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CASE NO.: Appeal (civil)  5226 of 2004

PETITIONER: Prithipal Singh

RESPONDENT: State of Punjab & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

       Application of the 2nd proviso appended to Clause (2) of Article 311  of the Constitution of India is in question in this appeal, which arises out of a  judgment and order dated 24th September, 2002 passed by the Punjab and  Haryana High Court in Regular Second Appeal No.3135 of 1996.  The said  question arises in the following circumstances :

       Appellant was appointed as an Assistant Sub-Inspector of Police (for  short, ’ASI’) on 17.3.1980.  He was put on probation.  On completion of his  period of probation, he was confirmed on 31.3.1989.  He was promoted to  the post of Sub-Inspector on 29.10.1985.  While he was discharging his  duties in the said capacity, on a charge of grave misconduct that he had let  off one smuggler, named, Lakhwinder Singh after accepting money, a  departmental proceeding was initiated against him.  He was dismissed from  services by an order dated 7.1.1988 of the Senior Superintendent of Police,  Tarn Taran.  The matter was carried in appeal and the Appellate Authority,  being the Deputy Inspector General of Police, set aside the said order of  dismissal and directed completion of the disciplinary proceeding, which had  already been initiated.  Pursuant to or in furtherance of the said direction,  Appellant was reinstated in service on 4.11.1988 and was posted at Sangrur.   The departmental proceeding that followed, the misconduct alleged against  Appellant was found to have not been proved.  The disciplinary proceeding  against Appellant was dropped by the Senior Superintendent of Police,  Sangrur, stating :

       "On completion of the Departmental Inquiry, the  Report was submitted to this Office.  I have carefully  examined the statements of prosecution witnesses,  defence witnesses and the Report of the Inquiry Officer.   On the basis of the evidence recorded the allegations  leveled against SI Prithipal Singh are not proved because  it has not been stated by any witness that SI Prithipal  Singh, without registering a case against Lakhwir Singh  had let off him after accepting money.  Besides this it has  been stated by Budha Singh, father of Lakhwir Singh that  neither his son was ever arrested by SI Prithipal Singh  nor he or his son Lakhwir Singh has ever paid any money  to him.  After considering the statements of prosecution  witnesses, defence witnesses and the Report of the  Inquiry Officer, I drop the proceedings against SI  Prithipal Singh as the allegations leveled against him are  not proved.  A copy of this Order be given to him."

       A notice was served upon Appellant purported to be in terms of Rule  16.28 of the Punjab Police Rules, 1934 (for short, ’the Rules’), asking him to

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show cause as to why the order dated 18.10.1988 passed by the then Deputy  Inspector General (’DIG’, for short), Border Range, Amritsar, setting aside  the order of dismissal from service passed by the Senior Superintendent of  Police, Tarn Taran on 7.7.1988, should not be set aside.  Appellant filed his  show cause, inter alia, stating that there was no valid reason for dispensation  of departmental inquiry and once it had been initiated, the same should have  been completed.  The Director General of Police, however, by an order dated  5.2.1990 set aside the said order dated 18.10.1988 passed by the DIG,  Amritsar, opining :

       ".....After due appraisal of the facts and  circumstances of the case, I do not see any force in the  various contentions raised by the S.I. in his written reply.   I further find that the impugned order passed by the Sr.  Supdt. of Police, Tarn Taran was proper, valid and based  on true facts and in accordance with law and did not  warrant any interference.  The conduct of the S.I. was  reprehensible and the holding of departmental enquiry  was rightly dispensed with by the competent authority  after recording valid reasons therefor.  I, therefore, hold  that the decision taken by the appellate authority setting  aside the impugned order of dismissal passed by the Sr.  Supdt. of Police, Tarn Taran is erroneous, unwarranted  and deserves to be quashed.

       In view of the above discussion, I hereby quash the  appellate order dated 18.10.1988 passed by the D.I.G. of  Police, Border Range reinstating S.I. Prithipal Singh  No.259/J in service.  In consequence the order passed by  the Sr. Supdt. of Police, Tarn Taran dated 7.7.1988 is  maintained resulting in the dismissal of S.I. Prithipal  Singh No.259/J from service with immediate effect."

       A suit was filed by Appellant herein, questioning the validity of the  said order in the Court of Senior Sub-Judge, Sangrur.  In the said suit the  defendant did not examine any witness.  The suit was decreed by the  Subordinate Judge, 1st Class, Sangrur by a Judgment and Decree dated  16.3.1995, inter alia, opining that as Appellant was exonerated of the  charges in the regular departmental inquiry, the question of dispensation of  the departmental proceeding against him did not arise.  On an appeal  preferred by the State, the Additional District Judge, however, reversed the  said Judgment and Decree, inter alia, holding that the Director General of  Police had enough material before him to enable him to pass the order  impugned in the suit.  The second appeal filed by Appellant thereagainst, as  noticed hereinbefore, has been dismissed by the Punjab and Haryana High  Court by reason of the impugned judgment.   

       Appellant was a Government servant.  He was entitled to the  protection as envisaged under Article 311 of the Constitution of India.  His  services could, therefore, be terminated only by an Authority competent in  that behalf; upon being informed of the charges and after giving him a  reasonable opportunity of hearing in respect thereof.  Clause (b) of the 2nd  Proviso appended thereto, however, provides for dispensation of such  enquiry where the Authority empowered to dismiss or remove an employee  or to reduce him in rank is satisfied that for reasons to be recorded in  writing, it is not reasonably practicable to hold such inquiry.   

       Indisputably, the Disciplinary Authority being Senior Superintendent  of Police, Tarn Taran was of the said view.  The said Authority, however,  did not, in his order dated 7.7.1988, record that the conditions precedent for  invoking the said provisions stood fulfilled.  He proceeded to exercise his  jurisdiction under the Rules without completion of the departmental  proceedings.  He opined that a regular inquiry, without there being any  material on record, as laid down in Punjab Police Rules, was not practicable  as the witnesses were not likely to depose against him due to the fear of

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injury to their lives.  No reason was assigned in support thereof.  Appellant  herein preferred an appeal thereagainst.  The learned Appellate Authority  noticed that summary of allegation had been served upon Appellant on  30.6.1988.  He was of the opinion that when the departmental enquiry was  initiated, it was incumbent upon the punishing authority to complete it and  the provisions of Rule 16.28 of the Rules read with Section 7 of the Police  Act, 1861 could not have been circumvented in such a manner.  It was  categorically held :

       "....As soon as a stigma is attached against the  Govt. Employee, then it is necessary to have a probe  made into it.  If the departmental enquiry had not been  ordered then the dismissal order of SSP was not open to  challenge and in this manner, the dismissal order is  illegal, void and not sustainable."

       It is not in dispute that pursuant thereto or in furtherance of the said  order dated 18.10.1988, Appellant was reinstated in service.  Thereafter the  departmental proceedings were held and therein the charges, having not been  proved, were dropped.  Once in the disciplinary proceedings Appellant was  exonerated of the charges framed against him, the question of taking  recourse to Clause (b) of the 2nd Provision appended to Clause (2) of Article  311 of the Constitution of India did not and could not arise.  It is unfortunate  that although, the same had been duly noticed by the learned Trial Judge, it  failed to receive due attention of the Appellate Court as also  of the High  Court.  The very purpose, for which the said provision was enacted, had lost  its relevance once a departmental proceeding was held.  The Director  General of Police, while passing the order dated 5.2.1990, furthermore failed  to take into consideration that in an appeal preferred by the delinquent from  such an order it was obligatory on the part of the Disciplinary Authority to  produce all records to show that there were enough materials before the  Disciplinary Authority to arrive at a positive and categorical finding that in  the departmental proceeding the witnesses were not likely to depose.  It was  not done.  Resultantly, the entire proceeding became vitiated in law.    

       This Court in Union of India & Anr. etc. vs. Tulsiram Patel etc.  [AIR 1985 SC 1416], held that  

       "It is not necessary that a situation which makes  the holding of an inquiry not reasonably practicable  should exist before the disciplinary inquiry is initiated  against a government servant. Such a situation can also  come into existence subsequently during the course of an  inquiry, for instance, after the service of a charge-sheet  upon the government servant or after he has filed his  written statement thereto or even after evidence has been  led in part. In such a case also the disciplinary authority  would be entitled to apply clause (b) of the second  proviso because the word "inquiry" in that clause  includes part of an inquiry. It would also not be  reasonably practicable to afford to the government  servant an opportunity of hearing or further hearing, as  the case may be, when at the commencement of the  inquiry or pending it the government servant absconds  and cannot be served or will not participate in the  inquiry. In such cases, the matter must proceed ex parte  and on the materials before the disciplinary authority.  Therefore, even where a part of an inquiry has been held  and the rest is dispensed with under clause (b) or a  provision in the service rules analogous thereto, the  exclusionary words of the second proviso operate in their  full vigour and the government servant cannot complain  that he has been dismissed, removed or reduced in rank  in violation of the safeguards provided by Article 311(2).

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The second condition necessary for the valid  application of clause (b) of the second proviso is that the  disciplinary authority should record in writing its reason  for its satisfaction that it was not reasonably practicable  to hold the inquiry contemplated by Article 311(2). This  is a constitutional obligation and if such reason is not  recorded in writing, the order dispensing with the inquiry  and the order of penalty following thereupon would both  be void and unconstitutional."   

       The said dicta was affirmed by a Three Judge Bench of this Court  Chief Security Officer & Ors. vs. Singasan Rabi Das [(1991) 1 SCC 729],  stating :

".......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  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 that enquiry  was that it was considered not feasible or desirable to  procure witness of the security/other railway employees  since this will expose these witnesses and make them  ineffective in the future.  It was stated 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."

       [See also Tarsem Singh vs. State of Pubjab & Ors. (Civil Appeal  No.1489 of 2004), disposed of by this Court on 25th January, 2006.]      

       Holding of a departmental proceeding is the rule.  The 2nd Proviso  appended to Article 311(2) of the Constitution of India provides for an  exception.  It is a trite law that existence of such an exceptional situation  must be shown to exist on the basis of relevant materials.  In this case, even  such a question did not arise as a departmental proceeding had been held and  the appellant was not found guilty therein.  Once he was exonerated of the  charges, the question of issuing an order of dismissal against him and that  too, upon dispensation of a formal inquiry, did not arise.  The judgment of  the High Court as also of the 1st Appellate Court are set aside and that of the  trial court is restored.  In the peculiar facts and circumstances of case  Appellant shall be entitled to the costs, which is quantified at Rs.10,000/-.