Allowed

Amandeep Singh v. State of Punjab and Others

Punjab & Haryana HC20 Sept 2023CWP/21426/2022

Case brief

AI extract

What is this about?

Petitioner, a police constable, challenged his dismissal without a departmental inquiry under Section 311(2)(b) of the Constitution. The court examined whether the issuance of a fake gun receipt and related FIRs justified dispensation of inquiry. It held that mere FIR registration or public interest assertions without recorded objective facts render such dispensation invalid. The dismissal was set

What did the court decide?

Impugned orders dismissing petitioner from service set aside; petitioner to be reinstated with all consequential benefits; liberty granted but no mandate to initiate proceedings.

Amandeep Singh Vs State of Punjab and Others — Service and Employment | Punjab & Haryana HC (2023)

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2023:PHHC:123817

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In the High Court for the States of Punjab and Haryana at Chandigarh

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CWP-21426-2022 (O&M) Date of Decision:-20.9.2023 Amandeep Singh .…………….….Petitioner Versus State of Punjab and others ......………....Respondents

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CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL

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Present:Mr. H.S. Dhindsa, Advocate for the petitioner.

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Mr. Inderpreet Singh Kang, AAG, Punjab.

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GURVINDER SINGH GILL, J . (Oral)

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The petitioner herein assails the following three orders:

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i. Order dated 24.2.2017 (Annexure P-1) passed by respondent No.3 – Senior Superintendent of Police, Ludhiana Rural vide which services of the petitioner were terminated by invoking provisions of Section 311 (b) (2) of Constitution of India;

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ii. Order dated 26.10.2017 (Annexure P-3) passed by DIG, Ludhiana Range, Ludhiana vide which the appeal filed by petitioner challenging order dated 24.2.2017 (Annexure P-1) has been dismissed; And

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iii. Order dated 29.4.2019 (Annexure P-4) passed by DGP, Punjab vide which the appeal filed by petitioner challenging order dated 24.2.2017 (Annexure P-1) has been dismissed.

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The petitioner was appointed as a Constable in the Punjab Police in the year 2011 and was working as MHC at Police Post Kaunke Kalan, Tehsil Jagraon,

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Pankaj Kakkar 2023.09.21 17:46 I attest to the accuracy and authenticity of this document

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CWP-21426-2022 (O&M) ( 2 ) 2023:PHHC:123817

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District Ludhiana in the year 2017. One FIR i.e. FIR No.10 dated 20.2.2017 was lodged at Police Station Bhadaur under Sections 149, 148, 307, 427, 506 read with Section 149 of Indian Penal Code against Jagjiwanjot Singh @ Joti, Gurjit Singh @ Harjit Singh @ Jit Singh, Simarjit Singh @ Gaggi, Baldev Singh Debi, Navjot Singh @ Joti and Joginder Singh, wherein it was inter-alia alleged that Navjot Singh @ Joti had fired from his gun. Subsequently, it transpired that the gun used by Navjot Singh @ Joti was the one in respect of which the petitioner, who was working as MHC at Police Post Kaunke Kalan, Tehsil Jagraon, District Ludhiana, had issued a fake receipt regarding its deposit in armoury, whereas the gun had never actually been deposited and always remained with said Navjot Singh @ Joti. It is further the case of petitioner that 3 days after lodging of the aforesaid FIR i.e. FIR No.10 dated 20.2.2017, the petitioner was dismissed from service on 24.2.2017 without holding any inquiry purportedly by way of invoking provisions of Section 311 of Constitution of India as regards dispensation of inquiry.

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The short point raised by learned counsel for the petitioner is that there were no such grounds which could justify dispensation of an inquiry and that neither the petitioner had been convicted in respect of any criminal case nor were there any such circumstances, which could show that holding an inquiry was not practicable. Learned counsel representing the petitioner, in order to hammer forth his aforesaid submissions, places reliance upon judgments passed by Hon’ble the Supreme Court rendered in (2014)13 SCC 244 Risal Singh vs. State of Haryana and Reena Rani v. State of Haryana, (2012) 10 SCC 215.

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Pankaj Kakkar 2023.09.21 17:46 I attest to the accuracy and authenticity of this document

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( 3 )

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CWP-21426-2022 (O&M)

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2023:PHHC:123817

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Opposing the petition, learned State counsel submitted that since it is a case wherein serious allegations have been leveled against the petitioner inasmuch it was found that he was having links with anti-social elements and had even furnished a bogus receipt regarding deposit of a gun belonging to Navjot Singh @ Joti in the armoury, whereas the same had never been deposited, it was certainly not feasible or practical to allow the petitioner to continue in service.

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This Court has considered rival submissions addressed before this Court.

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Since it is a case where services of the petitioner have been terminated, admittedly without holding any inquiry, it is apposite to refer to the relevant provisions providing for dispensation of an inquiry. Article 311 of Constitution of India reads hereinunder:

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“ Article 311, Constitution of India 1950

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(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

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(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided that this clause shall not apply—

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(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;

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(b) where an authority empowered to dismiss or remove a person 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 give to that person an opportunity of showing cause; or

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Pankaj Kakkar 2023.09.21 17:46 I attest to the accuracy and authenticity of this document

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( 4 )

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CWP-21426-2022 (O&M)

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2023:PHHC:123817

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(c) where the President or Governor or Rajpramukh, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.

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(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.”

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A perusal of Article 311 of Constitution of India would indicate that it is only under a few specified circumstances that inquiry may be dispensed with, which are either on account of conviction of an official or on account of it being impracticable to hold an inquiry or where the President or the Governor is satisfied that it is not in the interest of security of the State to hold such an inquiry.

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The only circumstance in the present case could be said to be against the petitioner is that he had issued receipt in respect of deposit of a gun in armoury, though the same had never been deposited and was later found to be misused by owner of the said gun who was involved in FIR No. 10 dated 20.2.2017 at Police Station Bhadaur. The said fact by itself would not be sufficient to dispense with holding of an inquiry before dismissing an employee from service. The impugned order merely states that it is not in public interest to retain the petitioner in service without delineating on any reason for dispensation with holding of an inquiry. This Court in 2014(6) SLR 155 in Constable Harinder Kumar vs. State of Punjab , where the delinquent was dismissed from service without holding any inquiry, pursuant to registration of two FIRs, one under Section 401 IPC and the other under Section 25 of Arms Act, 1959, on the grounds that the activities of the delinquent were highly prejudicial and detrimental to police working as well

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Pankaj Kakkar 2023.09.21 17:46 I attest to the accuracy and authenticity of this document

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CWP-21426-2022 (O&M) ( 5 ) 2023:PHHC:123817

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as against public interest, held that mere registration of FIR is not valid ground to dispense with holding a regular inquiry. Even in a subsequent case 2022(4) PLR 603 Surinder Kumar vs. State of Punjab , this Court held that mere registration of an FIR would not be sufficient ground to dispense with the holding of a departmental inquiry before dismissing a delinquent employee.

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Punishing authority statutorily as also on the pedestal of principles of natural justice is bound to follow cardinal principles of natural justice which cannot be dispensed with merely on one pretext or the other. It cannot be lost sight of the fact that when right of defending himself in a departmental enquiry is lost to a delinquent, duty of the punishing authority becomes even further onerous to strictly follow the legal mandate while justifying dispensing with regular departmental enquiry.

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Hon’ble Supreme Court in (2014)13 SCC 244 Risal Singh vs. State of Haryana , while relying upon an earlier judgement rendered in Union of India and Anr. v. Tulsiram Patel, (1985) 3 SCC 398, held as under:

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“6. We have already reproduced the order passed by the competent authority. On a bare perusal of the same, it is clear as day that it is bereft of reason. Non-ascribing of reason while passing an order dispensing with enquiry, which otherwise is a must, definitely invalidates such an action. In this context, reference to the authority in Union of India and Anr. v. Tulsiram Patel, (1985) 3 SCC 398 is apposite. In the said case the Constitution Bench, while dealing with the exercise of power under Article 311(2)(b), has ruled thus:

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‘130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected,

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Pankaj Kakkar 2023.09.21 17:46 I attest to the accuracy and authenticity of this document

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CWP-21426-2022 (O&M) ( 6 )

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2023:PHHC:123817

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accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished: feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.’ ”

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Hon’ble Apex Court in another case, Jaswant Singh v. State of Punjab and Others, (1991) 1 SCC 362 , while dealing with the exercise of power as conferred by way of exception under Article 311(2)(b) of the Constitution, opined as follows:

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"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 page 270 of Tulsiram case: (SCC p.504, para 130)

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‘ A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the department's case against the Government servant is weak and must fail.’

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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.”

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In yet another case Reena Rani v. State of Haryana, (2012) 10 SCC 215 , Hon’ble Supreme Court after referring to a catena of judgements, held that when reasons justifying dispensation of inquiry are not forthcoming, the order is vitiated and accordingly set aside the order of dismissal.

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Pankaj Kakkar 2023.09.21 17:46 I attest to the accuracy and authenticity of this document

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CWP-21426-2022 (O&M) ( 7 )

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2023:PHHC:123817

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As already discussed above, no such circumstances can be discerned from the facts which could justify dispensation of holding of any inquiry before dismissing the petitioner from service. Testing the instant case on the touchstone of the aforesaid authorities, the irresistible conclusion is that the impugned order passed by the Superintendent of Police dismissing the petitioner while dispensing with the inquiry is totally unsustainable.

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Consequently, the petition merits acceptance and is hereby accepted. The impugned orders dismissing the petitioner from service are set aside with the direction that the petitioner be reinstated in service and given all consequential benefits.

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However, it is made clear that this order shall not preclude the competent authority from taking action against the appellant in accordance with law. At the same time, it is also made clear that liberty given by this Court shall not be construed as a mandate for initiation of disciplinary proceeding against the petitioner and the competent authority shall take appropriate decision after objectively considering the entire facts of the case.

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20.9.2023 ( Gurvinder Singh Gill ) pankaj Judge

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Whether speaking /reasoned Yes / No Whether Reportable Yes / No

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Pankaj Kakkar 2023.09.21 17:46 I attest to the accuracy and authenticity of this document

Amandeep Singh v. State of Punjab and Others

Case brief

What is this about?

What did the court decide?

Amandeep Singh v. State of Punjab and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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