JUDGMENT Ashok Bhushan, J.
1. Heard counsel for the petitioner and learned standing counsel Counter and rejoinder affidavits have been exchanged between the parties with the consent of the parties the writ petition is being finally disposed of.
2. By this writ petition, the petitioner has prayed for quashing the order dated 21st October, 2000 passed by Superintendent of Police dismissing the petitioner from service dispensing holding of the enquiry under the provisions of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the Rules) and the appellate order dated 15th February, 2001 dismissing the appeal filed by the petitioner.
3. Learned counsel for the petitioner challenging the orders contended that no reasons have been given for dispensing holding of the enquiry and dismissal for the petitioner invoking the power under Rules 8(2) (b) of the Rules. The submission of counsel for the petitioner is that no reasons having been recorded for dispensing holding of the enquiry invoking of power under Rule 8(2)(b) is unjustified. He has placed reliance on judgment of this Court reported in (1991)1 S.C.C. 362; Jaswant Singh v. State of Punjab and Ors., Judgments of this Court reported in 1996(1) A.W.C. 245; Balveer Singh v. State of U.P. and Ors., (1994)3 UPLBEC 1717; Deep Barain v. Deputy Inspector General of Police, Gorakhpur and Ors. and 1998(1) UPLBEC 638; Brijendra Singh Yadav v. State of U.P. and Ors.
4. I have considered the submissions raised and perused the record.
5. Rule 8 of the Rules provides for dismissal and removal, Rules 8(1) and 8(2) of the Rules which are relevant for the present case, are extracted below:-
"8. Dismissal and removal.-(1) No Police Officer 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 is contemplated by the these rules:
Provided that this rules 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; or
(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. Rule 8(2)(b) of the Rules provides that where the authority empowered to dismiss or remove a person is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry, the police officer shall be dismissed or removed without proper enquiry as contemplated in Sub-rule (2) of Rule 8 of the Rules. For invoking the power under Rule 8(2)(b) of the Rules, the authority empowered to dismiss has to be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold enquiry. Thus the requirements are two fold; firstly recording of reasons; and secondly that it is not reasonable practicable to hold such enquiry. It is well settled that when power under Rule 8(2)(b) is invoked judicial review is permissible where subjective satisfaction of the authority that it was not reasonably practicable to hold an enquiry was not based on objective facts as laid down by the apex Court in Jaswant Singh's case (supra). The apex Court in Jaswant Singh's case (supra) had considered the provisions of Article 311(2) second proviso (b) of the Constitution of India. Rule 8(2)(b) of the Rules is para material with the second proviso (b) of Article 311 Sub-clause (2). The apex Court in the aforesaid judgment laid down two conditions for invoking the power under Clause (b) of Rule 8(2) of the Rules. Following was laid down in paragraph 4 of the said judgment:-
"4. ........................Insofar as Clause (b) is concerned this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any inquiry "not reasonably practicable"; and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. Of course the question of practicability would depend on the existing fact-situation and other surrounding circumstances, that is to say, that the question of reasonable practicability must be judged in the light of the circumstances prevailing at the date of the passing of the order. Although Clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finality can be certainty be tested in a court of law and interfered with if the action is found to be arbitrary of mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry. Also see: Satyavir Singh v. Union of India, Shivaji Atmaji Sawani v. State of Maharashtra and Ikrammudin Ahmed Borah v. Superintendent of Police, Darrang.
7. The apex Court further held in the above judgment that Clause (b) of 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 enquiry. Further satisfaction has to be based on certain objective facts and not the outcome of whim or caprice of concerned officer. Following was laid down in paragraph 5 of the said judgment:-
5. ...........................It was incumbent on the respondents to disclose to the Court the material in existence at the date of 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 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 departments 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. In the present case the order of Superintendent of Police dismissing the petitioner from service after invoking the powers under Rule 8(2)(b) of the Rules has not given any reason as to why it is not reasonably practicable to hold an enquiry. The order notes the incident dated 19th October, 2000 in which allegation against the petitioner was made that he along with other constables had realized Rs. 50/- each from drivers of Combine Machines and when Incharge Kotwali reached on the spot then he misbehaved with Incharge in presence of public. Observation has been made in paragraph-3 of the order that by the misconduct of the petitioner the faith of public is losing in police and by the above act of petitioner there is strong possibility of encoragement of indscipline in the force. After noticing the above facts, the Superintendent of Police held that he is satisfied that it is not reasonably practicable to hold enquiry against the petitioner. It was further observed that in case petitioner remain in the force he may repeat the incident in future and taking advantage of he being in police he may make efforts to save himself from his deeds and in continuing the petitioner in department there will be possibility of increase of indiscipline in the employees. No reason in the order has been recorded as to why it is not reasonably practicable to hold disciplinary enquiry against the petitioner.
9. It has been observed by the apex Court in Union of India v. Tulsiram Patel, (1985)3 SCC 398 that disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily. In the counter affidavit which has been filed by the respondents also there is no reason given for not holding disciplinary enquiry against the petitioner. No facts have been mentioned in the order or referred to on the basis of which satisfaction has been recorded for dispensing holding of disciplinary enquiry against the petitioner. The observation that in the event petitioner is allowed to remain the department there is possibility of increase of indispline in the department cannot be held to be germane for dispensing holding of disciplinary enquiry. The appellate authority while dismissing the appeal has observed that there was possibility of petitioner threatening the complainant and witnessed was an observation which does not find place in the order of Superintendent of Police who invoked the power under Rule 8(2)(b) of the Rules. Neither any reasons have been recorded in the order of Superintendent of police for dispensing holding of disciplinary enquiry nor other observations made in the order to effect that continuance of the petitioner in the police force would have encouraged indiscipline in the petitioner in the police force dispensing holding of disciplinary enquiry. The key Words in Rule 8(2)(b) are "not reasonably practicable". "The Rules contemplate exercise of power under Rule 8(2)(b) for dispensing holding of disciplinary enquiry when it is not reasonably practicable to hold such inquiry. The reasons thus which can satisfy the requirement of Rule 8(2)(b) has to be referable to not reasonably practicable to hold an enquiry. No reasons have been given in the power which can be said to fulfil the requirement of reasonably practicable to hold enquiry. The statutory requirement of exercising the power is absent in the present case. As observed above no reasons have also been given in the counter affidavit bringing on the record the reasons on the basis of which such satisfaction was recorded by Superintendent of Police, the Court is at last to find out the basis for the power under Rule 8(2)(b) of the Rules.
10. In above view of the facts, it is clear that power has exercised by Superintendent of Police under Rule 8(2)(b) contrary to the requirement as laid down in Rule 8(2)(b). The order of Superintendent of Police cannot be sustained. The appellate order which confirms the said order also cannot survive and both the orders are consequently quashed. It is, however, open to the respondents to hold disciplinary enquiry against the petitioner in accordance with the law.
11. The writ petition is disposed of accordingly