ORDER
G.S. Singhvi, J.
1. This petition involves a challenge to the orders (Annexures P-1 and P-2) passed respectively by the Senior Superintendent of Police, Tarn Taran and the Inspector General of Police, Border Range, Amritsar. The petitioner has prayed that his dismissal from service be declared illegal and the respondents be directed to reinstate him in service with consequential benefits.
2. The petitioner joined service as Constable or 5.8.1989 and served under the various officers till the passing of the order dated 26.4.1993 read with Article 311(2) of the Constitution of India and Rule 16.1 of the Punjab Police Rules. The appeal filed by the petitioner against the order of the dismissal has been rejected by the Inspector General of Police, Border Range, Amritsar. The petitioner has challenged the order of dismissal from service on the ground that no material was available before the competent authority on the basis of which it could possibly form an opinion that it was not reasonably practicable to hold inquiry and that there is no basis for the observations made by the Senior Superintendent of Police that no witness is likely to depose against the petitioner due to the fear of injury to his life. The Appellate Order has been challenged on the ground of non-application of mind. The petitioner has stated that in February, 1992, he was married and had remained absent from duty in connection with marriage because he was not granted leave. He has also stated that he fell ill for some time and was compelled to remain away from duty for some more time. His contention is that mere absence from duty cannot be a ground for imposing a penalty of dismissal from service.
3. Respondents have pleaded that the impugned order of dismissal has been passed because of the petitioner’s link with extremists. They have denied the petitioner’s allegation that the leave was refused to him for his marriage or that he was ailing.
4. In response to the direction given by the Court on 18.1.1995, Shri Randhir Singh, Assistant Advocate General produced before us a file relating to the petitioner which has in all 15 pages. This file contains among other things a report dated 16.4.1993 recorded by the Station House Officer, Police Station, Tarn Taran. This report mentions that the petitioner was absent from duty since 16.9.1992 without any leave or permission and that after reporting for duty on 22.3.1993, he again absented from duty for a period of five days without permission. He once against absented for 8 days. He was transferred to Police Lines, Tarn Taran, by the orders of the Deputy Superintendent of Police City, Tarn Taran. The report goes on to record that he is a habitual absentee and is not likely to become an efficient police official. Then there is a mention that the petitioner is mixed up with terrorists and is helping them by providing information. On the basis of this, the Station House Officer recommended dismissal of the petitioner from service. This report was forwarded by the Deputy Superintendent of Police, Tarn Taran on 17.3.1993 without any comments. On 26.4.1993, the Senior Superintendent of Police, Tarn Taran passed the order of dismissal of the petitioner from service.
5. After the arguments were heard, we had reserved the order and at the same time gave an opportunity to the learned Assistant Advocate General to produce additional record showing that the Senior Superintendent of Police had verified the contents of the report of the Station House Officer before passing the final order. No such record has been produced by the respondents for our perusal.
6. Argument of Shri Mann, learned counsel for the petitioner, is that the respondents have acted illegally and without jurisdiction in invoking the provisions of Article 311(2) of the Constitution of India read with Section 7 of the Punjab Police Act and Rule 16.1 of the Punjab Police Rules. Learned counsel argued that the Senior Superintendent of Police dismissed the petitioner on the basis of wholly extraneous report prepared by the Station House Officer and the competent authority did not even verify the contents of the report from any source. He argued that mere absence of the petitioner cannot lead to an inference that he was mixed up with terrorists and had been supplying information to dispense with the regular departmental inquiry envisaged by Article 311 of the Constitution of India and the relevant service rules. Shri Randhir Singh, Assistant Advocate General supported the impugned orders and argued that exercise of power by the competent authority under proviso (b) to Article 311(2) of the Constitution is beyond the plea of challenge and this Court cannot scrutinize the reasons which prevailed with the competent authority for passing the impugned order of dismissal. Shri Singh argued that the report made by the Station House Officer, Tarn Taran, furnished sufficient basis for taking action against the petitioner and it would not have been possible for the department to establish the charge against the petitioner in a regular inquiry under Rule 16.24 of the Punjab Police Rules.
7. Section 7 of the Police Act, 1961 as well as Rule 16.1 of the Punjab Police Rules provides the source of power for passing an order of dismissal of a member of the police force. Rule 16.24 contains the detailed procedure to be followed before a major penalty can be imposed on a member of the Punjab Police Service. Article 311 of the Constitution of India protects a member of civil service against dismissal or removal from service. Article 311(1) lays down that dismissal or removal of a member of civil service cannot be brought about except by an authority by which he was appointed. Article 311(2) embodies the concept of reasonable opportunity of hearing. Three clauses of second proviso to Article 311(2) provide for the situations in which the holding of regular inquiry is not necessary for dismissal, removal or reduction in rank of a civil servant. Clause (b) of second proviso to Article 311(2) lays down that the substantive provisions contained in Article 311(2) shall not apply 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.
8. A conjoint reading of the various provisions of Article 311 of the Constitution of India makes it clear that the three clauses of second proviso to Article 311(2) are in the nature of exceptions to the general rule that no member of a civil service shall be dismissed or removed or reduced in rank except after an inquiry and except after giving him a reasonable opportunity of being heard in respect of the specified charges. Being exceptions to the general rule, these clauses will have to be construed strictly and where an order made under any one of these clauses is challenged in a Court of law, the competent authority will have to show that the conditions for the exercise of power, under a particular clause did exists.
9. In Union of India v. T.R. Chellappan, A.I.R. 1975 S.C. 2216, a Division Bench of the Supreme Court held that even in cases where punishment is imposed with the aid of the provisions contained in proviso to Article 311(2) of the Constitution, the competent authority must give a notice to the concerned employee and consider the representation, if any, made by him before passing the order of punishment. This judgment has been over-ruled by a Constitution Bench of the Supreme Court in Union of India v. Tulsi Ram Patel, A.I.R. 1985 S.C. 1416. In the latter case, the Supreme Court held that where inquiry is dispensed with by virtue of any of the clauses contained in proviso to Article 311(2), it is not necessary for the competent authority to give a notice or an opportunity of hearing to the delinquent before passing the order of punishment. At the same time, the Constitution Bench held that before the competent authority can pass an order under Clauses (a) to (c) of Article 311(2), there must exist the conditions enumerated in those clauses for invoking the exceptions contained in such clauses.
10. In Arjun Chaubey v. Union of India, A.I.R. 1984 S.C. 1356, a Constitution Bench of the Supreme Court quashed the order passed by the Deputy Chief Commercial Superintendent of the Northern Railways who exercised power under proviso (b) to Article 311 of the Constitution of India on the ground that no material was available with the said authority for satisfying itself that it was no reasonably practicable to hold inquiry.
11. In Jaswant Singh v. State of Punjab, A.I.R. 1991 S.C. 385, the Supreme Court dealt with the scope of Article 311(2)(b) and held :-
“The decision to dispense with the departmental inquiry cannot be rested solely on the ipse dixit of the concerned authorities. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim and caprice of the concerned officer. In the instant case it was alleged that the delinquent police officer instead of replying to show cause notice instigated his fellow police officials to disobey the superiors. It is also alleged that he threw threats to beat up the witnesses and the Inquiry Officer, if any departmental inquiry was held against him. No particulars were given. It was not shown on what material the concerned authorities had come to the conclusion that the delinquent had thrown threats. The satisfaction of the concerned authority was found to be based on the ground that the delinquent was instigating his colleagues and was holding meetings “with other police officials with a view to spread hatred and dissatisfaction towards his superiors. It was not shown that the concerned authority had verified the correctness of information leading to the said allegation.”
12. In Chief Security Officer and Ors. v. Singasan Rabi Das, 1991(2) S.L.R. 140, the Supreme Court held that there was no justification to dispense with the inquiry merely because the disciplinary authority thought that it was not feasible or desirable to procure witnesses of the security/other railway employees since that will expose these witnesses and make them ineffective in future and if these witnesses were asked to appear at a confronted inquiry they were likely to suffer personal humiliation and insults and even their family members may also become targets of violence.
13. In Kedarnath Singh v. Union of India and Ors., 1984(2) S.L.R. 347, a Division Bench of the Allahabad High Court interpreted Rule 47 of the Railways Protection Force Rules, 1959 which is pari materia with proviso (b) to Article 311(2) and rejected the contention of the employer that the inquiry was not reasonably practicable because the only eye witness to the alleged incident was not willing to come forward and give testimony against the delinquent. Their Lordships held:-
“In our opinion the term reasonably practicable has nothing whatsoever to do with the prospects of success of the enquiry for the department should an “enquiry be held as contemplated under Rule 44. ‘Practicability’ is not to be confused with the expediency or the chances of success of the enquiry contemplated against the delinquent member of the Force. Rule 44 embodies a sound principle of natural justice providing for a full and fair opportunity to the employee against whom it is proposed to award a major penalty which includes dismissal or removal from service. Rule 47(b) has, therefore, to be construed strictly as it enables the disciplinary authority to give a complete go-bye to the aforesaid principles of natural justice embodied in Rule 44 and straightaway, on the material collected ex-parte and behind the back of the delinquent member, to remove or dismiss him. In view of what has been stated above we are clearly of the view that Rule 47(b) was illegally applied in the case of the petitioner. The grounds disclosed by the Assistant Security Officer were not germane to the considerations on account of which enquiry under Rule 44 could be dispensed with.”
14. In M.K. Kunjappan v. President of India and Ors., 1984(2) S.I.R. 669, a learned Single Judge of the Kerala High Court quashed the dismissal of an employee from service which was brought about by invoking proviso (c) to Article 311(2) of the Constitution of India on the ground that the petitioner believed in the philosophy of violence and was also an accused in a murder case and the commission of murder was a part of his philosophy. The learned Judge held that there was nothing to show that holding of an inquiry into the conduct of the petitioner was reasonably linked with the interest of security of the State. This judgment of the learned Single Judge has been upheld in President of India v. Kunjappan, 1985(1) S.L.R. 494, by a Division Bench which observed :-
“The High Court has the power to ascertain whether the opinion formed by the authority has any factual basis and the conditions precedent to its formation were there. In this case the President of India has no doubt powers under Clause (c) of the 2nd proviso to Article 311(2) of the Constitution to dismiss a member of the Civil Service of the Union without an enquiry if and only if he is satisfied that in the interest of the security of the State it is not expedient to hold an enquiry into the charges against him. So, two conditions must exist, namely: (i) the security of the State is involved and (ii) in view of that it is inexpedient to conduct enquiry. In this case the respondent is only Watcher in a Post and Telegraph Depot. The allegations against him are that he preaches violence, is a member of a political group which was once banned and that he is an accused in a murder case pending trial. In a case where the allegations against civil service personnel in question having nothing to do with the security of the State and he is not one holding a sensitive post there is no justification whatsoever in invoking Clause (c) of the Constitution of India. The conditions precedent for the exercise of the power under Clause (c) of the proviso are absent here and hence there is no justification for invoking the powers under the clause. If for example, the respondent was involved in spying the position would have been different. As long as the activities of the respondent have nothing to do with the security of the State, if action is to be taken against him and if his services are to be dispensed with that can only be after an enquiry as insisted by Article 311(2) and not in exercise of the powers under Article 311(2) Clause (2) of the proviso. The right conferred by Article 311 of the Constitution of the civil service is a valuable right. It cannot be given the go-by like this. The Clauses (b) and (c) of the 2nd proviso to sub-article (2) can be invoked only if the situation really warrants and enquiry cannot be held, because the rule is that a member of the civil services can be dismissed only after a full fledged enquiry.”
15. In Union of India v. Subramanian, 1985(1) S.L.R. 238, the action taken by the employer to dispense with the inquiry by declaring it to be reasonably impracticable to hold, was declared to be invalid. The Court held that the constitutional requirement of Article 311(2) cannot be converted into a dead letter for the simple reason that the employees have developed class or group feelings.
16. In Shri Naresh Kumar and Anr. v. Commissioner of Police and Anr., 1992(7) S.L.R. 177, it has been held that dismissal of Constables without holding a regular enquiry on the ground that the employees were allegedly of desperate character and their continuation in service was hazardous to police was. unsustainable with reference to Article 311(2)(b) of the Constitution of India.
17. In addition to what has been held by the Supreme Court and various High Courts on the interpretation of 311(2), we are of the opinion that an order of dismissal, removal or reduction in rank passed by a competent authority under any of the clauses under Article 311(2) is opened to judicial review and the exercise of power under these clauses can be invalidated if the Court is convinced that the competent authority has exercised the power without application of mind and the relevant considerations and a person aggrieved by an order passed under proviso to Article 311(2) can challenge it on various grounds, a few of which are :-
(1) Where the authority whose satisfaction is in question has totally failed to apply its mind to relevant considerations.
(2) where its satisfaction is based on considerations, which are not relevant.
(3) where the satisfaction is arrived at by the application of a wrong test or where the right questions are not asked.
(4) where the satisfaction is not grounded on materials which are of rationally prohibitive value.
(5) Where the exercise of power is not in good faith.
18. In the light of what we have discussed above, the impugned orders deserve a close scrutiny. A look at the order (Annexure P-1) shows that the Superintendent of Police has passed the order of dismissal on the premise that the petitioner is mixed up with extremists and has been found responsible for supplying information relating to the police department and that his retention in the department is undesirable. This order does not make reference to any reference to any record on the basis of which the Senior Superintendent of Police has recorded his conclusion that the petitioner is mixed up with extremists and is supplying information to them. The order does not make any reference to the source from which the Senior Superintendent of Police has derived knowledge about the petitioner’s link with the extremists. Shri Singh, Assistant Advocate General, wanted us to read the report of the Station House Officer, Police Station Sadar, Tarn Taran, as a part of the order Annexure P-1. A perusal of that report shows that the Station House Officer has made reference to the long absence of the petitioner from service and has also recorded one line that the petitioner is mixed up with the terrorists and is helping them by providing informations. This report is also conspicuously silent about the source of information/knowledge on the basis of which the Station House Officer had recorded the conclusion that the petitioner is mixed up with the extremists or is supplying informations. Moreover the Senior Superintendent of police had not recorded in the impugned order or any other document that he has verified the facts contained in the report of the Station House Officer or has any other information from an independent source about the petitioner’s allegedly links with the extremists. In fact, the record produced before us does not at all show that the Senior Superintendent of Police made any enquiry about the truthfulness of the report of the Station House Officer. Above all there is nothing on the record to show that the Senior Superintendent of Police recorded his satisfaction that it was not reasonably practicable to hold enquiry in the matter. In view of the above, it must be held that the impugned order suffers from total non-application of mind and also that the competent authority has passed the order without recording any reason that it is not reasonably practicable to hold an enquiry.
19. The appellate order is equally laconic. It does not contain any reason in support of the conclusion recorded by the disciplinary authority warranting exercise of powers under proviso to Article 311(2) of the Constitution of India. Moreover, once we hold that the initial order passed by the Senior Superintendent of Police, Tarn Taran, is vitiated on account of violation of the constitutional provisions, the appellate order is also liable to be quashed.
20. For the reasons mentioned above, the writ petition is allowed. Annexures P-1 and P-2 are declared illegal and are hereby quashed. This shall, however, not entitle the petitioner to be reinstated in service. Instead, he should be deemed to be continuing under suspension. It shall be open to the respondents to hold enquiry against the petitioner in accordance with law and pass a fresh order of punishment. Since the petitioner was absent from duty he shall not be entitled to salary or other monetary benefits between the date of his dismissal and the date of this order. As to what treatment should be meted out to the period of his suspension, shall be decided by the competent authority at the time of the passing of the fresh order.
21. Parties are-left to bear their own costs.