Civil Writ Petition No.2446 of 1991(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Civil Writ Petition No.2446 of 1991(O&M) Decided on : June 02, 2011 Ex.Constable Baljinder Singh ... Petitioner VERSUS The State of Punjab and others ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.H.S.Mann and Mr.Kamaldip Singh Sidhu, Advocates for the petitioner. Mr.Surender Kapoor, Additional Advocate General, Punjab. A.N.JINDAL, J.- The petitioner - Ex. Constable Baljinder Singh (herein referred as `the petitioner') has sought quashing of the orders dated 29.3.1988, 3.11.1988, 2.6.1989 & order dated 12.5.1989, Annexures P-1, P-2, P-3 and P-3/A, respectively, as also a direction in the nature of mandamus for directing the respondents to treat him on duty and declare him entitled to all consequential benefits. The petitioner had joined as Constable in Punjab Police in 1979; passed his “Lower School Course” in 1983; granted `C' List under Punjab Police Rules meant for promotion to the rank of Head Constable in 1983. However, when he was on the verge of promotion of Head Constable, he was arrested on 9.3.1988 and was detained upto 23.3.1988. He was Civil Writ Petition No.2446 of 1991(O&M) [ 2 ] falsely implicated in a case under Sections 212/216 of the Indian Penal Code, 1860 read with Section 3/4 of the Terrorist & Disruptive Activities (Prevention) Act, 1985, registered at Police Station Focal Point, Ludhiana. Thereafter, his services were dismissed vide order dated 29.3.1988 (Annexure P-1) passed by Senior Superintendent of Police, Ludhiana, after dispensing with the enquiry under Article 311(2)(b) of the Constitution of India. In the said order, it was mentioned that the petitioner had exhibited gross lack of sense of discipline, which amounted to unbecoming of a member of the Police Force. Secondly, it was mentioned that the petitioner was involved in the activities which are prejudicial to the State. The appeal against the order dated 29.3.1988 was dismissed vide order dated 3.11.1988 (Annexure P-2). The revision petition against the said order was also dismissed vide order dated 12.5.1989 (Annexure P-3A) passed by Director General of Police, Punjab. It was further submitted that the petitioner was acquitted in the aforesaid criminal case by the Additional Judge, Designated Court, Ludhiana vide judgment dated 8.10.1988 (Annexure P- 4), wherein, the Trial Court observed that there was no evidence on the record that Baldev Singh and Daljit Singh, to whom the petitioner was giving shelter, were held to be terrorists by any court of competent jurisdiction. It was further held that no evidence was collected by the prosecution that both the aforesaid persons had been visiting the petitioner or he was helping them. Thus, while challenging the order of his dismissal, the petitioner has sought his reinstatement with all consequential benefits. Reply to the aforesaid petition was filed in which the facts with regard to his enrollment in the Police Department on 26.9.1979 and that he Civil Writ Petition No.2446 of 1991(O&M) [ 3 ] was brought in list `C-I' w.e.f. 1.9.1984 have been admitted. Further, it has been submitted that the petitioner was not promoted due to the punishment of forfeiture of service of two years, awarded to him in a departmental enquiry vide order dated 18.8.1986. In addition to the enquiry report, he was arrested in case FIR NO.30 dated 24.3.1988 under Section 212/216 IPC & Sections 3/4 of TADA Act, registered at Police Station Focal Point, Ludhiana. Further it was submitted that there were other number of allegations, which prompted the Senior Superintendent of Police, Ludhiana to dispense with the enquiry and he had to declare undesirability to keep the petitioner in service. He also felt that the continuation of the petitioner in service would affect the integrity and the interest of the Nation. As regards the judgment in the criminal case, it has been stated that he was not acquitted honorably, but he was extended benefit of doubt. It was further submitted that the action of the Senior Superintendent of Police, Ludhiana was not only on the basis of the criminal case registered against the petitioner, but also taking note of his prejudicial activities to the State and other material on the record. By pleading all the above grounds, the respondent State has considered the dismissal of the petitioner from service as valid. Arguments heard. Record perused. The crucial question into controversy is that whether the Senior Superintendent of Police, Ludhiana while passing the order dated 29.3.1988 (Annexure P-1) had recorded his subjective satisfaction by assigning a valid reason and if a departmental enquiry could be dispensed with under Article 311(2)(b) of the Constitution of India without recording any reasons and the Civil Writ Petition No.2446 of 1991(O&M) [ 4 ] services of the petitioner could outrightly be dismissed? The impugned order (Annexure P-1) reads as under:- “Order Whereas it has been reported to me that Constable Baljinder Singh No.2361/1 Ldh of this district has been indulging in prejudicial activities by doing inter-alia the following acts:- 2. He has been involved in case FIR NO.30 dated 24.3.88 u/s 212/216 IPC and 3/4 T.D.A.Act of 1985 P.S.Focal Point, Ludhiana. 3. That he exhibited gross lack of sense of discipline which amounts to the un-becoming of a Member of Police Force which is entrusted with the duties of maintaining law and order. 4. And whereas, I am satisfied that this aforesaid activities have rendered him unfit to be retained in Police force and whereas, I being the punishing authority am further satisfied for the reasons reported in writing that it is not reasonably practicable to hold a regular departmental enquiry against him due to the surcharged atmosphere in the State. 5. I, A.P.Pandey, IPS Sr.Supdt. Of Police, Ludhiana in exercise of the powers conferred upon me with proviso (b) to Article 311(2) of the Constitution of India, hereby dismiss Constable Baljinder Singh No.2361/Ldh from service with immediate effect. Book the order. Civil Writ Petition No.2446 of 1991(O&M) [ 5 ] Sr.Supdt. Of Police Ludhiana” From the bare reading of the above orders, it is apparent that (i) the petitioner was not given any opportunity of being heard; (ii) no record indicating the reasons for dispensing with the enquiry against the accused has been produced, despite a specific date taken by the State Counsel in this regard; (iii) the impugned order does not indicate the reasons for recording satisfaction for dispensing with the departmental enquiry and the only reason shown is that of surcharged atmosphere in the State; (iv) the petitioner had joined the Department in 1979 and was discharged in 1989, therefore, the law of the land required the departmental enquiry before he was turned out or the Punishing Authority was to assign the valid reasons for its satisfaction for dispensing with the enquiry. The Article 311 of the Constitution, which deals with the dispensing with the inquiries reads as under:- “311. Dismissal, removal or reduction in rank of persons employes in civil capacities under the Union or a State - (1) xx xx xx xx xx (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry 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 Civil Writ Petition No.2446 of 1991(O&M) [ 6 ] 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 proposed. Provided further this clause shall not apply - (a) 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 (b) 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 (c) 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 enquiry.” From the reading of the bare Article, it is clear that a person could be dismissed, firstly, on the ground of his conduct, which led to his conviction on a criminal charge. In this regard, it needs mention that the criminal case registered against the accused under Section 212/216 IPC and 3/4 TADA Act of 1985 at Police Station Focal Point, Ludhiana ended with the acquittal of the petitioner vide judgment dated 8.10.1988 (Annexure P-4) passed by Additional Judge, Designated Court, Ludhiana. The acquittal of the petitioner was not recorded on any technical ground, but the court observed that there was no evidence to connect him with the crime, as such, it cannot be said that the petitioner was acquitted on technical grounds, while extending benefit of doubt. The benefit of doubt could be extended in the Civil Writ Petition No.2446 of 1991(O&M) [ 7 ] cases, where there had been some grounds/ evidence, which could not be believed by the Court, but in the case of the petitioner, the court did not find any evidence or other material to hold him guilty. It can't be said that he was acquitted while giving benefit of doubt. Secondly, the Punishing Authority found that due to surcharged atmosphere in the State, the enquiry could be dispensed with as it was not reasonable to hold a regular departmental enquiry, but there is nothing to indicate if the Senior Superintendent of Police, Ludhiana recorded any reason for his satisfaction that the enquiry should be dispensed with. It would, however, be appropriate to deal with the judicial precedents, relied upon by the Counsel for the parties. In Union of India vs. Tulsi Ram Patel, AIR, 1985, SC, 398, a Constitution Bench of the Apex Court considered the scope of three clauses of second proviso to Article 311 (2) and laid down the following parameters:- “It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence, or of general indiscipline, and insubordination prevails, and it is immaterial whether the government servant concerned is or is not a party to bringing about such an atmosphere.... The reasonable practicability of holding an enquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final... The finality given to the decision of the disciplinary Civil Writ Petition No.2446 of 1991(O&M) [ 8 ] authority by Article 311(3) is not binding upon the Court so far as its power to Judicial review is concerned. Where a Government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 of this Court under Article 32 the Court will interfere on grounds well established in law for the exercise of power of judicial review in matter where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not... In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it, come to the conclusion that it was not reasonably practicable to hold the inquiry... In considering the relevancy of the reasons given by the disciplinary authority the Court will not, however, sit in judgment over them.” In Chief Security Officer and others Vs. Singasan Rao Das, 1991(2) SLR, 140, a three Judge Bench of the Supreme Court, considered the legality of an order of removal, passed against the respondent, under Article 311(2) (b) on the ground that he had abetted theft of Railway properties. The competent authority had invoked Rules 44, 45 and 46 of the Railway Protection Force Rules, 1959, and dispensed with the regular enquiry, by recording the following observations:- “Because of the facts that it is not considered Civil Writ Petition No.2446 of 1991(O&M) [ 9 ] feasible or desirable to procure the witnesses of the security/other Railway Employees since this will expose them and make them ineffective for future. These witnesses if asked to appear at a confronted enquiry are likely to suffer personal humiliation and insults thereafter or even they and their family members may become targets of acts of violence.” The High Court relied on the decision of the Supreme Court in T.R. Chellappah Vs. Union of India and others, 1976(3), SCC, 190, and quashed the order of punishment by observing that the writ petitioner had not been given an opportunity to represent against the proposed penalty. When the appeal was preferred in the Apex Court, on behalf of the appellant, reliance was placed on the judgment of the Constitution Bench in Tulsiram Patel's case (supra) and it was urged that the order of the High Court was liable to be set aside. Their Lordships of the Supreme Court rejected the appellant's plea and 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 the normal procedure for removal of an employee is that before any order for removal from Civil Writ Petition No.2446 of 1991(O&M) [ 10 ] 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 the enquiry was that it was considered not feasible or desirable to procure witnesses of the security/other Railway employees since this 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 grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view, it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result, the appeal fails and is Civil Writ Petition No.2446 of 1991(O&M) [ 11 ] dismissed. There will be no order as to costs.” In Jaswant Singh Vs. State of Punjab and others , 1991(1), SLR, 180 (S.C.), the principle of law, laid down, was to the effect, that subjective satisfaction of dispensing with the enquiry, must be based, on independent material. It cannot be dispensed with solely on the ipse dixit of the concerned authority. Subjective satisfaction for dispensing with the enquiry not supported by any independent material, can be held to be unjustified. The aforesaid judgments were further relied upon in Sub Inspector Mohinder Singh Cheema vs. State of Punjab and others, 1990(2) Recent Services Judgments 714; Ram Sarup, driver vs. Haryana State and others , 1991(1) SLR 106; Darshan Jit Singh Dhindsa vs. The State of Punjab and others, 1993(2) Recent Services Judgments 650; Surinder Kaur vs. State of Punjab through DGP, Chandigarh, 2008(1) RSJ 767; Baljit Singh Ex.Constable vs. Senior Superintendent of Police, Amritsar, 2008(2) RSJ 293; Nagesh Kumar vs. State of Haryana and others, 2008(4) SCT 423; The Punjab State represented by the Secretary, Home Department, Punjab Government, Chandigarh and others vs. Kulwinder Singh (RSA No.1647 of 1995 decided on 27.10.2009 by P&H High Court); The State of Punjab and another vs. Ajit Singh, (RSA NO.2082 of 1992 decided on 3.8.2010). In the instant case, at the cost of repetition, it may be mentioned that the criminal case, in which the petitioner was arrested, he was acquitted Civil Writ Petition No.2446 of 1991(O&M) [ 12 ] and the respondent State has not produced any judgment of reversal. The State has also submitted that an enquiry was held against the petitioner. Be that it may, no record of enquiry has been produced by the State. In any case, if some enquiry could be held against the petitioner, then there was no difficulty for the State to hold a regular enquiry against the petitioner before terminating his services. It is settled proposition of law that the departmental authority at his own whim or caprice could not dispense with the enquiry for some ulterior motive or to over-come the political or other pressure at the relevant time. Holding departmental proceedings for any kind of dereliction of duty is a enumerated under proviso to Article 311(2) (b) of the Constitution of India and also in the punishment and appeal rules governing the employment and there must be valid reasons to dispense with the enquiry based upon material. In the instant case, no material has been placed before this Court to substantiate the opinion of the Senior Superintendent of Police in dispensing with the said procedure. Such opinion must be based upon objective criterion and identifiable material and not merely on the presumptions and assumptions of the authorities. Thus, the stigmatic order passed against the petitioner without holding a departmental enquiry and also without recording any valid reasons for dispensing with such enquiry, cannot stand the scrutiny of the settled law of the land. In the result, the petition is allowed. The impugned orders passed against the petitioner Annexure P-1, P-2 and P-3A are hereby quashed and the respondents are directed to reinstate him in service. However, the petitioner shall not be entitled to any monetary benefits during Civil Writ Petition No.2446 of 1991(O&M) [ 13 ] the interregnum period of dismissal, but it shall be counted towards his length of service and shall be considered a part of the qualifying service for determination of the seniority, pensionary benefits, fixation of pay, which, inter alia include the notional benefits of increments, revision of pay and promotional aspects as well. In case, the petitioner has achieved the age of superannuation, he will be entitled to pensionary benefits accordingly. June 02, 2011 ( A.N.JINDAL ) `gian' JUDGE