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2005 DIGILAW 275 (ALL)

Umesh Chandra v. State of U. P.

2005-02-16

TARUN AGARWALA

body2005
TARUN AGARWALA, J. ( 1 ) THE petitioner Umesh Chandra in Writ Petition No. 29594 of 2003 was appointed as a constable on 1. 8. 1989 and, at the relevant time, he was posted at police station Fazalganj, district Kanpur Nagar. On 3. 5. 2003 an accused escaped from his custody while the petitioner was escorting the accused to the Civil Court, Kanpur Nagar. On the basis of this incident the petitioner was placed under suspension pending inquiry on 3. 5. 2003 and thereafter he has dismissed from the service by an order of the Senior Superintendent of Police dated 5. 6. 2003 exercising the powers under the proviso to 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 ). ( 2 ) IN Writ Petition No. 29596 of 2003, the petitioner No. 1, Virendra Singh, was recruited as a constable in the year 1997 and petitioner No. 2, Yaduvansh Singh, was appointed as Constable in the year 1981. On the night of 28/29th May, 2003, the petitioners were assigned to guard a convict in the hospital and, instead of guarding the convict, allowed him to escape from the hospital. On the basis of the aforesaid incident, the petitioners were placed under suspension on 30. 5. 2003 by the Senior Superintendent of Police, Kanpur Nagar pending contemplation of a departmental inquiry, but subsequently on 5. 6. 2003 the petitioners were dismissed from the service under the proviso to Clause (b) of Sub-rule (2) of Rule 8 of the aforesaid Rules. ( 3 ) SINCE the controversy involved in both the writ petitions are almost common, the same are being decided together. ( 4 ) HEARD Sri Ashok Khare, the learned Senior Counsel assisted by Sri V. K. Singh for the petitioners and the learned Standing Counsel for the respondents. ( 5 ) THE learned Counsel for the petitioner submitted that under the proviso to Clause (b) of sub-rule (2) of Rule 8 of the Rules, 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. ( 5 ) THE learned Counsel for the petitioner submitted that under the proviso to Clause (b) of sub-rule (2) of Rule 8 of the Rules, 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 of the Rules. According to the learned Counsel, the disciplinary authority had dispensed with the enquiry on irrelevant grounds. The decision to dispense with the enquiry was based on the ipse dixit of the disciplinary authority, i. e. , on the whim or caprice of the concerned officer. ( 6 ) THE order of dismissal clearly states that on account of inaction on the part of the petitioners it allowed the convict to escape from their custody. This incident had resulted in the lowering of the image of the police department and that the public had lost faith in the police. For these reasons the disciplinary authority thought fit to dispense with the inquiry. ( 7 ) THE learned Counsel for the petitioners submitted that the reasons recorded for dispensing with the inquiry was irrelevant and was arbitrary and therefore, the impugned order of termination was invalid and that the petitioners were therefore, liable to be reinstated in service. ( 8 ) 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. " ( 9 ) 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. " ( 9 ) 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. . . . . " ". . . . . . 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. " ( 10 ) 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. 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 :"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. " ( 11 ) 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. ( 12 ) 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. 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. " ( 13 ) IN view of the aforesaid, I am of the opinion that the impugned order of termination contains sufficient reasons for dispensing with the inquiry. The situation was such that an immediate action was required to be taken. ( 14 ) IN Kuldeep Singh v. State of Punjab and Ors. " ( 13 ) IN view of the aforesaid, I am of the opinion that the impugned order of termination contains sufficient reasons for dispensing with the inquiry. The situation was such that an immediate action was required to be taken. ( 14 ) IN Kuldeep Singh v. State of Punjab and Ors. , 1996 (10) SCC 659 , it was held that the admission of the guilt made by the police officer is also a relevant consideration for dispensing with the inquiry. In the present case, the petitioner Umesh Chandra had admitted his guilt, as is clear from the statement which he had made and which has been annexed as Annexure CA-I to the counter affidavit. In so far as Virendra Singh and Yaduvansa Singh are concerned, it has come on record that both were not found on duty at the hospital and had left for their home leaving another constable to guard the convict. They have no explanation to offer. In my view, an undisciplined person like that of the petitioners, are wholly unfit for the police force. In a disciplined force, there is no place for such persons. ( 15 ) IN view of the aforesaid. I find no reason to interfere in the impugned orders. The reasons given by the authority for dispensing with the inquiry is perfectly valid and the satisfaction recorded by him cannot be said to be either unjustified or unwarranted. Even otherwise, even if there is a technical error, I am not inclined to exercise my discretion under Article 226 of the constitution of India. ( 16 ) THE writ petitions fail and are dismissed. In the circumstances of the case there shall be no order as to costs. . .