- (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 : "Whereas, Sub-Inspector Ashok Kumar No. 471/J posted in the Detective Staff, Amritsar, has been reported to be in league with smugglers/Anti-social elements of Amritsar and passing on secret and classified information of vital importance to them to carry out their anti-social activities. 2. And whereas, after going through the facts and circumstances of the case and giving full consideration, I am satisfied that departmental enquiry as envisaged by P.P. R. 16.24 is not reasonably practicable because no witness is likely to depose against him due to fear of injury to his life. 3. And whereas in the interest of maintenance of law and order and also in public interest, retention of aforesaid Sub-Inspector Ashok Kumar No. 471/J in the Police Force is considered undesirable. I have also considered the length of service of this Sub-Inspector and right of pension under PPR 16.1. 4. Now, therefore, I, Izhar Alam, IPS, Senior Superintendent of Police, Amritsar in exercise of the powers vested in me by virtue of provisions of PPR 16.1 read with Section 7 of the Police Act, 1961 and Article 311(2) of Constitution of India, do hereby dismiss from service said Sub-Inspector Ashok Kumar No. 471/J with immediate effect. Sd/ Izhar Alam, IPS, Sr. Superintendent of Police, Amritsar. No. 27736-32/A dated 23.9.1987."
(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. From The Sr. Superintendent of Police, Amritsar. To The Deputy Inspr. Genl. of Police, Jalandhar Range, Jallandar Cantt. No. 1807/ST Dated 30.11.1987 Subject - Appeal of Exhibit SI Ashok Kumar No. 471/J. Memorandum Please refer to your secret Memo No. 907/JR. 87 dated 10th November, 1987 on the subject cited above. 2. I have gone through the details of my orders dismissing SI Ashok Kumar No. 471/J. I have come to the conclusion that some technical flaws have been left while drafting the order. If the dismissing SI goes to the Court of law, the order may be quashed by the Court. Therefore, I will have no objection if the dismissed police officer is reinstated by you while deciding his representation. Moreover, I have been assured by some responsible colleagues that the dismissed police officer will not repeat the corrupt and unpolice like habits in future. Sd/- Sr. Supdt. of Police Amritsar A perusal of the aforesaid letter of the Superintendent of Police to the DIG clearly shows that the author of the order himself was satisfied that the impugned order of dismissal cannot be sustained. There cannot be better case of illegality of the order that the author of the order himself that the order cannot be sustained. It is also clear that the punishing Authority of the petitioner was DIG as he was promoted under his orders. Consequently, the decision to dispense with the enquiry could be taken by the DIG. In this view of the matter, the impugned order is illegal. There is no material on the file to show that the punishing Authority was satisfied that it was not reasonably practical to hold enquiry against the petitioner. Therefore, the order of dismissal is arbitrary, unreasonable and capricious as it denies equality before law and equal protection to the person concerned and, therefore, violative of Article 14 of the Constitution of India. For this reason, the order of dismissal from service being violative of Article 14 of the Constitution is bad in the eye of law.;