# Raghvendra Singh v. Union of India and others

- **Citation:** (2004) 1 ILRA 326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-04
- **Case number:** Special Appeal No. 90 of 1995
- **Bench:** Tarun Chatterjee, C.J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghvendra-singh-v-union-of-india-and-others-40363
- **Pages:** 6

## Headnote

Constitution of India-Article 311 (2)
Second Proviso Cl. (b) and 311 (3)-
Termination
of
Service-Departmental
enquiry-Dispensation
with-Satisfaction
of disciplinary authority that it would not
be
reasonable
practicable
to
hold
enquiry-Dismissal
order
needs
no
interference.

Held: Para 8, 10 & 11

From
the
order
of
the
concerned
authority it is clear that reason was
recorded by him, in writing, in which it
has been clearly stated that it would not
reasonably
practicable
to
hold
the
enquiry.
Since
the
authorities
have
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1 All] Raghvendra Singh V. Union of India and others 327
followed the principle laid down in the
Second proviso (b) to Article 311(2) of
the Constitution, we are unable to
interfere with the order passed by the
learned Judge.

The writ petitioner appellant along with
his
associates
indulged
in
acts
of
insubordination,
indiscipline
and
dereliction of duty, declared strike and
deserted their posts on 25.6.1979 in
complete disregard of their duties. In the
order it has been stated that the
petitioner as active participant of the
group
absented
himself
from
duty
unauthorisedly and indulged in various
acts of indiscipline and misconduct.

It has further been stated that any
attempt to hold departmental enquiry
will be frustrated by the collective action
on the part of the aforesaid group and
the witnesses were unlikely to cooperate
and give factual evidence and put all
impediments in the conduct of the
enquiry.
Case law discussed:
1981 Lab. I.C. 881 (All)(FB)
AIR 1984 SC 1499
AIR 1986 SC 555
AIR 1986 SC 617
AIR 1985 SC 1416
(1997) 10 SCC 430
(1997 3 SCC 68

## Text

326 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
jurisdiction to decide the question of
validity of acquisition.

8. In the case of Laxmi Chand and
others Vs. Gram Panchayat, Kararia
and others, AIR 1996 SC 523, the
validity of acquisition and award passed
under the Act were challenged by filing a
civil suit. On a preliminary issue, the civil
court held that suit was not maintainable.
The matter was then carried to the High
Court. The order of the civil court was
upheld by the learned Single Judge and
upon appeal, by the Division Bench.
Lastly the matter was carried to the
Supreme Court. In Paragraph 3 of the
judgment, the court observed as under:

"It would thus be clear that the
scheme of the Act is complete in itself
and thereby the jurisdiction of the Civil
Court to take cognizance of the cases
arising under the Act, by necessary
implication, stood barred. The Civil Court
thereby is devoid of jurisdiction to give
declaration on the invalidity of the
procedure contemplated under the Act. X
X X X X X.''

9. The object of the Act to acquire
any land for public purpose or for any
company would be frustrated if steps
taken by the authority in acquiring any
land are interfered by the civil court on
approach being made by the land owner.
So when a suit is filed to invalidate any
action taken in pursuance of the Act, civil
court should be loathe to exercise power
and before hearing the suit on merit,
should first decide the question of
maintainability of the suit. In the present
case, had the learned Munsif taken pains
to decide the question of maintainability
and decide the same against the plaintiffs,
the present writ petition would not have
been filed. In our opinion, the decree
passed by the civil court being nullity
cannot be put to action and none of the
reliefs as praved for by the petitioners can
be granted.

10. In the result, writ petition fails
and the same is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2004

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal No. 90 of 1995

Raghvendra Singh

...Petitioner
Versus
Union of India & others ...Respondents

Counsel for the Petitioner:
Sri K.P. Agarwal
Sri M.K. Mishra
Miss Anuradha Sundaram

Counsel for the Respondents:
Sri Ajit Kumar Singh
S.C.

Constitution of India-Article 311 (2)
Second Proviso Cl. (b) and 311 (3)-
Termination
of
Service-Departmental
enquiry-Dispensation
with-Satisfaction
of disciplinary authority that it would not
be
reasonable
practicable
to
hold
enquiry-Dismissal
order
needs
no
interference.

Held: Para 8, 10 & 11

From
the
order
of
the
concerned
authority it is clear that reason was
recorded by him, in writing, in which it
has been clearly stated that it would not
reasonably
practicable
to
hold
the
enquiry.
Since
the
authorities
have
http://www.allahabadhighcourt.nic.in
1 All] Raghvendra Singh V. Union of India and others 327
followed the principle laid down in the
Second proviso (b) to Article 311(2) of
the Constitution, we are unable to
interfere with the order passed by the
learned Judge.

The writ petitioner appellant along with
his
associates
indulged
in
acts
of
insubordination,
indiscipline
and
dereliction of duty, declared strike and
deserted their posts on 25.6.1979 in
complete disregard of their duties. In the
order it has been stated that the
petitioner as active participant of the
group
absented
himself
from
duty
unauthorisedly and indulged in various
acts of indiscipline and misconduct.

It has further been stated that any
attempt to hold departmental enquiry
will be frustrated by the collective action
on the part of the aforesaid group and
the witnesses were unlikely to cooperate
and give factual evidence and put all
impediments in the conduct of the
enquiry.
Case law discussed:
1981 Lab. I.C. 881 (All)(FB)
AIR 1984 SC 1499
AIR 1986 SC 555
AIR 1986 SC 617
AIR 1985 SC 1416
(1997) 10 SCC 430
(1997 3 SCC 68

(Delivered by Hon'ble Tarun Chatterjee, C.J.)

1. By consent of the parties, this
Special Appeal is taken-up for final
disposal.

2. This appeal arises out of a
judgment and order dated 4.1.95 passed
by a learned Judge of this Court
dismissing the writ petition No.7649 of
1979 of the writ petitioner/appellant.

3. Having heard learned counsel
appearing for the parties and after going
through the impugned order and other
materials on record, we do not find any
ground to interfere with the order passed
by the learned Judge for the reasons
mentioned herein-below.

4. In the writ application, the writ
petitioner-appellant had challenged the
order of his dismissal from service. He
was
Naik
Radio
Operator
in
the
employment of Central Reserve Police
Force, constituted under Section 3 of the
Central Reserve Police Force Act, 1949.
The case against the writ petitioner was
that he, along with some other members
indulged in acts of insubordination,
indiscipline and dereliction of duty and
disobeyed lawful command, declared
strike and deserted the post and duties on
25th June, 1979. The only plea, which
was raised by the learned counsel for the
appellant in support of his contention, was
that there was no justification on the part
of the authorities to hold that there was
reasonable practical reason not to hold
any enquiry into the allegations made
against the appellant. Article 311 of the
Constitution clearly provides for holding
an enquiry before any punishment is
inflicted on an employee. As noted here
in earlier, it is an admitted position that
the order of dismissal was passed without
holding any enquiry and without giving
any reasonable opportunity of hearing to
the writ petitioner- appellant.

5. Mr. Agarwal, learned counsel
appearing on behalf of the appellant
placed implicit reliance on a full Bench
decision of this Court in the case of
Maksudan Pathak versus Security
Officer,
Eastern
Railway,
Mughal
Sarai, reported in Lab. I.C. 1981 881 in
which it has been held that the enquiry
could be dispensed with only on the
satisfaction of the concerned disciplinary
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328 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
authority. In Sengara Singh and others
Versus State of Punjab and others
reported in AIR 1984 S.C. 1499 where
no enquiry was held in terms of Article
311(2) of the Constitution, it was held that
it was not open to the authority to dismiss
the
appellant
without
holding such
enquiry.

6. It is true that Article 311(2) of the
Constitution lays down that no such
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 or
reduced in rank except after holding 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. If we apply this
provision of Article 311(2) of the
Constitution, then we have no other
alternative but to set aside the orders of
the learned Judge as well as of the
authority. But in our view, such situation
has not happened in the instant case.
Before we go into this question, we may
refer to clause (b) of the Second proviso
to Article 311 (2) of the Constitution
according to which Article 311(2) of the
Constitution shall not apply "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."

7. We may also refer to Article
311(3) of the Constitution which provides
that if a question arises whether it is
reasonably practicable to hold such
enquiry 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.

8. If clause (b) of the Second
Proviso
to
Article
311(2)
of
the
Constitution could be made applicable in
this case, then we are unable to find any
infirmity in the order passed by the
learned Judge. To find-out the solution,
we have examined the materials on record
and also the order passed by the authority
regarding his dismissal. While passing
the order of dismissal, the authority has
stated as follows:-

"And whereas I am satisfied that in
the facts and circumstances, any attempt
to hold departmental inquiry by serving a
written charge sheet and following other
procedures in the manner provided in the
Central Reserve Police Force Rules, 1955
will be frustrated by the collective action
on the part of the aforesaid group.
Moreover, most of the witnesses are
agitators themselves and have committed
act of indiscipline and are unlikely to
cooperate and give factual evidence and
are likely to put all types of impediments
in the conduct of inquiries. It is,
therefore, not reasonably practicable to
hold an enquiry."

Therefore,
in
our
view,
the
submission of Mr. Agarwal that Article
311(2) of the Constitution should have
been followed in the present case cannot
be accepted. From the order of the
concerned authority it is clear that reason
was recorded by him, in writing, in which
it has been clearly stated that it would not
reasonably
practicable
to
hold
the
enquiry. Since the authorities have
followed the principle laid down in the
Second proviso (b) to Article 311(2) of
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1 All] Raghvendra Singh V. Union of India and others 329
the Constitution, we are unable to
interfere with the order passed by the
learned Judge. The decision in Satyavir
Singh Versus Union of India reported
in A.I.R. 1986 S.C. 555 on which Mr.
Agarwal has relied upon also clearly
shows
that
where
the
disciplinary
authority feels that crucial and material
evidence will not be available in an
inquiry because the witnesses who could
give such evidence are intimidated and
would not come forward and the only
evidence which would be available are of
police-men, police officers and senior
officers would only be peripheral and
cannot relate to all the charges and that,
therefore, leading only such evidence may
be assailed in a court of law as being a
mere farce of an inquiry and a deliberate
attempt to keep back material witnesses,
the disciplinary authority would be
justified in coming to the conclusion that
an inquiry is not reasonably practicable.

9. We may at this stage also refer to
the decision of the Supreme Court in
Shivaji Atmaji Sawant Vs. State of
Maharashtra and another reported in
AIR 1986 SC 617. In this case the order
of dismissal was passed under clause (b)
of the Second proviso to Article 311(2) of
the Constitution of India. The order of
dismissal against Sawant set out the
reasons why it was not practicable to hold
the enquiry. It was stated in the said order
that some members of the Bombay City
Police Force, had been instigating others
to indulge in acts of insubordination and
indiscipline and were instigating them to
withdraw
from
their
lawful
duties,
inciting them to violence and willfully
disobeying
orders
of
their
superior
officers and that these acts had created a
situation whereby the normal functioning
of the Force in Bombay had been
rendered difficult and impossible and
thereby
any
attempt
to
hold
a
departmental enquiry would be frustrated
by the collective action of those persons.
The
Supreme
Court
upheld
the
termination order.

10. Similar situation has arisen in
this case. The writ petitioner appellant
along with his associates indulged in acts
of
insubordination,
indiscipline
and
dereliction of duty, declared strike and
deserted their posts on 25.6.1979 in
complete disregard of their duties. In the
order it has been stated that the petitioner
as active participant of the group absented
himself from duty unauthorisedly and
indulged in various acts of indiscipline
and misconduct.

11. It has further been stated that
any attempt to hold departmental enquiry
will be frustrated by the collective action
on the part of the aforesaid group and the
witnesses were unlikely to cooperate and
give
factual
evidence
and
put
all
impediments in the conduct of the
enquiry.

12. The scope of Cl. (b) of the
second proviso to Art. 311(2) and of Art.
311(3) came up for consideration before a
Constitution Bench of the Supreme Court
in Union of India v. Tulsi Ram Patel,
reported in AIR 1985 SC 1416. While
construing the clause "it is not reasonably
practicable to hold such enquiry" used in
Cl. (b) aforesaid, it was held:-

"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 Cl. (b). What is requisite is
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330 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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...."

13. With regard to Art. 311(3) of the
Constitution after pointing out that 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 Art. 226 or the
Supreme Court under Art. 32, the Court
will interfere on grounds well established
in law for the exercise of judicial review
in matters where administrative discretion
is exercised, it was held :-

"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 Cl. (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 Cl. (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."

14. On the material on record, it is
not possible for us to take a view that
there was an abuse of power by the
disciplinary authority in invoking clause
(b). The Commandant 3 Signal Battalion
CRP Force, Rampur who passed the order
of dismissal was the best authority on the
spot to assess the situation in the
circumstances prevailing at the relevant
time and we do not find any good ground
to interfere with the view taken by him in
this behalf. As pointed out in the case of
Tulsi Ram Patel (supra) in such matters
the Court will not sit in judgment over the
relevancy of the reasons given by the
disciplinary authority for invoking clause
(b) like a Court of first appeal.

15.

The
Supreme
Court
in
Chandigarh Administration and others
Vs. Ex. S.I. Gurdit Singh reported in
(1997) 10 SCC 430 and in the case of
Union Territory, Chandigarh and others
Vs. Mohinder Singh reported in (1997) 3
SCC 68 clearly upheld that the dismissal
orders passed under clause (b) of the
second proviso to Article 311(2) of the
Constitution after dispensing with the
regular departmental enquiry for the
reason that witnesses would not come
forward to depose against the employee
freely.
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1 All] Anish Kumar Mishra V. State of U.P. and others 331
16. According to Mr. Agarwal, the
strike was only for one day and steps for
removal of the writ petitioner-appellant
was taken after 35 days. It cannot be
contended that since the authorities had
taken the decision after 35 days to remove
the writ petitioner-appellant from service,
the provisions of Article 311(2) of the
Constitution should have been followed
as we are of the firm view that it was not
reasonably practicable to hold the enquiry
and the gap of 35 days would not have
changed the situation.

17. We are, therefore, not inclined to
interfere with the order passed by the
learned Judge. Accordingly, the appeal is
dismissed. There will be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.3.2004

BEFORE
THE HON'BLE S.P. SRIVASTAVA, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 2688 of 2004

Anish Kumar Mishra

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.C. Pandey
Sri A.K. Sinha

Counsel for the Respondents:
Sri Brahmdeo Misra,
S.C.

Natural
Justice-Domicile
Certificate
granted Assistant Collector-Subsequent
cancellation
without
affording
any
opportunity to petitioner of being heard-
Impugned order passed in violation of
principles of natural justice-quashed.
Held- Para 7

Mere
knowledge
of
the
enquiry
proceedings or presence at the hearing is
not enough. The person, who is going to
be adversely affected must be informed
of all the material which may be utilized
against him so that he may have the
opportunity to adduce the additional
evidence or material of probative value
which
might
deter
the
enquiring
authority from making the finding as
indicated above.
Case law discussed:
1984 (3) All E.R. 201
JT 1992 (6) SC 673
(1993) UPLBEC 25 (SC)

(Delivered by Hon'ble S.P. Srivastava, J.)

1. Heard the learned counsel for the
petitioner.

2.

Learned
Standing
Counsel
representing the respondents no. 1 to 4
has also been heard.

It may be noticed that inspite of
repeated
opportunities
having
been
provided to file a counter affidavit in
opposition to the writ petition, no counter
affidavit has been filed so far inspite of
the fact that on 23.2.2004 it was made
clear that no further time for filing the
counter affidavit will be granted.

3. The petitioner has asserted that
Up
Zila
Adhikari/Deputy
District
Magistrate, Bhadohi, who was also
functioning as Assistant Collector, had
granted demicile certificate in favour of
the petitioner dated 10.7.2002 certifying
in favour of the petitioner dated 10.7.2002
certifying that he was a permanent
resident of village Kandhiya, Tehsil-
Bhadohi, District- Sant Ravi Das Nagar.
However, the aforesaid certificate was
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