JUDGMENT S. Rafat Alam and Vineet Saran, JJ.
1. This appeal under the Rules of the Court arises from the judgment of the Hon'ble Single Judge of this Court dated 1.10.2007 in Civil Misc. Writ Petition No. 47241 of 2007. We have heard Sri Gulab Chandra, learned Counsel for the appellants and the learned Standing Counsel appearing for the State-respondents.
2. It appears that the petitioner-appellants, being aggrieved by the order of the Senior Superintendent of Police, Agra dated 12th September, 2007, dismissing them from service, preferred the aforesaid writ petition on the ground, inter alia, that the impugned order is bad, illegal and arbitrary because it has been passed under Rule 8(2)(b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991, (in short the Rules), without recording any reason to dispense with regular departmental proceeding and, therefore, it cannot sustain. The Hon'ble Single Judge, however, having heard the learned Counsel for the parties, dismissed the writ petition on the ground that the appellants have efficacious statutory alternative remedy under the Rules itself and thus they can avail the same. Appellants are constables in U.P. Police and at the relevant time were posted in Police outpost Balkeshwar, Police Station New Agra, District Agra. However, on 10.9.2007 at 11.30 pm Shri Anil Kumar, Incharge Police Out Post while patrolling along with the appellants arrested a suspect Raju @ Rakesh from cremation ground and some objectionable incriminating articles were recovered from his possession and was produced before the Magistrate. Thereafter, his mother-in-law made a complaint on 12.9.2007 alleging therein that the petitioner along with other police personnel took Rs. 5000/- as illegal gratification yet he was arrested and challaged in a false case and was subsequently released by the Magistrate. Consequently, an FIR was lodged and on the same day i.e. 12.9.2007, they were dismissed from service by the impugned order.
3. Learned Counsel for the appellants vehemently contended that since the impugned order of dismissal did not contain any reason to dispense with the regular departmental proceeding and thus, the same being in violation of the statutory provisions, the writ petition could not have been thrown only on the ground of availability of alternative remedy. He further submits that under Rule 8(2)(b) of the Rules, the punishment of dismissal from service without holding regular proceeding, can only be inflicted where the authority empowered, records reasons indicating the difficulty on account of which it is not practicable to hold such enquiry. It is contended that in the instant case, the Senior Superintendent of Police, without recording any reason for not holding regular departmental proceeding, inflicted the punishment of dismissal from service. It is submitted that the Hon'ble Single Judge fell in error in dismissing the writ petition only on the ground of availability of alternative remedy when the order apparently is in violation of the statutory provisions whereunder recording reasons is mandatory.
4. On the other hand, learned Standing Counsel appearing on behalf of the State-respondents opposed the writ petition. However, he could not show us any reason in the impugned order to dispense with the regular departmental proceeding before giving punishment of dismissal to the appellants under Clause-(b) of Rule 8(2) of the Rules.
5. We have considered the submissions made on both sides and also perused the record. The core question for consideration in this appeal is as to whether the impugned order of the Senior Superintendent of Police (respondent No. 2) dated 12.9.2007 is in accordance with law or is in disregard of the prescription of law. To appreciate the contention made before us, it is necessary first to have a look of the provisions contained in Rule 8, which provides as under:
8. Dismissal and removal- (1) No police office shall be dismissed or removed from service by an authority subordinate to the appointing authority.
(2) No police officer shall be dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceedings as contemplated by these rules.
Provided that this rule shall not apply-
a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;
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 or
c) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.
6. The above provision is pari materia with Article 311(1) and (2) of the Constitution, which gives constitutional protection to a Member of civil service of the Union or of the State. The normal rule is that no major punishment, such as, dismissal, removal or reduction in rank should be inflicted without taking recourse of regular disciplinary enquiry against such delinquent. However, second proviso to Article 311(2) has carved out certain exception where even without holding regular proceeding punishment of dismissal, removal or reduction in rank can be inflicted. Similarly, Rule 8(2)(b) like Article 311(2)(b) provides that where the authorities empowered to dismiss or remove a person or to reduce him in rank is satisfied that it is not reasonably practicable to hold such enquiry then in that event he has to record reasons as to why it is not reasonably practicable to hold the enquiry. Thus, in order to dispense with the regular departmental proceeding for inflicting punishment of dismissal, removal or reduction in rank, recording reasons is condition precedent. The idea or object of recording reasons is obviously to prevent arbitrary, capricious and mala fide exercise of power. Therefore, recording of reason is mandatory and in its absence the order becomes laconic and cannot sustain. Onus is on the State or its authorities to show that the order of dismissal has been passed strictly as per prescription of the statutes. The Hon'ble Apex Court in the case of Union of India v. Tulsi Ram Patel while considering Articles 310 and 311 of the Constitution of India held that two conditions must be satisfied to uphold action taken under Article 311 (2) of the Constitution of India, viz., (i) there must exist a situation which renders holding of any enquiry not reasonably practicable, (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. The Hon'ble Apex Court further observed that though Clause 3 of Article 311 makes the decision of the disciplinary authority in this behalf final, yet such finality can certainly be tested in the court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a rule to dispense with the enquiry. The Hon'ble 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 inquiry or because the Department's case against the Government servant is weak and must fail.
7. The words some "reason 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 Ors. 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.
8. Therefore, in view of the exposition of law such satisfaction has to be recorded either in the impugned order or in any case it must be available on record. In the case in hand, the impugned order is enclosed as Annexure 5 to the writ petition. From a perusal thereof it is evident that the Senior Superintendent of Police merely reproduced the provisions contained in Rule 8(2)(b) against the above police personnel, stating that it is not reasonably practicable to hold such enquiry. It does not contain any reason showing as to why it is not reasonably practicable to hold regular enquiry. The satisfaction that it is not reasonably practicable to hold such enquiry has to be spelled out either in the order itself or at least it has to be available on record. Learned Standing Counsel also during his submission could not show us any such reason recorded by the competent authority in the record to show any ground or reason for invoking the provisions contained in Rule 8(2)(b) of the Rules. It is well settled legal position that when a statutory functionary makes an order based on some reasons or grounds, its validity is to be tested on the ground or reasons mentioned therein and cannot be supplemented by giving reasons through affidavit filed in the case (See Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. ).
9. It is also an admitted position that the appellants have been dismissed from service without holding any enquiry. They have not been informed of the charges against them nor been afforded opportunity of being heard in respect of charges before inflicting punishment of dismissal from service. Thus, in the absence of reasons for dispensing with the regular enquiry the impugned order of dismissal is patently illegal and it is difficult to uphold the same.
10. The Hon'ble Single Judge, however, did not address on this core question and dismissed the petition only on the ground of availability of alternative remedy. It is true that normally this Court declines to entertain the writ petition where the aggrieved person has efficacious alternative statutory remedy. The doctrine of exhaustion of other remedy is a self-imposed restriction by the Court so that a person, who has statutory remedy for redressal of his grievance before another forum, may not be allowed to bye-pass such remedy. However, the existence of statutory remedy is not an absolute bar in entertaining the petition under Article 226 of the Constitution where there is apparent and gross violation of mandatory statutory provision of an Act or the Constitution]
11. The Hon'ble Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. held that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". However, their Lordships have carved out three contingencies, where alternative remedy will not stand in the way in entertaining the writ petition under Article 226 of the Constitution of India, viz. (1) where the writ petition has been filed for the enforcement of any of the Fundamental Rights; (2) where there has been a violation of the principle of natural justice; and (3) where the order or proceedings are wholly without jurisdiction or where the vires of an Act is challenged.
12. Since, in the case in hand, admittedly, the order has been passed without following the mandatory provision of the Act and also in violation of principles of natural justice thus, the writ petition cannot be thrown only on the ground of availability of alternative remedy when there is blatant error in the order.
13. For the foregoing reasons, this appeal succeeds on this point alone. In the result, this appeal is allowed. The impugned order dated 12.9.2007 passed by the Senior Superintendent of Police, Agra dismissing the appellant from service and the judgment of the Hon'ble Single Judge dated 1.10.2007 are hereby set aside. However, it would be open to the respondents to proceed against the appellant in accordance with law, either by initiating proceedings after regular enquiry or dispensing with the regular proceedings by recording reasons under Section 8(2)(b) of the Rules. There shall be no order as to costs.