Punjab-Haryana High Court
Ramesh Chand vs The State Of Punjab And Others on 3 September, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.20943 OF 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.20943 OF 2012
DATE OF DECISION: SEPTEMBER 03, 2013
Ramesh Chand .......Petitioner
Versus
The State of Punjab and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.AK Walia, Advocate for the petitioner.
Mr.Pankaj Mulwani, Deputy Advocate General, Punjab.
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TEJINDER SINGH DHINDSA, J.
Challenge in the instant writ petition is to the order dated 12.10.2012, Annexure P1, passed by the Superintendent, Headquarter Jail, Patiala whereby the extreme penalty of dismissal has been imposed upon the petitioner who was holding the post of Head Warder, having invoked the provisions of Article 311(2)(b) of the Constitution of India.
2. It would be pertinent to notice at the very outset that even though a departmental remedy of appeal would be available to the petitioner against the order passed by the Punishing Authority, yet this Court has proceeded to examine the validity of Malik Sushama Rani 2013.09.10 12:35 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20943 OF 2012 2 the impugned order in view of the fact that such order, in itself, recites that it has been passed upon approval having been already granted by the higher authority i.e. Additional Director General of Police (Jails), Punjab.
3. Brief facts are that the petitioner was working as Head Warder, Central Jail, Ludhiana and was on duty on the intervening night of 19/20.9.2012. Six inmates of the Jail including one life convict and five undertrials managed to break open the wall of the Jail Cell and escaped. One of the undertrials was apprehended on the same very night and the five other inmates were arrested on the next day at Railway Station Dhandari Kalan, Ludhiana. The petitioner was placed under suspension on 20.9.2012 and a preliminary enquiry was conducted into the matter by the Deputy Inspector General of Police, Jails, Punjab. It is in relation to such incident that occurred on the night of 19/20.9.2012 that a view has been taken that the petitioner has not performed his duties in a proper manner and was grossly negligent and the impugned order of dismissal has been passed by dispensing with the regular departmental enquiry in terms of Article 311(2)(b) of the Constitution of India.
4. Learned counsel appearing for the petitioner has assailed the impugned order primarily on the ground that there was no material before the competent authority which would justify the dispensing with of a regular departmental enquiry and as such, there has been a complete negation of the principles of natural justice. Learned counsel would further argue that the petitioner had joined service in the year 1984 and had an Malik Sushama Rani 2013.09.10 12:35 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20943 OF 2012 3 unblemished record of service which has not even been taken into account while imposing the extreme penalty of dismissal.
5. Per contra, learned State counsel would refer to the joint written statement filed on behalf of respondents 1 to 5 to contend that the petitioner was on duty at the Cell Block and B- Class Ward on the night in question. At about 1.20 a.m., Supervisor Prisoner Lakhbir Singh made a round of the Cell Block and Chakkis. He found that an inmate, namely, Ram Kumar had made a hole in Chakki No.8 and was escaping. At such juncture, another Supervisor Prisoner Devinder Singh also raised an alarm that some other inmates were also making good their escape. It is contended that the petitioner inspite of the alarm having been raised did not reach the spot till 20 minutes thereafter at the Cell Block. It is further urged that the petitioner being the Head Warder did not make the round of Cell Block in time and has been grossly negligent in the performance of his duties. A reference has also been made to a preliminary enquiry having been conducted by the Additional Director General of Police (Jails) Punjab and a report having been furnished, which stands appended as Annexure R1/T along with the written statement. Passing of the impugned order has been justified in the light of such preliminary enquiry report.
6. Learned counsel for the parties have been heard at length.
7. It is not in dispute before this Court that in awarding the punishment of dismissal from service upon the petitioner, no regular departmental enquiry was held purportedly on the ground Malik Sushama Rani 2013.09.10 12:35 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20943 OF 2012 4 that the same could be dispensed with under proviso (b) appended to clause (2) of Article 311 of the Constitution of India, which reads in the following terms:
311 Dismissal, removal or reduction in rank of "311 311. persons employed in civil capacities under the Union State. - (1) No person who is a member of a civil or a State service of the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid 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:
[Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply.....]
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is Malik Sushama Rani 2013.09.10 12:35 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20943 OF 2012 5 satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such 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."
8. The scope of Article 311(2)(b) of the Constitution of India came to be dealt with by the Hon'ble Supreme Court in the case of Jaswant Singh v. State of Punjab reported as AIR 1991 SC 385 and it was held as follows:
"The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authorities. 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 and caprice of the concerned Officer."
9. Even the scope of judicial scrutiny in such matters was considered in Jaswant Singh's case (supra) wherein noticing an Malik Sushama Rani 2013.09.10 12:35 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20943 OF 2012 6 earlier judgment of the Constitution Bench in Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398, 398 it was observed as follows:
"Although clause (3) of that article makes the decision of the disciplinary authority in this behalf final, such finality can certainly be tested in a Court of law and interfered with, if, the action is found to be arbitrary or malafide or motivated by extraneous considerations or merely a ruse to dispense with enquiry".
10. In the present case, a perusal of the impugned order dated 12.10.2012, Annexure P1, would, in itself, reveal that the Punishing Authority has dispensed with the regular departmental enquiry taking a view that the same is not necessary.
necessary Under Article 311(2)(b) of the Constitution of India, the departmental enquiry can be dispensed with only if the authority concerned is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold an enquiry. It is not laid down in the provision that the Punishing Authority can simply pass an order that there is no need to hold an enquiry. These are two different things. One laying down, that it is not reasonably practicable to hold the enquiry, and the other that there is no necessity to hold the enquiry. The impugned order does not disclose the reasons for dispensing with the departmental proceedings. No material has been placed or disclosed either in the impugned order or before this Court on the basis of which an opinion was formed that it was not reasonably practicable to hold a departmental enquiry against the petitioner. Rather a view has been taken that the departmental enquiry was not necessary. Malik Sushama Rani 2013.09.10 12:35 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20943 OF 2012 7 The Punishing Authority has clearly proceeded in utter dis-regard of the mandate of Article 311(2)(b) of the Constitution of India.
11. There would be yet another aspect of the matter. Under Article 311(2)(b) of the Constitution of India, it is the authority empowered to dismiss or remove a person to be satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to hold the departmental enquiry. For such provision to be invoked, it would be obligatory for the competent authority to itself apply its mind and thereafter to take a view to dispense with the departmental enquiry for reasons to be recorded in writing. In the present case, the impugned order has been passed in view of an approval having been received by the Superintendent, Headquarter Jail, Patiala i.e. the Punishing Authority from the higher authority i.e. the Deputy Inspector General, Jails, Punjab. There has been no independent application of mind in this case by the Punishing Authority. The impugned order has been passed in a mechanical fashion by merely reciting the power under Article 311(2)(b) of the Constitution of India. It is well settled that a constitutional right conferred upon a delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid the holding of enquiry. The impugned order, as such, cannot sustain.
12. For the reasons recorded above, the writ petition is allowed. The impugned order of dismissal dated 12.10.2012, Annexure P1, is quashed. The petitioner is directed to be re- instated in service forthwith with all consequential benefits. The respondents, however, are not precluded from holding a regular Malik Sushama Rani 2013.09.10 12:35 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20943 OF 2012 8 departmental enquiry against the petitioner strictly in accordance with law.
13. Writ petition allowed in the aforesaid terms.
( TEJINDER SINGH DHINDSA )
SEPTEMBER 03, 2013 JUDGE
SRM
Note: Whether to be referred to Reporter? (Yes/No)
Malik Sushama Rani
2013.09.10 12:35
I attest to the accuracy and
integrity of this document