CWP-10423-2020 (O&M) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CWP-10423-2020 (O&M)
Date of decision : 01.09.2020

Sarabjit Singh

...Petitioner

Versus

State of Punjab and another

...Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL.

Present: Mr. Abhimanyu Tiwari, Advocate for the petitioner.

Ms. Anu Chatrath Addl. A.G. Punjab.

****

ANIL KSHETARPAL, J.

This writ petition has been filed under Article 226 of the

Constitution of India for issuance of a writ in the nature of certiorari for

quashing of order dated 04.03.2020 passed by respondent No.2 i.e. 4th

Commando Battalion, Phase-II, SAS Nagar, Mohali, dismissing the

petitioner from service under Clause (b) of the 2nd Proviso to Article 311(2)

of the Constitution of India. In the considered view of this Court, following

question of law arise for determination:-

“Whether in absence of sufficient reasons recorded in

writing dispensing with the requirement of holding inquiry
in the alleged misconduct of employee by the authority,
order of dismissal/removal from service of employee,
passed in exercise of the powers under Clause (b) of the 2nd
Proviso to Article 311(2) of the Constitution of India is

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sustainable?”

Some facts are required to be noticed. The petitioner was

appointed as a Constable in the Punjab Police on 24.03.2011. Two FIRs

have been registered against the petitioner. First is FIR No.14 dated

29.02.2020 under Sections 376, 417, 506 of the Indian Penal Code. In a

nutshell, the allegations are that in the year 2010 i.e. before the petitioner

joined service, he had an affair with the first informant (alleged victim).

They also made physical relations. It is alleged that after getting job, the

petitioner stopped talking to the first informant and when she pressurized,

he threatened her that she will be killed or kidnapped or harmed by

throwing acid. The petitioner also threatened that he also has their

photographs which would be uploaded on Facebook and Whatsapp.

Therefore, the first informant kept mum over period of 9 years.

Second is FIR No.15 dated 01.03.2020 under Sections 379B,

353, 186, 224, 225, 427, 148, 149 of the Indian Penal Code. This FIR has

been registered by a Police Official with the allegation that when the police

party went to arrest the petitioner, he after having been apprehended; ran

away and various villagers named in the FIR scuffled with the members of

the police party and snatched Rs.2200/- and Identity Card from the Wallet

of the first informant. Another accused also gave a blow to a police official

with some sharp edged weapon which hit on his little finger. The villagers

also broke the wind screen of the Government Vehicle.

In the present case, on the basis of these allegations, respondent

No.2 has chosen to invoke Clause (b) of the 2nd Proviso to Article 311(2) of

the Constitution of India to remove/dismiss the petitioner from the service

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while dispensing with the requirement of holding departmental enquiry.

Pursuant to the notice in the writ petition, a reply has been filed

defending the order of dismissal. This Court has heard learned counsel for

the parties at length and with their able assistance gone through the paper

book.

Learned counsel for the petitioner has submitted that

respondent No.2 did not record reasons for dispensing with the requirement

of holding inquiry and, therefore, the order is not sustainable. He relied

upon judgments passed by the Five Judge Bench in Union of India and

others Vs. Tulsi Ram Patel and others, (1985) 3 SCC 398 subsequently

followed in Reena Rani Vs. State of Haryana and another, (2012) 10 SCC

215 in support of his submission.

On the other hand, learned Additional Advocate General

Punjab, has drawn attention of the Court to the judgment passed in Kuldip

Singh Vs. State of Punjab and others, (1996) 10 SCC 659 and Chandigarh

Administration, U.T. Chandigarh Vs. Ajay Manchanda etc. (1996) 3 SCC

753.

Let us first examine the order (Annexure P-3) which is the

subject matter of challenge. From careful reading of translation of the

impugned order, it is apparent that no reason whatsoever has been recorded

as to why holding of the inquiry is not reasonably practicable. What has

been recorded is "it does not seem justified to conduct departmental inquiry

at this stage". In the considered view of this Court, this is not sufficient

compliance of the mandate of Article 311 of the Constitution of India which

is extracted as under:-

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“311. Dismissal, removal or reduction in rank of persons

employed in civil capacities under the Union or a State-(1) No
person who is a member of a civil service of the Union or an
all India service or a civil service of a State or holds a civil
post under the Union or a State shall be dismissed or removed
by a 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 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.”

On careful reading of Clause (b) of 2nd Proviso, it is apparent

that the authority empowered to dismiss or remove a person or to reduce

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him in rank, has to record reasons in writing as to why it is not reasonably

practicable to hold such inquiry. Such satisfaction has to be subjective

satisfaction of the authority so empowered. In the present case, careful

reading of the impugned order shows that there is total absence of reasons in

this regard. Mere observation that the departmental enquiry at this stage

does not appear to be justified is not sufficient to invoke powers under

Clause (b) of the 2nd Proviso to Article 311(2) of the Constitution of India.

Still further, in the present case, there are two FIRs against the petitioner. In

first one, the first informant/alleged victim has lodged the FIR after a period

of 10 years. It is not recorded that she feels terrorized or is refusing to

appear in the departmental inquiry. Second FIR is by a police official. In

such circumstances, the allegations made in FIR No.15 are required to be

proved by the members of the police party alongwith the independent

witness, if any. Hence, learned Additional Advocate General Punjab has

also failed to draw attention of the Court to reasons making it reasonably

impracticable to hold such inquiry.

The reliance placed by the learned Additional Advocate

General, Punjab, on the judgments in Kuldip Singh's (Supra) and

Chandigarh Administration's (Supra) is misplaced. In Kuldip Singh's case

(Supra), the petitioner was working as a Head Constable in Punjab Police. It

was during the time, when situation of law and order in the State was worst.

The Head Constable had confessed links with the terrorists. In those

circumstances, the Supreme Court held that dispensing with the

departmental enquiry was appropriate. In the case of Chandigarh

Administration's (Supra), again the employee was at the relevant time

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working as a Sub Inspector in Chandigarh. The authority entitled to remove

had come to a conclusion that the complainant and the witnesses have been

terrorized by the respondent and on that account, they were not prepared to

proceed with the complaint or the case further. In those facts, the Court

upheld invocation of Clause (b) of 2nd Proviso to Article 311(2) of the

Constitution of India. As noted above, in the present case, neither the

reasons in writing have been recorded by the authority nor they are born

from the record.

Keeping in view the aforesaid facts, the order dated 04.03.2020

is set aside. Hence, the petitioner shall be entitled to reinstated in service

with consequential benefits. However, it shall be open to the respondent to

initiate departmental inquiry in the alleged misconduct, if any, of the

petitioner.

Accordingly, the present writ petition is allowed.

All the pending miscellaneous applications, if any, are disposed

of, in view of the abovesaid judgment.

01.09.2020 (ANIL KSHETARPAL)

Pawan JUDGE

Whether speaking/reasoned:- Yes/No

Whether reportable:- Yes/No

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