JUDGMENT S.K. Singh, J.
1. Heard Sri Shashi Nandan, Senior Advocate in support of this petition and Sri Wasim Alam, Standing Counsel in opposition thereof.
2. By means of this writ petition, petitioner has challenged the order of dismissal from service dated 25.9.2000 (annexure No. 1 to the writ petition) passed by the S. S. P., Gorakhpur.
3. There appears to be no dispute about certain facts and, therefore, by giving brief summary the writ petition can be conveniently disposed of.
4. Petitioner was working as Constable in U.P. Police and he was posted at Police Station Tiwaripur, district Gorakhpur. On the ground that on 27.8.1998, petitioner was posted on a picket duty but by giving a wrong information about his ailment he got leave and on 28.8.1998 he was caught travelling with another man at India Nepal Border along with some foreign cell phones having its value about Rs. 14.75 lakhs, he was placed under suspension by order dated 3.9.1998 and thereafter a preliminary enquiry report was submitted on 17.2.2000 and a charge sheet was served on the petitioner on 13.5.2000 and thereafter straightway the impugned order of dismissal from service dated 25.9.2000 came to be passed by the respondent which is under challenge in this petition.
5. Learned Counsel for the petitioner submits that the charges leveled against the petitioner, as replied by him pursuant to the charge sheet are totally wrong, baseless and on some misconception of the facts petitioner has been proceeded and in any view of the matter the submission is that petitioner was entitled to get an opportunity to participate in the regular enquiry and the impugned order could have been passed by the disciplinary authority only after resorting to the full-fledged procedure of the enquiry so provided in the rules. Submission is that petitioner has not been afforded any opportunity in the enquiry proceedings which can be said to have taken place After issuance of the charge sheet and after getting the reply no enquiry proceeded and straightaway the order has been passed. Submission is that the shelter as has been taken by the respondent to the provisions as contained in Rule 8(2)(b) of the U. P. Police Officers Of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the Rules) have absolutely no application to the facts of the present case and, therefore, dispensation of the enquiry as provided under the Rule 8(2)(b) of the Rules cannot be said to be justified. Submission is that neither any proper reasons has been recorded for dispensing the enquiry nor otherwise on the facts its dispensation can be said to be justified and, therefore, on this short ground the impugned action is liable to be quashed. In support of the aforesaid, learned Counsel placed reliance on a judgment given by this Court in the case of Smt. Simarjeet Kaur v. State of U.P. reported in 2006 A.L.R. 433.
6. In response to the aforesaid Sri Alam, learned Standing Counsel submits that the reasons have been given in the impugned order for dispensing the enquiry which is to the effect that as the petitioner is involved in a major crime/offence and there is every apprehension that on account of his fear the witnesses will not give any evidence, resorting to the regular enquiry may not be possible and, therefore, the impugned order has been passed by the disciplinary authority on the basis of preliminary enquiry report. Sri Alam on the basis of various details as has been given in para 4 and 6 of the counter affidavit submits that as the past conduct of the petitioner has also not been good, as at present he was found to be involved in grave offence keeping the petitioner in force was found to be not satisfactory, the disciplinary authority has rightly, on a consideration of these facts dismissed the petitioner from service by dispensing the regular procedure of enquiry to which no exception can be taken.
7. In view of the aforesaid, the court has examined the matter.
8. There is no dispute about the fact that the charge on which the petitioner was placed under suspension is dated 28.8.1998 and thereafter quite long time passed and the department has been able to collect the statement of several witnesses on the basis of which a preliminary report was submitted on 17.2.2000. Preliminary enquiry report contains the statements of five witnesses namely S/Sri Mohd. Asjad, Akshybar Yadav, Mahatam and Jhinak besides that of the petitioner. It is on the basis of the statements and other evidence so collected by the Enquiry Officer preliminary enquiry report was submitted on 17.2.2000 and charge sheet was given to the petitioner on 13.5.2000. There is no allegation whatsoever in the counter affidavit that at any point of time either at the stage when the occurrence/arrest is said to have taken place on 28.8.1998 or even thereafter at the time of collecting the evidence for the purpose of submitting the preliminary enquiry i.e. while getting the statement of the witnesses, any threat was given by the petitioner to any of the witnesses or he ever prevented any official from getting any evidence collected rather the facts as has come on record clearly reveals that statement of large number of witnesses have been recorded by the enquiry officer in which the statement of the petitioner was also recorded and thus on the facts this Court is not convinced that it was a case of there being any threat/prevention from the side of the petitioner in collection of any evidence if the enquiry officer so desired. On the basis of the preliminary enquiry report, a charge sheet was given to the petitioner on 13.5.2000 to which he promptly replied on 22.5.2000 i.e. within a couple of days which also clearly indicates bonafides on the part of the petitioner to co-operate in the enquiry proceedings.
9. Needless to say that provisions as contained in Rule 8(2)(b) of the Rules clearly mandates the disciplinary authority that before dismissal, removal or reduction of rank of a police officer proper enquiry and disciplinary proceeding as contemplated by Rules is to be undertaken. The dispensation of the enquiry is just by way of exception and that is permitted only if the disciplinary authority records reasons in writing to the effect that it is not reasonable to hold such enquiry or where authority is satisfied that holding of enquiry is not in the interest of the security of the State and thus is not expedient to hold such enquiry.
10. For convenience relevant provision as contained in Rule 8(2)(b)(c) of the Rules can be quoted at this place:
8(2)(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 8(2) (c) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry
11. So far the case in hand is concerned it is not a case covered under Rule 8(2)(c) of the Rules and admittedly according to own submission of the learned State Counsel the matter is covered under Rule 8(2)(b) of the Rules and thus this Court is to be satisfied that the disciplinary authority has recorded reasons in writing to the effect that proceeding with the normal procedure is not reasonably practicable. On examination of the facts as has come on record and averments as contained in the counter affidavit this Court is not satisfied that any reasons has been recorded by the disciplinary authority that holding of the normal enquiry procedure as prescribed in law is not reasonably practicable. To the contrary the facts reveal that at all stages petitioner co-operated with the enquiry i.e. in respect to the preliminary enquiry and even thereafter when the charge sheet was given to him and thus this Court is convinced that only in view of nature of charge as submitted by Sri Alam that it appears to be of some grave nature the dispensation of the enquiry can not be said to be justified. The power to dispense the normal enquiry procedure is not to depend on the whims of the disciplinary authority. There is a purpose behind conferring of the power to dispense with the enquiry procedure and thus that is to be exercised in a bonafide manner. The reasons in writing are to recorded and the reasons which are to be indicated has to be in consonance with the grounds so mentioned in the Rule. Even if the reasons have been recorded by the concerned authority and if that cannot be substantiated/justified from the facts and circumstances and record then the reasons even if is recorded can be safely termed to be arbitrary and whimsical. As indicated above, so far the case in hand is concerned, in view of the fact that evidence of several witnesses have been collected during the preliminary enquiry and petitioner promptly moved in response to the charge sheet by submitting his reply, this Court has already observed that dispensation of the normal procedure of enquiry cannot be said to be just and proper. To support the aforesaid view, reliance as has been placed by the learned Counsel for the petitioner on the decision as has been given in the case of Simarjeet Kaur (Supra) can be safely referred. In the decided case by this Court as referred above on this short ground the impugned action of the respondent was quashed with the liberty to take fresh decision in the matter in accordance with law with the further direction that as petitioner was placed under suspension prior to passing of the impugned order that suspension was permitted to continue till the respondent takes fresh decision as directed. This Court has clearly ruled in the decision in the case of Simarjeet Kaur (Supra) that decision if is taken to hold departmental enquiry against the petitioner then is to be completed within a reasonable time and if the respondents feel that the departmental proceedings in the facts and circumstances of the case is not practicable a. clear reason has to be recorded.
12. Be as it may, on the facts and discussion as made above, this Court being convinced that the impugned order as on today cannot be sustained proposes to quash the same. Writ petition is hereby allowed. The impugned order passed by the respondent dated 25.9.2000 (annexure No. 1) is hereby quashed with the liberty to the respondents to proceed in the matter in terms of the judgment of this Court as contained in para 9 in the case of Simranjeet Kaur (Supra).
13. Accordingly the writ petition is allowed/disposed of.