CIVIL WRIT PETITION NO.8838 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 06, 2010 Ishwar Singh .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. N.S. Shekhawat, Advocate, for the petitioner. (In C.W.P. No.8838 of 2009) Mr. R. N. Lohan, Advocate, for the petitioner. (In C.W.P. No.17746 of 2009). Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. This order will dispose of Civil Writ Petition Nos.8838 of 2009 (Ishwar Singh Vs. State of Haryana and others) and 17746 of 2009 (Rattan Singh Vs. State of Haryana and others) as common questions of fact and law are involved in both the cases. The petitioners have filed these writ petitions to challenge the orders of their dismissal, which has been passed by dispensing with the requirement of holding an enquiry. Both the petitioners were CIVIL WRIT PETITION NO.8838 OF 2009 :{ 2 }: accused of demanding and accepting bribe from a Reporter of a Star News Channel, which was recorded on Camera by conducting a sting operation. It appears that the petitioners had done so for implicating or torturing anyone in any false case under the NDPS Act or for outraging the modesty, which was recorded on Camera by the Reporter. This was played on the Star News Channel on 18.6.2008 and 19.6.2008. On the basis of this, an FIR under Section 7/13 of the Prevention of Corruption Act was registered against the petitioners. Head Constable Rattan Singh (petitioner in Civil Writ Petition No.17746 of 2009) was arrested whereas ASI Ishwar Singh (petitioner in Civil Writ Petition No.8838 of 2009) managed to abscond. His absence report was recorded in the DDR on 18.6.2008. The above-noted act on the part of respective petitioners was viewed seriously and it was observed that this would show criminal tendency on their part and immoral attitude, which is not expected from Members of a disciplined force like police, which is meant for protecting the life and property of citizens of the country. It is viewed that this had resulted in tarnishing the image of the Haryana Police and, thus, the petitioners had acted in a reprehensible manner, which was prejudicial to the personal security and safety of citizen. Considering the facts, it was opined that it would not practicable to hold an enquiry and, therefore, order dismissing both the petitioners from service was passed by invoking the powers conferred on the respondent-Superintendent of Police under Article 311(2)(b) of the Constitution of India after dispensing with enquiry. The petitioners have impugned the orders of their dismissal by filing two separate writ petitions. CIVIL WRIT PETITION NO.8838 OF 2009 :{ 3 }: The petitioners would not only deny the allegations made against them in the impugned orders but would challenge the action of Disciplinary Authority in dispensing with the enquiry. As per the petitioners, this would render the order illegal and unjustified. Petitioner, Ishwar Singh, claims that he had returned after giving evidence before the Court of Sessions Judge, Jind and had visited the V.G. restaurant, Narwana, to have lunch as he was hungry. There he found Head Constable Rattan Singh talking to two persons. The petitioner went there and found him under the influence of liquor. The petitioner, however, took meals and left for Police Station. Ishwar Singh denies to have had any conversation with the persons, which was ultimately shown on T.V. The petitioners have accordingly challenged the action of the respondents in dispensing with the enquiry and, thus, to impugn the orders of their respective dismissal. The only issue that would require consideration is whether the enquiry could be dispensed with for the reasons mentioned in the impugned orders and whether in this background, the order dismissing the petitioners can be sustained. No doubt, Superintendent of Police would have a power and jurisdiction to dispense with the enquiry and to dismiss an employee by invoking the provisions of Article 311 (2)(b) of the Constitution of India but it is to be seen if requirement of holding enquiry could be dispensed with due to the reasons as disclosed in the impugned orders. After terming the act of the petitioners to be reprehensive and the one which was prejudicial to the personal safety and security of the citizens, the reasons for dispensing with CIVIL WRIT PETITION NO.8838 OF 2009 :{ 4 }: the enquiry are disclosed in the impugned order. It is stated that it would require a great courage for witness to depose against desperate persons like the petitioners and such task would be more acute and difficult as the delinquent employees are the police officials. It is also stated that the petitioners may use their job to influence the statement/deposition of the witnesses. Absence of ASI Ishwar Singh due to his act of absconding is advanced as an added reason to dispense with the enquiry by stating that it is not practicable to hold enquiry. The issue regarding reasons to dispense with enquiry has been considered in number of cases and may seem to be somewhat settled. Let us take note of some of the precedents in this regard. Similar issue arose before this Court in Civil Writ Petition No.4875 of 2009 (Ex.Const.Narinder Kumar Vs. State of Haryana & Others), decided on 10.9.2009 and after noticing number of judgments, it is viewed that the competent authority was required to record its subjective satisfaction for dispensing with enquiry and it must be fortified by the independent material. Reference can be made to the case of Jaswant Singh Vs. State of Punjab and others, AIR 1991 Supreme Court 385, where the Hon'ble Supreme Court has observed that decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority and when the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on the officer to 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 case of Union of India Vs. Tulsi Ram Patel, 1985 CIVIL WRIT PETITION NO.8838 OF 2009 :{ 5 }: (Suppl) 2 SCR 131, the Hon'ble Supreme Court observed that clause (b) of the second provision to Article 311 (2) of the Constitution 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. Relevant observations in this regard are as under:- “A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail.” In the case of Ex.Sub Inspector Puran Chand Vs. State of Punjab, 1996(1) S.C.T. 625, enquiry was dispensed with being not reasonably practicable. No reference was made to any material while recording satisfaction reached that enquiry is not possible due to the reasons recorded. The order of punishment was held vitiated. In Lalji Dass Vs. State of Punjab and others, 1996(1) S.C.T. 821, this Court held that the enquiry cannot be dispensed with lightly or arbitrarily or out of ulterior motive or to avoid inquiry or because of the case of department is weak and is likely to fail. Order of termination in this case was quashed with liberty to proceed in accordance with law. In Darshan Jit Singh Dhindsa Vs. State of Punjab, 1993(1) S.C.T. 338, Division Bench of this court held that the enquiry against the petitioner therein was dispensed with on excusals. It is further held that cardinal principle of natural justice cannot be dispensed with on mere pretexts. The order of dismissal, thus, was held not sustainable. Reference can further be made to the CIVIL WRIT PETITION NO.8838 OF 2009 :{ 6 }: cases of Swaran Singh and others Vs. State of Punjab and others, 1996(3) S.C.T. 113 and Rajeev Kumar Sharma Vs. State of Haryana, 2002(4) S.C.T. 55. It can be said that respondents have not cared to follow the procedural requirements while passing the impugned order. Article 311(2) provides in clear terms that no member of a civil service of the Union or the civil service of the State 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 is given a reasonable opportunity of being heard in respect of those charges. Proviso in clause (b) then carves out an exception by providing that where an authority is empowered to dismiss or remove a person or reduce him in rank is satisfied that for some reason, to be recorded by the authority in writing, it is not reasonably practicable to hold such enquiry, then the requirement of holding an enquiry may be dispensed with. Though the power under Article 311(2)(b) of the Constitution of India has been invoked, but no valid justification is forthcoming as to why the decision was taken to dispense with the enquiry. If the witnesses could carry out a sting operation, it can not be said that such witnesses would be under any fear or threat and would not come forward to depose against the petitioners, who were police officials. It can not, thus, be said that this was a case where it was not reasonably practicable to hold such an enquiry and the said plea, thus, can not be accepted, having regard to the facts and circumstances of the case. The difficulties as expressed in holding and for conducting enquiry are not considered valid. It is also CIVIL WRIT PETITION NO.8838 OF 2009 :{ 7 }: required to be noticed that one of the petitioner was absconding and he himself was on the run and could not have been a cause of threat to any individual to depose before the Enquiry Officer. To say that holding of enquiry was not possible and to invoke the proviso under Article 311(2)(b) would not sound legally appropriate. In large number of judgments as noticed above, it has consistently been observed that decision to dispense with the enquiry does not rest on the ipse dixit of the authority. The authorities concerned are required to satisfy the courts on the basis of objective facts that holding of enquiry was not reasonably practicable. Such satisfaction is to be based on some independent material. It cannot be said in the facts of the present case that the subjective satisfaction of the concerned authority to dispense with the departmental enquiry and to dismiss the petitioners by invoking Article 311(2)(b) is fortified by any material. As observed in Tulsi Ram Patel's case (supra), the disciplinary authority is not expected to dispense with the enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid holding of an enquiry. May be that the case of the department was very strong and the allegations against the petitioners are serious. That alone cannot be a ground to deny the procedural safeguards which are constitutionally guaranteed to an employee. Once the decision was taken to dispense with the enquiry, it is required to be justified on the ground that it was not reasonably practicable to hold such enquiry. The importance of procedural safeguards was well noticed by the Hon'ble Supreme Court in the case of Ranjit Thakur Vs. Union of India, AIR 1987 Supreme Court 2386.The reasons in the present case are CIVIL WRIT PETITION NO.8838 OF 2009 :{ 8 }: not justified. The order of dismissal passed in this background, thus, cannot be sustained. The enquiry in this case has been dispensed with without proper application of mind. Both the writ petitions are accordingly allowed. The impugned orders are set-aside. However, liberty is given to the respondents to pass a fresh order after holding enquiry in accordance with law and then to pass a fresh order on the basis of finding returned in the enquiry. The petitioners need not be reinstated into service. The enquiry be completed within a reasonable time and further action against the petitioners may follow on the basis of finding returned by the Enquiry Officer. Needless to reiterate that the respondents would be at liberty to pass a fresh order on the basis of enquiry proceedings. September 06, 2010 ( RANJIT SINGH ) khurmi JUDGE