IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 93 of 1994 Date of decision: 22-1-2009 Satnam Singh … Appellant versus State of Punjab and another … Respondents THE HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mr. B.S.Jaswal, Advocate for the appellant Mr. B.S.Sra, DAG Punjab … ARVIND KUMAR, J: This is plaintiff's second appeal directed against the judgment and decree of the Courts below whereby his suit for declaration has been dismissed. As per case set out by the plaintiff in his plaint, he was employed as Warder in Central Jail, Amritsar, on permanent basis. According to him, he performed his duties diligently without any complaint, till 23.9.1985. Vide order dated 24.9.1985, he(plaintiff) was ordered to be dismissed from service under Article 311(2) of the Constitution of India, on the allegation that with his connivance and gross negligence, an extremist under-trial escaped from SGTB Hospital, Amritsar, on 22.9.1985. Thereafter, the plaintiff is stated to have absconded from the place of duty. An FIR No.297 of 1985 under Section 223/224 IPC also came to be registered against the plaintiff in which he,however, was acquitted. Plaintiff through the present suit challenged the order of dismissal on the ground that the same was passed without affording him an opportunity to deny his guilt and establish innocence; without holding an enquiry and without application of mind. The suit, on contest by the defendant-State, was dismissed by the trial Court vide judgment and decree dated 15.11.1991 holding that the State could dispense with the holding of enquiry under R.S.A. No. 93 of 1994 -2- Article 311(2) of the Constitution of India. It held that detailed reasons for dispensing with the same have been assigned by the Competent Authority. Appeal preferred by the plaintiff against the judgment and decree of the trial Court was also dismissed by the lower appellate Court vide its judgment and decree dated 24.5.1993. Hence, the present appeal by the plaintiff. The question arises whether the disciplinary Authority was justified in dispensing with the regular departmental enquiry under Article 311(2) of the Constitution of India and the appellant is entitled to the parity of similarly situated person. Article 311(2) can be invoked only when the Authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned Authority. In the instant case, the impugned order is not indicative of the fact as to what was the material to prove connivance of the appellant with the escaped under-trial and what were the reasons due to which it was found that it was not reasonably practicable to hold departmental enquiry. There is no averment in the impugned order if there had been any threat from the appellant or his associates to the witnesses who were likely to appear in case of holding of departmental enquiry. The main stress of the appellant is of parity and equity of similarly placed persons. It is not in dispute that the criminal case so registered against the appellant resulted in acquittal. It is also not in dispute that other Warders including Jagtar Singh were also dismissed from service vide order of even date i.e. 24.9.1985, with the same kind of allegations under Article 311(2) of the Constitution of India while dispensing with the departmental enquiry. It is further not in dispute that Jagtar Singh also filed civil suit challenging his dismissal order which was decreed on 16.1.1992 wherein dismissal order dated 24.9.1985 was declared illegal and void thereby holding the appellant to be deemed in service of the respondent-department from the date of dismissal but with liberty to the department to hold regular departmental enquiry as per rules and pass fresh order. Learned State counsel appearing on behalf of the State has frankly conceded that the department has not preferred any appeal against the said judgment and decree. Thus, the said judgment has attained finality. When similarly R.S.A. No. 93 of 1994 -3- placed person on similar allegations had been been dismissed from service and later has been ordered to be reinstated with liberty to the department to hold fresh enquiry, learned State counsel has not been able to convince this Court as to why the appellant is not entitled to have the same treatment whose case is also identical to that of said Jagtar Singh. He, thus, deserves equity and parity. In view of the above, the present appeal is allowed and the impugned judgment and decrees of the Courts below are set aside, declaring the order of dismissal to be illegal and void. As a result thereof, the appellant will be deemed to be in service. However, liberty is given to the department to hold a regular enquiry as per rules. It shall be appreciated if the said enquiry is concluded within six months. The payment of arrears be kept in abeyance and be decided by the disciplinary Authority at the time of giving decision. Parties to bear their own costs. ( ARVIND KUMAR ) January 22, 2009 JUDGE JS