1. Heard learned counsel for the petitioner and Sri Saharsh, learned Standing counsel appearing for the State-respondents.
2. The present petition has been filed praying for quashing of the order dated 30.03.2018 passed by the respondent no. 2, a copy of which is annexure 2 to the writ petition by which the petitioner has been dismissed from service as well as the order dated 25/27.07.2018 passed by the respondent no. 3, a copy of which is annexure 3 to the writ petition by which the appeal filed by the petitioner against the dismissal order has been dismissed. A further prayer is for a mandamus commanding the respondents to reinstate the petitioner in service.
3. Bereft of unnecessary details, the facts set forth by the petitioner is that an incident took place on 29.03.2018 wherein the petition is alleged to have gone to the office in a drunken state, of having threatened the service personnel working there and having opened the armoury, taken out a rifle and having cocked the same and threatened the personnel. The petitioner was counselled, caught and taken for medical examination wherein he was found to be drunk. The petitioner was placed under suspension and thereafter through the impugned order dated 30.03.2018, a copy of which is annexure 1 to the writ petition, the petitioner has been dismissed from service by invoking Rule 8 (2) (b) of the Uttar Pradesh Subordinate Police Officers (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "Rules, 1991"). The petitioner had initially approached this Court by filing Writ Petition No. 22292 (SS) of 2018 Inre; Pradeep Kumar Vs. State of U.P and Ors which was disposed of with a direction to the respondent no. 3 to decide the pending appeal of the petitioner. The appeal has been rejected vide order dated 25/27.07.2018, a copy of which is annexure 3 to the writ petition and hence the present petition.
4. Learned counsel for the petitioner contends that though the competent authority has got the power to invoke Rule 8 (2) (b) of the Rules, 1991 and to dismiss an employee summarily but then the reasons as to why it is not found reasonably practicable to hold an inquiry should form part of record. He contends that a perusal of the impugned order dated 30.03.2018 would indicate that only two reasons have been recorded in the impugned order namely (a) the petitioner not being available and (b) the matter pertains to indiscipline. Learned counsel for the petitioner contends that both the grounds reflect patent non application of mind inasmuch as even in case the petitioner was not available though the order was being passed the very next day of the alleged incident, the respondents could very well have issued a charge sheet and could have proceeded ex-parte in case of non availability of petitioner but the same cannot be a ground for invocation of Rule 8 (2) (b) of the Rules, 1991. So far as it has been indicated in the impugned order that as the matter pertains to indiscipline, as such the said rule is being invoked, learned counsel for the petitioner contends that even the said ground is meaningless inasmuch as disciplinary proceedings after issue of a charge sheet can always be done in case the matter pertains to indiscipline and the same cannot be a ground for invocation of Rule 8 (2) (b) of the Rules, 1991 for dismissing the petitioner summarily. He also contends that the appellate order being also based on the impugned order dated 30.03.2018 and having not referred to the two grounds on which Rule 8 (2) (b) has been invoked also merits outright quashing as the same reflects non application of mind.
5. In this regard, learned counsel for the petitioner has placed reliance on the Constitution Bench judgment in the case of Union of India Vs. Tulsiram Patel reported in (1985) 3 SCC 398 to contend that where a dismissal order had been passed by invoking Article 311 (2) proviso (b) which is pari materia to Rule 8 (2) (b) of the Rule, 1991, the Apex Court has held that Article 311 (2) proviso (b) can only be invoked where it is not reasonably practicable to hold an inquiry and the illustrations in this regard have also been given by the Apex Court. Placing reliance on the said judgment, it is contended that none of the principles as have been laid down by the Apex Court in the case of Tulsiram Patel (supra) are attracted in the facts of the present case so as to dispense with the regular inquiry, as has sought to be done by the respondents.
6. Reliance has also been placed on the judgment of the Apex Court in the case of Risal Singh Vs. State of Harayana and Ors reported in (2014) 13 SCC 244 wherein, after following the judgment of Tulsiram Patel (supra), the Apex Court has set aside an order of dismissal which had been passed by invoking Article 311 (2) (b).
7. Placing reliance on the aforesaid judgments, it is contended that once both the grounds on which the competent authority has not found it reasonably practicable to hold an inquiry are patently frivolous reflecting patent non application of mind, as such the impugned order merits to be quashed with the further direction for reinstatement of the petitioner.
8. On the other hand, Sri Saharsh, learned Standing counsel submits that the conduct of the petitioner itself is of a heinous nature inasmuch as he was firstly drunk on duty and secondly had opened the armoury, taken out a rifle and had cocked the same on the employees present and it is only after much persuasion that the petitioner was counselled, caught and taken to the doctor for medical examination. He also submits that in case any untoward incident would have happened, the same would have spoiled the discipline of the armed forces apart from having injured or killed or seriously maimed the personnel who were present there and hence by invoking Rule 8 (2) (b), the impugned order has correctly been passed by the authority concerned.
9. Heard learned counsel appearing for the contesting parties and perused the records.
10. From a perusal of record it is apparent that the petitioner is alleged to have committed misconduct on 29.03.2018 i.e having been drunk on duty, opened the armoury, taken out a rifle and threatened the personnel who were present there. The petitioner had been caught and after medical examination, he was found to be drunk on duty. The respondents, instead of holding a departmental inquiry, have proceeded to summarily dismiss the petitioner after invoking Rule 8 (2) (b) of the Rules, 1991. The grounds indicated as to why it is not reasonably practicable to hold the inquiry are (a) the petitioner not being available and (b) the matter pertains to indiscipline.
11. So far as both the grounds are concerned, in case the petitioner was not found present for the purpose of proceeding with disciplinary proceedings, it was always open for the competent authority to have issued a charge sheet and in case the petitioner failed to appear in the inquiry, could have been proceeded ex-parte. So far as the matter pertaining to indiscipline in the office is concerned, needless to mention that once the inquiry proceedings could have been held, the indiscipline of the petitioner could also have seen in the said inquiry proceedings.
12. Though the matter as alleged pertaining to the conduct of the petitioner is serious yet both the grounds, as have been indicated by the competent authority while summarily dismissing the petitioner from service, would not stand the test for not holding a regular departmental inquiry as has been laid down by the Apex Court in the case of Tulsiram Patel (supra) wherein the Apex Court has held as under:-
132. 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. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished : feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner : to a fairly sufficient extent". 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 is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to given evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other thretens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. 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 finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concernedand in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India and Ors., MANU/SC/0265/1984MANU/SC/0265/1984 : (1984)IILLJ17SC , is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a. letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accusor, the chief witness and also the judge of the matter.
13. Likewise, the Apex Court in the case of Risal Singh (supra) has held as under:-
In the said case the Constitution Bench, while dealing with the exercise of power Under Article 311(2)(b), has ruled thus:
130. 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. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform: capable of being put into practice, done or accomplished: feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". 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.
7. In Jaswant Sing v. State of Punjab and Ors. (1991) 1 SCC 362 the Court, while dealing with the exercise of power as conferred by way of exception Under Article 311(2)(b) of the Constitution, opined as follows:
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 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 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.
8. After so stating, the two-Judge Bench quashed the order of dismissal and directed the Appellant to be reinstated in service forthwith with the monetary benefits. Be it noted, it was also observed therein that it would be open to the employer, if so advised, notwithstanding the lapse of time, to proceed with the disciplinary proceedings.
9. Recently, in Reena Rani v. State of Haryana (2012) 10 SCC 215, after referring to the various authorities in the field, the Court ruled that when reasons are not ascribed, the order is vitiated and accordingly set aside the order of dismissal which had been concurred with by the Single Judge and directed for reinstatement in service with all consequential benefits. It has also been observed therein that the order passed by this Court would not preclude the competent authority from taking action against the Appellant in accordance with law.
14. Once the grounds which have been taken by the competent authority for not holding an inquiry are tested on the touchstone of the law laid down by the Apex Court in the case of Tulsiram Patel (supra) & Risal Singh (supra) it comes out that both the grounds on which the competent authority has found it not reasonably practicable to hold an inquiry, are not such grounds wherein the inquiry was not possible. It is not contended that there was any threat by the petitioner along with his associates to terrorize, threaten or intimidate witnesses who were going to depose against him or threaten the members of the family of the disciplinary authority or there was any indiscipline or insubordination prevailing in the department which could have co-erced or terrified any individual.
15. Accordingly, considering the law laid down by the Apex Court in the case of Tulsiram Patel & Risal Singh (supra) it is apparent that both the grounds which have been invoked by the competent authority for summarily dismissing the petitioner from service are totally unsustainable in the eyes of law. As such, the impugned order dated 30.03.2018 is patently bad in the eyes of law not standing the tests as laid down by the Apex Court in the case of Tulsiram Patel (supra). On the same grounds, the appellate order dated 25/27.07.2018 is also bad in the eyes of law.
16. Considering the aforesaid, the writ petition is partly allowed. The impugned orders dated 30.03.2018 and 25/27.07.2018, copies of which are annexures 2 and 3 to the writ petition are quashed.
17. Consequences to follow.
18. However, it would be open to the respondents to proceed against the petitioner for any act of his misconduct in accordance with law and rules.
Order Date :- 25.8.2021 Pachhere/-
(Abdul Moin, J.)