JUDGMENT Bharati Sapru, J.
1. Heard learned Counsel for the petitioner and the learned standing counsel for the respondents.
2. The petitioner has made a prayer seeking writ of certiorari quashing the impugned orders dated 19.6.1993 and 2.3.1992 passed by the respondents No. 3 and 2 respectively (Annexures 1 and 2 to the writ petition). The first the order of removal was passed by the Superintendent of Police and the second is the order passed in appeal by the D.I.G. (Police).
3. The contention of the petitioner is that both the impugned orders are arbitrary and illegal because the services of the petitioner have been brought to an end without giving to the petitioner an opportunity of hearing and in violation of the provisions of Section 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. The contention of the petitioner also is that the provisions of Section 8 (2)(b) of the Rules aforesaid can only be dispensed with certain circumstances and although if there are good reasons to do so and also where the authority who is empowered to dismiss or remove a person is satisfied for reasons to be recorded by the authority in writing that it is reasonably impracticable to hold such an enquiry.
4. I have perused the order of termination dated 19.6.1993. The order does not record any reason why it is impracticable to hold an enquiry. The order simply records that firstly the petitioner was unauthorizedly absent, secondly that previously also he had been absent without leave 164 days; and thirdly he was found with heroin for which he has been declared indisciplined employee but no reason has been given why it is not possible to hold an enquiry against him. After all in all cases of misconduct, an enquiry is held. It is only in very special circumstances that an enquiry can be dispensed with. Therefore if the provisions of Rule 8 (2) (b) are to be invoked by the authority, then it must record clearly the reasons for doing so. Rule 8 (2)(b) is quoted below:
(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 enquiry;
5. Such being the case, the petitioner is justified in saying that the impugned order dated 19.6.1993 has been passed in violation of the provisions of Section 8 (2)(b) of the Rules aforesaid. The consequent order has been passed without holding any enquiry is also therefore vitiated. The petitioner is clearly entitled to the protection granted under Article 311(2) of the Constitution of India.
6. The petitioner, in support of his contentions, has stated that the decision of this Court in the case of Ram Das Yadav v. Sena Nayak 45th Battalion, P.A.C. Contingent Konkrajhar reported in (2001) 2 UPLBEC 177s5 wherein this Court came to the conclusion that in absence of any material being placed before the Court, the decision to dispense with the enquiry was not a good one. I am in respectful agreement with the view taken by the learned Single Judge in the said decision and following the same.
7. In view of the above, I am of the opinion that the petitioner must be given an opportunity of hearing in an enquiry. The respondents No. 1, 2 and 3 are directed to initiate and hold an enquiry against the petitioner giving him a proper opportunity of hearing within a period of ten days from the date of issuance of certified copy of this order. The respondents will allow the petitioner to participate freely in the enquiry and they will conclude it within a period of six months. The impugned order dated 19.6.1993 will be kept in abeyance for a period of six months or till the conclusion of enquiry whichever is earlier. The petitioner will co-operate with the authorities concerned in the enquiry. In case, after completion of enquiry, the petitioner is exonerated, it will be open to the respondents to pass fresh orders in accordance with law. It is made clear that this order is being passed for the purposes of allowing to the petitioner an opportunity of hearing and does not amount to an order of reinstatement of the petitioner in service. However the petitioner will be allowed whatever benefits he is entitled to under the law.
8. The writ petition is disposed of as above.