ASHOK KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This is a writ petition challenging the order of dismissal passed by Superintendent of Police, Amritsar. The order has been passed thereby dispensing with the enquiry as required under Article 311(2) of the Constitution of India. The petitioner has been dismissed summarily. The order of dismissal reads as under :

(2.) A perusal of the order clearly shows that the petitioner has been dismissed on the allegation that he has been mixing with the smugglers and other bad characters. To render help or assistance to smugglers or anti-social elements is an office relating to public. Provisions of Rule 16.38 of the Punjab Police Rules lays down that whenever Superintendent of Police 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 to be held and thereafter he would decide whether departmental enquiry should be held or a criminal prosecution should be launched. It was obligatory on the Superintendent of Police to refer the matter to the District Magistrate as laid down in Rule 16.38 of the Punjab Police Rules. It was for the District Magistrate to decide as to whether a departmental enquiry should be held or criminal proceedings should be held. This provision regulates the stage prior to the holding of departmental enquiry against a government servant. The dispensing with of the departmental enquiry under Article 311 does not automatically empower the Punishing Authority not to follow the statutory provisions of Rule 16.38 of the Punjab Police Rule. Proviso to Article 311 is limited to the dispensing with of the enquiry without giving reasonable opportunity to defend himself during enquiry. If a law provides for a safeguard prior to the holding of departmental enquiry, that has to be observed. Admittedly, in the present case, the case of the petitioner was not placed before the District Magistrate and he has been dismissed from service without complying with the provisions of Rule 16.38 of the Punjab Police Rules. It has been laid down by the Supreme Court in Delhi Administration v. Chanan Singh, 1969 SLR 217and in Union of India v. Ram Krishan,1972 2 SLR 11, that the provisions of Rule 16.38 have to be followed and failure to do so renders the order of punishment null and void. I am of the view that in the present case, it was necessary for the Superintendent of Police to have complied with the provision of Rule 16.38 of the ibid Rules.

(3.) It has been argued by the counsel for the petitioner that there was no material before the Superintendent of police to come to the conclusion that it was not reasonably practicable to hold enquiry in this case. The satisfaction of the Punishing Authority is the condition precedent for invoke the provisions of proviso to Article 311 of the Constitution. A bare perusal itself shows that the Superintendent of Police has held that it was not reasonably practicably to hold departmental enquiry in this case. He has simply stated that it is not reasonably practicably to hold department enquiry. I asked Mr. Rajiv Atma Ram, counsel for the respondent to show the material on the basis of which this satisfaction was based. There is hardly any material on record on the basis of which an opinion can be formed that it was not reasonably practicably to hold a departmental enquiry. Consequently, the order of dismissal in the present case is wholly arbitrary, unreasonable and capricious and, therefore, cannot be sustained. The order of the Superintendent of Police is clearly outside the scope of Article 311 of the Constitution and consequently it was incumbent upon the Superintendent of Police to have held enquiry in the present case before punishing the petitioner. It is important to note that when comments were asked for from the Superintendent of Police after the appeal was entertained by the D.I.G. he (S.P.) addressed the following communication to the D.I.G.