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Hari Prasad Rai & Another vs State Of U.P. & Another

High Court Of Judicature at Allahabad|02 April, 2010


1. Learned counsel for the respondents submitted that since pure legal question has been raised in this matter, he does not proposed to file any counter affidavit and would make his submission and therefore, the writ petition may be heard and decided finally at this stage.
2. With the consent of learned counsel for the parties, this writ petition is being disposed of finally under the Rules of the Court.
3. The order impugned in this writ petition is dated 18.02.2010 whereby the Deputy Inspector General of Police,/Senior Superintendent of Police, Allahabad has dismissed the petitioners by exercising power under Rule 8 (2)
(b) of the U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991 (hereinafter referred to as 'Rules 1991') without holding any enquiry observing that continuance of the petitioners in the Department is not in public interest.
4. Learned counsel for the petitioners submitted that under the aforesaid provisions, the enquiry could be dispensed with only when if it is not practicable but in the case in hand, it appears that an ex-parte preliminary enquiry got conducted by the respondents and on the basis of such report, the impugned order has been passed without recording that the disciplinary enquiry is not practically possible. He has placed reliance on the judgment of Division Bench of this Court in the case of State of U.P. & others Vs. Chandrika Prasad 2006 (1) ESC 374 All.(DB) wherein Rule 8 (2) (b) was considered in detail by this Court and it held in paras 14 to 17 as below:
14. "The learned counsel for the appellant attempted to justify the order that it satisfies the requirements of Rules. We are of the view that even this contention is apparently misconceived. The Apex Court at page 1479 in Tulsi Ram Patel (Supra) held as follows:
"A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrary or out of ulterior motives or merely in order to avoid the holding of an enquiry or because the Department's case against the Government servant is weak and must fail."
15. The words some "reasons to be recorded in writing that it is not reasonably practicable to hold enquiry" means that there must be some material for satisfaction of the disciplinary authority that it is not reasonably practicable. The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. The Apex Court in the case of Jaswant Singh v. State of Punjab and others AIR 1991 SC 385 in para 5 at page 390 has observed as under :
"It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3 in the impugned order. Clause (b) of the second proviso to Article 311 (2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry."
"......When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
16. In almost similar circumstances, the matter came up before the Apex Court in the case of Chief Security Officer v. Singasan Rabi Das, AIR 1991 SC 1043 and the Apex Court found that the dismissal order before enquiry in the said case on similar ground as in the case in hand did not satisfy the requirements of the Rules as is apparent from the following:
"In the present case, the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/other Railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view, these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these ground constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good ground for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result, the appeal fails and is dismissed. There will be no order as to costs."
17. The mere mention of the fact that delinquent delinquent person may influence witnesses without mere being any material to support the same is nothing but a conjecture surmise and ipse dixit on the part of the disciplinary authority to dispense with the enquiry. If the contention of the appellant is accepted, the constitutional protection, available to a Government servant under Article 311 (2) of the Constitution as reflected in Rule 8 (2) of the aforesaid rules would render illusory and artificial. The normal rule of enquiry can always be defeated by the disciplinary authority in an arbitrary manner whenever it intend to get rid of a Government servant for any reason, it did not find conducive to its expectations. Constitutional protection cannot be dispensed with lightly as held by the Apex Court and is to be followed and observed in words and spirit and strict manner."
5. Considering the present case in view of the law laid down as discussed above, I find that the disciplinary authority has observed that an enquiry was conducted wherein the petitioners were found guilty and yet without recording any finding that the disciplinary enquiry was not practicable, he has exercised the power under Rule 8 (2)(b) of the Rules 1991 and dismissed the petitioners without holding any regular departmental enquiry, therefore, the impugned order is ex-facie, illegal and in violation of Article 311 (2) of the Constitution of India.
6. In the facts and circumstances of the case, the writ petition is allowed. The impugned order dated 18.02.2010 passed by the Deputy Inspector General of Police, respondent No. 2 is hereby quashed. However, it is made clear that respondents shall be at liberty to pass fresh order in accordance with law after holding disciplinary enquiry of the petitioners according to the procedure prescribed under the said Rules, 1991.
Order Date :- 2.4.2010 NS
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Hari Prasad Rai & Another vs State Of U.P. & Another


High Court Of Judicature at Allahabad

02 April, 2010