Punjab-Haryana High Court
Ex.Const.Narinder Kumar vs State Of Haryana & Others on 10 September, 2009
Author: Ranjit Singh
Bench: Ranjit Singh
Civil Writ Petition No.4875 of 2009 (O&M) :1 :
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: SEPTEMBER 10, 2009
Ex.Const.Narinder Kumar
.....Petitioner
VERSUS
State of Haryana & others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.Pritam Saini, Advocate,
for the petitioner.
Mr.Harish Rathee, Sr.DAG, Haryana,
for the State.
****
RANJIT SINGH, J.
How non-application of mind to act in accordance with the procedure leads to unfair consequences can be seen from the facts of the present cases. The petitioners, who were serving in the Haryana Police, have challenged the order of their termination on a technical ground that the action of the respondents in dispensing with the enquiry after initiating the same would be illegal. The petitioners, who are accused of serious allegation in helping out an accused in a Civil Writ Petition No.4875 of 2009 (O&M) :2 : murder case to set up an alibi, thus, would escape on this technical ground though may be for a short time. The concerned police officers have filed these four separate Civil Writ Petition Nos.4875 of 2009 (Ex.Const.Narinder Kumar Vs. State of Haryana & others), 5808 of 2007 (Shamsher Singh Vs. State of Haryana & others), 14734 of 2008 (Surinder Kumar ASI Vs. State of Haryana & others) and 11257 of 2009 (Ex.HC Bijender Singh Vs. State of Haryana & others), which are being disposed of through this common order. The facts are being taken from Civil Writ Petition No.4875 of 2009.
Petitioner herein was posted as Constable (Computer Operator) at Police Station, Madhuban. FIR No.221 was registered under Section 61-1-14 of Excise Act on 10.12.2005 at 7.00 A.M. This was on the basis of written intimation sent by HC Bijender Singh (petitioner in CWP No.11257 of 2009) . Said Bijender Singh was on patrolling duty along with the petitioner and other constables at Chowk Nangla Megha, Madhuban. They claimed to have apprehended two persons, named, Sunil Kumar and Yashdeep having 12 bottles of English wine Director special brand without any licence or permit. The petitioner was a witness to this recovery memo, which is signed on the asking of HC Bijender Singh. It would later transpire that FIR No.125 of 2005, under Section 302/34 IPC was registered at Police Station Raiwala, District Dehradun against Sunil Kumar, Javed Malik and Gautam. These three persons are accused of triple murder by shooting. This FIR was also registered on the same day, i.e., 10.12.2005 and the time of the incident was 13.45 hours. Obviously, this was to facilitate a plea of alibi by one of the accused person, namely, Sunil Kumar. The offence alleged Civil Writ Petition No.4875 of 2009 (O&M) :3 : against him was that he was in possession of 12 bottles of English wine without licence or permit. The story as projected while registering the FIR against Sunil Kumar and others under the Excise Act would sound too artificial. A Head Constable on patrolling comes across a person with 12 bottles of English liquor without permit apparently is made up to be taken as true or correct story. Obviously, it was made up story to bail out Sunil Kumar of the serious allegation of murder made against him.
It appears that having learnt about this, Deputy Superintendent of Police recommended suspension and
departmental enquiry against the petitioners herein, who were involved in this apparent fabrication. The petitioners were placed under suspension on 7.6.2006 being instrumental in getting FIR No.221 registered. Deputy Superintendent of Police, Assandh was detailed as an enquiry officer against the petitioners. He allegedly sent notice to the petitioners. Petitioners would urge that no charge sheet was ever served on them and they did not receive any notice which was sent by the enquiry officer. As a matter of fact, none of the petitioners joined the enquiry proceedings but the enquiry officer still submitted a report on 31.7.2006. In the report submitted it is stated that the petitioners (delinquent officers) did not join the enquiry proceedings despite issuing repeated notices. It was accordingly viewed that it would not be possible to complete the enquiry. Finding was that the petitioners had registered FIR No.221 dated 10.12.2005 to save Sunil Kumar from punishment, who was accused in triple murder case. Superintendent of Police, Karnal to whom the enquiry report was submitted passed an order dismissing the petitioners from Civil Writ Petition No.4875 of 2009 (O&M) :4 : service on 3.8.2006. He did not issue any show cause notice to the petitioners before passing the impugned order. The petitioners filed an appeal against this order which was not entertained vide memo dated 29.9.2006 by the Inspector General of Police, Rohtak Range, Rohtak on the ground that no appeal is maintainable against the order of dismissal passed by invoking Article 311(2)(b) of the Constitution of India. Pointing out that Sessions Judge, Dehradun acquitted the accused challaned under Section 302/34 IPC, the petitioners have filed the present writ petitions challenging the order of dismissal without enquiry.
The grievance is that provisions of Article 311(2)(b) of the Constitution could not have been legally invoked in this case to dispense with the regular enquiry without recording any cogent reason. The first writ petition was filed by Shamsher Singh petitioner on 15.4.2007. Subsequent writ petitions have been filed in the years 2008/2009.
Replies in Writ Petition Nos.5808 of 2007, 14734 of 2008 and 11257 of 2009 have been filed on behalf of the respondents. It is stated that the petitioners had entered into a conspiracy and have shown the recovery of 12 bottles of English liquor, which was to give the benefit of alibi in a murder case registered against Sunil Kumar. It is stated that the petitioners have been dismissed from service by passing a speaking order which is a well reasoned one and that the criminal case at Dehradun was in progress and was pending. While responding to the plea of dispensing with the enquiry, it is stated that the enquiry officer had sent notices to the petitioners thrice which were served through family members, but still none of the petitioners Civil Writ Petition No.4875 of 2009 (O&M) :5 : had joined the proceedings. It is also pointed out that petitioner HC Bijender Singh had replied that he would not appear in the departmental enquiry till the decision of the criminal case against him. Accordingly, it was viewed that there was no likelihood of completing the enquiry because of the non-cooperation of the petitioners and so the enquiry report dated 31.7.2006 was submitted by observing that the petitioners were not willing to cooperate with the enquiry officer. Thus, the action of the respondents in invoking the Article of 311(2)(b) of the Constitution is justified and so also the action in not entertaining the appeal against the said order.
I have heard the counsel for the parties.
The perusal of the impugned order of dismissal would show that the order has been passed by invoking powers conferred on the Superintendent of Police by proviso (b) to Article 311(2) of the Constitution. It is, thus, clear that the petitioners have been dismissed by dispensing with the requirement of enquiry for which Superintendent of Police-respondent No.4 had powers under Article 311(2)(b). It is, thus, required to be seen if having ordered the enquiry and deputing an enquiry officer to complete the same, it would be legally permissible for the respondents to dispense with the enquiry and pass the order of dismissal invoking the discretionary powers under Article 311(2)(b) of the Constitution of India.
Mr.Pritam Saini, counsel for the petitioners would contend that there was no justification for dispensing with the enquiry and even if it was to be so dispensed with, the competent authority was required to record its subjective satisfaction, which, according to the counsel must also be fortified by independent material. In support, he Civil Writ Petition No.4875 of 2009 (O&M) :6 : would refer to the case of Jaswant Singh Vs. State of Punjab and others, AIR 1991 Supreme Court 385, where the Hon'ble Supreme Court has observed that decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority and when the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on the officer to 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. In the case of Union of India Vs. Tulsi Ram Patel, 1985 (Suppl) 2 SCR 131, the Hon'ble Supreme Court observed that clause (b) of the second provision 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. Relevant observations in this regard are as under:-
"A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail."
Mr.Saini would also make reference to the observations made by the Division Bench of Delhi High Court in the case of Sugendra Paswan Vs. National Buildings Constructions Corporation and Ors., 2007(1) S.C.T. 20. In this case, employee was under arrest and dispensing with the enquiry, order terminating the service was made. Memo was not served on him as the Civil Writ Petition No.4875 of 2009 (O&M) :7 : employee was in jail. It was accordingly observed that the action of the respondents is to be tested on anvil of reasonableness and fairness. Finding that the petitioner therein was denied reasonable opportunity of submitting an explanation for his absence, the action was termed as unfair and unreasonable. The counsel would also make reference to the cases of Ex.Sub Inspector Puran Chand Vs. State of Punjab, 1996(1) S.C.T. 625 where the enquiry was dispensed with being not reasonably practicable. No reference was made to any material while recording satisfaction reached that enquiry is not possible due to the reasons recorded. The order of punishment was held vitiated. In Lalji Dass Vs. State of Punjab and others, 1996(1) S.C.T. 821, it was held that the enquiry cannot be dispensed with lightly or arbitrarily or out of ulterior motive or to avoid inquiry or because of the case of department is weak and is likely to fail. Order of termination in this case was quashed with liberty to proceed in accordance with law. In Darshan Jit Singh Dhindsa Vs. State of Punjab, 1993(1) S.C.T. 338, Division Bench of this court held that the enquiry against the petitioner therein was dispensed with on excusals. It was further held that cardinal principle of natural justice cannot be dispensed with on mere pretexts. The order of dismissal, thus, was held not sustainable. The counsel has also referred to the cases of Swaran Singh and others Vs. State of Punjab and others, 1996(3) S.C.T. 113 and Rajeev Kumar Sharma Vs. State of Haryana, 2002(4) S.C.T. 55 in support of his contention.
Mr.Rathee, on the other hand, would justify the order in view of the stand taken in the reply.
Civil Writ Petition No.4875 of 2009 (O&M) :8 :
I am constrained to observe that respondents have not cared to follow the procedural requirements while passing the impugned order. The case set up by the respondents is not that it was not reasonably practicable to hold an enquiry to invoke the exception carved out in the form of Article 311(2)(b) of the Constitution. Article 311(2) provides in clear terms that no member of a civil service of the Union or the civil service of the State shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Proviso in clause (b) then carves out an exception by providing that where an authority is empowered to dismiss or remove a person or reduce him in rank is satisfied that for some reason, to be recorded by the authority in writing, it is not reasonably practicable to hold such enquiry, then the requirement of holding an enquiry may be dispensed with.
The facts as noticed above would clearly show that decision to hold an enquiry in this case was taken. Thereafter an enquiry officer was also appointed. The enquiry officer issued notices to the petitioners. Strange it would be to notice that the petitioners were not served with even the charge sheet or memo of charges. The enquiry officer did issue notice to the petitioners, which, was statedly served to them through their relatives. Finding that the petitioners were not appearing despite service, the enquiry officer submitted the report. The enquiry officer ultimately submitted his report by saying that it is not in the National interest and non-joining of the delinquents in the enquiiry despite repeated issuance of Civil Writ Petition No.4875 of 2009 (O&M) :9 : notices, proved that the delinquents intentionally do not want to join and complete the enquiry. He accordingly submitted the relevant documents for further orders. The operative part of the report submitted by the enquiry officer is as under:-
"Whereas SI Shamsher Singh 278/RR, ASI Surinder Kumar 273/RR, HC Bijender Singh 44/Karnal and C.Narinder Kumar 429/Karnal are charge-sheeted with the grave charge of saving a triple murder accused from punishment by showing him in custody after registration of case FIR No.221 dated 10.12.05 under Section 61-1-
14 of the Excise Act at P.S.Madhuban, it is not in the national interest and non-joining of the delinquents in the enquiry despite repeated issuance of notices, proves that the delinquents intentionally do not want to join and complete the enquiry as has been stated by delinquent HC Bijender Singh before the Deputy Superintendent, District Jail, Shri Sanjiv Kumar. Due to this reason, it is not possible to complete this inquiry. Therefore, the relevant documents page 1 to 92 are being submitted for further orders."
Thereafter, the impugned order Annexure P-8 was passed. Though the detailed reference to the facts in the background of the case is made and the punishing authority has thereafter observed that there is cogent and unimpeachable incriminating evidence against the delinquent officials which renders them unfit for the government job, especially being members of the disciplined force as they indulged in most indisciplined activities and thus Civil Writ Petition No.4875 of 2009 (O&M) :10 : committed a grave act of misconduct by helping the accused of a triple murder case. Having made observations in detail, Superintendent of Police-respondent No.4 dismissed the petitioners by invoking proviso (b) to Article 311(2) of the Constitution. The operative part of the order reads as under:-
"That whereas under the circumstances mentioned above, I Sibash Kabiraj, IPS, Superintendent of Police, Karnal being the competent authority under Police Rule 16-1 and the power conferred on me by proviso (b) to Article 311(2) of the Constitution of India dismiss SI Shamsher Singh No.278/RR, ASI Surinder Kumar No.223/RR, HC Bijender Singh No.44/KNL and Ct.Narender Kumar No.429/KNL, from service with immediate effect from today i.e. 03.08.2006 A.M."
Though the power under Article 311(2)(b) has been invoked, but no justification was given as to why this decision was taken to dispense with the enquiry. Respondent No.4 has given no reason whatsoever as to why it was not reasonably practicable to hold such an enquiry. It cannot be accepted that in the facts and circumstances of this case, holding of enquiry was not practicable. Indeed the enquiry was ordered and was being held. It has simply not been completed on the ground of some difficulty faced by the enquiry officer. The difficulty which has been expressed to discontinue the enquiry again is not reasonably valid. As per the enquiry officer, he had issued various notices which were served but the petitioners failed to join the enquiry. If that was the case, he could have easily proceeded ahead to hold an ex-parte enquiry and given his finding. Civil Writ Petition No.4875 of 2009 (O&M) :11 : If a delinquent employee declines to join enquiry or does not appear despite notice, it cannot be said that it is not reasonably practicable to hold enquiry. Holding of ex-parte enquiry is a procedure which is well known and in case delinquent official does not appear despite due notice and service, then it is always open to conduct an ex-parte enquiry, which is a legal course open in such situation and eventuality. To say that holding of enquiry was not possible and to invoke the proviso under Article 311(2)(b) would not sound legally proper. In large number of judgments as noticed above, it has consistently been observed that decision to dispense with the enquiry does not rest on the ipse dixit of the authority. The authorities concerned are required to satisfy the courts on the basis of objective facts that holding of enquiry was not reasonably practicable. Such satisfaction is to be based on some independent material. It cannot be said in the facts of the present case that the subjective satisfaction of the concerned authority to dispense with the departmental enquiry and to dismiss the petitioners by invoking Article 311(2)(b) is fortified by any material. As observed in Tulsi Ram Patel's case (supra), the disciplinary authority is not expected to dispense with the enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid holding of an enquiry. May be that the case of the department was very strong and the allegations against the petitioners were serious. That alone cannot be a ground to deny the procedural safeguards which are constitutionally guaranteed to an employee. Once the decision was taken to dispense with the enquiry, it is required to be justified on the ground that it was not reasonably practicable to hold such enquiry. The Civil Writ Petition No.4875 of 2009 (O&M) :12 : importance of procedural safeguards was well noticed by the Hon'ble Supreme Court in the case of Ranjit Thakur Vs. Union of India, AIR 1987 Supreme Court 2386. The reasons in the present case are totally absent. The order of dismissal passed in this background, thus, cannot be sustained. The enquiry in this case has been dispensed with without proper application of mind.
The writ petitions are accordingly allowed. The liberty is given to the respondents to continue with the enquiry from the stage it was left. The respondents would also be at liberty to complete the enquiry in accordance with law and thereafter pass an appropriate order in accordance with law on the basis of findings returned in the enquiry. In case there is any practical difficulty to hold an enquiry by the officer, who was earlier detailed, the enquiry may be continued by detailing another officer from the stage the same was pending earlier and was referred to respondent No.4 when he passed the impugned orders. The petitioners had been placed under suspension. The petitioners will continue to remain under suspension and they need not be reinstated. The enquiry be completed within a reasonable time. Thereafter, the respondents would be at liberty to pass a fresh order on the basis of a finding returned by the enquiry officer.
September 10, 2009 ( RANJIT SINGH ) ramesh JUDGE