Full Judgment Text
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PETITIONER:
CHANDIGARH ADMINISTRATION, UNIONTERRITORY, CHANDIGARH & ORS.
Vs.
RESPONDENT:
AJAY MANCHANDA ETC.
DATE OF JUDGMENT: 26/03/1996
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
PARIPOORNAN, K.S.(J)
CITATION:
1996 SCC (3) 753 JT 1996 (4) 113
1996 SCALE (3)419
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
B.P. JEEVAN REDDY,J.
Leave granted. Heard counsel for the parties.
Clause (2) of Article 311 of the Constitution of India
declares that no person who holds a civil post under the
Union or the State "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". The
second proviso to clause (2), however, specifies three
situations in which the requirements in clause (2) do not
apply. Clause (b) of the second proviso states that "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 an inquiry", the enquiry and the
opportunity provided by clause (2) can be dispensed with and
punishment imposed straightaway. Clause (3) of Article 311
is really a continuation of clause (b) af the second
proviso. Clause (3) says, "if, in respect of any such person
as aforesaid, a question arises whether it is reasonably
practicable to hold such an inquiry 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."
In Union of India v. Tulsiram Patel (1985 (3)
S.C.C.398), it has been held by the Constitution Bench that
the second proviso to Article 311 is based on public policy,
is conceived in public interest and is to be employed for
public good. The Constitution Bench has pointed out that the
paramount thing to bear in mind is that the second apply
only where the conduct of the government servant is such
that he deserves the punishment of dismissal or removal or
reduction in rank. It was further pointed out that once the
above test is satisfied and the conditions specified in the
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relevant clause in the second proviso are satisfied, the
said proviso is attracted and it would not be necessary to
comply with the requirements specified in clause (2). That
was a case where a large number of railway employees had
participated in an illegal All-India strike and the
Government had responded by ordering their dismissal en
masse. The action was held to be justified in the
circumstances. At the same time, it was held that recording
of reasons for forming the requisite satisfaction is
mandatory. Though it is not necessary that those reasons
must find a place in the order of punishment, it was held,
the authority must produce the same when called upon to do
so by the Court. The desirability of incorporating the said
reasons in the order imposing punishment was emphasized. It
has been held by this Court in Collector of Monghyr v.
Keshav Prasad Goenka [1963 (1) S.C.R.98] that where the
statute requires the recording of reasons, any action taken
without recording the reasons is invalid. Here, of course,
the requirement is contained in the constitutional provision
itself.
It is true that clause (3) of Article 311 declares
further that when a question arises whether it is reasonably
practicable to hold an inquiry, the decision of the
competent authority shall be final on that question. But
that does not mean that the scope of judicial review is
excluded altogether. In State of Rajasthan v. Union of India
(1977 (3) S.C C.592), it was held that clause (5) of Article
356 (introduced by Constitution 38th Amendment Act and
deleted by the 44th Amendment Act, which provided that
"notwithstanding anything in this Constitutions, the
satisfaction of the President mentioned in clause (1) shall
be final and conclusive and shall not be questioned in any
court on any ground") does not preclude the court from
entertaining the challenge to a notification under Article
356 (1) on the ground that the requisite satisfaction was
formed malafide or that it was founded on extraneous
grounds, because it was pointed out, in either of those
cases, there is in law no satisfaction as contemplated by
clause (1) of Article 356. It has been held by this Court in
S.R.Bommai v Union of India (1994 (3) SCC I) that even in
the matter of exercise of power under Article 356 of the
Constitution, the satisfaction of the President, while
undoubtedly subjective, is not beyond the judicial scrutiny
of the courts under Article 32 or Article 226, as the case
may be. The parameters of judicial review enunciated in
S.R.Bommai have been held applicable in A.K.Kaul v. Union of
India (1995 (4) S.C.C.73) to a matter arising under proviso
(c) to Article 311(2). A reading of clauses (b) and (c) of
the second proviso would establish that, if at all, the
power under clause (b) is more circumscribed than the power
under clause (c).
Until recently, Punjab was in the throes of a serious
internal disturbance. Armed groups had created a situation
where the State was obliged to deploy police and other armed
forces in substantial number to suppress the militancy. In
the very nature of the situation, vast powers had to be
veted in the police to deal with the emerging situations and
they did ultimately overcome the separatist forces. They had
to pay a substantial price in the process. A large number of
policemen and members of the para-military and armed forces
paid with their lives. The nation feels grateful for their
performance and remembers the sacrifices made by them.
Unfortunately, the transition to a peace-time situation has
not proved easy. A few among the police force yet want to
lord it over the citizenry. Some of them do not hesitate to
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indulge in those very acts of which the militants were
accused of, viz., extortion, abduction and worse. It was
natural in such a situation that the higher and responsible
officers of the police should try to curb these excesses. In
appropriate cases, they are obliged to resort to the
provision contained in clause (b) of the second proviso to
Article 311(2) to dispense with the services of such bad
elements without an inquiry. The Chandigarh Administration,
appellant in these two appeals, says that acts and deeds of
the two respondents herein did call for the exercise of the
extraordinary power under proviso (b) to Article 311(2)
which it did invoke. It says that the Central Administrative
Tribunal, Chandigarh was in error in interdicting its orders
dismissing the respondents.
Ajay Manchanda, respondent in civil appeal [arising
from Special Leave Petition (C) No.26926 of 1995] was a
Sub-Inspector of Police attached to Sector-11 Police
Station. F.I.R. No.125 was registered in the said police
station on July 31, 1993 under Sections 420/468/471 of the
Indian Penal Code concerning issuance/preparation of fake
passports. The respondent was associated with the
investigation of the said case. In the course of the
investigation, certain persons including one Swaran Singh &
Makhan Singh were arrested and remanded to police custody.
Sometime later, Makhan Singh filed a complaint before the
higher police officers stating that the respondent took him
away from his shop on the evening of December ,7, 1993 and
placed him in the lock up and that the respondent demanded a
sum of Rupees three lakhs to release him and to delete his
name from the said case. Because of the pressure exerted by
the respondent and the threats held out by him, he said, he
agreed to pay a sum of Rupees one lakh, out of which Rupees
fifty thousand was paid through his brother). He complained
that the respondent was pressing for the balance Rupees
fifty thousand. On the basis of the said complaint, the
Senior Superintendent of Police [S.S.P.] ordered an enquiry
to be conducted by Sri S.C.Sagar, Deputy Superintendent of
Police [D.S.P.] (Central) who submitted a detailed report on
March 11, 1994 affirming the contents of the said complaint.
He also reported that the complainant and the witnesses were
terrorized by the respondent and on that account, they were
not prepared to proceed with the complaint or the case
further. After examining the report, the S.S.P. was
satisfied that the respondent had extorted Rupees fifty
thousand from the said Swaran Singh & Makhan Singh and that
he was further demanding a sum of Rupees fifty thousand and
that he had also threatened and intimidated Makhan Singh and
the witnesses with dire consequences. He was satisfied that
the witnesses were so terrorized that they expensed their
inability to pursue the matter. On the above basis, he held
that it was not reasonably practicable to hold an inquiry
against the respondent and accordingly dismissed him
invoking the power under Article 311(2)(b). The relevant
portion of the order reads thus:
"Makhan Singh & Swaran Singh
made a complaint which was marked
to Sh.S.C. Sagar DSP/Central, who
submitted detailed report dated
11.3.94 whereby he found truth in
the allegations of Makhan Singh &
Swaran Singh against S.I. Ajay
Manchanda. S.I. Ajay Manchanda has
extorted Rs.50,000/- and was
further demanding Rs.50,000/- more
from the accused. He threatened the
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accused to such an extent that the
accused and the witnesses refused
to make any statement before DSP
S.C.Sagar.
Shri S.C.Sagar, DSP has
reported that the witnesses are so
terrorized by the threats of S.I.
Ajay Manchanda that they have
expressed their inability to pursue
the matter in the court of law or
in any other enquiry against him
and more so they refused to make
any statement before him.
Whereas after going through
the report of DSP S.C.Sagar, the
complaint of Makhan Singh & Swaran
Singh and my oral examination of
Makhan Singh Swaran Singh it has
been proved to my subjective
satisfaction that S.I. Ajay
Manchanda has extorted, Rs.50,000/-
from accused Makhan Singh @ Swaran
Singh and he was further demanding
Rs.50,000/- more and he threatened
him with dire consequences and the
witnesses are so terrorized that
they expressed their inability to
pursue the matter.
The judicial prosecution is
not ordered in the case. The
regular departmental enquire is
also not reasonably practicable in
view of threats and witnesses
inability to come forward to depose
against the delinquent official due
to threats of elimination.
Therefore, I dispense with regular
departmental enquiry in exercise of
power vested in me under Article
311(2) (B) of the Constitution of
India."
The respondent challenged the order of dismissal before
the Central Administrative Tribunal, Chandigarh. The
Tribunal found that the impugned order does not state that
the respondent has given any threats to any of the witnesses
or the complainant and that in fact there is no reference to
the act of terrorizing by the respondent. The Tribunal
opined that merely because a police officer is the accused,
it cannot be presumed that no one will come forward to
depose against him. It observed that the Senior
Superintendent of Police "has taken the matter in a very
casual manner without giving due consideration and applying
his dispassionate discretion in the issuance of the impugned
order and coming of the conclusion to dispense with the
regular enquiry."
Kuldip singh, respondent in civil appeal (arising from
Special Leave Petition (C) 25970 of 1995) was also a Sub-
Inspector of Police under the Chandigarh Administration. One
Sri K.B.Raheja, Advocate, Ferozepur complained to the
S.S.P., Chandigarh that the respondent extorted an amount of
Rupees nine hundred from him on the pretext of minor traffic
violation while he was driving his car on the wrong side
near cricket stadium on March 9, 1993. An enquiry was
ordered into he said complaint to be conducted by Sri Arvind
Deep, SP (Headquarters). The said officer reported that the
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respondent has "committed gross misuse of his official
position and extorted money from an innocent victim Sri
Kulbhushan Raheja as a fine for violation of traffic
regulation but he misappropriated a major part of the amount
to himself and misbehaved with him and also impounded the
car". He reported that while the respondent collected Rupees
nine hundred from Sri Raheja, he issued a receipt to him
only for Rupees four hundred and remitted only a sum of
Rupees one hundred into the Government account. He reported
that while in the receipt issued to the said advocate, the
amount collected from him was mentioned as Rupees four
hundred both in words and figures, the counterfoil of the
said receipt contained only a figure of Rupees one hundred
in figures. It is significant to notice that the
S.P.(Headquarters) did not report that the respondent had
either terrorized the complainant or the witnesses, if any.
On this report, the S.S.P. made the following endorsement on
29th March, 1993:
"Enough and sufficient indications
that witness is being pressurized
and compelled to withdraw his
statement. In fact his reluctance
to appear before me is clear vide
his letter dated 25.3.93. His
mention of a compromise in his
letter dated 28.3.93 are clear
indications of no chance of free
deposition by the witness in the
enquiry.
The obvious fact is that
witness has been won over under the
threat of injury to his person and
property and threat may be to the
extent of elimination of the
witness, the delinquent official
being in uniform. The fact finding
enquiry conducted by SP/HQ found
truth in the allegation in the
complaint regarding
misappropriation of money.
The judicial prosecution is
not ordered in the case. The
regular departmental enquiry is
also not reasonably practicable in
view of the letter of the
complainant. Therefore, I dispense
with regular departmental enquiry
in exercise of power vested in me
under Article 311(2)(B)."
On the same day, i.e., 29th March, 1993, the S.S.P.
passed an order dismissing the respondent from the service
reporting to proviso (b) to Article 311(2)- Before
proceeding further, it is necessary it is necessary to
noticed a few facts for a proper appreciation of the
aforesaid endorsement made by the S.S.P on 29th March, 1993.
It appears that after receiving the enquiry report of the
S.P,(Headquarters) on 22nd March, 1993 the S.S.P. sent a
message to Sri Raheja, Advocate to come 2nd meet him in
connection with his complaint. On 25th March, 1993 Sri
Raheja wrote to the S.S.P. that on account of his
engagements in the sessions courts, he would not be able to
meet the S.S.P. in his office on 26th March 1993 and that he
may be called on some other day, preferably a Saturday or
Sunday. lt appears that he was called again in response to
which Sri RaheJa addressed another letter (dated 28th
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March, 1993) that since a compromise has been effected
between him and the respondent. It is from this complaint
against the respondent. It is from this second letter that
the S.S.P, seems to have inferred and concluded that the
advocate was being terrorized by the respondent and has been
won over by holding out threats. On that basis, he
concluded that it was not reasonably practicable to hold an
enquiry against the respondent.
When the matter went before the Central
Administrative Tribunals Chandigarh, it allowed the original
application filed by the respondent holding that there was
no material before the S.S.P. on the basis of which he could
have been reasonably satisfied that it was not reasonably
practicable to hold a disciplinary enquiry against the
respondent. The Tribunal noted that the complainant is not
an ordinary person but an advocate practising in the
sessions courts and that there was no basis upon which the
S.S.P. could have arrived at the conclusion that the said
advocate was won over by threats or that he was being
terrorized or that he was afraid of being ’eliminated’ by
the respondent.
Ms.Kamini, Jaiswal, learned counsel for the appellants
assailed the reasoning and conclusion of the Tribunal in
both the matters whereas S/Sri P.P.Rao and. D.V.Sehgal,
appearing for the respondents respectively supported the
reasoning and conclusion of the Tribunal.
We shall first take up the case against Ajay Manchanda.
It was Decembers, 1993. The complainant Swaran Singh a
&,Malkhan Singh was one of the person as accused in the
F.I.R. He was arrested. Admittedly, the respondent was one
of the officers investigating the said case. Swaran Singh
complained to the S.S.P. of extortion and the continuing
harassment by the respondent. The S.S.P. ordered an enquiry
through D.S.P. who reported that the complaint is true. The
D.S.P. reported expressly that the complainant and other
witnesses "are so terrorized by the threats given by SI Ajay
Manchanda that they have expressed their inability to pursue
the matter in the court of law or in any other enquiry
against him. They are so terrorized that they have even
explained their inability to make any formal statement
before me. Keeping in view the above circumstances when
complainant and other witnesses are so terrorized and panic-
striken that they are not willing to come forward the
departmental enquiry shall also not serve any purpose." On
the basis cf the said report, the S.S.P. was satisfied that
it was "not reasonably practicable in view of threats and
witnesses inability to come forward to depose against the
delinquent officer due to threats of elimination" and
accordingly passed the order of dismissal. On the basis of
the material placed before us - we have also perused the
original record which was placed before us by Ms.Kamini
Jaiswal pursuant to our direction - it is not possible for
us to say that there were no reasonable grounds or relevant
material before the S.S.P. for being satisfied that in the
circumstances and the situation then obtaining, it was not
reasonably practicable to hold a disciplinary enquiry
against the respondent. No one would come forward to depose.
The requirement of recording of reasons is also-satisfied in
this case. Indeed, the dismissal order itself incorporates
the reasons. We have also looked into the report of the
D.S.P. and the relevant record.
Sri P.P.Rao, learned counsel for the respondent,
submitted that there was no relevant material on the basis
of which the S.S.P. could form the requisite satisfaction.
He submitted that only a minor penalty has been imposed upon
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the Station House Officer, Inspector Jagbir Singh who too is
alleged to have extorted a sum of Rupees fifteen thousand
from the said complainant as against his demand for Rupees
thirty thousand. The learned counsel complained that the
respondent is being made the scapegoat for the wrong done by
his superiors and that the action taken against him is not
bonafide. Counsel further submitted that the ˜ who conducted
the preliminary enquiry and submitted the report was himself
involved in the alleged extortion. This, the learned counsel
says, is established from the statement of Sri Swaran Singh
& Makhan Singh wherein he had stated after some days, Deputy
Superintendent of Police Subhash Sagar himself called us and
told Ajay Manchanda and Jagbir Singh that my remand will
have to be extended by two more days. On that, Ajay
Manchanda and Jagbir Singh in a satirical note said that
"Makhan to makhan laga chuke hai" (in other words, money has
already been taken from him)." From this statement, Sri
P.P.Rao seeks to infer that D.S.P. Subhash Sagar [who had
conducted the enquiry against the respondent and submitted
the enquiry report] was in the know of and was a party to
the entire episode and, therefore, could not have been
appointed as the enquiry officer against the respondent. He
was in the nature of a witness, it is contended. Learned
counsel further submitted that if the complainant was so
terrorized, he would not have gone to the S.S.P. complaining
of harassment in writing nor would he have deposed before
the D.S.P. (enquiry officer). The said facts learned counsel
submitted, negatived the plea of terrorising or
intimidation. The learned Counsel finally submitted that in
such matters the courts/tribunals are the only protection
for the persons proceeded against and that unless strict
standards are adopted for judging the "satisfaction", the
government officials will have no protection against the
arbitrary acts and orders of the superior officers who may
succumb to the temptation of adopting the easier course of
dismissing/removing/reducing in rank the lower officers
without holding an enquiry instead of following the regular
procedures prescribed by the rules.
We agree with and share the concern of the learned
contained in his last submission. At the same times we have
to judge each case on its own each case on its own merits,
keeping in mind the relevant provisions of Article 311(2)
and the interpretation placed upon it by this Court in
Tulsiram Patel. We must say immediately that the learned
counsel is not right in inferring from the statement of the
complainant extracted hereinabove that the D.S.P. (enquiry
officer) was also a party to the extortion. The statement
extracted hereinabove does not establish that the said words
were addressed to or were meant for the benefit of the D.S.P
Moreover, the words "Makhan to makhan laga chuke hai" do not
mean what the complainant thought they meant. So far as the
allegation against Jagbir Singh is concerned, it is equally
unacceptable. Ms.Kamini Jaiswal has produced the file
relating to the proceedings taken against Jagbir Singh was
not one of extortion from the complainant or anyone else,
but one of laxity and negligence in carrying out the
investigation. May be that the complainant had made an
allegation against Jagbir Singh but there is no reference to
it in the D.S.P.(enquiry officer’s) report and we do not
know the circumstances in which Jagbir Singh was not
proceeded against for extortion. This plea was not raised
by the respondent before the Tribunal. It has been raised
for the first time before us. Since the allegation is
factual in nature, we are not inclined to entertain the same
at this stage. In any event, as stated above, we have
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perused the file concerning Jagbir Singh also, and are
satisfied that the charge against Jagbir Singh was
altogether different.
We are, therefore, unable to agree with Sri P.P.Rao
that there was no material upon which the S.S.P. could be
satisfied that it is not reasonably practicable to hold a
disciplinary enquiry against the respondent. One has to
keep in mind the situation obtaining in Punjab in the year
1993 and must appreciate the orders passed by the S.S.P. in
that context. We see no reason not to believe that the
aforesaid power under clause (b) was invoked by the S.S.P.
for proper reasons. The comments made against him by the
Tribunal to the effect that he acted casually, is
unacceptable besides being uncharitable. The Tribunal does
not say that the respondent was responsible for intimidating
and terrorizing the complainant and the witnesses. It was
an hypertechnical objection. The order read as a whole and
the accompanying report of the D.S.P. and the endorsement of
S.S.P. on the report do clearly establish that it was
respondent who was intimidating and terrorizing the said
persons. The judgment and order of the Tribunal in O.A 366-
Ch/94 is accordingly set aside and the appeal arising from
Special Leave Petition (c) 26926 of 1995 us allowed.
No costs.
Now, coming to the case against Kuldip Singh, we are of
the opinion that the conclusion arrived at by the Tribunal
in this matter needs no interference at out hands. We have
pointed out hereinabove while discussing the facts of this
case that no one had ever stated either before the
S.P.(Headquarters) [preliminary enquiry officer] or before
the S.S.P. that he has been terrorized, intimidated or
threatened by the respondent. Only because the complainant
Sri Raheja, Advocate, mentioned in his letter that he does
not wish to proceed with the complaint in view of the
compromise effected between him and the respondent by
certain respectable elders, the S.S.P. inferred that the
said complainant has been terrorized and intimidated. We
are not satisfied that is the only inference that flows from
the complainant’s second letter. The S.S.P. also does not
say either in the order of dismissal - or anywhere in the
record - that he had information to the above effect from
some other source. In such a situation, the inference drawn
by the S.S.P. cannot be said to be a reasonable or relevant
one. In short, there was absolutely no material upon which
the S.S.P. could be satisfied that it was not reasonably
practicable to hold a disciplinary enquiry against the
respondent because of the intimidation and threats held out
by the respondent to the complainant or other witnesses, if
any. Accordingly the appeal arising from Special Leave
Petition (c) 26970 of 1995 is dismissed.
No costs.