Harmit Singh, Ex-Constable vs The State of Punjab and Others

V.K. Jhanji, J.—This is plaintiff''s second appeal directed against the judgment and decree of learned Additional District Judge, Gurdaspur whereby on appeal preferred by the defendants, judgment and decree of the trial Court decreeing the suit of the plaintiff has been set aside and as a consequence suit of the plaintiff dismissed.

Plaintiff filed suit for declaration to the effect that order bearing No. 1862-67 dated 18.1.1991 passed by the Senior Superintendent of Police, Gurdaspur (hereinafter referred to as the SSP) by virtue of which plaintiff was dismissed from service is illegal and null and void.

The case of the plaintiff was that he was appointed as a Constable in Punjab Police Force with effect from 8.9.1989. He alleged that since his appointment, he has been performing his duties diligently, honestly and to the entire satisfaction of his superiors but plaintiff was served with order dated 18.1.1991 passed by the SSP (respondent No. 3 herein) whereby plaintiff was dismissed from service under the pretext of certain allegations of dereliction of duty in order to aid the extremists, without holding any departmental enquiry as prescribed under the Punjab Police Rules (for short the PP Rules), Plaintiff challenged the order as illegal, null void on the ground that no regular departmental enquiry was conducted by the SSP before passing the impugned order. Plaintiff also contended that the order was passed under the pretext of inability of holding enquiry under Article 311(2)(b) of the Constitution of India whereas the provisions of the said article were not applicable to the case of the plaintiff.

Upon notice, defendants appeared and contended that the SSP passed order dated 18.1.1991 on the basis of secret information given by DSP, Mann Singh that the plaintiff along with Constable Gurbir Singh has links with the extremists and anti social elements and helping them by supplying information of State Vital interest while posted at Police Line, Gurdaspur in anti terrorist operation reserve. Defendants also submitted that it was anticipated that the plaintiff and others were planning to kill the SSP. In regard to enquiry dismissing the application by invoking the provisions of Article 311(2)(b) of the Constitution, defendants submitted that no charge-sheet was required to be served as it was not reasonably practicable to hold enquiry.

On the pleadings of the parties, the trial Court framed the following issues:-

Whether the impugned order dated 18.1.1991 is illegal, unlawful? OPP.

Whether the plaintiff is entitled to all service benefits with interest? OPP.

Whether the suit is not maintainable in the present form? OPD.

Whether notice u/s 80 C.P.C. is not legal and valid? OPD.

Relief.

Trial Court decided Issues No. 1, 2, 3 and 4 in favour of the plaintiff and resultantly decreed the suit. It declared order dated 18.1.1991 illegal and held the plaintiff to be entitled to all service benefits including pay and allowances with interest. However, in appeal by the defendants, the judgment and decree of the trial Court was set aside and resultantly suit dismissed. Hence this second appeal.

Learned counsel appearing on behalf of the plaintiff has contended that the SSP has acted on the report of DSP and the passing of the order on the basis of report of the subordinate does not constitute legal justification in dispensing with the enquiry. It is contended that there had been total lack of application of mind by the SSP and, therefore, the judgment and decree of the first Appellate Court deserves to be set aside. In this regard, the learned counsel has relied upon the cases of Ram Sarup, Driver v. Haryana State and Ors. 1991(1) S.LR. 106 and Chief Security Officer and Ors. v. Singasan Rabi Das 1991 (2) S.L.R. 140.

Against this, learned counsel appearing on behalf of the defendants has contended that there was enough material on record to show that the plaintiff had links with the terrorists and in these circumstances no departmental enquiry had been conducted, it would have made the witnesses of Gurdaspur the targets of violence in the hands of the terrorists which was the worst affected District in the State of Punjab.

After hearing the learned counsel for the parties and on going through the record, I do not find any merit in this appeal. In Ram Sarup''s case (supra) the order of dismissal passed under Article 311(2)(b) of the Constitution was set aside by the learned Single Judge of this Court because respondents therein were not able to prove that there was any threat to the witnesses which could frustrate any apprehension in the mind of the Disciplinary Authority that the Inquiry Officer would be coerced by the petitioner. In the case of Chief Security Officer and others (supra), the only reason given for dispensing with the enquiry was that it was not considered, feasible or desirable to procure witnesses or security/other railway employees since this could have exposed these witnesses and made them ineffective in future. Their Lordships of the Supreme Court in these circumstances held that there was total absence of sufficient material or good ground for dispensing with the enquiry.

In the present case, the position is entirely different. Trial Court, while decreeing the suit, had not gone into the material which led to the passing of the order and dispensing with the enquiry but had quashed the order only on the basis of Rule 16.38 of PP Rules which provides that whenever the SSP receives information regarding commission of an offence by a Police Officer, he shall report the matter to the District Magistrate, who would order a preliminary enquiry and thereafter decide whether departmental enquiry should be conducted or criminal proceedings launched. In appeal, the first Appellate Court, however, on the basis of facts proved on record, has recorded a firm finding of fact that the SSP was satisfied from the material placed before him that it is not reasonably practicable to hold departmental enquiry. Defendants in order to support the order to show that the satisfaction was based on certain objective facts, proved on record report, Exh.DA submitted by the DSP. It thus cannot be urged that there was no material with the SSP to hold that the enquiry was not reasonably practicable or the order was passed without any application of mind. In view of serious internal disturbance in the State of Punjab because of terrorism. The SSP was justified to resort to the provisions contained in Clause (b) of second proviso to Article 311(2) of the Constitution of India for dispensing with the services of the plaintiff without holding an enquiry. The order of dismissal passed against the plaintiff being legal, no interference thus is called for in second appeal which is hereby dismissed.