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nmehta1422


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Aggrieved by the common order dated 28.7.2022 passed by the learned Single Judge in allowing the Writ Petitions No.22257 and 22662 of 2021 and quashing the order of termination, the State is in appeal. Brief facts of the case are that when the complainant was found loitering at 12 in the night, the petitioners and others accosted him and questioned. That an altercation took place and as a result of which, the complainant was handcuffed and was taken to the police station. Much thereafter a preliminary enquiry was held. In the interregnum, the petitioners were kept under suspension and thereafter they were terminated. Questioning the termination, the instant writ petitions were filed. The learned Single Judge came to the view that there was no reason to dispense with the enquiry by resorting to proviso (b) to Article 311(2) of the Constitution of India. Hence, the order of termination was set aside. Counsel for the appellants contends that the proviso (b) to Article 311(2) contemplates that if the enquiry is not reasonably practicable to be held, the same can be dispensed with. In support of the same, it is contended that the writ petitioners have threatened the complainant to take back the complaint and secondly that the main witnesses of the police enquiry are police personnel themselves. Therefore, the enquiry was dispensed with. The same was not accepted by the learned Single Judge. We are of the view that the reasons assigned by the learned Single Judge are just and appropriate. The right given to the employee under Article 311 of the Constitution of India cannot be done away with by such reasons. Even though there is a proviso to dispense with the enquiry, there should be adequate and substantial reasons for doing so. Merely stating that there is a threat to take back the complaint or that the witnesses are likely to be influenced is not a ground to dispense with the enquiry especially in view of the fact that the witnesses are said to be police personnel themselves. Therefore, we find that there is absence of subjective satisfaction while dispensing with the enquiry as contemplated under Article 311 of the Constitution of India.
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Text Practice - Time 529 - English

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