R.S.A. No.1107 of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1107 of 2000 Date of Decision:21.07.2010 The State of Punjab and others .....Appellants Vs. Sarabjit Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. P.C. Goyal, Additional Advocate General, Punjab for the appellant. Mr. Amit Chopra, Advocate for the respondent. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 22.9.1999 passed by the Court of learned Additional District Judge, Jalandhar, whereby he dismissed the appeal filed by the State of Punjab and others against the judgment/ decree dated 26.4.1995 rendered by the Court of learned Sub Judge II Class, Jalandhar vide which she decreed the suit of the plaintiff Sarabjit Singh for declaration to the effect that the impugned order dated 8.2.1991 passed by defendant No.2 by virtue of which the plaintiff was dismissed from service is null and void and he is entitled to all the benefits and still continues to be service. The facts are these: The plaintiff was appointed in Punjab Police Force as Constable. On 22.1.1991, he submitted an application to the Superintendent of Police, Jalandhar through registered post seeking leave R.S.A. No.1107 of 2000 -2- on the ground that the extremists have given him threats that if he does not quit the department, such threats will continue from their side. The defendants ignored this application. He was dismissed from service by the Senior Superintendent of Police, Jalandhar vide his order dated 8.2.1991 by invoking Article 311(2)(b) of the Constitution of India without holding any departmental inquiry against him. He preferred an appeal there against to the Deputy Inspector General of Police, which could not be disposed of. The plaintiff impugned the order dated 8.2.1991 on the grounds that no charge-sheet or show cause notice was ever issued to him, nor regular departmental inquiry was conducted and that the dismissal order has been passed under Article 311(2) ibid without there being any ground therefor. In the joint written statement filed by the defendants, it has been inter-alia pleaded that the plaintiff had mixed up with the terrorists, smugglers, anti- social, anti-national elements and remained absent from duty and thus, his services were rightly terminated vide order dated 8.2.1991 on the basis of the information received from the Senior Superintendent of Police, Gurdaspur as also from the Intelligence Department that the terrorism being at its peak at the said time, leave could not be granted to the plaintiff as his services were necessary. In the circumstances, it was not possible to conduct inquiry and thus the order impugned has been passed in accordance with Punjab Police Rule 16.38, whereby the departmental inquiry was dispensed with. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is entitled to declaration as prayed for? OPP R.S.A. No.1107 of 2000 -3- 2. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 3. Whether notice under Section 80 C.P.C has not been served upon the defendant by the plaintiff? OPD 4. Relief. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court decreed the suit in the terms noticed at the outset. Feeling aggrieved therewith, the State of Punjab and others went up in appeal, which was dismissed by the Court of learned Additional District Judge, Jalandhar. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, the State of Punjab and others have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The substantial question of law which arises for determination in this case is “Whether the Senior Superintendent of Police was justified in passing the impugned order without holding an inquiry in view of the facts and circumstances of the case.” Mr. P.C. Goyal, learned Additional Advocate General, Punjab on behalf of the appellant eloquently urged that in the year 1991, when the terrorism was at its peak, the plaintiff- respondent instead of fighting thereagainst, got mixed up with the terrorists and absented from duty and his whereabouts were unknown to the punishing authority. He had absented from duty on 17.11.1990 and it was not expected of him to seek leave without pay from the Police Department at the crucial time, when his services were much needed for the said purpose. In these premises, the R.S.A. No.1107 of 2000 -4- authorities were left with no alternative except to dismiss him from service by calling in aid the provisions of Article 311(2)(b) of the Constitution of India as it was not reasonably practicable to hold departmental inquiry against him. To add further to it, his associates being under his influence were unlikely to depose against him. In response, Mr. Amit Chopra, Advocate for the respondent pressed into service that the defendants- appellants have not adduced even an iota of evidence in proof of the fact that conditions and circumstances did exist to dispense with the inquiry and thus, the findings returned by both the Courts below in no manner can be faulted with. To buttress this stance, he has sought to place abundant reliance upon Jaswant Singh v. State of Punjab and others, AIR 1991 SC 385, and Chief Security Officer and others v. Singasan Rabi Das, AIR 1991 SC 1043. These contentions merit acceptance for the reasons to be recorded hereinafter. The only witness examined by the defendants- appellants is Suresh Arora DW1. He has solemnly affirmed that “Sarabjit Singh plaintiff was dismissed by him on 8.2.1991 from service. The dismissal order is Ex.P2, which was received by Kulwant Singh, the brother of the plaintiff on 20.2.1991. I had received a secret information on 21.1.1991 from S.S.P. Gurdaspur to the effect that Sarabjit Singh (referring to the plaintiff) has joined hands with the extremists. I used to receive such notices as also oral information in respect of Sarabjit Singh. When I was S.S.P., Jalandhar at that time, the plaintiff had got mixed up with the antic-social elements, terrorists etc. and for that reason, he absented from duty on 17.11.1990. I did not receive any written or oral information with regards to his leave. I had received a secret DO letter from Intelligence Department, Chandigarh R.S.A. No.1107 of 2000 -5- that the plaintiff is in league with the terrorists. The plaintiff had come to know that S.S.P. Jalandhar has learnt about his links with the terrorists and due to that reason, he moved an application dated 22.1.1991 Ex.P1. In view of the prevalent circumstances and keeping in view the activities of the plaintiff, it was not thought proper to hold inquiry against him and for that reason, his inquiry was dispensed with and that vide the impugned order Ex.P2, he was dismissed from service in view of the provisions of Article 311(2)(b) of the Constitution of India and that the plaintiff did not prefer any appeal either to the DIG or DGP, Chandigarh against my order.” It is in his cross-examination that “I had referred Ex.P1 to SP City without passing any order. It is correct that I did not refer the matter of the plaintiff under Punjab Police Rule 16.38 to the DM as it was a public misconduct. I do not know if any criminal case has been registered against the plaintiff or not at Gurdaspur. It is also correct that no criminal case has been registered against the plaintiff at Jalandhar. It is also correct that the plaintiff was not declared Proclaimed Offender. I cannot tell the names of the extremists with whom the plaintiff had links. The plaintiff was not served with any show cause notice. The plaintiff was not given any opportunity of personal hearing.” It is deducible from this evidence that without there being any evidence, the impugned order has been passed. In Jaswant Singh's case (supra), the Apex Court has ruled that “It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No.3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably R.S.A. No.1107 of 2000 -6- practicable to hold a departmental enquiry.” In the case of Singasan Rabi Das (supra), Hon'ble the Supreme Court has observed as under: “In our view it is not necessary to go into the submissions made by Dr. Anand Prakash because we find that in this case the reason given for dispensing with the enquiry is totally irrelevant and totally insufficient in law. It is common ground that under Rules 44 to 46 of the said Rules normal procedure for removal is that before any order for removal from service can be passed, the employee concerned must be given notice and an enquiry must be held on charges supplied to the employees concerned. In the present case, the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/ other Railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry, they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand, how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these R.S.A. No.1107 of 2000 -7- grounds constitute no justification for dispensing with the enquiry.” Further in Darshan Jit Singh Dhindsa v. The State of Punjab and others, 1993(2) Recent Services Judgments 650, it was alleged that the petitioner had links with extremists. There was nothing on the record from which one could come to the conclusion that holding of an inquiry is or was not practicable. It was held by the Division Bench of this Court that “even the charge of petitioner's having links with the extremists is to waive particularly in view of the service record of the petitioner prior to his dismissal, whereby commendation certificates were issued for the courageous acts performed by the petitioner in curbing the terrorists activities. Mere reproduction of the words of the statute are not sufficient to justify the finding of fact with respect to the satisfaction of the authority concerned.” Adverting to the instant one, however, Mr. Suresh Arora DW has testified that he had received a demi-official letter from the Intelligence Department, Chandigarh that the plaintiff has joined hands with the terrorists, but this document has also been withheld by the defendants – appellants. It is an accredited rule of law that if a party in possession of the best evidence withholds it, without there being any sufficient cause, an adverse inference has to be drawn to the effect that if produced, such evidence would have gone against it. The defendants- appellants have not adduced any evidence in proof of the fact that the plaintiff- respondent did have the alleged links with the terrorists. To put it differently, there is a total absence of sufficient material or good grounds for dispensing with the inquiry, which, thus, seems to have been dispensed with without there R.S.A. No.1107 of 2000 -8- being any just and reasonable cause. In the absence of evidence as to what had impelled the punishing authority to come to a conclusion with respect to impracticability of holding an inquiry, it is very difficult to say that at the relevant time, the conditions and circumstances did exist to dispense with it. As is borne out from the record, indeed there was no material before the authorities to come to the conclusion that the plaintiff- respondent did have links with the terrorists. Thus, the impugned order having been passed without application of the independent mind or satisfaction of the punishing authority cannot be sustained. Sequelly, the findings returned by both the Courts below warrant no interference and resultantly, the substantial question of law stands answered against the defendants- appellants and in favour of the plaintiff- respondent. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. July 21, 2010 ( HARBANS LAL ) renu JUDGE Note: Whether this case is to be referred to the Reporter? Yes/No