It's a laid down law that departmental enquiry is the rule and it cannot be dispensed away with while dismissing an employee. Article 311(2) of the Constitution reads as follows:


311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State- (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 heard 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 necessary to give such person any opportunity of making representation on the penalty imposed:


Provided further that this clause shall not apply-

1. where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
2. 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
3. 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 expedient to hold such inquiry.

Mostly while dismissing an employee without conducting any departmental enquiry, the department usually takes the rescue of Article 311(2)(b) of the Constitution. The Honorable judiciary in India through its various judgments has laid down the extent of applicability of this provision under the Constitution.

The courts have held that it needs to be tested whether the reasons recorded in the impugned order for imposition of Article 311(2)(b) are justifiable or the they have been invoked simply to avoid the disciplinary enquiry and get rid of the employee in a convenient manner. If the provision under Article 311(2)(b) is imposed mechanically it most likely can be construed as a strong bias of the department against the respondent and thus violative of the fundamental right of equality.

The Hon'ble Delhi High Court in W.P.(Civil) No. 11276 of 2024 in the matter of The Commissioner of Police and Ors. v OM Prakash and Anr. directed the Commissioner of Police to look into the matters where Article 311(2)(b) has been invoked by the police authorities and police personnel have been removed from service. Rejection of appeal of the employee by the Appellate Authority against the order of the Disciplinary Authority only on presumptions and assumptions is bad in law.

Once the order of the Disciplinary Authority is proved to be passed on assumptions and conjectures, this is enough to vitiate the order as being bad in law. The use of expressions like as there is a reasonable belief implying that the employee can try to influence the enquiry through illegal means itself shows that the reasoning is based on suspicion and surmises. Without any clear or material evidence to prove the same, the reasoning to dispense away with the departmental enquiry is bad in law.

The Hon'ble Delhi High Court in W.P. (Civil) No. 2407 of 2024 titled Govt. of Delhi and Ors. v. Dushyant Kumar held and I quote:

14. In the light of the aforesaid, we have no hesitation in concurring with the Tribunal that the petitioners' decision to dispense with the enquiry was wholly unsustainable. The petitioners appear to have proceeded on an erroneous presumption that merely because a criminal case has been registered against the respondent, he was to be treated as guilty of the misconduct.

No doubt, the respondent is a police officer, whose misconduct can never be condoned, but this would not imply that the principles of natural justice should be given a complete go by. As noted hereinabove, the petitioners have not given any valid reason for dispensing with the enquiry except for repeatedly stating that the respondent is guilty of serious misconduct. This course of action, in our view, is completely impermissible.

Deposing before the appropriate authority and to defend his case before being dismissed from service is the constitutional right of every employee. The employee as per rule must be given an opportunity to put forward his defense in a regular departmental enquiry until and unless the same is not reasonably practicable.

The author is a practicing advocate at the Central Administrative Tribunal (CAT), Delhi High Court and Supreme Court of India
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