Court No. - 58
Case :- WRIT - A No. - 3896 of 2017 Petitioner :- Ram Prasad Singh Respondent :- State Of U.P. And Another Counsel for Petitioner :- Vijay Gautam,Vinod Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner is aggrieved by an order dated 3.4.2016, passed by respondent no.3, dismissing the petitioner from service by invoking jurisdiction under rule 8(2)(b) of the U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991, as well as the order dated 28.10.2016, passed by appellate authority, affirming the dismissal order.
The order is challenged on the ground that there exists no justification for the authorities to dispense with holding of inquiry and that dispensation of inquiry under Rule 8(2)(b) of the Rules of 1991 is in teeth of law laid down by Hon'ble Apex Court in Union of India Vs. Tulsiram Patel AIR 1985 SC 1416.
Learned counsel appearing for the petitioner submits that no legally sustainable reasons have been disclosed by the respondent for not conducting an enquiry and mere allegation cannot be treated as having been proved without undertaking an enquiry in the matter.
Learned Standing Counsel submits that serious allegations were levelled against the petitioner. It is stated that for such reasons, holding of disciplinary proceedings was not found feasible and the jurisdiction under rule 8(2)(b) of the Rules of 1991 has been invoked.
Heard learned counsel for the parties and perused the materials brought on record.
No material has been brought on record of the present writ petition to support such a conclusion of the disciplinary authority. The recital in the order seems entirely presumptive in nature, inasmuch as no basis has been shown to infer that the police peronnels involved in the matter would not give a fair and a correct statement. The exercise of power under Rule 8(2) (b) of the Rules of 1991 has to be based upon consideration of valid materials available on record, and such a conclusion cannot be drawn merely on surmises and conjectures. A Division Bench of this Court in Pushpendra Singh & Another vs. State of U.P. & Another [2008 (3) ADJ 689] had dealt with the exercise of power under Rule 8(2)(b), and it was observed that such provision is pari materia with Aritcle 311 of the Constitution of India, which gives constitutional protection to a member of civil service of the Union or of the State. Reliance had been placed upon the judgment of the Apex Court in the case of Union of India Vs. Tulsi Ram Patel [AIR 1985 SC 1416], in which following observations were made at page 1479:-
"A disciplinary authority is not expected to dispense with a disciplinary proceeding 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."
Paragraph nos.8, 9 and 10 of the judgment delivered by the Division Bench is reproduced:-
"8. 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."
9. 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 another v. Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, para 8).
10. 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."
Similar view has been reiterated in Om Prakash Yadav (supra), relying upon judgment of the Division Bench in Yadunath Singh Vs. State of U.P. And others [2009 (9) ADJ 86], which has been reiterated and followed in the cases of Kuldeep Kumar Vs. State of U.P. and others [2011 (9) ADJ 23], Dharam Pal Singh Chauhan Vs. State of U.P. and others [2011 (4) ADJ 851], and Gulabdhar Vs. State of U.P. and others [2011 (5) ADJ 835].
In view of the settled proposition of law and for the discussions and observations, made above, this Court is satisfied that no material existed on record of the respondents to invoke its authority under Rule 8(2)(b) of the Rules, 1991. Since the action of dismissal has been taken without conducting any enquiry in the matter, and the petitioner has been deprived of his right to defend himself in such an enquiry, dispensation whereof has already been found to be arbitrary, the order impugned cannot be sustained, and is set aside.
For the reasons aforesaid, the orders dated 3.4.2016 and 28.10.2016 cannot be sustained and are accordingly quashed. Liberty stands reserved to the respondents to initiate departmental proceedings against the petitioner in accordance with law. It shall also be open for the respondents to place the petitioner under suspension for the purposes, keeping in view the principles laid down by the Apex Court in Managing Director ECIL vs. B. Karunakar reported in 1993 (4) SCC 727. The Court is informed that in between the petitioner has also attained the age of superannuation on 9.5.2018. This fact shall also be taken note of by the authorities while taking a decision to conduct regular disciplinary proceedings, if any, as per law.
Writ petition is, accordingly, allowed. No order as to costs.
Order Date :- 21.8.2018 Anil