Heard Shri J.N. Singh, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
By means of this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 17/18.04.2008 passed by Senior Superintendent of Police, Mathura dismissing him from service in exercise of powers conferred by Rule 8 (2) (b) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 1991 Rules) without holding a regular departmental inquiry on the allegation that he obtained appointment by making forgery in his date of birth.
Facts in short giving rise to the dispute are as under.
Petitioner was selected and appointed on the post of Constable in U.P. Police in the year 1994. At the time of appointment, he submitted documents which recorded his date of birth as 01.08.1975. In the year 2007, while he was posted at Etah, some complaint was made that he has obtained appointment by making forgery and manipulation in his date of birth and the same was 01.08.1971. Senior Superintendent of Police entrusted Circle Officer, Aliganj, Etah to make inquiry into the complaint. Circle Officer, Aliganj conducted the inquiry into the complaint and after recording the statement of witnesses and after verifying the certificate of the educational qualification submitted by the petitioner from the college, submitted a report that charges are not established against the petitioner and on the basis of the said report, no further action was taken. Thereafter, the petitioner was transferred from District Etah to District Mahtura. Again an identical complaint was made against him and a preliminary inquiry was conducted by the Circle Officer, Chhata. He also submitted a report that the preliminary inquiry for the same charges have earlier been conducted and the same were not found to be proved. The copies of the two inquiry reports have been annexed as Annexure 1 and 5 to the writ petition. However, thereafter without any notice or opportunity or holding any disciplinary proceedings, Senior Superintendent of Police, Mathura passed an order dated 17/18.04.2008 exercising powers conferred by Rule 8 (2) (b) of 1991 Rules dismissing the petitioner from service on the ground that since the petitioner was involved in forging the document, as such, it was not practicable to hold any inquiry.
It is contended by learned counsel for the petitioner that once the alleged charges on which the petitioner has been dismissed from service, were found to be false in preliminary inquiry, there was no justification to pass the impugned order without any notice or opportunity of hearing or without drawing any disciplinary proceedings. It has further been contended that the impugned order has been passed without recording any reason as to why it was not reasonably practicable to hold a regular departmental inquiry into the alleged charges. Referring to the provision of Rule 8 (2) (b) of 1991 Rules, it has been urged that it was incumbent upon the authorities to record reasons for invoking the power conferred by Rule 8 (2) (b) of 1991 Rules. It has also been submitted that mere mentioning the fact that since the petitioner was involved in manipulating and forging documents, as such, it was not practicable to hold the inquiry, do not satisfy the requirement of Rule 8 (2) (b) of 1991 Rules as a reason for dispensing the departmental inquiry.
In reply, learned Standing Counsel referring to the averments made in the counter affidavit, has submitted that the Senior Superintendent of Police got another inquiry conducted through Shri Alok Kumar Chaturvedi, Circle Officer, Mathura, who submitted a report dated 8th April, 2008, wherein it was found that the petitioner has changed his date of birth from 01.08.1971 to 01.08.1975 by making forgery and also filed a forged certificate of having passed intermediate. It has also been contended that date of birth mentioned by the petitioner was got verified and inquired from the concerned institutions and it was reported that his date of birth was 01.08.1971 and not 01.08.1975 and, thus, after being satisfied that petitioner has sought appointment on forged and fabricated documents, passed the impugned order.
I have considered the argument advanced by the learned counsel for the parties and perused the record.
Question involved in this case for adjudication is as to whether the impugned order of dismissal fulfils the conditions precedent prescribed in Rule 8 for exercise of the said power.
Rule 8 (2) (b) of 1991 Rules reads as under.
"8. (2) (b) 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 inquiry."
The language of the aforesaid Rules, is almost similar to 2nd proviso to Article 311 of the Constitution of India. Interpreting the provision of Article 311 of the Constitution, Hon'ble Apex Court in the case of Union of India & Anr. Vs. Tulsiram Patel, AIR 1985 SC 1416 has observed as under.
"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....
"....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 has further been held that 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 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.
It is obvious that the recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty."
"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 Jaswant Singh v. State of Punjab & others, (1991) 1 SCC 362, it has been held 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 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. This is clear from the following observation at page 270 of Tulsiram case (SCC p.504, para 130) "A disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily 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.
The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. 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."
In Sudesh Kumar Vs. State of Haryana & Ors., (2005) 11 SCC 525, the Hon'ble Apex Court has observed as under.
"It is now established principle of law that an enquiry under Article 311(2) is a rule and dispensing with the enquiry is an exception. The authority dispensing with the enquiry under Article 311(2) (b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an enquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an enquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the enquiry. This is no ground for dispensing with the enquiry. On the other hand, it is not disputed that, by order dated 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the enquiry.
A reasonable opportunity of hearing in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if enquiry is held where he has been informed of the charges leveled against him. In the instant case, the mandate of Article 311(2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant."
Same view has been taken by this Court in Special Appeal No.1122 of 2001 (State of U.P. and others Vs. Chandrika Prasad) decided on 19th October, 2005 as well as in Special Appeal No. (647) of 2009, State of U.P. & Ors. Vs. Santosh Kumar Gupta The law, thus, stands settled that it is only on a subjective satisfaction based on material on record, the authority after recording reason why it is not practicable to hold the disciplinary enquiry, can invoke the powers conferred by Rule 8 (2) (b) of the Rules and dispense with the regular departmental enquiry.
A perusal of the impugned order goes to show that no reason has been recorded by the authority for invoking the power conferred by Rule 8 (2) (b) of 1991 Rules and to dispense with the regular departmental inquiry. Even in the counter affidavit filed on behalf of the respondents, no such material has been brought on record on the basis of which, it could be said that authority was satisfied that it was not reasonably practicable to hold a regular departmental inquiry.
The charges alleged in the impugned order may form the basis for dispensing the services of the petitioner, but only in case the same are established in a regular departmental inquiry held in accordance with the procedure prescribed under the Rules. A mere charge against the petitioner that he obtained appointment on the basis of forged and fabricated date of birth itself cannot constitute a reason for dispensing with the regular departmental inquiry. A perusal of the impugned order goes to show that it is based upon some report of Shri Alok Kumar Chaturvedi, Circle Officer, Mathura. Copy of the said report annexed as Annexure 1 to the counter affidavit, itself goes to show that it was a confidential inquiry. Petitioner was neither allowed to participate nor he was ever confronted with the said inquiry report and yet it was made basis for dismissing him from service.
Admittedly, the petitioner was appointed in 1994 and after 14 years, he has been dismissed from service on the allegation that he obtained appointment by forging his date of birth, on the basis of some alleged confidential inquiry conducted behind the back of the petitioner ignoring the earlier inquiries conducted into the same charges in which the petitioner participated and the same were found to be false and incorrect.
Learned Standing Counsel could not dispute the settled proposition of law by the aforesaid judgments which are clearly applicable to the case in hand and the impugned order in the light thereof cannot legally sustain.
In view of the aforesaid facts and the settled legal position, I am of the considered view that order of dismissal passed against the petitioner does not fulfil the requirement of Rule 8 (2) (b) of 1991 Rules read with Article 311 (2) proviso Clause (b) of the Constitution of India and, therefore, cannot be sustained and is hereby quashed.
Writ petition stands allowed. However, it shall be open to the respondents to hold a regular departmental inquiry against the petitioner into the alleged charges in accordance with law and relevant rules.
In the facts and circumstances, there shall be no order as to costs.
9th September, 2011 VKS