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PETITIONER: KULDIP SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT:       16/09/1996

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) PARIPOORNAN, K.S.(J)

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P.JEEVAN REDDY J.      Leave granted.      This appeal arises from the judgement of the Punjab and Haryana High Court dismissing the writ petition filed by the appellant.   The appellant was a Head Constable of Police in the service  of the Punjab Government. He has been dismissed from service  without holding  an enquiry as contemplated by clause (2)  of Article 311 of the Constitution of India. The Senior Superintendent  of Police  [S.S.P.], Tarn  Taran  has invoked  proviso  (b)  appended  to  the  said  clause  (2), dispensing with  the enquiry  on the  ground that  it is not reasonable practicable  to hold  such an enquiry in the case of the  appellant. The  order of dismissal is dated February 21,  1992.   The  appeal  preferred  by  the  appellant  was dismissed by  the Inspector General of Police, Border Range, Amritsar on  June 22,  1993. The  order of dismissal and the appellate  order   affirming  it   were  questioned  by  the appellant by  way of  a writ  petition  in  the  Punjab  and Haryana High  Court which  too has  failed, as stated above. The order  of dismissal  passed by  the S.S.P.,  Tarn Taran, reads:      "Whereas  Head   Constable   Kuldip      Singh No.2374/TT  of this  district      has   been   found   indulging   in      activities   prejudicial   to   the      efficient functioning of the Police      force. He has very close links with      extremists  and   helping  them  by      providing information of the Police      Department.      And whereas  it is established that      Head   Constable    Kuldip    Singh      No.2374/TT is  mixed  up  with  the      extremists  and   had  been   found      responsible      for      supplying      information relating  to the Police

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    Department.      And  whereas  in  the  interest  of      maintenance  of   law  and  general      administration  and   retention  of      Head   Constable    Kuldip    Singh      No.2847/TT of  Police District tarn      Taran is considered undesirable      And whereas I am satisfied that the      circumstances of  the case are such      that   if    is   not    reasonably      practicable to  hold an  enquiry in      the  manner   provided  in   Punjab      Police  Rules   16.24  because   no      witness is likely to depose against      him due  to fear  of injury  of his      life.      Now,  therefore,   I  Ajit   Singh,      Senior  Superintendent  of  Police,      Tarn  Taran   in  exercise  of  the      powers vested  in me  by virtue  of      the  provisions   of   the   Punjab      Police Rules 16.1 read with Section      7  of  the  Police  Act,  1861  and      Article 311(2)  of the Constitution      of India,  do hereby  dismiss  from      service the  Head Constable  Kuldip      Singh No.2874/TT  with effect  from      21.2.1992."      On Appeal,  the  appellate  authority  found  that  the appellant did  have links  with the terrorists and was mixed up with  them and he was supplying secret information of the police department to terrorists which was creating hindrance in the  smooth functioning  of the  police  department.  The appellate authority  also found  that it  was impossible  to conduct an  enquiry against  the  appellant  because  nobody would come  forward to  depose against such "militant police official". The appellate authority also referred to the fact that  the   appellant  was   interrogated  in  a  case,  FIR No.210/90, and that during interrogation he admitted that he was having  links with  Major Singh  Shahid and  Sital Singh Jakhar and  was working  for them.  It further  stated in it order that the appellant was preparing to murder some senior police officers while taking advantage of his position.      The High  Court found  that the  reasons given  by  the S.S.P. for  dispensing  with the enquiry were acceptable and that the  satisfaction recorded  by him cannot be said to be unjustified or  unwarranted. The  High Court was also of the opinion  that  there  was  sufficient  material  before  the disciplinary authority to conclude that it was not expedient to hold a regular enquiry against the appellant.      In this  appeal, it  is  contended  by  Sri  R.S.Sodhi, learned counsel  for the  appellant, the  except the alleged admission/confession of the appellant made before the police officers during  interrogation in FIR No.219/90, there is no other material  upon which  the disciplinary authority could have concluded  that the  dismissal  of  the  appellant  was warranted. He submitted that such an admission/confession is inadmissible in  law and,  therefore, cannot  constitute the basis of  an order  of dismissal.  The learned  counsel also submitted  that   no  material   has  been   placed  by  the disciplinary authority  before the  Court upon  which it was satisfied that  it was  not expedient to hold a disciplinary enquiry against  the appellant as contemplated by clause (2) of Article  311. The  learned counsel  also brought  to  our notice that  though the  appellant was  prosecuted and tried

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before the  designated court,  Amritsar under Terrorists and Disruptive Activities  Act in  connection with  the crime in FIR No.219/90, he has been acquitted by the said court.      On the  other hand, the learned counsel for respondents supported the  reasoning and conclusion of the High Court as also the action of the authorities.      At our direction made on April 22, 1996 in this matter, the learned  counsel for the State has produced the original record relating  to the  appellant’s  dismissal  along  with translated  copies  o  the  relevant  documents.  The  first document placed  before us  by the  learned counsel  for the State is  the copy  of the  FIR No.219/90 dated November 24, 1990. It  is based  upon the  statement  of  Head  Constable Hardev Singh,  who was  posted as  gunman  with  Sri  Harjit Singh, Superintendent  of  Police  [S.P]  [Operations].  The F.I.R. speaks  of the  jeep [in  which  the  said  S.P.  was travelling along  with certain police personnel] being blown up killing the said S.P. and few other police officials. The next document  placed before us is the case diary pertaining to the said crime containing the statement of the appellant, Kuldip Singh.  In his  statement, Kuldip  Singh, did clearly state about  his association  with certain  named militants, the  plot   laid  by   them  to   kill  Sri   Harjit  Singh, Superintendent of  Police, Tarn  Taran by placing a bomb and the manner  in which they carried out the said plot. He also stated that  he and his militant companions planned to plant a bomb  in the  office of  S.S.P., Tarn  Taran but  that the police officers  came to know of the said plan, thus foiling their plan.  The learned counsel for the State of Punjab did concede   that    except   the    aforesaid   statement   of admission/confession of  the appellant,  there was  no other material on  which the  appellant could  be held  guilty  of conduct warranting dismissal from service.      Proviso (b)  to Article  311(2) says  that the  enquiry contemplated by  clause (2)  need not  be  held  "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 enquiry." Clause (3) of Article 311 expressly provides  that "if,  in respect of any such person as aforesaid,  the question  arises whether it is reasonably practicable to hold such enquiry as is referred to in clause (2), the  decision thereon  of the  authority  empowered  to dismiss or  remove such  person or  to reduce   him  in rank shall be  final." These  provisions have  been the  subject- matter of  consideration by  a Constitution  Bench  of  this Court in  Union of India v. Tulsi Ram Patel [1985 Suppl. (2) S.C.R.131]. It would be appropriate to notice a few relevant holdings in the said judgement:      "Before   denying    a   government      servant his constitutional right to      an enquiry, the first consideration      would be whether the conduct of the      concerned  government   servant  is      such as  justifies the  penalty  of      dismissal, removal  or reduction in      rank.    Once  that  conclusion  is      reached and the condition specified      in  the   relevant  clause  of  the      second proviso  is satisfied,  that      proviso becomes  applicable and the      government servant  is not entitled      to an  enquiry (p.205).....it would      also not  be reasonably practicable      to  hold   the  enquiry   where  an

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    atmosphere  of   violence   or   of      general      indiscipline       and      insubordination prevails, and it is      immaterial  whether  the  concerned      government servant  is or  is not a      party to  bringing  about  such  an      atmosphere.....The       reasonable      practicability   of    holding   an      inquiry 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  of the  disciplinary      authority by  Article 311(3) is not      binding upon  the court  so far  as      its power  of  judicial  review  is      concerned  (p.270).....   Where   a      government  servant  is  dismissed,      removed  or   reduced  in  rank  by      applying  clause  or  an  analogous      provision of  the service rules and      he approaches either the High Court      under Article  226  or  this  Court      under Article  32, the  court  will      interfere    on     grounds    well      established in law for the exercise      of  power  of  judicial  review  in      matters    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 like a court of      first appeal (p.273-274)."      The judgment  also stresses  that very  often a  person dealt with  under any  of the  three clauses  in the  second proviso to  Article 311(2)  has a  right of appeal where the correctness  of   the  decision  taken  by  the  appropriate authority will  be subject  to review-apart, of course, from the remedy of judicial review provided in the Constitution.      Now coming  to  the  main  contention  of  the  learned counsel for  the appellant,  it is true that a confession or admission of  guilt made  by a  person accused of an offence before, or while in the custody of, a police officer; is not admissible in  a court of law according to Section 25 and 26 of the  Evidence Act  but it  is equally  well settled  that these  rules  of  evidence  do  not  apply  to  departmental enquiries -  See State  of Mysore v. S.S.Makapur [A.I.R.1963 S.C.375]  and   State  of   Assam  v.   S.K.Das  [A.I.R.1970

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S.C.1255]- wherein  the only  test is  compliance  with  the principles of  natural justice-and,  of  course,  compliance with the  rules governing  the enquiries,  if any.  In  this context, it  is well  to remember  that in  India,  evidence recovered or  discovered as a result of an illegal search is held relevant  departing from  the law in the United States. We may  refer to  the following observations of the Judicial Committee of  the Privy Council in Kuruma v. The Queen [1955 A.C.197], quoted  approvingly by  the Constitution  Bench of this Court in Pooran Mal v. Director of Inspection [1974 (1) S.C.C.345 at 256].      "The test  to be  applied, both  in      civil and  in  criminal  cases,  in      considering  whether   evidence  is      admissible   is   whether   it   is      relevant to  the matters  in issue.      If it  is, it  admissible, and  the      Court is  not concerned with how it      was obtained."      In  this   sense,  if  the  appellant’s  confession  is relevant, the  fact that  it was made to the police or while in the  custody of the police may not be of much consequence for the  reason that  strict rules  of Evidence  Act do  not apply   to   departmental/disciplinary   enquiries.   In   a departmental enquiry,  it would  perhaps be  permissible for the authorities  to prove that the appellant did make such a confession admission  during the course of interrogation and it would be for the disciplinary authority to decide whether it is  a  voluntary  confession/admission  or  not.  If  the disciplinary authority  comes to  the  conclusion  that  the statement was  indeed voluntary  and true,  he may  well  be entitled  to   act  upon   the  said  statement.  Here,  the authorities say  that they were satisfied about the truth of the appellant’s  confession. There  is undoubtedly  no other material. There is also the fact that the appellant has been acquitted by  the designated  court. We  must say  that  the facts of  this case  did present us with a difficult choice. The fact,  however, remains  that the  High Court has opined that  there  was  enough  material  before  the  appropriate authority  upon   which  it   could  come  to  a  reasonable conclusion that it was not reasonable practicable to hold an enquiry as  contemplated  by  clause  (2)  of  Article  311. Nothing has been brought to our notice to persuade us not to accept the  said finding  of the  High Court. Even a copy of the counter  filed by  the respondents  in the High Court is not placed  before us. Once proviso (b) is held to have been validly invoked,  the government  servant concerned  is left with no  legitimate  ground  to  impugn  the  action  except perhaps to  say that  the facts  said  to  have  been  found against him  do not warrant the punishment actually awarded. So far  as the  present case  is concerned,  if one believes that the  confession made by the appellant was voluntary and true, the punishment awarded cannot be said to be excessive. The appellant  along with some other caused the death of the Superintendent of  Police and  a few other police officials. It must  be remembered  that we are dealing with a situation obtaining in  Punjab during the years 1990-91. Moreover, the appellate authority  has also  agreed with  the disciplinary authority that  there were  good grounds  for coming  to the conclusion that  it was not reasonably practicable to hold a disciplinary enquiry  against the  appellant  and  that  the appellant was guilty of the crime confessed by him. There is no allegation  of malafides  levelled against  the appellate authority. The  disciplinary and  the appellate  authorities are the  men on  the spot  and we  have no reason to believe

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that their decision has not been arrived at fairly. The High Court is  also satisfied  with the  reasons  for  which  the disiciplinary enquiry was dispensed with. In the face of all these circumstances,  it is  not possible  for us  to take a different view  at this  stage. It is not permissible for us to go  into the  question whether the confession made by the appellant is  voluntary or not, once it has been accepted as voluntary by  the disciplinary  authority and  the appellate authority.      The appeal  accordingly  fails  and  is  dismissed.  No costs.