JUDGMENT
S. Ravindra Bhat, J.
1. Issue Rule. Mr. Vinay Sabharwal, counsel for the respondent (hereinafter referred to as the MCD) waives notice of rule. The petition was heard for final disposal.
2. The writ petitioner joined services of the Delhi Development Authoriy(DDA) in 1976. He was selected and appointed to the post of LDC, in March, 1981; later, he was promoted as UDC in 1986. By an order dated 29-7-1991, the petitioner, along with nine others were transferred to MCD. The Slum and JJ Wing of the DDA was transferred, by general order dated 1-9-1992, to the MCD. It is averred that the petitioner qualified in a departmental examination for promotion to the post of Assistant, in DDA, on 21-4-2003; he later requested for his transfer to that organization. Apparently, the MCD accorded approval for the petitioner’s regularization to the post of Assistant in 2003.
3. The petitioner was arrested on 11-3-2005, for having committed offences under Sections 6 and 13 of the Prevention of Corruption Act, 1988. By the impugned order dated 14-3-2005, he was dismissed from the services by the MCD. The impugned order has been questioned as arbitrary, and issued in flagrant violation of principles of natural justice, since it was not preceded by any inquiry.It is also averred that the MCD did not have any authority to issue the impugned order, since the petitioner was merely on deputation; his employer was DDA.
4. The MCD, in its response, has alleged that the impugned order is neither illegal or arbitrary; it is averred that the petitioner was caught red handed accepting a bribe of Rs. 10,000/- from some one for providing possession of a DDA flat. The MCD avers that even if it were to be assumed that the petitioner was on deputation, as the borrowing organization, it did not lack in competence to issue the dismissal order; the order was merely subject to ratification by the DDA.
5. Learned counsel for the petitioner submitted that the MCD could not have dispensed with the requirement of having to hold an inquiry. It merely proceeded on the assumption that the initiation of criminal proceeding, entitled it to dismiss the petitioner, on the premise that he had been caught red handed, and that it was under no obligation to grant opportunity and follow a modicum of fair procedure before issuing a penal order. The Petitioner has disputed the allegations of the MCD.
6. Learned counsel for MCD, on the other hand submitted that the facts of this case did not warrant exercise of equitable and discretionary jurisdiction under Article 226 of the Constitution of India, since he had been caught red- handed, accepting a bribe. under the circumstances, the MCD was of the opinion that large public interest demanded issuance of the dismissal, to convey to the people at large that corrupt officers and employees would have no place in MCD. in was also submitted that ratification for the action was being sought from DDA.
7. Every action of an executive authority which visits adverse or evil consequences upon any person should be preceded by rules of natural justice or at least fair procedure. This applies equally where an employee’s services are sought to be terminated. Public employers usually prescribe procedural safeguards, for holding an enquiry enabling employees to present their case in a fair manner. An exception is carved out to cater to exceptional cases i.e where the nature of charge is either so sensitive or public interest warrants that an enquiry would not be either practicable or would lead to unfair results. One such instance has been dealt with by Constitution Bench Judgment in Union of India v. Tulsi Ram Patel ;. In that decision, the Court was interpreted of Article 311 of the Constitution of India which empowers the competent authority to dispense with an enquiry if it was deemed to be not reasonably practicable to hold it. It was held as follows:
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’ 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’ 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 note 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 prevet them from doing so or where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the government servant is weak and mist 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.
8. The principles formulated in Tulsi Ram were applied in several other subsequent judgments; the Supreme Court tested the assertion of employers, about the reasonable impracticability to hold an enquiry, and when found wanting, or unwarrated, set aside the order of dismissal. In the case reported as Jaswant Singh v. State of Punjab it was held that a decision to dispense with domestic enquiry cannot be rested solely on the ipse dixit of the concerned authority. If the satisfaction of impracticability of an enquiry is questioned in a court of law, it is incumbent on the authority forming the opinion to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of an official. A similar view was echoed in the decision in Chief Security Officer v. Singasan Rabi Das , where, the Supreme Court held as follows:
In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witness of the security/other railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view there reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in and delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result the appeal fails and is dismissed.
9. The obligation to follow an objective standard, in dispensing with the requirement of holding an enquiry, and dismissing an employee, was underscored in the decision of the Supreme Court in Indian Rly. Construction Co. Ltd. v. Ajay Kumar (2003) SCC 579.
10. Regulation 9, (which has been resorted to in this case, but has not been quoted) reads as follows:
Where the authority empowered to remove or dismiss an officer or other employee is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure in these regulations, the Disciplinary Authority, may, consider the circumstances of the case and pass such orders thereon as deem fit.
This provision is similar to Article 311 of the Constitution of India. The normal rule, where the employee is sought to be dismissed is the holding of an enquiry, and affording fair opportunity; dispensing with an enquiry is an exception which can be resorted to in the most stringent of the circumstances and justified fairly.
11. On a proper application of the rule in Tulsi Ram as followed, and applied in the subsequent decisions, on the expression not reasonably practicable in this case it follows that the reasons adduced for not holding an enquiry can hardly be justified. The order recites that the petitioner was caught red handed accepting Rs. 10,000/- as a bribe; that his conduct highlighted rampant corruption and brought tremendous shame to the department.
The authority was of the opinion that the conduct of the petitioner was in gross violation of the code of conduct for civil officers, and that after considering that holding of a departmental enquiry against the officer
would not be feasible as in long drawn out procedure the witnesses, etc, do not come forward for fear and do not depose against the delinquent officers. In the prevailing circumstances conducting of a regular departmental action would not be practicable, Also there is an emergent requirement of giving right and strong signal to the corrupt officers/ officials that such act of corruption would not be tolerated and severe most action would be taken against them.
12. In the decision reported as Onkar Lal Bajaj v. Union of India , the Supreme court was concerned with validity of an order canceling, en masse, allotments in over 3700 cases on grounds of grave irregularities. It was held as follows. The plea taken by the executive government was that probity in governance and fair play in action required a drastic order of enmasse cancellation, for which there was no need to follow principles of natural justice. The court rejected the plea, and stated as follows:
42. The contention of the learned Solicitor-General that in order to uphold the probity in governance, ensure fair play in action and in larger public interest, the Government took a decision to cancel the allotments is clearly an afterthought besides untenable even otherwise.
43. The mere reason that a controversy has been raised by itself cannot clothe the Government with the power to pass such a drastic order which has a devastating effect on a large number of people. In governance, controversies are bound to arise. In a given situation, depending upon facts and figures, it may be legally permissible to resort to such en masse cancellation where the executive finds that prima facie a large number of such selections were tainted and segregation of good and bad would be difficult and a time-consuming affair. That is, however, not the case. Here the controversy raised was in respect of 5 to 10%, as earlier indicated. In such a situation, en masse cancellation would be unjustified and arbitrary. It seems that the impugned order was a result of panic reaction of the Government. No facts and figures were gone into. Without application of mind to any of the relevant considerations, a decision was taken to cancel all allotments. The impugned action is clearly against fair play in action. It cannot be held to be reasonable. It is nothing but arbitrary.
44. Regarding the probity in governance, fair play in action and larger public interest, except contending that as a result of media exposure, the Government in public interest decided to cancel all allotments, nothing tangible was brought to our notice. On 5-8-2002 the only reason was that a controversy had been raised. In the order dated 9-8-2002 the reasons given are that facts and circumstances considered and to ensure fair play in action and in public interest, it was passed. In the counter-affidavit, the aspect of probity in governance has been brought in. Be that as it may, the fact remains that admittedly, no case was examined, not even from a prima facie angle to find out whether there was any substance in the media exposure. None examined the impact that was likely to result because of en masse cancellation. Many had resigned their jobs. It was necessary because of such a stipulation in LOI. Many had taken huge loans. There were many Scheduled Castes/Scheduled Tribes, war widows and those whose near relation had died as a result of terrorist activities. The effect of none was considered. How could all those large number against whom there was not even insinuation be clubbed with the handful of those who were said to have been allotted these dealerships/distributorships on account of political connection and patronage The two were clearly unequals. The rotten apples cannot be equated with good apples. Under these circumstances, the plea of probity in governance or fair play in action motivating the impugned action cannot be accepted. The impugned order looked from any angle cannot stand the scrutiny of law.
45. The solution by resorting to cancellation of all was worse than the problem. Cure was worse than the disease. Equal treatment to unequals is nothing but inequality. To put both the categories tainted and the rest on a par is wholly unjustified, arbitrary, unconstitutional being violative of Article 14 of the Constitution.
13. The impugned order does not disclose as to why witnesses would not come forward; whether such opinion is based on an objective and fair assesment or the ipse dixit of the authority issuing the order. The intention in not holding the inquiry is not that public interest, about the sensitive nature of the subject is involved, or that disclosure of evidence would be violative of public interest, but that holding of departmental enquiry would involve a long drawn procedure. The opinion as to why witnesses would not come forward has not been shown as based on any, much less relevant factors. The reference to giving strong signals, though laudable, is hardly a supportive reason to dispense with inquiry, which can otherwise be conveniently held. No material was disclosed to the court as to whether any witness had apprehended some threat, or perceived injury if he deposed in a normal proceeding. The order, not to hold enquiry, essentially means that it would not be convenient to the authority to do so. Such a view is fraught with danger. The procedure prescribed is a matter of public policy, and the exception to be resorted to sparingly, in exceptional situations, under circumstances which have been clearly prescribed.
13. I am also of the opinion that the impugned order is also contrary to Regulation 9(2) under which the respondents MCD were under an obligation to issue a notice in all fairness to the petitioner calling upon him to explain his version. In these circumstances, the impugned order cannot be sustained.
14. In this case, the MCD has also averred that the petitioner is subject to disciplinary control of the DDA, which has not yet endorsed its decision. In view of the above findings, the impugned order is quashed. The respondent MCD, or the DDA, as the case may be, is at liberty to take action against the alleged misconduct of the petitioner, and hold a proper inquiry in accordance with its rules and regulations.
15. In view of the above reasoning, the writ petition is allowed in the above terms. No costs.