Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 1653 (ALL)

Dharam Pal Singh v. State of U. P.

2004-08-25

TARUN AGARWALA

body2004
TARUN AGARWALA, J. ( 1 ) THE petitioner was appointed as a Constable on 1. 7. 1974. The petitioner was found misbehaving under the influence of liquor on 23. 9. 1996. The petitioner was taken to the hospital where he was medically examined and it was found that he had consumed liquor while on duty. A report to this effect was submitted on 31. 10. 1996. On the basis of this report dated 31. 10. 1996, the services of the petitioner was dismissed by an order dated 20. 11. 1996 exercising the powers under Clause (b) of Sub-rule (2) of Rule 8 of the Uttar Pradesh Police Officers of the subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the Rules ). The reason incorporated in the order of termination was that the petitioner after consuming alcohol used to misbehave with the public at large and that he was penalised and punished on various occasions and that he was also in the habit of taking unauthorised leave and therefore, it was not possible to hold a departmental inquiry and it was also not in public interest to hold such an inquiry. The petitioner filed an appeal, which was rejected and thereafter he preferred a revision, which was also rejected/consequently, the petitioner has preferred this writ petition. ( 2 ) HEARD Sri Kamal Singh Yadav, the learned counsel for the petitioner and the learned Standing counsel for the respondents. ( 3 ) THE learned counsel for the petitioner submitted that under the proviso to Clause (b) of sub-rule (2) of Rule 8, the services could be dispensed with where the disciplinary authority was satisfied that for some reasons to be recorded by that authority in writing, it was not reasonably practicable to hold such an enquiry. He further submitted, that in the instant case the services of the petitioner had been dispensed with without holding an enquiry as contemplated in Sub-rule (2) of Rule 8. According to Sri Kamal Singh Yadav, the learned counsel, the disciplinary authority had dispensed with the enquiry on irrelevant grounds. The decision to dispense with the enquiry was rested solely on the ipse dixit of the disciplinary authority, i. e. on the whim or caprice of the concerned authority. According to Sri Kamal Singh Yadav, the learned counsel, the disciplinary authority had dispensed with the enquiry on irrelevant grounds. The decision to dispense with the enquiry was rested solely on the ipse dixit of the disciplinary authority, i. e. on the whim or caprice of the concerned authority. ( 4 ) IN the instant case, the order of termination indicates that the petitioner had consumed liquor while on duty and that he was punished earlier for this reason, the disciplinary authority held that his continuance in service was not in public interest and therefore, dispensed the enquiry. ( 5 ) THE services of the petitioner had been terminated under Rule 8 (2) (b) of the Uttar Pradesh police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. Rule 8 (2) (b)reads as under : "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 inquiry. " ( 6 ) THE language of the aforesaid rule is similar to the second proviso to Article 311 (2) of the constitution of India. In Union of India and Anr. v. Tulsiram Patel, AIR 1985 SC 1416 , the supreme Court held : "the condition precedent for the application of Clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by Clause (2) of article 311. . . . ". . . . . Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability, which is required by Clause (b ). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. " ". . . . . The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. " ". . . . . What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. " ". . . . . The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. " ". . . . . 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. " ( 7 ) IN Tulsiram Patels case (supra) the Supreme Court further held : "the second condition necessary for the valid application of Clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2 ). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. " The Supreme Court further went on to say that :"if the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by Clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. " ( 8 ) IN Chief Security Officer and Ors. v. Singasan Rabi Das, 1991 (1) SCC 729 , the Supreme court held that there was a total absence of sufficient material or good ground for dispensing with the inquiry and accordingly held that the order of termination dispensing with the inquiry was illegal. ( 9 ) IN Jaswant Singh v. State of Punjab and Ors. , (1991) 1 SCC 362 , the Supreme Court held : "it was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3, in the impugned order. , (1991) 1 SCC 362 , the Supreme Court held : "it was incumbent on the respondents to disclose to the Court the material in existence at the date of the 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 inquiry. " The Supreme Court further held-"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. " ( 10 ) IN view of the aforesaid, I am of the opinion that the impugned order of termination does not contain sufficient reasons for dispensing with the inquiry. The charges so levelled are such, that it can easily be enquired through a departmental enquiry. It is not a case where it could be held that it was not reasonably practicable to hold an inquiry. In my opinion, the decision of the disciplinary authority was wholly arbitrary. The reasons given for dispensing with the enquiry was wholly irrelevant. I am of the view that the disciplinary authority has misused its powers. ( 11 ) IN the result, the writ petition is allowed and the impugned orders dated 20. 11. 1996, 29. 5. 1997 and 22. 6. 1999 are quashed and the respondents are directed to reinstate the petitioner with continuity of service and with full back wages. It is, however, open to the disciplinary authority to initiate a departmental inquiry after affording an opportunity of hearing to the petitioner under Rule 8 of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. . .