Punjab-Haryana High Court
Constable Harinder Kumar vs State Of Punjab And Another on 24 October, 2013
C.W.P. No.13847 of 1995 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No.13847 of 1995.
Decided on:-October 24, 2013.
Constable Harinder Kumar. .........Petitioner.
Versus
State of Punjab and another .........Respondents.
CORAM: Hon'ble Mr. Justice Dr. Bharat Bhushan Parsoon.
*****
Argued by:- Mr. S.K.Sharma, Advocate for the petitioner.
Mr. Yatinder Sharma, Additional Advocate General, Punjab for the respondents.
Dr. Bharat Bhushan Parsoon, J By filing this petition, petitioner Constable Harinder Kumar seeks quashing of order (Annexure P-6) vide which he was dismissed from service on 6.3.1995. Subsequent relief of continuity of service with all consequential benefits, has also been sought.
2. Case of the petitioner put in brief is as under:
The petitioner joined as a Constable on 24.2.1982. For commendable services rendered by the petitioner, he was issued Commendation Certificates (Annexure P-3 to P-5). For his excellent performance at the ante-terrorist front, the petitioner was brought on C-II list vide office order dated 13.1.1993. After taking a day's leave on 12.4.1994, he went to Haridwar to attend death anniversary of his father. On 15.9.1993, Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document C.W.P. No.13847 of 1995 -2- consequent upon receiving message from Superintendent of Police, (Operation), Sangrur, SHO, Police Station, Dhuri had rounded up four ladies, namely, Smts. Beebo, Gamo, Keeko and Gaijo. The petitioner with assistance of other police personnel had rounded up Smt. Gaijo out of the four ladies.
Later on, same Smt. Gaijo was caught by the police of Haridwar. She saw the petitioner, when some ladies including Smt. Gaijo were being arrested by the police. Smt. Gaijo then named the petitioner as one of their accomplice. Sequelly, the petitioner was also falsely implicated and arrested by Haridwar police in pursuant to memo (Annexure P-2). As a result, the petitioner was placed under suspension. He then faced criminal trial in FIR No.432/94 under Sections 398 and 401 IPC. Without holding enquiry, vide order dated 6.3.1995 (Annexure P-6), the petitioner was dismissed from service.
3. Challenging his dismissal order to be illegal, ultra-vires the Constitution of India, malafide, null and void and against the principles of natural justice, the petitioner has sought its quashing. Taking plea of false implication at the hands of Smt. Gaijo who had been rounded up by him on the orders of Superintendent of Police (Operation), Sangrur in the discharge of his duties, it is claimed that dispensing with an enquiry for dismissal of service of the petitioner was neither in consonance with the provisions of law nor was factually correct. It is averred that order of dismissal was passed on the note of a subordinate official without applying his mind by the Senior Superintendent of Police, Sangrur which resulted in miscarriage of justice to the petitioner.
4. The respondents contested the petition and denied the version of the petitioner, claiming, that father of the petitioner had died on 19.8.1970 and thus the death anniversary could not fall on 12.4.1994. It was explained that the petitioner joined a gang of chain-snatchers and pick-pocketeers of Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document C.W.P. No.13847 of 1995 -3- Sainsi tribe hailing from District Sangrur and Patiala and then visited Haridwar on the day of Baisakhi for commission of the crime. It is averred that the petitioner and other accused were apprehended while attempting to commit robbery and sequelly, a case under Section 398 and 401 IPC read with Section 25 of the Arms Act, 1959 was registered vide FIR (Annexure R-2). Claiming entire version of the petitioner to be a concocted one, dismissal of the petitioner from service is claimed to be valid, legal and constitutional. With these averments, dismissal of the petition has been sought.
5. In replication preferred by the petitioner, earlier stand in the petition has been reiterated. It is averred that due to start of new Samvat on Baisakhi day, it is taken to be a pious day and the petitioner had gone to Haridwar for death anniversary of his father to offer Pind etc. It is explained that sons and grandsons seek blessings of their ancestors on Baisakhi day in Haridwar by offering Pinds etc. for them. Strongly denying that he had joined gang of chain-snatchers etc., the petitioner has refuted the allegation of his involvement in commission of the stated crime and has asserted that he has already been discharged in one case on 23.11.1998 vide order (Annexure P-8), whereas in the other case, he has been acquitted on 30.5.2001 vide order (Annexure P-9). Asserting that the impugned order is against the provisions of the Police Rules and the Constitution of India, earlier stand has been reaffimred by him in the replication.
6. Learned counsel for the parties have been heard while going through the paper book.
7. Claiming dismissal of the petitioner from service on 6.3.1995 vide order (Annexure P-6) without conducting a departmental enquiry as also by ignoring more than 15 years of illustrious service punctuated by Commendation Certificates (Annexures P-3 to P-5) and also the fact that name of the petitioner is on C-II list because of his meritorious service on Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document C.W.P. No.13847 of 1995 -4- anti-terrorist duty, it is urged that he was wrongly and illegally dismissed from service. It is further contended that the petitioner had also been discharged in one criminal case on 23.11.1998 vide order (Annexure P-8) whereas in the other cse, he had been acquitted on 30.5.2001 vide order (Annexure P-9). It is strongly canvassed that a mere saying that the witnesses who were co-accused with the petitioner, would not give evidence against the delinquent in the departmental enquiry, is not sufficient to observe in the impugned order . It is urged that order of dispensing services of the petitioner without holding regular departmental enquiry by invoking Article 311 (2) (b) of the Constitution of India and Rule 16.38 of the Punjab Police Rules, 1934 and without there being any sufficient material and reasons for reaching the conclusion that holding of such regular enquiry would be impracticable, is illegal. Support has been sought from judgment of this Court in Gurmit Singh Versus State of Punjab and others 2011 (1) S.C.T. 41. In the cited authority, taking cognizance of the facts (therein) that the petitioner, a police official had been named as an accomplice by one of the accused during the course of interrogation and then was departmentally dealt with, it was held as under:
"Apparently, there was no justification to dispense with the enquiry. The reasons stated in the order are too general and vague. These allegations can be imputed to any person. It is very easy to say that the delinquent employee had links with smugglers. It is in this context, the Courts have always held that the enquiry should not be lightly dispensed with."
8. Contention of the learned counsel for the petitioner consistently is that not only his right of defence has been annihilated but he has also been labelled as a criminal. On the other hand, consistent case of the respondents is that involvement of the petitioner in commission of the stated crime needed nothing more to be established in the face of registration of an FIR against him.
9. To adjudicate rival claims of the parties, following question Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document C.W.P. No.13847 of 1995 -5- arises for consideration of this Court:
"Whether dispensing with a regular enquiry by the punishing authority by taking shelter under Article 311 (2) (b) of the Constitution of India in the facts and circumstances of this case was justified?"
10. For answering this question, impugned order (Annexure P-6) is required to be gone through. Perusal of this order reveals that on mere registration of two FIRs No.432/94 interalia under Section 401 IPC and No.434/94 under Section 25 of the Arms Act, 1959 at Police Station, Haridwar against the petitioner, he was dismissed from service without holding any departmental enquiry. For not holding a departmental enquiry and justifying his dismissal from service, following grounds have been taken in the impugned order (Annexure P-6):
"And whereas, I am satisfied that the above said activities of Constable Harinder Kumar No.699/SGR are highly prejudicial and detrimental to the police working as well as against the public interest. Therefore, this constable is not considered fit to be retained in the police force.
And whereas, I am further satisfied that it is not reasonably practicable to hold a departmental enquiry under the Punjab Police Rule 16.24 against this constable as in such departmental enquiry, if instituted the said pick-pockets and chain-snatchers are not likely to depose against him on account of their links with him."
11. No doubt, when Rule 16.1 of the Punjab Police Rules, 1934, Section 7 of the Police Act, 1861 and Article 311 (2) (b) of the Constitution of India are read co-jointly, power of dismissal of an employee by a competent authority inheres in him but justiciability by the courts of the grounds put forth for dispensing with a regular departmental enquiry, is not ousted.
12. Merely because Senior Superintendent of Police, Sangrur formed an opinion that if departmental enquiry was instituted, associates of Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document C.W.P. No.13847 of 1995 -6- the petitioner, who were also cited as an accused in the FIRs, were not likely to depose against him, was not enough.
13. Perusal of paper book reveals that during investigations of two FIRs No.432/94 under Section 401 IPC and No.434/94 under Section 25 of the Arms Act at Police Station, Haridwar, evidence was collected by the investigating officer. Witnesses had been named therein. Author of the impugned order merely looked at the list of the accused therein but did not go into the aspect of availability of witnesses who could conveniently come forward for making their statements qua commission of the crime, if any. Sequelly, it was not a 'gone case' where departmental enquiry was either impracticable nor was going to be of no use.
14. In any case, the investigating agency during the trial was also to prove its case by leading evidence. This aspect was completely ignored by the punishing authority in the impugned order. It rather transpires that the impugned order was passed in undue haste and that too without waiting for the outcome of the investigations muchless trial and merely on registration of the FIRs (in which the petitioner was on bail) he was suspended, departmental enquiry was dispensed with and without providing any hearing to the petitioner, he was shown the exit gate ignoring his Commendation Certificates (Annexures P-3 to P-5) and his placement in the C-II list.
15. Neither the fact of illustrious career of the petitioner nor effect and sweep of order dated 7.1.1993 of Deputy Inspector General of Police, Patiala Range, Patiala has been disputed. Relevant portion of order dated 7.1.1993, for ready reference, is appended as below:
"In recognition of his valuable services rendered to the Government for the maintenance of law and order and on account of excellent performance at the anti-terrorist front name of Constable Harinder Kumar No.699/SGR it hereby approved for admission to promotion list GIR exempted with immediate effect.Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document C.W.P. No.13847 of 1995 -7-
Sd/-
Deputy Inspector General of Police, Patiala Range, Patiala.
Copy of order No.536/A-2 dated 7.1.1993 from Dy. Inspector General of Police, Patiala Range, Patiala to Sr. Superintendent of Police, Sangrur."
16. It may not be out of place to mention that the petitioner has been discharged in case FIR No.432/94 under Sections 398 and 401 IPC vide order dated 23.11.1998 (Annexure P-8) and had been acquitted in FIR No.434/94 under Section 25 of the Arms Act vide order dated 30.5.2001 (Annexure P-9). In a case reported as Baljit Singh Vs. Senior Superintendent of Police, Amritsar 2008 (1) S.C.T. 686, this Court rejecting the reasons recorded for dispensing with holding of departmental enquiry, as based on conjectures and surmises, had quashed the dismissal order. In the cited authority, observing that petitioner in the said case was known to number of extremists and had provided shelter to some of them, dispensing with enquiry, the police authorities had dismissed him from service. It may be pointed out that in somewhat similar circumstances as are available in this case, claim of the department against the said petitioner was that he was having links with extremists. But such justification was not held to be sufficient for dispensing with departmental enquiry. In this regard, reference has also been made to a Division Bench judgment of this Court in Darshan Jit Singh Dhindsa Vs. State of Punjab 1993 (1) S.C.T. 338.
17. It may be noticed here that mere reproduction of the words of the statute for justification of non-holding of departmental enquiry, is not sufficient to justify finding of a fact with respect to the satisfaction of the authority concerned.
18. Punishing authority statutorily as also on the pedestal of principles of natural justice is bound to follow cardinal principles of natural justice which cannot be dispensed with merely on one pretext or the other. It Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document C.W.P. No.13847 of 1995 -8- cannot be lost sight of the fact that when right of defending himself in a departmental enquiry is lost to a delinquent, duty of the punishing authority becomes even further onerous to strictly follow the legal mandate while justifying dispensing with regular departmental enquiry.
19. Learned counsel for the respondents has vehemently urged that dispensing with the enquiry requires merely subjective satisfaction of the punishing authority and nothing more than this. This stand of the respondents is not wholly correct. In Jaswant Singh Vs. State of Punjab and others 1991 (1) S.C.T. 125, wherein it was held by the Hon'ble Supreme Court of India that there is to be subjective satisfaction of the punishing authority, it is also mentioned in no uncertain terms that such satisfaction has to be supported and informed by independent reasons and material. In a Division Bench judgment of this Court in Lalji Dass Vs. State of Punjab and othrs 1996 (1) S.C.T. 821, it was held that enquiry cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely to avoid it. In the cited authority, finding it to be a case of non-application of independent mind for dispensing with the enquiry, impugned order of termination was quashed. In Arjan Singh Vs. State of Punjab and others 1996 (1) S.C.T. 597 (P&H), where holding of enquiry was dispensed with on the plea that it will not be reasonably practicable and possible, it was found that if the charges could be tried in open Court, it could not be said that it was not practicable to hold departmental enquiry which is only between the delinquent and the enquiry officer. Impugned order was consequently quashed.
20. In view of the detailed discussion made earlier, assertion of the learned counsel for the respondents citing Union Territory, Chandigarh Versus Mohinder Singh 1997 (2) C.L.R. 399 (SC) that decision of the authority concerned to dismiss an employee without holding an enquiry is final, in facts and circumstances of case prevalent in this authority, where the Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document C.W.P. No.13847 of 1995 -9- punishing authority had found that the witnesses in fact were not in a position to come forward to give evidence because of the terror of the delinquent especially keeping in view the prevalent situation in the State, it was held that in such a situation, it could not be said that dispensing with the enquiry was not justified. Circumstances of the case in hand are entirely different as has been noticed earlier in detail. For similar reasons, authority titled as Head Constable Swaran Singh Vs. State of Punjab and another 1989 (4) SLR 171 (P&H), cited by the respondents, with due deference, also is not applicable and does not give support to the cause of the respondents.
21. In conclusion, it is found that neither the impugned order (Annexure P-6) manifests due application of the mind to the facts and circumstances of the case nor provides material and circumstances for dispensing with the departmental enquiry. It rather has stultified the cardinal principles of natural justice of providing of opportunity of hearing to the petitioner. In short, it was a fit case in which regular departmental enquiry could conveniently be held against the petitioner.
22. Sequelly, impugned order (Annexure P-6) being illegal and thus untenable, is quashed. Consequently, the respondents are directed to reinstate the petitioner into service within one month of the receipt of certified copy of this judgment. If with passage of time, he has already crossed the age of superannuation, then deeming him to be in service, computation would be made for payment of all monetary benefits flowing to him as a necessary consequence. Arrears would be paid with interest @ 9% per annum within two months. If the payment is not made within two months, interest would be charged @ 12% per annum.
23. Notwithstanding the fact of discharge in FIR No.432/94 (Annexure P-8) and acquittal in FIR No.434/94 (Annexure P-9), there is no prohibition of conducting of regular departmental enquiry (under the relevant rules) to go into the allegations against the petitioner, of course, Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document C.W.P. No.13847 of 1995 -10- keeping in view the time frame and law of limitation, if any, provided thereunder.
24. The writ petition is allowed to the extent as indicated above.
(Dr. Bharat Bhushan Parsoon) Judge October 24, 2013 'Yag Dutt'
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Yag Dutt 2013.10.28 15:15 I attest to the accuracy and integrity of this document