Punjab-Haryana High Court
Ashok Kumar vs State Of Haryana And Ors on 14 January, 2025
Neutral Citation No:=2025:PHHC:004094
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CWP-684-2025 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
132 CWP-684-2025
Date of Decision: 14.01.2025
Ashok Kumar ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: - Mr. R.N. Lohan, Advocate and
Mr. Ajay Kumar Yadav, Advocate for the petitioner
Ms. Rajni Gupta, Additional Advocate General, Haryana
***
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226/227
of the Constitution of India is seeking setting aside of: -
i. order dated 13.08.2020 (Annexure P-2) passed by Deputy
Commissioner of Police, Headquarter, Faridabad-
respondent No.4;
ii. order dated 12.10.2020 (Annexure P-3) passed by
Commissioner of Police, Police Headquarter, Faridabad-
respondent No.3; and
iii. order dated 24.09.2024 (Annexure P-7) passed by Director
General of Police, Haryana-respondent No.2.
2. The petitioner joined Haryana Police as Constable on
06.10.1988. Time and again, he was promoted and at the time of alleged
incident, he was holding post of Assistant Sub-Inspector. An FIR No.389
dated 18.07.2020 under Section 354-D of Indian Penal Code, 1860 and
Section 67A of Information Technology Act, 2000 came to be registered
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against him at Police Station Mujesar, District Faridabad. The respondent,
though initiated departmental inquiry but before its conclusion, disciplinary
authority invoking proviso to Article 311(2)(b) of the Constitution of India
dispensed with the inquiry and dismissed the petitioner from service. He
unsuccessfully preferred appeal and revision before higher authorities. He
approached this Court by way of CWP No.12298 of 2021 seeking setting
aside of orders of authorities whereby he was dismissed from service. This
Court vide order dated 17.05.2024 (Annexure P-6) remanded the matter
back to Director General of Police, Haryana who has reiterated his earlier
order.
3. Learned counsel for the petitioner submits that there was no
reason to dispense with departmental inquiry as contemplated by Rule 16.24
of Punjab Police Rules, 1934 (for short '1934 Rules') as applicable to State
of Haryana and Article 311 of the Constitution of India. It is a settled
proposition of law that departmental inquiry can be dispensed with in
exceptional circumstances and in the case in hand, there was no exceptional
circumstance warranting dispensation of inquiry.
4. Notice of motion.
5. Ms. Rajni Gupta, Additional Advocate General, Haryana, who
on advance notice is present in Court, accepts notice on behalf of
respondent-State and waives service.
6. With the consent of both sides, the matter is taken up for final
adjudication.
7. Learned State counsel submits that petitioner was found
involved in a serious offence. He pressurized the complainant and matter
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was compromised. This Court, on the basis of compromise, set aside FIR.
The departmental authorities, considering act and conduct of petitioner,
dispensed with the inquiry and passed impugned order of dismissal from
service. There was likelihood that petitioner could pressurize the
complainant, thus, inquiry was dispensed with.
8. I have heard the arguments of learned counsel for both sides
and perused the record with their able assistance.
9. From the perusal of record, it is evident beyond the pale of
doubt that petitioner was dismissed from service without conducting inquiry
as contemplated by Rule 16.24 of 1934 Rules read with Article 311 of the
Constitution of India. As per Clause (b) of second proviso to Article 311 (2)
of the Constitution of India, inquiry may be dispensed with (i) where person
is dismissed or removed or reduced in rank on the ground of conduct which
has led to his conviction on a criminal charge; or (ii) where the competent
authority finds that it is not reasonably practicable to hold such inquiry; or
(iii) where President or the Governor is satisfied that in the interest of the
security of the State it is not expedient to hold such inquiry. For the ready
reference, Article 311(2) of the Constitution of India is reproduced
hereinbelow:-
"311 (2)- No such person as aforesaid shall be dismissed or
removed or reduced in rank except after an inquiry in which
he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those
charges.
Provided that where it is proposed after such inquiry,
to impose upon him any such penalty, such penalty may be
imposed on the basis of the evidence adduced during such
inquiry and it shall not be necessary to give such person any
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opportunity of making representation on the penalty
proposed:
Provided further that this clause shall not apply-
(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; or
(b) where the 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 hold such
inquiry; or
(c) where the President or the Governor, as the case
may be, is satisfied that in the interest of the security of
the State it is not expedient to hold such inquiry."
10. The reason advanced by Deputy Commissioner of Police-
respondent No.4 for dispensing with inquiry is not the plausible reason
because same reason is advanced in every case where there is FIR against
serving police officer. The respondent can dispense with inquiry if actually it
is not practicable to hold inquiry. Mere writing one line in the impugned
order that it is not practicable to hold inquiry is not compliance of mandate
of either Constitution of India or Rule 16.24 of the 1934 Rules. The
respondent instead of straight away dismissing the petitioner could put him
under suspension and thereafter conduct inquiry.
11. A Constitutional Bench in Union of India v. Tulsiram Patel,
(1985) 3 SCC 398, has observed that while invoking the rigor of Clause (b)
of second-proviso to Article 311(2), if disciplinary authority failed to record
any reason as to why it is not practicable to hold inquiry, such an order is
void and unconstitutional. The relevant extracts of the judgment read as:
"133. The second condition necessary for the valid
application of clause (b) of the second proviso is that the
disciplinary authority should record in writing its reason for
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its satisfaction that it was not reasonably practicable to hold
the inquiry contemplated by Article 311(2). This is a
constitutional obligation and if such reason is not recorded in
writing, the order dispensing with the inquiry and the order of
penalty following thereupon would both be void and
unconstitutional."
12. In the case in hand, while dispensing with departmental inquiry,
the disciplinary authority vide order dated 13.08.2020 has observed as
under: -
"And whereas I, the undersigned after carefully going
through the report of Assistant Commissioner of Police.
Crime Against Women, Faridabad, am fully satisfied that it is
not reasonably practicable to hold a regular enquiry in the
prescribed manner for the reasons that (i) it would be highly
prejudicial to the general interest and discipline of police
force, (ii) it is apprehended that the delinquent official would
terrorize the witnesses and create various difficulties and put
impediments in holding of the enquiry, (iii) it would generate
further unrest among the public. Under these circumstances, I
am of the considered view that it is not reasonably
practicable to hold a regular enquiry in this case."
13. The petitioner was having 32 years' service to his credit. There
is nothing on record disclosing that he was involved in any other case. The
findings recorded by disciplinary authority while dispensing with inquiry are
general and casual in nature. The authority has made mechanical
observations. This Court does not find that there were compelling
circumstances to dispense with requirement of departmental inquiry. The
petitioner has been deprived from his valuable right without any basis.
14. In the wake of above discussion and findings, this Court is of
the considered opinion that respondents without any logical reason
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dispensed with mandatory inquiry. The impugned orders deserve to be set
aside and accordingly set aside.
15. The Department would be at liberty to conduct inquiry as per
Article 311 of Constitution of India and Rule 16.24 of 1934 Rules. The
petitioner, as conceded by him, would be entitled to reinstatement if
departmental inquiry followed by final order is not concluded within eight
months from today. The fate of the petitioner would be as per the outcome of
said inquiry.
16. It is hereby made clear that petitioner, as conceded, shall not be
entitled to back wages and interest on arrears, if any.
(JAGMOHAN BANSAL)
JUDGE
14.01.2025
Mohit Kumar
Whether speaking/reasoned Yes
Whether reportable Yes
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