Karanjeet Singh @APPELLANT@Hash State of Rajasthan & Ors

Learned counsel for the petitioner states that the petitioners were appointed as a constable with the respondent department after proper selection

process. The petitioner was part of “B†company of the first RAC along with 110 members which include Constables, Head Constables, Sub-

inspector, Company Commander and Class IV employee. During the course of the parade, on 10.12.2006 Dy. S.P. Shri Jugat Singh, Pointed out

certain irregularities regarding dressing etc. of as many as 26 personnels and petitioner was one of them.

The petitioner along with 6 persons were punished to crawl on the elbows on the public road and the photograph of which was carried by the daily

newspaper Danik Bhaskar. The petitioner was thereafter along with other 5 persons posted out from the Unit. The petitioner was thereafter dismissed

vide order dated 30.01.2007 while restoring the provisions of Rule 19(2) of the Rajasthan Civil Service (Classification, Control and Appeal) Rules,

1958. The one of the persons so dismissed vide order dated 31.01.2007 for the same incident in the same unit on the same date and with identical

circumstances, preferred S.B. Civil Writ Petition No.1737/2008 decided by Jaipur Bench of this Hon’ble Court on 17.05.2017. The judgment reads

as follows :-

“1. The admitted facts are that the petitioner was appointed as a Constable in Rajasthan Armed Constabulary (RAC) on 31/03/1995. Having

completed 11 years of service, he has been removed from service vide order dt.31/01/2007 without conducting enquiry by exercising power in terms

of Rule 19(2) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. The departmental appeal preferred by the petitioner

against the order of removal came to be dismissed vide order dt.03/10/2007.

In the order impugned dt.31/01/2007, it has been stated (2 of 6) [CW-1737/2008] that the petitioner alongwith other Constables conspired to call

media and gave interview resulting in spoiling image of the police force. It is also alleged that he threatened to kill the staff members and officers. It is

stated further that there is no possibility of conducting enquiry in the matter as it would cause indiscipline and if statement of witnesses is recorded, it

would also cause enmity amongst the staff members of the disciplined force.

After the notices were served upon the respondents, they have come out with the reply but they have not been able to explain as to which witness

statement would result in causing enmity. It is also stated that for the said allegations, a preliminary enquiry was conducted and the report of which

was submitted to the Commandant which was made a basis for initiating proceedings.

From the perusal of the said report, it is apparent that an in- house enquiry has been conducted by recording evidence without recording statement

of the petitioner and he was not given any opportunity during the said preliminary enquiry. It has also been informed at bar by learned counsel for the

respondents that a preliminary enquiry was subsequently also conducted by the Director General of Police who has found the charges proved against

the petitioner. It is, however, admitted that the petitioner was not given any opportunity to cross-examine nor he was given any show cause notice.

This Court notices that merely conducting a preliminary enquiry and recording evidence would not mean that that there was no occasion for the

respondents to conduct a regular enquiry (3 of 6) [CW-1737/2008] in the matter. The reasons, which have come forward in the impugned order,

therefore, cannot be said to be having any basis.

The Apex Court in the case of Jaswant Singh Vs. State of Punjab and others : AIR 1991 (SC) 385 has held as under:-

The impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311(2) of the Constitution.

Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it was not reasonably practicable

to hold a departmental enquiry against the appellant. These are (i) the appellant has thrown threats that he with the help of other police employees will

not allow holding of any departmental enquiry against him and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as

well as the enquiry officer. Now as stated earlier after the two Revision Applications were allowed on October 13, 1980. the appellant had re-joined

service as Head Constable on March 5, 1981 but he was immediately placed under suspension.

Thereafter, two show cause notices dated April 4, 1981 were issued against him calling upon him to reply thereto within 10 days after the receipt

thereof. Before the service of these notices the incident of alleged attempt to commit suicide took place on the morning of April 6, 1981 at about 11.00

a.m. In that incident the appellant sustained an injury on his right arm with a knife. He was, therefore, hospitalised and while he was in hospital the two

show cause notices were served on him at about 10.00 p.m. on April 6, 1981. Before the appellant could reply to the said show cause notices the third

respondent passed the impugned order on the very next day i.e. April 7, 1981.

Now the earlier departmental enquiries were duly conducted against the appellant and there is no allegation that the department had found any

difficulty in examining witnesses in the said inquiries. After the Revision Applications were allowed the show cause notices were (4 of 6) [CW-

1737/2008] issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned Counsel for the

respondents to point out what impelled respondent No. 3 to take a decision that it was necessary to forthwith terminate the services of the appellant

without holding an inquiry as required by Article 311(2). The learned Counsel for the respondents could only point out Clause (iv)(a) of sub-para 29(A)

of the counter which reads as under:

The order dated 7.4.81 was passed as the petitioner's activities were objectionable. He was instigating his fellow police officials to cause indiscipline,

show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful.

This is no more than a mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of

the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will

not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the

enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the Court the material in existence at the date of the

passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3 in the impugned order. Clause (b) of the second

proviso to Article 311(2) 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. This is clear from the following observation at p. 270 of Tulsi Ram's case:

A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in (5 of 6)

[CW-1737/2008] order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail.

The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. 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 or caprice of the concerned officer. In the counter filed by the third respondent it

is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors . It is also

said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him. No particulars are given.

Besides it is difficult to understand how he could have given threats, etc., when he was in hospital. It is not shown on what material the third

respondent came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order.

On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding

meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged

activities at Jullundur on April 3, 1981 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one's contention that the said SHO

was threatened. The third respondent's counter also does not reveal if he had verified the correctness of the information. To put it tersely the

subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with of the

inquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be

sustained.

This Court also in the case of Dr. Behari Lal Gupta Vs. State of Rajasthan and ors.: 2002(1) WLC 752 has fround such an order bassed under

Section 19(2) of the Rules of 1958 as bad as the reasons as contained in the order did not exist for dispensing with the enquiry.

Having taken note of the facts and law as above, this Court is satisfied that the order has been passed without subjective satisfaction and there was

no independent material to justify for dispensing with the regular enquiry as envisaged under Rule 19(2) of the Rules of 1958. The dispensation of the

regular eqnuiry could not be done on the whims and fancies of the officers, special when preliminary enquiry has been made a basis for passing of the

order impugned.

In view of the above, this writ petition is allowed. The punishment order impugned dt.31/01/2007 as well as the appellate order dt.03/10/2007 are

hereby quashed & set aside and it is directed that the petitioner shall be reinstated in service forthwith with all monetary benefits as to pay and

allowances etc. applicable to him from the date of his dismissal. Needless to say that it would be open for the department, if so advised,

notwithstanding the lapse of time to proceed further. The compliance of this order shall be made by the respondents within one month from the date of

submission of certified copy of this order in their office. No costs.â€​

Learned counsel for the respondent is not in a position to refute the aforementioned facts that the precedent law was arising out of the same order

dated 31.01.2007.

However, the learned counsel for the respondent vehemently argued that the strong proof existed against the petitioner and therefore, the order

impugned was justified. Learned counsel for the respondent has further argued that the petitioner has not rendered the services since the time of

dismissal and therefore, if at all some benefit has to be given then the same has to be on notional basis and the actual pay and salary of the period not

served ought not to be granted by this Court.

After hearing counsel for the parties this Court finds that since the present petition is also arising in the same set of facts and circumstance out of

the same impugned order dated 31.01.2007 with the same set of respondents, it will not be appropriate to deviate from the precedent law in any

manner. Hence, the operative portion of the precedent law shall be applicable for the petitioner on the same terms.

The writ petitions are allowed accordingly.