Supreme Court of India
IKRAMUDDIN AHMED BORAHversusSUPERINTENDENT OF POLICE, DARRANG & OTHERS
- Citation
- 1988 INSC 304
- Decided
- 27 September 1988
- Disposal
- Dismissed
- Bench
- E S VENKATARAMIAH
Holding
The dismissal was valid as the Superintendent and the Principal Police Training College are coordinate authorities, and the invocation of clause (b) of Article 311(2) was justified; the court will not interfere with the disciplinary authority’s satisfaction.
Summary
Ikramuddin Ahmed Borah, a Sub‑Inspector of Police in Assam, was appointed by the Principal Police Training College under the Assam Police Manual. He was dismissed by the Superintendent of Police, Darrang, invoking clause (b) of the second proviso to Article 311(2) of the Constitution on the ground that an inquiry was not reasonably practicable because witnesses were unavailable due to fear. Borah appealed to the Inspector General, then to the High Court under Article 226, both of which dismissed his challenge. The Supreme Court held that the Superintendent and the Principal Police Training College are coordinate authorities under the Police Manual, so the dismissal was not illegal under Article 311(1). It further held that the clause (b) exception was correctly applied, as a reasonable man would find an inquiry impracticable, and the court will not interfere with the disciplinary authority’s satisfaction. Consequently, the appeal was dismissed.
Issues considered
- Whether a dismissal by the Superintendent of Police is invalid because the Sub‑Inspector was appointed by the Principal Police Training College, contrary to Article 311(1).
- Whether clause (b) of the second proviso to Article 311(2) applies, i.e., whether it was reasonably practicable to hold an inquiry in the circumstances.
- Whether the court can review the disciplinary authority’s satisfaction that an inquiry was not reasonably practicable.
Legislation cited
- Assam Police Manuals. Part III Rule 11(x), s. Schedule Column II
- Constitution of Indias. 311(1), s. 311(2), s. 311(3)
Subjects
Article 311disciplinary dismissalpolice servicecoordinate authorityreasonable practicabilityinquiryfear of witnessesAssam Police Manualconstitutional law
Judgment
IKRAMUDDIN _AHMED BORAH , , . ..
A
y. ~- "
SUPERINTENDENT OF .POLICE, DARRANG & OTin!RS
n. ,';
SEPTEMBER 27, 1988
[E.S. VENKATARAMIAH AND N,D. OJHA, JJ.) B
',;
Constitution of India, 1950: Article 311(2)(b)-'Not reasonably
practicable to hold such enquiry'-lnterpretation of-The holding of
the enquiry is not practicable in the opinion of a reasonable man taking
a reasonable view of the prevailing situation-Non avai/abilitiof witnes-
ses on account offear of the officer concerned-A sufficient ground.
c
Assam Police Manual: P,art III Rule l l(X) and Column 11-Sub-
Jnspector-Appointed "by Principal Police Training College--D1smissal
by Superintendent-Whether valid and legal.
The appellant who was a Sub-Inspector of Police was dismissed by D
the Superintendent of Police by an order dated 29th January, 1973,
exercising powes under clause (b) of the second proviso to Article 311(2)
of the Constitution of India. The appellant preferred an appeal to the
Inspector General of Police, and the said appeal having been dismissed,
he challenged the order of dismissal as well as the appellate order in an
application under Article 226 of the Constitution in the High Court. A E
Division Bench, however, dismissed the application. '
In the appeal by special leave to this Court, it was contended on
behalf of the appellant that:
(l) the appellant having been appointed as Sub-Inspector of Police by F
the Inspector General of Police, the order of his dismissal by the
Superintendent of Police was illegal being in contravention of Article
311(1) of the Constitution, and (2) the provisions of clause (b) of the
second proviso to Article 311(2) of the Constitution were not attracted
to the facts of the case and consequently the order of dismissal was
illegal having been passed without compliancP with the requirements of G
Article 311(2).
Dismissing the Appeal, the Court,
HELD: I. The Superintendent of Police and Principal, Police
Training College, Assam- are authorities having coordinate jurisdiction H
._..;'
323
SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
to appoint Sub-Inspectors under Rule ll(X)_and Schedule Column II of
A the Assam Police Manual, Part III. '[329E; 328H]
In the instant case, the appellant having been appointed by the
Principal Police Training College Darrang, Assam, and having been
dismissed by the Superintendent of Police, Darrang, District Tejpur
B who was a coordinate authority, the submission that the order of dis-
missal was illegal as having been passed by an authority subordinate to
that by which he was appointed has no substance. [329E-F] ·
2. While construing the words "it is not reasonably practicable to
hold such enquiry" used in clause (b) of the second proviso to Article
311(2) it was held In Union of India v. Tulsi Ram Patel and Others,
C [1985] Supplement 2 SCR 131, that 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 impractica-
bility which Is required. What is requisite is that the holding of the
inquiry is not practicable in the opinion of a reasonable man taking a
D reasonable view of, the prevailing situation. One of the illustrations
justifying clause (b) ofthe second proviso to Article 311(2) being
invoked, is the non availability of the witnesses on account of fear of the
officer concerned. [330G:H; 331A-B, 332A] ~-
In the instant case, it·is apparent from the order of dismissal that
E this was the main ground for invoking the said clause (b). The
Superintendent of Police who passed the order of dismissal was the best
authority on the spot to assess the situation in the circumstances pre'
vailing at the relevant time and this Court does not find any 'good
ground to .-interfere with the view taken by the Superintendent of Police
in this behalf. In such matters the Court will not sit in judgment over
F the relevancy of the reasons given by the disciplinary authority for
invokiiig Clause (b) like a Court of appeal. Even in those ca~es wh_ere
two views are possible, the Court will decline to interfere. [332A-B, C]
CIVIL_ APPELLATE JURISDICTION: Civil Appeal No. 977
of1976. ·
G
From the Judgment and Order dated 8.3.1976 of the Guwahati
High Court in Civil Rule No. 261 of 1973. -· -
D.N. Mukherjee, N.R. Choudhary and Ranjau Mukherjee for
the Appellant.
H
. LA. BORAH v. SUPDT. OF POLICE (OJHA, J.l 325
· Prabir Choudhary for the Respondents.
A.
The Judgment of the Court was delivered by
OJHA, J. This appeal by special leave has been preferred
against the Judgment dated 8th March, 1976 of the Guwahati High
Court in Civil Rule No. 261 of 1973. The appellant who was a Sub- B
. Inspector of Police in Assam was dismissed by the Superintendent of
Police, Darrang district, Tezpur, by Order dated 29th January, 1973.
This order was passed without compliance with the requirements of
Article 311(2) of the Constitution on the ground that it was a case to
which the provisions of clause (b) of the second proviso to Article
311(2) were attracted. The appellant preferred an appeal to the
Inspector-General of Police, Assam (Shillong). The said appeal having c
been dismissed he challenged the order of dismissal as well as the
appellate order under Article 226 of the Constitution in Civil Rule
No. 261 of 1973 referred to above. The various submissions made on
behalf of the appellant did not, however, find favour with the Learned
Judges who heard the civil rule mentioned above resulting in its dis- D
missal by the judgment appealed against.
Two submissions have been made by learned counsel for the
appellant:
(i) The appellant having been appointed as Sub-Inspector of E
Police by the Inspector General of Police, the order of his
dismissal by the Superintendent of Police, Darrang, was
illegal being in contravention of article 311(1) of the
Constitution.
(ii) The provisions of clause (b) of the second proviso to article F
311(2) ofthe Constitution were not attracted to the facts of
the instant case and consequently the order of dismissal was
illegal having been passed without compliance with the re-
quirements of article 311(2).
In order to appreciate these submissions, it would be useful to G
extract article 311 of the Constitution. It reads:
"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 civii service ofthe Union or an all~India ·service or a civil
service of a State or holds a.civi(post under the Union or a State shall H
'
-·
326 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
A be dismissed or removed by an authority subordinate to that by which
he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been informed
of the charges against him and given a reasonable opportunity of being
B he11rd 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 neces-
sary to give such person any opportunity of making representation on
C the penalty proposed:
Provided further that this clause shall not apply-
, (a) where a person is .dismissed or removed in rank on the
ground of conduct which has led to his conviction on a criminal
D 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
E
(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 expe-
dient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question
F 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." ·
Having heard learned· counsel for the parties, we find it difficult
G to agree with any of the submissions referred to above. 'In suppbrt of
his first submission, learned counsel for the appellant placed reliance
on a Memo dated 7th July, 19117 from the office of the Inspector-
General of Police which according to him was the letter of appoint-
ment whereby the appellant was appointed as a Sub-Inspector of
Police. According to learned counsel for the appellant, this being so
H the order of dismissal having been passed by the Superintendent of
; . ,' . . ·.... :... /!
I.A. BORAH v. SUPDT.OF POLICE [OJHA, J.] 327 i'
Police, Darrang, who was admittedly "ari authority subordinate to that
by which the appellant was appointe.d···, was on the face of ii illegal.' ·
A.
With regard to this submission, we are of the opinion that the
said Memo cannot be treated as the letter of appointment of the appel-
lant. It reads-as hereunder: ·
B
"Express:
Office of the Inspector General of Police:
Assam Memo No. F/l/93Nol. 16/51 Shillong, the 7th July,
1967.
From: Shri P.C. Das, I.P.S., c
Deputy Inspector General of Police
(P) Assam
To
Md. Ikramuddin Ahmed Borah, D
Ward No. III, P.O. Mariani,
(Jorhat), Dist. Sibsagar,
Subject: Recruitment of temporary Sub-Inspector of
Police (Unarmed Branch) for 1967
E
You are hereby informed that you are pro-
visionally selected for appointment as temporary
Sub-Inspector of Police (U .B.) subject to final
and satisfactory police verification report.
Please report to the Principal, Police Train- F
ing College, Dergaon on 17th July 1967 positively
for training failing which your name will be struck
off the list of selected c·andidates.
The details relating to books & uniform
required for .training in the college should be
G
obtained from the Principal, Police Training Col-
lege, Dergaon on your joining for the training.
Your provisional appointment letter will be
issued by the Principal, Police Training College,
Dergaon on joining." H
328 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
In pursuance of the aforesaid Memo the Principal Police Train-
A ing College, Dergaon, issued Memo dated 17th July, 1967, the. rele-
.
vant portion whereof reads as under:
"OFFICE OF THE PRINCIPAL: Police Training Col-
lege: Dergaon.
APPOINTMENT LEITER
Memo No. 1071..'.(A) PTC dated, Dergaon, the 17th July
1967 ..
Shri Ikramuddin Ahmed Borah, s/o Late A. Ahmed Borah
c Vil!. Mariani, P.O. Mariani, P.S. Mariani, Dist. Sibsagar is
hereby informed that he has been provisionally appointed
as a Cadet Sub-Inspector of Police in Assam with effect
from 17-7-1967 A.N. He should provide himself with the
books and uniforms.
D
2 to6 ............ ..
7, Principal, Police Training College, Assam may expel or
discharge him any time during the training if his progress or
discipline or behaviour shows that he is not likely to be fit
E for Police service.
Sd/-
Principal
Police Training College,
Assam, Dergaon."
F
Even on a bare perusal of the two Memos mentioned above, it is
apparent that by Memo dated 7th July, 1967 which was issued by the
Deputy Inspector General of Police; the appellant was only informed
that he had been provisionally selected for appointment as temporary
Sub-Inspector of Police (U .B.)and the order of appointment was to be
G issued by the Principal, Police Training College which indeed was
issued by the subsequent Memo dated 17th July, 1967. This memo
seems to have been sent by the Deputy Inspector General of Police as
President of the Selection Board constituted for the purpose according
to the procedure for appointment cit a Sub-Inspector to be found in
Assam Police Manual in Part III. Rule ll(x) at the relevant time as it
H appears from the judgment ar;:iealed against read as hereunder:
I.A. BORAH v. SUPDT. OF POLICE [OJHA, J.I 329
"11.(x) Direct recruitment of Sub-Inspectors: J
A
The final selection will be made by the Deputy
Inspector General of .Police sitting as President of a
Selection Board, which will consist of himself and 2
Superintendents of Police appointed by the Inspector
-General of Police. The order of appointing Proba-
tionary Sub-Inspectors will be issued by the Superin- B
tendents of Police of the Districts from which the
candidates are nominated."
Rule 66 deals with proceedings to be drawn up in cases of major
punishment. The said rule contains a schedule.
Item No. 3 of column I refers to Sub-Inspector of Police. Column c
II indicates that the appointing authorities of a Sub-Inspector of Police
inter alia are Superintendent of Police; S.P./S.S.P./C.I.D.; Comman-
dant of Battalion, Principal, APTC (that is Assam Police Training
College). Deputy Inspector General of Police is st.own as the final
appellate authority. Rule ll(x) and the schedule referred to above are D
the relevant provisions in pursuance whereof the selection was made
of the appellant vide Memo dated 7th July 1967 and the appointment
order was issued by the Principal Training College, Dergaon vide
Memo dated 17th July, 1967. Consequently, Superintendent of Police
and Principal, Police Training College, Assam, are authorities having
coordinate jurisdiction according to column II of the schedule. The E
appellant having been appointed by Principal Police Training College
Dergaon, Assam, and having been dismissed by the Superintendent of
Police, Darrang, who was a coordinate authority, the submission made
by the learned counsel for the appellant that the order of dismissal was
illegal having been passed by an authority sub-ordinate to that by
which he was appointed, obviously therefore has no substance. F
Coming to the second submission, we find it · :essary to refer to
the order of dismissal in extenso. It reads:
"D.O. No. 320 dated 29.1.73.
G
Whereas it has been made to appear before me that
pro by. Sub-Inspector of Police Ikramuddin Ahmed Borah
was appointed as proby. Sub-Inspector of Police on 17 .7 .67
against a temporary vacancy;
..
AND H
330 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
Whereas said Ikramuddin Ahmed Borah since his join-
A ing the department, -his service in all branches of Police
work where he had been tried leaves much to be desired
and that consistent efforts by his senior officers fo~ improv-
ing his work has proved abortive and further that despite
the above drawbacks the said S.I. 's conduct and integrity
B has recently been found to be doubtful and the said S.I. has
been recently misusing his official position to the detriment
of general social well-being and to his personal gain.
AND
Whereas I am satisfied that it is not reasonably prac-
c ticable to hold any inquiry as contemplated under Clause
(2) of Article 311 of the Constitution of India because of
non-availability of witnesses who would not testify against
the said S.I. of Police out of various considerations such as
fear and because of the likelihood of causing of da_mage to
D the Police image and administration before I the general
public-ii\ the event of holding of such an enquiry;
Now,_
therefore, in exercise of powers under proviso (b) clause
(Z) of.Article 311 of the Constitution of India, I, Shri P.N.
Goswami, Superintendent of Police Darrang District,
Tezpur, hereby order that said Ikramuddin Ahmed Borah
be dismissed from the force with effect from the date of
.iSsue of ti!_is order. Said Ikramuddin Ahmed Borah is accord-
ingly dismissed from the police service.
F
Sd/- P .N. Goswami
(P.N. Goswami)
Superintend~nt of Police,
Darrang, District Tezpur."
6 The scope of clause (b) of the second proviso to Article 311(2}
and of Article 311(3) came up for consideration before a Constitution
Bench of this Court in Union of India and Anr. v. Tulsi Ram Patel and
Others, _[1985] supplementary 2 S.C.R., page Bi. While construing
the clause "it is not reasonably practicable to nold such enquiry" used
in clause (b) aforesaid, it wa~ held:
c_
I.A. BORAH v. SUPDT. OF POLICE [OJHA, J.l 331
"Thus, whether it was practicable to hold the inquiry or not
A
must be judged in the context of whether it was reasonably
practicable to do so. It is not a total or absolute impractica-
bility 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 B
cases in which it would not be reasonably practicable to,hold
the inquiry, but s9me instances by way of illustration may,
however, be.given. It would not be reasonably practicable
to hold an inquiry where the government servant, particu-
larly 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 c
them from doing so ..... .''.
With regard to Article 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 D
rules and he approaches either the High Court under Article 226 or
this Court under Article 32, the Court will interfere on grounds well
established in law for the exercise of judicial review in matters where
administrative discretion is exercised, it was held:
"If the court finds that the reasons are irrelevant, E
then the recording of its satisfaction by the disciplinary
authority would be an abuse of power conferred upon it by
clause (b) and would take the case out of the purview of
that clause and the impugned order of penalty would stand
invalidated. In considering the relevancy of the reasons
given by the disciplinary authority the court will not, how- F
ever, sit in judgment over them like a court of first appeal.
In order to decide whether the reasons are germane to
clause (b), the court must put itself in the place of the
disciplinary authority and consider what in the then pre-
vailing situation a reasonable man acting in a reasonable
way would have done. The matter will have to be judged in G
the light of the then prevailing situation and not as if the
disciplinary authority was deciding the question whetper
the inquiry should be dispensed with or not in the ci:lol imd
detached atmosphere of a court room, rer.ioved in time
from the situation in question. Where two views are possi-
ble, the court will decline to interfere." H
332 SUPREME COURT REPORTS [198S] Supp. 3 ~.C.R.
A One Of .the illustration justifying cla1;1se (b) of the second proviso
to Article 311(2) being invoked, as indicated above, is the non-
availability of the witn~sses on account of fear of the officer con-
cerned. In the instant case as is apparent from the \mpugned order of
dismissal this was the main ground for invoking the said clause (b). On
the material on record, it is not possible for us t<;> make the view that
B there was an abuse of power by the disciplinary authority in invoking
clause (6 ). The Superintendent of Police 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 the Superinten-
dent of Police in this behalf. As pointed 011t in the case of Tulsi Ram
c Patel supra, in such matters, the Court will not sit in judgment over the
relevancy of the reasons given by the disciplinary authority for invok-
ing clause (b) like a Court of first appeal and that even in those cases
where two views are possible, the Court will decline to interfere. In
this view of the· matter, we do not find any substance in the second
submission either.
D
In the result, this appeal fails and dirnissed but in the circums-
tances of the case there would be no order as to costs.
N.V.K. Appell! dismissed,
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