28)

Service Law - Constitutional Safeguards -
Article 311(2) - The petitioner argued that
the dispensation of inquiry violated Article
311(2) and the proviso to Rule 39 - Held, Rule
39(ii) mirrors clause (b) of the second proviso to
Article 311(2), allowing dispensation of inquiry
when not reasonably practicable, with reasons
recorded in writing - The proviso to Rule 39,
requiring an opportunity for representation,
applies
only
to
cases
under
clause
(i)
(conviction-based penalty), not clause (ii), and
thus was inapplicable - The Disciplinary
Authority's detailed reasons in the impugned
order
satisfied
constitutional
requirements.
(Paras 12, 13, 14, 26)

Writ Petition Dismissed .

No Interference with Orders Dated 11.04.2012,
14.08.2012, and 03.01.2014.

List of Cases Cited:

## Text

_Characters 0–39,989 of 59,766. This is a partial read: ask again with offset=39989 for what follows._

3 All. Hassandeen Vs. Union of India & Ors.
627
prejudices the petitioner, visiting him with
adverse civil consequences.

44. In the result, this writ petition
succeeds and is allowed. The impugned
order dated 07.06.2023 passed by the
Chairman of the Corporation and the order
dated 04.09.2021 passed by the Chief
Engineer
(HR-cum-Disciplinary
Proceedings), Distribution Corporation are
hereby quashed. The petitioner shall be
reinstated in service forthwith and paid his
current salary. However, considering the
gravity of the charge, it will be open to the
respondents, if they so elect, not only to
proceed with the inquiry afresh from the
stage of the charge-sheet, holding it in the
manner indicated in this judgment, but also
to place the petitioner under suspension
pending conclusion of the disciplinary
proceedings.
The
entitlement
of
the
petitioner to receive his emoluments for the
period of time that he has remained out of
service, would abide by the result of the
disciplinary
proceedings
finally
determined. If, however, the respondents do
not elect to pursue disciplinary proceedings
against
the
petitioner,
50%
of
his
emoluments shall be payable for the period
that he has remained out of service. It is
further clarified that in the event the
respondents also elect to place the
petitioner
under
suspension
pending
conclusion of disciplinary proceedings, he
would be entitled to the payment of
subsistence allowance, which shall be
regularly paid, without asking him to
furnish
a
non-alternative
engagement
certificate. The disciplinary proceedings, if
held afresh as per liberty granted, shall be
concluded
expeditiously,
wherein
the
petitioner will cooperate.

45. Costs easy.
----------
(2024) 3 ILRA 627
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2024
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 13228 of 2014

Hassandeen ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri D.K. Singh, Sri Mohhammad Firoz Khan,
Sri Rajesh Kumar Singh, Sri V.K. Singh

Counsel for the Respondents:
A.S.G.I., Sri J.P. Mishra, Sri K.C. Kaushik,
Sri Piyush Misra, S.C.

Service Law - Disciplinary Proceedings -
Dispensation of Inquiry - Petitioner, a
Constable (General Duty) with the Central
Industrial Security Force (CISF), challenged his
dismissal from service under Rule 39(ii) of the
CISF Rules, 2001, without holding an inquiry, on
grounds of involvement in a criminal case under
the NDPS Act, 1985 - Held, the Disciplinary
Authority validly invoked Rule 39(ii), dispensing
with
inquiry,
as
it
was
not
reasonably
practicable due to the petitioner's alleged
connection with drug mafia, creating fear
among CISF members and civilians, making it
unlikely for witnesses to testify - Reasons
recorded
in
the
dismissal
order
dated
11.04.2012 were sufficient and based on
objective material, including the FIR and police
investigation - No violation of procedural
fairness. (Paras 14, 15, 21, 23, 24, 25, 26, 28)

Service Law - Rule 39(ii) of CISF Rules -
Reasonably
Practicable
Standard
-
The
Disciplinary Authority's decision to dispense with
inquiry under Rule 39(ii) was challenged as
arbitrary - Held, as per Tulsiram Patel and
Ved Mitter Gill , the standard for dispensing with
inquiry is "not reasonably practicable," not
absolute impracticability - The Disciplinary
Authority's subjective satisfaction, based on the
628 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner's involvement in a serious crime (theft
of 558 kg opium worth Rs. 4 crores) and the
terror induced by associated drug mafia, was
supported by objective material and relevant
considerations - The decision was not a
mechanical exercise of power, distinguishing the
case from Ram Bahadur Yadav . (Paras 17, 19,
20, 22, 27, 28)

Service Law - Constitutional Safeguards -
Article 311(2) - The petitioner argued that
the dispensation of inquiry violated Article
311(2) and the proviso to Rule 39 - Held, Rule
39(ii) mirrors clause (b) of the second proviso to
Article 311(2), allowing dispensation of inquiry
when not reasonably practicable, with reasons
recorded in writing - The proviso to Rule 39,
requiring an opportunity for representation,
applies
only
to
cases
under
clause
(i)
(conviction-based penalty), not clause (ii), and
thus was inapplicable - The Disciplinary
Authority's detailed reasons in the impugned
order
satisfied
constitutional
requirements.
(Paras 12, 13, 14, 26)

Writ Petition Dismissed .

No Interference with Orders Dated 11.04.2012,
14.08.2012, and 03.01.2014.

List of Cases Cited:

1. U.O.I. & anr.Vs Tulsiram Patel, (1985) 3 SCC
398

2. Southern Railway Officers Association Vs
U.O.I. & ors., (2009) 9 SCC 24

3.
Ved
Mitter
Gill
Vs
Union
Territory
Administration, Chandigarh & ors., (2015) 8 SCC
86

4. U.O.I. & ors. Vs Ram Bahadur Yadav, (2022)
1 SCC 389

5. Tarsem Singh Vs St. of Punjab, (2006) 13
SCC 581

6. St. of Punjab Vs Harbhajan Singh, (2007) 15
SCC 217

7. Arjun Chaubey Vs U.O.I., (1984) 2 SCC 578

8. Moti Ram Deka Vs General Manager, N.E.F.
Railways, AIR 1964 SC 600

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition has been
preferred by Hassandeen, once a Constable
(General Duty) with the Central Industrial
Security Force (for short, 'the CISF'), who
has been dismissed from service by the
Group
Commandant,
CISF
Group
Headquarters, Allahabad vide order dated
11.04.2012. This order has been affirmed in
appeal by the Deputy Inspector General of
Police, CISF, Allahabad vide order dated
14th August, 2012 and further upheld in
revision by the Inspector General, North
Sector, CISF, New Delhi on the 3rd of
January, 2014 by an order of that date.

2. This is a case where the order of
dismissal from service has been passed
against the petitioner by the Disciplinary
Authority in the exercise of powers under
Rule 39 (ii) of the Central Industrial
Security Force Rules, 2001 (for short, 'the
Rules'), without holding an inquiry on
grounds recorded in writing in the order
impugned
that
it is not reasonably
practicable to hold it.

3. The facts giving rise to this petition
are:

The petitioner was selected and
appointed to the CISF as a Constable
(General Duty) (for short, 'Constable GD')
in the year 1999. He was posted in the
Fourth
Battalion,
Government
Opium
Factory, Ghazipur as Constable GD, CISF
Unit, Ghazipur. During the period of his
posting at the CISF Unit, Ghazipur, a First
Information Report (for short, 'the FIR')
came to be lodged by the Station House
Officer, Police Station Jaitpura, District
3 All. Hassandeen Vs. Union of India & Ors.
629
Varanasi against the petitioner, besides
another ten accused, giving rise to Crime
No.54 of 2012, under Section 8/22 of the
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 (for short, 'NDPS
Act'), Police Station Jaitpura, District
Varanasi. The FIR aforesaid was lodged on
29.02.2012. The petitioner was arrested by
the Police in connection with the said crime
on 17.03.2012 and remanded to judicial
custody. The Group Commandant, CISF
Group
Headquarters,
Allahabad
was
informed of the fact by the Senior SubInspector, Police Station Jaitpura, District
Varanasi by his letter of 18th March, 2012.
In consequence, by an order dated
18.03.2012, the petitioner was placed under
suspension by the Group Commandant
w.e.f. 17.03.2012. On the 11th April, 2012,
the Group Commandant proceeded to
dismiss
the
petitioner
from
service
invoking his powers under Rule 39(ii) of
the Rules, without holding an inquiry on
ground
that
it
was
not
reasonably
practicable. The reasons to proceed on the
basis that it was not reasonably practicable
to hold an inquiry are carried in the
impugned
order
of
dismissal
dated
11.04.2012. Allusion to these reasons shall
be made during the course of this
judgment.

4. The petitioner carried an appeal
from the order of dismissal to the Deputy
Inspector
General
of
Police,
CISF,
Allahabad, the Appellate Authority, which
was dismissed by an order dated 14th
August, 2012. The petitioner then preferred
a revision under Rule 54 of the Rules. The
petitioner's revision was not decided by the
Inspector General for a long period of time.
The petitioner, therefore, petitioned this
Court by means of Writ-A No.794 of 2014,
making a grievance of the delay in the
decision of his revision. This Court by an
order dated 8th January, 2014 disposed of
the writ petition with a direction to the
Inspector General to consider the same and
decide expeditiously within a period of four
months from the date of production of a
certified copy of the order made in the writ
petition aforesaid. In consequence, the
Inspector General, the Revisional Authority
by his order dated 3rd January, 2014
rejected the revision as barred by time.

5. Aggrieved, this writ petition has
been preferred.

6. Heard Mr. Rajesh Kumar Singh,
Advocate along with Mr. Mohammad Firoz
Khan, learned Counsel for the petitioner
and Mr. Piyush Mishra, learned Central
Government Counsel appearing on behalf
of respondents.

7. It is pointed out by the learned
Counsel for the petitioner that the order of
dismissal
from
service
was
passed
dispensing with inquiry under Rule 33 of
the
Rules
and
adopting
the
drastic
procedure envisaged under Rule 39(ii) on
ground
that
it
was
not
reasonably
practicable to hold inquiry because of the
petitioner's involvement in Case Crime
No.54 of 2012. It is argued by the learned
Counsel that it was not for the Disciplinary
Authority to take cognizance of the
petitioner's acts of commission or omission
that were subject matter of criminal
investigation/ criminal trial, a proceeding
entirely different from those envisaged
under Rule 39(i) of the Rules. It is urged
that the Disciplinary Authority could not
have considered the petitioner's conduct
that was subject matter of criminal
investigation or trial, while exercising his
powers under Rule 39(ii) of the Rules. The
submission, therefore, is that powers under
Section 39(ii) of the Rules were exercised
630 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Disciplinary Authority on irrelevant
considerations.

8. It is next pointed out that the reason
recorded in the impugned order dated
11.04.2012
is
the
improbability
of
witnesses turning up to testify against the
petitioner. It is submitted that this reasoning
is flawed, because it is not disclosed
anywhere by the respondents that any
endeavour was made to secure the presence
of witnesses, but found them reluctant or
hesitant. It is next submitted that if the
ground is the non-availability of witnesses
against the delinquent on account of fear
etc., the names of witnesses should have
been disclosed in the impugned order, that
is to say, those witnesses, who were invited
by the respondents to testify against the
petitioner but declined. It is urged that the
inference about improbability of witnesses
turning up to testify, recorded in the
impugned order is baseless and without
material, rendering the foundation of the
impugned order shaky.

9. It is next argued that Rule 39(ii) of
the Rules contemplates dispensation of
inquiry
strictly
under
circumstances
mentioned in that Rule. It is urged that the
power is drastic, and, therefore, resort to
Rule 39(ii) of the Rules should be made
alone, if requirements of the Rule are
strictly satisfied. The power cannot be
exercised arbitrarily to bypass the inquiry,
otherwise required to be undertaken. It is
also argued that the proviso to Rule 39
contemplates that an enrolled member of
the CISF may be given opportunity of
making a representation against the penalty
proposed before it is inflicted, which in this
case has been observed in breach. It is next
submitted by the learned Counsel for the
petitioner, enlarging a point already made,
that the procedure envisaged under Rule 39
is in the nature of a proviso to the holding
of a regular inquiry under Rule 32. This
proviso reflects the constitutional mandate
in Article 311 of the Constitution, which
too makes the holding of an inquiry an
imperative and dispensation remote in
circumstances that make adherence to
inquiry
procedures,
not
reasonably
practicable. In support of his contention,
learned Counsel for the petitioner has
placed strong reliance upon the decision of
the Supreme Court in Union of India and
others v. Ram Bahadur Yadav, (2022) 1
SCC 389. Allusion to the principle laid
down in Ram Bahadur Yadav (supra), and
if it is in point for the petitioner, shall be
made during the course of this judgment. It
is, particularly, emphasized by the learned
Counsel for the petitioner that in the
absence of evidence to show that despite
effort made, no witness was willing to
come forward and testify against the
petitioner, the Disciplinary Authority's
subjective satisfaction is flawed.

10. Mr. Piyush Mishra, learned
Counsel for the respondents, refuting the
submissions advanced on behalf of the
petitioner, submits that there are detailed
reasons recorded in the impugned order
why the Disciplinary Authority has opined
that it is not practicable to hold an inquiry.
It is submitted that the circumstances in
which the petitioner was found involved in
the criminal case, where 25 containers of
opium were stolen from the opium factory,
being 558 kilograms and worth Rs.4 crores,
the prospects of witnesses coming forward
are not there. This theft and removal of
opium from the Government Opium
Factory involved twelve persons, to wit,
Gopal Dhare Asharam, Sheetal Jaiswal, Om
Prakash Yadav, Tushar @ Babu Jaiswal,
Constable Balu Nayak, S.I. Santosh Kumar,
Assistant Commandant Khajan Singh,
3 All. Hassandeen Vs. Union of India & Ors.
631
Constable K. Satish Kumar, Constable
Hassandeen, Constable M. Bhaskar, Munna
@ Rohit and Kamlesh @ Tuntun Kesari.
The petitioner's name figured, no doubt, in
the statement of a co-accused, but on the
foot of involvement of these CISF men,
who were acting in concert with opium
mafia and the material that was gathered in
connection with arrest of the CISF
Personnel,
including
an
Assistant
Commandant, the Disciplinary Authority
formed
a
subjective
satisfaction,
for
reasons recorded, to dispense with inquiry,
finding it to be not reasonably practicable.
Why it was not reasonably practicable,
bearing
in
mind
the
material
and
circumstances, attending the petitioner's
act, is given in the impugned order.

11. It is no doubt true that the normal
rule to impose a major penalty is one after
holding due inquiry, for which an elaborate
procedure is laid down under Rule 36 of
the Rules. Rule 39 carves out an exception
to Rules 36 to 38. It may be apposite to
point out that whereas Rule 36 lays down
the elaborate procedure to hold disciplinary
proceedings in case of major penalties,
Rule 37 prescribes the procedure for
imposing minor penalties and Rule 38 the
procedure
for
imposition
of
petty
punishment. Rule 39, that is in the nature of
a proviso to the normal procedure for the
imposition of punishment of any kind,
reads:

"39.
Special
procedure
in
certain cases.- Not with standing anything
contained in rules 36 to 38 -

(i) where any penalty is imposed
on an enrolled member of the Force on the
ground of conduct which has led to his
conviction on a criminal charge; or

(ii)
where
the
disciplinary
authority is satisfied for reasons to be
recorded by it in writing that it is not
reasonably practicable to hold an inquiry in
the manner provided in these rules, or

(iii) where the President is
satisfied that in the interest of the security
of the state, it is not expedient to hold any
inquiry in the manner provided in these
rules, the disciplinary authority may
consider the circumstances of the case and
make such orders thereon as it deems fit;

Provided
that
the
enrolled
member of the Force may be given an
opportunity
of
making
representation
against the penalty proposed to be imposed
before any order is made in case under
clause (i)."

12. The Rules have been framed by
the Central Government in the exercise of
their powers under Section 22 of the
Central Industrial Security Force Act, 1968
(for short, 'the Act'), which confers wide
powers on the Government to make Rules
for carrying out the purposes of the Act.
The scheme of the Rules, which envisages
an ordinary mode for the imposition of a
punishment of any kind and then an
extraordinary
mode
in
certain
contingencies, orchestrates what Article
311 of the Constitution provides in the
matter of dismissal, removal etc. of a
member of a civil service of the Union or a
State, or a person holding a civil post under
the Union or a State, to borrow almost the
phraseology of Article 311(1). Article 311
of the Constitution reads:

"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
632 INDIAN LAW REPORTS ALLAHABAD SERIES
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

(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. A comparison of what the higher
principles in the Constitution lay down in
connection with removal of a civil servant
of the Union or a State and the provisions
of the Rules would show striking similarity.
What proviso (b) to Article 311 (2)
postulates, is clearly reflected in the
provisions of Rule 39 of the Rules. There is
one issue, which Mr. Rajesh Kumar Singh,
learned Counsel for the petitioner raised,
that deserves to be disposed of for a first.
He submitted, relying on the proviso to
Rule 39 of the Rules, that it postulates
opportunity of making a representation
against the proposed penalty imposed under
Rule 39, which has been observed in
breach by the respondents. A perusal of
Rule 39 of the Rules would show that the
proviso envisages provision of opportunity
to make a representation against the
proposed penalty before it is imposed, in
case the order is made, invoking clause (i)
of Rule 39 of the Rules. Clause (i)
aforesaid contemplates digression from the
ordinary rule of holding a departmental
inquiry in case where any penalty is
imposed on an enrolled member of the
CISF on ground of conduct that has led to
his conviction in a criminal case. The
proviso to Rule 39, therefore, would have
no application to the present case, where
clause (ii) of Rule 39 has been invoked by
the respondents to punish the petitioner.
The aforesaid contention of the learned
Counsel for the petitioner, therefore, has no
force.

14. A perusal of the impugned order
shows that clause (ii) of Rule 39 has been
invoked by the Disciplinary Authority to
hold that it is not reasonably practicable to
hold an inquiry on the following grounds,
detailed in the impugned order (translated
into English from Hindi):

"(a) As would be seen from the
FIR Case Crime No.54 of 2012, registered
on 29.02.2012 at 17:00 hours, the case
3 All. Hassandeen Vs. Union of India & Ors.
633
property recovered is opium worth Rs.4
crores, estimatedly where Constable GD
Hassandeen's name is also found involved.
The proof comprises the FIR registered by
the Police.

(b) The local drug mafia, with
whom
Constable
GD Hassandeen
is
involved
command
such
terror
and
influence in the area, extending large, that
there is no likelihood of any witness
testifying against him or assisting in the
departmental proceedings.

(c) The members of the CISF
have been put in so much fear that the Unit
is facing such intimidating circumstances
where members of the Force, avoid
testifying against him.

(d) Constable GD appears to have
illegal connection to the drug mafia and on
account of the terror and fear of the drug
mafia, it is not possible that any witness
would come forward.

(e) This fact is proved from the
police case that Constable GD Hassandeen
is involved with those, who illegally trade
in opium and to have a member on the
force, who has connections with such
antisocial elements, is not only fatal for the
force, but also expose to extreme danger
those establishments, where he is posted.

(f) Most of the witnesses in this
case are civilians, to produce whom is not
possible.

(g) The CISF is a Central Armed
Police Force. It is an Armed Force of the
Union. The CISF is posted to sensitive
stations and places like Airports, Seaports,
Units of the Atomic Energy Department,
the
Space
Department,
Metro
Rail,
Electricity, Iron Industry. The force (CISF)
is detailed to internal security duty as well
as election duty. The CISF requires to
maintain a high decree of discipline.

(h) Gauging the circumstances, so
that general administration and discipline
do not break down and go out of control,
leading to breach of peace, it would not be
desirable to await such circumstances to
come by."

15. These reasons to dispense
with the holding of a departmental inquiry
and proceeding under Rule 39 was a
decision
taken
by
the
Disciplinary
Authority under circumstances recorded in
that order. Broadly put, there was a
Constable of the CISF posted at the
Government Opium Factory, Ghazipur,
Gopal Dhare Asharam Ganpat. According
to the FIR, giving rise to Case Crime No.54
of 2012, registered on 29.02.2012 at 17:00
hours at Police Station Jaitpura, District
Varanasi, he was arrested during a raid by
the Police in a house located under Nakhi
Ghaat, near the Shailputri Temple, together
with 25 containers full of 558 kilograms of
raw opium, estimated to be worth Rs.4
crores. The Constable had three members
of the public with him, one of whom was
able to make good his escape. The
Constable was arrested along with two
members of the public, going by the name,
Sheetal Jaiswal and Om Prakash Yadav. All
of them were arrested in the said crime.
The arrest of these three in the raid and
recovery of opium was done under the
supervision of the Circle Officer, Chetganj.
During interrogation of the three men
arrested
as
aforesaid,
revealed
the
involvement of Constable GD Hassandeen
in the crime. After Hassandeen was brought
to the Police Station and investigated, it
was found that the 25 containers full of 558
kilograms of raw opium, stolen from the
Government
Opium
Factory,
had
Hassandeen's involvement too. He was
arrested and sent to jail. Information was
given by Police Station Chetganj on
18.03.2012 to the CISF.

16. It was at this stage and
shortly after the petitioner was arrested and
634 INDIAN LAW REPORTS ALLAHABAD SERIES
sent to jail that on 11.04.2012, the
Disciplinary Authority invoked his powers
under Rule 39(ii) of the Rules, assigning
reasons in writing to hold that this was a
case where it was not practicable to hold an
inquiry, in the exercise of powers under the
said Rule, proceeded to punish the
petitioner with dismissal from service. The
aforesaid order was passed on ground of his
involvement in the criminal case and the
circumstances of arrest, from which an
inference was drawn that he was involved
with national and international gang of
opium smugglers. These were activities
found to be harmful for the CISF, besides
bringing it a bad name.

17. Now, the question to be
determined is as what are the parameters on
which power under Rule 39(ii) of the Rules
can be exercised by the Disciplinary
Authority to punish an enrolled member of
the CISF, without holding an inquiry. This
question engaged the attention of a
Constitution Bench of the Supreme Court
in Union of India and another v.
Tulsiram Patel, (1985) 3 SCC 398. The
question was decided with reference to the
provisions of clause (2) of Article 311,
which we have already noticed hereinabove
are pari materia to the Rules here. It is
observed
in
Tulsiram
Patel
(supra)
regarding the validity of Rules providing
for exclusion of natural justice in the
following terms:

"106. It is not possible to accept
this submission. The opening words of
Article 309 make that article expressly
"Subject
to
the
provisions
of
this
Constitution". Rules made under the
proviso to Article 309 or under Acts
referable to that article must, therefore, be
made subject to the provisions of the
Constitution if they are to be valid. Article
310(1) which embodies the pleasure
doctrine is a provision contained in the
Constitution. Therefore, rules made under
the proviso to Article 309 or under Acts
referable to that article are subject to
Article 310(1). By the opening words of
Article
310(1)
the
pleasure
doctrine
contained therein operates "Except as
expressly provided by this Constitution".
Article 311 is an express provision of the
Constitution. Therefore, rules made under
the proviso to Article 309 or under Acts
referable to Article 309 would be subject
both to Article 310(1) & Article 311. This
position was pointed out by Subba Rao, J.,
as he then was, in his separate but
concurring judgment in Moti Ram Deka
case [AIR 1964 SC 600 : (1964) 5 SCR
683, 734-5 : (1964) 2 LLJ 467] at p. 734,
namely, that rules under Article 309 are
subject to the pleasure doctrine and the
pleasure doctrine is itself subject to the two
limitations imposed thereon by Article 311.
Thus, as pointed out in that case, any rule
which contravenes clause (1) or clause (2)
of Article 311 would be invalid. Where,
however, the second proviso applies, the
only restriction upon the exercise of the
pleasure of the President or the Governor of
a State is the one contained in clause (1) of
Article 311. For an Act or a rule to provide
that in a case where the second proviso
applies any of the safeguards excluded by
that proviso will be available to a
government servant would amount to such
Act or rule impinging upon the pleasure of
the President or Governor, as the case may
be,
and
would
be
void
as
being
unconstitutional. It is, however, a wellsettled rule of construction of statutes that
where two interpretations are possible, one
of which would preserve and save the
constitutionality of the particular statutory
provision while the other would render it
unconstitutional and void, the one which
3 All. Hassandeen Vs. Union of India & Ors.
635
saves and preserves its constitutionality
should be adopted and the other rejected.
Such constitutionality can be preserved by
interpreting that statutory provision as
directory and not mandatory. It is equally
well-settled that where a statutory provision
is directory, the courts cannot interfere to
compel the performance or punish breach
of the duty created by such provision and
disobedience of such provision would not
entail any invalidity - see Craies on
Statute Law, Seventh Edn., at p. 229. In
such a case breach of such statutory
provision would not furnish any cause of
action or ground of challenge to a
government servant for at the very
threshold, such cause of action or ground of
challenge would be barred by the second
proviso to Article 311(2)."

18. It is, therefore, in accord with the
constitutional scheme that service rules
excluding natural justice have to be
reflections of clause (b) of the second
proviso
to
Article
311(2)
of
the
Constitution.

19. The parameters, on which the
power to dispense with an inquiry under
clause (b) of the second proviso to Article
311(2) of the Constitution is exercised,
have been elaborately laid down by the
Constitution Bench in Tulsiram Patel. In
Tulsiram Patel, it has been held:

"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 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.
636 INDIAN LAW REPORTS ALLAHABAD SERIES
In this connection, we must bear in mind
that numbers coerce and terrify while an
individual
may
not.
The
reasonable
practicability of holding an inquiry is a
matter of assessment to be made by the
disciplinary authority. Such authority is
generally on the spot and knows what is
happening. It is because the disciplinary
authority is the best judge of this that
clause (3) of Article 311 makes the decision
of the disciplinary authority on this
question final. A disciplinary authority is
not expected to dispense with a disciplinary
inquiry lightly or arbitrarily or out of
ulterior motives or merely in order to avoid
the holding of an inquiry or because the
Department's case against the government
servant is weak and must fail. The finality
given to the decision of the disciplinary
authority by Article 311(3) is not binding
upon the court so far as its power of
judicial review is concerned and in such a
case the court will strike down the order
dispensing with the inquiry as also the
order imposing penalty. The case of Arjun
Chaubey v. Union of India [(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.

131. It was submitted that where
a
delinquent
government
servant
so
terrorizes the disciplinary authority that
neither that officer nor any other officer
stationed at that place is willing to hold the
inquiry, some senior officer can be sent
from outside to hold the inquiry. This
submission itself shows that in such a case
the holding of an inquiry is not reasonably
practicable. It would be illogical to hold
that the administrative work carried out by
senior officers should be paralysed because
a delinquent government servant either by
himself or along with or through others
makes the holding of an inquiry not
reasonably practicable.

132. It is not necessary that a
situation which makes the holding of an
inquiry not reasonably practicable should
exist before the disciplinary inquiry is
initiated against a government servant.
Such a situation can also come into
existence subsequently during the course of
an inquiry, for instance, after the service of
a charge-sheet upon the government
servant or after he has filed his written
statement thereto or even after evidence has
been led in part. In such a case also the
disciplinary authority would be entitled to
3 All. Hassandeen Vs. Union of India & Ors.
637
apply clause (b) of the second proviso
because the word "inquiry" in that clause
includes part of an inquiry. It would also
not be reasonably practicable to afford to
the government servant an opportunity of
hearing or further hearing, as the case may
be, when at the commencement of the
inquiry or pending it the government
servant absconds and cannot be served or
will not participate in the inquiry. In such
cases, the matter must proceed ex parte and
on the materials before the disciplinary
authority. Therefore, even where a part of
an inquiry has been held and the rest is
dispensed with under clause (b) or a
provision in the service rules analogous
thereto, the exclusionary words of the
second proviso operate in their full vigour
and
the
government
servant
cannot
complain that he has been dismissed,
removed or reduced in rank in violation of
the safeguards provided by Article 311(2).

133.
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.

134. It is obvious that the
recording in writing of the reason for
dispensing with the inquiry must precede
the order imposing the penalty. The reason
for dispensing with the inquiry need not,
therefore, find a place in the final order. It
would be usual to record the reason
separately and then consider the question of
the penalty to be imposed and pass the
order imposing the penalty. It would,
however, be better to record the reason in
the final order in order to avoid the
allegation that the reason was not recorded
in writing before passing the final order but
was subsequently fabricated. The reason for
dispensing with the inquiry need not
contain detailed particulars, but the reason
must not be vague or just a repetition of the
language of clause (b) of the second
proviso. For instance, it would be no
compliance with the requirement of clause
(b) for the disciplinary authority simply to
state that he was satisfied that it was not
reasonably practicable to hold any inquiry.
Sometimes a situation may be such that it is
not reasonably practicable to give detailed
reasons for dispensing with the inquiry.
This would not, however, per se invalidate
the order. Each case must be judged on its
own merits and in the light of its own facts
and circumstances."

20. The aforesaid principles laid down
by the Constitution Bench were followed
by the Supreme Court in Southern
Railway Officers Association v. Union of
India and others, (2009) 9 SCC 24. These
principles were further followed and
elaborated in a later decision of the
Supreme Court in Ved Mitter Gill v.
Union
Territory
Administration,
Chandigarh and others, (2015) 8 SCC
86. The facts in Ved Mitter Gill (supra)
show that while Gill was posted as the
Deputy Superintendent of Police, Model
Jail, Burail, Chandigarh in January, 2004,
four under-trials, three of whom were
facing trial on the charge of assassinating a
former Chief Minister of Punjab, Sri Beant
Singh and another, escaped from Model
Jail, Burail, Chandigarh by digging an
underground tunnel. Gill was dismissed
from service vide order dated 01.03.2004
by the Administrator, Union Territory of
Chandigarh invoking clause (b) of the
second proviso to Article 311(2). He
638 INDIAN LAW REPORTS ALLAHABAD SERIES
challenged the order of dismissal dated
01.03.2004 by preferring departmental
appeals to the Administrator of the Union
Territory. Those appeals were dismissed as
not
maintainable
vide
order
dated
11.02.2005.
Gill
moved
the
Central
Administrative
Tribunal
through
an
Original
Application,
challenging
the
orders of his dismissal from service. The
Central Administrative Tribunal vide order
dated 30.01.2006 dismissed the Original
Application. This order was impugned
before the High Court in a writ petition,
that came to be dismissed by an order dated
01.05.2006. It was against the order of the
High Court that Gill appealed by special
leave to the Supreme Court. Before the
Supreme Court, the appeal preferred by
Gill was heard along with transferred cases,
that were writ petitions filed in the High
Court by the other officers posted in Jail,
who had similarly been dismissed and their
writ petitions were still pending before the
High Court by time Gill moved the
Supreme Court by his petition for special
leave to appeal. It was in the backdrop of
these facts that after noticing the principles
laid down in Tulsiram Patel, Tarsem
Singh v. State of Punjab, (2006) 13 SCC
581, State of Punjab v. Harbhajan Singh,
(2007) 15 SCC 217 and other high
authority that their Lordships held:

"22.