Heard Sri Prabhat Kumar, learned Counsel for the petitioner and State Counsel for the respondents.
Suresh Chandra Dubey has filed the present writ petition for quashing of the order dated 28.6.1999 passed by Superintendent of Police, Ambedkarnagar, proceeding to dispense with the services of the petitioner in exercise of authority vested under Rule 8(2)(b) U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 and the order of its affirmation in Appellate Order dated 27.10.1999 passed by Deputy Inspector General of Police, Faizabad Range, Faizabad.
Brief background of the case is that petitioner has been performing and discharging duty as Constable and has been posted at Reserve Police Line Ambedkarnagar, fell ill while he was at his native place in village Raipur, District Sultanpur, where he remained sick from 7.3.1999 to 12.5.1999, which according to the petitioner was intimated through post vide application dated 20.4.1999. After being recovered and fit, he reported for duties on 13.5.1999 and was allowed to resume duties.
To the utter shock and dismay of the petitioner, the Superintendent of Police vide order dated 28.6.1999 dismissed the petitioner from service without giving any charge sheet or holding any inquiry with regard to allege unauthorized absence from duty. It is reflected that Superintendent of Police passed the impugned order dismissing the petitioner from service in exercise of powers under proviso (b) of Rule 8(2) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 by holding that it is not reasonably and practically possible to hold inquiry. Thereafter petitioner preferred Appeal and same has been dismissed vide order dated 27.10.1999.
Pleading inter se parties have been exchanged and thereafter present writ petition is being taken up for final hearing and disposal with the consent of the parties.
Counsel for the petitioner contended with vehemence that in the present case there was no occasion to invoke and exercise authority under Rule 8(2)(b) U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 without undertaking any exercise in the direction of holding of the enquiry and mechanically it has been mentioned that inquiry into the matter is neither reasonable nor practicably possible, as such authority in question has been colourably exercised consequently, writ petition, deserves to be allowed.
Countering the said submission learned Standing Counsel on the other hand contended that impugned order clearly gives reasons for dispensing with the service of the petitioner as such no interference be made.
In order to appreciate the respective arguments which have been advanced, Rule 8 of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991, relevant in present context, is being quoted below:
"Rule 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.
(3) 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 is is not expedient to hold such enquiry.
(3) All orders of dismissal and removal of Head Constables or Constables shall be passed by the the Superintendent of Police. Cases in which the Superintendent of Police recommends dismissal or removal of a Sub-Inspector or an Inspector shall be forwarded to the Deputy Inspector-General concerned for orders.
(4) (a) The punishment for intentionally or negligently allowing a person in police custody or judicial custody to escane shall be dismissal unless the punishing authority for reasons to be recorded in writing awards a lessor punishment.
(b) Every officer convicted by the Court for an offence involving moral turpitude shall be dismissed unless the punishing authority for reasons to be recorded in writing considers it otherwise."
Bare perusal of the aforesaid rules would go to show that holding of inquiry is a rule and dispensing with the inquiry is an exception. Before proceedings to impose any one of the major penalty of dismissal, removal or reduction in rank the departmental inquiry is a must and is a condition precedent. However in certain contingency said rigour of the rule can be dispensed with and one such contingency provided for is that in case it is not reasonably practicable to hold inquiry and for this reasons will have to be recorded in writing. The said authority is to be exercised in exceptional circumstances and that to by recording finding to the effect as to why it is not reasonably practical to hold an inquiry. Thus, recording of finding that it is not reasonably practicable to hold inquiry before proceeding to exercise aforesaid authority of dispensation of service under Rule 8 (2)(b) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 is sine quo non.
This Court in the case of Ravindra Raghav Vs. State of U.P. reported in 2005 (3) AWC 2409 taking in view that the provisions of Rule 8(2) (b) are pari materia with second proviso (b) of Article 311 sub clause 2 and the keywords for exercise of such authority is "not reasonably practicable" held as follows . Paragraphs 6, 7 & 8 of the said judgment are being extracted below:
"6. Rules 8 (2) (b) of the Rules provides that where the authority is 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, the authority empowered to dismiss has to be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold inquiry. Thus, the requirements are two fold; firstly recording of reasons and secondly that it is not reasonably 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 satisfactions 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 part materia 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.
"....... 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 passing of the order. Although clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a 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 ruse to dispense with the inquiry. Also see: Shivaji Atmaji Sawani Vs. Union of India; Shivaji Atmaji Sawani Vs. State of Maharastra and Ikrammuddin Ahmed Borah Vs. 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 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. This is clear from the following observation at page 270 of Tulsiram's 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 department's case against the Government servant is weak and must fall."
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 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 Rules 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 alongwith 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 encouragement of indiscipline 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 further 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. It has been observed by the Apex Court in Union of India Vs. 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 in the department there is possibility of increase of indiscipline 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 witnesses 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 the effect that continuance of the petitioner in the police force would have encouraged indiscipline in the department were relevant for dispensing holding of disciplinary enquiry. The key words in Rule 8(2) (b) are ''not reasonably practicable'. The rules contemplate exercise of power under Rules 8 (2) (b) for dispensing holding of disciplinary enquiry when it is not reasonably practicable to hold such enquiry. The reasons thus which can satisfy the requirement of Rule 8 (2) has to be referable to not reasonably practicable to hold an enquiry. No reasons have been given in the order which can be said to fulfill the requirement of not 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 invoking the power under Rule 8 (2) (b) of the Rules."
This Court again in the case of Bhupat Singh Yadav Vs. State of U.P. reported in 2006 (4) ESC 2303 took the view that for invoking the power under second proviso to Rule 8(2)(b) the authority will have to satisfy himself for reasons to be recorded in writing that it is not reasonably practicable to hold enquiry. Paragraphs 7 and 9 of the said judgment are being extracted below:
"7. It is, therefore, clear that for invoking the power under the second proviso to Rule 8(2) of the 1991 Rules, the authority has to be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such inquiry.
9. In Sudesh Kumar Vs. State of Haryana & Ors., (2005) 11 SCC 525 the Supreme Court observed as follows :-
"It is now established principle of law that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2) (b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.
A reasonable opportunity of hearing in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if inquiry is held where he has been informed of the charges levelled against him. In the instant case, the mandate of Article 311(2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant."
Nothing has been brought on record nor produced before me to establish, that any reason making the holding of enquiry impracticable has been mentioned in the record. Thus it can safely be concluded; that neither any such reasons were recorded elsewhere in the record, nor they find mention in the impugned order.
In regard to the applicability of sub-clause (b) which can be said, in no unambiguous terms that the said proviso would be attracted only if the President or the Governor, as the case may be, is satisfied, that holding of an inquiry would not be in the interest of security of the State. The satisfaction has to be on the basis of material available on record to the effect that it would not be expedient to hold an inquiry in the interest of the security of the State.
The facts of the case on the basis of which charges have been framed or levelled or found mentioned in the order of punishment, namely; on the basis of which the major punishment order has been passed, would be a relevant consideration for considering as to whether the inquiry if so held, would not have been in the interest of the security of the State.
On a challenge being made to the order passed under sub-clause (c),the question that it was not expedient to hold enquiry in the interest of security of the State, would be open to judicial review on the same principles which are available for challenging the satisfaction of the President or the Governor under other provisions of the Constitution and on which any other order can be challenged.
In the case of Jaswant Singh v. State of Punjab [AIR 1991 Supreme Court 385], the Apex Court has held that the decision to dispense with the departmental inquiry 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.
The Apex Court in the case of A.K. Kaul and another vs. Union of India and another reported in (1995) 4 SCC 73, had an occasion to consider the order of dismissal of an officer in the Indian Intelligence Bureau in the Ministry of Home Affairs of the Government of India, passed under clause (C) held that there is nothing in the provision of Clause (C) of the second proviso to Article 311 of the Constitution which compels a departure from the principles laid down in S. R. Bommai vs. Union of India reported in (1994) 3 SCC 1 governing justiciablity of the satisfaction of the President in the matter of exercise of power under Article 356.
Of late, the Apex Court in Southern Railway Officers Association and another vs. Union of India and others and other connected matters reported in (2009) 9 SCC 24while reiterating the principle laid down in Tulsiram's case [supra], Kuldip Singh vs. State of Punjab; (1996) 10 SCC 659 observed that recording of reasons, thus, provides adequate protection and safeguard to the employee concerned. It is now well settled that reasons so recorded must be cogent and sufficient. Satisfaction to be arrived by the disciplinary authority for the aforementioed purpose cannot be arbitrary. It must be based on objectivity. Even in the counter affidavit filed by the State, no reasons have been shown nor there is any statement of fact that any such reasons have been recorded separately or find place on the record. The dictum of the Supreme Court in the case of Tulsi Ram (Supra) also does not support the State's action. The only averment in the counter affidavit is that the facts and circumstances, of the instant case unambiguously establish that holding enquiry in the instant case, was not reasonably practicable, neither it was expedient to hold such an inquiry in the interest of security of the State.
This is hardly any reason in terms of the provisions of the sub-clause (b) and (c). Though there is no requirement to record any reason while applying sub clause (c) but the satisfaction of the Governor can be judicially reviewed as there has to be a reason for applying the exceptional rule.
Rule 8 (2) of 1991 Rules and proviso to Clause (2) of Article 311 of the Constitution are akin and it is now a well-settled principle of law that a constitutional right conferred upon a delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior or merely in order to avoid to holding of an inquiry.
In view of the fact that no material had been placed by the opposite parties herein to satisfy the Court that it was necessary to dispense with a formal inquiry in terms of proviso (b) appended to Clause (2) of Article 311 of the Constitution of India, I am of the considered opinion that the impugned order cannot be sustained and is liable to be set-aside.
Accordingly, the writ petition is allowed. The order of dismissal dated 28.6.1999 and the appellate order dated 27.10.199 are hereby set-aside. The opposite parties are directed to allow the petitioner to work on the post which he was holding prior to the order of dismissal and shall be paid current salary and allowances as admissible to him. The period from the date of dismissal to the date of reinstatement shall be considered as period rendered in service for the purposes of pensionary benefits. It may be mentioned that the petitioner was dismissed in the year 1999 and since then he is litigating for his rights. At the time of filing writ petition, the petitioner has indicated his age as 32 years and as such at present, he would be around 59 years ie. at the very fag end of his service. Considering all these aspects of the matter, the ends of justice would be secured by directing the respondents to pay only 25% of the back wages within a period of six months failing which petitioner shall be entitled for 9% interest from the date of order. The above order shall be communicated by the petitioner to the authorities concerned at the earliest.
However, the above order will not preclude the respondents from initiating departmental inquiry against the petitioner in respect of the charges levelled against him, if they so desire.
No order as to costs.
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