Pirthipal Singh vs State of Punjab and Others

M.L. Singhal, J.—Shri Pirthipal Singh was appointed as ASI on probation with the Punjab Police on 17.3.1980. He was confirmed on 31.3.1983. He was promoted as Sub Inspector on 29.1.1985. He remained posted as Additional SHO, Police Station E. Division, Amritsar and SHO Police Station, Ramdas, C1A Headquarters, Amritsar and SHO Police Station, Khalra. He was awarded a good number of commendation certificates by the SSP and DIG for the good work done by him. On 2.4.1988, a new Police District, Tarn Taran was carved out. Sh. Sanjiv Gupta, IPS was SSP, Police District, Tarn Taran: As Police Station, Khalra was part of Police District, Tarn Taran, he came to work under Sh. Sanjiv Gupta, SSP Tarn Taran. During his stay as SHO Police Station, Khalra he arrested a number of notorious smugglers/couriers. Besides, he arrested terrorists and their harbourers. On some false allegations, a departmental enquiry was ordered against him. He was served with the summary of allegations dated 30.6.1988. He was served with the order dated 1.7.1988 dismissing him from service passed by SSP, Tarn Taran. SSP Tarn Taran did not hold any enquiry. He dismissed him from service by dispensing with the holding of enquiry. For dispensing with the holding of enquiry and dismissing him from service summarily, he resorted to the provisions of proviso (b) to Clause (2) of Article 311 of the Constitution of India, on the ground, that the holding of enquiry was not practicable as the witnesses were not likely to depose against him due to fear of injury to their lives and that in the interest of national security, his retention in service was not desirable. He filed appeal against the order dismissing him from service as provided under Rule 16.29 of the Punjab Police Rules to the Deputy Inspector General of Police, Border Range, Amritsar, who on consideration of the entire material/evidence and the comments of the SSP, Tarn Taran on the appeal found that the dismissal order was passed without application of mind by the competent authority and that there was no justification to dispense with the enquiry and further the provisions of the Constitution have been invoked to circumvent the procedure as to enquiry. Deputy Inspector General of Police (DIG), Border Range, Amritsar quashed the order of dismissal and further ordered that the departmental enquiry be held against him in accordance with the rules. In consequence of the order passed by the DIG of Police, Border Range, Amritsar, he was reinstated in service with retrospective effect vide order dated 8.10.1988 by SSP Tarn Taran. He was relieved to join at Amritsar on transfer where he took over on 4.11.1988. Before the departmental enquiry could proceed at Amritsar, the was transferred to Sangrur, where he took over on 1.2.1989. A regular departmental enquiry was conducted against him at Sangrur on the aforesaid allegations. He filed written statement before the Enquiry Officer. After detailed enquiry, in accordance with the relevant rules, Enquiry Officer exonerated him of the charges against him and submitted report to the SSP, Sangrur who on consideration of the statements of the witnesses and the other relevant material on record did not find the charges substantiated and dropped the proceedings against him vide his order dated 17.4.1989. To his surprise and misfortune. Director General-cum-Inspector General of Police in purported exercise of powers under Rule 16.28 of the Punjab Police Rules, 1934 served notice on 10.7.1989 i.e. about/after 9 months of his reinstatement and much after his exoneration of the charges on which he was dismissed by the SSP, Tarn Taran to show cause as to why the order dated 18.10.1988 of DIG Border Range, Amritsar be not set aside and the order dated 7.7.1988 passed by the SSP, Tarn Tarn restored directing his dismissal from service. He submitted a detailed reply pointing out that the order dated 7.7.1988 of SSP, Tarn Taran was arbitrary and was not passed on any material to support the allegations and without there being any material to form the opinion that departmental enquiry was not practicable. It was also brought to his notice that enquiry into the charges on which the order of dismissal was passed had since been completed under orders of the DIG of Police, Border Range, Amritsar and he had since been exonerated and the charges dropped by the competent authority. Director General-cum-Inspector General of Police without application of mind and without any legal authority quashed the order dated 18.10.1988 of DIG, Border Range, Amritsar reinstating him into service, and maintained the order dated 7.7.1988 of SSP Tarn Taran, dismissing him from service. Director General-cum-Inspector General of Police did not advert to the order dated 17.4.1989 of SSP, Sangrur exonerating him of the charges levelled against him by the SSP, Tarn Taran. The order dated 17.4.1989 of the SSP, Sangrur thus subsists. Under Rule 16.28 of the Punjab Police Rules, the power of review of departmental proceedings is conferred on the Inspector General of Police etc. In this case no departmental proceedings were taken and the same had been dispensed with. The said rule did not therefore vest the power of review in the Director General of Police. Moreover, this power can only be exercised where there is some award of punishment. It is clear from Sub-rule (3) of Rule 16.28 that this power can be used only for enhancement of punishment. There is nothing in this rule to empower imposing of punishment when an officer has been exonerated.

He challenged the order of SSP, Tarn Taran dated 7.7.1988 dismissing him from service and also the order dated 5.2.1990 of the Director General/Inspector General of Police, up-setting the order dated 18.10.1988 of DIG Border Range, Amritsar being unconstitutional, ultra-vires, void, arbitrary, capricious, bad, illegal, without jurisdiction, in-effective and in-operative. He prayed that he continued to be in service of the police force of the State of Punjab with powers and privileges attached to the post of Sub Inspector of Police as on 7.7.1988 and 5.2.1990 throughout and entitled to pay and allowances of his post with all other consequential benefits.

Defendant-State of Punjab contested the suit of the plaintiff, urging that a departmental enquiry was ordered against him that he while posted as SHO Police Station, Khalra arrested a smuggler namely Lakhwinder Singh and released him after accepting Rs. 30,000/-. He was dismissed from service by the SSP, Tarn Taran by dispensing with the holding of regular enquiry and thus resorting to the provisions of proviso (b) to Clause (2) of Article 311 of the Constitution of India. There was no reason for DIG Border Range, Amritsar to set aside the order of his dismissal from service passed by the SSP, Tarn Taran and reinstating him into service and ordering the holding of regular enquiry. Director General-cum-Inspector General of Police restored the order of SSP, Tarn Taran dismissing him from service categorically holding that his conduct was reprehensible and the holding of regular departmental enquiry was rightly dispensed with.

Vide order dated 16.3.1995 Subordinate Judge 1st Class, Sangrur decreed his suit for declaration that order dated 7.7.1988, dismissing him from service and the order dated 5.2.1990 of Director General-cum-Jnspector General of Police setting aside the order dated 18.10.1988 of DIG, Border Range, Amritsar are un-constitutional, ultra vires, void, arbitrary, capricious, bad, illegal, without jurisdiction, ineffective and in-operative and that he continued to be in the service of police force of the State of Punjab as on 7.7.1988 and 5.2.1990 throughout and entitled to pay and allowances attached to his post throughout with all other consequential benefits.

State of Punjab went in appeal against the decree of the Subordinate Judge 1st Class, Sanguru which was allowed by Additional District Judge, Sanguru vide order dated 5.8.1996.

Not satisfied with the decision of the Additional District Judge, Sangrur, Pirthi Pal Singh has come up in appeal to this Court.

In this regular second appeal, the only point that wises is whether the holding of regular departmental enquiry could be dispensed with by invoking the provisions of proviso (b) to Clause (2) of Article 311 of the Constitution of India and could he be dismissed from service?

Article 311(2) of the Constitution of India lays down that no such person as aforesaid 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.

Provided that where it is proposed after such enquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such enquiry and it shall not be necessary to give such person any opportunity or making representation on the penalty proposed. Provided further that this clause shall not apply:

"(a) xxx xxx

(b) where an authority empowered to dismiss or remove a persons 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 enquiry;

(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 enquiry.

(3) If, in respect of any such person as aforesaid, a question whether it is reasonably practicable to hold such enquiry 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."

It is thus clear that SSP Tarn Taran could dispense with the holding of regular enquiry into his conduct if he was satisfied that it was not reasonably practicable to hold such enquiry. SSP, Tarn Taran, in the impugned order has observed that it has been reported against SI Pirthipal Singh No. 259 previously posted as SHO PS Khalra that he is mixed up with the smugglers who are smuggling weapons for the extremists from across the border and also giving shelter to Pakistan Nationals for helping them in carrying on their activities prejudicial to the security of the country. A going through of all the evidence available against him which has been brought out during interrogation of Mangal Singh son of Hazara Singh Jat r/o Awan Tara Singh PS Khalra and Samund Singh alias Sarpanch s/o Gurdial Singh Jat r/o Mart Megha PS Bhikhiwind drives him to the considered view that departmental regular enquiry as laid down in PPR is not practicable as the witnesses are not likely to depose against him due to the fear of injury to their lives. In the interest of maintenance of law and order, national security and in the public interest, the retention of SI Pirthipal Singh No. 259/J in service is considered undesirable." SI Pirthipal Singh was dismissed from service by SSP Tarn Taran in exercise of the powers vested in him by virtue of Rule 16.1 of the Punjab Police Rules read with Section 7 of the Police Act, 1861 and Article 311(2) of Constitution of India.

It was submitted by the learned counsel for the appellant that there should be some material on record from which one can come to the conclusion that the holding of enquiry is or was not practicable. In this case, it was submitted that there was no material before the SSP, Tarn Taran for dispensing with the holding of enquiry and to summarily dismiss him from service.

In Darshan Jit Singh Dhindsa v. The State of Punjab and Ors., 1993(2) Recent Services Judgments 650, it was held by a Division Bench of this Court that mere reproduction of the words of the statute are not sufficient to justify the finding of fact with respect to the satisfaction of the authority concerned, when there is nothing on the record from which one can come to the conclusion that holding of an enquiry is or was not practicable and even the charge of petitioners'' having links with the extremists is too vague particularly in view of the service record of the petitioner prior to his dismissal whereby commendation certificates were issued for the courageous acts performed by the petitioner in curbing the terrorists activities, the holding of regular enquiry could not be dispensed with.

In Jaswant Singh v. State of Punjab and Ors. 1991(1) R.S.J. 452 the Hon''ble Supreme Court held that 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. Decision to dispense with enquiry cannot be rested solely on the ipse dixit of the concerned authority.

In Kuljit Singh v. State of Punjab 1991(1) R.S.J. 512 it was held that the impugned order is bad in law because it does not record the reason which satisfied the SSP to pass it without holding an enquiry on the ground that it is not reasonably practicable to hold enquiry.

The holding of enquiry can well be dispensed with under Article 311(2) (b) of the Constitution of India where there is enough material and objective facts on record which suggest that it was not reasonably practicable to hold departmental enquiry. Dismissal from service without holing enquiry would be proper. Plaintiff constable had links with terrorists and there was certain allegation of dereliction of duty in order to aid extremists. His dismissal from service after dispensing with the holding of departmental enquiry was proper.

In Ex. Constable Nirmal Singh v. The State of Punjab and Ors. 1991(1) S.L.R. 692 it was held that where there is sufficient material on record that the petitioner was having links with terrorists and was indulging in narcotic substances and the enquiry was dispensed with on objective facts that the continuance of the petitioner in the police force is not conducive to the interest of the State. Order of dismissal after dispensing with the enquiry is proper.

In this case thus we have to look to the order of SSP, Tarn Taran to find out whether there was adequate material with him to say that the holding of regular enquiry was not reasonably practicable. SSP Tarn Taran has clearly manifested himself in the impugned order that while posted at PS Khalra, he is mixed up with smugglers who are smuggling weapons for the extremists from across the border and also giving shelter to Pakistan Nationals for helping them in carrying on their activities prejudicial to the security of the country. He became satisfied after going through all the evidence available against him which as brought out during the interrogation of Mangal Singh and Samund Singh alias Sarpanch that a departmental enquiry as laid down in PPR is not practicable as the witnesses are not likely to depose against him due to the fear of injury to their lives.

In the order of Director General-cum-Inspector General of Police, Punjab, it is clearly manifested that the conduct of SI Pirthipal Singh was reprehensible and the holding of departmental enquiry was rightly dispensed with by the competent authority. It was the subjective satisfaction of SSP, Tarn Tarn which induced him to dispense with the holding of regular departmental enquiry dismissing him from service by invoking the provisions of Article 311(2) of the Constitution of India.

It was submitted by the learned counsel for the appellant that the dispensing with the holding of departmental enquiry was not justified under proviso (b) to Clause (2) of Article 311 of the Constitution of India, as if the holding of departmental enquiry is to be dispensed with in the interest of the security of the State, it can only be done by the President or the Governor. It was submitted that SSP, Tarn Taran could not dispense with the holding of departmental enquiry, if his activities were prejudicial to the security of the country.

In my opinion, SSP Tarn Taran did validly act under the proviso (b) to Clause (2) of Article 311 of the Constitution of India when he has observed that the holding of regular enquiry will not be in public interest and will be prejudicial to the security of the country.

Faced with this position, learned counsel for the appellant submitted that when SSP Sangrur had commenced regular enquiry in pursuance to the orders of DIG Border Range, Amritsar and had exonerated him, there was no occasion for the Director General-cum-Inspector General of Police to review that order and restore the order of SSP, Tarn Taran.

It would bear repetition that the interrogation of Mangal Singh and Samund Singh alias Sarpanch had suggested that he was mixed up with smugglers and anti national elements and in these circumstances the holding of regular enquiry was thought not reasonably practicable.

Learned counsel for the appellant further submitted that he was a highly devoted officer inasmuch as he arrested a number of smugglers/terrorists during his positing as SHO at PS Khalra, Besides he arrested a number of terrorists and their harbourers. It was submitted that he was highly imbued with the spirit of nationalism. If he had been afflicted with anti national feelings, he would not have arrested smugglers/terrorists and their harbourers.

Suffice it to say, the order passed by SSP, Tarn Taran has quite vividly brought out the anti national activities, he was indulging in. SSP Tarn Tarn was commanding the police force of Police District, Tarn Tarn. SI Pirthipal Singh was posted under him. SSP Tarn Taran must be having a full scent of his activities.

for the reasons given above, I am of the opinion that the holding of regular departmental enquiry into the conduct of the appellant was justifiably dispensed with under proviso (b) to Clause (2) of Article 311 of the Constitutional of India. He was summarily dismissed from service in view of his anti-national activities. So, this appeal fails and is dismissed with no order as to costs.