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Thursday, March 26, 2015

We have given our thoughtful consideration to the above noted contention advanced at the hands of the learned counsel for the appellant/petitioner. It is not possible for us to place the appellant and the petitioners before this Court, on the same pedestal as the aforesaid D.S. Rana, the then Superintendent, Model Jail, Burail, Chandigarh (referred to by in the submission noticed above). The reason for this is, that Ved Mitter Gill was holding the senior-most, permanent and non- transferable position, at Model Jail, Burail, Chandigarh, whereas D.S. Rana, referred to in the submission advanced, was only a deputationist at the said jail. Accordingly, whilst Ved Mitter Gill would always remain superior to the jail staff who would be summoned as witnesses, in the departmental proceedings, the aforesaid D.S. Rana would not fall within the same parameter. D.S. Rana belonged to a different cadre. After his repatriation to his parent cadre, he could not exercise any supervisory or administrative control over the staff of the Model Jail, Burail, Chandigarh. Accordingly, the parallel sought to be drawn between the controversy in the present case, and the departmental proceedings initiated against the abovementioned D.S. Rana, erstwhile Superintendent, Jail, is fallacious. 27. Insofar as the holding of a trial, and the appearance of witnesses therein is concerned, yet again, the analogy invoked by the learned counsel representing the appellant/petitioners, is wholly misconceived. Whilst in a criminal prosecution proof is strict, and must be based on cogent and acceptable evidence. In a criminal case, there is no alternative but to establish guilt of an accused, based on acceptable evidence. The evidence is to be produced before the Court, trying the criminal case. There is no way the same can be exempted, as in the case of a departmental proceeding. Insofar as the present controversy is concerned, there is a constitutional provision creating an exception. Clause (b) of the second proviso to Article 311(2) of the Constitution of India, is the exception in question, which authorizes the course adopted by the respondents. The reasons for dispensing with the departmental enquiry, cannot be dependent upon the holding or not holding of criminal proceedings, against the appellant/petitioners. Once the parameters stipulated in clause (b) of the second proviso to Article 311(2) of the Constitution of India are satisfied, the submissions advanced at the hands of the learned counsel for the appellant/petitioners, would not arise. 28. No other submission was advanced at the hands of the learned counsel for appellant/petitioners. For the reasons recorded hereinabove, we find no merit in the present appeal, and the connected transferred cases. The same are accordingly dismissed.


                                                                "REPORTABLE"

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.  3194      OF 2015
                  (Arising out of SLP (C) No.20379 of 2006)

Ved Mitter Gill                                          ... Appellant

                                   versus

Union  Territory   Administration,   Chandigarh   and   others           ...
Respondents

                                    WITH

                     TRANSFERRED CASE (C)  NO.41 OF 2010

                    TRANSFERRED CASE (C)  NO.42  OF 2010

                     TRANSFERRED CASE (C)  NO.43 OF 2010

                     TRANSFERRED CASE (C)  NO.44 OF 2010


                               J U D G M E N T

Jagdish Singh Khehar, J.


1.    Through this common order we propose to dispose of the  Special  Leave
Petition (C) No. 20379 of 2006 as well as the Transferred Case (C) Nos.  41-
44 of 2010.  The aforesaid transferred cases were pending  before  the  High
Court of Punjab and Haryana at Chandigarh (hereinafter referred to  as  'the
High Court').  Whilst the Special Leave  Petition  (C)  No.  20379  of  2006
came to be filed before  this  Court  assailing  the  order  dated  1.5.2006
passed by the High Court in Civil Writ  Petition  No.  5682  of  2006.   The
prayer for transfer was premised on the  fact  that  the  transferred  cases
were couched in  the  same  factual  foundation  and  raised  similar  legal
issues, as were being canvassed  through  Special  Leave  Petition  (C)  No.
20379 of 2006.  In the above view of the  matter,  while  disposing  of  the
special leave petition, as well as, the transferred cases,  we  shall  refer
to the facts in Ved Mitter Gill's case, i.e., the  matter  pending  in  this
Court as against the order passed by the High Court on  1.5.2006  dismissing
Civil Writ Petition No.5682 of 2006.

2.    Leave granted.

3.    In January 2004, appellant-Ved Mitter Gill was holding charge  of  the
post of Deputy Superintendent of Police,  Model  Jail,  Burail,  Chandigarh.
At the same juncture, Dalbir Singh Sandhu (petitioner  in  Transferred  Case
(C) No. 42 of 2010) was also holding the post of  Deputy  Superintendent  of
Jail, whilst Paramjit Singh Rana (petitioner in Transferred Case (C) No.  41
of 2010) was posted  as  Assistant  Superintendent  of  Jail,  Nishan  Singh
(petitioner in Transferred  Case  (C)  No.  44  of  2010)  and  Inder  Singh
(petitioner in Transferred Case (C) No. 43 of 2010)  were  working  as  Head
Warder and Warder respectively.

4.    Whilst the appellant/petitioners were discharging their duties in  the
capacity indicated  hereinabove,  four  under  trials  namely  Jagtar  Singh
Hawara, Paramjit Singh and Jagtar Singh Tara (who were facing trial for  the
assassination of a former Chief Minister of Punjab  Shri  Beant  Singh)  and
Jagdev Singh, who was being tried for the charge  of  murder,  escaped  from
the Model Jail, Burail, Chandigarh, by digging an underground  tunnel.   The
approximate length of the tunnel is stated to be 94 feet.   The  description
of the  above  tunnel  has  been  expressed  in  a  report  dated  15.4.2004
submitted by  an  Enquiry  Committee  constituted  to  go  into  the  lapses
committed by the jail authorities in the above episode of  escape,  as  also
to determine, the remedial measures for prevention of such a  jail-break  in
future.  The description of the tunnel in the report, is reproduced below:
"2.4  An  inspection  of  barrack  No.7  of  Burail  Jail  from  where  four
undertrial escaped made a number of  revelations.   The  94  feet  long  and
about 21" x 21" broad tunnel  was  a  very  professionally  done  job.   The
tunnel had three sections, two vertical and one horizontal as under:

|a) |Vertical straight Section below the barrack    |14'   |
|b) |Horizontal portion with almost perfect         |72'   |
|   |precision and direction                        |      |
|c) |Vertical portion outside the main perimeter    |08'   |
|   |wall used for exit.  It was slightly inclined  |      |
|   |for easy footage for escape"                   |      |


The aforesaid under-trials had escaped during the night intervening  January
21-22, 2004.  Resultantly, a first information report  bearing  no.  17  was
registered at Police Station Sector 34, Chandigarh.  The appellant, as  well
as, the petitioners came to be detained after the registration of the  first
information report.

5.    By an order dated 1.3.2004, the Advisor to  the  Administrator,  Union
Territory, Chandigarh having invoked clause (b) to the second proviso  under
Article 311(2) of the Constitution of India, dismissed  the  appellant  from
service with immediate effect.   Similar  orders  were  passed  against  the
petitioners.

6.    Dissatisfied with the order dated 1.3.2004, the appellant as  well  as
the petitioners, assailed the respective  orders  of  their  dismissal  from
service, by  preferring  appeals  to  the  Administrator,  Union  Territory,
Chandigarh.  General (Retd.) S.F. Rodrigues, the then Administrator  of  the
Union Territory, Chandigarh, adjudicated upon their appeals both on  merits,
as well as, on their maintainability.  Insofar as the merits are  concerned,
he arrived at the conclusion,  that  the  competent  authority  had  rightly
invoked clause (b) of  the  second  proviso  under  Article  311(2)  of  the
Constitution  of  India.   Insofar  as  the  issue  of  maintainability   is
concerned, the Administrator of the Union Territory of Chandigarh  recorded,
that the appeals were not maintainable, as the order passed by  the  Advisor
to the Administrator, Union Territory of Chandigarh,  constituted  an  order
passed by the Government, from which there was no remedy of appeal.

7.    The order of dismissal from service  dated  1.3.2004,  passed  by  the
Advisor to the Administrator of the Union Territory of Chandigarh,  as  well
as the order dated 11.2.2005 passed by the Administrator,  Union  Territory,
Chandigarh were assailed by the appellant, as well as  by  the  petitioners,
before the Central Administrative Tribunal,  Chandigarh  Bench  (hereinafter
referred  to  as,  the  Administrative  Tribunal).   Ved  Mitter  Gill,  the
appellant herein, preferred Original Application No. 149/PB of 2005,  Dalbir
Singh Sandhu filed Original Application No. 97/PB of  2005,  Paramjit  Singh
Rana had raised his challenge by filing Original Application No.  188/PB  of
2005, whereas, Nishan Singh and Inder Singh filed Original Application  Nos.
39/PB and 40/ PB of 2005 respectively.

8.   All  the  above  applications  were  dismissed  by  the  Administrative
Tribunal through a common order dated 30.1.2006.  Ved Mitter  Gill  assailed
the order dated 30.1.2006 passed by the Administrative Tribunal  before  the
High Court, by preferring Civil Writ Petition No. 5682 of  2006.   The  same
was dismissed by an order dated 1.5.2006.  The  order  passed  by  the  High
Court on 1.5.2006 came to be challenged before this  Court  through  Special
Leave Petition (C) No. 20379 of 2006.   The  same  has  given  rise  to  the
present appeal.  The writ petitions filed  by  the  others,  namely,  Dalbir
Singh Sandhu, Paramjit  Singh  Rana,  Nishan  Singh  and  Inder  Singh  were
pending before the High Court.  Separate writ petitions  were  preferred  on
their behalf, wherein they had assailed  the  common  order  passed  by  the
Administrative Tribunal dated 30.1.2006.   The  above  writ  petitions  were
transferred to this  Court,  to  be  heard  along  with  the  Special  Leave
Petition (C) No. 20379  of  2006.   This  is  how  the  present  appeal  and
petitions have jointly come up for hearing before us.

9.    It is imperative in the facts  and  circumstances  of  this  case,  to
extract herein, the order dated 1.3.2004,  passed  by  the  Advisor  to  the
Administrator, Union Territory, Chandigarh against  Ved  Mitter  Gill.   The
same is accordingly being reproduced hereunder:
                         "CHANDIGARH ADMINISTRATION
                               HOME DEPARTMENT

                                    ORDER

      Shri V.M. Gill, Deputy Superintendent Model  Jail,  Chandigarh  (under
suspension) was appointed as Clerk on 1.1.1988 and  thereafter  promoted  as
Assistant Superintendent Jail  on  28.3.1990  and  was  promoted  as  Deputy
Superintendent Jail, Model Jail, Chandigarh vide order dated 25.5.2001.   He
was thus required to be fully aware of  his  duties  as  prescribed  in  the
Punjab Jail Manual as adopted for the Union  Territory  Chandigarh  and  the
duty orders passed by  the  Superintendent,  Model  Jail,  Chandigarh  dated
29.5.2001, read along with paras 92 to 132 of the Punjab  Jail  Manual,  for
the  enforcement  of  laws,  rules,  regulations,  directions   and   orders
concerning the management of the jail and the  prisoners  confined  therein.
The said Shri V.M. Gill by virtue of his duties as such was required  to  do
all acts and things necessary or expedient for ensuring the safe custody  of
all the prisoners at any time receive into or confined in the jail  as  well
as  for  enforcing  and  maintaining  discipline  and  order  amongst   such
prisoners and all subordinate officers of the jail.  The said Shri Gill  was
fully aware that he was required to see for himself every prisoner  once  in
every 24 hours and to visit  every  barrack,  ward,  cell,  compartment  and
every other part of the jail and premises thereof every  24 hours.   It  was
thereof his duty to be present every evening when the prisoners were  locked
up for the night and every morning when the prisoners were taken out of  the
sleeping wards, cells or other compartments, satisfy himself both  by  night
and morning that all the prisoners were present and in safe custody  and  to
forthwith report every  unusual  occurrence  of  a  serious  nature  to  the
Superintendent of the Model Jail.  The said Shri Gill  was  fully  aware  of
his duties that he was required at uncertain times, atleast once a  week  to
cause each prisoner and all clothing and bedding and all  wards,  cells  and
other compartments, workshops, latrines and other places frequented  by  the
prisoners, to be thoroughly searched for prohibited  articles;  to  regulate
all interviews and communications between  the  prisoners  and  persons  who
were not prisoners and to prevent all persons who were not  duly  authorized
by the competent authority from entering the jail  premises  or  having  any
access of any kind to, or communication with any prisoner,  and  to  arrange
that the proper officer of the jail was present during  all  the  interviews
held;

And whereas on the night intervening January 21/22, 2004, four  under  trial
prisoners namely Jagtar Singh Hawara, s/o Sher Singh,  Paramjit  Singh,  s/o
Jagjit Singh, Jagtar Singh Tara, s/o Sadhu Singh and Dev  Singh,  s/o  Madan
Singh lodged in the Model Jail, Burail escaped through  a  tunnel  dug  from
their barrack.  The first three under-trials  namely  Jagtar  Singh  Hawara,
s/o Sher Singh, Paramjit Singh, s/o Jagjit Singh and Jagtar Singh Tara,  s/o
Sadhu Singh were being tried to their involvement in  the  assassination  of
S. Beant Singh, then Chief  Minister,  Punjab  and  had  links  with  Babbar
Khalsa International a terrorist organization, while  Dev  Singh  was  being
tried for murder.  The said Shri V.M.  Gill  was  fully  aware  that  Jagtar
Singh Hawara S/o Sher Singh,  Paramjit  Singh,  s/o.  Jagjit  Singh,  Jagtar
Singh Tara, s/o Sadhu  Singh  were  dreaded  terrorists  and  high  security
prisoners;

And whereas a case F.I.R. No.17, dated 22.1.2004 under  Sections  223,  224,
452, 457, 120-B, 121, 121-A, 123, 217, 221  IPC,  P.S.  34,  Chandigarh  was
registered with respect to the escape of the above mentioned  under  trials,
and from the evidence obtained during the course  of  the  investigation  of
the case, it is apparent that the said Shri V.M. Gill, was involved  in  the
conspiracy to facilitate  the  escape  of  the  under  trials  by  willfully
neglecting his duties and by providing  them  support  in  different  forms.
This is evident from some of the following instances:-

(1) Curtains were allowed to be hung on doors and windows  from  inside  the
barrack  occupied  by  the  said  under  trials,  resulting  in  absence  of
visibility from outside and facilitating the prisoners to  carry  out  their
plans unobserved in violation of paras 324, 327 and 328 of the  Punjab  Jail
Manual, 1996 as adopted for the Union Territory, Chandigarh.  The said  Shri
Gill, willfully ignored the suspicious activities of the  under  trials  and
did not conduct special search of their barrack in violation  of  paras  97,
98, 100(a), (b) & (f) of the said Manual.

(2) No action was taken by the  said  Shri  V.M.  Gill  despite  reports  of
lights of the barrack housing the  said  under  trials  being  switched  off
during the night hours, playing of television or radio at  high  volume  and
continuous flowing of water,  facilitating  activities  of  the  said  under
trials in digging of the escape tunnel and disposing the excavated soil,  in
violation of paras 325 and 329 of the said Manual.

(3)  No thorough checking of  the  barrack  housing  the  under  trials  was
carried out by the said Shri Gill in violation of  provisions  of  the  said
Manual, including para 97.

(4)  A tunnel was reportedly discovered in  the  barrack  then  housing  the
three under trials of the Beant Singh case  during  June,  2002.   The  said
Shri V.M. Gill in complicity with the under trials and other jail  officials
suppresses these facts.  In November, 2002  a  large  number  of  prohibited
articles were recovered from the above mentioned  under  trials,  which  had
been earlier allowed to be delivered to them in complicity  with  the  under
trials as well as their co-conspirators.  After recovery of  the  prohibited
articles, strict action as warranted under Punjab Jail Manual was not  taken
against the under  trials  or  any  other  delinquent  jail  official.   The
investigation have revealed that a large number of prohibited articles  have
again been recovered from the cell of  the  escaped  under  trials,  clearly
indicating the  complicity  of  the  said  Shri  V.M.  Gill,  who  willfully
contravened the provisions of the said Manual including paras 105  and  110.
It was also found that  a  number  of  articles  such  as  cell  phone  (not
recovered), weight lifting iron rod, rope, emergency light, radio,  portable
fan, electric wires etc., directly assisted the said under trials to  escape
from the Jail.

(5)  Meeting of the under trials with the other suspected  prisoners  within
the jail as well as conspirators outside the jail  were  neither  supervised
nor checked in violation of para 106 of the said Manual.

(6)  The said Sh. Gill, was arrested on Jan. 27, 2004 and on his  disclosure
statement a book titled 'True Stories of great escapes' was  recovered  from
his official residence in the jail.  A  rough  site  plan  prepared  by  the
police revealed that the tunnel through which the under trials  escaped  had
similarities with the tunnel mentioned in the said book.

And whereas the above conduct of the said Shri Gill establishes that he  was
directly involved in  the  conspiracy  to  help  the  above-mentioned  under
trials to escape from the Model Jail,  Chandigarh.   It  has  also  come  to
light during investigation that  three  of  the  escaped  under  trials  had
linkage with  the  Babbar  Khalsa  International,  a  known  and  a  dreaded
terrorist organization, which is involve  in  anti-national  and  anti-State
activities.  The said Shri  V.M.  Gill  is  a  senior,  permanent  and  non-
transferable  official  of  the  Model  Jail,  Chandigarh  and  junior  jail
officials, who are witnesses in the  above  case  are  not  likely  to  come
forward to depose against him if disciplinary proceedings are  initiated  so
long as he remains in service, for fear of  earning  his  wrath  in  future.
Further, due to the involvement  of  the  escaped  under  trials,  with  the
Babbar Khalsa International, a known and dreaded terrorist organization,  no
witness is likely to come forward to depose against him in the  disciplinary
proceedings, if initiated, due to fear  of  life.   Independence  assessment
also is that three of the escaped under trials are likely,  inter  alia,  to
pose a danger to the lives of the  people.   In  these  circumstances  I  am
satisfied that the holding of an inquiry as contemplated by Article 311  (2)
(b) of the Constitution of India and the Punjab Civil  Services  (Punishment
and Appeal) Rules, 1970  as  made  applicable  to  the  employees  of  Union
Territory, Chandigarh, is not reasonably practicable;

And whereas I am of the view that in the face of such  grave  culpable  acts
of omission and commission there is no justification  for  the  continuation
in service of Shri Gill as he has betrayed all  responsibility  placed  upon
him by law and rules.  From the facts that have transpired, I conclude  that
there has been misconduct of such magnitude  by  Shri  V.M.  Gill  that  the
severest penalty permissible by law is called for.

Now, therefore, I  being  the  competent  authority  exercising  the  powers
conferred by Article 311 (2) of the Constitution of India,  having  come  to
the conclusion that it is not reasonably practicable  to  hold  an  inquiry,
hereby dismiss the said Shri V.M. Gill, from service with immediate effect.

                                                                        Sd/-
                                               Advisor to the Administrator,
                                                            U.T., Chandigarh

                                                             Dated 1.3.2004"

Orders passed against the  other  petitioners  were  premised  on  the  same
foundation, and were to the same effect.

10.     During   the   course   of   hearing   learned   counsel   for   the
appellant/petitioners  pleaded,  non-application  of  mind,   arbitrariness,
discrimination, and malice in fact as well as in law.  Insofar as the  issue
of non- application of mind is concerned, it was the vehement contention  of
the learned counsel, that they were not  assigned  duties  as  would  render
them  blameworthy  for  the  abovementioned  jail-break.   Besides   various
contentions advanced on the  instant  aspect  of  the  matter,  the  primary
submission of the learned  counsel  was,  that  personnel  from  the  police
department were in overall supervisory control,  and  that,  they  regulated
not only the ingress and egress of jail mates and other visitors,  but  also
materials and articles which were permitted to enter the jail premises.   In
the above background, it was the vehement contention of the learned  counsel
for the appellant/petitioners, that  they  have  been  made  scapegoats  for
something that others were truly responsible for.

11.   To adjudicate upon the above contention advanced at the hands  of  the
learned  counsel  for  the  appellant/petitioners,  it   is   necessary   to
understand the duties and responsibilities assigned to appellant-Ved  Mitter
Gill, whose case has been taken as the lead case.  The duty chart  depicting
the responsibilities  assigned  to  the  officers  of  Model  Jail,  Burail,
Chandigarh, is available on the record of  the  case.   A  relevant  extract
thereof is being reproduced hereunder:
"1.  Sh. V.M. Gill, Dy. Supdt. Jail
He shall perform his duties under the immediate  directions  and  orders  of
the Supdt. Jail.  The duties of the Dy. Supdt. Jail are  contained  in  para
91 to 132 of the Punjab Jail Manual.  In addition  to  his  normal  duty  he
will hold the charge of matters relating to:-
      i)    Establishment
      ii)   Accounts
      iii)  Court cases (pending in various courts)
      iv)   Diet purchase and all miscellaneous matters."

              xxx                    xxx                   xxx

                               IMPORTANT NOTE

1.    Besides above duties Executive Officers will perform all other  duties
assigned to them from time to time  in  accordance  with  the  provision  of
Punjab Jail Manual.
2.    All Executive Officer will be present inside Jail in their  respective
executive charge daily at the time of lock-up and lock-outs.
3.    All will make night  rounds  to  see  the  security  arrangements  and
satisfy themselves that inmates are in safe custody.
4.    All will accompany the Superintendent, Jail on his weekly  parade  (on
every Monday) inspection of prisoners as per provision of  para  75  of  the
Punjab Jail Manual.
                                                                        Sd/-
                                                             Superintendent,
                                                     Model Jail, Chandigarh"

                                                          (emphasis is ours)

A perusal of the duty chart relating to Ved Mitter  Gill  reveals,  that  he
was responsible for duties expressed in paragraphs 92 to 132 of  the  Punjab
Jail Manual.  Extracts of the Punjab  Jail  Manual  are  also  available  on
record of the case, only a few  relevant  paragraphs,  which  highlight  the
duties and responsibilities vested on the shoulders of Ved  Mitter  Gill  as
Deputy Superintendent of Police, Jail, are being extracted hereunder:
"97.   Duties  of  Deputy  Superintendent  as  to   safety   of   prisoners,
discipline, visits and attendance. - (1) The Deputy Superintendent shall  do
all acts and things which may be necessary or  expedient  for  ensuring  the
safe custody of all prisoners at any time received into or confined  in  the
jail, as well as for enforcing and maintaining discipline and order  amongst
such prisoners and all subordinate officers of the jail at any time  serving
under his orders or control.
(2)  The Deputy Superintendent shall,  atleast  once  in  every  twenty-four
hours,-
(a) himself see every prisoner for the time being confined in the jail;
(b) visit every barrack, ward, cell, compartment, and every  other  part  of
the jail and the premises thereof, including the hospital; and  shall,  save
as provided in the rules, regulations, directions and orders  for  the  time
being in force in that behalf, always remain present within the jail or  the
premises thereof.
Note- The Deputy Superintendent is permitted to be absent for meals at  such
times and for such periods  as  the  Superintendent  may  specify,  or  when
required to appear in a Court of  Justice,  or  when  leave  of  absence  is
granted by the Superintendent.

        xxx                          xxx                         xxx

100. Duties as to lock-up, counting,  labour,  food  and  reporting  unusual
occurrences.-  (1)  It shall be the duty of the Deputy Superintendent to-
(a)  be present every evening when the  prisoners  are  locked  up  for  the
night and every morning when the prisoners are taken  out  of  the  sleeping
wards, cells or other compartments;
(b) satisfy himself, both night and morning,  that  all  the  prisoners  are
present and in safe custody;
(c) allot to each prisoner sentenced  to  undergo  rigorous  imprisonment  a
proper task and satisfy himself that every such prisoner,  who  is  fit  for
labour, is daily put to proper labour and performs his  allotted  task  and,
for this purpose, to check  the  tasks  allotted  and  visit  the  workshops
frequently while the prisoners are engaged at work;
(d) be present at and superintend the daily  weighing  and  serving  out  of
rations and satisfy himself that the food-stuffs are  properly  cleaned  and
cooked;
(e) supervise the  distribution  of  food  and  satisfy  himself  that  each
prisoner receives his proper quantities at the prescribed times, and to
(f) forthwith report every unusual occurrence of a serious  nature,  to  the
Superintendent.

(2)  The Superintendent may by a written order take over such of the  duties
of the Deputy Superintendent as he may  deem  necessary  for  the  efficient
running of the jail.

(3)  Every action taken under sub-rule (2) shall forthwith  be  reported  by
the  Superintendent  to  the  Inspector-General  giving  full  justification
therefor and the  Inspector-General  may  confirm,  modify  or  cancel  such
order.

101.  Duty of Deputy Superintendent on admission of  prisoner.  -  Upon  the
admission of every prisoner the Deputy Superintendent shall-
(a) examine or cause to the examined the warrant or order under  which  such
prisoner is committed to the Jail and satisfy himself  that  it  is  in  all
respects complete, in order and valid;
(b) remove, or cause to be removed, from such prisoner all  money  or  other
articles found on him, including (if such prisoner is not, by law,  entitled
to retain it) his wearing apparel and (in such case) shall provide him  with
a complete Jail out-fit;
(c) take measures to preserve  and  protect  all  property  taken  from,  or
belonging to, the prisoner which may come into his hands; and
(d) shall satisfy himself that the provisions of Chapter IV of the Act,  and
these rules, as to the admission of prisoners, are duly complied with.

xxx                          xxx                         xxx

105.  Deputy Superintendent to search weekly for prohibited articles.-
The Deputy Superintendent shall, at uncertain times, at least once  a  week,
cause each prisoner, and all clothing and bedding, and all wards, cells  and
other compartments, workshops,  latrines  and  other  places  frequented  by
prisoners, to be thoroughly searched for prohibited articles.

106. Deputy Superintendent to regulate interviews and communications.-
It  shall  be  the  duty  of  the  Deputy  Superintendent  to  regulate  all
interviews and communications between prisoners  and  persons  who  are  not
prisoners and to prevent all persons who are not  duly  authorised  in  that
behalf by competent authority from entering the jail premises or having  any
access of any kind to, or communication with, any prisoner, and  to  arrange
that the proper officer of the Jail is present during all interviews held.

xxx                          xxx                         xxx

110. Deputy Superintendent to hold parade every Sunday.-
The Deputy Superintendent shall hold a parade of all the prisoners  for  the
time being confined in the jail on every Sunday Evening and shall,
(a) carefully inspect every prisoner;
(b) examine the clothing, bedding and utensils etc., of every prisoner;
(c) check the muster  roll  and  satisfy  himself  that  every  prisoner  is
present or accounted for;
and satisfy himself generally that everything is in proper order.  He  shall
enter a report of his inspection in his journal, noting  therein  the  state
of the clothing,  cleanliness,  numerical  strength  and  other  matters  of
importance relating to the prisoners.

xxx                          xxx                         xxx

117.  The Deputy Superintendent shall enter daily in his journal:-
(a) the time the wards were opened;
(b) the members of the staff (if any) who were absent;
(c) the time prisoners began work;
(d) the time work was stopped in the forenoon and when it was recommenced;
(e) the time work was stopped for the day; and
(f) the time the lock-up was completed;
(g) that the gratings and locks of  the  jail  were  got  tested  and  found
intact.

xxx                          xxx                         xxx

120. Deputy Superintendent responsible for the efficiency of the guard.-
(1) The Deputy  Superintendent  shall  satisfy  himself  that  a  sufficient
strength of the guard to meet all emergencies is at  all  times  present  at
the jail and ready to be armed, and that the warders sleep in  the  quarters
allotted to them and do not leave the jail premises without permission.
(2) The Deputy and the Assistant Superintendent shall at least once  a  week
in addition to their routine night round search the relieved  and  relieving
night guards between the gates (after 10 P.M. and before 4.00 A.M.)."
                                                          (emphasis is ours)

It is not necessary for us to  further  delve  into  the  nature  of  duties
assigned  to  appellant-Ved  Mitter  Gill  in   his   capacity   as   Deputy
Superintendent Jail, because we have highlighted the relevant paragraphs  of
Punjab Jail Manual, which meticulously highlight the nature  of  his  duties
and responsibilities.  Having examined the same, we are satisfied, that  the
responsibility of jail inmates exclusively rests on  the  shoulders  of  the
jail staff.  On the evaluation of the duties and responsibilities  of  posts
of Assistant Superintendent Jail, Head Warder and Warder, there  remains  no
room for any doubt, about the other petitioners also,  that  they  too  were
similarly responsible for securing the detention of all jail  inmates.   We,
therefore find no  merit  in  the  contention  advanced  on  behalf  of  the
appellant/petitioners, that it was not them, but police personnel  from  the
Chandigarh Police Department,  who  were  responsible  for  the  supervisory
control over jail inmates, at the Model Jail, Burail, Chandigarh.

12.   Another contention advanced at the hands of the  learned  counsel  for
the appellant/petitioners was, that  the  entire  action  initiated  at  the
hands of the respondents was vitiated, on account of malice in fact as  also
malice in law.  Insofar as the instant aspect of matter  is  concerned,  our
attention has  been  invited  to  the  factual  position  pleaded  in  Civil
Miscellaneous Nos. 8930-31 of 2010 in Civil  Writ  Petition  No.5147-CAT  of
2007.   It  would  be  pertinent  to  mention,  that  the  aforesaid   civil
miscellaneous  application  was  filed  by  Dalbir  Singh   Sandhu,   Deputy
Superintendent  of  Police.   Our  pointed  attention  was  invited  to  the
following factual position expressed in the  aforesaid  civil  miscellaneous
application:
"....Interestingly a perusal of the record filed before the  Criminal  Court
by the Chandigarh Police of the  Special  Mulakat  Register  shows  that  in
those copies the signatures of the supervisory  staff  i.e.  the  Chandigarh
Police is missing.  Apparently these documents have been also considered  by
the competent authority to pass the impugned order against  the  petitioner.
Photocopies of some of the pages of the Special Mulakat Register  have  been
annexed earlier. The typed copies of the same for the corresponding days  as
submitted by the prosecution before the Criminal Court and apparently  which
were considered by the competent authority to terminate the services of  the
petitioner are annexed herewith as Annexures A/1 and A/2 respectively."

Having  given  our  thoughtful  consideration  to  the  pleadings  extracted
hereinabove, and having perused the annexures A/1 and  A/2  referred  to  in
the above pleadings, we are satisfied that the contention  advanced  at  the
hands of  the  learned  counsel  for  the  appellant/petitioners  is  wholly
misconceived.  The presence of police personnel to extend  external  support
to a jail facility is understandable.  There  is  nothing  wrong  about  the
same.  Police personnel  may  be  posted  outside  the  jail  premises,  for
obvious  reasons.   Such  police  personnel  would  be  oblivious   of   the
activities within the four walls  of  the  jail  itself.   The  presence  of
police personnel within the administrative framework of a jail,  is  out  of
the question.  The appellant/petitioners have not  placed  any  material  on
the record of the case  to  demonstrate,  that  police  personnel  from  the
police department were assigned duties within the barracks  of  Model  Jail,
Burail, Chandigarh.  In our considered view, within the jail premises,  only
the jail staff can be permitted to function.  And in case of  lapses  within
the jail premises, it is the jail staff alone which is  responsible.   Based
on the factual position  brought  to  our  notice  from  the  pleadings  and
annexures referred to above, it  is  not  possible  for  us  to  accept  the
submission  advanced  at  the  hands  of  the  learned   counsel   for   the
appellant/petitioners,   that   the    action    initiated    against    the
appellant/petitioners can be vitiated for the reasons of malice in  fact  or
malice in law.

13.   Out of  the  submission  advanced  by  the  learned  counsel  for  the
appellant/petitioners,  the  contention  which  could  have  been  of   some
significance was, that the  reasons  mentioned  in  the  impugned  order  of
dismissal from service, were a mechanical repetition  of  grounds  routinely
and casually expressed without application of mind,  in  such  like  orders.
And in that view of  the  matter,  the  contention,  that  the  satisfaction
recorded  by  the  disciplinary  authority  does  not  constitute  a   valid
satisfaction in the eyes of law.  It was in the instant  context,  that  the
learned counsel invited our attention to some  judgments  rendered  by  this
Court.  First of all, reliance was  placed  on  Tarsem  Singh  v.  State  of
Punjab, (2006) 13 SCC  581.   Our  pointed  attention  was  invited  to  the
following observations recorded therein:
"10.  It is now a well-settled principle of law that a constitutional  right
conferred upon a delinquent cannot be dispensed with lightly or  arbitrarily
or out of ulterior motive or merely in order to  avoid  the  holding  of  an
enquiry.  The learned counsel appearing  on  behalf  of  the  appellant  has
taken  us  through  certain  documents  for  the  purpose  of  showing  that
ultimately the police on investigation did not find  any  case  against  the
appellant in respect of the purported FIR lodged against him  under  Section
377 IPC.  However, it may not be necessary  for  us  to  go  into  the  said
question.

11.  We have noticed hereinbefore that  the  formal  enquiry  was  dispensed
with only on the ground that the appellant could win over  aggrieved  people
as well as witnesses from giving evidence by threatening  and  other  means.
No material has been placed or disclosed either in the said order or  before
us to  show  that  subjective  satisfaction  arrived  at  by  the  statutory
authority was based upon  objective  criteria.   The  purported  reason  for
dispensing with  the  departmental  proceedings  is  not  supported  by  any
document.  It is further evident  that  the  said  order  of  dismissal  was
passed, inter alia, on the ground that there  was  no  need  for  a  regular
departmental enquiry relying on or on the basis of  a  preliminary  enquiry.
However, if a preliminary enquiry could be conducted, we  fail  to  see  any
reason as  to  why  a  formal  departmental  enquiry  could  not  have  been
initiated against the appellant.  Reliance placed upon  such  a  preliminary
enquiry without complying with the minimal requirements of the principle  of
natural justice is against  all  canons  of  fair  play  and  justice.   The
appellate authority, as notice hereinbefore, in its  order  dated  24-6-1998
jumped to the conclusion that he was guilty  of  grave  acts  of  misconduct
proving complete unfitness for police service and the punishment awarded  to
him is commensurate with the misconduct although no  material  therefor  was
available on record.  It is further evident  that  the  appellate  authority
also misdirected himself in passing the said order insofar as he  failed  to
take into consideration  the  relevant  facts  and  based  his  decision  on
irrelevant factors.

12.   Even the Inspector General  of  Police  in  passing  his  order  dated
        26-11-1999, despite having been asked by the High Court  to  pass  a
speaking order, did not assign sufficient or cogent reason.   He,  like  the
appellate authority, also proceeded on the  basis  that  the  appellant  was
guilty of commission of offences which are grave and heinous in  nature  and
bring a bad name to the police force of the State on  the  whole.   None  of
the authorities mentioned hereinbefore proceeded on  the  relevant  material
for the purpose of  arriving  at  the  conclusion  that  in  the  facts  and
circumstances of the case sufficient cause existed for dispensing  with  the
formal enquiry.  This aspect of the  matter  has  been  considered  by  this
Court in Jaswant Singh v.  State  of  Punjab,  (1991)  1  SCC  362,  wherein
relying upon the judgment of the Constitution Bench  of  this  Court,  inter
alia, in Union of India v. Tulsiram Patel, (1985) 3 SCC 398,  it  was  held:
(Jaswant Singh case (supra), SCC p. 368, para 4)

"Although Clause (3) of that article makes the decision of the  disciplinary
authority in this behalf final such finality can certainly be  tested  in  a
court of law and interfered with if the action is found to be  arbitrary  or
mala fide or motivated by extraneous considerations  or  merely  a  ruse  to
dispense with the inquiry."

13.  In that case also like the present one, the attention of the Court  was
not drawn to any material existing on the date of passing  of  the  impugned
order in support of the allegations contained in the order  dispensing  with
the departmental enquiry."
                                                          (emphasis is ours)

Learned counsel thereupon placed reliance on State of  Punjab  v.  Harbhajan
Singh, (2007) 15 SCC 217.  They  invited  our  attention  to  the  following
observation recorded therein:
"3. Learned counsel then contended that no  departmental  enquiry  could  be
held against the respondent in view of his involvement with terrorists.   In
the suit, the State did not place any material to establish  that  any  case
was made out for dispensation of a regular departmental enquiry as  required
under clause (2) to Article 311 of the Constitution of India.  The  question
is now covered by a recent decision of this Court in Tarsem Singh  v.  State
of Punjab, (2006) 13 SCC 581, wherein this  Court  has  opined  that  if  no
material is brought to the notice of the Court on the  date  of  passing  of
the impugned order in support of the allegations  contained  therein  as  to
why it was impractical to hold a regular disciplinary proceeding, the  order
of termination would not be sustainable."
                                                          (emphasis is ours)

14.   In order to fully clarify the legal position on  the  issue  in  hand,
learned counsel for the Chandigarh Administration, invited our attention  to
the decision rendered in Southern Railway Officers Association v.  Union  of
India, (2009) 9 SCC 24.  In the above  cited  judgment,  this  Court  having
placed reliance on Union of India v.  Tulsiram  Patel,  (1985)  3  SCC  398,
Satyavir Singh v. Union of India, (1985) 4 SCC 252, Kuldip  Singh  v.  State
of Punjab, (1996) 10 SCC 659, Union of India v. R. Reddappa,  (1993)  4  SCC
269 and Indian Railway Construction Co. Ltd. v. Ajay  Kumar,  (2003)  4  SCC
579, recorded its conclusions as under:
"26.  The law laid  down  by  this  Court  being  clear  and  explicit,  the
question which  would  arise  for  our  consideration  is  whether  in  then
prevailing situation, what a reasonable man taking a reasonable  view  would
have done.

27. The High Court in its judgment opined:
(i) That the statement of the disciplinary authority that  "I  am  convinced
that it is not reasonably practicable to hold an  inquiry"  is  against  the
dicta laid down by this Court in Union of India vs. Tulsiram  Patel,  (1985)
3 SCC 398.
(ii) In the absence of any reason, much less recorded, as has been  mandated
under the Rule, to show that it was not reasonably  practicable  to  hold  a
disciplinary inquiry, we are of the opinion  that  the  discretionary  power
was exercised for extraneous purpose to dismiss  the  delinquents  and  that
the same is arbitrary and perverse since no  reasonable  person  could  form
such an opinion on the given  material  and  thus  the  impugned  orders  of
dismissal are hit by malice also. The  alleged  incident  and  the  impugned
orders of dismissal were all dated 31-1-2004 which shows the haste in  which
the disciplinary authority has acted.
(iii) While  invoking  the  stringent  extraordinary  provisions  like  Rule
14(ii), principles of natural justice require every care to be taken by  the
authorities concerned. Any haste  in  invoking  such  stringent  provisions,
without even complying with the mandatory  requirements  of  the  provision,
would make such decision of the disciplinary  authority  illegal,  being  an
abuse of power conferred upon it.
(iv) It can very well be held that the impugned orders of  dismissal  suffer
from want of materials and in the absence of any  material  to  substantiate
the mere oral stand of the  Department  that  holding  an  inquiry  was  not
reasonably practicable, without offering any reasons, much less in  writing,
as mandated by law, the impugned  orders  of  dismissal  are  liable  to  be
quashed.
(v)  In  the  case  in  hand,  since  the  authorities  have   invoked   the
extraordinary power under Rule  14(ii)  dispensing  with  the  inquiry,  and
further since the alleged  incident  was  held  to  be  not  proved  by  the
criminal  court,  after  thorough  trial,  the  appellate   and   revisional
authorities ought to have considered the  said  aspect  of  acquittal  while
imposing the punishment. Therefore, we are of the  view  that  the  fact  of
acquittal is a circumstance to be considered while  awarding  punishment  in
this case.

We with respect are unable to agree therewith.
28.  The disciplinary authority in its order dated  31-1-2004  categorically
stated:
(i) That the delinquent employees attempted to cause  bodily  harm  to  Shri
S.M. Krishnan; created an ugly  scene  which  brought  a  bad  name  to  the
Railways; officers who tried  to  protect  Shri  S.M.  Krishnan  were  badly
abused; Shri S.M. Krishnan and his family were threatened to  be  killed  if
he goes to Chennai; it was a pre-planned attempt  as  a  handwritten  poster
was displayed in the workshop as well as at the railway station  wherein  it
was stated that Shri S.M. Krishnan will die on 31-1-2004 and  his  cremation
will be done at 1430 hours when Train No. 6128 leaves the railway station.
(ii) That all of them have conspired and assaulted Shri S.M. Krishnan  as  a
result whereof he could not undertake the journey and  had  to  go  by  road
with escort.
(iii) The formality of holding a disciplinary proceeding was dispensed  with
stating:
"You along with other associates threatened, intimidated and terrorized  all
the  officers.  The  atmosphere  of  violence,  general   indiscipline   and
insubordination is prevailing. In view of  this  situation  I  am  convinced
that it is not reasonably practicable to hold an enquiry."

29.  It was concluded:
"I, therefore, in exercise of  the  powers  conferred  upon  me  under  Rule
14(ii) of the Railway Servants (Discipline &  Appeal)  Rules,  1968,  hereby
dismiss you from railway service with effect  from                 31-1-2004
(A/N). You are required to hand over the railway property in  your  custody.
You are also required to vacate the  railway  quarters,  if  in  occupation,
within one month from the date on which a copy of this notice is  delivered.
You are hereby advised that under Rules 18 and 19 of  the  Railway  Servants
(Discipline & Appeal) Rules, 1968, you may prefer an  appeal  against  these
orders to CWM/GOC provided that:
(i) The appeal is preferred within a period of 45  days  from  the  date  on
which a copy of this notice is delivered.
(ii) The appeal is to be preferred in your own name  and  presented  to  the
authority to whom the appeal lies and does  not  contain  any  disrespectful
and improper language."

30. An order of a disciplinary authority in a case of this nature,  as  laid
down by this Court in Tulsiram's case (supra), must be  judged  by  a  court
exercising power of judicial review by placing himself in his armchair.  The
disciplinary authority was a man at the spot. He acted on  the  basis  of  a
report made to him. He also  knew  about  the  written  poster  having  been
displayed. The atmosphere which was  prevailing  in  the  workshop  must  be
known to him. Not only the disciplinary authority  but  also  the  appellate
authority, having regard to the materials brought on record, arrived at  the
said finding.

        xxx                          xxx                         xxx

33.  While thus considering as to whether there  had  been  enough  material
before the disciplinary  authority  for  the  purpose  of  arriving  at  its
satisfaction that it was not reasonably  practicable  to  hold  departmental
proceedings, the appellate  authority,  in  our  opinion,  was  entitled  to
consider the situation prevailing from the  confidential  reports  submitted
by other employees. They were not relied upon for  the  purpose  of  proving
misconduct but for the purpose that in the situation which  was  prevailing,
whether it was reasonably practicable  to  hold  an  enquiry.  There  is  no
dispute that the protection  accorded  to  an  employee  by  reason  of  the
constitutional provision of mandate of recording  of  reasons  is  of  great
significance. Such reasons, in our opinion, in the instant case,  have  been
recorded.

        xxx                          xxx                         xxx

35.  So far as the finding of the High Court that the  orders  of  dismissal
suffer from want of material is concerned, the orders  of  the  disciplinary
authority themselves disclose existence of sufficient materials. Before  the
statutory authorities, the incident was not denied.  Lodging  of  the  first
report was also not denied. The fact that one of  the  delinquent  officials
was arrested on the same day was  not  denied.  Arrest  of  others  after  a
period of two weeks also stood admitted. Display of handwritten poster  both
at the workshop and at the railway station had also not been denied.

36.  We do not find that before the  High  Court  the  delinquent  employees
brought on record any material that the grounds  stated  in  the  orders  of
dismissal were wholly non-existent.  No  mala  fides  on  the  part  of  the
disciplinary  authority  was  attributed.   It  is  not  the  case  of   the
delinquent employees that the disciplinary authority  in  passing  the  said
order took into consideration any irrelevant fact not  germane  therefor  or
failed to take into consideration any relevant fact."
                                                          (emphasis is ours)

15.   Before delving into the pointed issues canvassed at the hands  of  the
learned counsel representing appellant/petitioners, it is necessary  for  us
to notice the parameters laid down by this Court for invoking clause (b)  of
the second proviso to Article 311(2) of the Constitution of India.   Insofar
as the instant aspect of the matter is concerned, the  norms  stipulated  by
this Court  for  the  above  purpose,  require  the  satisfaction  of  three
ingredients.  Firstly, that the conduct of the  delinquent  employee  should
be such as would justify one of the three  punishments,  namely,  dismissal,
removal or reduction in rank.  Secondly, the satisfaction of  the  competent
authority, that it is not reasonably practicable  to  hold  an  inquiry,  as
contemplated under  Article  311(2)  of  the  Constitution  of  India.   And
thirdly, the competent authority  must  record  the  reasons  of  the  above
satisfaction in writing.

16.   On the issue whether it is reasonably practicable to hold  an  inquiry
as contemplated under  Article  311(2)  of  the  Constitution  of  India  is
concerned, this Court elaborately expressed the required norms, in Union  of
India v. Tulsiram Patel (supra), as under:
"130.  The condition precedent for the application  of  clause  (b)  is  the
satisfaction of the  disciplinary  authority  that  "it  is  not  reasonably
practicable to hold" the inquiry contemplated by clause (2) of  Article 311.
What is pertinent to note  is  that  the  words  used  are  "not  reasonably
practicable" and  not  'impracticable'.  According  to  the  Oxford  English
Dictionary 'practicable' means "Capable of being put into practice,  carried
out in action, effected, accomplished, or done; feasible".  Webster's  Third
New International Dictionary defines the word 'practicable'  inter  alia  as
meaning "possible  to  practice  or  perform:  capable  of  being  put  into
practice, done or accomplished: feasible". Further, the words used  are  not
"not practicable" but "not  reasonably  practicable".  Webster's  Third  New
International Dictionary defines the word 'reasonably' as "in  a  reasonable
manner: to a fairly sufficient extent". Thus, whether it was practicable  to
hold the inquiry or not must be judged in the  context  of  whether  it  was
reasonably  practicable  to  do  so.  It  is  not  a   total   or   absolute
impracticability which is required by clause (b). What is requisite is  that
the holding  of  the  inquiry  is  not  practicable  in  the  opinion  of  a
reasonable man taking a reasonable view of the prevailing situation.  It  is
not possible to enumerate the cases in which  it  would  not  be  reasonably
practicable to hold the inquiry, but some instances by way  of  illustration
may, however, be given. It would not be reasonably practicable  to  hold  an
inquiry where the government servant, particularly through or together  with
his associates, so terrorizes, threatens or  intimidate  witnesses  who  are
going to give evidence against him with fear of reprisal as to prevent  them
from doing so or where the government servant by himself  or  together  with
or through other threatens, intimidates and terrorizes the  officer  who  is
the disciplinary authority or members of his family so that he is afraid  to
hold the inquiry or direct it to be held. It would also  not  be  reasonably
practicable to hold the inquiry  where  an  atmosphere  of  violence  or  of
general indiscipline and insubordination  prevails,  and  it  is  immaterial
whether the concerned government servant is or is not a  party  to  bringing
about such an atmosphere. In this connection, we  must  bear  in  mind  that
numbers coerce and terrify while  an  individual  may  not.  The  reasonable
practicability of holding an inquiry is a matter of assessment  to  be  made
by the disciplinary authority. Such authority is generally on the  spot  and
knows what is happening. It is because the  disciplinary  authority  is  the
best judge of this that clause (3) of Article 311 makes the decision of  the
disciplinary authority on this question final. A disciplinary  authority  is
not expected to dispense with a disciplinary inquiry lightly or  arbitrarily
or out of ulterior motives or merely in order to avoid  the  holding  of  an
inquiry or because the Department's case against the government  servant  is
weak and must fail. The finality given to the decision of  the  disciplinary
authority by Article 311(3) is not binding upon the  court  so  far  as  its
power of judicial review is concerned and in such  a  case  the  court  will
strike down the  order  dispensing  with  the  inquiry  as  also  the  order
imposing penalty. The case of Arjun Chaubey v. Union of India, (1984) 2  SCC
578, is an instance in point. In that case, the appellant was working  as  a
senior clerk in the office of the Chief Commercial Superintendent,  Northern
Railway, Varanasi. The Senior Commercial  Officer  wrote  a  letter  to  the
appellant calling upon him to submit his explanation with regard  to  twelve
charges  of  gross  indiscipline  mostly  relating  to  the   Deputy   Chief
Commercial Superintendent. The appellant submitted his  explanation  and  on
the very next day  the  Deputy  Chief  Commercial  Superintendent  served  a
second  notice  on  the  appellant  saying  that  his  explanation  was  not
convincing and that another chance was being  given  to  him  to  offer  his
explanation with respect to  those  charges.  The  appellant  submitted  his
further explanation but on the very next day  the  Deputy  Chief  Commercial
Superintendent passed an order dismissing him on the ground that he was  not
fit to be retained in service. This Court  struck  down  the  order  holding
that seven out of twelve charges related to the  conduct  of  the  appellant
with the Deputy Chief Commercial Superintendent  who  was  the  disciplinary
authority and that if an inquiry were to be held, the principal witness  for
the Department would have been the Deputy  Chief  Commercial  Superintendent
himself, resulting in the same person being  the  main  accusor,  the  chief
witness and also the judge of the matter.

131. It  was  submitted  that  where  a  delinquent  government  servant  so
terrorizes the disciplinary authority that  neither  that  officer  nor  any
other officer stationed at that place is willing to hold the  inquiry,  some
senior  officer  can  be  sent  from  outside  to  hold  the  inquiry.  This
submission itself shows that in such a case the holding  of  an  inquiry  is
not  reasonably  practicable.  It  would  be  illogical  to  hold  that  the
administrative work carried out  by  senior  officers  should  be  paralysed
because a delinquent government servant either by himself or along  with  or
through others makes the holding of an inquiry not reasonably practicable.

132. It is not necessary that a situation which  makes  the  holding  of  an
inquiry not reasonably practicable  should  exist  before  the  disciplinary
inquiry is initiated against a government  servant.  Such  a  situation  can
also come into existence subsequently during the course of an  inquiry,  for
instance, after the service of a charge-sheet upon  the  government  servant
or after he has filed his written statement thereto or even  after  evidence
has been led in part. In such a case also the disciplinary  authority  would
be entitled to apply clause (b) of  the  second  proviso  because  the  word
'inquiry' in that clause includes part of an inquiry. It would also  not  be
reasonably practicable to afford to the government  servant  an  opportunity
of hearing or further hearing, as the case may be, when at the  commencement
of the inquiry or pending it the government servant absconds and  cannot  be
served or will not participate in the inquiry. In  such  cases,  the  matter
must  proceed  ex  parte  and  on  the  materials  before  the  disciplinary
authority. Therefore, even where a part of an inquiry has been held and  the
rest is dispensed with under clause (b) or a provision in the service  rules
analogous thereto, the exclusionary words of the second proviso  operate  in
their full vigour and the government servant cannot  complain  that  he  has
been dismissed, removed or reduced in rank in violation  of  the  safeguards
provided by Article 311(2)."
                                                          (emphasis is ours)

17.   Insofar as  the  requirement  of  reasons  reflecting  the  reasonable
practicability, of holding an inquiry in writing is  concerned,  this  Court
in the case of Union of India v. Tulsiram Patel (supra) held as under:
"133. The second condition necessary for the  valid  application  of  clause
(b) of the second proviso is that the disciplinary authority  should  record
in writing its reason for  its  satisfaction  that  it  was  not  reasonably
practicable to hold the inquiry contemplated by Article 311(2).  This  is  a
constitutional obligation and if such reason is  not  recorded  in  writing,
the order dispensing with the inquiry and the  order  of  penalty  following
thereupon would both be void and unconstitutional.

134. It is  obvious  that  the  recording  in  writing  of  the  reason  for
dispensing with the inquiry must precede the  order  imposing  the  penalty.
The reason for dispensing with the  inquiry  need  not,  therefore,  find  a
place in the final order. It would be usual to record the reason  separately
and then consider the question of the penalty to be  imposed  and  pass  the
order imposing the penalty. It would,  however,  be  better  to  record  the
reason in the final order in order to avoid the allegation that  the  reason
was not  recorded  in  writing  before  passing  the  final  order  but  was
subsequently fabricated. The reason for dispensing  with  the  inquiry  need
not contain detailed particulars, but the reason must not be vague  or  just
a repetition of the language of  clause  (b)  of  the  second  proviso.  For
instance, it would be no compliance with the requirement of clause  (b)  for
the disciplinary authority simply to state that he  was  satisfied  that  it
was not reasonably practicable to hold any inquiry.  Sometimes  a  situation
may be such that it is not reasonably practicable to give  detailed  reasons
for dispensing with the inquiry. This would not, however, per se  invalidate
the order. Each case must be judged on its own merits and in  the  light  of
its own facts and circumstances.

135.  It was vehemently contended that if reasons are not  recorded  in  the
final order, they must be communicated to the concerned  government  servant
to enable him to challenge the validity of the  reasons  in  a  departmental
appeal or before a court of law and that failure to communicate the  reasons
would invalidate the order. This contention  too  cannot  be  accepted.  The
constitutional requirement in clause (b) is that the reason  for  dispensing
with the inquiry should be recorded in writing. There is  no  obligation  to
communicate  the  reason  to  the  government  servant.  As  clause  (3)  of
Article 311 makes the decision of the disciplinary authority on  this  point
final, the question cannot be agitated in a  departmental  appeal,  revision
or review. The obligation to record the reason in  writing  is  provided  in
clause (b) so that the superiors of the disciplinary authority may  be  able
to judge whether such authority had exercised its  power  under  clause  (b)
properly or not with a view to judge the performance and  capacity  of  that
officer for the purposes of promotion etc. It would, however, be better  for
the disciplinary authority to communicate  to  the  government  servant  its
reason for dispensing with the  inquiry  because  such  communication  would
eliminate the possibility of an allegation being made that the reasons  have
been subsequently fabricated. It would also enable  the  government  servant
to approach the High Court under Article 226 or, in a fit case,  this  Court
under Article 32. If the reasons are  not  communicated  to  the  government
servant and the matter comes to the court, the court can direct the  reasons
to be produced, and furnished to the government servant  and  if  still  not
produced, a presumption should be drawn that the reasons were  not  recorded
in writing and  the  impugned  order  would  then  stand  invalidated.  Such
presumption can, however, be rebutted by a satisfactory explanation for  the
non-production of the written reasons."
                                                          (emphasis is ours)

18.   Whilst examining the requirements, pertaining to the applicability  of
clause (b) to the second proviso under Article 311(2)  of  the  Constitution
of India is concerned, it would also be proper to  notice  the  observations
of this Court in Union of India v. Tulsiram Patel (supra),  wherein  it  was
held as under:
"138.  Where a government servant is dismissed, removed or reduced  in  rank
by applying clause (b) or an analogous provision of the  service  rules  and
he approaches either the High Court under Article 226 or  this  Court  under
Article 32, the court will interfere on grounds well established in law  for
the exercise of power of judicial review  in  matters  where  administrative
discretion  is  exercised.  It  will  consider  whether  clause  (b)  or  an
analogous provision in the service rules was properly applied  or  not.  The
finality given by clause (3) of Article 311 to the disciplinary  authority's
decision that it was not reasonably practicable to hold the inquiry  is  not
binding upon the court. The court will  also  examine  the  charge  of  mala
fides, if any, made in the writ petition. In examining the relevancy of  the
reasons, the court will  consider  the  situation  which  according  to  the
disciplinary authority made it come  to  the  conclusion  that  it  was  not
reasonably practicable to hold the inquiry. If  the  court  finds  that  the
reasons are irrelevant, then  the  recording  of  its  satisfaction  by  the
disciplinary authority would be an abuse  of  power  conferred  upon  it  by
clause (b) and would take the case out of the purview  of  that  clause  and
the impugned order of penalty would stand invalidated.  In  considering  the
relevancy of the reasons given by the disciplinary authority the court  will
not, however, sit in judgment over them like a court  of  first  appeal.  In
order to decide whether the reasons are germane to  clause  (b),  the  court
must put itself in the place of  the  disciplinary  authority  and  consider
what in  the  then  prevailing  situation  a  reasonable  man  acting  in  a
reasonable way would have done. The matter will have to  be  judged  in  the
light of the then prevailing  situation  and  not  as  if  the  disciplinary
authority was deciding the question whether the inquiry should be  dispensed
with or not in the cool and detached atmosphere of a  court-  room,  removed
in time from the situation in question. Where two views  are  possible,  the
court will decline to interfere."
                                                          (emphasis is ours)

19.   Reference may also be made to the decision in Kuldip  Singh  v.  State
of Punjab, (1996) 10 SCC 659, wherein  this  Court  recorded  the  following
observations:
"3.  On appeal, the appellate authority found that the  appellant  did  have
links with the terrorists and was mixed up with them and  he  was  supplying
secret  information  of  the  police  department  to  terrorists  which  was
creating hindrance in the smooth functioning of the police  department.  The
appellate authority also found that it was impossible to conduct an  enquiry
against the appellant because nobody would come forward  to  depose  against
such "militant police official". The appellate authority  also  referred  to
the fact that the appellant was interrogated in  a  case,  FIR  No.  219  of
1990, and that during interrogation he admitted that  he  was  having  links
with Major Singh Shahid and Sital Singh Jakhar and was working for them.  It
further stated in its order that the appellant was preparing to murder  some
senior police officers while taking advantage of his position.
        xxx                          xxx                         xxx

8.  Proviso (b) to Article 311(2) says  that  the  enquiry  contemplated  by
clause (2) need not be held
"where the authority empowered to dismiss or remove a person  or  to  reduce
him in rank is satisfied that for  some  reason,  to  be  recorded  by  that
authority in  writing,  it  is  not  reasonably  practicable  to  hold  such
enquiry".
Clause (3) of Article 311 expressly provides that
"If, in respect of  any  such  person  as  aforesaid,  the  question  arises
whether it is reasonably practicable to hold such enquiry as is referred  to
in clause (2), the decision thereon of the authority  empowered  to  dismiss
or remove such person or to reduce him in rank shall be final".
These  provisions  have  been  the  subject-matter  of  consideration  by  a
Constitution Bench of this Court in Union  of  India  v.  Tulsi  Ram  Patel,
(1985) 3 SCC 398. It would be appropriate to notice a few relevant  holdings
in the said judgment: (SCR pp. 205-74: SCC pp. 454-507, paras 62-138)
"...before denying a government  servant  his  constitutional  right  to  an
inquiry, the first  consideration  would  be  whether  the  conduct  of  the
government servant concerned is such as justifies the penalty of  dismissal,
removal or reduction in rank.  Once  that  conclusion  is  reached  and  the
condition specified  in  the  relevant  clause  of  the  second  proviso  is
satisfied, that proviso becomes applicable and  the  government  servant  is
not entitled to an enquiry.
                     *                *                *
It would also not be reasonably practicable to hold  the  inquiry  where  an
atmosphere of  violence  or  of  general  indiscipline  and  insubordination
prevails, and it is immaterial whether the government servant  concerned  is
or is not a party to bringing about such an atmosphere. ...  The  reasonable
practicability of holding an inquiry is a matter of assessment  to  be  made
by the disciplinary authority. Such authority is generally on the  spot  and
knows what is happening. It is because the  disciplinary  authority  is  the
best judge of this that clause (3) of Article 311 makes the decision of  the
disciplinary authority on this question final. ...  The  finality  given  to
the decision of the disciplinary authority by Article 311(3) is not  binding
upon the court so far as its power of judicial review is concerned....
                     *                *                *
Where a government servant is dismissed,  removed  or  reduced  in  rank  by
applying clause (b) or an analogous provision of the service  rules  and  he
approaches either the High  Court  under  Article 226 or  this  Court  under
Article 32, the court will interfere on grounds well established in law  for
the exercise of power of judicial review  in  matters  where  administrative
discretion  is  exercised.  It  will  consider  whether  clause  (b)  or  an
analogous provision in the service rules was properly applied  or  not.  ...
In examining the relevancy of the  reasons,  the  court  will  consider  the
situation which according to the disciplinary authority made it come to  the
conclusion that it was not reasonably practicable to hold the  inquiry.  ...
In considering the relevancy  of  the  reasons  given  by  the  disciplinary
authority the court will not, however, sit in  judgment  over  them  like  a
court of first appeal."
                                                          (emphasis is ours)

20.   We shall now advert to the impugned order to  determine,  whether  the
three parameters laid down for the valid invocation of  clause  (b)  to  the
second proviso under Article 311(2) of the Constitution of India, were  made
out.  The first ingredient, which  is  a  prerequisite  to  the  sustainable
application of the above clause (b) is, that the delinquency alleged  should
be such as  would  justify,  any  one  of  the  three  punishments,  namely,
dismissal,  removal  or  reduction  in  rank.   We  have  already  extracted
hereinabove the order dated  1.3.2004,  whereby,  the  appellant-Ved  Mitter
Gill was  dismissed  from  service,  with  immediate  effect.   Its  perusal
reveals, that the punishment was based on reasons (recorded in the  impugned
order) divided into different compartments.  The first is contained  in  the
first paragraph, which deals with the  duties  and  responsibilities  vested
with  Ved  Mitter  Gill,  as  Deputy  Superintendent,  Model  Jail,  Burail,
Chandigarh.  The second component deals  with  the  escape  of  four  under-
trials from Model Jail, Burail, Chandigarh.  Three of the under-trials,  who
had escaped, were involved in the  assassination  of  Shri  Beant  Singh,  a
former Chief Minister of  State  of  Punjab.   The  instant  paragraph  also
records, the factum that the said three under-trials were having links  with
Babbar Khalsa International, a terrorist organization.   The  fourth  under-
trial was being tried separately, for the  offence  of  murder.   The  third
component of  the  impugned  order,  relates  to  the  material  taken  into
consideration    to    evaluate    the    lapses    committed     by     the
appellant/petitioners, as would reveal their involvement with  reference  to
the  alleged  delinquency,  justifying  the  punishment  of  dismissal  from
service.
21.   We shall now advert to the factual position emerging from  the  above.
A reference was first  of  all  made  to  the  duties  and  responsibilities
assigned to the appellant - Ved Mitter Gill.  Having  detailed  the  express
duties assigned to him in paragraph 11 above, we have  concluded  therefrom,
that the responsibility of  all  the  jail  inmates  (safe  custody  of  all
prisoners)  rested  on  his  shoulders,  and  the  petitioners  herein,  who
assisted him in the same.  The appellant - Ved Mitter Gill was  required  to
satisfy himself once in every twenty-four hours, about the safe  custody  of
the prisoners.  He was also duty-bound to visit every  barrack,  ward,  cell
and compartment every  twenty-four  hours.   He  was  to  be  present  every
morning and evening, when the prisioners were  taken  out  of  the  sleeping
wards or cells or other compartments, and then, restored to  the  same.   He
was to make a  daily  report  by  day-break  and  by  night,  that  all  the
prisoners were present, and in  safe  custody.   He  was  also  required  to
report forthwith, any unusual occurrence.  He was required at least  once  a
week  to  inspect  clothing,  beddings,  as  well  as,  other  articles,  by
thoroughly checking all places frequented  by  prisoners.   And  to  make  a
report, if he discovered any prohibited article, during  the  checking.  The
petitioners  were  associated  with  the  appellant  and  assisted  him   in
discharging his aforementioned duties.   Had  the  appellant  -  Ved  Mitter
Gill, and the petitioners, performed their duties  diligently,  there  could
not have been any possibility, of the escape under reference.  It cannot  be
overlooked, that the escape was made good, by  digging  the  escape  tunnel,
which measured ninety-four feet in length (with diagonal dimensions  of  21"
x 21").   Six  separate  reasons  have  been  expressed,  by  the  competent
authority in arriving at its conclusion.  We  have  extracted  the  impugned
order dated 1.3.2004, in its entirety, hereinabove.   It  fully  establishes
the  inferences  recorded  by  us.   The  determination  by  the   competent
authority,  when  viewed  dispassionately  with  reference  to  the   duties
assigned to Ved Mitter  Gill,  leaves  no  room  for  any  doubt,  that  the
competent authority was justified in concluding,  that  the  four  prisoners
referred to above could never have escaped, if the appellant  -  Ved  Mitter
Gill, and the petitioners, had diligently discharged the duties assigned  to
them.  Having so concluded, about the responsibility and blameworthiness  of
the appellant/petitioners, there can be no  doubt  that  the  punishment  of
dismissal from service,  was  fully  justified,  as  their  delinquency  had
resulted in the escape of four dreaded prisoners.

22.   The second ingredient which needs to be met, for a valid  exercise  of
clause (b) to the second proviso under Article 311(2)  of  the  Constitution
of India, is the satisfaction of the competent authority, that  it  was  not
reasonably practicable, to hold a regular departmental enquiry, against  the
employees concerned.  On the question whether it was reasonably  practicable
to hold an inquiry, the competent authority has recorded its  conclusion  in
the  paragraphs,  preceding  the  one  depicting  the  involvement  of   the
appellant/petitioners.   Amongst  the  reasons  indicated,   it   has   been
recorded,  that  Ved  Mitter  Gill  being  a  senior,  permanent  and   non-
transferable officer of Model Jail,  Burail,  Chandigarh,  his  junior  jail
officers,  who  alone  would  have  been  witnesses  in  such   departmental
proceedings, were not likely to come forward  to  depose  against  him,  for
fear of earning his wrath in future.  The links of the  escaped  under-trial
prisoners, with  the  Babbar  Khalsa  International,  a  known  and  dreaded
terrorist organization were also clearly expressed in  the  impugned  order,
as one of the reasons, for  it  being  impracticable,  to  hold  an  inquiry
against the appellant/petitioners.  It is a matter of common knowledge,  and
it would be proper to take judicial notice of the fact, that a large  number
of terrorists came to  be  acquitted  during  the  period  in  question,  on
account of the fact, that witnesses did not appear to  depose  against  them
on account of fear, or alternatively, the witnesses who appeared before  the
concerned courts, for recording their deposition, turned  hostile,  for  the
same reason.  The situation presented in the factual  narration  noticed  in
the impugned order, clearly achieves the benchmark, for the satisfaction  at
the  hands  of  the  competent  authority,  that  it  would  not  have  been
reasonably practicable,  to  hold  a  departmental  proceeding  against  the
appellant/petitioners, in terms  of  the  mandate  contained  under  Article
311(2) of the Constitution of India.
23.   The third essential ingredient, for a valid application of clause  (b)
to the second proviso under Article 311(2) of the Constitution of India,  is
that, the  competent  authority  must  record,  the  reasons  of  the  above
satisfaction in writing.  In the present case, there is no  serious  dispute
on this issue, because the reasons for the satisfaction have  been  recorded
by the competent authority in the impugned order (dated 1.3.2004) itself.

24.   For the reasons  recorded  above,  we  are  satisfied,  that  all  the
parameters laid down by this Court, for a valid/legal application of  clause
(b) to the second proviso  under  Article  311(2)  of  the  Constitution  of
India, were duly complied with.

25.   Learned counsel for the appellant/petitioners, lastly placed  reliance
on two sets of facts.  Firstly, it was contended,  that  with  reference  to
the same jail-break incident, a departmental proceeding was  also  initiated
against D.S. Rana, the then Superintendent, Model Jail, Burail,  Chandigarh.
 It was pointed out, that the aforesaid D.S. Rana, was holding the  post  of
Superintendent, Model Jail, Burail, Chandigarh, as a deputationist from  the
State of Punjab.  It was  submitted,  that  the  State  of  Punjab  had  not
invoked clause (b) to  the  second  proviso  under  Article  311(2)  of  the
Constitution of India, against the aforesaid  D.S.  Rana.   It  was  pointed
out, that the abovementioned D.S. Rana, has been issued a  chargesheet,  for
the same charges on which  the  appellant/petitioners  have  been  dismissed
from service.  It was submitted, that a  regular  departmental  enquiry  was
being conducted against the aforesaid D.S. Rana.  The pointed contention  of
learned  counsel  was,  that  if  a  regular  departmental  enquiry  can  be
conducted against the aforesaid D.S. Rana, then it  can  also  be  conducted
against the appellant/petitioners.  Secondly, it was the contention  of  the
learned counsel, that a regular trial was ongoing,  against  the  appellant,
and the petitioners herein, as also, against the  aforesaid  D.S.  Rana,  in
furtherance of first information report bearing no. 17 registered at  Police
Station Sector 34, Chandigarh.  Yet again, it  was  the  contention  of  the
learned counsel, that if witnesses can  appear  in  open  court  proceedings
before the trial court, with reference to the same set of allegations,  they
could surely have appeared, in a departmental proceeding as well.

26.   We  have  given  our  thoughtful  consideration  to  the  above  noted
contention  advanced  at  the  hands  of  the  learned   counsel   for   the
appellant/petitioner.  It is not possible for us to place the appellant  and
the petitioners before this Court, on the same  pedestal  as  the  aforesaid
D.S.  Rana,  the  then  Superintendent,  Model  Jail,   Burail,   Chandigarh
(referred to by in the submission noticed above).  The reason for  this  is,
that Ved Mitter  Gill  was  holding  the  senior-most,  permanent  and  non-
transferable position, at  Model  Jail,  Burail,  Chandigarh,  whereas  D.S.
Rana, referred to in the submission advanced, was only  a  deputationist  at
the said jail.  Accordingly, whilst Ved  Mitter  Gill  would  always  remain
superior to the jail staff who  would  be  summoned  as  witnesses,  in  the
departmental proceedings, the aforesaid D.S. Rana would not fall within  the
same parameter.  D.S.  Rana  belonged  to  a  different  cadre.   After  his
repatriation to his parent cadre, he could not exercise any  supervisory  or
administrative  control  over  the  staff  of  the   Model   Jail,   Burail,
Chandigarh.  Accordingly, the  parallel  sought  to  be  drawn  between  the
controversy in the present case, and the departmental proceedings  initiated
against the abovementioned D.S. Rana,  erstwhile  Superintendent,  Jail,  is
fallacious.

27.  Insofar as the holding of a trial,  and  the  appearance  of  witnesses
therein is concerned, yet again, the analogy invoked by the learned  counsel
representing the appellant/petitioners, is wholly misconceived.   Whilst  in
a criminal prosecution proof is strict, and must  be  based  on  cogent  and
acceptable evidence.  In a criminal case, there is  no  alternative  but  to
establish guilt of an accused, based on acceptable evidence.   The  evidence
is to be produced before the Court, trying the criminal case.  There  is  no
way the same can be exempted, as in the case of a  departmental  proceeding.
Insofar as the present controversy is concerned, there is  a  constitutional
provision creating an exception.   Clause  (b)  of  the  second  proviso  to
Article 311(2) of the Constitution of India, is the exception  in  question,
which authorizes the course adopted by the  respondents.   The  reasons  for
dispensing with the departmental  enquiry,  cannot  be  dependent  upon  the
holding   or   not   holding   of   criminal   proceedings,   against    the
appellant/petitioners.  Once the parameters stipulated in clause (b) of  the
second  proviso  to  Article  311(2)  of  the  Constitution  of  India   are
satisfied, the submissions advanced at the hands of the learned counsel  for
the appellant/petitioners, would not arise.

28.  No other submission was advanced at the hands of  the  learned  counsel
for appellant/petitioners.  For the reasons recorded  hereinabove,  we  find
no merit in the present appeal, and the connected  transferred  cases.   The
same are accordingly dismissed.

                                   .......................................J.
                                             (Jagdish Singh Khehar)



                                   .......................................J.
                                                    (S.A. Bobde)
New Delhi;
March 26, 2015.


ITEM NO.1A               COURT NO.4               SECTION IVB

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No. 3194/2015 @ SLP(C) No. 20379/2006

VED MITTER GILL
Appellant(s)

                                VERSUS

U.T. ADMINISTRATION, CHANDIGARH  & ORS             Respondent(s)
WITH
T.C.(C) No. 41/2010
T.C.(C) No. 42/2010
T.C.(C) No. 43/2010
T.C.(C) No. 44/2010
[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A.BOBDE,JJ.]

Date : 26/03/2015 This appeal and transferred cases were called on for
judgment today.

For Appellant(s) Mr. M. C. Dhingra,Adv.

                       Ms. Naresh Bakshi,AOR

For Respondent(s)Ms. Naresh Bakshi,AOR

                 Ms. Kamini Jaiswal,AOR

                       Mr. Sudarshan Singh Rawat,AOR


      Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice S.A. Bobde.
      Leave granted in S.L.P.(C) No.20379 of 2006.

      For the reasons recorded in the Reportable judgment, which  is  placed
on the file, the appeal, and the connected transferred cases are dismissed.

(Parveen Kr. Chawla)                         (Renu Diwan)
    Court Master                                   Court Master

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