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PETITIONER: JASWANT SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT27/11/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SHETTY, K.J. (J)

CITATION:  1991 AIR  385            1990 SCR  Supl. (3) 354  1991 SCC  (1) 362        1990 SCALE  (2)1152

ACT:     Constitution  of  India,  1950:  Article  311(2)  Second Proviso  clause (b)---Dismissal under--Dispensing  with  de- partmental enquiry--Reasoning-subjective satisfaction of the authority--Whether open to Judicial Review.     Service  Law: Civil Services: Punjab Police  Rules--Rule 16.2--Dismissal  from service--Dispensing with  departmental enquiry  contemplated under Article 311(2) of the  Constitu- tion--Reasonable     Practicability    of     holding     an enquiry--Absence  of  independent materials  justifying  the dispensation---Consequent  dismissal   order--Sustainability

HEADNOTE:     The  appellant, a Policeman, was dismissed from  service on the basis of certain allegations that he was  instigating his fellow police officials to cause indiscipline,  insubor- dination and disloyalty. The Assistant Inspector-General  of Police  who passed the dismissal order, dispensed  with  the departmental     enquiry     contemplated     by     Article 311(2)  of  the Constitution on the ground that it  was  not feasible  to  hold  an enquiry in view  of  the  appellant’s threats  that  he with the help of other  police  employees, would not allow holding of any departmental enquiry  against him and that he and his associates would not hesitate  cause physical injury to the witnesses and the enquiry officer.     Against  the  said dismissal order, the  appellant  pre- ferred  an appeal to the authorities which was of no  avail. He,  therefore, filed a writ petition before the High  Court challenging  the  dismissal  order. The  writ  petition  was dismissed  in limine. Aggrieved by the summary dismissal  of his  writ petition, the appellant preferred this  appeal  by special leave.     On  behalf  of the appellant it was contended  that  the action taken against him was clearly mala fide and  actuated by ulterior motives. It was also stated that on some earlier occasions the appellant was placed under suspension but  was reinstated  later.  Also  a case under Section  09  IPC  for attempt to commit suicide was registered against him and  he was  convicted. However, the appeal preferred by the  appel- lant was 355 allowed and he was acquitted. It was further contended  that

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there  was no justification for dispensing with the  enquiry contemplated  by Article 311(2) of the Constitution and  the reason given therefore was wholly imaginary. Allowing the appeal, this Court,     HELD:  1.  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. [363C]     Union of India & Anr. v. Tulsi Ram Patel & Ors., [1985)] Suppl. 2 SCR 131, relied on.     Divisional Personnel Officer v.T.R. Chellappan, [1976] 1 SCR 783, referred to.     2. Although clause (3) of Article 311 makes the decision ï7 3 finality  can  certainly  be tested in a court  of  law  and interfered  with if the action is found to be  arbitrary  or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the enquiry. [361G]     Satyavir Singh & Ors. v. Union of India & Ors., [1985] 4 SCC  252;  Shivaji Atmaji Sawant v. State of  Maharashtra  & Ors., [1986] 2 SCC 112; Ikrarnuddin Ahmed Borah v.  Superin- tendent  of Police, Darrang & Ors., [1988] Suppl.  SCC  663, relied on.     3.  The decision to dispense with the  departmental  en- quiry  cannot  be  rested solely on the ipse  dixit  of  the concerned authority. When the satisfaction of the  concerned authority  is questioned in a court of law. it is  incumbent on those who 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. [363E]     4.1. In the instant case, satisfaction was based on  the ground that the appellant was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his  superi- ors.  This allegation is based on his alleged activities  on April 3, 1981 reported by SHO. That report is not  forthcom- ing. It is no one’s contention that the said SHO was threat- ened. The third respondent’s counter also does not reveal if he had 356 verified  the  correctness  of the information.  To  put  it tersely, the subjective satisfaction recorded in paragraph 3 of the order is not fortified by any independent material to justify  the  dispensing with of the  inquiry  envisaged  by Article  311(2)  of the Constitution. On this  short  ground alone  the  impugned  order cannot  be  sustained.  [363G-H; 364A-B]     4.2.  Moreover, the earlier departmental enquiries  were duly conducted against the appellant and there was no  alle- gation  that  the  department had found  any  difficulty  in examining the witnesses in the said enquiries. It was incum- bent on the department to disclose to the Court, the materi- al  in existence on the date of passing the order,  but  the department could not disclose any such material. Besides  it is  difficult  to understand how the  appellant  could  have given the threats when he was hospitalised. [363F, F]     [This Court directed that the appellant should be  rein- stated in service forthwith, with all monetary benefits like pay,  allowances  etc.  available to him from  the  date  of dismissal.

JUDGMENT:

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