CIVIL WRIT PETITION NO.1157 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 29, 2010 Ram Kishore .....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. S. N. Yadav, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner, police officer, has filed this writ petition to impugn the order of his dismissal from service dated 20.11.2008.The petitioner was dismissed as a criminal case was registered against him for various offences, including an offence under the Prevention of Corruption Act. The petitioner has challenged the order on the ground that action of the respondents while dismissing the petitioner by dispensing with the enquiry is illegal. Want of proper application of mind in following the CIVIL WRIT PETITION NO.1157 OF 2010 :{ 2 }: procedure and the constitutional mandate is resulting in unfair consequences in the instant case. A person accused of serious misconduct is getting of the hook because of failure on the part of competent authority to act in accordance with law. Enquiry in this case was dispensed with and the reasons given in support of his decision are not justified. The petitioner has, thus, pressed this as a main plank of attack to this order. Having been enrolled as a Constable in the year 1971, the petitioner was serving as Station House Officer, in the year 2008, when the impugned order came to be passed. As per the allegation, one girl, named, Rekha resident of Jalandhar, Punjab, while living with one Satish of District Jind, ran away from the house and had reached Railway Station, Pandu Pindara, District Jind. She was sent to G.R.P.S., Jind alongwith two Home Guards, who produced her before the petitioner. In the meantime, Satish also reached the Police Station. It is alleged that the petitioner demanded a sum of Rs.25,000/- as illegal gratification for settling the matter. Upon negotiation, the petitioner accepted a sum of Rs.15,000/- and sent the girl with Satish without making entry of the case in the police record. The petitioner, thus, was accused of indulging in gross misconduct and corruption while handing over the victim to the person accused of crime. FIR under various Sections was accordingly registered against him on 3.10.2008. The petitioner allegedly absconded and was not available during investigation. He was found attempting to influence the witnesses to favour him. He did not co-operate in the investigation. His prayer for anticipatory bail was rejected but he still did not join CIVIL WRIT PETITION NO.1157 OF 2010 :{ 3 }: investigation. Finding this act on his part to be carrying criminal propensity as such, who was supposed to be protector of life and property of a citizen and himself was indulging in violation of law, an action was initiated for terminating his services. Based on the facts as noticed above, the Superintendent of Police, Railways, came to form a view that certain witnesses would not be in a position to muster enough courage to depose against the petitioner. He decided to dispense with the departmental enquiry. Accordingly, it was viewed that it was not practicable to conduct the departmental enquiry and by invoking the provisions of Articles 311 (2)(b) of the Constitution of India, the order dismissing the petitioner with immediate effect was passed. The petitioner filed an appeal against the same, which was dismissed. So, was the fate of the revision, which was dismissed on 30.5.2009/29.10.2009 by Director General of Police. Terming this order to be arbitrary, malafide and in violation of the provisions of the Constitution, the petitioner has filed the present writ petition. The respondents have made laborious effort to justify their action in dispensing with the enquiry while passing the impugned order. It is stated in the reply that some preliminary enquiry was done by Deputy Superintendent of Police, Hisar and the allegation made against the petitioner were found to be correct. The petitioner was placed under suspension and FIR registered against him. He was found to indulge in gross misconduct and corruption by handing over the victim to the preparator of the crime. A departmental enquiry was initiated against him but he did not associate with the same intentionally. The petitioner also did not CIVIL WRIT PETITION NO.1157 OF 2010 :{ 4 }: associate in the investigation of the criminal offences pending against him. When the petitioner failed to join investigation and had absconded, the respondents were left with no option but to proceed against him under Article 311 (2)(b) of the Constitution of India. It was viewed that it would not be reasonably practicable to hold the departmental enquiry and as such, the petitioner was dismissed from service by the then Superintendent of Police, GRP, Haryana, Ambala Cantt. Could the enquiry be dispensed with under the facts and circumstances as noticed above? The reasons for which the provisions of Article 311(2)(b) of the Constitution have been invoked are disclosed in the impugned order. The counsel for the petitioner would contend that these reasons are not valid and justifiable enough to invoke the proviso (b) to Article 311(2) of the Constitution. The respondents, on the other hand, would justify their action on the grounds as disclosed in the reply. It is, thus, required to be seen if having initiated the enquiry, it was legally permissible for the respondents to dispense with the same and pass the impugned order by invoking the discretionary power under Article 311(2)(b) of the Constitution. The counsel for the petitioner in support of his submission has placed heavy reliance on the case of Union of India Vs. Tulsi Ram Patel, 1985(Suppl.) 2 SCR 131. Hon'ble Supreme Court in this case has observed that clause (b) of the second proviso 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 CIVIL WRIT PETITION NO.1157 OF 2010 :{ 5 }: this regard are as under:- “A disciplinary authority is not expected to dispense with a disciplinary enquiry 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.” Such like issue has been considered in number of cases, which may need a notice. Reference here may be made to the case of Jaswant Singh Vs. State of Punjab and others, AIR 1991 Supreme Court 385, where it is observed that decision to dispense with the departmental enquiry can not 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 Sugendra Paswan Vs. National Buildings Constructions Corporation and Ors., 2007 (1) S.C.T. 20, an employee was under arrest and dispensing with the enquiry order terminating his services was passed. Memo of charges was not served on him as employee was in jail. It is observed that the action of the respondents is to be tested on the anvil of reasonableness and fairness. Finding that the petitioner therein was denied reasonable opportunity of submitting an explanation of his absence, the action was termed as unfair and unreasonable. Here only a case of Ex.Sub Inspector Puran Chand Vs. State of Punjab, 1996 (1) S.C.T. 625 may be referred where the enquiry was dispensed with being not CIVIL WRIT PETITION NO.1157 OF 2010 :{ 6 }: reasonably practicable. No reference was made to any material while recording satisfaction reached that the 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) SCT 821, it was held that enquiry can not be dispensed with lightly or arbitrarily or out of interior motive or to avoid enquiry because of case of department is weak and is likely to fail. Order of termination in this case was quashed with liberty to proceed against the person in accordance with law. Division Bench of this Court in Darshan Jit Singh Dhindsa Vs. State of Punjab, 1993 (1) SCT 338, has observed that enquiry was dispensed with on excusals. It is further observed that cardinal principal of natural justice can not be dispensed with on mere pretexts. The order of dismissal was held not sustainable. Reference can also be made 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. Mr.Nehra, on the other hand, has placed heavy reliance on Ikramuddin Ahmed Borah Vs. Superintendent of Police, Darrang, AIR 1988 Supreme Court 2245 to urge that the Court can not sit over relevancy of the reasons given by the disciplinary authority while dispensing with the enquiry. He has also referred to Yunish Masih Vs. The State of Punjab etc., 2009 (4) SCT 74, where this Court has upheld the action of the department in dispensing with the enquiry on the ground that it was not practically possible for the reason that no witness would come forward to depose against a person mixing with the terrorist and supplying the CIVIL WRIT PETITION NO.1157 OF 2010 :{ 7 }: vital information of National interest. In this background, the decision of the competent authority, dispensing with the enquiry was held justified. In my view, the ratio of law as culled out in this case may not apply to the facts of the present case. In Yunish Masih's case (supra), the enquiry was dispensed with on the ground that he was mixed up with the terrorists and in this background it was observed that the witnesses would not come forward to depose against such a person. There is no such situation in the present case. The submission here is that the petitioner was Station House Officer and could have been in a position to influence the witnesses and hence, it was not reasonably practicable to hold enquiry. So the enquiry was dispensed with. This reason firstly is not disclosed in so many words in the impugned order and even otherwise apparently would not be a valid justification to dispense with the enquiry. The reasons for dispensing with the enquiry, as these would emerge from the impugned order, was that the petitioner was absconding and it was not practicable to hold enquiry. It is not possible to view that the enquiry can not be held when a person is absconding. Holding of an exparte enquiry, when the person despite due service does not join the same, is a well known method, for which no efforts apparently were made. The scope of clause (b) of Second Proviso to Article 311 (2) was considered in detail by the Constitutional Bench in famous Tulsi Ram Patel's case (supra) and the Court also considered the clause reading “it is not reasonably practicable to hold such enquiry” as used. It is held that:- “Thus, whether it was practicable to hold the inquiry or not CIVIL WRIT PETITION NO.1157 OF 2010 :{ 8 }: must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witn4esses who are going to give evidence against him with fear of reprisal as to prevent them from doing so.......” As held by the Hon'ble Supreme Court, it is not possible to enumerate the cases in which it would not be reasonably practicable to hold enquiry but by way of illustration, it is mentioned that when a person alongwith his associate so terrorizes, threatens or intimidates witnesses, who are to give evidence against him so as to prevent them from doing so, then it may be said that it is not reasonably practicable to hold enquiry. This situation is neither pleaded nor is made out from the facts as disclosed from the record. The only submission is that the petitioner being SHO was in a position to influence the witnesses. A State and its machinery should not show their helplessness before a Sub Inspector who was working as SHO. He was himself absconding from law. Would such a person CIVIL WRIT PETITION NO.1157 OF 2010 :{ 9 }: be in a position to influence witness? Was the State so fragile that it could not conduct enquiry? A person who himself was running away because of fear of law, can not be considered in any position to influence the witnesses. Though, the Court may not sit over the relevancy of the reasons given but when the Court find that the reasons are irrelevant and that recording of satisfaction by the Disciplinary Authority is an abuse of power conferred upon it by Clause (b), then the Court can certainly look into the same and can hold that the case is such which goes out of the purview of the said clause and that the impugned order is a nullity and would stand invalidated on this count. To decide whether the reasons are germane to Clause (b), the Court may put itself in the place of Disciplinary Authority and consider whether the then prevailing situation was such that a reasonable man acting in a reasonable way could have formed a view that it was not reasonably practicable to hold an enquiry and, thus, to dispense with the same. The matter has to be judged in the light of prevailing situation. Seeing the issue in the light of this position, it can be said that the decision of the Disciplinary Authority to dispense with the enquiry on the ground that it was not reasonably practicable to hold the same does not appear to be well founded. To say that enquiry was not possible and the proviso under Article 311(2)(b) was rightly invoked, would not sound legally proper. 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 CIVIL WRIT PETITION NO.1157 OF 2010 :{ 10 }: 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 petitioner 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 petitioner were serious. That alone can not 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 would not justify the action of dispensing with enquiry. 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. The writ petition is accordingly allowed and the impugned order is set-aside. Liberty is given to the respondents to hold an enquiry and to pass a fresh order in accordance with law. For the purpose of holding enquiry, the petitioner need not be reinstated. The enquiry be completed within a reasonable time and thereafter the CIVIL WRIT PETITION NO.1157 OF 2010 :{ 11 }: respondents would be at liberty to pass a fresh order on the basis of finding returned by the Enquiry Officer. July 29,2010 ( RANJIT SINGH ) khurmi JUDGE