Daljit Singh vs State of Punjab and Others

Rajiv Narain Raina, J.�This order will dispose of the present and two connected writ petitions arising out of orders of dismissal from service by resort to article 311(2)(b) of the Constitution of India in a jailbreak case. The facts are taken from CWP No. 2881 of 2007 for convenience. The petitioners were working either as Assistant Superintendent or Warders in the Punjab Jails Department and were posted at the relevant time at Central Jail., when two undertrials escaped from judicial custody with the help of a bamboo stick of about 12 feet used as a construction material and with the help of which, the undertrials scaled the 16 foot tall jail wall and made good their escape. The charge against the petitioner was that he was the in-charge of the construction material which included ropes, pipes etc and the notorious bamboo pole. The incident occurred on the night of 26th/27th January, 2007 between 2:00 a.m. to 6:00 a.m. The State reasoned that had the petitioner warder No. 392 (Balbir) been vigilant and sincere towards his duty, the undertrials may not have managed to escape from the jail using the bamboo stick obtained from the construction site within the jail premises. They were dismissed from service on 1st February, 2007.

Resort to power under Article 311(2)(b) has been justified by the Director General of Police-cum-Inspector General of Prisons, Punjab, Chandigarh in the following way:--

"Under the normal circumstances, I would have liked to initiate departmental enquiry against Sh. Daljit Singh, Assistant Superintendent, for taking disciplinary action against him but seeing the gravity of misconduct and circumstances, I am of the considered view and satisfied with proper application of mind that it is not practicable and possible to hold a departmental inquiry against him. His retention in service is no longer desirable and is not in the interest of the department which takes custody of smugglers/murderers/hardcore criminals and offenders of heinous crime."

A reading of the entire order and its operative part reproduced above discloses that no reasons have been recorded in the order as to why the petitioner was dismissed from service without holding an enquiry against him. The other order is in the same strain. Furthermore, the subjective satisfaction of the competent authority to dispense with departmental enquiry is not based on any material leaving aside any objective assessment of the material available from where such a prima facie finding could be reasonably arrived at.

It is argued that in the same incident, a departmental enquiry was held against the colleagues of the petitioner namely Avtar Singh, Assistant Superintendent, Piara Singh, Head Warder and Gurdev Singh, Warder. The charge sheet of Avtar Singh is placed on record as Annexure P-45. An FIR No. 21 dated 27th January, 2007 was also lodged in respect of the incident against Rajwinder Singh and Piara Singh (non-petitioners) for commission of offences under Sections 223, 224 IPC, in PS Division No. 7, Ludhiana.

In response to the petition, the State has taken the defence in paragraph 2 of the preliminary objections as follows:--

"The enquiry if any can be held only on the basis of oral evidence. In the present case, the oral evidence that could have been there, was only of a hard core criminal/undertrial/accused/prisoner, who was/were confined in the prison. The petitioner being incharge/an authority to control their activities, it could not be accepted that the said prisoners would have spoken anything against the petitioner. Since violation of admitted responsibilities was involved, therefore to send a signal of strict warning among other jail officials so that none prisoner could escape in future/no jail official takes his duties lightly, the answering respondent in its wisdom thought it proper to impose the punishment of dismissal by invoking the provisions of Article 311(2)(b) of the Constitution of India."

I had occasion recently to examine a case of jail-break in CWP No. 26911 of 2013 decided on 12th December, 2014, where also, the jail officials were dismissed from service by resorting to article 311(2)(b). I have allowed their cases and I can say no more on the subject except that the pith and substance of both the cases is by and large not far removed and for the reasons recorded therein and the case law relied upon, I have absolutely no doubt that the impugned orders of dismissal in the present cases are in breach of the protection afforded by section 311(2)(b) inasmuch as in none of these two cases has it been recorded on the basis of objective material that it is not reasonably practicable to hold an enquiry. In the aforesaid case as well, action was taken against the petitioners therein under article 311(2)(b) while enquiries were held with respect to some of the superior staff who were conveniently exonerated in the departmental enquiry. I am sorry to observe from the facts of both the cases reveal that in jailbreak matters, the victims of extreme disciplinary punishment of dismissal from service are always the lower rung officials while their superiors are be let off on enquiries.

It is rather strange that the punishing authority has observed that under normal circumstances, he would have initiated disciplinary enquiry but on seeing the gravity of misconduct and circumstances, he felt satisfied that it is not [practicable] and [possible] to hold a departmental enquiry, to put the two words used in the order in parenthesis. The DGP, Punjab did not apply his mind at all even to acquaint himself of the bare provisions of article 311(2)0) where the exercise of power can be based only when the punishing authority is satisfied that it is not reasonably practicable to hold an enquiry and satisfaction is recorded in writing. Neither the foundation nor the motive of the order shows proper exercise of jurisdiction to dismiss or a due application of mind. The Court cannot accept that the domestic enquiry was avoided only because it was not practicable or possible to hold one. These are not words used in the language of the Constitution of India in article 311(2)(b) which requires the subjective satisfaction of the disciplinary authority to be, and to repeat, recorded in writing that it is not reasonably practicable to hold an enquiry in absence of which the order is rendered vitiated by law. The possibility of holding or not holding an enquiry is not germane to the issue and is entirely a foreign matter introduced in the impugned order. What appears to this Court is that the DGP, Punjab-cum-IGP Prisons mixed the import of the word "practicable" with its country cousin "practical" in his mind and supported it by inflicting the word "possible" [not known to article 311] which seems to have outweighed reason and fair thinking and blinded him from taking a judicious approach in the matter. This is how the officer has visited upon the petitioner/s the extreme punishment of dismissal from service swept away by an impetuous outbreak because the jail was broken and he owed a moral responsibility. The orders are absolutely perverse, irrational and illegal and shock the conscience of the Court both for the reasons contained in the orders and on proportionality of punishment inflicted which are found as no reasonable person would have passed if acquainted with the law. Therefore, I have no hesitation in declaring the impugned orders as pre-eminently bad and unsustainable and hold they are liable to be quashed.

For the reasons recorded above, the petitions are allowed. A writ of certiorari is issued quashing the impugned orders. A writ of mandamus is issued to the respondents to reinstate the petitioners in service forthwith with all consequential benefits flowing therefrom. This order will not preclude the respondents to hold an enquiry against the petitioners, if they wish. The petitions are allowed with Rs. 20,000/- as costs in each case.