Manjit Singh vs State Of Punjab & Ors on 12 December, 2014

[Cites 7, Cited by 2]

Punjab-Haryana High Court

Manjit Singh vs State Of Punjab & Ors on 12 December, 2014

Bench: Rajiv Narain Raina

CWP No.26911 of 2013 (O&M) and connected 3 petitions
:1:

IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH

I.
Civil Writ Petition No.26911 of 2013 (O&M)
Date of decision: 12.12.2014

Manjit Singh
..... Petitioner

Versus

The State of Punjab and others

..... Respondents

II.
Civil Writ Petition No.26802 of 2013

Sukhdev Singh
..... Petitioner

Versus

The State of Punjab and others

..... Respondents

III.
Civil Writ Petition No.26996 of 2013

Joginder Singh
..... Petitioner

Versus

The State of Punjab and others

..... Respondents

PARITOSH KUMAR
2015.01.19 16:10
I attest to the accuracy and
integrity of this document
CWP No.26911 of 2013 (O&M) and connected 3 petitions
:2:

IV.
Civil Writ Petition No.27004 of 2013

Narinder Singh
..... Petitioner

Versus

The State of Punjab and others

..... Respondents

CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA

Present: Mr.A.K.Walia, Advocate,
for the petitioner in all the cases.

Mr.Sushant Saini, Sr. DAG, Punjab
*****
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.

RAJIV NARAIN RAINA, J.

This order will dispose of the following writ petitions as common questions of law and fact are involved therein and can be disposed of by a common order: -

1. CWP No.26911 of 2013 2. CWP No.26802 of 2013 3. CWP No.26996 of 2013 4. CWP No.27004 of 2013

2. The facts are taken from CWP No.26911 of 2013 for the sake of convenience in decision-making. All four cases arise out of a common incident involving a jailbreak by some undertrials from Central Jail, Gurdaspur, Punjab.

3. Briefly stated, the facts are that the present petitioner and the three petitioners in the connected writs were posted at the material time on PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions :3: the staff strength of Central Jail, Gurdaspur. During the relevant period, the petitioner was posted as a Head Warder, working under the control and supervision of the Superintendent, Central Jail, Gurdaspur-the 5th respondent. The four petitioners were on internal patrolling duty and Tower Sentry duty in the jail premises in October, 2012 when three undertrials escaped from jail on the intervening night of 3rd /4th October, 2012 between 1:45 a.m. to 2:00 a.m. In the hue and cry raised, the police swung into action and succeeded in re-arresting the three undertrials from precincts in Ludhiana on the following day and were returned to jail to face trial, for which they were kept in judicial custody. Head Warder Jasbir Singh was on internal patrolling duty, Constables Ranjit Singh and Jaswant Singh were on Tower Sentry duty while Warder Joginder Singh was also on internal patrolling duty as assigned to them, spread time-wise between 12:00 p.m. to 3:00 p.m. on the fateful night. After the incident they were placed immediately under suspension by the 5th respondent.

4. The story of the jailbreak as narrated in the writ papers runs that on the intervening night of 3/4th October, 2012 between 1:45 a.m. to 2:00 a.m., the three undertrials, namely Bikramjit Singh, Manga Masih and Baljit Singh with the help of two other undertrials escaped from the jail by cutting the grill fitted in the ventilator of the bathroom attached with barrack No.6 in which they were lodged. They escaped from the bathroom by scaling the wall of Kot Moka with the help of a rain water pipe and then with the help of a long plastic rope thrown by the undertrials who were helping them out till their turn came to make good their escape. They were in contact with each other on mobile phones. The ones that escaped climbed with the help of a plastic rope and jumped over the main jail wall and fled away from the law. PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document

CWP No.26911 of 2013 (O&M) and connected 3 petitions :4: The two undertrials who attempted to escape, that is, Parminder Singh and Joban Singh was fortunately foiled in the act when they were overpowered by Head Warder Narinder Singh [petitioner in accompanying CWP 27004 of 2013] and the petitioner while making the failed attempt.

5. The petitioner narrates that he along with Warder Narinder Singh were on routine duty that night and had been carrying out various routine checks on the inmates, as was required of them, when they received information that an inmate in barrack No.6 was sick. Indeed he was. He was taken by them to the Jail Hospital and the Munshi was asked to get the patient treated and to administer medicine. While they came out from the Jail infirmary, they heard a gunshot fired from the side of a Tower and there was commotion amidst loud voices ('noise') that something was seriously wrong. Both the warders ran towards the side they suspected and found the plastic rope hanging by the wall of Kot Moka. There was a clamour of voices that inmates were escaping. The petitioner ran to the Deorhi and asked the Darban to press the jail alarm but it did not work. As he returned to the spot, the two escaping undertrials were discovered and overpowered and their attempt to break jail was foiled. The two were produced before the Deputy Superintendent Jail who had reached the spot by then. In the aftermath, the Sub Divisional Magistrate conducted a spot inquiry in which Jaswant Singh, Ranjit Singh, Gulsan Kumar and Davinder Singh Randhawa, Deputy Superintendent Jail were found guilty in the incident.

6. The Deputy Inspector General of Police (Jails), Punjab, Chandigarh too conducted an inquiry into the incident. The four officials who had been held responsible by the 5th respondent and as well in the inquiry report of the SDM, were let off, which the petitioner says was due to PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions :5: undue influence exercised by them. The Additional Director General of Police (Jails), Punjab, Chandigarh, with both the reports in hand, forwarded the same to the Superintendent Headquarters (Jail), Amritsar with a direction to take action against the petitioner and three others who are the petitioners in the connected writ petitions.

7. On 24th December, 2012, the petitioner and the three officials in the connected petitions were dismissed from service invoking the provisions of article 311(2)(b) of the Constitution of India. Aggrieved by the severest action taken by the respondents in dismissing them from service, the petitioner filed a departmental appeal on 9th January, 2013 before the Additional Director General of Police (Jails), Punjab, Chandigarh praying that the orders of dismissal be revoked and he be reinstated to service. The others did the same as well. The grounds of appeal presented by the petitioner are exhaustive and substantially cover the gamut of the law governing dismissal of public servants without holding an inquiry. The factual story was also narrated and the roles of the individuals as assigned to each of them and carried out at the time of occurrence. He also pleaded that looking to his length of service and the fact that he was promoted as Head Warder only recently by the Inspector General of Police (Jails), the Superintendent Headquarters (Jail), Amritsar was not competent to dismiss him from service. The appellate authority remained unmoved and rejected the appeal on 6th November, 2013 finding the order of dismissal in accordance with law. In reaching this conclusion, he took into consideration the comments sent by the punishing authority and after considering the same, he thought fit to uphold the dismissal order. The rest of the three were dealt with in the same manner.

PARITOSH KUMAR

2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions :6:

8. A reading of the appellate order discloses that it contains only a factual narration of the incident/occurrence and the sequence of the events leading to the escape which events were noticed in detail but scant respect was paid as to whether it was not reasonably practicable to hold an inquiry into the incident, which is the basic ingredient of article 311 (2)(b) of the Constitution and without which a dismissal order would not be sustainable. Even so, there is not even lip service paid to the ingredients of article 311 (2)(b) in the impugned orders of dismissal and in appeal. A charge of gross negligence is capable of being understood, by and large, if not always, on the basis of evidence adduced in a regular departmental inquiry, where the delinquent would have an opportunity to present his case in defence by affording a substantial opportunity to prove innocence or an infliction of lesser punishment than the gravest action of dismissal from service. The fact finding inquiry in which the petitioner was not associated in terms of minimal standards required of a full-fledged inquiry is not the best piece of reliable material to dismiss a man from service. The petitioner did not have an opportunity to examine and cross-examine the witnesses in defence, if produced, for want of which, is not legally sufficient for truth to prevail and to govern the conduct of the petitioner and his co-delinquents in their roles in the jailbreak and the foiled bid to escape by two of them who were left behind. Foisting the entire blame on the petitioner and the co-delinquents is not proper exercise of authority to punish with dismissal orders only because three undertrials escaped, as though all the other officials including those who were let off had a right to sleep while the three were attempting to escape and had succeeded. It is not the case that the petitioner and Narinder Singh did not reach the spot or that Narinder Singh overpowered two PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions :7: escaping undertrials and foiled their bid. The petitioner asserts that he had asked the Deorhi Darban to press the jail alarm which did not work but the learned Additional Director General of Police (Jails), Punjab, Chandigarh acting as an appellate authority chose not to even mention that statement in the long-winded appeal order. If the jail alarm does not work, then it is a very sorry state of affairs and those responsible for not keeping it in working order deserved to be charge sheeted irrespective of what may have come of it. This was also a matter of evidence which could have been brought on record by the petitioner, in case a regular inquiry was held. Those who are in-charge of jail administration cannot divert attention and brush the incident under the carpet by dismissing four scapegoats straightaway without recording in writing that it was not reasonable practicable to hold an inquiry No attention was paid as to from where the tool which cut the grill come from and smuggled into jail; from where the plastic rope came; how were the mobiles permitted entry for free use by the undertrials, if the statement of the petitioner is to be believed and which is capable of being disbelieved only by way of evidence to establish breaking of jail rules, which was not done. A thorough investigation was required of the jail break incident and it would do little to assuage loss of pubic faith in jail administration by broadcasting that action was taken and four people have been dismissed and, therefore, all has been set right in Central Jail, Gurdaspur. Who fired the shot from Tower No.1 is not known, who was where and who raised the alarm for the petitioner and Narinder Singh to rush towards the tower. These are not questions for the Court to ask. It is for the Administrator to inquire into on blue paper, if he intends to perform his duties without dereliction for the cause of justice and for the supreme cause of good governance that truth PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions :8: must triumph and that no citizen is dunked in a pool where the bodies of the 'partly living' dismissed lying in despair. In 'Murder in the Cathedral', T.S.Eliot wrote:

"shall I who ruled like an eagle over doves now take the shape of a wolf among wolves?

can I neither act nor suffer without perdition you know and do not know, what it is to act or suffer. you know and do not know, that acting is suffering, and suffering action. neither does the actor suffer nor the patient act. But both are fixed in an eternal action, an eternal patience to which all must consent that it may be willed and which all must suffer that they may will it, that the pattern may subsist, that the wheel may turn and still be forever still god gave us always some reason, some hope;

but now a new terror has soiled us, which none can avert, none can avoid, flowing under our feet and over the sky, under doors down chimneys, flowing in at the ear and the mouth and the eye.

living and partly living god is leaving us, god is leaving us, more pang, more pain, than birth or death"

9. Article 311(2)(b) is an extraordinary power which has to be used in extraordinary situations for extraordinary reasons that demand and justify a man to be sent home without pension, without holding an inquiry and leaving him to despair and to live with a terrible stigma throughout his waking life watching the life of his family completely destroyed.

10. A reasonable opportunity of hearing enshrined under article 311(2) of the Constitution would include a reasonable opportunity of defence and for a person charged even with the gravest act of misconduct to establish his innocence in a domestic trial. The mandate of article 311(2)(b) has been flagrantly violated in this case depriving the petitioner/s of a reasonable opportunity of being heard and dealt with fairly. PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions :9:

11. The petitioner further asserts that his service conditions are governed by the Punjab Jail Department Services (Class III), Executive Rules, 1963 and the Punjab Jail Department Executive Staff (Punishment & Appeal) Rules framed and published by notification dated 29th April, 1943 which have not been repealed and are subsequent to the Punjab Police Rules, 1934, although they are pre-constitution. These rule provide in rule 11(1)(b) that the procedure provided in these rules for holding an inquiry can be dispensed with, "in exceptional cases for special and sufficient reasons to be recorded in writing, where there is difficulty in observing exactly the requirements of this sub rule and that those requirements can be waived without injustice to the person charged."

12. Article 311(2) (b) only provides for dispensing with a regular departmental inquiry where the same is considered not reasonably practicable to be conducted. However, it does not make it mandatory to award the extreme penalty of dismissal from service in one fell swoop. Neither the punishing authority nor the appellate authority has assigned any special reason for not awarding a lesser penalty even if no inquiry was held. The provisions of rule 3(ii) of the Punjab Jail Department Executive Staff (Punishment & Appeal) Rules ensure that the penalty of dismissal should only be inflicted for the gravest misconduct or as the culminating result of continued misconduct, indicating complete unfitness of the public service... In inflicting this penalty, regard should be paid to the length of service of the offender and his claim for pension." Sadly, the petitioner had been promoted as Head Warder in the same year as the incident.

13. In the reply by way of counter affidavit filed by the officiating Superintendent Headquarter (Jail), Amritsar on behalf of the respondents, PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions : 10 : nothing substantial has been said beyond the narration of facts with respect to the incident except to say that undertrial Manga Masih who escaped had 13 cases of extortion and dacoity pending against him. The remaining had multiple criminal cases pending against them. But the State forgets that the crimes allegedly committed by the undertrials have nothing to do with the element of jailbreak which stands on an altogether different footing. The respondent State points out to Punjab Jail Manual Paras 269 to 281 enumerating duties of jail officials to show they were breached. Even so, the matter is one of evidence of whether those duties were performed or were not by the petitioners. It is then said that retention of the petitioner in service at this stage is no longer in public interest. The landmark ruling of the Supreme Court in Union of India v. Tulsi Ram Patel; AIR 1985 SC 1416 is cited in their favour to submit that the question of relevance of reasons given by the disciplinary authority is not to be examined by the Court as though it were sitting in judgment over the decision of the disciplinary authority. The Supreme Court held that the matter will be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question of whether an inquiry should be dispensed with or not in the cool and detached atmosphere of the Court, removed in time from the situation in question. Even if two views are possible, the Court should decline to interfere. Since the constitutional scheme has far greater and all pervading sanctity than the statutory provisions, therefore, the petitioner cannot claim an inquiry as a matter of a fundamental right. In this manner, the order is justified being in conformity with the provisions of the Constitution. In defence of the allegations of the petitioner that Shammi Kumar, Superintendent Central, Jail Gurdaspur and Davinder Singh PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions : 11 : Randhawa, Deputy Superintendent who were first suspended on 22nd October, 2012 but was spared is concerned, it is justified by the reason that a detailed inquiry was conducted by Shri B.R.Bansal, Additional District & Sessions Judge (Retired) and they were exonerated on the basis of the report. If this is so, then my belief becomes stronger that the petitioner/s was/were wronged and treated shabbily as if they were lesser mortals. Such matters leave an indelible mark in the conscience of the Court that the high and mighty always get away and the underlings are made to pay for sins which cannot be directly attributed to them, except after proof, not to standards beyond a reasonable doubt but on a preponderance of probabilities. The probabilities in this case could not be balanced in absence of evidence. The eyes of jail officials, as any other eye is, can hardly be all pervading and if a man has made up his mind to escape, he will find his way, no matter what. Therefore, the Superintendent of the Jail should be asked to furnish his explanation first as he owes collective responsibility in greater measure than the lesser mortals when they did not participate as facilitators to the jailbreak. Measures have to be put in effective place for a corruption free jail by the Superintendents of Jails and those who are superior to them. There are many questions left unanswered. How did the plastic rope get into jail, is a matter of concern; how were mobiles allowed in jail, it is a matter of concern; how was the aari or iron file temptingly available in jail, is a matter of concern. What are frisking measures and metal detectors meant for, for those who come and go, is a matter of concern; if one is dealing with three dreadful undertrails with numerous criminal record of cases including dacoity etc. pending trial why were they not especially watched and guarded, is a matter of concern. It is a matter of the greatest concern that the PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions : 12 : petitioners protected by article 311 of the Constitution and the rules and jail manuals should be punished with the extreme punishment of dismissal without holding an inquiry into their conduct and the role played by each of them in a case of jail-break without looking to the larger issues involved. For this, one does not need any authority, ruling, judgment or legal principle since it troubles the conscience of the Court that such a knee-jerk and arrogant reaction in summary dismissal can be taken by those in power without due reflection in the cool of the administrator's room, thinking on rational and objective principles and not being carried away by a flood of impulsive and impetuous emotions. Had there been any cool and calm application of mind exercised judiciously there would have been room for reason and there would then have been hardly any misdirected misapplication of the law by keeping decisions proportionate to the charge laid without evidence of 'some reasons' that article 311 (2) (b) demands. It is not enough for the respondents to say in the written statement that respondent No.4 has carefully considered all the aspects of the case before invoking the provisions of article 311(2)(b) recording that it is not necessary to hold an inquiry when the authorities did not even acquaint themselves with the sheer language of the provision where it is clearly laid down that "(b) 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 inquiry; or..."

14. In Indian Railway Construction Company Limited v. Ajay Kumar; (2003) 4 SCC 579, the Supreme Court held that the power to dismiss an employee by dispensing with an inquiry is not to be so exercised PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions : 13 : as to circumvent the prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with an inquiry has to be of the disciplinary authority. Where two views are possible as to whether holding of an inquiry would have been proper or not, it would not be within the domain of the Court to substitute its view for that of the disciplinary authority as if the Court is sitting as an appellate authority over the disciplinary authority.

15. The question then rests on the principle; if two views are possible. The examination of this question is for the Court, where two views are possible. The cases which could fall within the meaning of "two views are possible" are those where there is a serious doubt in the mind of the Court, looking to the gravity of the case, where witnesses will never come forward to depose, where there is a sufficient prima facie evidence that it would not be reasonably practicable or possible to hold an inquiry; where past conduct is res gestae or where one incident is such which shakes the conscience of the society and the community; where in one voice all reasonable men might say: this man should not continue in service as he poses a danger to the administration of jail justice, then the Court will be shy of interfering while going by the principles of; "two views are possible". The Court exercises secondary review over the orders of the punishing authority and of the appellate authority and secondary review is on Wednesbury principles which come into play where the action has to be measured in terms of arbitrariness and proportionality. When these tests are applied, then the State's case appears to fade away and the case of the petitioner becomes clearer and stronger to support a conclusion that he was wronged and dismissed without giving him a fair and reasonable opportunity to prove his innocence or plead mitigating circumstances for a reduced punishment. It is PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions : 14 : well embodied principle of criminal law that a man is innocent till he is proved guilty. Even in its most diluted form, this principle applies to domestic inquiries and when the sledgehammer of article 311(2)(b) is used, it must be used with the best intentions, with the best public interest in view, in the best interest of jail administration by a decision resting on the cornerstone of an opinion recorded in writing that it is not reasonably practicable to hold an inquiry and justify it on a practical and prudent principle based on non-availability of true facts which will be hard to obtain in the circumstances. In Tulsi Ram Patel case, the Supreme Court observed that the decision of the President or Governor formed under article 311(2)(c) in cases where they are satisfied that in the interest of the security of the State, it is not expedient to hold such an inquiry, have in the scope of the most aggravated form in clause (c) of article 311 opined that although the administrator's decision is 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 inquiry.

16. In Jaswant Singh v. State of Punjab; AIR 1991 SC 385, the Supreme Court observed : -

"The decision to dispense with the departmental inquiry 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.

17. In short, in the facts and circumstances of this case, it is not PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document CWP No.26911 of 2013 (O&M) and connected 3 petitions : 15 : possible to sustain the impugned orders which do not disclose any reason whatsoever for dispensing with a departmental inquiry and for reaching this conclusion no worthy material is found placed on the writ papers. If one is to go by the literal words in the impugned order, then all that it says is that a departmental inquiry is not 'necessary'. This does not satisfy Article 311(2)(b) of the Constitution which casts a burden on the authority empowered to dismiss or remove a person to be satisfied for the reasons to be recorded in writing that it is not reasonably practicable to hold a departmental inquiry. Therefore, it is for the competent authority to apply its mind and then take a view in dispensing with the departmental inquiry by recording reasons to justify skipping it.

18. For the foregoing reasons, the petitions are allowed. The impugned orders, both of the punishing authority and the appellate authority are found legally unsustainable and are quashed by issuing a writ of certiorari. As a fall out, a mandamus is issued to the State in all the four cases to reinstate the petitioners to service forthwith with all consequential benefits flowing therefrom. However, the respondents are not precluded from holding a departmental inquiry against the petitioner/s in accordance with law.

(RAJIV NARAIN RAINA) JUDGE December 12, 2014 Paritosh Kumar PARITOSH KUMAR 2015.01.19 16:10 I attest to the accuracy and integrity of this document

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court