Court No. - 6
Case :- WRIT - A No. - 24331 of 2018 Petitioner :- Devarshi Kumar Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
This petition assails an order dated 28 February 2018 in terms of which the S.P. Banda, invoking the provisions of Rule 8(2)(b), has proceeded to dispense with the requirement of holding of a regular disciplinary proceedings and has inflicted upon the petitioner the punishment of dismissal. This order has been affirmed by the DIG Chitrakoot Dham Zone Banda in terms of its office order dated 13 October 2018.
Rule 8(2)(b) of the 1991 Rules empowers the disciplinary authority to dispense with the holding of a disciplinary proceeding where it comes to conclude that it is not reasonably practicable to hold such an enquiry. The exercise of power under this Rule is an issue which has fallen for consideration in various decisions of this Court. For the purposes of this order, this Court refers to the following observations as entered by a learned Judge of the Court while deciding Writ-A No. 9484 of 2018:-
"The ground urged by the respondents to dispense with enquiry under Rule 8(2)(b) of the Rules of 1991 is in the teeth of law laid down by the Apex Court in the case of Union Of India And Another vs Tulsiram Patel And Others, 1985 (3) SCC 398. Apart from observing that holding of disciplinary proceedings are not practical, nothing is brought on record to substantiate such assertion. There is no valid reason disclosed in the order also for not holding a departmental enquiry in the matter.
This aspect has also been considered by this court in catena of decisions where it has been held that the disciplinary authorities are completely ignoring and fail to consider the matter in correct perspective and are regularly passing orders which are not in conformity with the requirement of law where an action could not have been taken against an employee without holding any department enquiry. (See Raja Ram Yadav Vs. State of U.P. and others, 2009(6) ADJ 657; Jahir Singh Yadav Vs. State of U.P. and others, 2009(6) ADJ 605; Subhas Chandra Yadav Vs. State of U.P., 2009 All L.J. (3) 414; Satya Prakash Vs. State of U.P. and others (Civil Misc. Writ Petition No. 28875 of 2006), decided on 07.11.2008; Ram Sanehi Misra Vs. State of U.P. and others (Civil Misc. Writ Petition No. 61271 of 2006), decided on 05.10.2009; and, Ravi Dutt Tyagi Vs. State of U.P. and others (Civil Misc. Writ Petition No. 56979 of 2006), decided on 17.02.2009.) For the reasons recorded above, the writ petition succeeds and is allowed. The order dated 28.02.2018, exercising the power under Rule 8(2)(b) of the Rules of 1991, cannot be sustained and is hereby quashed. It shall be open for the authorities to proceed departmentally against the petitioner. For such purposes, it would be open for the respondents to place the petitioner under suspension. "
The impugned order, as is evident from a reading thereof, records no reasons why it is not reasonably practicable to conduct the departmental enquiry. There is also no recital that it would not be practicable to hold such enquiry in light of the petitioner either intimidating witnesses or interfering with a fair enquiry as is contemplated under the Rules. Significantly the disciplinary authority after taking into consideration certain internal reports proceeds to record that it is no longer necessary to hold any departmental enquiry. The view so taken cannot possibly be sustained in light of the decisions rendered by this Court dealing with the exercise of power under Rule 8(2)(b).
Faced with this situation, learned Standing Counsel submitted that the ends of justice would merit the matter being remitted to the disciplinary authority for taking action afresh and in accordance with the 1991 Rules rather than this matter being kept pending on the Board of this Court.
Since invocation of Rule 8(2)(b), for the reasons stated in the impugned orders, have been found to be clearly unsustainable, this writ petition stands allowed. The impugned orders dated 28 March 2018 and 13 October 2018 are hereby quashed. The matter shall in consequence stands remanded to the disciplinary authority for drawing proceedings afresh if so chosen and advised in accordance with law.
The issue of reinstatement of the petitioner shall abide by the fresh decision which the S.P. Banda shall now proceed to take.
Order Date :- 28.11.2018 faraz