Augustine George Masih, J. - (1.) (Oral) - Petitioners have approached this Court impugning the order dated 23.11.2010 (Annexure P-1) passed by the Superintendent of Police, Kurukshetra vide which both the petitioners have been dismissed from service invoking Article 311(2)(b) of the Constitution of India dispensing with the holding of departmental enquiry against the petitioners and subsequent orders passed by the appellate as well as the revisional authorities rejecting the appeal/revision of the petitioners.
(2.) It is the contention of the counsel for the petitioners that the only reason assigned for invoking Article 311(2)(b) of the Constitution of India is that the petitioners would influence the witnesses and would threaten and terrorise as also intimidate them as they are police officials is unsustainable. It has further been stated that there are no independent witnesses, therefore, further enquiry is not practicable. This, the counsel for the petitioner contends, cannot be accepted in the light of the fact that respondent No.4 in his impugned order has specifically stated that during investigation of FIR No. 234 dated 16.11.2010, it has been found that the escort guard officials have connived with accused Vishveshwar @ Rinku and have made his escape easy by adopting callous and careless attitude. This indicates that there is evidence available with the respondents against the petitioners and the reason therefore that there is no independent witness or evidence against the petitioners to prove the guilt, is not sustainable.
(3.) His further contention is that both these petitioners were not involved in the escape of Vishveshwar @ Rinku. A team of four police officials was constituted to escort two accused namely Vishveshwar @ Rinku son of Raj Kumar and Sagar son of Surmukh Singh to the L.N.J.P. Hospital, Kurukshetra for their medical check up. On reaching the said hospital both the petitioners took Sagar son of Surmukh Singh for his medical check up, whereas Constable Karan Singh and EHC Harpal Singh took Vishveshwar @ Rinku for his medical check up. It is from the custody of EHC Harpal Singh and Constable Karan Singh, that Vishveshwar @ Rinku made good the escape for which the petitioners cannot be held responsible and their role in the escape of Vishveshwar @ Rinku cannot be equated with that of EHC Harpal Singh and Constable Karan Singh. In any case, he contends that the impugned order does not fulfill the mandate of the law as laid down by Hon'ble Supreme Court in the case of Union of India and another v. Tulsiram Patel and others; 1985 AIR 1416. Reliance has also been placed upon the judgment of this Court in Gurmit Singh v. State of Punjab and others; 2011(1) SCT 41. where it has been held that while exercising powers under Article 311(2)(b) of the Constitution of India merely saying that the witnesses-co-accused would not give evidence against the delinquent in the departmental enquiry, is not sufficient. Counsel has also placed reliance upon the judgment of the Supreme Court in the case of Sudesh Kumar v. State of Haryana, 2005(11) SCC 525. supporting the said assertion. Accordingly, prayer has been made for quashing the impugned orders and allowing the present writ petition.;