Harwinder Singh vs State Of Punjab And Others
- Court
- Punjab and Haryana High Court
CWP-7698-2023 (O
O&M)
(1)
E HIGH COURT OF PUNJAB
IN THE
B AND HARYANA AT
CHANDIGARH
H
CWP-7698-2023 (O&M)
ingh
Harwinder Si
...Petitioner
Versus
State of Punj
ab & others
...Respondents
Sr.
No.
Parti
iculars
Details
1. The d
2. The d
3. The d
webs
4. Whet
prono
5. The d
judgm
date when the judgment is reserv
date when the judgment is prono
date when the judgment is upload
ved 01.10.2026
unced 02.11.2026
ded on the 02.11.2026
ite
ther only operative part of the ju
Full
ounced
udgment is
ounced or full judgment is prono
delay, if any, of the pronounceme
ment, and reasons thereof
ent of full N.A.
CORAM:
HON'BLE MR. JUSTICE NA
AMIT KUMAR
Present:
Mr. R.K.Arora, Senior Advocate
Mr. Shivam Ahuja and Ms. Urva
for the petitioner.
e, with
ashi, Advocates,
Mr. Siddharth Sandhu, AAG, Pu
unjab.
NAMIT KU
UMAR, J.
1.
The present petition has been
n filed by the petitioner under
r
Articles 226/
/227 of the Constitution of India
a, seeking a writ of certiorari for
r
quashing the
e order dated 09.11.2021 (Annex
xure P-6) passed by respondent
t
No.4-Commi
issioner of Police, Jalandhar, w
whereby the petitioner has been
n
dismissed fr
rom service by invoking the p
powers conferred under Article
e
311(2)(b) of
f the Constitution of India read
d with Rule 16.1 of the Punjab
b
Police Rules
, as well as the order dated 27.
10.2022 (Annexure P-8) passed
d
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(2)
nt No.3-Additional Director Ge
by responden
eneral of Police, Law & Order,
,
Punjab, Cha
andigarh, vide which the appe
eal preferred by the petitioner
r
against the a
foresaid order of dismissal has b
been rejected. Further, a writ of
f
mandamus h
has been sought directing the
e respondents to reinstate the
e
petitioner in
service with all consequential be
enefits along with interest.
2.
Briefly stated, the petitioner j
joined the Punjab Police as a
a
Constable on
n 22.11.2016. In the year 2021,
the petitioner was implicated in
n
FIR No.8 dat
ted 10.01.2021, registered at Po
lice Station Kartarpur Jalandhar
r
(Rural), unde
er Section 21(b) of the NDPS Ac
ct. He was arrested on the same
e
day i.e. 10.01
1.2021 and was subsequently rel
leased on bail on 12.02.2021 by
y
the Court of
f Additional District Sessions Ju
udge, Jalandhar. Thereafter, the
e
petitioner wa
as placed under suspension w.e.
.f. 10.01.2021, vide order dated
d
06.07.2021 (
(Annexure R-1/T). However, he
e was reinstated in service with
h
immediate ef
ffect, subject to pending departm
mental enquiry vide order dated
d
21.08.2021 (
(Annexure P-3). Subsequently,
two charge-sheets in respect of
f
‘absence from
m duty for 142 days from 16.0
02.2021 to 07.07.2021’ and for
r
‘alleged invo
olvement in FIR No.8 dated 10.0
01.2021’ (Annexures P-4 & P-5
5
respectively)
) were issued to the petitione
er. However, despite having
g
initiated the
regular departmental enquiry f
for alleged involvement in FIR
R
No.8 dated
10.01.2021, respondent No.4, b
being the competent authority,
,
passed the or
rder dated 09.11.2021 (Annexur
re P-6), dismissing the petitioner
r
from service
e by invoking powers conferred
d under Article 311(2)(b) of the
e
Constitution
of India read with Rule 16.1 of
f the Punjab Police Rules. The
e
relevant extra
act from the said order reads as u
under:
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(3)
“Whereas Constable Har
rwinder Singh No. 1889/Jal of
f
Jalandhar Police Commissionerat
te is guilty of such misconduct as
s
renders him liable for removal from
m the police force.
And whereas, I, Nauniha
al Singh, IPS, Commissioner of
f
Police, Jalandhar, being the app
ppointing/punishing authority, am
m
satisfied that Constable Harwinde
er Singh, No. 1889/Jalandhar has
s
relations with bad elements who
indulge in smuggling and other
r
crime while being in the police s
service which is a disciplined and
d
unformed service.
I am further satisfied that
the circumstances of the case are
e
such that it is not reasonably pra
cticable to hold an enquiry in the
e
matter provided under rule 16.24
of the Punjab Police Rules, 1934
4
due to his links with criminal elem
ents.
And whereas in the public
c and administrative interest, the
e
retention of above said Constable
e Harwinder Singh No. 1889/Jal is
s
considered wholly undesirable.
Now, therefore, I, Naunih
hal Singh, IPS, Commissioner of
f
Police, Jalandhar in exercising the
e power conferred on me by virtue
e
of Punjab Police Rules 16.1 re
ad with article 311(2)(b) of the
e
Constitution of India hereby dismis
ss Constable Harwinder Singh No.
1889/Jalandhar of this Commissi
ionerate from government service
e
with immediate effect.”
Aggrieved by the order of dism
3.
missal, the petitioner preferred an
n
appeal dated
d 25.11.2021 (Annexure P-7). H
However, the same was rejected
d
by responden
nt No.3, vide order dated 27.1
10.2022 (Annexure P-8). The
e
relevant extra
act from the order dated 27.10.20
022 reads as under:
“There is a charge ag
gainst the appellant Constable
e
Harwinder Singh, No.1889/Jaland
dhar that when he was posted at
t
Police Commissionerate, Jaland
dhar then the Commissioner of
f
Police came to know that he has
links with some criminal elements
s
and he is guilty of such misco
onduct which is responsible for
r
removing him from the Police Fo
orce. The appellant Ex Constable
e
Harwinder Singh No.1889/Jalandh
har cannot be kept in a disciplined
d
and uniformed service due to h
his links with criminal elements,
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(4)
indulging in trafficking and othe
er crimes while being in Police
e
Service.
2. This fact is also know that,
the circumstances of this case are
e
such that due to his links with cr
riminal elements, getting enquired
d
this matter under Rule 16.24 of th
he Punjab Police Rule 1934 is not
t
appropriate. Whereas on accou
unt of being not in public and
d
administrative interest, it is not ap
appropriate to retain the appellant
t
Constable Harwinder Singh No.18
889/Jalandhar in service.
3. Therefore, the then Commis
ssioner of Police, Jalandhar while
e
exercising the powers conferred un
nder Punjab Police Rule 16.1 read
d
with Article 311(2)(b) of the Co
nstitution of India, dismissed the
e
appellant Constable Harwinder S
Singh No.1889/Jalandhar from the
e
service of the Police Department v
vide order No.2653-60/Steno dated
d
09.11.2021.
4. The appellant Ex
Constable Harwinder Singh
h
N
No.1889/Jalandhar had filed the
appeal dated 04.12.2021 against
t
the aforementioned orders in this
office. On perusal of the appeal of
f
the appellant, service record, para
a-wise comments upon the appeal
l
f
from the Commissioner of pol
lice, Jalandhar, the same were
e
considered by me. I also hear
rd the appellant in person on
n
03.11.2022 and sought legal opinio
on in this regard.
5. After considering the afore
ementioned facts and the opinion
n
given by the Law officer, after
hearing the arguments advanced
d
during the course of personal hea
aring and on account of having no
o
t his appeal.”
merit in the appeal, I hereby reject
4.
Reply by way of an affidavit o
f Mr. Sukhwinder Singh (PPS),
,
Additional
Deputy Commissioner of P
Police (Headquarters), Police
e
Commissione
erate, Jalandhar, has been filed
d on behalf of the respondents,
,
wherein the f
facts stated hereinabove have no
ot been disputed. However, with
h
regard to dis
spensing with the enquiry, it ha
as been stated in para 5 of the
e
preliminary o
objections as under:
“5. That during the course o
of alleged departmental enquiry
y
initiated through this office order
r No. 90135-42 dated 06.07.2021,
on dated 08.11.2021, enquiry offic
cer had submitted his confidential
VIMAL KUMAR l
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(5)
report to the Commissioner of P
Police, Jalandhar through proper
r
channel that:
"... during the course of enq
quiry through confidential sources
s
I have come to know that he
e has established connections with
h
bad elements involved in d
drug business, on which the secret
t
inquiry has been got cond
ducted by me, which revealed that
t
this employee was in conniv
vance with persons involved in the
e
drug (paddler) trade. The
e police report u/s 173(2) of the
e
Cr.P.C. in the alleged FIR
R, has been presented before the
e
court for trial on 21.04.2
2021. Even during the course of
f
departmental enquiry, thi
is employee is influencing the
e
prosecution witnesses. Du
ue to which it is not possible to
o
complete the departmenta
l enquiry against him in a fair
r
manner. It is therefore rec
commended that the departmental
l
inquiry of Sepoy Harvinde
er Singh No. 1889 Jalandhar be
e
dropped.
Constable Harwinde
er Singh No. 1889 Jalandhar has
s
established relations with
bad elements. Remaining in the
e
police department of this e
employee can be harmful for the
e
police department and soc
iety. That in view of the criminal
l
activities of this employee
e, action is recommended against
t
him under Article 311(2)(
(b) of the Constitution of India.
(Annexure R-2)"
For this very reason, enquiry of
officer recommended to drop the
e
departmental enquiry against
the Petitioner. Due to the
e
establishment of relations with bad
d elements, dealing with drugs, the
e
p
presence of this employee in the p
police department can be harmful
l
f
for the department and the society
y. Therefore, due to the above said
d
activities of the petitioner, enqu
iry officer recommended to take
e
action against him under Article
e 311(2)(b) of the Constitution of
f
India and in agreement with the
e report submitted by the enquiry
y
officer the then Deputy Commi
issioner of Police, Headquarters
s
Jalandhar submitted his rec
commendations to the Joint
t
Commissioner of Police, Headqua
arters Jalandhar and the same was
s
f
forwarded further by the Jo
Joint Commissioner of Police,
Headquarters Jalandhar. After re
eceiving the alleged report it was
s
considered and approved by th
he then Commissioner of Police
e
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(6)
Jalandhar and recorded his comm
ments on the noting file (Annexure
e
R-3) that:
"SEEN,
'A' APPROVED.
IN VIEW OF 'B' AND THE
DISMISSAL U/S 311(2)(b)
DICTATED.
PA.
E RECORED MINE ORDERS FOR
R
CONSTITUTION OF INDIA. AS
S
SD/-
NAUNIHAL SINGH
-
H
DT. 09.11.2021.
uthority, to the rank of petitioner
r
Being the appointing/punishing a
the Commissioner of Police,
Jalandhar after application of
f
independent mind with complete s
atisfaction had been dismissed the
e
constable Harwinder Singh No.
1889/Jalandhar vide this office
e
order No. 2652-60/St dated 09.11.2
2021 (Annexure P-6).”
Learned senior counsel appe
5.
earing for the petitioner has
s
submitted tha
at the dismissal from service, be
eing a major penalty, cannot be
e
imposed with
hout conducting a regular depa
artmental enquiry in accordance
e
with the pres
scribed procedure and that reco
urse to Article 311(2)(b) of the
e
Constitution
is permissible only in except
tional circumstances where the
e
competent au
uthority records a constitutionall
ly sufficient satisfaction that it is
s
not reasonab
bly practicable to hold such enqu
uiry. He further submitted that
t
the impugned
d order of dismissal from service
e does not contain any cogent or
r
legally sustai
inable reason for dispensing wit
th the departmental enquiry. In
n
this regard, l
learned senior counsel submitte
ed that the invocation of Article
e
311(2)(b) of
f the Constitution is contrary to
the principles of natural justice
e
and the law
laid down by the Hon'ble Supre
eme Court in Union of India v.
Tulsiram Pa
atel, (1985) 3 SCC 398; Jaswan
nt Singh v. State of Punjab and
d
1 SCC 362 and Manohar Lal
Ors., (1991)
l v. Commissioner of Police &
&
6 SCC OnLine SC 363 as wel
ll as by this Court in Gursher
others, 2026
r
2026 NCPHHC 121604 .
Singh Sandh
hu v. State of Punjab & others, 2
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(7)
Per contra, learned State coun
6.
nsel submitted that, during the
e
course of the
e departmental enquiry, the Enq
quiry Officer submitted a report
t
stating that, o
on the basis of information receiv
ved from confidential sources, it
t
had come to
his knowledge that the petitione
er was acting in connivance with
h
persons enga
aged in the drug trade and was
also attempting to influence the
e
prosecution
witnesses and, as such, makin
ng it difficult to conduct and
d
conclude the
e departmental enquiry against
him in a fair manner. It was
s
further repor
rted that the petitioner had de
veloped relations with persons
s
having crim
minal antecedents and that his
s continuance in service was
s
detrimental t
o the discipline of the police dep
partment and society. In view of
f
the alleged
involvement of the petitioner
in criminal activities and the
e
apprehension
n that the departmental enquiry
could not be conducted fairly,
,
the Enquiry
Officer recommended that appr
ropriate action be taken against
t
the petitione
er by invoking the provisions
s of Article 311(2)(b) of the
e
Constitution
of India. Thus, it is submitted
d that the petitioner was rightly
y
dismissed fro
om service by invoking the exc
ceptional power conferred under
r
Article 311(2
2)(b) of the Constitution of India
a.
7.
I have heard learned counsel fo
or the parties and have perused
d
the record wi
ith their able assistance.
8.
Admittedly, the petitioner wa
as dismissed from service by
y
invoking cla
ause (b) of the second prov
viso to Article 311(2) of the
e
Constitution
of India. The relevant constitutio
onal provision reads as under:
“
311. Dismissal, removal or r
reduction in rank of persons
s
employed in civil capacities
s under the Union or a State –
(1) No person who is a
a member of a civil service of the
e
Union or an all India servi
ice or a civil service of a State or
r
holds a civil post under
the Union or a State shall be
e
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(8)
dismissed or removed by a
a authority subordinate to that by
y
which he was appointed.
(2) No such person as
aforesaid shall be dismissed or
r
removed or reduced in rank
k except after an inquiry in which
he has been informed of th
he charges against him and given
n
a reasonable opportunity o
of being heard in respect of those
e
charges ;
Provided that where it is
proposed after such inquiry, to
o
impose upon him any suc
ch penalty, such penalty may be
e
imposed on the basis of th
he evidence adduced during such
h
inquiry and it shall not be n
necessary to give such person any
y
opportunity of making
representation on the penalty
y
proposed:
Provided further that this cl
lause shall not apply-
(a) where a pers
son is dismissed or removed or
r
reduced in rank on
the ground of conduct which has
s
led to his conviction
on a criminal charge; or
(b) where the au
uthority empowered to dismiss or
r
remove a person or
to reduce him in rank is satisfied
d
that for some reason
n, to be recorded by that authority
y
in writing, it is no
t reasonably practicable to hold
d
such inquiry ; or
(c) where the Pr
resident or the Governor, as the
e
case may be, is sat
tisfied that in the interest of the
e
security of the State
e, it is not expedient to hold such
h
inquiry.”
A plain reading of the aforesai
9.
id Article makes it evident that
t
the authority
y who is empowered to dismiss o
or remove a person or to reduce
e
his rank, wi
ithout holding a departmental
inquiry, is required to record
d
reasons in wr
riting explaining why it is not re
easonably practical to hold such
h
an inquiry.
10.
A perusal of the impugned ord
der dated 09.11.2021 (Annexure
e
P-6) reveals
that the punishing authority has
merely recorded its satisfaction
n
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(9)
w of the petitioner’s links with
that in view
criminal elements, it was not
t
reasonably p
practicable to hold a regular dep
artmental enquiry in the matter,
,
as contempl
lated under Rule 16.24 of th
e Punjab Police Rules, 1934.
.
However, th
he impugned order does not
disclose any specific facts or
r
circumstance
es, which rendered the holding o
f such an enquiry impracticable.
.
Thus, the o
order merely records a conclu
usion without setting out any
y
justifiable re
eason necessary to justify disp
pensing with the departmental
l
inquiry.
11.
Although the respondents have
placed on record a report dated
d
08.11.2021 (
(Annexure R-2/T) submitted b
by the Enquiry Officer i.e. the
e
Additional D
Deputy Commissioner of Polic
ce, Jalandhar, whereby it was
s
recommende
ed to take action against the petit
tioner under Article 311(2)(b) of
f
the Constitu
ution of India, however, the sa
aid report does not reveal any
y
plausible or c
cogent reason, satisfying the con
nstitutional mandate to dispense
e
with enquiry
y proceedings. The main reaso
n assigned is that the Enquiry
y
Officer from
m confidential sources came to
o know that the petitioner has
s
established re
elations with bad elements in dru
ug business and that even during
g
the course
of departmental enquiry, the
petitioner is influencing the
e
prosecution w
witnesses.
12.
Mere registration of an FIR o
or an allegation of links with
h
criminal elem
ments cannot render the hold
ding of a regular departmental
l
enquiry reaso
onably impracticable. The disc
ciplinary authority was required
d
to disclose th
he specific factual circumstance
es which rendered it reasonably
y
impracticable
e to hold the departmental enq
quiry. It was necessary for the
e
authority to d
demonstrate, on the basis of the
material available on record, as
s
to why the w
witnesses could not be adequately
y protected or examined so as to
o
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(10)
r departmental enquiry. The ex
ensure a fair
xceptional power under the said
d
provision ca
annot be exercised merely bec
ause the disciplinary authority
y
considers th
he delinquent employee undesi
irable or unfit to continue in
n
service.
13.
In the present case, the impu
ugned order dated 09.11.2021
dismissing
the petitioner from service
by dispensing with regular
r
departmental
l enquiry by invoking power
rs under Article 311 of the
e
Constitution
of India does not satisfy the a
aforesaid requirement. The only
y
reason record
ded by the disciplinary authority
y is that the petitioner had links
s
with crimina
l elements and as such, it was no
ot reasonably practicable to hold
d
the enquiry.
The order, however, does no
t indicate as to who were the
e
witnesses all
egedly being influenced by the p
petitioner and what specific acts
s
were commit
tted by the petitioner to influen
nce them, or why the witnesses
s
could not be
examined by adopting appropri
iate safeguards. There is also no
o
finding that
any particular witness had r
refused to depose against the
e
petitioner or
that any witness had expressed
d apprehension or unwillingness
s
to participat
e in the departmental enquiry
y on account of any threat or
r
intimidation
attributable to the petitioner.
. Further, in the trial Court
t
proceedings
also, there is no specific occasi
ion or circumstance brought on
n
record to de
emonstrate that the petitioner h
has influenced the prosecution
n
witnesses.
14.
The report dated 08.11.2021 su
ubmitted by the Enquiry Officer
r
also does no
ot help the respondents. The sa
aid report, which was based on
n
secret inform
mation, states that the petitioner h
had established connections with
h
persons invo
olved in the drug trade and w
was influencing the prosecution
n
witnesses. H
owever, the report does not disc
close any concrete circumstance,
,
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(11)
s that the departmental enquiry
which shows
had become impracticable. A
A
bald assertion
n that the delinquent employee h
has links with criminal elements
s
or that he m
may influence witnesses cannot
t, in the absence of supporting
g
facts, satisfy
the constitutional requirement p
provided under Article 311(2)(b)
)
of the Consti
itution.
15.
The facts of the present c
case disclose that a regular
r
departmental
l enquiry had already been init
tiated against the petitioner and
d
the Enquiry
Officer was seized of the matt
ter. If during the course of the
e
enquiry, the
Enquiry Officer noticed anythi
ng on the part of the petitioner
r
regarding inf
fluencing or intimidating witnes
sses, it was incumbent upon the
e
competent au
uthority to deal with such conduc
ct in accordance with law and, if
f
necessary, to
o take appropriate protective or
r administrative measures. The
e
mere penden
ncy of a criminal case or an
allegation that the delinquent
t
employee w
as attempting to influence witn
nesses could not automatically
y
bring the cas
e within the exception contempl
ated by Article 311(2)(b).
16.
It is trite law that the decision of
f the appointing authority on the
e
issue of ‘reco
ording reasons in writing on its s
satisfaction as to why holding an
n
inquiry is no
ot reasonably practicable’ may
y be subject to judicial review
w
under Article
e 226 by the High Court. This C
Court in Gursher Singh Sandhu
u
w Finder (P&H) 26471 , while
e
v. State of P
Punjab and others, 2026 Law
considering t
the settled legal position enunc
ciated by the Hon’ble Supreme
e
Court in Uni
, (1985) 3 SCC 398 , which has
s
ion of India v. Tulsiram Patel,
subsequently
y been reiterated in a catena of
judgments, has also reaffirmed
d
that the norm
mal rule is that an employee
can be dismissed, removed or
r
reduced in r
rank only after holding a depa
artmental enquiry, in which the
e
VIMAL KUMAR
2026.11.02 18:27
I attest to the accuracy and
authenticity of this order/judgment.
CWP-7698-2023 (O
O&M)
(12)
communicated to him and
charges are
he is afforded a reasonable
e
opportunity o
of defending himself. It has been
n observed as under:
“35. It is trite law that the decis
sion of the appointing authority on
n
the issue of ‘recording reasons in
n writing on its satisfaction as to
o
why holding an inquiry is not reaso
onably practicable’ may be subject
t
to judicial review under Article
226 by the High Court. The
e
Constitution Bench of the Hon'b
ble Supreme Court in Tulsiram
m
Patel’s case (supra) , has reit
terated the legal position and
d
authoritatively explained the scop
pe and ambit of Article 311(2) and
d
the second proviso thereto. The
Court has made it clear that the
e
p
power under Article 311(2)(b) is
an exceptional power and cannot
t
be exercised arbitrarily or merel
ly for the purpose of avoiding a
a
departmental enquiry. The conditi
ion precedent for invoking Clause
e
(b) is the existence of circumstanc
ces which render the holding of an
n
enquiry not reasonably practicabl
le and the recording, in writing, of
f
reasons for the satisfaction of th
he disciplinary authority. It has
s
been held as under:
“32. The arguments adva
anced on behalf of the government
t
servants on the pleasure
doctrine and the second proviso
o
to Article 311 (2) may be sk
ketched in broad outlined as under:
(1) The pleasure doctri
ine in England is a part of the
e
special prerogative of the
Crown and has been inherited by
y
India from England and
should, therefore, be construed
d
strictly, that is, strictly aga
ainst the Government and liberally
y
in favour of government ser
rvants.
(2) The second proviso w
which withdraws from government
t
servants the safeguards p
provided by clause (2) of Article
e
311 must be also similarly
y construed for, unless a liberal
l
construction were placed up
pon it, great hardship would result
t
to government servants as
they could be arbitrarily thrown
n
out of employment and the
ey and their dependents would be
e
left without any means of su
ubsistence.
(3) There are several sta
ages before a government servant
t
can be dismissed or remo
oved or reduced in rank, namely,
serving upon him of a show
w cause notice or a charge-sheet,
giving him inspection of doc
cuments, examination of witnesses,
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CWP-7698-2023 (O&M)
(13)
arguments and imposition
of penalty. An inquiry starts only
y
after a show cause notic
ce is issued and served upon a
a
government servant. A show
w cause notice is thus preparatory
y
to the holding of an inquiry
ry and even if the entire inquiry is
s
dispensed with, the giving o
of a show cause notice and asking
g
for the explanation of the
government servant with respect
t
there to are not excluded.
(4) It is not obligatory u
upon the disciplinary authority to
o
dispense with the whole of
f the inquiry. Depending upon the
e
circumstances of the case
e, the disciplinary authority can
n
dispense with only a part of
f the inquiry.
(5) Imposition of penalty
ty is not a part of the inquiry and
d
once an inquiry is dispens
sed with, whether in whole or in
n
part, it is obligatory upon th
he disciplinary authority to give an
n
opportunity to the gov
vernment servant to make a
a
representation with respec
ct to the penalty proposed to be
e
imposed upon him.
(6) Article 311 is subje
ect to Article 14. Principles of
f
natural justice and the au
udi alteram partem rule are part
t
of Article 14 and, therefore
e, a show cause notice asking for
r
the explanation of the gove
ernment servant with respect to the
e
charges against him as al
lso a notice to show cause with
h
respect to the proposed p
penalty are required to be given
n
by Article 14 and the not g
giving of such notices or either of
f
them renders the order of d
dismissal, removal or reduction in
n
rank invalid.
33. The submissions on b
behalf of the Union of India can be
e
thus summarized :
(1) The second proviso m
must be construed according to its
s
terms. It is unambiguous
and does not admit of any such
h
interpretation as canvassed
d for on behalf of the government
t
servants.
(2) Where under the sec
cond proviso, clause (2) of Article
e
311 is made inapplicable, t
there is no scope for holding any
y
partial inquiry.
(3) In any event, the ver
ry contents of the three clauses of
f
the second proviso show
that it is not necessary or not
t
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CWP-7698-2023 (O&M)
(14)
practicable or not expedien
nt that any partial inquiry could be
e
or should be held, dependin
ng upon which clause applies.
(4) Article 14 does not gov
vern or control Article 311. The
e
Constitution must be
read as a whole. Article
e
311(2) embodies the princip
ples of natural justice including the
e
audi alteram partem rule.
It thus expressly states what is
s
required under Article 14
as a result of the interpretation
n
placed upon it by recent d
decisions of this Court. Once the
e
application of clause(2)
is expressly excluded by the
e
Constitution itself, there c
can be no question of making
g
applicable what has been
so excluded by seeking recourse
e
to Article 14.
(5) Consideration of
sympathy for the government
t
servants who may be dism
missed or removed or reduced in
n
rank are irrelevant to the c
construction of the second proviso.
The doctrine of tenure at
t pleasure in Article 310 and the
e
safeguards given to a gove
ernment servant under clauses (1)
)
and (2) of Article 311 as als
so the withdrawal of the safeguard
d
under clause (2) by the se
econd proviso are all enacted in
n
public interest and where pu
ublic interest conflicts with private
e
interest, the latter must yield
d to the former.
The Ple
easure Doctrine:
34. The concept of civil
l service is not now or of recent
t
origin. Governments - wh
hether monarchial, dictatorial or
r
republican - have to fun
nction; and for carrying on the
e
administration and the var
ried functions of the government a
a
large number of persons ar
re required and have always been
n
required, whether they are
constituted in the form of a civil
l
service or not. Every king
gdom and country of the world
d
throughout history had a g
group of persons who helped the
e
ruler to administer the lan
nd, whether according to modern
n
notions we may call that gr
roup a civil service or not, because
e
it is not possible for one m
man by himself to rule and govern
n
the land and look after
and supervise all the details of
f
administration. As it was th
hroughout history, so it has been in
n
England and in India.
xx
xx xx
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CWP-7698-2023 (O&M)
(15)
The Second P
Proviso to Article 311(2):
60. Clause (2) of Arti
icle 311 gives a constitutional
l
mandate to the principles of
of natural justice and audi alteram
m
partem rule by providing t
that a person employed in a civil
l
capacity under the Union o
or a State shall not be dismissed or
r
removed from service or red
duced in rank until after an inquiry
y
in which he has been inform
med of the charges against him and
d
has been given a reasonab
ble opportunity of being heard in
n
respect of those charges. To
To this extent, the pleasure doctrine
e
enacted in Article 310(
(1) is abridged because Article
e
311(2) is a express prov
vision of the Constitution. This
s
safeguard provided for a g
government servant by clause (2)
)
of Article 311 is, however,
r, taken away when the second
d
proviso to that clause bec
comes applicable. The safeguard
d
provided by clause(1) of Ar
rticle 311, however, remains intact
t
and continues to be availab
ble to the government servant. The
e
second proviso to Article 3
311(2) becomes applicable in the
e
three cases mentioned in c
clauses (a) to (c) of that proviso.
These cases are:-
(a) where a person is di
ismissed or removed or reduced in
n
rank on the ground of condu
duct which has led to his conviction
n
on a criminal charge; or
(b) where the authority e
empowered to dismiss or remove a
a
person or to reduce him i
in rank is satisfied that for some
e
reason, to be recorded by
that authority in writing, it is not
t
reasonably practicable to ho
old such inquiry; and
(c) where the President
or the Governor, as the case may
y
be, is satisfied that in the in
nterest of the security of the State it
t
is not expedient to hold such
h inquiry.
The Construction to be pla
aced upon the second proviso and
d
the scope and effect of that
proviso were much debated at the
e
Bar. In Hira Lal Rattan L
Lal etc. v. State of U.P. & Anr.,
,
[1973] 2 S.C.R. 502 this Co
ourt observed (at page 512) ;
"In construing a statutory p
provision, the first and the foremost
t
rule of construction is the
literary construction. All that we
e
have to see at the very outse
et is what does that provision say?
?
If the provision is unambigu
uous and if from that provision, the
e
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CWP-7698-2023 (O&M)
(16)
legislative intent is clear, w
we need not call into aid the other
r
rules of construction of
f statutes. The other rules of
f
construction of statutes ar
re called into aid only when the
e
legislature intention is not
t clear. Ordinarily a proviso to a
a
section is intended to take
out a part of the main section for
r
special treatment. It is not
t expected to enlarge the scope of
f
the main section. But cases
s have arisen in which this Court
t
has held that despite the
e fact that a provision is called
d
proviso, it is really a sepa
arate provision and the so called
d
proviso has substantially al
tered the main section."
In Commissioner of Incom
me Tax, Madras v. Madurai Mills
s
62 , this Court said (at page 669):
Co. Ltd., [1973] 3 S.C.R. 66
"A proviso cannot be const
trued as enlarging the scope of an
n
enactment when it can b
be fairly and properly construed
d
without attributing to it tha
t effect. Further, if the language of
f
the enacting part of the stat
tute is plain and unambiguous and
d
does not contain the provis
sions which are said to occur in it,
one cannot derive those p
provisions by implication from a
a
proviso."
61. The language of t
the second proviso is plan and
d
unambiguous. The key-wor
rds in the second proviso are "this
s
clause shall not apply". By
y "this clause" is meant clause(2).
As clause(2) requires an
inquiry to be held against a
a
government servant, the on
nly meaning attributable to these
e
words is that this inquiry sh
hall not be held. There is no scope
e
for any ambiguity in these
e words and there is no reason to
o
given them any meaning diff
fferent from the plain and ordinary
y
meaning which they bear. T
The resultant effect of these words
s
is that when a situation env
visaged in any of the three clauses
s
of the proviso arises and th
hat clause becomes applicable, the
e
safeguard provided to a go
overnment servant by clause (2) is
s
taken away. As pointed out
t earlier, this provision is as much
h
in public interest and for p
public good and a matter of public
c
policy as the pleasure do
octrine and the safeguards with
h
respect to security of tenure
re contained in clauses (1) and (2)
)
of Article 311.
xx
xx xx
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CWP-7698-2023 (O&M)
(17)
129. The next contentio
on was that even if it is not
t
reasonably practicable to
hold an inquiry, a government
t
servant can be placed und
der suspension until the situation
n
improves and it becomes p
possible to hold the inquiry. This
s
contention also cannot be
accepted. Very often a situation
n
which makes it not reasona
ably practicable to hold an inquiry
y
is of the creation of the
e concerned government servant
t
himself or of himself acting
g in concert with others or of his
s
associates. It can even be
that he himself is not a party to
o
bringing about that situatio
on. In all such cases neither public
c
interest nor public good re
equires that salary or subsistence
e
allowance should be contin
nued to be paid out of the public
c
exchequer to the concerne
ed government servant. It should
d
also be borne in mind that
t in the case of a serious situation
n
which renders the holding
g of an inquiry not reasonably
y
practicable, it would be d
difficult to foresee how long the
e
situation will last and wh
en normalcy would return or be
e
restored. It is impossible to
o draw the line as to the period of
f
time for which the suspen
nsion should continue and on the
e
expiry of that period action
n should be taken under clause (b)
)
of the second proviso. Fur
rther, the exigencies of a situation
n
may require that promp
t action should be taken and
d
suspending the government
t servant cannot serve the purpose.
Sometimes not taking promp
pt action may result in the trouble
e
spreading and the situation
worsening and at times becoming
g
uncontrolable. Not taking
g prompt action may also be
e
construed by the trouble-
makers and agitators as sign of
f
weakness on the part of th
he authorities and thus encourage
e
them to step up the tempo o
of their activities or agitation. It is
s
true that when prompt actio
on is taken in order to prevent this
s
happening, there is an elem
ment of deterrence in it but that is
s
an unavoidable and nece
essary concomitance of such an
n
action resulting from a situ
uation which is not of the creation
n
of the authorities. After al
ll, clause (b) is not meant to be
e
applied in ordinary, norma
al situations but in such situations
s
where is not reasonably pra
acticable to hold an inquiry.
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CWP-7698-2023 (O&M)
(18)
130. The condition preced
dent for the application of clause
e
(b) is the satisfaction of th
e disciplinary authority that "it is
s
not reasonably practicable
to hold" the inquiry contemplated
d
by clause (2) of Article 311
1. What is pertinent to note is that
t
the words used are "not
reasonably practicable" and not
t
"impracticable". According
g to the Oxford English Dictionary
y
"practicable" means "Cap
pable of being put into practice,
carried out in action, ef
ffected, accomplished, or done;
;
feasible". Webster's Third
d New International Dictionary
y
defines the word "pract
ticable" inter alia as meaning
g
"possible to practice or pe
erform: capable of being put into
o
practice, done or accomplis
shed : feasible". Further, the words
s
used are not "not pra
acticable" but "not reasonably
y
practicable". Webster's Th
ird New International Dictionary
y
defines the word "reasonab
bly" as "in a reasonable manner :
:
to a fairly sufficient extent"
". Thus, whether it was practicable
e
to hold the inquiry or not
must be judged in the context of
f
whether it was reasonably
practicable to do so. It is not a
a
total or absolute impractica
ability which is required by clause
e
(b). What is requisite is tha
at the holding of the inquiry is not
t
practicable in the opinion
n of a reasonable man taking a
a
reasonable view of the prev
vailing situation. It is not possible
e
to enumerate the cases in
which it would not be reasonably
y
practicable to hold the inqu
uiry, but some instances by way of
f
illustration may, however
r, be given. It would not be
e
reasonably practicable to
o hold an inquiry where the
e
government servant, particu
ularly through or together with his
s
associates, so terrorizes, t
threatens or intimidate witnesses
s
who are going to given ev
vidence against him with fear of
f
reprisal as to prevent the
em from doing so or where the
e
government servant by him
mself or together with or through
h
other threatens, intimidates
s and terrorizes the officer who is
s
the disciplinary authority o
or member of his family so that he
e
is afraid to hold the inquir
ry or direct it to be held. It would
d
also not be reasonably pra
cticable to hold the inquiry where
e
an atmosphere of violence
e or of general indiscipline and
d
insubordination prevails, a
and it is immaterial whether the
e
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CWP-7698-2023 (O&M)
(19)
concerned government serv
vant is or is not a party to bringing
g
about such an atmosphere.
In this connection, we must bear
r
in mind that numbers coerc
rce and terrify while an individual
l
may not. The reasonable pr
racticability of holding an inquiry
y
is a matter of assessment
t to be made by the disciplinary
y
authority. Such authority is
s generally on the spot and knows
s
what is happening. It is bec
cause the disciplinary authority is
s
the best judge of this that c
clause (3) of Article 311 makes the
e
decision of the disciplinary
authority on this question final. A
A
disciplinary authority is n
not expected to dispense with a
a
disciplinary inquiry lightly
y or arbitrarily or out of ulterior
r
motives or merely in order
to avoid the holding of an inquiry
y
or because the Departmen
nt's case against the government
t
servant is weak and mus
st fail. The finality given to the
e
decision of the disciplinary
y authority by Article 311(3) is not
t
binding upon the court so fa
ar as its power of judicial review is
s
concerned and in such a c
ase the court will strike down the
e
order dispensing with the i
nquiry as also the order imposing
g
penalty. The case of Arjun
Chaubey v. Union of India and
d
02 , is an instance in point. In that
t
others, [1984] 3 S.C.R. 30
case, the appellant was wor
rking as a senior clerk in the office
e
of the Chief Commercial S
Superintendent, Northern Railway,
Varanasi. The Senior Comm
mercial Officer wrote a letter to the
e
appellant calling upon him
m to submit his explanation with
h
regard to twelve charges of
f gross indiscipline mostly relating
g
to the Deputy Chief C
Commercial Superintendent. The
e
appellant submitted his exp
planation and on the very next day
y
the Deputy Chief Commerci
ial Superintendent served a second
d
notice on the appellant say
ying that his explanation was not
t
convincing and that another
r chance was being given to him to
o
offer his explanation with
h respect to those charges. The
e
appellant submitted his fur
rther explanation but on the very
y
next day the Deputy Chief C
Commercial Superintendent passed
d
an order dismissing him on
n the ground that he was not fit to
o
be retained in service. Th
his Court struck down the order
r
holding that seven out of
of twelve charges related to the
e
conduct of the appellant w
with the Deputy Chief Commercial
l
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CWP-7698-2023 (O&M)
(20)
Superintendent who was the
e disciplinary authority and that if
f
an inquiry were to be he
eld, the principal witness for the
e
Department would have be
een the Deputy Chief Commercial
l
Superintendent himself, res
sulting in the same person being
g
the main accuser, the chief
f witness and also the judge of the
e
matter.
xx
xx xx
133. The second condi
ition necessary for the valid
d
application of clause (b) o
of the second proviso is that the
e
disciplinary authority shou
ld record in writing its reason for
r
its satisfaction that it was n
not reasonably practicable to hold
d
the inquiry contemplated
d by Article 311(2). This is a
a
Constitutional obligation an
nd if such reason is not recorded in
n
writing, the order dispensin
ng with the inquiry and the order of
f
penalty following thereup
pon would both be void and
d
unconstitutional.”
xx
xx xx
41. In view of the settled propo
osition of law, as discussed above,
and on overall analysis of the
e intent of Article 311(2) of the
e
Constitution, it is vivid that an em
mployee can only be dismissed or
r
removed or reduced in rank aft
fter an inquiry by supplying the
e
charges against him and giving a
a reasonable opportunity of being
g
heard in respect of those charges,
, however, the applicability of the
e
exceptional proviso of clause (b)
of second proviso to Article 311
(2) of Constitution of India is r
restricted to a situation, wherein
n
conduct of the delinquent led to his
s conviction of criminal charges or
r
where the authority empowered w
who dismissed, removed or reduced
d
in rank, records reason in writin
ng upon satisfaction that it is not
t
‘reasonably practicable’ to hold
d an enquiry against him. The
e
disciplinary authority must not dis
spense with an enquiry merely on
n
the basis of its subjective sa
atisfaction or by mechanically
y
reproducing the language of Arti
icle 311(2)(b) of the Constitution.
The reasons must demonstrate the
e existence of circumstances which
h
genuinely render the holding
of the enquiry impracticable.
Ordinarily, circumstances such
as witnesses being unwilling to
o
depose on account of threats,
intimidation or coercion may
y
constitute relevant considerations.
However, the mere seriousness of
f
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CWP-7698-2023 (O
O&M)
(21)
the allegations or the possibility
that the delinquent employee may
y
not cooperate cannot, by its
tself, satisfy the constitutional
l
requirement. The wording as u
used in clause (b) of the second
d
p
proviso indicates the satisfaction
of the Disciplinary Authority by
y
using the word “it is not reasonab
ly practicable to hold” the inquiry
y
contemplated by clause (2) of A
rticle 311. The Hon’ble Supreme
e
Court emphasized the meaning of
f “not reasonably practicable” as
s
j
juxtaposed against not “impract
ticable”. The Hon’ble Supreme
e
Court clarified that the disciplin
nary authority is not expected to
o
dispense with a departmental inqu
uiry lightly or arbitrarily or out of
f
ulterior motives or merely in order
r to avoid the holding of an inquiry
y
or because the Department’s case
against the government servant is
s
weak and may fail. Further, the C
Court emphasised the words used in
n
clause (b) of second proviso that
t the disciplinary authority should
d
record its reasons in writing for
r its satisfaction that holding an
n
inquiry is not reasonably practic
able. In case, such reason is not
t
recorded in writing or not valid an
nd justifiable, the order dispensing
g
with the inquiry and the order of p
penalty flowing therefrom would be
e
void and unconstitutional. In tha
t situation, it remains always open
n
to the Court to take the case out
of purview of that clause and the
e
order of penalty would stand inval
idated.”
In Gursher Singh Sandhu’s ca
17.
ase (supra), this Court had also
o
taken into co
onsideration the guidelines/instru
uctions dated 02.09.2022 issued
d
by the Direc
tor General of Police, Punjab, C
Chandigarh, in compliance with
h
the direction
ns issued by this Court vide ord
der dated 04.07.2022 passed in
n
CWP-13285
5-2022, titled Ex. Constable V
Vikas No.950/FZR v. State of
f
others . The said guidelines wer
e noticed in the backdrop of the
e
Punjab and
manner in w
which the provisions of Article 3
311(2)(b) of the Constitution of
f
India had be
een invoked by the State of Pun
njab in a large number of cases
s
without strict
t adherence to the constitutional
l safeguards for dispensing with
h
regular depa
artmental enquiry. While consid
dering the aforesaid aspect, this
s
Court observ
ved as under:
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CWP-7698-2023 (O
O&M)
(22)
“42. This Court has also noticed
d the manner in which the State of
f
Punjab has invoked Article 311(2)
)(b) of the Constitution in a large
e
number of cases. In CWP-13285-
-2022 titled ‘Ex. Constable Vikas
s
b & others’ this Court, vide order
r
N
No.950/FZR Vs. State of Punjab
dated 04.07.2022, observed as und
der:
“xx
xx xx
This Court has notic
ced while dealing with the current
t
roster, that a large numbe
er of writ petitions are being filed
d
against the order of dismis
ssal invoking Article 311(2)(b) of
f
the Constitution of India.
. The competent authorities are
e
ignoring the law as settled
d by the Supreme Court regarding
g
dismissal of an employee
e under Article 311(2)(b) of the
e
Constitution of India, whic
ch leads to the impugned orders
s
being set aside.
It might be appropr
riate for the State Governments to
o
look into this issue and a
apprise the competent authorities
s
about the relevant case la
aw pertaining to invoking Article
e
311(2)(b) of the Constitutio
on of India at the time of seeking to
o
summarily dismiss the Gove
ernment employees.
Let a copy of this
order be conveyed to the Chief
f
Secretaries of the States of
f Punjab and Haryana as well as
s
the Advisor to Administrato
or, U.T., Chandigarh.”
43. In compliance of said dire
ections, the office of the Director
r
General of Police, Pu
unjab, Chandigarh, issued
d
guidelines/instructions dated 02.09
9.2022, which reads thus:
“Subject:- Guidelines/Ins
Orders of th
High Court, p
(2) (B) of th
involving dism
Memo
structions for compliance of the
he Hon'ble Punjab and Haryana
e
a
1
pertaining to invoking Article 311
he Constitution of India in cases
s
missal of an employee/official.
1. In this regard, the H
Hon'ble Punjab and Haryana High
h
Court has issued directions
in the Civil Writ Petition 13285 of
f
2022 titled as Ex Constabl
le Vikas No. 950/FZR Vs State of
f
Punjab and others on 04.07
7.2022 that:-
"xx
xx xx"
2. That in compliance w
with the aforesaid directions of the
e
Hon'ble High Court,
this office is issuing
g
guidelines/instructions for
the basic understanding of the
VIMAL KUMAR e
2026.11.02 18:27
I attest to the accuracy and
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CWP-7698-2023 (O&M)
(23)
Article 311 (2) (b) while
invoking the same in cases of
f
dismissal, removal or
reduction in rank of the
e
employee/official. It has b
een seen in many cases that the
e
order passed by the Compe
etent Authorities under Article 311
(2) (b) have failed in the
Hon'ble Courts and the Hon'ble
e
Courts have set aside such
dismissal order of the personnels
s
time and again and reinsta
ated them in service. The Hon'ble
e
Courts have also observed
in numerous cases that decision to
o
dispense with the departm
mental enquiry cannot be rested
d
solely on the ipse dixit of th
he concerned authorities. It is well
l
settled proposition of law t
that due reasons are necessary to
o
be recorded in writing as
s to why it was not practicably
y
possible to conduct an enqu
uiry.
3. That the Hon'ble Sup
preme Court of India and Hon'ble
e
High Courts, in catena of j
judgments have specifically made
e
clear that order of dism
issal is not to be passed in a
a
mechanical manner. It has
also been held that only in cases
s
where disciplinary authori
ities are satisfied on the basis of
f
material available on file th
hat the case is of such a nature that
t
it is not practicable possib
ble to hold an enquiry in view of
f
threat, inducement, affiliati
ion with criminals etc. that article
e
311(2) (b) of Constitution of
of India, is to be invoked.
4. That the Hon'ble Su
upreme Court of India and High
h
Courts have delivered
various judgments on the
e
interpretations of Article 31
11 (2) (b). Few are mentioned here
e
and are required to be fo
ollowed in letter and spirit while
e
dealing in cases involvin
ng Article 311 (2) (b) of the
e
Constitution of India.
1. The Hon'ble S
Supreme Court of India in Union
n
am Patel & others , judgment dated
d
of India Vs Tulsi Ra
11.07.1985 is well
traversed and has clarified the
e
constitutional provis
ions as embodied in Article 311(2)
)
of the Constitution.
The judgment is detailed and is a
a
settled law pertaini
ing to matters involving article
e
311(2)(b) of the Cons
stitution of India.
2. In CWP No.1
15903 titled as Dinesh Singh Vs
s
others decided on 30.08.2016 , the
e
VIMAL KUMAR
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State of Punjab & o
CWP-7698-2023 (O&M)
(24)
Hon'ble Court has h
held "Constitution of India, 1950
0
Article 311 (2) du
ue reasons are necessary to be
e
recorded as to why
it was not practicably possible to
o
conduct an enquiry
or how it was not convenient to
o
authority or inquiry
officer to conduct an enquiry-said
d
provisions are attra
acted by exercising extraordinary
y
powers under extrao
ordinary circumstances- absence of
f
extraordinary circum
mstances while invoking provisions
s
of article 311 (2) (b)
can be termed as misuse of power
r
and as such, action
of the authority is not sustainable
e
in the eyes of law.
3. The Hon'ble P
Punjab & Haryana High Court in
n
CWP No. 10423 of 2
2020 titled Sarabjit Singh Vs State
e
s has held that authority chose to
o
of Punjab & others
dismiss petitioner w
without holding Inquiry- careful
l
reading of the impug
gned order shows that there is total
l
absence of reasons
in this regard- mere observation
n
that departmental
enquiry at this stage does not
t
appear to be justified
d is not sufficient to invoke powers
s
under clause (b) of th
he 2nd proviso to article 311(2) of
f
the Constitution of I
India. Petitioner directly to be re-
-
instated.
5. It should also be ens
sured that recording in writing of
f
the reasons for dispensing
with the enquiry must precede an
n
order imposing the penalty
. Legally speaking the reasons for
r
dispensing with the enquiry
ry need not find place in the final
l
order itself though they sho
ould be recorded separately in the
e
relevant file. In spite of th
his legal position, it would be of
f
advantage to incorporate
e the reasons which lead the
e
disciplinary authority to
the conclusion that it was not
t
reasonably practicable to
hold an enquiry. The reasons so
o
given should not be vagu
ue or they should not be just a
a
repetition of the language of
of the relevant rules.
6. That the aforementi
ioned guidelines/instructions and
d
the relevant detailed case
e laws are to be examined and
d
followed by the concern
ned disciplinary authority while
e
invoking article 311(2)(b)
b) Constitution of India. These
e
VIMAL KUMAR
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CWP-7698-2023 (O
O&M)
(25)
guidelines/instructions alon
ngwith relevant case laws are to be
e
strictly adhered and their
meticulous compliance is to be
e
ensured.”
44. It has also been noticed by
y this Court that, in a number of
f
cases, Police Officers/Officials ha
ave been dismissed from service by
y
invoking the provisions of Artic
cle 311(2)(b) of the Constitution
n
merely on account of registration o
of an FIR against them…………
xxx
xxx xxx
54. It is also apt to state here
e that the State Government itself,
f
through the guidelines/instruction
ns dated 02.09.2022, issued by the
e
office of the Director General of
f Police, Punjab, had drawn the
e
attention of the competent author
rities to the settled legal position
n
that orders under Article 311(2)(b)
b) of the Constitution should not be
e
p
passed mechanically and that r
reasons for dispensing with the
e
enquiry must be supported by mate
erial available on record. The said
d
guidelines specifically caution tha
at the decision to dispense with a
a
departmental enquiry cannot rest
merely upon the ipse dixit of the
e
competent authority and that the
e reasons must not be vague or
r
merely reproduction of the langu
uage of the relevant constitutional
l
p
provision.
xxx
xxx xxx
56. While considering the provi
isions of Article 311(2)(b) vis-à-vis
s
Punjab Police Rules, 1934, a Coo
ordinate Bench in Baljinder Singh
h
v. State of Punjab & others ,
, ( CWP-8612-2021 decided on
n
13.05.2024 ), observed as under:
“3. Mr. Anupam Bhardw
dwaj, Advocate submits that there
e
was no occasion to dis
spense with mandatory inquiry
y
contemplated by Article 3
11 of Constitution of India read
d
with Rule 16.24 of the 1934
4 Rules. The respondents acting in
n
a mechanical manner disp
ensed with inquiry and dismissed
d
the petitioner from servic
ce. The co-accused was initially
y
suspended and he has been
re-instated.
4. Per contra, Mr. Paw
wan Kumar, DAG, Punjab submits
s
that petitioner accepted ille
egal gratification from accused in
n
aforementioned FIRs, thus
s, it was indispensable to dismiss
s
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CWP-7698-2023 (O&M)
(26)
him from service. It was no
t possible to conduct inquiry, thus,
he was dismissed without co
onducting inquiry.
xx
xx xx
8. The reason advanc
ced by SSP for dispensing with
h
inquiry is not the actual r
reason because same reason has
s
been advanced in every c
case where there is FIR against
t
serving police officer. Th
he respondent can dispense with
h
inquiry if actually it is not
practicable to hold inquiry. Mere
e
writing one line in the
impugned order that it is not
t
practicable to hold inquiry
y is not compliance of mandate of
f
either Constitution of Ind
dia or Rule 16.24 of the Punjab
b
Police Rules. The respon
ndent instead of straight away
y
dismissing the petitioner co
ould put him under suspension and
d
thereafter conduct inquiry.
This course was adopted in the
e
case of co-accused, thus,
there was no reason to adopt
t
different course in the case
e of petitioner. It is interesting to
o
note that FIR was registere
ed against the petitioner as well as
s
HC Jatinder Singh and
he has been re-instated before
e
awaiting conclusion of crim
minal proceedings.
9. In the wake of abo
ove discussion and findings, this
s
Court is of the considered
opinion that respondents without
t
any logical reason dispens
sed with mandatory inquiry. The
e
impugned orders deserve to
o be set aside and accordingly set
t
aside.
It is made clear that
t petitioner, as conceded, shall not
t
be entitled to back wages. T
The respondent shall be free either
r
to conduct departmental
l inquiry after following due
e
procedure prescribed by
Punjab Police Rules or take
e
appropriate decision af
after conclusion of criminal
l
proceedings.”
57. In Rakesh Kumar v. State o
of Punjab & others , ( CWP-14712-
-
2017 decided on 25.04.2022 ), this
Court observed as under:
“8. The petitioners were
e appointed as Constables with the
e
Punjab Police and were di
ismissed from service by invoking
g
Article 311(2) (b) of the C
Constitution of India as FIR No.74
4
dated 25.07.2014, under Se
ection 384 of the IPC and Section 7
7
and 8 of the Prevention of
f Corruption Act, 1988 came to be
e
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CWP-7698-2023 (O&M)
(27)
registered against them. T
The date of dismissal is the same
e
date as the date of registrat
tion of the FIR. While dismissing a
a
government servant under A
Article 311 (2) (b), the appropriate
e
disciplinary authority has t
to record reasons in writing that it
t
does not consider it reaso
onably practicable to give to the
e
person an opportunity of
showing cause. The satisfaction
n
under this clause has to be
e of the disciplinary authority that
t
has the power to dismiss, r
remove or reduce the Government
t
servant in rank. As a chec
ck against an arbitrary use of this
s
exception, it has been provi
ided that the reasons for which the
e
competent authority decide
es to do away with the prescribed
d
procedure must be record
ded in writing setting out why it
t
would not be practicable.
9. On perusal of impu
ugned order of termination, it is
s
apparent that no reasons w
whatsoever have been recorded to
o
show as to how the provisio
ons of Article 311 (2) (b) have been
n
attracted. A reading of the
impugned order would show that
t
the reason for dispensing of
of holding a regular enquiry is that
t
a finding is given that no
witness is likely to come forth to
o
depose and that the petitio
oner has a criminal mentality, but
t
there is no material availab
ble to support this ground.
xx
xx xx
11. The law is this regar
rd is no longer res intergra, as can
n
be noticed from the judgem
ments as cited above. Therefore the
e
impugned orders would not
t be sustainable.
12. Another reason for s
setting aside the impugned orders
s
is that a co-accused in the
e FIR, who was also dismissed by
y
the authorities while dispe
ensing with regular enquiry, had
d
filed an appeal before
the Additional Chief Secretary
y
Government of Punjab, D
Department of Home Affairs and
d
Justice and the said appea
l was allowed holding that it was
s
not fair to dismiss the a
appellant with hearing and that
t
departmental proceedings
were liable to be initiated. The
e
appellant Harjap Singh sto
ood reinstated and the period from
m
date of dismissal till reinst
tatement was to be treated as Non
n
Duty Period. The petitione
ers who are similarly situated as
s
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CWP-7698-2023 (O
O&M)
(28)
said Harjap Singh, too sh
hould be given an opportunity of
f
hearing.
13. Consequently the w
rit petitions are allowed and the
e
impugned order dismissing
g the petitioners from service vide
e
order 25.07.2014 (Annexur
re P-3) and the orders passed on
n
the statutory appeal dated
d 02.03.2016 (Annexure P-6), by
y
respondent No.4 and order
r dated 16.04.2016 (Annexure P-8)
)
passed by respondent No.3
in revision, are set aside leaving it
t
open to the department to
take departmental action against
t
the petitioners in accordanc
ce with law, if needed.”
58. The power under Article
311(2)(b) cannot, therefore, be
e
invoked merely because the discip
plinary authority apprehends that
t
the delinquent employee may not
t cooperate with the proceedings.
There must exist some objective
circumstance which makes a fair
r
enquiry genuinely impracticable.
Circumstances, such as, threats,
intimidation or coercion of witnes
sses, interference with the Enquiry
y
Officer, or tampering with eviden
nce may ordinarily furnish a valid
d
basis. However, no such circumsta
ance has been demonstrated in the
e
present case.”
p
Recently, the Hon’ble Suprem
18.
me Court in Manohar Lal v.
SCC OnLine SC 363 has again
n
Commission
er of Police & others, 2026 S
held that the
e reasons recorded by the discip
plinary authority must establish
h
the existence
e of circumstances which render
r the holding of a departmental
l
enquiry not
reasonably practicable. The pow
wer cannot be exercised on the
e
basis of a m
mere ipse dixit or an unsubstanti
iated apprehension. It has been
n
held as under
r:
“35. In the case at hand after
registration of the FIR when the
e
appellant was in custody the order
r of dismissal was passed. He was
s
released only thereafter. As such,
without indicating any instance of
f
intimidation, traumatising, thr
reatening or persuading the
e
complainant or the witness to tur
rn hostile from inside the jail, the
e
belief or presumption as recorded
by the disciplinary authority is not
t
sufficient to bring the present cas
se within the exception to Article
e
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CWP-7698-2023 (O
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(29)
311 (2) by applying clause (b) of se
econd proviso thereto. Thus, in our
r
view, the reasoning contemplated
in the judgment of Jaswant Singh
h
(Supra) applies in the case at hand
d.
xx
xx xx
40. On overall analysis of the
intent of Article 311(2), it is vivid
d
that an employee holding a post i
in Union or State ought not to be
e
dismissed or removed by an aut
thority subordinate to the one by
y
which he was appointed. It is furth
her specified that a person shall be
e
dismissed or removed or reduced
in rank after an inquiry supplying
g
the charges if any against him an
d giving a reasonable opportunity
y
of being heard in respect of those
e charges. The applicability of the
e
said clause is restricted in a situat
tion wherein his conduct led to his
s
conviction of criminal charges or
r where the authority empowered
d
who dismissed, removed or red
duced in rank records reason in
n
writing upon satisfaction that it i
is not ‘reasonably practicable’ to
o
hold an enquiry against him. In
addition, where such power has
s
been exercised by the President o
or the Governor it may be in the
e
interest of security of the State or
r if not expedient to hold such an
n
enquiry, then exceptional power u
under clause (c) of second proviso
o
to Article 311 ought to be exercised
d.
41. In case such a decision inv
voking the extraordinary power is
s
taken by the competent authority
in light of the judgment Tulsiram
m
Patel (Supra) within the param
meter as discussed, the scope of
f
j
judicial review is available to the
Constitutional Courts wherein the
e
reasons as assigned for satisfa
action of the authority must be
e
reasonable, valid, justified and
d in writing. In addition, the
e
satisfaction as recorded must be
the objective satisfaction on the
e
basis of material brought on record
rd which ordinarily the disciplinary
y
authority may take as a prudent p
person. Otherwise, dispensing with
h
the enquiry is not permissible in la
aw. In the present case, Section 21
of the 1978 Act confers power
r of punishment and Section 22
2
p
prescribes the procedure for a
awarding such punishment. The
e
p
procedure as contemplated has
been elaborated under the 1980
0
Rules. In the present case, in our
r view, the power exercised by the
e
authority is completely without
application of mind, thus, the
e
question of recording of satisfact
tion as affirmed by the appellate
e
authority, the CAT and the High C
Court does not arise. Therefore, we
e
VIMAL KUMAR
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CWP-7698-2023 (O
O&M)
(30)
can hold that the order dispensin
ng with the regular procedure of
f
inquiry is arbitrary and conseque
ently the order of dismissal of the
e
appellant is liable to be quashed a
and the orders of the CAT and the
e
High Court affirming the said dism
missal order stand set aside.”
Applying the aforesaid princip
19.
ples to the facts of the present
t
case, this Co
ourt is of the considered view th
hat the reasons recorded by the
e
disciplinary a
authority as well as the appellat
te authority are not sufficient to
o
dispense wit
th the enquiry. The impugned
d order does not disclose any
y
specific circu
umstance which made the holdin
ng of the enquiry impracticable.
.
The appellate
e authority, vide its order dated
27.10.2022 (Annexure P-8), has
s
also not ind
dependently examined whether
r the conditions precedent for
r
sfied.
invoking Art
ticle 311(2)(b) were actually sati
20.
It is noteworthy that the p
petitioner was already facing
g
disciplinary p
proceedings in respect of the a
allegations and was even served
d
with a charg
e-sheet. So during the course o
of ongoing enquiry proceedings,
,
the responde
ents could not, merely because
the allegations were serious or
r
because the
Enquiry Officer subsequently
y formed an opinion that the
e
enquiry shou
uld be dropped, dispense with th
he prescribed procedure without
t
recording sp
pecific and cogent reasons in
n writing to demonstrate that
t
conducting th
he enquiry is impracticable.
21.
This Court is conscious of the
fact that the petitioner, being a
a
member of th
he disciplined police force, is ex
xpected to maintain integrity and
d
discipline an
nd that the allegations relatin
g to association with persons
s
involved in t
the drug trade are serious and wa
arrant strict consideration by the
e
competent au
uthorities. In case, the petition
ner had indulged himself in the
e
alleged misc
conduct, the respondents were e
entitled to establish the same in
n
accordance w
with the procedure prescribed by
y law and impose an appropriate
VIMAL KUMAR e
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CWP-7698-2023 (O
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(31)
the present case, the material r
penalty. In
relied upon by the respondents
s
merely sugg
ests that the petitioner was alle
egedly associated with criminal
l
elements and
d might influence witnesses, how
wever, no occasion or instance of
f
influencing a
any witness or alleged associa
ation has been demonstrated or
r
brought on re
ecord. Therefore, this Court do
oes not find any cogent material,
,
justifiable re
ason to establish that as to why
the departmental enquiry could
d
not be condu
ucted by adopting appropriate s
afeguards or why the witnesses
s
could not be
examined in the ordinary course
e of the enquiry.
22.
In view of the above discussion,
, this Court is of the opinion that
t
the impugne
ed order dated 09.11.2021 (An
nnexure P-6) suffers from non-
-
compliance w
with the mandatory requiremen
nts of Article 311(2)(b) of the
e
Constitution
of India. The appellate order da
ated 27.10.2022 (Annexure P-8),
,
which merel
ly affirms the said order of
dismissal without curing the
e
fundamental
defect, also cannot be sustained
.
23.
Consequently, the present petitio
on is allowed. The order/s dated
d
09.11.2021 (
(Annexure P-6) and 27.10.202
22 (Annexure P-8) are hereby
y
quashed. Th
he respondents are directed to re
einstate the petitioner in service
e
with all cons
equential benefits.
24.
However, the setting aside of the
e impugned orders and direction
n
for reinstatem
ment shall be without prejudice t
to the right of the respondents to
o
take recourse
e in accordance with law by co
ontinuing with the departmental
l
proceedings
after following due procedure
e prescribed by Punjab Police
e
Rules or take
e appropriate decision after concl
lusion of criminal proceedings.
02.11.2026
Vimal/mkkounda
al
Whether speaking/reasoned
Whether reportable:
(NAMIT KUMAR)
JUDGE
d: Yes/No
Yes/No
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