2006 Supreme(SC) 982

2006(8) Supreme 385
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Prithipal Singh—Appellant
versus
State of Punjab & Ors.—Respondents
Civil Appeal No. 5226 of 2004
Decided on 19-10-2006
Counsel for the Parties :
For the Appellant : K.T.S. Tulsi, Sr. Advocate, Seeraj Bagga and Mrs. Sureshta Bagga, Advocates.
For the Respondents : Kuldip Singh, R.K. Pandey and Arun K. Sinha, Advocates.

IMPORTANT POINT
Once in a disciplinary proceedings delinquent public servant was exonerated of charges framed against him, question of taking recourse to clause (b) of 2nd proviso to clause (2) of Article 311 of Constitution of India did not and could not arise.

Headnote:Constitution of India—Article 311 Clause (2) 2nd proviso—Dispensation of enquiry where the Authority empowered to dismiss or remove an employee or to reduce him in rank was satisfied that for reasons to be recorded in writing it was not reasonably practicable to hold such inquiry—Once in disciplinary proceedings the delinquent was exonerated of charges framed against him, question of taking recourse to clause (b) of 2nd proviso to Article 311 of Constitution could not arise—Appellant posted as Sub-Inspector in police was dismissed from service by Senior Superintendent of Police during pendency of departmental proceedings on a charge of grave misconduct—Appellate Authority, Deputy Inspector General of Police set aside said order of dismissal and directed completion of disciplinary proceedings—Appellant was reinstated—Departmental proceedings followed and misconduct alleged against appellant was found not proved and proceedings were dropped —After a show cause, Director General of Police set aside the order of Deputy Inspector General of Police and dismissal from service order was restored —Civil Court set aside the impugned order passed by Director General of Police—District Judge allowed appeal and its order was upheld by High Court—Appeal—Once appellant was exonerated of charges, question of issuing order of dismissal upon dispensation of formal inquiry did not arise—Judgment of High Court was liable to be set aside and that of trial Court to be restored.

       Held : Appellant was a Government servant. He was entitled to the protection as envisaged under Article 311 of the Constitution of India. His services could, therefore, be terminated only by an Authority competent in that behalf; upon being informed of the charges and after giving him a reasonable opportunity of hearing in respect thereof. Clause (b) of the 2nd Proviso appended thereto, however, provides for dispensation of such enquiry where the Authority empowered to dismiss or remove an employee or to reduce him in rank is satisfied that for reasons to be recorded in writing, it is not reasonably practicable to hold such inquiry.(Para 5)

       Indisputably, the Disciplinary Authority being Senior Superintendent of Police, Tarn Taran was of the said view. The said Authority, however, did not, in his order dated 7.7.1988, record that the conditions precedent for invoking the said provisions stood fulfilled. He proceeded to exercise his jurisdiction under the Rules without completion of the departmental proceedings. He opined that a regular inquiry, without there being any material on record, as laid down in Punjab Police Rules, was not practicable as the witnesses were not likely to depose against him due to the fear of injury to their lives. No reason was assigned in support thereof. Appellant herein preferred an appeal thereagainst. The learned Appellate Authority noticed that summary of allegation had been served upon Appellant on 30.6.1988. He was of the opinion that when the departmental enquiry was initiated, it was incumbent upon the punishing authority to complete it and the provisions of Rule 16.28 of the Rules read with Section 7 of the Police Act, 1861 could not have been circumvented in such a manner. It was categorically held :

       "....As soon as a stigma is attached against the Govt. Employee, then it is necessary to have a probe made into it. If the departmental enquiry had not been ordered then the dismissal order of SSP was not open to challenge and in this manner, the dismissal order is illegal, void and not sustainable."(Para 6)

       It is not in dispute that pursuant thereto or in furtherance of the said order dated 18.10.1988, Appellant was reinstated in service. Thereafter the departmental proceedings were held and therein the charges, having not been proved, were dropped. Once in the disciplinary proceedings Appellant was exonerated of the charges framed against him, the question of taking recourse to Clause (b) of the 2nd Provision appended to Clause (2) of Article 311 of the Constitution of India did not and could not arise. It is unfortunate that although, the same had been duly noticed by the learned Trial Judge, it failed to receive due attention of the Appellate Court as also of the High Court. The very purpose, for which the said provision was enacted, had lost its relevance once a departmental proceeding was held. The Director General of Police, while passing the order dated 5.2.1990, furthermore failed to take into consideration that in an appeal preferred by the delinquent from such an order it was obligatory on the part of the Disciplinary Authority to produce all records to show that there were enough materials before the Disciplinary Authority to arrive at a positive and categorical finding that in the departmental proceeding the witnesses were not likely to depose. It was not done. Resultantly, the entire proceeding became vitiated in law.(Para 7)

       Holding of a departmental proceeding is the rule. The 2nd Proviso appended to Article 311(2) of the Constitution of India provides for an exception. It is a trite law that existence of such an exceptional situation must be shown to exist on the basis of relevant materials. In this case, even such a question did not arise as a departmental proceeding had been held and the appellant was not found guilty therein. Once he was exonerated of the charges, the question of issuing an order of dismissal against him and that too, upon dispensation of a formal inquiry, did not arise. The judgment of the High Court as also of the 1st Appellate Court are set aside and that of the trial court is restored.(Para 11)