Manipur High Court: In an intra-Court appeal against the decision of Single Judge wherein it was held that the satisfaction of the Governor as envisaged in Article Second proviso, Clause (c) of the for dismissing a person by invoking the provision is the personal satisfaction of the Governor, a full bench of Siddharth Mridul, CJ., Ahanthem Bimol Singh, and Golmei Gaiphulshillu Kabui*, JJ., held that the satisfaction mentioned in Article 311(2)(c) is subjective but that satisfaction is to be arrived at by perusing relevant evidence and documents, which were not presented in this case. The Court held that the respondent had been dismissed in a malafide manner at the end of the disciplinary inquiry by abruptly invoking Article 311(2)(c).
Background
The respondent is a Sub-Inspector Police. The Police Department submitted a proposal to the Home Department for the dismissal of the respondent under Article of the for his alleged involvement in subversive activities and his association with the banned unlawful terrorist organization People’s Liberation Army/Revolutionary People’s Front (‘PLA/RPF’). The proposal enclosed a Secret Report detailing the respondent’s arrest and connection and involvement with PLA/RPF.
The proposal and secret report were verified and vetted by the Home Department and then sent to the Committee of Advisors (‘the Committee’) constituted for examination for invoking Article 311(2)(c) for dismissing the service of an employee by dispensing the departmental inquiry. The Committee recommended the dismissal of the respondent from service opining that it was not expedient to hold Departmental Enquiry in the interest of the security of the State and the prejudicial activities of the respondent were affecting the sovereignty, integrity, and security of the State. The Governor approved the recommendation after being satisfied with the recommendation of the Committee and the proposal of the Chief Minister. Thereafter, Under Secretary (Home) issued the order dated 13-07-2017 dismissing (‘dismissal order’) the respondent with immediate effect. Aggrieved by the dismissal, the respondent in Laishram Sushil Singh v. State of Manipur challenged his dismissal. Vide the impugned judgment, the Single Judge allowed the writ petition by setting aside the dismissal order stating that no material had been placed by the State to satisfy the Court that the dismissal order was passed in security interest. Hence, the Court directed the State to reinstate the respondent and to treat the period from dismissal to reinstatement as period rendered in service for the purpose of pensionary benefit.
Issues and Analysis
Whether the satisfaction to be arrived at by the Governor is subjective satisfaction?
The Court reiterated that under Article 311(2)(c), the satisfaction of the Governor is subjective satisfaction, but this subjective satisfaction is to be arrived at based on the objective satisfaction of the disciplinary authority, which is based on reliable materials i.e. dossiers, reports, records, etc. On perusal of the documents of the Committee and disciplinary authority, the Court opined that the Committee failed to mention the exact involvement of the respondent in prejudicial activities, his unlawful activities with PLA/RPF with an ulterior motive to wage war against the Government, and his indulgence in criminal activities. The Court also opined that the Committee failed to establish that the respondent has closely worked with the Commander of Auxiliary Battalion of PLA/RPF and was providing secret and vital information to him.
After perusal of the confidential file and secret report , the Court found that in the notes, the Governor wrote “may be approved” without expressing his satisfaction regarding the recommendation and the materials annexed therein. The Court reiterated that the Governor in such processes is the final authority, but by writing “may be approved” it denoted that the same was not the final order/opinion.
After perusal of the whole sequence of the developments, the Court said that the view of the disciplinary authority swung from one extreme to another extreme. The Court opined that the reasons/grounds for resorting to such an extraordinary step of dismissal, by practically forgoing the laid down procedure, are solely based on the internally generated report i.e. FIR report and the statements extracted from the respondent, during the police custody with no apparent further efforts made by the police to corroborate the said report and statement.
Accordingly, the Court opined that there was no reliable material before the Committee to arrive at their satisfaction that the respondent has willingly indulged in the activities of an unlawful organization, prejudicial to the State’s security. The Court held that the respondent’s dismissal under Article 311(2)(c) could not be approved.
The Court also pointed out that the Governor cannot just give assent by merely writing “may be approved” without expressing subjective satisfaction as to the recommendation of the Committee as it is against the dicta of the Supreme Court. The Court stated that since Article 311(2)(c) is a special provision, extra care is to be taken in taking this extreme step under it. The Court further stated that this is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and order of penalty following thereupon would both be void and unconstitutional. The article itself says that no person who is a member of the Civil Service of Union of India, All India service, or Civil Service of a State shall be dismissed or removed without giving a reasonable opportunity of being heard of the charges.
The Court held that the disciplinary authority failed to put up reliable materials before the Governor to arrive at his subjective satisfaction for giving his approval and it also failed to mention the departmental inquiry which ensued more than one year after the registration of FIR and the respondent had already submitted his written arguments therein.
Whether the subjective satisfaction arrived at by the Governor can be subject to judicial review?
The Court noted that ordinarily the satisfaction reached by the President or the Governor, would not be a matter for judicial review. However, if it is alleged that the said satisfaction had been reached mala fide, or was based on wholly extraneous or irrelevant grounds, the matter will become subject to judicial review because, in such a case, there would be no satisfaction, in law at all. The Court also stated that the question of whether the Court may compel the Government to disclose the materials to examine such an allegation would depend upon the nature of the documents in question i.e. whether they fall within the class of privileged documents or whether in respect of them privilege has been properly claimed or not.
The Court noted that in compliance with the Supreme Court’s order in the cases of Union of India v. Tulsiram Patel, regarding the scope of second proviso to Article 311(2) and Satyavir Singh v. Union of India, , the Government of India issued an office memorandum dated 11-11-1985(‘OM’). The Court stated that as per the OM, normally a person cannot be dismissed or removed from service or reduced in rank except by holding a departmental inquiry and giving him a reasonable opportunity of being heard, however, in three exceptional situations, holding of inquiry can be dispensed with.
The Court held that the report of the disciplinary authority, the decision of the Committee, and the approval given by the Chief Minister and the Governor are not in conformity with the guidelines set out in the OM and the Supreme Court’s ruling laying that-for contemplating recourse to decide that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2) or corresponding provisions in the service rule. The Court further held that even if the Governor does not use the word “satisfied”, his satisfaction has been reached malafide based on wholly extraneous or irrelevant grounds. Hence, it is open to judicial review.
The Court perused the timeline of the departmental inquiry and noted that evidently, the respondent had actively participated in the departmental inquiry and fully cooperated with the disciplinary authorities. The Court also noted that he had never committed any illegal acts as enumerated in the OM which would prevent the disciplinary authorities from proceeding with the departmental inquiry. Thus, before even dispensing with the inquiry, the authorities invoked Article 311(2)(b)(c) illegally and arbitrarily.
Upon analysing the facts in depth, the Court held that the disciplinary authority was unable to show that there was no expediency to conduct a departmental inquiry against the respondent.
The Court stated that the Governor could not have arrived at the subjective satisfaction that it was not expedient to hold an inquiry based on the recommendation of the Committee, which was based purely on allegations. Thus, the decision to dispense with departmental inquiry and the satisfaction of the Governor is open to judicial review, as the satisfaction was vitiated by malafide and is based wholly on extraneous and irrelevant grounds.
The Court reiterated the principles to be followed in the exercise of power under Article 311(2)(c), which are as follows:
The reason so recorded for satisfaction must be such that the disciplinary authority can arrive at sufficient satisfaction. It cannot be arbitrary and must be based on objectivity.
The Court is required to consider the reasonable view of a reasonable man
During a judicial review, the order of disciplinary authority must be judged by a Court by placing itself in the disciplinary authority’s armchair.
The disciplinary authority should record in writing its reason for the satisfaction that it was not reasonably practical to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and order or penalty following thereupon would both be void and unconstitutional.
The power to dismiss an employee by dispensing with an inquiry is not to be exercised to circumvent the prescribed rules.
An inquiry under Article of the is a rule and dispensing with the inquiry is an exception.
On perusal of the confidential file, the Court found that there was no cogent and reliable material to support the decision taken by the authorities and no observation of the Governor regarding the satisfaction to invoke Article 311(2)(c) against the respondent. On further perusal of the entire record, the Court noted that there was nothing except the correspondence made between the officials regarding the criminal case against the respondent.
In the absence of evidence indicating that there are sufficient and cogent reasons for dispensing with the inquiry and of clear indication of the satisfaction, the Court held that the invoking of Article 311(2)(c) by the State was malafide. Accordingly, the Court held that the act of the Governor in approving the invocation of Article 311(2)(c) was malafide and liable to be interfered with.
Conclusion
In view of the aforesaid, the Court held that the present appeal had no merit and the grounds taken by the appellant were not satisfactory given the admitted position of facts and law. Despite agreeing with the conclusion drawn by the Single Judge in setting aside the dismissal order, the Court did not agree with the grounds taken therein. Accordingly, the Court dismissed the appeal.
[State of Manipur v. Laishram Sushil Singh, Writ Appeal No. 18 of 2022, decided on: 18-11-2024]
Advocates who appeared in this case :
For the appellant: Mr. H. Debendra, Deputy Advocate General, A. Bheiga
For the respondent: Mr. K. Roshan, Mrs. Donnapriya Asem
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W.P.(C) No. 591 of 2017
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