R.S.A.No. 1612 of 1998(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1612 of 1998(O&M) Date of decision: 23.11.2009 The State of Punjab and others ......Appellants Versus Gurjit Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. J.S.Sandhu, AAG, Punjab Mrs.Vanita Sapra, Advocate, for the respondent. **** SABINA, J. Plaintiff Gurjit Singh filed a suit for declaration, which was dismissed by the Sub Judge, Ist Class, Amritsar vide judgment and decree dated 14.9.1995. In appeal, the said judgment and decree were set aside by the Additional District Judge, Amritsar vide judgment and decree dated 25.7.1997 and the suit of the plaintiff was decreed. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the trial Court in para Nos. 1 and 2 of its judgment, are as under:- R.S.A.No. 1612 of 1998(O&M) 2 “ Gurjit Singh was appointed constable in Punjab Police on 7.8.1989. vide order dated 21.2.1992, he was dismissed from service with effect from 22.2.1992. Subsequently, the Deputy Inspector General Police Border Range, Amritsar confirmed the said order dated 21.2.1992 for the dismissal of the plaintiff passed by the Senior Superintendent of Police, Tarn Taran. The order of dismissal and its confirmation are illegal, null and void because, according to the plaintiff, while dispensing with the regular departmental inquiry, the Senior Superintendent of Police, Tarn Tarn invoked powers under Police rules 16 (1) read with Section 7 of the Police Act, 1861, and Article 311(2) of the Constitution of India. It was not disclosed in the order as to what were the facts and circumstances necessitating such a drastic action. No reasons were recorded for not holding regular departmental inquiry. The reasons given in the order that witnesses were not likely to depose against the plaintiff due to fear of injury to their lives are vague. The order is retrospective in effect and order like this could not have been so passed retrospectively. The Senior Superintendent of Police, Tarn Taran acted arbitrarily, malafide, capriciously, wrongly, illegally and passed the cryptic and non speaking order of plaintiff's dismissal with R.S.A.No. 1612 of 1998(O&M) 3 a prejudiced mind in violation of all laws and rules. Notice under Section 80 CPC was served on the defendants but they did not admit the plaintiff's claim. He seeks a decree of declaratin that the order dated 21.2.1992 passed by the Senior Superintendent of Police, Tarn Taran dismissing him from service by invoking powers under Section 311(2) of the Constitution of India and dispensing with regular departmental inquiry against the plaintiff and the subsequent order of the Deputy Inspector General of Police Border Range, Amritsar confirming the said order of the Senior Superintendent of Police by rejecting the plaintiff's appeal are mala fide arbitrary, illegal, wrong, cryptic and capricious, without jurisdiction, non-speaking, non-est having been passed with a prejudiced mind in violation of the mandatory, statutory Punjab Police Rules, 1934, Constitution of India, principles of natural justice and all relevant laws and rules and that the plaintiff continues to be a constable in Punjab Police, District Tarn Taran as before 21.2.1992 and is entitled to all the pays, powers and privileges of constable continuously as he would have been in the absence of the said orders and is also entitled to pay of his suspension period. 2. The defendants admitted that plaintiff was appointed temporary constable on 7.8.89 and was R.S.A.No. 1612 of 1998(O&M) 4 dismissed from service with effect from 20.2.1992 by invoking the powers under Punjab Police Rules 16(1) read with Section 7 of the Police Act and Article 311(2) of the Constitution of India. Receipt of notice was admitted but its legality was denied. Claim in suit was refuted saying that the orders for the dismissal of the plaintiff and the rejection of his appeal were perfectly legal.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the impugned order dated 21.9.92 passed by defendant No.2 is illegal and void on the grounds mentioned in the plaint? OPP 2. Whether before filing the suit, a valid and legal notice under Section 80 of the CPC was served on the defendants. If not, its effectr? OPP 3. Whether the suit is in the present form is not maintainable? OPD 4. Whether the suit is pre-mature. If so, its effect? OPD 5. Whether the plaintiff is entitled to declaration as prayed for? OPP 6. Relief. The substantial question of law that arises in this case is “ whether the learned Additional District Judge had erred in R.S.A.No. 1612 of 1998(O&M) 5 decreeing the suit of the plaintiff although the plaintiff was not entitled for the declaration claimed by him?” Learned State counsel has submitted that the plaintiff had failed to challenge the order passed by Deputy Inspector General of Police ( Border Range), Amritsar in appeal, whereby his dismissal order dated 2.12.1992 was confirmed. The order of dismissal had merged in the appellate order and without challenging the appellate order, the plaintiff could not be granted the declaration sought by him. Learned counsel for the respondent, on the other hand, has submitted that the impugned order of dismissal was a non speaking order and had been rightly set aside by the learned Additional District Judge. The concerned authority had no material before it that the plaintiff was having any connection with the terrorists. Criminal case registered against the plaintiff resulted in his acquittal. In support of her arguments, learned counsel has placed reliance on the decision of this Court in Paramjit Singh, Ex.Head Costable vs. State of Punjab 1996 (1) SCT 709, wherein, it was held as under:- “5. In the context of what has been disucssed above, the impugned order needs to be tested. Order shows that Sr. Superintendent of Police has passed the order as he was satisfied that the petitioner has developed links with extremists and leaks out the secrets R.S.A.No. 1612 of 1998(O&M) 6 of the department. The order does not make reference to any record on the basis of which the Senior Superintendent of Police has recorded his conclusion that the petitioner is mixed up with the extremists and is supplying information to them. The source from which the Senior Superintendent of Police has derived knowledge about petitioner's links with the extremists has not been disclosed in the order. In order to ascertain the correctness of the allegations that exercise of power by the Senior Superintendent of Police is colourable and there is no material on record to show that the petitioner had links with extremists or had leaked out any secret information to the extremists, the learned Deputy Advocate General, Punjab, was asked to produce before me the record for showing that the order has been passed one the basis of some material. In response to the direction, record produced before me is a file which contains only on the paper, i.e. a carbon copy of the order. It contains no other document muchless any material on the basis of which the Senior Superintendent of Police could have come to the conclusion that the petitioner had links with extremists or had leaked out secret information of the department. Since nothing has been pointed out as to what impelled the disciplinary R.S.A.No. 1612 of 1998(O&M) 7 Authority for recording its satisfaction that it is not reasonably practicable to hold an enquiry, this Court has no alternative but to quash the order of dismissal. 6. The order passed in appeal too cannot be sustained. Rule 16.31 of the 1934 Rules specifically provides that the order passed in appeal shall contain the reasons therefor. The Appellate Authority is required to give a reasoned order while disposing of the appeal. According to the petitioner, as is evident from the grounds of appeal which has been annexed to the petition as Annexure P-2, he had raised more than 11 points for consideration of the appellate Authority in addition to his past record and also commendation certificates which he had obtained during the course of his service. The impugned order in this case shows hardly and application of mind on the part of the appellate Authority. Appellate Authority has totally ignored the points raised by the petitioner for its consideration and the appeal has been disposed of by a very brief order.” Learned counsel for the respondent has further placed reliance on the decision of the Apex Court in Jaswant Singh vs. State of Punjab and others 1991 LAB.I.C. 258, wherein it was held as under:- R.S.A.No. 1612 of 1998(O&M) 8 “ The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the instant case, it was alleged that the delinquent Police Officer instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors. It was also alleged that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental enquiry was held against him. No particulars were given. It was not shown on what material the concerned authority came to the conclusion that the delinquent had thrown threats. The satisfaction of the concerned authority was found to be based on the ground that the delinquent was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. It was not shown that the concerned authority had verified the correctness of the information leading to the said allegation. Therefore, it could not be said that the subjective satisfaction of concerned authority as to R.S.A.No. 1612 of 1998(O&M) 9 dispensation of departmental enquiry against the delinquent was fortified by independent material. Thus, the order of dismissal passed against the delinquent would not be sustainable.” Learned counsel for the respondent has also placed reliance on the decision of the Apex Court in Union of India v. Tulsiram Patel 1985(2) SLR 576, wherein, in para 70, it was held as under:- “ The position which emerges from the above discussion is that the keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase “ this clause shall not apply” is mandatory and not directory. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 31(2) or from giving any kind of opportunity to the concerned government servant. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity by a process of inference or implication. The maxim “ expressum facit cessare tacitum” (when there is express mention of certain things, then anything not mentioned is excluded”) applies to the case. As pointed out by this Court in B.Shankara Rao R.S.A.No. 1612 of 1998(O&M) 10 Badami and others v. State of Mysore and another, (26) this well-known maxim is a principle of logic and common sense and not merely a technical rule of construction. The second proviso expressly mentions that clause (2) shall not apply where one of the clause of that proviso becomes applicable. This express mention excludes everything that clause (2) contains and there can be no scope for once again introducing the opportunities provided by clause (2) or any one of them into the second proviso. In Atkinson v. United States of America Government (27) Lord Reid said (at page 232): “It is now well recognised that the Court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament” Here, however, the attempt is not merely to do something contrary to the intention of “Parliament”, that is, in our case, the Constituent Assembly, but to do something contrary to an express prohibition contained in the Constitution. The conclusion which flows from the express language of the second proviso is inevitable and there is no escape from it. It may appear harsh but as mentioned earlier, the second proviso has been inserted R.S.A.No. 1612 of 1998(O&M) 11 in the Constitution as a matter of public policy and in public interest and for public good just as the pleasure doctrine and the safeguards for a government servant provided in clauses (1) and (2) of Article 311 have been. It is in public interest and for public good that a government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. It is equally in public interest and for public good that where his offence in such that he should not be permitted to continue to hold the same rank, that he should be reduced in rank. Equally, where a public servant by himself or in concert with others has brought about a situation in which it is not reasonably practicable to hold an inquiry and his conduct is such as to justify his dismissal, removal or reduction in rank, both public interest and public good demand that such penalty should forthwith and summarily be imposed upon him; and similarly, where in the interest of the security of the State it is not expedient to hold an inquiry, it is in the public interest and for public good that where one of the three punishments of dismissal, removal or reduction in rank is called for, it should be summarily R.S.A.No. 1612 of 1998(O&M) 12 imposed upon the concerned government servant. It was argued that in a case falling under clause (b) or (c ), a government servant ought to be placed under suspension until the situation improves or the danger to the security of the State has passed, as the case may be, and it becomes possible to hold an inquiry. This argument overlooks the fact that suspension involves the payment at least of subsistence allowance and such allowance is paid at public expense, and that neither public interest would benefited nor public good served by placing such government servant under suspension because it may take a considerable time for the situation to improve or the danger to be over. Much as this may seem harsh and oppressive to a government servant, this Court must not forget that the object underlying the second the second proviso is public policy, public interest and public good and the Court must, therefore, repel the temptation to be carried away by feeling of commiseration and sympathy for those government servants who have been dismissed, removed or reduced in rank by applying the second proviso. Sympathy an commiseration cannot be allowed to outweigh considerations of public policy, concern for public interest, regard for public good and the peremptory dictate of a Constitutional prohibition. The Court must R.S.A.No. 1612 of 1998(O&M) 13 bear in mind that the second proviso has been in the Constitution since it was originally enacted. It was not blindly or slavishly copied from Section 240 (3) of the Government of India Act, 1935. Article 311 was article 282-B of the draft Constitution of India and the draft article 2820B was discussed and a considerable debate took place on it in the Constituent Assembly (see the Official Report of the Constituent Assembly Debates, Vol. IX, pages 1099 to 1116). The greater part of this debate centred upon the proviso to clause (2) of the draft Article 282-B, whihs is now the second proviso to Article 311. Further, the Court should also bear in mind that clause (c ) of the second proviso and clause (3) of Article 311 did not feature in Section 240 of the Government of India Act, 1935, but were new provisions consciously introduced by the Constituent Assembly in Article 31. Those who formed the Constituent Assembly were not the advocates of a despotic or dictatorial form of government. They were the persons who enacted into our Constitution the Chapter on Fundamental Rights. The majority of them had fought for freedom and had suffered imprisonment in the cause of liberty and they, therefore, were not likely to introduce into our Constitution any provision from the earlier Government of India Acts which R.S.A.No. 1612 of 1998(O&M) 14 had been intended purely for the benefit of a foreign imperialistic power. After all, it is not as if a government servant if without any remedy when the second proviso has been applied to him. There are two remedies open to him, namely departmental appeal and judicial review. The scope and extent of these remedies will be considered later in the course of this judgment.” The plaintiff was employed as a Constable on 17.8.1989 Thereafter the plaintiff was dismissed from service on 26.2.1992 and the following order was passed:- “ Whereas Constable Gurjit Singh No.4030/TT of this district has been found indulging in activities pre- judicial to the efficient functioning of the police force. He has very close links with extremists and helping them by providing information of the police department. And whereas it is established that Constable Gurjit Singh No.4030/TT is mixed up with the extremists and had been found responsible for supplying information relating to the Police Department. And whereas in the interest of maintenance of law and General administration the retention of Constable Gurjit Singh No.4030/TT of Police District Tarn Taran is considered undesirable. And whereas I a satisfied that the R.S.A.No. 1612 of 1998(O&M) 15 circumstances of the case are such that, it is not reasonable practicable to hold on enquiry in the matter provided in Punjab Police Rule 16.24 because no witness is likely to depose against him due to fear of inquiry of his life. Now, therefore, I Ajit Singh, Senior Superintendent of Police, Tarn Taran in exercise of the powers vested with me by virtue of the provision of the Punjab Police Rules 16.1 read with Section 7 of the Police Act 1861 and Article 311 (2) of the Constitution of India do hereby dismiss from service to Constable Gurjit Singh No.4030/TT with effect from 20.2.1992.” Admittedly, against the said order, plaintiff preferred an appeal and the appeal filed by the plaintiff was dismissed by the Deputy Inspector General of Police (Border Range), Amritsar. The plaintiff had only challenged the dismissal order dated 21.2.1992. The dismissal order merged with the order passed in appeal. In these circumstances, the learned trial Court had rightly held that since the plaintiff had failed to challenge the order passed by the Appellate Authority, the plaintiff was not entitled for the declaration sought for. Learned Additional District Judge has erred in holding that the order of dismissal as well as order in appeal were liable to be set aside because the order passed in appeal had neither been challenged by the plaintiff nor the same had been produced on record. In these circumstances, merely because it was mentioned in the plaint that the appeal had been rejected without consideration R.S.A.No. 1612 of 1998(O&M) 16 and without application of mind and the order in appeal was illegal, void being unreasoned and cryptic, learned Additional District Judge erred in holding that the order passed in appeal was cryptic, unreasoned, and illegal. The said order was not available before the learned Additional District Judge to opine that the same was unreasoned, illegal and cryptic. Unless, the learned Additional District Judge had gone through the order passed in appeal, it was not possible for the learned Additional District Judge to give a finding with regard to the legality or illegality of the order. In these circumstances, learned Additional District Judge erred in granting the declaration sought for by the plaintiff. There is no need to go into the merits of the impugned order of dismissal as the declaration sought for by the plaintiff could not be granted to him and hence, the judgments relied upon by the learned counsel for the respondent fail to advance the case of respondent. The dismissal order had merged in the appellate order and the plaintiff had failed to challenge the order passed in appeal by the Appellate Authority. Hence, the substantial question of law that arises in this appeal stands answered accordingly. Consequently, this appeal is allowed. The impugned judgment and decree passed by the lower Appellate Court are set aside and the judgment and decree passed by the trial Court are upheld. (SABINA) JUDGE November 23 , 2009 anita