Court No. - 34
Case :- WRIT - A No. - 6916 of 2021 Petitioner :- Devendra Kumar Shukla Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Atipriya Gautam,Vijay Gautam(Senior Adv.),Vinod Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and learned Standing Counsel.
The petitioner here assailed an order of dismissal passed by the respondents on 13 October 2020. That order has come to be passed with the respondents invoking the provisions made under Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. It would be relevant to extract the following part of the impugned order as passed by the respondent No.3:-
“mi;ZDr izLrqr rF;ksa ls esjk lek/kku gks x;k gS fd fuyfEcr m0fu0 nsosUnz dqekj 'kqDyk] rRdkyhu Fkkuk/;{k dcjbZ] tuin egksck dk d`R; mUgsa iqfyl foHkkx cy esa cus jguk yksdfgr ,oa iz’kklfud fgr esa ugha gS rFkk muds voS/k fdz;k&dykiksa ,oa ifjLFkfr;ksa rFkk yxkrkj vukf/ kd`r vuqifLFkfr jgus ds n`f"Vxr muds fo:) fu;fer foHkkxh; dk;Zokgh fd;k tkuk ;qfDr&;qDrr% O;ogkfjd ugha gSA fuyfEcr mifujh{kd nsosUnz dqekj 'kqDyk ¼ih,uvks&980630756½ orZeku esa vukf/kd`r :i ls vuqifLFkr py jgk gSA eSa iqfyl egkfujh{kd] fp=dwV ifj{ks=] ckank mifujh{kd dk fu;qfDr izkf/kdkjh gWwa rFkk mifujh{kd ds in ls inP;qr djus gsrq l{ke gWwaA vr% eSa iqfyl egkfujh{kd] fp=dwV ifj{ks=] ckank m0iz0 v/khuLFk Js.kh ds iqfyl vf/kdkfj;ksa dh ¼n.M ,oa vihy½ fu;ekoyh&1991 ds fu;e 8¼2½¼[k½ }kjk iznRr 'kfDr dk iz;ksx djrs gq, mifujh{kd uk0iq0 nsosUnz dqekj 'kqDyk dks iqfyl cy esa mifujh{kd ds in ls inP;qr djrk gwWaA”
As is manifest from reading of the aforesaid extract, the respondents have failed to record any satisfaction or reasons for forming an opinion and arriving at the conclusion that it would not be reasonably practicable to hold disciplinary proceedings. The law with respect to the ambit and scope of 2 power conferred by Rule 8(2)(b) was noted by a learned Judge of the Court while deciding Writ-A No.9484 of 2018 in the following terms:-
“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."
In view of the aforesaid, it was fairly conceded that the impugned order would not sustain. Accordingly, for the aforesaid reasons, this writ petition is allowed. The impugned order dated 13 October 2020 is quashed and set-aside. However, this order shall not preclude the respondents from proceeding afresh and in the light of the provisions made in 1991 Rules. The issue of reinstatement shall abide by the fresh decision which would now be taken by the respondents.
Order Date :- 13.8.2021 Rakesh