In the present appeal the petitioner is aggrieved by the order of the learned single Judge dated 29.7.2010. The appellant filed a petition challenging the order dated 9.1.2009 passed by the Senior Superintendent of Police, Gorakhpur in exercise of the powers under the proviso to Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment & Appeal) Rules, 1991 (hereinafter referred to as the Rules).
The submission on behalf of the appellant before the learned Single Judge was that the enquiry was dispensed with without giving any reason as to why no departmental enquiry could be held and why it was not reasonably practicable to hold the same.
After considering the contentions, the learned single Judge relied upon the judgment in the case of Yadunath Singh Vs. State of U.P. & others, reported in 2009 (9) ADJ 86 wherein one of us (A.P. Sahi,J.) was a member. Learned single Judge summed up the reasons given by the Officer for not holding the enquiry as under:
1.The petitioner has tried to influence the witness of the concerned criminal case by misusing his official position;
2.He has also caused unjustified interference with the criminal investigation and;
3.He has terrorised and threatened the concerned party as well as witnesses of the criminal case whereby the investigation is going on.
All this would show that the charge against the appellant herein is that in a particular criminal case he is terrorising or intimidating witnesses. This by itself could be the subject matter of charge sheet against the appellant herein. The question that we are called upon to answer is upon a true construction of Rule 8 (1) and 8 (2).
We may now refer to Rule 8 of the rules as under:
"Rules 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 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; 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."
In the normal course in respect of a Police Officer an enquiry has to be commenced before such Officer can be dismissed, removed or reduced in rank. There are exceptions provided in the proviso (b) that an authority is empowered to dismiss or remove a person or reduce after recording a satisfaction that it is neither practicable nor reasonable to hold an enquiry. In other words in respect of the charges against the delinquent employee, Police Officer (authority) must arrive at a conclusion that enquiry cannot be proceeded with or has to be dispensed with. In other words it is not the gravity of the charge but whether the enquiry can be proceeded with.
In the instant case from the order passed and considering the charges against the appellant herein, it has been held that it is not desirable that he remains a member of the police force. This reason cannot be said to be a reason to dispense with an enquiry. The reason therefore summed up at the highest could be that the charge is sufficient to charge sheet the appellant. The charges may be a good reason to suspend him from service. However it does not empower the disciplinary authority to dispense with the enquiry in terms of the Rule 8(2)(b).
We are therefore clearly of the opinion, that in the instant case the disciplinary authority while exercising the power under proviso (b) to Rule 8(2) has failed to address himself to the issues based on germane grounds for dispensing with the enquiry. In fact there is no reason given at all as to why the enquiry has to be dispensed with. In the light of that the appal deserves to be allowed and the impugned order of dismissal and the judgment of the learned single Judge deserve to be set aside.
We make it clear that it will be open to the respondents, if advised to initiate disciplinary proceedings including suspension, if it is so desired. We grant the respondent a period of three months to proceed with the matter, in the event the proceedings have to be initiated. The appellant would not be reinstated in service. That would be subject to the final order in the disciplinary proceedings. If no proceedings are undertaken the appellant would be reinstated.
In the light of that the order of the learned single Judge dated 29.7.2010 is set aside and the order dated 9.1.2009 is quashed, subject to the directions hereinabove.
Appeal disposed of accordingly.