1. The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India, calling in question the legality and validity of the order of dismissal dated 03/07/2019 passed by Respondent No.3 under Rule 19(2) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 read with proviso to Article 311(2) of the Constitution of India. The petitioner has also assailed the order dated 17/12/2019 passed by Respondent No.2 rejecting his statutory appeal and the order dated 09/05/2022 passed by Respondent No.1 rejecting his review petition. The petitioner seeks appropriate relief on the grounds of violation of principles of natural justice, lack of jurisdiction, and hostile discrimination in the matter of imposition of punishment.

2. It is the case of the petitioner that the petitioner was initially appointed on the post of Jail Warder by order dated 09/03/2013 issued by the Superintendent, Central Jail, Ujjain in the regular pay scale of Rs. 5200-20200 with Grade Pay of Rs. 1900/- along with admissible allowances. Thereafter, he was confirmed on the said post with effect from 23/03/2015. Thus, the appointing authority of the petitioner is the Jail Superintendent, Central Jail, Ujjain, who is superior in rank to the Superintendent, District Jail, Neemuch.

3. Thereafter, on 22/06/2019, as many as four prisoners absconded from Barrack No.11 of District Jail, Neemuch, on account of which the petitioner was placed under suspension vide order dated 23/06/2019 issued by Respondent No.3. That the Superintendent of Police, District Neemuch, submitted a report dated 01/07/2019 (Annexure P/5), holding the petitioner and three other Jail Warders namely Shri Bijendra Singh Dhakad, Shri Ishwar Chand Rampuri and Shri Balmukund Labana guilty of the said incident. However, while recording such findings, no enquiry whatsoever was conducted with the participation of the petitioner. The petitioner was not afforded any opportunity of hearing, statements of witnesses were recorded behind his back and no opportunity of cross-examination was granted; nor was any opportunity provided to lead evidence in defence. Even the relevant documents were not supplied to the petitioner.

4. In the meantime, an FIR bearing Crime No. 364/2019 was registered against the petitioner and other Jail Warders on 23/06/2019 at Police Station Neemuch Cantt. for offences under Sections 222, 224, 225 and 120-B of IPC, 1860. The petitioner was arrested on 29/06/2019 and remained in judicial custody at Sub- Jail, Jawad, District Neemuch up to 04/07/2019, and thereafter at Central Jail, Bhopal till 24/09/2019. Based solely on the aforesaid ex-parte preliminary enquiry, wherein the principles of natural justice and fair play were grossly violated, Respondent No.3 passed the impugned order dated 03/07/2019 (Annexure P/7), dismissing the petitioner from service by dispensing with the regular departmental enquiry on the ground that there was likelihood of the petitioner being exonerated and that holding of enquiry would cause serious law and order problems, making it difficult for the department to prove the charges.

5. Being aggrieved, the petitioner preferred a statutory appeal on 01/11/2019 before Respondent No.2 within 45 days from his release from judicial custody on 24/09/2019, as the impugned order could be communicated to him only thereafter. However, without considering the actual date of communication and the period of judicial custody, Respondent No.2 dismissed the appeal vide order dated 17/12/2019 (Annexure P/9) solely on the ground of delay. The petitioner thereafter preferred a review petition before Respondent No.1, which too was rejected vide order dated 09/05/2022 (Annexure P/10). It is pertinent to note that Respondent No.1, vide orders dated 06/01/2021 and 18/05/2022, directed reinstatement of three other Jail Warders, namely Shri Jaldar Kharte, Head Jail Warder; Shri Karan Singh Mourya, Jail Warder and Shri Balmukund Labana, Jail Warder, who were also implicated in the very same incident, thereby subjecting the petitioner to hostile discrimination.

6. Learned counsel for the petitioner submitted that the impugned order of dismissal is without jurisdiction, as the appointing authority of the petitioner is the Jail Superintendent, Central Jail, Ujjain, whereas Respondent No.3 is subordinate in rank. In terms of Rule 2(a) and Rule 12(3)(a) of the M.P.C.S. (CCA) Rules, 1966 and Article 311(1) of the Constitution of India, a major penalty of dismissal cannot be imposed by an authority subordinate to the appointing authority. Hence, the dismissal order is coram non judice and void ab initio. It is further contended that the reasons assigned for dispensing with the enquiry do not satisfy the mandatory conditions of Article 311(2)(b) and Rule 19(ii) of the M.P.C.S. (CCA) Rules, 1966. Reliance has been placed upon the judgments of the Hon'ble Supreme Court in Union of India v. Tulsiram Patel, (1985) 3 SCC 398; Jaswant Singh v. State of Punjab & others, (1991) 1 SCC 362; Risal Singh v. State of Haryana, (2014) 13 SCC 244; and Union of India v. Ram Bahadur Yadav, (2022) 1 SCC 389, as well as judgments of this Court.

7. Per contra, learned counsel for the respondents supported the impugned orders and submitted that the dismissal was justified considering the gravity of misconduct leading to absconding of prisoners. It was argued that a preliminary enquiry was conducted and that the case of the petitioner stood on a different footing from the co-delinquents.

8. Heard both parties at length and examined the entire record available.

9. This Court is of the considered opinion that the dismissal order dated 03/07/2019, passed without holding any regular departmental enquiry, is in direct violation of the constitutional safeguards enshrined under Article 311(2) of the Constitution of India, which mandates affording reasonable opportunity of hearing before imposition of a major penalty.

10. The Hon'ble Supreme Court in Union of India v. Tulsiram Patel (supra) has categorically held that the condition precedent for dispensing with an enquiry is the satisfaction that it is not reasonably practicable to hold such enquiry and not merely inconvenient to do so. The disciplinary authority must record cogent reasons in writing prior to imposition of penalty. The relevant and operative observations of the Hon'ble Supreme Court read as under:-

          "130. 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's 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's 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 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 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 must 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. The case of Arjun Chaubey v. Union of India [(1984) 2 SCC 578 : 1984 SCC (L&S) 290 : (1984) 3 SCR 302] is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter."

11. In the present case, the impugned order does not disclose any objective or exceptional circumstances justifying invocation of Article 311(2)(b). Mere seriousness of allegations or apprehension of difficulty in proving charges cannot form the basis for dispensing with enquiry. The reliance on a preliminary enquiry cannot, by any stretch of imagination, substitute a full-fledged departmental enquiry. As held in Jaswant Singh v. State of Punjab (supra) and Risal Singh v. State of Haryana (supra), failure to record proper reasons for dispensing with enquiry vitiates the entire action.

12. This Court further finds that the appellate authority has failed to apply its independent judicial mind and has mechanically upheld the dismissal without examining whether the mandatory constitutional requirements were satisfied. The action of the respondents also suffers from hostile discrimination, as similarly situated co-delinquents have been reinstated, while the petitioner alone has been subjected to the extreme penalty of dismissal.

13. In view of the aforesaid elaborate discussion, this Court is of the firm view that the impugned orders dated 03/07/2019, 17/12/2019 and 09/05/2022 are illegal, arbitrary, unconstitutional and unsustainable in law.

14. Consequently, the impugned orders are hereby quashed. The petitioner is entitled to reinstatement in service. However, liberty is reserved to the competent authority to initiate departmental enquiry afresh strictly in accordance with law.

15. So far as the issue relating to back wages and the treatment of the period from the date of termination till the date of reinstatement is concerned, this Court is of the considered view that the same requires examination by the competent authority. Accordingly, the matter relating to grant of back wages and regulation of the intervening period between termination and reinstatement is remitted back to the competent authority, who shall decide the same strictly in accordance with law, after affording due opportunity of hearing to the petitioner and keeping in view the applicable service rules as well as the law laid down by the Hon'ble Supreme Court on the subject.

16. Accordingly, the writ petition is allowed as per the directions given hereinabove.

17. Pending applications shall be disposed off accordingly.