Heard Sri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel for the respondents.
Petitioner, who was working as Head Constable at Police Station Saidpur, District Ghazipur, lodged first information report on 7.7.2004 that some arms and ammunitions and Rs.5000/- was stolen from the store of the Police Station. Superintendent of Police directed a preliminary enquiry to be conducted by Circle Officer, Saidpur, Ghazipur. He submitted a preliminary report recommending dismissal of the petitioner from service without any enquiry under Rule 8 (2) (b) of the U. P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'Rules of 1991'). On the basis of the said recommendation in the preliminary enquiry report, Superintendent of Police passed an order dated 14.12.2004 dismissing the petitioner from service without holding any enquiry invoking the powers conferred by Rule 8 (2) (b) of the Rules of 1991. Petitioner went up in appeal which was dismissed on 16.5.2005. The orders were challenged by filing a revision which has also been dismissed on 21.4.2006. Aggrieved, the petitioner has approached this Court.
Learned counsel for the petitioner has submitted that the impugned orders are arbitrary, discriminatory and has been passed in violation of principles of natural justice. It has further been submitted that no reason has been assigned in the order for dispensing with the departmental enquiry nor there is any material on record in the counter affidavit which may go to show that it was not reasonably practicable to hold an enquiry.
Learned Standing Counsel, on the other hand, submitted that a preliminary enquiry was conducted wherein petitioner was found to be involved in the theft of arms and ammunitions from the store of the Police Station and as such he was dismissed from service without conducting any other enquiry in exercise of powers conferred by Rule 8 (2) (b) of the Rules of 1991. It is further submitted that the petitioner was provided full opportunity during the preliminary enquiry.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
Relevant Rule 8 of Rules 1991 reads as under :
"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.
The aforesaid Rule (8) is pari materia with Article 311(1) & (2) of the Constitution of India which confers constitutional protection upon a person who is a member of civil service of the Union or the State.
The normal rule is that no punitive action entailing consequences of dismissal, removal or reduction of rank would be taken without holding a disciplinary enquiry against an incumbent unless and until he has been informed of the charges and provided a reasonable opportunity of being heard in respect of those charges. However, the second proviso to the Article 311(2) carves exception in respect of certain cases where holding of departmental inquiry would not be possible may be either due to not being reasonably practicable or holding any disciplinary inquiry is not in the interest of the security of the State.
The Hon'ble Apex Court in the case of Union of India vs. Tulsiram Patel, AIR 1985 SC 1416 while considering the provision of Article 311(2) of the Constitution of India has held that two conditions must be satisfied to sustain any action taken thereunder. These are (1) there must exist a situation which renders holding of an inquiry not reasonably practicable; (2) the disciplinary authority must record in writing the reason in support of its satisfaction. The Hon'ble Apex Court also held that although clause (3) of Article 311 makes the decision of the disciplinary authority final but the same can be tested in a court of law and interfered with if the action is found to be arbitrary, malafide, motivated by extraneous consideration or merely ruse to dispense with the regular departmental inquiry.
The exception carved out by proviso to Article 311(2) of the Constitution are embodied in Rule 8 (2) of the Rules of 1991 and both are pari materia. Various Division Benches of this Court have followed the aforesaid principle of law laid down by the Hon'ble Apex Court while considering the validity of the orders passed in exercise of powers conferred by Rule 8(2) of Rules of 1991. Reference may be made to the case of State of U.P. & others vs. Chandrika Prasad, 2006(1) ESC 374(All) (DB), Pushpendra Singh (CP 2187) and another vs. State of U.P. & others, 2008(3) ADJ 689 (DB).
In the case in hand, the only reason assigned is that despite being member of discipline force, he has misused his official position by committing a crime which has tarnished the image of police force and his continuance is not in public interest and force.
The words 'reasons to be recorded in writing that it is not reasonably practicable to hold inquiry' implies that there must be some material for satisfaction of the authority that it is not reasonably practicable to hold the inquiry. The decision to dispense with the departmental inquiry not based on material and solely on the ipse dixit of the concerned authority cannot be sustained. The material on which the subjective satisfaction of the authority is based should either be reflected from the order or be brought on record when such satisfaction of the concerned authority is questioned in a court of law. The Hon'ble Apex Court in the case of Jaswant Singh v. State of Punjab, AIR 1991(1) SC 385 has observed as under :
"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 authorities is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental inquiry".
The mere mention of the fact that the petitioner has misused his official position and has committed an act which has tarnished image of the police and his continuance was not in public interest cannot constitute a sufficient reason for dispensing with the disciplinary enquiry and the same do not satisfy the test of exercise of such power.
Even the preliminary enquiry against the petitioner also do not justify dispensing with regular departmental enquiry without any reasons as the preliminary is conducted by the employer to satisfy himself as to whether any regular departmental enquiry is to be conducted or not and a preliminary enquiry can never be equated or could constitute a ground to dispense with departmental enquiry.
Even the appellate authority and the revisional authority have failed to advert themselves to the aforesaid aspects of the matter.
The impugned orders, therefore, suffers from gross error of law and deserve to be set aside.
The writ petition accordingly stands allowed. The impugned order dated 14.12.2004 passed by the Superintendent of Police, Ghazipur as well as the appellate order dated 16.5.2005 passed by the Deputy Inspector General of Police, Varanasi Range, Varanasi and the revisional order dated 21.6.2006 passed by the Inspector General of Police, Varanasi Zone, Varanasi are hereby quashed.
However, liberty is given to the respondents - authorities, if they so desire, to hold a departmental enquiry against the petitioner in accordance with the law and the procedure prescribed under the Rules of 1991.
Order Date :- 12.7.2011 Dcs