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PETITIONER: CHANDIGARH ADMINISTRATION, UNIONTERRITORY, CHANDIGARH & ORS.

       Vs.

RESPONDENT: AJAY MANCHANDA ETC.

DATE OF JUDGMENT:       26/03/1996

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

CITATION:  1996 SCC  (3) 753        JT 1996 (4)   113  1996 SCALE  (3)419

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T B.P. JEEVAN REDDY,J.      Leave granted. Heard counsel for the parties.      Clause (2)  of Article 311 of the Constitution of India declares that  no person  who holds  a civil  post under the Union or the State "shall be dismissed or removed or reduced in rank  except after  an  inquiry  in  which  he  has  been informed of  the charges  against him and given a reasonable opportunity of being heard in respect of those charges". The second proviso  to  clause  (2),  however,  specifies  three situations in  which the  requirements in  clause (2) do not apply. Clause  (b) of  the second proviso states that "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  an inquiry",  the enquiry and the opportunity provided by clause (2) can be dispensed with and punishment imposed  straightaway. Clause  (3) of Article 311 is really  a  continuation  of  clause  (b)  af  the  second proviso. Clause (3) says, "if, in respect of any such person as aforesaid,  a question  arises whether  it is  reasonably practicable to  hold such  an inquiry  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."      In  Union   of  India   v.  Tulsiram  Patel  (1985  (3) S.C.C.398), it  has been held by the Constitution Bench that the second proviso to Article 311 is based on public policy, is conceived  in public  interest and  is to be employed for public good. The Constitution Bench has pointed out that the paramount thing  to bear  in mind  is that  the second apply only where  the conduct  of the  government servant  is such that he  deserves the  punishment of dismissal or removal or reduction in  rank. It was further pointed out that once the above test  is satisfied and the conditions specified in the

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relevant clause  in the  second proviso  are satisfied,  the said proviso  is attracted  and it would not be necessary to comply with  the requirements  specified in clause (2). That was a  case where  a large  number of  railway employees had participated  in   an  illegal   All-India  strike  and  the Government had  responded by  ordering  their  dismissal  en masse.  The   action  was   held  to  be  justified  in  the circumstances. At  the same time, it was held that recording of  reasons   for  forming  the  requisite  satisfaction  is mandatory. Though  it is  not necessary  that those  reasons must find  a place  in the order of punishment, it was held, the authority  must produce  the same when called upon to do so by  the Court. The desirability of incorporating the said reasons in  the order imposing punishment was emphasized. It has been  held by  this Court  in Collector  of  Monghyr  v. Keshav Prasad  Goenka [1963  (1) S.C.R.98]  that  where  the statute requires  the recording of reasons, any action taken without recording  the reasons  is invalid. Here, of course, the requirement is contained in the constitutional provision itself.      It is  true that  clause (3)  of Article  311  declares further that when a question arises whether it is reasonably practicable  to   hold  an  inquiry,  the  decision  of  the competent authority  shall be  final on  that question.  But that does  not mean  that the  scope of  judicial review  is excluded altogether. In State of Rajasthan v. Union of India (1977 (3) S.C C.592), it was held that clause (5) of Article 356 (introduced  by  Constitution  38th  Amendment  Act  and deleted by  the 44th  Amendment  Act,  which  provided  that "notwithstanding  anything   in  this   Constitutions,   the satisfaction of  the President mentioned in clause (1) shall be final  and conclusive  and shall not be questioned in any court on  any ground")  does not  preclude  the  court  from entertaining the  challenge to  a notification under Article 356 (1)  on the  ground that  the requisite satisfaction was formed  malafide  or  that  it  was  founded  on  extraneous grounds, because  it was  pointed out,  in either  of  those cases, there  is in  law no  satisfaction as contemplated by clause (1) of Article 356. It has been held by this Court in S.R.Bommai v  Union of  India (1994  (3) SCC I) that even in the matter  of exercise  of power  under Article  356 of the Constitution,  the  satisfaction  of  the  President,  while undoubtedly subjective,  is not beyond the judicial scrutiny of the  courts under  Article 32 or Article 226, as the case may be.  The parameters  of judicial  review  enunciated  in S.R.Bommai have been held applicable in A.K.Kaul v. Union of India (1995  (4) S.C.C.73) to a matter arising under proviso (c) to  Article 311(2).  A reading of clauses (b) and (c) of the second  proviso would  establish that,  if at  all,  the power under  clause (b) is more circumscribed than the power under clause (c).      Until recently,  Punjab was  in the throes of a serious internal disturbance.  Armed groups  had created a situation where the State was obliged to deploy police and other armed forces in  substantial number  to suppress the militancy. In the very  nature of  the situation,  vast powers  had to  be veted in the police to deal with the emerging situations and they did ultimately overcome the separatist forces. They had to pay a substantial price in the process. A large number of policemen and  members of the para-military and armed forces paid with  their lives.  The nation feels grateful for their performance and  remembers  the  sacrifices  made  by  them. Unfortunately, the  transition to a peace-time situation has not proved  easy. A  few among  the police force yet want to lord it  over the citizenry. Some of them do not hesitate to

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indulge in  those very  acts of  which  the  militants  were accused of,  viz., extortion,  abduction and  worse. It  was natural in  such a situation that the higher and responsible officers of the police should try to curb these excesses. In appropriate  cases,  they  are  obliged  to  resort  to  the provision contained  in clause  (b) of the second proviso to Article 311(2)  to dispense  with the  services of  such bad elements without  an inquiry. The Chandigarh Administration, appellant in  these two appeals, says that acts and deeds of the two  respondents herein did call for the exercise of the extraordinary power  under proviso  (b)  to  Article  311(2) which it did invoke. It says that the Central Administrative Tribunal, Chandigarh was in error in interdicting its orders dismissing the respondents.      Ajay Manchanda,  respondent in  civil  appeal  [arising from Special  Leave Petition  (C) No.26926  of 1995]  was  a Sub-Inspector  of   Police  attached   to  Sector-11  Police Station. F.I.R.  No.125 was  registered in  the said  police station on  July 31,  1993 under Sections 420/468/471 of the Indian Penal  Code concerning  issuance/preparation of  fake passports.  The   respondent   was   associated   with   the investigation of  the  said  case.  In  the  course  of  the investigation, certain  persons including one Swaran Singh & Makhan Singh  were arrested  and remanded to police custody. Sometime later,  Makhan Singh  filed a  complaint before the higher police  officers stating that the respondent took him away from  his shop  on the evening of December ,7, 1993 and placed him in the lock up and that the respondent demanded a sum of  Rupees three  lakhs to release him and to delete his name from  the said case. Because of the pressure exerted by the respondent  and the threats held out by him, he said, he agreed to  pay a sum of Rupees one lakh, out of which Rupees fifty thousand  was paid through his brother). He complained that the  respondent was  pressing for  the  balance  Rupees fifty thousand.  On the  basis of  the said  complaint,  the Senior Superintendent  of Police [S.S.P.] ordered an enquiry to be  conducted by  Sri S.C.Sagar, Deputy Superintendent of Police [D.S.P.] (Central) who submitted a detailed report on March 11, 1994 affirming the contents of the said complaint. He also reported that the complainant and the witnesses were terrorized by  the respondent and on that account, they were not prepared  to proceed  with the  complaint  or  the  case further.  After   examining  the   report,  the  S.S.P.  was satisfied that  the respondent  had  extorted  Rupees  fifty thousand from  the said Swaran Singh & Makhan Singh and that he was  further demanding a sum of Rupees fifty thousand and that he had also threatened and intimidated Makhan Singh and the witnesses  with dire consequences. He was satisfied that the witnesses  were so  terrorized that  they expensed their inability to  pursue the matter. On the above basis, he held that it  was not  reasonably practicable  to hold an inquiry against  the   respondent  and   accordingly  dismissed  him invoking the  power under  Article 311(2)(b).  The  relevant portion of the order reads thus:           "Makhan Singh  & Swaran  Singh      made a  complaint which  was marked      to Sh.S.C.  Sagar DSP/Central,  who      submitted  detailed   report  dated      11.3.94 whereby  he found  truth in      the allegations  of Makhan  Singh &      Swaran  Singh   against  S.I.  Ajay      Manchanda. S.I.  Ajay Manchanda has      extorted   Rs.50,000/-    and   was      further demanding  Rs.50,000/- more      from the accused. He threatened the

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    accused to  such an extent that the      accused and  the witnesses  refused      to make  any statement  before  DSP      S.C.Sagar.           Shri   S.C.Sagar,    DSP   has      reported that  the witnesses are so      terrorized by  the threats  of S.I.      Ajay  Manchanda   that  they   have      expressed their inability to pursue      the matter  in the  court of law or      in any  other enquiry  against  him      and more  so they  refused to  make      any statement before him.           Whereas  after  going  through      the report  of DSP  S.C.Sagar,  the      complaint of  Makhan Singh & Swaran      Singh and  my oral  examination  of      Makhan Singh  Swaran Singh  it  has      been  proved   to   my   subjective      satisfaction   that    S.I.    Ajay      Manchanda has extorted, Rs.50,000/-      from accused  Makhan Singh @ Swaran      Singh and  he was further demanding      Rs.50,000/- more  and he threatened      him with  dire consequences and the      witnesses are  so  terrorized  that      they expressed  their inability  to      pursue the matter.           The  judicial  prosecution  is      not  ordered   in  the   case.  The      regular  departmental   enquire  is      also not  reasonably practicable in      view  of   threats  and   witnesses      inability to come forward to depose      against the delinquent official due      to    threats    of    elimination.      Therefore, I  dispense with regular      departmental enquiry in exercise of      power vested  in me  under  Article      311(2) (B)  of the  Constitution of      India."      The respondent challenged the order of dismissal before the  Central   Administrative  Tribunal,   Chandigarh.   The Tribunal found  that the  impugned order does not state that the respondent has given any threats to any of the witnesses or the complainant and that in fact there is no reference to the act  of terrorizing  by  the  respondent.  The  Tribunal opined that  merely because a police officer is the accused, it cannot  be presumed  that no  one will  come  forward  to depose  against   him.   It   observed   that   the   Senior Superintendent of  Police "has  taken the  matter in  a very casual manner  without giving due consideration and applying his dispassionate discretion in the issuance of the impugned order and  coming of  the conclusion  to dispense  with  the regular enquiry."      Kuldip singh,  respondent in civil appeal (arising from Special Leave  Petition (C)  25970 of  1995) was also a Sub- Inspector of Police under the Chandigarh Administration. One Sri  K.B.Raheja,   Advocate,  Ferozepur  complained  to  the S.S.P., Chandigarh that the respondent extorted an amount of Rupees nine hundred from him on the pretext of minor traffic violation while  he was  driving his  car on  the wrong side near cricket  stadium on  March  9,  1993.  An  enquiry  was ordered into he said complaint to be conducted by Sri Arvind Deep, SP  (Headquarters). The said officer reported that the

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respondent has  "committed  gross  misuse  of  his  official position and  extorted money  from an  innocent  victim  Sri Kulbhushan  Raheja  as  a  fine  for  violation  of  traffic regulation but he misappropriated a major part of the amount to himself  and misbehaved  with him  and also impounded the car". He reported that while the respondent collected Rupees nine hundred  from Sri  Raheja, he  issued a  receipt to him only for  Rupees four  hundred and  remitted only  a sum  of Rupees one  hundred into the Government account. He reported that while  in the  receipt issued to the said advocate, the amount collected  from him  was  mentioned  as  Rupees  four hundred both  in words  and figures,  the counterfoil of the said receipt  contained only  a figure of Rupees one hundred in  figures.   It  is   significant  to   notice  that   the S.P.(Headquarters) did  not report  that the  respondent had either terrorized  the complainant or the witnesses, if any. On this report, the S.S.P. made the following endorsement on 29th March, 1993:      "Enough and  sufficient indications      that witness  is being  pressurized      and  compelled   to  withdraw   his      statement. In  fact his  reluctance      to appear  before me  is clear vide      his  letter   dated  25.3.93.   His      mention  of  a  compromise  in  his      letter  dated   28.3.93  are  clear      indications of  no chance  of  free      deposition by  the witness  in  the      enquiry.           The  obvious   fact  is   that      witness has been won over under the      threat of  injury to his person and      property and  threat may  be to the      extent  of   elimination   of   the      witness,  the  delinquent  official      being in  uniform. The fact finding      enquiry conducted  by  SP/HQ  found      truth  in  the  allegation  in  the      complaint                 regarding      misappropriation of money.           The  judicial  prosecution  is      not  ordered   in  the   case.  The      regular  departmental   enquiry  is      also not  reasonably practicable in      view   of   the   letter   of   the      complainant. Therefore,  I dispense      with regular  departmental  enquiry      in exercise  of power  vested in me      under Article 311(2)(B)."      On the  same day,  i.e., 29th  March, 1993,  the S.S.P. passed an  order dismissing  the respondent from the service reporting  to   proviso  (b)   to  Article   311(2)-  Before proceeding further,  it is   necessary  it is  necessary  to noticed a  few  facts  for  a  proper  appreciation  of  the aforesaid endorsement made by the S.S.P on 29th March, 1993. It   appears that  after receiving the enquiry report of the S.P,(Headquarters) on  22nd March,   1993  the S.S.P. sent a message to  Sri Raheja,  Advocate to  come 2nd  meet him  in connection with  his complaint.   On  25th March,  1993  Sri Raheja  wrote   to  the   S.S.P.  that  on  account  of  his engagements in  the sessions courts, he would not be able to meet the S.S.P. in his office on 26th March 1993 and that he may be  called on  some other  day, preferably a Saturday or Sunday. lt  appears that  he was called again in response to which   Sri RaheJa  addressed  another  letter  (dated  28th

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March, 1993)  that since  a  compromise  has  been  effected between him  and the  respondent.  It is from this complaint against the  respondent.  It is from this second letter that the S.S.P,  seems to  have inferred  and concluded  that the advocate was being terrorized by the respondent and has been won over  by  holding  out  threats.    On  that  basis,  he concluded that  it was not reasonably practicable to hold an enquiry against the respondent.      When   the    matter   went    before    the    Central Administrative Tribunals Chandigarh, it allowed the original application filed  by the  respondent holding that there was no material before the S.S.P. on the basis of which he could have been  reasonably satisfied  that it  was not reasonably practicable to  hold  a  disciplinary  enquiry  against  the respondent. The  Tribunal noted  that the complainant is not an  ordinary  person  but  an  advocate  practising  in  the sessions courts  and that  there was no basis upon which the S.S.P. could  have arrived  at the  conclusion that the said advocate was  won over  by threats  or  that  he  was  being terrorized or  that he  was afraid  of being ’eliminated’ by the respondent.      Ms.Kamini, Jaiswal,  learned counsel for the appellants assailed the  reasoning and  conclusion of  the Tribunal  in both the  matters whereas  S/Sri  P.P.Rao  and.  D.V.Sehgal, appearing for  the respondents  respectively  supported  the reasoning and conclusion of the Tribunal.      We shall first take up the case against Ajay Manchanda. It was  Decembers, 1993.  The  complainant  Swaran  Singh  a &,Malkhan Singh  was one  of the  person as  accused in  the F.I.R.  He was arrested.  Admittedly, the respondent was one of the  officers investigating  the said case.  Swaran Singh complained to  the S.S.P.  of extortion  and the  continuing harassment by the respondent.  The S.S.P. ordered an enquiry through D.S.P.  who reported that the complaint is true. The D.S.P. reported  expressly that  the complainant  and  other witnesses "are so terrorized by the threats given by SI Ajay Manchanda that they have expressed their inability to pursue the matter  in the  court of  law or  in any  other  enquiry against him.  They are  so terrorized  that they  have  even explained their  inability  to  make  any  formal  statement before me.  Keeping in  view the  above  circumstances  when complainant and other witnesses are so terrorized and panic- striken that  they are  not  willing  to  come  forward  the departmental enquiry  shall also  not serve any purpose." On the basis  cf the said report, the S.S.P. was satisfied that it was  "not reasonably  practicable in  view of threats and witnesses inability  to come  forward to  depose against the delinquent  officer  due  to  threats  of  elimination"  and accordingly passed  the order  of dismissal. On the basis of the material  placed before  us -  we have  also perused the original record  which was  placed before  us  by  Ms.Kamini Jaiswal pursuant  to our  direction - it is not possible for us to  say that there were no reasonable grounds or relevant material before  the S.S.P.  for being satisfied that in the circumstances and  the situation  then obtaining, it was not reasonably  practicable   to  hold  a  disciplinary  enquiry against the respondent. No one would come forward to depose. The requirement of recording of reasons is also-satisfied in this case.  Indeed, the  dismissal order itself incorporates the reasons.  We have  also looked  into the  report of  the D.S.P. and the relevant record.      Sri  P.P.Rao,   learned  counsel  for  the  respondent, submitted that  there was  no relevant material on the basis of which  the S.S.P.  could form the requisite satisfaction. He submitted that only a minor penalty has been imposed upon

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the Station House Officer, Inspector Jagbir Singh who too is alleged to  have extorted  a sum  of Rupees fifteen thousand from the  said complainant  as against his demand for Rupees thirty thousand.  The learned  counsel complained  that  the respondent is being made the scapegoat for the wrong done by his superiors  and that  the action taken against him is not bonafide. Counsel further submitted that the ˜ who conducted the preliminary enquiry and submitted the report was himself involved in the alleged extortion. This, the learned counsel says, is  established from the statement of Sri Swaran Singh & Makhan Singh wherein he had stated after some days, Deputy Superintendent of Police Subhash Sagar himself called us and told Ajay  Manchanda and  Jagbir Singh  that my  remand will have to  be  extended  by  two  more  days.  On  that,  Ajay Manchanda and  Jagbir Singh  in a  satirical note  said that "Makhan to makhan laga chuke hai" (in other words, money has already been  taken from  him)." From  this  statement,  Sri P.P.Rao seeks  to infer  that D.S.P.  Subhash Sagar [who had conducted the  enquiry against  the respondent and submitted the enquiry  report] was  in the  know of and was a party to the entire  episode and,  therefore,  could  not  have  been appointed as  the enquiry officer against the respondent. He was in  the nature  of a  witness, it  is contended. Learned counsel further  submitted that  if the  complainant was  so terrorized, he would not have gone to the S.S.P. complaining of harassment  in writing  nor would  he have deposed before the D.S.P. (enquiry officer). The said facts learned counsel submitted,   negatived    the   plea   of   terrorising   or intimidation. The  learned Counsel finally submitted that in such matters  the courts/tribunals  are the  only protection for the  persons proceeded  against and  that unless  strict standards are  adopted for  judging the  "satisfaction", the government officials  will have  no protection  against  the arbitrary acts  and orders  of the superior officers who may succumb to  the temptation  of adopting the easier course of dismissing/removing/reducing  in  rank  the  lower  officers without holding  an enquiry instead of following the regular procedures prescribed by the rules.      We agree  with and  share the  concern of  the  learned contained in his last submission.  At the same times we have to judge  each case  on its own each case on its own merits, keeping in  mind the  relevant provisions  of Article 311(2) and the  interpretation placed  upon it  by  this  Court  in Tulsiram Patel.   We  must say  immediately that the learned counsel is  not right in inferring from the statement of the complainant extracted  hereinabove that  the D.S.P. (enquiry officer) was  also a  party to  the extortion. The statement extracted hereinabove does not establish that the said words were addressed to or were meant for the benefit of the D.S.P Moreover, the words "Makhan to makhan laga chuke hai" do not mean what the complainant thought they meant.  So far as the allegation against  Jagbir Singh is concerned, it is equally unacceptable.   Ms.Kamini  Jaiswal  has  produced  the  file relating to  the proceedings  taken against Jagbir Singh was not one  of extortion  from the  complainant or anyone else, but one  of  laxity  and  negligence  in  carrying  out  the investigation.   May be  that the  complainant had  made  an allegation against Jagbir Singh but there is no reference to it in  the D.S.P.(enquiry  officer’s) report  and we  do not know  the  circumstances  in  which  Jagbir  Singh  was  not proceeded against  for extortion.   This plea was not raised by the  respondent before  the Tribunal.  It has been raised for the  first time  before us.   Since  the  allegation  is factual in nature, we are not inclined to entertain the same at this  stage.   In any  event, as  stated above,  we  have

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perused the  file concerning  Jagbir  Singh  also,  and  are satisfied  that   the  charge   against  Jagbir   Singh  was altogether different.      We are,  therefore, unable  to agree  with Sri  P.P.Rao that there  was no  material upon  which the S.S.P. could be satisfied that  it is  not reasonably  practicable to hold a disciplinary enquiry  against the  respondent.   One has  to keep in  mind the  situation obtaining in Punjab in the year 1993 and  must appreciate the orders passed by the S.S.P. in that context.  We see  no reason  not to  believe  that  the aforesaid power  under clause  (b) was invoked by the S.S.P. for proper  reasons.   The comments  made against him by the Tribunal  to   the  effect   that  he   acted  casually,  is unacceptable besides  being uncharitable.  The Tribunal does not say that the respondent was responsible for intimidating and terrorizing  the complainant  and the witnesses.  It was an hypertechnical  objection.  The order read as a whole and the accompanying report of the D.S.P. and the endorsement of S.S.P. on  the report  do  clearly  establish  that  it  was respondent who  was intimidating  and terrorizing   the said persons.  The judgment and order of the Tribunal in O.A 366- Ch/94 is  accordingly set  aside and the appeal arising from Special Leave Petition (c) 26926 of 1995 us allowed.      No costs.      Now, coming to the case against Kuldip Singh, we are of the opinion  that the  conclusion arrived at by the Tribunal in this  matter needs no interference at out hands.  We have pointed out  hereinabove while  discussing the facts of this case  that   no  one  had  ever  stated  either  before  the S.P.(Headquarters) [preliminary  enquiry officer]  or before the S.S.P.  that he  has  been  terrorized,  intimidated  or threatened by  the respondent.  Only because the complainant Sri Raheja,  Advocate, mentioned  in his letter that he does not wish  to proceed  with the  complaint  in  view  of  the compromise  effected  between  him  and  the  respondent  by certain respectable  elders, the  S.S.P. inferred  that  the said complainant  has been  terrorized and  intimidated.  We are not satisfied that is the only inference that flows from the complainant’s  second letter.   The S.S.P. also does not say either  in the  order of  dismissal - or anywhere in the record -  that he  had information  to the above effect from some other source.  In such a situation, the inference drawn by the  S.S.P. cannot be said to be a reasonable or relevant one.   In short, there was absolutely no material upon which the S.S.P.  could be  satisfied that  it was  not reasonably practicable to  hold  a  disciplinary  enquiry  against  the respondent because  of the intimidation and threats held out by the  respondent to the complainant or other witnesses, if any.   Accordingly the  appeal arising  from  Special  Leave Petition (c) 26970 of 1995 is dismissed.      No costs.