RSA No.2082 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2082 of 1992 Date of decision 03.08.2010. The State of Punjab and another. ...... Appellants. versus Ajit Singh ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Sudhir Nehra, Addl.AG, Punjab for the appellants. Mr. K.S.Sidhu, Advocate for respondent. K.C.PURI, J. This is a regular second appeal directed by defendants-State against the judgment and decree dated 11.1.1992 passed by Shri Behari Lal, Additional District Judge, Gurdaspur vide which the appeal preferred by the respondents-State against the judgment and decree dated 3.4.1991 passed by Shri Harbhajan Singh, Additional Senior Sub Judge, Gurdaspur, decreeing the suit of the plaintiff, was dismissed. Shorn off unnecessary details, the case of the plaintiff as set forth in the plaint is that he was appointed as a constable in the Punjab Police on 19.5.1979 in District Faridkot and thereafter, he was transferred to Gurdaspur in the month of October, 1979 and since then he had been performing his duties as such diligently, efficiently, honestly and to the satisfaction of his superiors. It has been pleaded by the plaintiff that he was dismissed from service vide order dated 3.3.1988 on the ground of RSA No.2082 of 1992 2 dereliction of duties in the aid of extremists without holding any inquiry. He has challenged said order being without jurisdiction, null and void on the ground that no show cause notice was served nor any departmental inquiry was held. It has been further pleaded by the plaintiff that the allegations are vague and indefinite and that there was no evidence available and the provisions of Article 311 (2) (b) of the Constitution of India were not applicable. The impugned order was stated to be non-speaking as having been passed without applying mind and against the mandatory provisions of Punjab Police Rules. The plaintiff also served notice under Section 80 CPC upon the defendants before the filing of the suit against them. Upon put to notice, defendants appeared before the Court and filed written reply denying the allegations and claim of the plaintiff. Defendants admitted the appointment of the plaintiff as a constable and pleaded that he was aiding the extremists and his services were inimical to the sovereignty of India. It was also stated that inquiry was not possible and the services of the plaintiff were terminated under Article 311 (2) (b) of the Constitution of India without any inquiry. The impugned order was stated to have been passed according to the provisions of law. The legality of the notice under Section 80 CPC was also challenged. From the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the impugned order No. 14581-86 dated 3.3.1988 is null and void and not binding on the rights of the plaintiff? OPP RSA No.2082 of 1992 3 2. Whether no valid or legal notice under Section 80 CPC was served upon the defendants? OPD 3. Relief. The plaintiff appeared as PW-1 and tendered certain documents. The defendants on the other hand examined HC Amrik Singh as DW-1, Sawinder Singh MHC as DW-2 and produced service book Exhibit D-I and dismissal file Exhibit D-2. After hearing the learned counsel for both the parties, the learned trial Court decided issue No.1 in favour of the plaintiff and issue No.2 was decided in against of the defendants, and consequently decreed the suit of the plaintiff vide judgment and decree dated 3.4.1991. Feeling dissatisfied with the aforesaid judgment, the defendants-State preferred First Appeal against the judgment and decree dated 3.4.1991. The First Appellate Court dismissed the appeal vide judgment and decree dated 11.1.1992. Still feeling dissatisfied with the above said judgments dated 3.4.1991 and 11.1.1992, the defendants-State preferred the present regular second appeal. Following substantial questions of law have raised in the present case :- 1. Whether the procedure laid down under provisions of Rule 16.38 of the Punjab Police Rules, is necessary to be followed before dismissing an employee without conducting departmental inquiry under Article 311 of the Constitution of India in view of the facts and circumstances of the case ? The learned counsel for the appellants has contended that both the Courts below have given a finding that since provisions of Rule 16.38 RSA No.2082 of 1992 4 of the Punjab Police Rules (in short – the Rules ) has not been complied with and as such the dismissal order of the plaintiff is liable to be set aside. However, both the Courts below have ignored the basic principles of Article 311(2)(b) of the Constitution of India in which it has been mentioned that authorities can dismiss the employee by invoking Article 311(2)(b) of the Constitution of India as the plaintiff was found to be colluding with the extremists. It was not possible for the State Government to conduct inquiry under those prevailing circumstances. Learned counsel for the State has further submitted that Article 311(2)(b) is a substitute which gives powers to the State to dispense with inquiry. Hon'ble Apex Court in authority Union of India vs. Tulsi Ram and others AIR 1985 page 1416 held that Article 311 (b) is in the public policy since the discretion has been exercised by the State and as such judgments and decrees of both the Courts below are liable to be set aside and suit of the plaintiff is liable to be dismissed. It is further submitted that the Division Bench of Punjab and Haryana High Court in authority Boota Ram Constable vs. State of Punjab reported in 1980(2) SLR page 185 held that appropriate authority is under no obligation to serve copy of the inquiry on the delinquent official. Non-supply of reasons if otherwise recorded in accordance with law, shall not fatal. In reply to the above noted submissions, learned counsel for the respondent has supported the judgments and decrees of both the Courts below and have relied upon following authorities :- (1) Baljit Singh, Ex-Constable s/o Khazan Singh vs. Senior Superintendent of Police, Amritsar, 2008(2) RSJ 293 ; RSA No.2082 of 1992 5 (2)Surinder Kaur wd/o Sh. Labh Singh vs. State of Punjab through Director General of Police, 2008(1) RSJ 767 ; (3)Chief Security Officer & Ors. vs. Singasan Rabi Das 1991(2) SLR 140 ; (4)THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY AND ANOTHER VS. T.R.CHELLLAPPAN (1976) 3 Supreme Court Cases 190 : (5)Chandgarh Administration, Union Territory, Chandigarh and others vs. Ajay Manchanda etc. J T 1996 (4) S.C.113 ; (6) Jaswant Singh vs. State of Punjab and others 1991(1) SCC page 125 ; (7) Ashok Kumar vs. State of Punjab and others 1990 (2) RSJ 209; (9) Darshan Jit Singh Dhindsa vs. The State of Punjab and others 1993(2) page 650; (10) Sub Inspector Mohinder Singh Cheema vs. State of Punjab and others 1990 (2) RSJ 714. It is contended that Union of India vs. Tulsi Ram and others' case (supra) has been taken into account in Daljit Singh's case (supra). It is contended that the allegations against the plaintiff is that he colluded with the extremists but there is no material on the record to reach to that conclusion. It is contended that rather after the dismissal order was possessed on 3.3.1988 but in the service record of the plaintiff cash reward of Rs.500/- was given to the plaintiff on 22.3.1988 in recognition of his good work for eliminating two extremists in an encounter with the police RSA No.2082 of 1992 6 party. The said entry in the service record belies the case of the appellant altogether. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. The services of the plaintiff have been dispensed with under Article 311 (2)(b) of the Constitution of India. Both the Courts below have given concurrent finding that the competent authority should not have exercised the extra ordinary powers vested in it under Article 311 (2)(b) of the Constitution of India and authority should have provided an opportunity under provisions of Rule 16.38 of the Rules. The question arises whether that finding of fact can be interfered in the second appeal ? No doubt, under Article 311 (2)(b) of the Constitution of India, the competent authority empowered to dismiss or remove or to reduce him in the rank if satisfied for some reasons to be recorded by that authority in writing can dispense with the inquiry where it is no reasonable practice. The normal rule under Article 311 of the Constitution of India is that no Civil Servant should be dismissed or removed from any authority except after inquiry, in which he has been found to be charged and reasonable opportunity of being heard is given to him. In the case in hand the reasoning by the competent authority for dismissing the plaintiff- respondent is that the plaintiff is colluded with extremists and on that account the inquiry is not practicable. Both the Courts below have not accepted the contention raised by the appellant. The powers vested under Article 311 (2)(b) of the Constitution of India are extraordinary in nature RSA No.2082 of 1992 7 and that should be resorted to in rare case. The learned counsel for the respondent has raised an argument that on 22.3.1988 i.e. after few days of passing the order of dismissal, the plaintiff was given a Cash Reward of Rs.500/- on account of his recognition of good work in liquidating two extremists in encounter with the police party. Vide order dated 21.5.2010, this Court ordered that reason for which the inquiry was dispensed with in this case be definitely be available on the file. It would need to be perused to find out whether such reasons were justified or not. Learned State counsel sought time to obtain the relevant record. Learned State counsel could not produce any record rather the petitioner-respondent has produced photostat copy of the appreciation letter dated 22.3.1988. The authorities themselves have given cash reward to the plaintiff for eliminating extremists and as such the allegation that plaintiff is colluding with the extremist, is wrong on the face of it. So far as the authority Baljit Singh, Ex-Constable s/o Khazan Singh and others' case (supra) is concerned, that authority is distinguishable. In that case, the police officials have not only gone on strike but have also forced the others not to work and has taken active part or spreading the strike to interfere in the functioning of the State. In the present case, the allegation in the dismissal order for dispensing with the inquiry is that he is extremist and indulging in extremist activity and that reason could not be substantiate by the appellant. The reasoning given by the competent authority is that it is not practicable to hold an inquiry for passing the dismissal order Ex.P-1, have also not been substantiated on the RSA No.2082 of 1992 8 record. The effect of authority of the Apex Court in Union of India vs. Tulsi Ram and others' case (supra) has been dealt in authority Baljit Singh's case (Supra) relied upon by the learned counsel for the respondent. The facts in that case are similar to that of present case. The allegations levelled against him that he knew to number of extremists and providing shelter to some of them who are in favour of Khalisthan. This Court has held in the said authority that where some material was available before the competent authority in the form of preliminary inquiry, information etc, it would be the basis of forming an opinion that it was reasonable practical to hold regular inquiry but where no such material was available, the exercise held under Article 311 (2)(b) of the Constitution of India was held to be arbitrary. Similar view was taken by this Court in authority Surinder Kaur's case (supra). The Hon'ble Apex Court in authority Chief Security Officer & Ors. vs. Singasan Rabi Das's case (supra) held that dispensing with inquiry on the reasoning that securing other railway employees since they will expose these witnesses and make them ineffective in future and those witnesses were ineffective in the future and these witnesses were asked to appear as a confronted inquiry they were likely to suffer personal humiliation and insults and even their family member might become targets of acts of violence. These grounds do not constitute any justification for dispensing with the inquiry. In authority THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY AND Another's case (supra), the delinquent employee was convicted by Criminal Court but was released on probation. RSA No.2082 of 1992 9 His dismissal for misconduct was not upheld. In authority Ex. Constable Chhote Lal's case (supra), Hon'ble Apex Court held that opinion of the departmental authority that delinquent official being a police official could have influenced the witnesses and on that account the inquiry was dispensed with. The reasoning was held not justified. In authority Darshan Jit Singh Dhindsa's case (supra), the Division Bench of this Court In that case the services of the official was dispensed with on the allegation that he has linked with extremists. There was nothing on the record from which one can come to the conclusion that holding of an inquiry is or was not practical. The charge of petitioner having linked with extremists were vague. In the service record, there was commendation certificate for the courageous acts performed by the petitioner in curbing the terrorists activities. It was held that mere reproduction of the words of the statute are not sufficient to justify the finding of fact with respect to the satisfaction of the authority concerned under Article 311(2)(b) of the Constitution of India. This Court in authority Ashok Kumar's case (supra) held that it was obligatory on Superintendent of Police to report the matter to District Magistrate to decide whether any departmental inquiry or criminal proceedings should be held in case of allegations against the police official that he was mixing with the bad characters and smugglers. Provisions of Rule 16.38 of the Act, was not followed, no inquiry was held and it was held that order clearly outside the scope of Article 311(2)(b) of the RSA No.2082 of 1992 10 Constitution of India. Similar view was taken by this Court in authority SI Mohan Singh Cheema's case (supra). In authority Jaswant Singh's case (Supra), Hon'ble Apex Court has held that reasoning given for dispensing with the inquiry be substantiated. In view of the above discussion, the above said substantial question of law raised above stands determined against the appellants on the facts of the present appeal. Consequently, the appeal is without any merit and the same stands dismissed. Decree sheet be prepared. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 3rd, 2010 sv