Whether police officer deputed outside jail can be held liable for escape of accused from jail?

The presence of police personnel to extend external support to a jail facility is understandable. There is nothing wrong about the same. Police personnel may be posted outside the jail premises, for obvious reasons. Such police personnel would be oblivious of the activities within the four walls of the jail itself. The presence of police personnel within the administrative framework of a jail, is out of the question. The appellant/petitioners have not placed any material on the record of the case to demonstrate, that police personnel from the police department were assigned duties within the barracks of Model Jail, Burail, Chandigarh. In our considered view, within the jail premises, only the jail staff can be permitted to function. And in case of lapses within the jail premises, it is the jail staff alone which is responsible. 
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3194
OF 2015
(Arising out of SLP (C) No.20379 of 2006)
Ved Mitter Gill

v
Union Territory Administration, Chandigarh and others
Dated:March 26, 2015.



Through this common order we propose to dispose of the Special Leave
Petition (C) No. 20379 of 2006 as well as the Transferred Case (C) Nos. 41-44 of
2010. The aforesaid transferred cases were pending before the High Court of
Punjab and Haryana at Chandigarh (hereinafter referred to as ‘the High Court’).
Whilst the Special Leave Petition (C) No. 20379 of 2006 came to be filed before
this Court assailing the order dated 1.5.2006 passed by the High Court in Civil
Writ Petition No. 5682 of 2006. The prayer for transfer was premised on the fact
that the transferred cases were couched in the same factual foundation and
raised similar legal issues, as were being canvassed through Special Leave
Page 1
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Petition (C) No. 20379 of 2006. In the above view of the matter, while disposing
of the special leave petition, as well as, the transferred cases, we shall refer to
the facts in Ved Mitter Gill’s case, i.e., the matter pending in this Court as against
the order passed by the High Court on 1.5.2006 dismissing Civil Writ Petition
No.5682 of 2006.
2. Leave granted.
3. In January 2004, appellant-Ved Mitter Gill was holding charge of the post
of Deputy Superintendent of Police, Model Jail, Burail, Chandigarh. At the same
juncture, Dalbir Singh Sandhu (petitioner in Transferred Case (C) No. 42 of 2010)
was also holding the post of Deputy Superintendent of Jail, whilst Paramjit Singh
Rana (petitioner in Transferred Case (C) No. 41 of 2010) was posted as
Assistant Superintendent of Jail, Nishan Singh (petitioner in Transferred Case
(C) No. 44 of 2010) and Inder Singh (petitioner in Transferred Case (C) No. 43 of
2010) were working as Head Warder and Warder respectively.
4.
Whilst the appellant/petitioners were discharging their duties in the
capacity indicated hereinabove, four under trials namely Jagtar Singh Hawara,
Paramjit Singh and Jagtar Singh Tara (who were facing trial for the assassination
of a former Chief Minister of Punjab Shri Beant Singh) and Jagdev Singh, who
was being tried for the charge of murder, escaped from the Model Jail, Burail,
Chandigarh, by digging an underground tunnel. The approximate length of the
tunnel is stated to be 94 feet. The description of the above tunnel has been
expressed in a report dated 15.4.2004 submitted by an Enquiry Committee
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3
constituted to go into the lapses committed by the jail authorities in the above
episode of escape, as also to determine, the remedial measures for prevention of
such a jail-break in future.
The description of the tunnel in the report, is
reproduced below:
“2.4 An inspection of barrack No.7 of Burail Jail from where four undertrial
escaped made a number of revelations. The 94 feet long and about 21” x
21” broad tunnel was a very professionally done job. The tunnel had three
sections, two vertical and one horizontal as under:
a) Vertical straight Section below the barrack
14’
b) Horizontal portion with almost perfect precision 72’
and direction
c) Vertical portion outside the main perimeter wall 08’
used for exit. It was slightly inclined for easy
footage for escape”
The aforesaid under-trials had escaped during the night intervening January 21-
22, 2004. Resultantly, a first information report bearing no. 17 was registered at
Police Station Sector 34, Chandigarh. The appellant, as well as, the petitioners
came to be detained after the registration of the first information report.
5.
By an order dated 1.3.2004, the Advisor to the Administrator, Union
Territory, Chandigarh having invoked clause (b) to the second proviso under
Article 311(2) of the Constitution of India, dismissed the appellant from service
with immediate effect. Similar orders were passed against the petitioners.
6.
Dissatisfied with the order dated 1.3.2004, the appellant as well as the
petitioners, assailed the respective orders of their dismissal from service, by
preferring appeals to the Administrator, Union Territory, Chandigarh. General
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(Retd.) S.F. Rodrigues, the then Administrator of the Union Territory,
Chandigarh, adjudicated upon their appeals both on merits, as well as, on their
maintainability. Insofar as the merits are concerned, he arrived at the conclusion,
that the competent authority had rightly invoked clause (b) of the second proviso
under Article 311(2) of the Constitution of India.
Insofar as the issue of
maintainability is concerned, the Administrator of the Union Territory of
Chandigarh recorded, that the appeals were not maintainable, as the order
passed by the Advisor to the Administrator, Union Territory of Chandigarh,
constituted an order passed by the Government, from which there was no
remedy of appeal.
7.
The order of dismissal from service dated 1.3.2004, passed by the Advisor
to the Administrator of the Union Territory of Chandigarh, as well as the order
dated 11.2.2005 passed by the Administrator, Union Territory, Chandigarh were
assailed by the appellant, as well as by the petitioners, before the Central
Administrative Tribunal, Chandigarh Bench (hereinafter referred to as, the
Administrative Tribunal). Ved Mitter Gill, the appellant herein, preferred Original
Application No. 149/PB of 2005, Dalbir Singh Sandhu filed Original Application
No. 97/PB of 2005, Paramjit Singh Rana had raised his challenge by filing
Original Application No. 188/PB of 2005, whereas, Nishan Singh and Inder Singh
filed Original Application Nos. 39/PB and 40/ PB of 2005 respectively.
8.
All the above applications were dismissed by the Administrative Tribunal
through a common order dated 30.1.2006. Ved Mitter Gill assailed the order
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5
dated 30.1.2006 passed by the Administrative Tribunal before the High Court, by
preferring Civil Writ Petition No. 5682 of 2006. The same was dismissed by an
order dated 1.5.2006. The order passed by the High Court on 1.5.2006 came to
be challenged before this Court through Special Leave Petition (C) No. 20379 of
2006. The same has given rise to the present appeal. The writ petitions filed by
the others, namely, Dalbir Singh Sandhu, Paramjit Singh Rana, Nishan Singh
and Inder Singh were pending before the High Court. Separate writ petitions
were preferred on their behalf, wherein they had assailed the common order
passed by the Administrative Tribunal dated 30.1.2006. The above writ petitions
were transferred to this Court, to be heard along with the Special Leave Petition
(C) No. 20379 of 2006. This is how the present appeal and petitions have jointly
come up for hearing before us.
9.
It is imperative in the facts and circumstances of this case, to extract
herein, the order dated 1.3.2004, passed by the Advisor to the Administrator,
Union Territory, Chandigarh against Ved Mitter Gill. The same is accordingly
being reproduced hereunder:
“CHANDIGARH ADMINISTRATION
HOME DEPARTMENT
ORDER
Shri V.M. Gill, Deputy Superintendent Model Jail, Chandigarh (under
suspension) was appointed as Clerk on 1.1.1988 and thereafter promoted
as Assistant Superintendent Jail on 28.3.1990 and was promoted as
Deputy Superintendent Jail, Model Jail, Chandigarh vide order dated
25.5.2001. He was thus required to be fully aware of his duties as
prescribed in the Punjab Jail Manual as adopted for the Union Territory
Chandigarh and the duty orders passed by the Superintendent, Model Jail,
Chandigarh dated 29.5.2001, read along with paras 92 to 132 of the
Page 5
6
Punjab Jail Manual, for the enforcement of laws, rules, regulations,
directions and orders concerning the management of the jail and the
prisoners confined therein. The said Shri V.M. Gill by virtue of his duties
as such was required to do all acts and things necessary or expedient for
ensuring the safe custody of all the prisoners at any time receive into or
confined in the jail as well as for enforcing and maintaining discipline and
order amongst such prisoners and all subordinate officers of the jail. The
said Shri Gill was fully aware that he was required to see for himself every
prisoner once in every 24 hours and to visit every barrack, ward, cell,
compartment and every other part of the jail and premises thereof every
24 hours. It was thereof his duty to be present every evening when the
prisoners were locked up for the night and every morning when the
prisoners were taken out of the sleeping wards, cells or other
compartments, satisfy himself both by night and morning that all the
prisoners were present and in safe custody and to forthwith report every
unusual occurrence of a serious nature to the Superintendent of the Model
Jail. The said Shri Gill was fully aware of his duties that he was required at
uncertain times, atleast once a week to cause each prisoner and all
clothing and bedding and all wards, cells and other compartments,
workshops, latrines and other places frequented by the prisoners, to be
thoroughly searched for prohibited articles; to regulate all interviews and
communications between the prisoners and persons who were not
prisoners and to prevent all persons who were not duly authorized by the
competent authority from entering the jail premises or having any access
of any kind to, or communication with any prisoner, and to arrange that the
proper officer of the jail was present during all the interviews held;
And whereas on the night intervening January 21/22, 2004, four under trial
prisoners namely Jagtar Singh Hawara, s/o Sher Singh, Paramjit Singh,
s/o Jagjit Singh, Jagtar Singh Tara, s/o Sadhu Singh and Dev Singh, s/o
Madan Singh lodged in the Model Jail, Burail escaped through a tunnel
dug from their barrack. The first three under-trials namely Jagtar Singh
Hawara, s/o Sher Singh, Paramjit Singh, s/o Jagjit Singh and Jagtar Singh
Tara, s/o Sadhu Singh were being tried to their involvement in the
assassination of S. Beant Singh, then Chief Minister, Punjab and had links
with Babbar Khalsa International a terrorist organization, while Dev Singh
was being tried for murder. The said Shri V.M. Gill was fully aware that
Jagtar Singh Hawara S/o Sher Singh, Paramjit Singh, s/o. Jagjit Singh,
Jagtar Singh Tara, s/o Sadhu Singh were dreaded terrorists and high
security prisoners;
And whereas a case F.I.R. No.17, dated 22.1.2004 under Sections 223,
224, 452, 457, 120-B, 121, 121-A, 123, 217, 221 IPC, P.S. 34, Chandigarh
was registered with respect to the escape of the above mentioned under
trials, and from the evidence obtained during the course of the
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investigation of the case, it is apparent that the said Shri V.M. Gill, was
involved in the conspiracy to facilitate the escape of the under trials by
willfully neglecting his duties and by providing them support in different
forms. This is evident from some of the following instances:-
(1) Curtains were allowed to be hung on doors and windows from inside
the barrack occupied by the said under trials, resulting in absence of
visibility from outside and facilitating the prisoners to carry out their plans
unobserved in violation of paras 324, 327 and 328 of the Punjab Jail
Manual, 1996 as adopted for the Union Territory, Chandigarh. The said
Shri Gill, willfully ignored the suspicious activities of the under trials and did
not conduct special search of their barrack in violation of paras 97, 98,
100(a), (b) & (f) of the said Manual.
(2) No action was taken by the said Shri V.M. Gill despite reports of lights
of the barrack housing the said under trials being switched off during the
night hours, playing of television or radio at high volume and continuous
flowing of water, facilitating activities of the said under trials in digging of
the escape tunnel and disposing the excavated soil, in violation of paras
325 and 329 of the said Manual.
(3) No thorough checking of the barrack housing the under trials was
carried out by the said Shri Gill in violation of provisions of the said
Manual, including para 97.
(4) A tunnel was reportedly discovered in the barrack then housing the
three under trials of the Beant Singh case during June, 2002. The said
Shri V.M. Gill in complicity with the under trials and other jail officials
suppresses these facts. In November, 2002 a large number of prohibited
articles were recovered from the above mentioned under trials, which had
been earlier allowed to be delivered to them in complicity with the under
trials as well as their co-conspirators. After recovery of the prohibited
articles, strict action as warranted under Punjab Jail Manual was not taken
against the under trials or any other delinquent jail official.
The
investigation have revealed that a large number of prohibited articles have
again been recovered from the cell of the escaped under trials, clearly
indicating the complicity of the said Shri V.M. Gill, who willfully contravened
the provisions of the said Manual including paras 105 and 110. It was also
found that a number of articles such as cell phone (not recovered), weight
lifting iron rod, rope, emergency light, radio, portable fan, electric wires
etc., directly assisted the said under trials to escape from the Jail.
(5) Meeting of the under trials with the other suspected prisoners within
the jail as well as conspirators outside the jail were neither supervised nor
checked in violation of para 106 of the said Manual.
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(6) The said Sh. Gill, was arrested on Jan. 27, 2004 and on his disclosure
statement a book titled ‘True Stories of great escapes’ was recovered from
his official residence in the jail. A rough site plan prepared by the police
revealed that the tunnel through which the under trials escaped had
similarities with the tunnel mentioned in the said book.
And whereas the above conduct of the said Shri Gill establishes that he
was directly involved in the conspiracy to help the above-mentioned under
trials to escape from the Model Jail, Chandigarh. It has also come to light
during investigation that three of the escaped under trials had linkage with
the Babbar Khalsa International, a known and a dreaded terrorist
organization, which is involve in anti-national and anti-State activities. The
said Shri V.M. Gill is a senior, permanent and non-transferable official of
the Model Jail, Chandigarh and junior jail officials, who are witnesses in the
above case are not likely to come forward to depose against him if
disciplinary proceedings are initiated so long as he remains in service, for
fear of earning his wrath in future. Further, due to the involvement of the
escaped under trials, with the Babbar Khalsa International, a known and
dreaded terrorist organization, no witness is likely to come forward to
depose against him in the disciplinary proceedings, if initiated, due to fear
of life. Independence assessment also is that three of the escaped under
trials are likely, inter alia, to pose a danger to the lives of the people. In
these circumstances I am satisfied that the holding of an inquiry as
contemplated by Article 311 (2) (b) of the Constitution of India and the
Punjab Civil Services (Punishment and Appeal) Rules, 1970 as made
applicable to the employees of Union Territory, Chandigarh, is not
reasonably practicable;
And whereas I am of the view that in the face of such grave culpable acts
of omission and commission there is no justification for the continuation in
service of Shri Gill as he has betrayed all responsibility placed upon him by
law and rules. From the facts that have transpired, I conclude that there
has been misconduct of such magnitude by Shri V.M. Gill that the severest
penalty permissible by law is called for.
Now, therefore, I being the competent authority exercising the powers
conferred by Article 311 (2) of the Constitution of India, having come to the
conclusion that it is not reasonably practicable to hold an inquiry, hereby
dismiss the said Shri V.M. Gill, from service with immediate effect.
Sd/-
Advisor to the Administrator,
U.T., Chandigarh
Page 8
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Dated 1.3.2004”
Orders passed against the other petitioners were premised on the same
foundation, and were to the same effect.
10.
During the course of hearing learned counsel for the appellant/petitioners
pleaded, non-application of mind, arbitrariness, discrimination, and malice in fact
as well as in law. Insofar as the issue of non- application of mind is concerned, it
was the vehement contention of the learned counsel, that they were not assigned
duties as would render them blameworthy for the abovementioned jail-break.
Besides various contentions advanced on the instant aspect of the matter, the
primary submission of the learned counsel was, that personnel from the police
department were in overall supervisory control, and that, they regulated not only
the ingress and egress of jail mates and other visitors, but also materials and
articles which were permitted to enter the jail premises.
In the above
background, it was the vehement contention of the learned counsel for the
appellant/petitioners, that they have been made scapegoats for something that
others were truly responsible for.
11.
To adjudicate upon the above contention advanced at the hands of the
learned counsel for the appellant/petitioners, it is necessary to understand the
duties and responsibilities assigned to appellant-Ved Mitter Gill, whose case has
been taken as the lead case.
The duty chart depicting the responsibilities
assigned to the officers of Model Jail, Burail, Chandigarh, is available on the
record of the case. A relevant extract thereof is being reproduced hereunder:
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“1. Sh. V.M. Gill, Dy. Supdt. Jail
He shall perform his duties under the immediate directions and orders of
the Supdt. Jail. The duties of the Dy. Supdt. Jail are contained in para 91
to 132 of the Punjab Jail Manual. In addition to his normal duty he will hold
the charge of matters relating to:-
i)
Establishment
ii)
Accounts
iii)
Court cases (pending in various courts)
iv)
Diet purchase and all miscellaneous matters.”
xxx
xxx
xxx
IMPORTANT NOTE
1.
2.
3.
4.
Besides above duties Executive Officers will perform all other duties
assigned to them from time to time in accordance with the provision
of Punjab Jail Manual.
All Executive Officer will be present inside Jail in their respective
executive charge daily at the time of lock-up and lock-outs.
All will make night rounds to see the security arrangements and
satisfy themselves that inmates are in safe custody.
All will accompany the Superintendent, Jail on his weekly parade (on
every Monday) inspection of prisoners as per provision of para 75 of
the Punjab Jail Manual.
Sd/-
Superintendent,
Model Jail, Chandigarh”
(emphasis is ours)
A perusal of the duty chart relating to Ved Mitter Gill reveals, that he was
responsible for duties expressed in paragraphs 92 to 132 of the Punjab Jail
Manual. Extracts of the Punjab Jail Manual are also available on record of the
case, only a few relevant paragraphs, which highlight the duties and
responsibilities vested on the shoulders of Ved Mitter Gill as Deputy
Superintendent of Police, Jail, are being extracted hereunder:
“97. Duties of Deputy Superintendent as to safety of prisoners, discipline,
visits and attendance. – (1) The Deputy Superintendent shall do all acts
and things which may be necessary or expedient for ensuring the safe
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custody of all prisoners at any time received into or confined in the jail, as
well as for enforcing and maintaining discipline and order amongst such
prisoners and all subordinate officers of the jail at any time serving under
his orders or control.
(2) The Deputy Superintendent shall, atleast once in every twenty-four
hours,-
(a) himself see every prisoner for the time being confined in the jail;
(b) visit every barrack, ward, cell, compartment, and every other part
of the jail and the premises thereof, including the hospital; and shall,
save as provided in the rules, regulations, directions and orders for
the time being in force in that behalf, always remain present within
the jail or the premises thereof.
Note- The Deputy Superintendent is permitted to be absent for meals at
such times and for such periods as the Superintendent may specify, or
when required to appear in a Court of Justice, or when leave of absence is
granted by the Superintendent.
xxx
xxx
xxx
100. Duties as to lock-up, counting, labour, food and reporting unusual
occurrences.- (1) It shall be the duty of the Deputy Superintendent to-
(a) be present every evening when the prisoners are locked up for
the night and every morning when the prisoners are taken out of the
sleeping wards, cells or other compartments;
(b) satisfy himself, both night and morning, that all the prisoners are
present and in safe custody;
(c) allot to each prisoner sentenced to undergo rigorous
imprisonment a proper task and satisfy himself that every such
prisoner, who is fit for labour, is daily put to proper labour and
performs his allotted task and, for this purpose, to check the tasks
allotted and visit the workshops frequently while the prisoners are
engaged at work;
(d) be present at and superintend the daily weighing and serving out
of rations and satisfy himself that the food-stuffs are properly
cleaned and cooked;
(e) supervise the distribution of food and satisfy himself that each
prisoner receives his proper quantities at the prescribed times, and
to
(f) forthwith report every unusual occurrence of a serious nature, to
the Superintendent.
(2) The Superintendent may by a written order take over such of the
duties of the Deputy Superintendent as he may deem necessary for the
efficient running of the jail.
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(3) Every action taken under sub-rule (2) shall forthwith be reported by the
Superintendent to the Inspector-General giving full justification therefor and
the Inspector-General may confirm, modify or cancel such order.
101. Duty of Deputy Superintendent on admission of prisoner. - Upon the
admission of every prisoner the Deputy Superintendent shall-
(a) examine or cause to the examined the warrant or order under
which such prisoner is committed to the Jail and satisfy himself that
it is in all respects complete, in order and valid;
(b) remove, or cause to be removed, from such prisoner all money
or other articles found on him, including (if such prisoner is not, by
law, entitled to retain it) his wearing apparel and (in such case) shall
provide him with a complete Jail out-fit;
(c) take measures to preserve and protect all property taken from, or
belonging to, the prisoner which may come into his hands; and
(d) shall satisfy himself that the provisions of Chapter IV of the Act,
and these rules, as to the admission of prisoners, are duly complied
with.
xxx
xxx
xxx
105. Deputy Superintendent to search weekly for prohibited articles.-
The Deputy Superintendent shall, at uncertain times, at least once a week,
cause each prisoner, and all clothing and bedding, and all wards, cells and
other compartments, workshops, latrines and other places frequented by
prisoners, to be thoroughly searched for prohibited articles.
106. Deputy Superintendent to regulate interviews and communications.-
It shall be the duty of the Deputy Superintendent to regulate all interviews
and communications between prisoners and persons who are not
prisoners and to prevent all persons who are not duly authorised in that
behalf by competent authority from entering the jail premises or having any
access of any kind to, or communication with, any prisoner, and to arrange
that the proper officer of the Jail is present during all interviews held.
xxx
xxx
xxx
110. Deputy Superintendent to hold parade every Sunday.-
The Deputy Superintendent shall hold a parade of all the prisoners for the
time being confined in the jail on every Sunday Evening and shall,
(a) carefully inspect every prisoner;
(b) examine the clothing, bedding and utensils etc., of every
prisoner;
(c) check the muster roll and satisfy himself that every prisoner is
present or accounted for;
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and satisfy himself generally that everything is in proper order. He
shall enter a report of his inspection in his journal, noting therein the
state of the clothing, cleanliness, numerical strength and other
matters of importance relating to the prisoners.
xxx
xxx
xxx
117. The Deputy Superintendent shall enter daily in his journal:-
(a) the time the wards were opened;
(b) the members of the staff (if any) who were absent;
(c) the time prisoners began work;
(d) the time work was stopped in the forenoon and when it was
recommenced;
(e) the time work was stopped for the day; and
(f) the time the lock-up was completed;
(g) that the gratings and locks of the jail were got tested and found
intact.
xxx
xxx
xxx
120. Deputy Superintendent responsible for the efficiency of the guard.-
(1) The Deputy Superintendent shall satisfy himself that a sufficient
strength of the guard to meet all emergencies is at all times present at the
jail and ready to be armed, and that the warders sleep in the quarters
allotted to them and do not leave the jail premises without permission.
(2) The Deputy and the Assistant Superintendent shall at least once a
week in addition to their routine night round search the relieved and
relieving night guards between the gates (after 10 P.M. and before 4.00
A.M.).”
(emphasis is ours)
It is not necessary for us to further delve into the nature of duties assigned to
appellant-Ved Mitter Gill in his capacity as Deputy Superintendent Jail, because
we have highlighted the relevant paragraphs of Punjab Jail Manual, which
meticulously highlight the nature of his duties and responsibilities.
Having
examined the same, we are satisfied, that the responsibility of jail inmates
exclusively rests on the shoulders of the jail staff. On the evaluation of the duties
and responsibilities of posts of Assistant Superintendent Jail, Head Warder and
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Warder, there remains no room for any doubt, about the other petitioners also,
that they too were similarly responsible for securing the detention of all jail
inmates. We, therefore find no merit in the contention advanced on behalf of the
appellant/petitioners, that it was not them, but police personnel from the
Chandigarh Police Department, who were responsible for the supervisory control
over jail inmates, at the Model Jail, Burail, Chandigarh.
12.
Another contention advanced at the hands of the learned counsel for the
appellant/petitioners was, that the entire action initiated at the hands of the
respondents was vitiated, on account of malice in fact as also malice in law.
Insofar as the instant aspect of matter is concerned, our attention has been
invited to the factual position pleaded in Civil Miscellaneous Nos. 8930-31 of
2010 in Civil Writ Petition No.5147-CAT of 2007.
It would be pertinent to
mention, that the aforesaid civil miscellaneous application was filed by Dalbir
Singh Sandhu, Deputy Superintendent of Police.
Our pointed attention was
invited to the following factual position expressed in the aforesaid civil
miscellaneous application:
“....Interestingly a perusal of the record filed before the Criminal Court by
the Chandigarh Police of the Special Mulakat Register shows that in those
copies the signatures of the supervisory staff i.e. the Chandigarh Police is
missing. Apparently these documents have been also considered by the
competent authority to pass the impugned order against the petitioner.
Photocopies of some of the pages of the Special Mulakat Register have
been annexed earlier. The typed copies of the same for the corresponding
days as submitted by the prosecution before the Criminal Court and
apparently which were considered by the competent authority to terminate
the services of the petitioner are annexed herewith as Annexures A/1 and
A/2 respectively.”
Page 14
15
Having
given
our
thoughtful
consideration
to
the
pleadings
extracted
hereinabove, and having perused the annexures A/1 and A/2 referred to in the
above pleadings, we are satisfied that the contention advanced at the hands of
the learned counsel for the appellant/petitioners is wholly misconceived. The
presence of police personnel to extend external support to a jail facility is
understandable. There is nothing wrong about the same. Police personnel may
be posted outside the jail premises, for obvious reasons. Such police personnel
would be oblivious of the activities within the four walls of the jail itself. The
presence of police personnel within the administrative framework of a jail, is out
of the question. The appellant/petitioners have not placed any material on the
record of the case to demonstrate, that police personnel from the police
department were assigned duties within the barracks of Model Jail, Burail,
Chandigarh. In our considered view, within the jail premises, only the jail staff
can be permitted to function. And in case of lapses within the jail premises, it is
the jail staff alone which is responsible. Based on the factual position brought to
our notice from the pleadings and annexures referred to above, it is not possible
for us to accept the submission advanced at the hands of the learned counsel for
the appellant/petitioners, that the action initiated against the appellant/petitioners
can be vitiated for the reasons of malice in fact or malice in law.
13.
Out of the submission advanced by the learned counsel for the
appellant/petitioners, the contention which could have been of some significance
was, that the reasons mentioned in the impugned order of dismissal from service,
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16
were a mechanical repetition of grounds routinely and casually expressed without
application of mind, in such like orders.
And in that view of the matter, the
contention, that the satisfaction recorded by the disciplinary authority does not
constitute a valid satisfaction in the eyes of law. It was in the instant context, that
the learned counsel invited our attention to some judgments rendered by this
Court. First of all, reliance was placed on Tarsem Singh v. State of Punjab,
(2006) 13 SCC 581.
Our pointed attention was invited to the following
observations recorded therein:
“10. It is now a well-settled principle of law that a constitutional right
conferred upon a delinquent cannot be dispensed with lightly or arbitrarily
or out of ulterior motive or merely in order to avoid the holding of an
enquiry. The learned counsel appearing on behalf of the appellant has
taken us through certain documents for the purpose of showing that
ultimately the police on investigation did not find any case against the
appellant in respect of the purported FIR lodged against him under Section
377 IPC. However, it may not be necessary for us to go into the said
question.
11. We have noticed hereinbefore that the formal enquiry was dispensed
with only on the ground that the appellant could win over aggrieved people
as well as witnesses from giving evidence by threatening and other means.
No material has been placed or disclosed either in the said order or before
us to show that subjective satisfaction arrived at by the statutory authority
was based upon objective criteria. The purported reason for dispensing
with the departmental proceedings is not supported by any document. It is
further evident that the said order of dismissal was passed, inter alia, on
the ground that there was no need for a regular departmental enquiry
relying on or on the basis of a preliminary enquiry. However, if a
preliminary enquiry could be conducted, we fail to see any reason as to
why a formal departmental enquiry could not have been initiated against
the appellant. Reliance placed upon such a preliminary enquiry without
complying with the minimal requirements of the principle of natural justice
is against all canons of fair play and justice. The appellate authority, as
notice hereinbefore, in its order dated 24-6-1998 jumped to the conclusion
that he was guilty of grave acts of misconduct proving complete unfitness
for police service and the punishment awarded to him is commensurate
with the misconduct although no material therefor was available on record.
Page 16
17
It is further evident that the appellate authority also misdirected himself in
passing the said order insofar as he failed to take into consideration the
relevant facts and based his decision on irrelevant factors.
12. Even the Inspector General of Police in passing his order dated
26-11-1999, despite having been asked by the High Court to pass a
speaking order, did not assign sufficient or cogent reason. He, like the
appellate authority, also proceeded on the basis that the appellant was
guilty of commission of offences which are grave and heinous in nature
and bring a bad name to the police force of the State on the whole. None
of the authorities mentioned hereinbefore proceeded on the relevant
material for the purpose of arriving at the conclusion that in the facts and
circumstances of the case sufficient cause existed for dispensing with the
formal enquiry. This aspect of the matter has been considered by this
Court in Jaswant Singh v. State of Punjab, (1991) 1 SCC 362, wherein
relying upon the judgment of the Constitution Bench of this Court, inter
alia, in Union of India v. Tulsiram Patel, (1985) 3 SCC 398, it was held:
(Jaswant Singh case (supra), SCC p. 368, para 4)
“Although Clause (3) of that article makes the decision of the
disciplinary authority in this behalf final such finality can certainly be
tested in a court of law and interfered with if the action is found to be
arbitrary or mala fide or motivated by extraneous considerations or
merely a ruse to dispense with the inquiry.”
13. In that case also like the present one, the attention of the Court was
not drawn to any material existing on the date of passing of the impugned
order in support of the allegations contained in the order dispensing with
the departmental enquiry.”
(emphasis is ours)
Learned counsel thereupon placed reliance on State of Punjab v. Harbhajan
Singh, (2007) 15 SCC 217.
They invited our attention to the following
observation recorded therein:
“3. Learned counsel then contended that no departmental enquiry could be
held against the respondent in view of his involvement with terrorists. In
the suit, the State did not place any material to establish that any case was
made out for dispensation of a regular departmental enquiry as required
under clause (2) to Article 311 of the Constitution of India. The question is
now covered by a recent decision of this Court in Tarsem Singh v. State of
Punjab, (2006) 13 SCC 581, wherein this Court has opined that if no
material is brought to the notice of the Court on the date of passing of the
Page 17
18
impugned order in support of the allegations contained therein as to why it
was impractical to hold a regular disciplinary proceeding, the order of
termination would not be sustainable.”
(emphasis is ours)
14.
In order to fully clarify the legal position on the issue in hand, learned
counsel for the Chandigarh Administration, invited our attention to the decision
rendered in Southern Railway Officers Association v. Union of India, (2009) 9
SCC 24. In the above cited judgment, this Court having placed reliance on Union
of India v. Tulsiram Patel, (1985) 3 SCC 398, Satyavir Singh v. Union of India,
(1985) 4 SCC 252, Kuldip Singh v. State of Punjab, (1996) 10 SCC 659, Union of
India v. R. Reddappa, (1993) 4 SCC 269 and Indian Railway Construction Co.
Ltd. v. Ajay Kumar, (2003) 4 SCC 579, recorded its conclusions as under:
“26. The law laid down by this Court being clear and explicit, the question
which would arise for our consideration is whether in then prevailing
situation, what a reasonable man taking a reasonable view would have
done.
27. The High Court in its judgment opined:
(i) That the statement of the disciplinary authority that "I am convinced that
it is not reasonably practicable to hold an inquiry" is against the dicta laid
down by this Court in Union of India vs. Tulsiram Patel, (1985) 3 SCC 398.
(ii) In the absence of any reason, much less recorded, as has been
mandated under the Rule, to show that it was not reasonably practicable to
hold a disciplinary inquiry, we are of the opinion that the discretionary
power was exercised for extraneous purpose to dismiss the delinquents
and that the same is arbitrary and perverse since no reasonable person
could form such an opinion on the given material and thus the impugned
orders of dismissal are hit by malice also. The alleged incident and the
impugned orders of dismissal were all dated 31-1-2004 which shows the
haste in which the disciplinary authority has acted.
(iii) While invoking the stringent extraordinary provisions like Rule 14(ii),
principles of natural justice require every care to be taken by the
authorities concerned. Any haste in invoking such stringent provisions,
without even complying with the mandatory requirements of the provision,
would make such decision of the disciplinary authority illegal, being an
abuse of power conferred upon it.
Page 18
19
(iv) It can very well be held that the impugned orders of dismissal suffer
from want of materials and in the absence of any material to substantiate
the mere oral stand of the Department that holding an inquiry was not
reasonably practicable, without offering any reasons, much less in writing,
as mandated by law, the impugned orders of dismissal are liable to be
quashed.
(v) In the case in hand, since the authorities have invoked the
extraordinary power under Rule 14(ii) dispensing with the inquiry, and
further since the alleged incident was held to be not proved by the criminal
court, after thorough trial, the appellate and revisional authorities ought to
have considered the said aspect of acquittal while imposing the
punishment. Therefore, we are of the view that the fact of acquittal is a
circumstance to be considered while awarding punishment in this case.
We with respect are unable to agree therewith.
28. The disciplinary authority in its order dated 31-1-2004 categorically
stated:
(i) That the delinquent employees attempted to cause bodily harm to Shri
S.M. Krishnan; created an ugly scene which brought a bad name to the
Railways; officers who tried to protect Shri S.M. Krishnan were badly
abused; Shri S.M. Krishnan and his family were threatened to be killed if
he goes to Chennai; it was a pre-planned attempt as a handwritten poster
was displayed in the workshop as well as at the railway station wherein it
was stated that Shri S.M. Krishnan will die on 31-1-2004 and his cremation
will be done at 1430 hours when Train No. 6128 leaves the railway station.
(ii) That all of them have conspired and assaulted Shri S.M. Krishnan as a
result whereof he could not undertake the journey and had to go by road
with escort.
(iii) The formality of holding a disciplinary proceeding was dispensed with
stating:
“You along with other associates threatened, intimidated and
terrorized all the officers. The atmosphere of violence, general
indiscipline and insubordination is prevailing. In view of this situation
I am convinced that it is not reasonably practicable to hold an
enquiry.”
29. It was concluded:
“I, therefore, in exercise of the powers conferred upon me under
Rule 14(ii) of the Railway Servants (Discipline & Appeal) Rules,
1968, hereby dismiss you from railway service with effect from
31-1-2004 (A/N). You are required to hand over the railway property
in your custody. You are also required to vacate the railway
quarters, if in occupation, within one month from the date on which a
copy of this notice is delivered. You are hereby advised that under
Rules 18 and 19 of the Railway Servants (Discipline & Appeal)
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Rules, 1968, you may prefer an appeal against these orders to
CWM/GOC provided that:
(i) The appeal is preferred within a period of 45 days from the
date on which a copy of this notice is delivered.
(ii) The appeal is to be preferred in your own name and
presented to the authority to whom the appeal lies and does
not contain any disrespectful and improper language.”
30. An order of a disciplinary authority in a case of this nature, as laid
down by this Court in Tulsiram’s case (supra), must be judged by a court
exercising power of judicial review by placing himself in his armchair. The
disciplinary authority was a man at the spot. He acted on the basis of a
report made to him. He also knew about the written poster having been
displayed. The atmosphere which was prevailing in the workshop must be
known to him. Not only the disciplinary authority but also the appellate
authority, having regard to the materials brought on record, arrived at the
said finding.
xxx
xxx
xxx
33. While thus considering as to whether there had been enough material
before the disciplinary authority for the purpose of arriving at its satisfaction
that it was not reasonably practicable to hold departmental proceedings,
the appellate authority, in our opinion, was entitled to consider the situation
prevailing from the confidential reports submitted by other employees.
They were not relied upon for the purpose of proving misconduct but for
the purpose that in the situation which was prevailing, whether it was
reasonably practicable to hold an enquiry. There is no dispute that the
protection accorded to an employee by reason of the constitutional
provision of mandate of recording of reasons is of great significance. Such
reasons, in our opinion, in the instant case, have been recorded.
xxx
xxx
xxx
35. So far as the finding of the High Court that the orders of dismissal
suffer from want of material is concerned, the orders of the disciplinary
authority themselves disclose existence of sufficient materials. Before the
statutory authorities, the incident was not denied. Lodging of the first report
was also not denied. The fact that one of the delinquent officials was
arrested on the same day was not denied. Arrest of others after a period of
two weeks also stood admitted. Display of handwritten poster both at the
workshop and at the railway station had also not been denied.
36. We do not find that before the High Court the delinquent employees
brought on record any material that the grounds stated in the orders of
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dismissal were wholly non-existent. No mala fides on the part of the
disciplinary authority was attributed. It is not the case of the delinquent
employees that the disciplinary authority in passing the said order took into
consideration any irrelevant fact not germane therefor or failed to take into
consideration any relevant fact.”
(emphasis is ours)
15.
Before delving into the pointed issues canvassed at the hands of the
learned counsel representing appellant/petitioners, it is necessary for us to notice
the parameters laid down by this Court for invoking clause (b) of the second
proviso to Article 311(2) of the Constitution of India. Insofar as the instant aspect
of the matter is concerned, the norms stipulated by this Court for the above
purpose, require the satisfaction of three ingredients. Firstly, that the conduct of
the delinquent employee should be such as would justify one of the three
punishments, namely, dismissal, removal or reduction in rank. Secondly, the
satisfaction of the competent authority, that it is not reasonably practicable to
hold an inquiry, as contemplated under Article 311(2) of the Constitution of India.
And thirdly, the competent authority must record the reasons of the above
satisfaction in writing.
16.
On the issue whether it is reasonably practicable to hold an inquiry as
contemplated under Article 311(2) of the Constitution of India is concerned, this
Court elaborately expressed the required norms, in Union of India v. Tulsiram
Patel (supra), as under:
“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
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22
action, effected, 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. It is not possible to enumerate the cases in
which it would not be reasonably practicable to hold the inquiry, but some
instances by way of illustration may, however, be given. It would not be
reasonably practicable to hold an inquiry where the government servant,
particularly through or together with his associates, so terrorizes, threatens
or intimidate witnesses who are going to give evidence against him with
fear of reprisal as to prevent them from doing so or where the government
servant by himself or together with or through other threatens, intimidates
and terrorizes the officer who is the disciplinary authority or members of his
family so that he is afraid to hold the inquiry or direct it to be held. It would
also not be reasonably practicable to hold the inquiry where an
atmosphere of violence or of general indiscipline and insubordination
prevails, and it is immaterial whether the concerned government servant is
or is not a party to bringing about such an atmosphere. In this connection,
we must bear in mind that numbers coerce and terrify while an individual
may not. The reasonable practicability of holding an inquiry is a matter of
assessment to be made by the disciplinary authority. Such authority is
generally on the spot and knows what is happening. It is because the
disciplinary authority is the best judge of this that clause (3) of
Article 311 makes the decision of the disciplinary authority on this question
final. 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. The finality given to the
decision of the disciplinary authority by Article 311(3) is not binding upon
the court so far as its power of judicial review is concerned and in such a
case the court will strike down the order dispensing with the inquiry as also
the order imposing penalty. The case of Arjun Chaubey v. Union of India,
(1984) 2 SCC 578, is an instance in point. In that case, the appellant was
working as a senior clerk in the office of the Chief Commercial
Superintendent, Northern Railway, Varanasi. The Senior Commercial
Officer wrote a letter to the appellant calling upon him to submit his
explanation with regard to twelve charges of gross indiscipline mostly
relating to the Deputy Chief Commercial Superintendent. The appellant
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23
submitted his explanation and on the very next day the Deputy Chief
Commercial Superintendent served a second notice on the appellant
saying that his explanation was not convincing and that another chance
was being given to him to offer his explanation with respect to those
charges. The appellant submitted his further explanation but on the very
next day the Deputy Chief Commercial Superintendent passed an order
dismissing him on the ground that he was not fit to be retained in service.
This Court struck down the order holding that seven out of twelve charges
related to the conduct of the appellant with the Deputy Chief Commercial
Superintendent who was the disciplinary authority and that if an inquiry
were to be held, the principal witness for the Department would have been
the Deputy Chief Commercial Superintendent himself, resulting in the
same person being the main accusor, the chief witness and also the judge
of the matter.
131. It was submitted that where a delinquent government servant so
terrorizes the disciplinary authority that neither that officer nor any other
officer stationed at that place is willing to hold the inquiry, some senior
officer can be sent from outside to hold the inquiry. This submission itself
shows that in such a case the holding of an inquiry is not reasonably
practicable. It would be illogical to hold that the administrative work carried
out by senior officers should be paralysed because a delinquent
government servant either by himself or along with or through others
makes the holding of an inquiry not reasonably practicable.
132. It is not necessary that a situation which makes the holding of an
inquiry not reasonably practicable should exist before the disciplinary
inquiry is initiated against a government servant. Such a situation can also
come into existence subsequently during the course of an inquiry, for
instance, after the service of a charge-sheet upon the government servant
or after he has filed his written statement thereto or even after evidence
has been led in part. In such a case also the disciplinary authority would be
entitled to apply clause (b) of the second proviso because the word
‘inquiry’ in that clause includes part of an inquiry. It would also not be
reasonably practicable to afford to the government servant an opportunity
of hearing or further hearing, as the case may be, when at the
commencement of the inquiry or pending it the government servant
absconds and cannot be served or will not participate in the inquiry. In
such cases, the matter must proceed ex parte and on the materials before
the disciplinary authority. Therefore, even where a part of an inquiry has
been held and the rest is dispensed with under clause (b) or a provision in
the service rules analogous thereto, the exclusionary words of the second
proviso operate in their full vigour and the government servant cannot
complain that he has been dismissed, removed or reduced in rank in
violation of the safeguards provided by Article 311(2).”
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24
(emphasis is ours)
17.
Insofar as the requirement of reasons reflecting the reasonable
practicability, of holding an inquiry in writing is concerned, this Court in the case
of Union of India v. Tulsiram Patel (supra) held as under:
“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 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.
134. It is obvious that the recording in writing of the reason for dispensing
with the inquiry must precede the order imposing the penalty. The reason
for dispensing with the inquiry need not, therefore, find a place in the final
order. It would be usual to record the reason separately and then consider
the question of the penalty to be imposed and pass the order imposing the
penalty. It would, however, be better to record the reason in the final order
in order to avoid the allegation that the reason was not recorded in writing
before passing the final order but was subsequently fabricated. The reason
for dispensing with the inquiry need not contain detailed particulars, but the
reason must not be vague or just a repetition of the language of clause (b)
of the second proviso. For instance, it would be no compliance with the
requirement of clause (b) for the disciplinary authority simply to state that
he was satisfied that it was not reasonably practicable to hold any inquiry.
Sometimes a situation may be such that it is not reasonably practicable to
give detailed reasons for dispensing with the inquiry. This would not,
however, per se invalidate the order. Each case must be judged on its own
merits and in the light of its own facts and circumstances.
135. It was vehemently contended that if reasons are not recorded in the
final order, they must be communicated to the concerned government
servant to enable him to challenge the validity of the reasons in a
departmental appeal or before a court of law and that failure to
communicate the reasons would invalidate the order. This contention too
cannot be accepted. The constitutional requirement in clause (b) is that the
reason for dispensing with the inquiry should be recorded in writing. There
is no obligation to communicate the reason to the government servant. As
clause (3) of Article 311 makes the decision of the disciplinary authority on
this point final, the question cannot be agitated in a departmental appeal,
revision or review. The obligation to record the reason in writing is provided
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25
in clause (b) so that the superiors of the disciplinary authority may be able
to judge whether such authority had exercised its power under clause (b)
properly or not with a view to judge the performance and capacity of that
officer for the purposes of promotion etc. It would, however, be better for
the disciplinary authority to communicate to the government servant its
reason for dispensing with the inquiry because such communication would
eliminate the possibility of an allegation being made that the reasons have
been subsequently fabricated. It would also enable the government
servant to approach the High Court under Article 226 or, in a fit case, this
Court under Article 32. If the reasons are not communicated to the
government servant and the matter comes to the court, the court can direct
the reasons to be produced, and furnished to the government servant and
if still not produced, a presumption should be drawn that the reasons were
not recorded in writing and the impugned order would then stand
invalidated. Such presumption can, however, be rebutted by a satisfactory
explanation for the non-production of the written reasons.”
(emphasis is ours)
18.
Whilst examining the requirements, pertaining to the applicability of clause
(b) to the second proviso under Article 311(2) of the Constitution of India is
concerned, it would also be proper to notice the observations of this Court in
Union of India v. Tulsiram Patel (supra), wherein it was held as under:
“138. Where a government servant is dismissed, removed or reduced in
rank by applying clause (b) or an analogous provision of the service rules
and he approaches either the High Court under Article 226 or this Court
under Article 32, the court will interfere on grounds well established in law
for the exercise of power of judicial review in matters where administrative
discretion is exercised. It will consider whether clause (b) or an analogous
provision in the service rules was properly applied or not. The finality given
by clause (3) of Article 311 to the disciplinary authority's decision that it
was not reasonably practicable to hold the inquiry is not binding upon the
court. The court will also examine the charge of mala fides, if any, made in
the writ petition. In examining the relevancy of the reasons, the court will
consider the situation which according to the disciplinary authority made it
come to the conclusion that it was not reasonably practicable to hold the
inquiry. If the court finds that the reasons are irrelevant, then the recording
of its satisfaction by the disciplinary authority would be an abuse of power
conferred upon it by clause (b) and would take the case out of the purview
of that clause and the impugned order of penalty would stand invalidated.
In considering the relevancy of the reasons given by the disciplinary
authority the court will not, however, sit in judgment over them like a court
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26
of first appeal. In order to decide whether the reasons are germane to
clause (b), the court must put itself in the place of the disciplinary authority
and consider what in the then prevailing situation a reasonable man acting
in a reasonable way would have done. The matter will have to be judged in
the light of the then prevailing situation and not as if the disciplinary
authority was deciding the question whether the inquiry should be
dispensed with or not in the cool and detached atmosphere of a court-
room, removed in time from the situation in question. Where two views are
possible, the court will decline to interfere.”
(emphasis is ours)
19.
Reference may also be made to the decision in Kuldip Singh v. State of
Punjab, (1996) 10 SCC 659, wherein this Court recorded the following
observations:
“3. On appeal, the appellate authority found that the appellant did have
links with the terrorists and was mixed up with them and he was
supplying secret information of the police department to terrorists which
was creating hindrance in the smooth functioning of the police
department. The appellate authority also found that it was impossible to
conduct an enquiry against the appellant because nobody would come
forward to depose against such "militant police official". The appellate
authority also referred to the fact that the appellant was interrogated in a
case, FIR No. 219 of 1990, and that during interrogation he admitted that
he was having links with Major Singh Shahid and Sital Singh Jakhar and
was working for them. It further stated in its order that the appellant was
preparing to murder some senior police officers while taking advantage of
his position.
xxx
xxx
xxx
8. Proviso (b) to Article 311(2) says that the enquiry contemplated by
clause (2) need not be held
"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 enquiry".
Clause (3) of Article 311 expressly provides that
"If, in respect of any such person as aforesaid, the question arises
whether it is reasonably practicable to hold such enquiry as is
referred to in clause (2), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in
rank shall be final".
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27
These provisions have been the subject-matter of consideration by a
Constitution Bench of this Court in Union of India v. Tulsi Ram Patel,
(1985) 3 SCC 398. It would be appropriate to notice a few relevant
holdings in the said judgment: (SCR pp. 205-74: SCC pp. 454-507, paras
62-138)
“...before denying a government servant his constitutional right to an
inquiry, the first consideration would be whether the conduct of the
government servant concerned is such as justifies the penalty of
dismissal, removal or reduction in rank. Once that conclusion is
reached and the condition specified in the relevant clause of the
second proviso is satisfied, that proviso becomes applicable and the
government servant is not entitled to an enquiry.
*
*
*
It would also not be reasonably practicable to hold the inquiry where
an atmosphere of violence or of general indiscipline and
insubordination prevails, and it is immaterial whether the
government servant concerned is or is not a party to bringing about
such an atmosphere. ... The reasonable practicability of holding an
inquiry is a matter of assessment to be made by the disciplinary
authority. Such authority is generally on the spot and knows what is
happening. It is because the disciplinary authority is the best judge
of this that clause (3) of Article 311 makes the decision of the
disciplinary authority on this question final. ... The finality given to the
decision of the disciplinary authority by Article 311(3) is not binding
upon the court so far as its power of judicial review is concerned....
*
*
*
Where a government servant is dismissed, removed or reduced in
rank by applying clause (b) or an analogous provision of the service
rules and he approaches either the High Court under Article 226 or
this Court under Article 32, the court will interfere on grounds well
established in law for the exercise of power of judicial review in
matters where administrative discretion is exercised. It will consider
whether clause (b) or an analogous provision in the service rules
was properly applied or not. ... In examining the relevancy of the
reasons, the court will consider the situation which according to the
disciplinary authority made it come to the conclusion that it was not
reasonably practicable to hold the inquiry. ... In considering the
relevancy of the reasons given by the disciplinary authority the court
will not, however, sit in judgment over them like a court of first
appeal.”
(emphasis is ours)
20.
We shall now advert to the impugned order to determine, whether the
three parameters laid down for the valid invocation of clause (b) to the second
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28
proviso under Article 311(2) of the Constitution of India, were made out. The first
ingredient, which is a prerequisite to the sustainable application of the above
clause (b) is, that the delinquency alleged should be such as would justify, any
one of the three punishments, namely, dismissal, removal or reduction in rank.
We have already extracted hereinabove the order dated 1.3.2004, whereby, the
appellant-Ved Mitter Gill was dismissed from service, with immediate effect. Its
perusal reveals, that the punishment was based on reasons (recorded in the
impugned order) divided into different compartments. The first is contained in the
first paragraph, which deals with the duties and responsibilities vested with Ved
Mitter Gill, as Deputy Superintendent, Model Jail, Burail, Chandigarh.
The
second component deals with the escape of four under-trials from Model Jail,
Burail, Chandigarh. Three of the under-trials, who had escaped, were involved in
the assassination of Shri Beant Singh, a former Chief Minister of State of Punjab.
The instant paragraph also records, the factum that the said three under-trials
were having links with Babbar Khalsa International, a terrorist organization. The
fourth under-trial was being tried separately, for the offence of murder. The third
component of the impugned order, relates to the material taken into
consideration to evaluate the lapses committed by the appellant/petitioners, as
would reveal their involvement with reference to the alleged delinquency,
justifying the punishment of dismissal from service.
21.
We shall now advert to the factual position emerging from the above. A
reference was first of all made to the duties and responsibilities assigned to the
appellant – Ved Mitter Gill. Having detailed the express duties assigned to him in
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29
paragraph 11 above, we have concluded therefrom, that the responsibility of all
the jail inmates (safe custody of all prisoners) rested on his shoulders, and the
petitioners herein, who assisted him in the same. The appellant – Ved Mitter Gill
was required to satisfy himself once in every twenty-four hours, about the safe
custody of the prisoners. He was also duty-bound to visit every barrack, ward,
cell and compartment every twenty-four hours.
He was to be present every
morning and evening, when the prisioners were taken out of the sleeping wards
or cells or other compartments, and then, restored to the same. He was to make
a daily report by day-break and by night, that all the prisoners were present, and
in safe custody.
He was also required to report forthwith, any unusual
occurrence. He was required at least once a week to inspect clothing, beddings,
as well as, other articles, by thoroughly checking all places frequented by
prisoners. And to make a report, if he discovered any prohibited article, during
the checking. The petitioners were associated with the appellant and assisted
him in discharging his aforementioned duties. Had the appellant - Ved Mitter Gill,
and the petitioners, performed their duties diligently, there could not have been
any possibility, of the escape under reference. It cannot be overlooked, that the
escape was made good, by digging the escape tunnel, which measured ninety-
four feet in length (with diagonal dimensions of 21” x 21”). Six separate reasons
have been expressed, by the competent authority in arriving at its conclusion.
We have extracted the impugned order dated 1.3.2004, in its entirety,
hereinabove.
It fully establishes the inferences recorded by us.
The
determination by the competent authority, when viewed dispassionately with
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30
reference to the duties assigned to Ved Mitter Gill, leaves no room for any doubt,
that the competent authority was justified in concluding, that the four prisoners
referred to above could never have escaped, if the appellant – Ved Mitter Gill,
and the petitioners, had diligently discharged the duties assigned to them.
Having so concluded, about the responsibility and blameworthiness of the
appellant/petitioners, there can be no doubt that the punishment of dismissal
from service, was fully justified, as their delinquency had resulted in the escape
of four dreaded prisoners.
22.
The second ingredient which needs to be met, for a valid exercise of
clause (b) to the second proviso under Article 311(2) of the Constitution of India,
is the satisfaction of the competent authority, that it was not reasonably
practicable, to hold a regular departmental enquiry, against the employees
concerned. On the question whether it was reasonably practicable to hold an
inquiry, the competent authority has recorded its conclusion in the paragraphs,
preceding the one depicting the involvement of the appellant/petitioners.
Amongst the reasons indicated, it has been recorded, that Ved Mitter Gill being a
senior, permanent and non-transferable officer of Model Jail, Burail, Chandigarh,
his junior jail officers, who alone would have been witnesses in such
departmental proceedings, were not likely to come forward to depose against
him, for fear of earning his wrath in future. The links of the escaped under-trial
prisoners, with the Babbar Khalsa International, a known and dreaded terrorist
organization were also clearly expressed in the impugned order, as one of the
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reasons,
for
it
being
appellant/petitioners.
impracticable,
to
hold
an
inquiry
against
the
It is a matter of common knowledge, and it would be
proper to take judicial notice of the fact, that a large number of terrorists came to
be acquitted during the period in question, on account of the fact, that witnesses
did not appear to depose against them on account of fear, or alternatively, the
witnesses who appeared before the concerned courts, for recording their
deposition, turned hostile, for the same reason. The situation presented in the
factual narration noticed in the impugned order, clearly achieves the benchmark,
for the satisfaction at the hands of the competent authority, that it would not have
been reasonably practicable, to hold a departmental proceeding against the
appellant/petitioners, in terms of the mandate contained under Article 311(2) of
the Constitution of India.
23.
The third essential ingredient, for a valid application of clause (b) to the
second proviso under Article 311(2) of the Constitution of India, is that, the
competent authority must record, the reasons of the above satisfaction in writing.
In the present case, there is no serious dispute on this issue, because the
reasons for the satisfaction have been recorded by the competent authority in the
impugned order (dated 1.3.2004) itself.
24.
For the reasons recorded above, we are satisfied, that all the parameters
laid down by this Court, for a valid/legal application of clause (b) to the second
proviso under Article 311(2) of the Constitution of India, were duly complied with.
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25.
Learned counsel for the appellant/petitioners, lastly placed reliance on two
sets of facts. Firstly, it was contended, that with reference to the same jail-break
incident, a departmental proceeding was also initiated against D.S. Rana, the
then Superintendent, Model Jail, Burail, Chandigarh. It was pointed out, that the
aforesaid D.S. Rana, was holding the post of Superintendent, Model Jail, Burail,
Chandigarh, as a deputationist from the State of Punjab. It was submitted, that
the State of Punjab had not invoked clause (b) to the second proviso under
Article 311(2) of the Constitution of India, against the aforesaid D.S. Rana. It
was pointed out, that the abovementioned D.S. Rana, has been issued a
chargesheet, for the same charges on which the appellant/petitioners have been
dismissed from service. It was submitted, that a regular departmental enquiry
was being conducted against the aforesaid D.S. Rana. The pointed contention of
learned counsel was, that if a regular departmental enquiry can be conducted
against the aforesaid D.S. Rana, then it can also be conducted against the
appellant/petitioners. Secondly, it was the contention of the learned counsel, that
a regular trial was ongoing, against the appellant, and the petitioners herein, as
also, against the aforesaid D.S. Rana, in furtherance of first information report
bearing no. 17 registered at Police Station Sector 34, Chandigarh. Yet again, it
was the contention of the learned counsel, that if witnesses can appear in open
court proceedings before the trial court, with reference to the same set of
allegations, they could surely have appeared, in a departmental proceeding as
well.
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26. We have given our thoughtful consideration to the above noted contention
advanced at the hands of the learned counsel for the appellant/petitioner. It is
not possible for us to place the appellant and the petitioners before this Court, on
the same pedestal as the aforesaid D.S. Rana, the then Superintendent, Model
Jail, Burail, Chandigarh (referred to by in the submission noticed above). The
reason for this is, that Ved Mitter Gill was holding the senior-most, permanent
and non-transferable position, at Model Jail, Burail, Chandigarh, whereas D.S.
Rana, referred to in the submission advanced, was only a deputationist at the
said jail. Accordingly, whilst Ved Mitter Gill would always remain superior to the
jail staff who would be summoned as witnesses, in the departmental
proceedings, the aforesaid D.S. Rana would not fall within the same parameter.
D.S. Rana belonged to a different cadre. After his repatriation to his parent
cadre, he could not exercise any supervisory or administrative control over the
staff of the Model Jail, Burail, Chandigarh. Accordingly, the parallel sought to be
drawn between the controversy in the present case, and the departmental
proceedings initiated against the abovementioned D.S. Rana, erstwhile
Superintendent, Jail, is fallacious.
27. Insofar as the holding of a trial, and the appearance of witnesses therein is
concerned, yet again, the analogy invoked by the learned counsel representing
the appellant/petitioners, is wholly misconceived. Whilst in a criminal prosecution
proof is strict, and must be based on cogent and acceptable evidence. In a
criminal case, there is no alternative but to establish guilt of an accused, based
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on acceptable evidence. The evidence is to be produced before the Court, trying
the criminal case. There is no way the same can be exempted, as in the case of
a departmental proceeding. Insofar as the present controversy is concerned,
there is a constitutional provision creating an exception.
Clause (b) of the
second proviso to Article 311(2) of the Constitution of India, is the exception in
question, which authorizes the course adopted by the respondents. The reasons
for dispensing with the departmental enquiry, cannot be dependent upon the
holding or not holding of criminal proceedings, against the appellant/petitioners.
Once the parameters stipulated in clause (b) of the second proviso to Article
311(2) of the Constitution of India are satisfied, the submissions advanced at the
hands of the learned counsel for the appellant/petitioners, would not arise.
28. No other submission was advanced at the hands of the learned counsel for
appellant/petitioners. For the reasons recorded hereinabove, we find no merit in
the present appeal, and the connected transferred cases.
The same are
accordingly dismissed.
.......................................J.
(Jagdish Singh Khehar)
.......................................J.
(S.A. Bobde)
New Delhi;
March 26, 2015.
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ITEM NO.1A
COURT NO.4
SECTION IVB
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Civil Appeal No. 3194/2015 @ SLP(C) No. 20379/2006
VED MITTER GILL
Appellant(s)
VERSUS
U.T. ADMINISTRATION, CHANDIGARH & ORS
Respondent(s)
WITH
T.C.(C) No. 41/2010
T.C.(C) No. 42/2010
T.C.(C) No. 43/2010
T.C.(C) No. 44/2010
[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE
S.A.BOBDE,JJ.]
Date : 26/03/2015 This appeal and transferred cases were called on for judgment
today.
For Appellant(s)
Mr. M. C. Dhingra,Adv.
Ms. Naresh Bakshi,AOR
For Respondent(s)Ms. Naresh Bakshi,AOR
Ms. Kamini Jaiswal,AOR
Mr. Sudarshan Singh Rawat,AOR
Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the judgment of the
Bench comprising His Lordship and Hon'ble Mr. Justice S.A. Bobde.
Leave granted in S.L.P.(C) No.20379 of 2006.
For the reasons recorded in the Reportable judgment, which is placed on
the file, the appeal, and the connected transferred cases are dismissed.
(Parveen Kr. Chawla)
(Renu Diwan)
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Court Master
Court Master
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