Judgment & Order (Cav)

1. Heard Mr. R. Dubey, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned Addl. Government Advocate for the State respondents.

2. This writ petition has been filed by the petitioner, who at the relevant point in time was posted as the Officer-In-Charge of Ghograpar Police Station in the District of Nalbari from the month of May, 2023. While he was discharging his duties as the Officer-In-Charge of Ghograpar Police Station, on 21.06.2023 one girl along with a boy was brought to the police station by the Officials of Nalbari Police Station and on the next day, the said girl was sent to Child Welfare Committee, Nalbari as the girl claimed to be minor. On 26.06.2023, the said girl lodged an FIR before the Officer-In-Charge of Nalbari Police Station alleging sexual molestation by one S.I. of Ghograpar Police Station. After receipt of the FIR, Nalbari P.S. Case No. 287/2023 under Sections 342/354(B)/509 of the Indian Penal Code read with Section 12 & 14(1) of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act) and Section 66E of Information Technology Act was registered. According to the petitioner he was not aware regarding the said FIR being lodged as he was discharging his duty as Officer-In-Charge, Ghograpar Police Station. On 29.06.2023 at around 1:00 PM after discharging his duties the Addl. Superintendent of Police, Nalbari came to the Police Station. The petitioner as well as the other staff member of the Police Station were questioned in respect of the said girl and the boy, who were brought to the Ghograpar Police Station by the Police Officials of Nalbari Police Station on 21.06.2023. The mobile handsets of the police officials, who were on duty were taken by the said Addl. Superintendent of Police and she left at around 03.30 PM. Subsequently the petitioner came to be aware upon being informed by one Nirmal Biswas, Inspector of Police that he was appointed as an In-Charge O/C of the Ghograpar Police Station in place of the petitioner. The petitioner however, was never informed by the respondent authorities. While he was outside the Police Station in civilian clothes having tea at a restaurant at around 7:00 PM he came to be informed that he had been shown as an absconder by the respondent authorities and the said news was flashed in electronic media. According to the petitioner this news came as a shock as the petitioner was on duty at the police station till 5.30 PM. Thereafter, in connection with Nalbari P.S. Case No. 287/2023 the petitioner was arrested on 09.07.2023 and he was forwarded to the Special Judge, Nalbari whereafter he was kept in judicial custody. Subsequently, he was served with an order of suspension dated 29.06.2023 whereby the petitioner was placed under suspension pending a departmental enquiry on the allegations of serious misconduct. According to the petitioner the order of suspension dated 29.06.2023 was communicated to the petitioner by the Jailor of District Jail, Nalbari.

3. Thereafter, the investigating authority had filed charge sheet in Nalbari P.S. Case No. 287/2023 and which was registered as Sessions Special Case No. 203 of 2023. While the petitioner was in judicial custody, one of his relatives went to the Office of the Superintendent of Police, Nalbari, to enquire regarding the subsistence allowance required to be paid to the petitioner during his period of suspension. His relative was informed by the Office of the Superintendent of Police, Nalbari that the petitioner had already been dismissed from service vide order dated 30.06.2023 and a copy thereof was handed over to the said relative.

4. It is the contention of the petitioner that this order dated 30.06.2023 was never communicated to him although the petitioner was in the judicial custody as an under-trial prisoner. It is the relative of the petitioner who had furnished the copy of the said order while the petitioner was in judicial custody.

5. The learned counsel for the petitioner submits that from the order of dismissal, it is evident that no enquiry was conducted by the petitioner and purely on an enquiry report dated 26.06.2023 which was submitted by the DIGP (CWR) Assam, the petitioner was dismissed from service under provisions of Article 311(2)(b) of the Constitution as well as under the provisions of Rule 10(ii) of the Assam Services (Discipline & Appeal) Rules, 1964. It is submitted by the learned counsel for the petitioner that in the order of dismissal a reference has been made to the order passed in WP(C) No. 4212/2020 (Madhab Gogoi vs. State of Assam and 5 Ors.) . It is the submission of the learned counsel for the petitioner that interpretation of the order dated 15.10.2020 passed in WP(C) No. 4212/2020 (Madhab Gogoi vs. State of Assam and 5 Ors.) is incorrect and under wrong interpretation the impugned order of dismissal against the writ petitioner was passed. It is the submission of the learned counsel for the petitioner that both under Article 311(2)(b) of the Constitution of India and Rule 10(ii) of the Assam Services (Discipline & Appeal) Rules, 1964 there has to be a satisfaction arrived at by the Disciplinary Authority for reasons to be recorded in writing that it is not a reasonably practicable to follow the procedure prescribed in law. It is submitted that there are no specific reasons and grounds are discernible from the impugned order of termination and therefore, in the absence of such reasons having been recorded the impugned order of dismissal is arbitrary and unsustainable in law and therefore, liable to be sat aside. In support of his contentions, learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in Ved Mitter Gill v. Union of India & Ors. reported in (2015) 8 SCC 86

6. The respondents have contested the case projected by the petitioner by filing their affidavit in opposition. The learned Addl. Senior Government Advocate disputes the contentions raised on behalf of the petitioner. It is submitted that during the enquiry conducted by the DIGP, several serious lapses were found attributable to the petitioner. It is further submitted that the petitioner absconded during the course of the enquiry sought to be conducted. In view of the grave allegations levelled by the minor girl in the FIR, which were subsequently reiterated in her statement recorded under Section 164 of the Cr.P.C., the authorities have rightly concluded that the petitioner was not fit to be retained in service. Having regard to the peculiar facts and circumstances of the case, and for the reasons duly reflected in the order of dismissal, the competent authority further concluded that this was not a fit case to embark upon a regular departmental enquiry prior to dismissal. Therefore, invoking the provisions of Article 311(2)(b) of the Constitution of India read with Rule 10(ii) of the Assam Services (Discipline and Appeal) Rules, 1964, an order was passed dismissing the petitioner, the competent authority having concluded that it was not reasonably practicable to hold a departmental enquiry. The learned Addl. Senior Government Advocate further submits that the petitioner’s contention that no reasons were recorded is untenable. A bare reading of the impugned order in the present proceedings clearly reveals that detailed reasons have been duly recorded therein, on the basis of which the competent authority arrived at the satisfaction that it was not reasonably practicable to hold a departmental enquiry. Consequently, the petitioner was rightly dismissed from service. The petitioner has also filed a rejoinder affidavit reiterating his contentions before the Court.

7. The learned counsel for the parties have been heard and the pleadings available on record have been carefully perused as also the judgments pressed into service.

8. The short point involved in the present proceeding is the dismissal of the petitioner by the impugned order dated 30.06.2023 by the respondent authorities invoking the powers under Article 311(2)(b) of the Constitution of India read with Rule 10(ii) of the Assam Services (Discipline & Appeal) Rules, 1964.

9. The Article 311(2)(b) of the Constitution of India reads as under:

                   “(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;”

10. Rules 10(ii) of the Assam Services (Discipline & Appeal) Rules, 1964 reads as under:

                   “where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said”

11. Perusal of the same reveals that the authorities are empowered to dismiss personnel without holding enquiry, if they are of the view that the enquiry ought not to be held and for reasons to be recorded in writing.

12. There is no dispute with regard to the fact that the complainant is a minor girl. The law relating to offences against a minor child are well settled and the law prescribes a detailed procedure for her protection, including the safeguards to be followed by law-enforcement authorities in cases where a minor is required to be brought to a police station. Under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, as well as the guidelines issued by the Apex Court, a minor cannot be detained with adults. A minor girl is required to be dealt with only by a woman police officer and that too in the presence of her female guardian or a female social worker, with minimal intrusion, strictly in accordance with law.

13. The girl child is to be produced immediately before the Juvenile Justice Board within 24 hours excluding the travel time. The girl child is to be released to the parents or the guardians or sent to the observation home or place of safety but not in a jail. There is a mandatory requirement to inform the parents or guardians, as well as the Child Welfare Officer, in all such cases. Any medical examination of a minor girl is required to be conducted only by a female medical practitioner with the informed consent of the guardian and in a dignified and child-friendly manner, strictly in accordance with law. There is complete prohibition on handcuffing and use of force.

14. The FIR was lodged by the informant, a minor girl, and the consequential investigation undertaken pursuant thereto, have not been reflected or disclosed in the writ petition. There is no averment in the petition that the mandatory provisions prescribed under the Juvenile Justice (Care and Protection of Children) Act were complied with by the petitioner. In his pleadings there is also no averment the petitioner that the allegations of manhandling or molestation levelled by the minor girl are false or concocted. It is only upon these facts being pleaded in the writ petition, that the Court could have formed a prima facie satisfaction that the dismissal of the petitioner was incorrect.

15. The records of the case were called for and the same have been carefully perused. The statements of the Women Police Constable are available in the report of the Addl. Superintendent of Police who had conducted the initial enquiry. From the report it is seen that the complainant (minor girl) and the boy were kept at the Ghograpar Police Station for the night.

16. There is no specific denial to these essential facts by the petitioner. There is also no averment that the steps which were required by law to be followed by the petitioner and as to whether such steps were undertaken by the petitioner. In WP(C) 4212 of 2020 (Madhab Gogoi v. The State of Assam & 5 Ors.), the Court interfered with a similar order of dismissal passed under Article 311(2)(b) of the Constitution of India and Rule 10(ii) of the Assam Services (Discipline & Appeal) Rules, 1964. The interference was on the ground that the order did not record any reasons demonstrating the satisfaction of the competent authority that it was not reasonably practicable to hold a departmental enquiry.

17. In the present proceedings the impugned order does contain the reasons as to why it was not considered practicable to hold the reasons. Rule 10(ii) of the Assam Services (Discipline & Appeal) Rules, 1964 specifies that disciplinary authority must be satisfied for reasons to be recorded in writing where it is not reasonably practicable to follow the procedure prescribed. Article 311(2)(b) also lays down that the authorities must record in writing as to why it is not reasonably practicable to hold the enquiry.

18. The particular instances where enquiry cannot be held or are not practicable to be held are not specified under Article 311(2)(b) of the Constitution of India or under Rule 10(ii) of the Assam Services (Discipline & Appeal) Rules, 1964. The only safeguard that is specified that the authorities must record reasons in writing expressing their satisfaction that it is not reasonably practicable to hold the enquiry.

19. The petitioner has urged before this Court that this order was passed so that in the event of the trial commencing in Nalbari P.S. Case No.287/2023 and if disciplinary proceedings are initiated against the writ petitioner simultaneously then there could be a possibility of the writ petitioner approaching this Court praying for a direction to stay the departmental proceedings till the conclusion of the trial. While such a possibility may be available to the petitioner, however, in the present proceedings the only question urged before this Court is whether in the impugned order reasons were recorded in the writing expressing the satisfaction that it is not practicable to hold the enquiry. Upon due consideration of the facts urged as also the relevant provisions of the statue, it is patently clear that, this is not a case where no reasons at all were recorded to the effect that it was not practicable to hold an enquiry.

20. The respondent authorities have recorded certain reasons and in the facts of the case and considering the averments made in the writ petition this Court is not inclined to interfere with the impugned order of dismissal. While this Court is competent to examine the justiciability of the reasons recorded in the impugned order dated 30.06.2024 however, not in the absence of the foundational facts as have been discussed above regarding the steps taken by the petitioner to safeguard the rights and privileges of the minor child under JJB Act as well as the guidelines issued by the Court from time to time by the petitioner who was the Officer-in-Charge of the Ghograpar Police Station and was duty bound in law to ensure that these guidelines had been followed in the strictest sense. However, no such specific averments are found in the writ petition or in the affidavit in rejoinder. Under such circumstances this Court does not consider it a fit case to exercise jurisdiction to interfere with the impugned order of dismissal. Accordingly, this writ petition stands dismissed.

21. No order as to cost.

22. The records received are returned back to the learned Addl. Senior Government Advocate.