may be dismissed or removed from service or reduced in rank without an inquiry

12. Article 311 also provides that under certain circumstances, a government servant may be dismissed or removed from service or reduced in rank without an inquiry. These are contained in the second proviso to Article 311 (2). The circumstances under which the protection under Article 311 Clause 2 does not apply are as under: (a) Where the penalty is being imposed on the ground of conduct which has led to his conviction on a criminal charge; or. 13 (b) Where the disciplinary authority is satisfied, for reasons to be recorded, that it is not reasonably practicable to hold an inquiry in the case; or (c) Where the President is satisfied that in the interest of the security of the country it is not expedient to hold the inquiry. 13. It is also relevant to note that the special circumstance when penalty may be imposed on a Government Servant without Inquiry have been reproduced in Rule 19 of the CCS (CCA) Rules 1965. 14. There may be circumstances wherein a Government servant may be proceeded against in a criminal court. The criminal case might have been filed by the employer or the employee might have been tried for an offence he has committed in his private life. The provision mentioned above, grants power to the disciplinary authority to impose penalty without conducting inquiry if the Government servant has been convicted in a criminal case. In this connection, it is relevant to note that the standard of proof required in a criminal case is proof beyond reasonable doubt whereas in the departmental proceedings, the standard of proof is preponderance of probability. Thus if an employee has been held guilty in a criminal case, it would be much more easier to establish the charge in a departmental proceedings. Conducting a departmental inquiry after the employee has been held guilty in a criminal case would, therefore, be an exercise in futility. Hence the power granted by the Second Proviso to Article 311 may be availed and appropriate penalty may be imposed on the employee. It must, however, be noted that this provision only grants a power to the disciplinary authority to impose the penalty without inquiry when the employee has been convicted in a criminal case. It is not mandatory for the disciplinary authority to dismiss the employee whenever he has been convicted in a criminal case. The authority concerned will have to go thorough the judgment and take a decision depending upon the circumstances of the case. While taking recourse to this provision, the disciplinary authority is under an obligation to issue a show cause notice to the Government Servant as required under the proviso to Rule 19 of the CCA Rules. Besides, the quantum of penalty needs to be decided with due regard to the mandate of the Hon’ble Supreme Court that the right to impose penalty carries with it the duty to act justly. In this connection it is worthy to bear in mind the observation of the Hon’ble Supreme Court in its legendary judgment in the case of Shankar Das Vs. Union of India [AIR1985SC772, 1985(1)SCALE391, (1985)2SCC358, [1985]3SCR163, 1985(2)SLJ454(SC)] 6. The learned Magistrate First Class, Delhi, Shri Amba Prakash was gifted with more than ordinary understanding of law. Indeed he set an example worthy of emulation. Out of the total sum of Rs. 1,607.99 which was entrusted to the appellant as a Cash clerk, he deposited Rs. 1,107.99 only in the Central Cash Section of the Delhi Milk Scheme. Undoubtedly, he was guilty of criminal breach of trust and the learned Magistrate had no option but to convict him for that offence. But, it is to be admired that as long back as in 1963, when Section 235 of the CrPC was not on the Statute book and later refinements in the norms of sentencing were not even in embryo, the learned 14 Magistrate gave close and anxious attention to the sentence which, in the circumstances of the case, could be passed on the appellant. He says in his judgment The appellant was a victim of adverse circumstances; his son died in February 1962, which was followed by another misfortune; his wife fell down from an upper storey and was seriously injured: it was then the turn of his daughter who fell seriously ill and that illness lasted for eight months. The learned Magistrate concluded his judgment thus : Misfortune dodged the accused for about a year... and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958. 7. It is to be learned that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service on the ground of conduct which has led to his conviction on a criminal charge". But, that power, like every other power, has to be exercised fairly, justly and reasonably. Surely the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a non-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since Clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant or the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical. 15. Another occasion when the disciplinary authority may impose penalty on the employee without conducting any inquiry is when, the disciplinary authority, is satisfied, for reasons to be recorded, that it is not reasonably practicable to hold an inquiry. There are two conditions for invoking this provision viz. firstly, the disciplinary authority must be satisfied that it is not reasonably practicable to hold inquiry in a particular case and secondly, the authority must record the reasons for his decision. Although the Constitution does not require the communication of the reasons in the penalty order, it has been recommended in the judgments of the Supreme Court that it is desirable to communicate the reasons in the penalty order. This will obviate the prospects of the penalised employee contending that the reasons were fabricated after the issue of penalty order. It has been held in a number of decisions of the Hon’ble Supreme Court that orders imposing penalty under this clause will be invalid unless the reasons for dispensing with inquiry have been recorded. 15 16. In this connection, the following judgments of the Hon’ble Supreme Court are relevant: (a) Reena Rani Vs. State of Haryana and Ors. 2012(3)SCALE519 (b) In Jaswant Singh v. State of Punjab [(1991) 1 SCC 362] the two-Judge Bench referred to the ratio of Union of India v. Tulsiram Patel [(1985) 3 SCC 398] and observed: The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. 17. This provision can be of help during large scale violence, threat to the disciplinary authority or inquiry authority or the state witnesses, etc. Invoking this provision for mundane purposes such as avoiding delay, etc. may not be in order. Although the penalty order issued without inquiry may cause harm to the employee, the courts have held that the clause has been provided for the sake of a public good. In order to mitigate the harm done to the employee, the Hon’ble Supreme Court in the case of Union of India Vs Tulsiram Patel [AIR 1985 SC, (1985) 3 SCC 398 ] has ruled that in all such cases departmental appeal must be disposed of after giving him an opportunity of defence. 18. There is considerable divergence of opinion on the subject regarding the applicability of the above provision in cases of inability of the disciplinary authority to serve charge sheet because the whereabouts of the delinquent are not known. It is felt that the provision being contrary to the principles of Natural Justice, it would be appropriate to resort to them sparingly. In cases of prolonged unauthorized absence of the delinquent, it would be appropriate to publish the charge sheet in the local news paper and/or the web site of the organization, paste it in the door of the residence of the delinquent and the notice board of the organization, send through registered post and have proof of all these things before proceeding ex-parte against the delinquent. 19. Thirdly, an employee may be dismissed or removed from service or reduced in rank without inquiry whenever the President is of the opinion that in the interest of the security of the country it is not expedient to hold an Inquiry. In such cases, the decision to dispense with the inquiry is taken at the level of President and that too only on the ground of the security of the country. This provision may be useful in cases of espionage charges, etc. Here, the word President has been used in constitutional sense. The decision does not require personal approval of the President. It would be sufficient if the decision is taken by the Minister in charge. 16 20. The nature of the extra ordinary power granted by the provisions under the second proviso to Article 311(2) has been explained by the Hon’ble Supreme Court in the following terms in Union of India (UOI) and Anr. Vs. M.M. Sharma [JT2011 (4)SC22, (2011)11SCC293] 24. The power to be exercised under Clauses (a), (b) and (c) being special and extraordinary powers conferred by the Constitution, there was no obligation on the part of the disciplinary authority to communicate the reasons for imposing the penalty of dismissal and not any other penalty. For taking action in due discharge of its responsibility for exercising powers under Clause (a) or (b) or (c) it is nowhere provided that the disciplinary authority must provide the reasons indicating application of mind for awarding punishment of dismissal. While no reason for arriving at the satisfaction of the President or the Governor, as the case may be, to dispense with the enquiry in the interest of the security of the State is required to be disclosed in the order, we cannot hold that, in such a situation, the impugned order passed against the Respondent should mandatorily disclose the reasons for taking action of dismissal of his service and not any other penalty. 21. Although the above mentioned provisions are applicable as such to the employees of the Ministries, departments and attached and subordinate offices only, yet the same are relevant to the employees of Public Sector Undertakings and the autonomous bodies as well. This is so, because similar provisions exist in the service rules relating to a number of PSUs and Autonomous bodies.