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Allahabad High Court · body

2007 DIGILAW 1031 (ALL)

ZAFAR ALI KHAN v. STATE OF UTTAR PRADESH

2007-04-19

ASHOK BHUSHAN

body2007
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri Satish Madhyan, learned Counsel for the petitioner and Sri Piyush Shukla, learned Standing Counsel. 2. By this writ petition, the petitioner has prayed for quashing the order dated 19th January, 2004 passed by Commandant 4th Battalion, P.A.C., Allahabad dismissing the petitioner from service invoking power under Rule 8(2)(b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment & Appeal) Rules, 1991 (hereinafter referred to as 1991 Rules). The petitioner filed an appeal which was rejected on the ground of barred by limitation on 17th June, 2004 against which order the petitioner filed a revision which too was dismissed by order dated 28th March, 2005. 3. Brief facts giving rise to the writ petition are; petitioner was appointed as Constable in U.P. Provincial Armed Constabulary on 2nd October, 1998 and was posted at 4th Battalion, P.A.C., Allahabad. After joining on 2nd October, 1998 the petitioner in the year 2000 absented for 122 days unauthorisedly for which period subsequently leave was sanctioned. Again in the year 2002, the petitioner absented for 22 days for which period leave was sanctioned without pay. On 2nd October, 2003, the petitioner was instructed to proceed to Gorakhpur on 3.10.2003 alongwith guard carrying the salary of the employees at 6.00 a.m. On 3.10.2003 the petitioner was not found present at 6.00 a.m. and despite search he could not be found. On 31.10.2003 a registered letter was sent at his address calling him to join duty. The said registered letter was returned with endorsement that he is not at his home. A preliminary inquiry was initiated against the petitioner. In the preliminary inquiry one constable, Brij Mohan was sent to the village of the petitioner in State of Bihar on 9.1.2004 where also the petitioner could not be found. On inquiry from petitioner’s father and Gram Pradhan of the Village it came to the notice that petitioner sometime comes at his home but without informing go away. It was informed that on 20th December, 2003, the petitioner departed from village for getting medicine for his mother. On 25th December, 2003 he was also seen in the village but thereafter the family members of the petitioner’s family were not aware about the whereabouts of the petitioner. The Commandant by an order dated 19th January, 2004, after recording reasons, invoking the power under Rule 8(2)(b) dismissed the petitioner from service. On 25th December, 2003 he was also seen in the village but thereafter the family members of the petitioner’s family were not aware about the whereabouts of the petitioner. The Commandant by an order dated 19th January, 2004, after recording reasons, invoking the power under Rule 8(2)(b) dismissed the petitioner from service. The order was challenged in appeal, which appeal was dismissed as barred by time. Against the order dismissing the appeal, the petitioner filed a revision before the revisional authority. The revisional authority considered the submissions of the petitioner on merits and did not found any ground to interfere with the punishment order. 4. Learned Counsel for the petitioner, challenging the order, contended that there is no finding in the order that it is not reasonably practicable possible to hold an inquiry and without there being such finding invoking the power under Rule 8(2)(b) is unjustified. He submits that according to Rule 16 of 1991 Rules, the respondents were obliged to hold a disciplinary inquiry in absentia and without holding an inquiry the petitioner could not have been dismissed. He further submits that although in Rule 16 the word “may" has been used but the said word has to be read as the word “shall”. Learned Counsel for the petitioner in support of his submissions relied on judgments of this Court reported in 1996 AWC 245; Balveer Singh v. State of U.P. and others, (2002)1 UPLBEC 775 ; Sukhbir Singh v. S.S.P., Agra and others, 2005(3) AWC 2409 ; Ravindra Raghav v. State of U.P. and others, 2005(2) ESC 1229 ; Jai Singh Bhandari v. State of Uttaranchal and others, 2006(4) ESC 2303 (All); Bhupat Singh Yadav v. State of U.P. and others, 2007(3) ADJ 70 ; Rajesh Verma v. State of U.P. and others, 2006(8) ADJ 570 ; Narendra Prasad Rai v. State of U.P. and others, 2007(3) ADJ 143 ; Raghunath Singh v. State of U.P. and others. 5. Learned Standing Counsel refuting the submissions of the Counsel for the petitioner contended that the satisfaction has been recorded by the Commandant in the impugned order for invoking power under Rule 8(2)(b) of 1991 Rules. He submits that the said satisfaction is based on objective consideration and it cannot be said that power has incorrectly been invoked. 5. Learned Standing Counsel refuting the submissions of the Counsel for the petitioner contended that the satisfaction has been recorded by the Commandant in the impugned order for invoking power under Rule 8(2)(b) of 1991 Rules. He submits that the said satisfaction is based on objective consideration and it cannot be said that power has incorrectly been invoked. He submits that preliminary inquiry was held in which inquiry the petitioner could not be contacted, hence the decision was taken to dispense with the inquiry under Rule 8(2)(b). 6. I have considered the submissions and perused the record. 7. Rule 8(2), which is prima facie to the second proviso to Article 311 of the Constitution, is as follows : “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." 8. Another rule, which needs consideration, is Rule 16 of 1991 Rules, which is as follows : “16. Proceedings in absentia.—(1) Departmental proceedings against delinquent Police Officers may be taken in absentia by the authorities competent to take departmental proceedings if, the Police Officer, against whom departmental proceedings are pending or against whom it is proposed to start such proceedings or to whom it is impossible for the inquiry officer to contact, deliberately absents himself from the place of his posting or from the proceedings when in progress. Before taking departmental proceedings in absentia, the concerned authority shall record in writing that inspite of all reasonable steps having been taken to contact the Police Officer it has not been possible to serve the charge on him and obtain his explanation or to secure his personal presence." 9. The words used in Rule 8(2)(b) provides that no police officer shall be dismissed or removed or reduced in rank except after proper inquiry and disciplinary proceedings. Thus the general rule is that no major punishment be awarded without holding inquiry. This general rule is subject to exceptions as enumerated in proviso. The first exception is in a case where the delinquent is dismissed, removed or reduced in rank on the ground of conduct which lead to his conviction on a criminal charge and the second exception is when appointing authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold inquiry. Thus for invoking the proviso (b) of Rule 8(2) two conditions are to be satisfied, firstly appointing authority is to record reasons in writing and secondly that it is not reasonably practicable to hold such inquiry. The satisfaction of the appointing authority has to be thus recorded giving reasons why it is not reasonably practicable to hold such inquiry. The word ‘reasonably’ is prefixed with words ‘practicable to hold such inquiry’. Thus the question to be asked when the power is to be invoked under Rule 8(2)(b) and as to what are the reasons which satisfied the appointing authority that it is not reasonably practicable to hold such inquiry. Another rule, which provides that departmental proceeding to be held in absentia is Rule 16 of 1991 Rules. Rule 16 is an enabling provision which empowers holding of departmental proceedings in absentia. The submission is that whenever the police officer is not present or could not be contacted, it is necessary to hold an inquiry in absentia, which is mandate of Rule 16. Both the rules, namely, Rule 8 and Rule 16 forms part of 1991 Rules and is well established rule of interpretation that different rules have to be interpreted in a Statute so as to intent and purpose of the rules be given effect to and they be harmoniously construed unless they are conflicting. Both the rules, namely, Rule 8 and Rule 16 forms part of 1991 Rules and is well established rule of interpretation that different rules have to be interpreted in a Statute so as to intent and purpose of the rules be given effect to and they be harmoniously construed unless they are conflicting. The satisfaction referred to in Rule 8(2)(b) that it is not reasonably practicable to hold such inquiry may be a case where it is not possible to contact the delinquent personally or by post or special messenger. In case the argument of the petitioner is accepted that holding of inquiry in absentia is mandatory, the category where the delinquent cannot be contacted ordinarily or by post or by messenger has to be treated as an exception to the satisfaction as referred to in Rule 8 (2)(b), i.e., “is not reasonably practicable to hold such inquiry”. It is well settled rule of interpretation that the plain words in a statute has to be given their full meaning and no word can be added or substituted therein The word “may” has been consciously used by the Legislature giving the discretion to the appointing authority to hold the inquiry in absentia or to exercise the power under Rule 8(2)(b) proviso in an appropriate case. Thus the submission of the petitioner that word “may” used in Rule 16 shall be read as “shall” cannot be accepted nor the reading of such word can harmonise the interpretation of Rule 8(2)(b) and Rule 16. As observed above, both the rules have to be interpreted harmoniously to give effect to the words and meaning of both the rules. 10. Now comes the submission of the petitioner that no requisite satisfaction has been recorded. It is relevant to refer to the order of the Commandant. The order notes that petitioner was scheduled to go to Gorakhpur on 3.10.2003, which was informed on 2.10.2003 but on 3.10.2003 his whereabouts were not found. A notice was also sent to the petitioner to join duties on 31.10.2003 by registered post, which letter was returned with the endorsement that he was not available at his home. Petitioner being absent from 3.10.2003 without any information or notice, a preliminary inquiry was initiated with regard to the said absence. In the preliminary inquiry officer was also not able to contact the petitioner. Petitioner being absent from 3.10.2003 without any information or notice, a preliminary inquiry was initiated with regard to the said absence. In the preliminary inquiry officer was also not able to contact the petitioner. The petitioner was not available at his work place and a constable was sent to his home town but he was not found there. The family members were also unable to tell his whereabouts. In those circumstances, after recording said facts the Commandant has decided to invoke Rule 8(2)(b). From a reading of order of Commandant, it is clear that reasons have been given for invoking Rule 8(2)(b) and the reasons given by the Commandant can neither be said to be perverse nor absurd. 11. The petitioner in the writ petition has sought to take a case that with effect from 3.10.2003, the petitioner was under treatment at Bahadurganj, Ghazipur and thereafter at Shiv Shanker Gupta Hospital, Varanasi. It is further pleaded that petitioner had duly informed with regard to his ailment and application for medical leave and intimation was sent through relatives. The said averment has been vehemently denied in the counter-affidavit that no information was ever received from the petitioner about his absence or about his medical treatment. 12. Learned Counsel for the petitioner further submitted that the fact that in February, 2000 the petitioner was absent for 122 days and in 2002 the petitioner was absent for 22 days was not relevant and the said fact has been taken into consideration by the Commandant without it having any meaning and relevance. The said submission cannot be accepted. While forming a subjective satisfaction under Rule 8(2)(b) proviso, the factor that earlier on two occasions the petitioner was unauthorisedly absent was not an irrelevant fact. The fact that the petitioner earlier unauthorised absented and the fact that preliminary inquiry was conducted to contact the petitioner for recording his statement were both relevant and led forming satisfaction by the Commandant. 13. Now comes the decisions relied by the Counsel for the petitioner. In the judgment of this Court in Balveer Singh’s case (supra) this Court took the view that decision to dispense with the departmental inquiry cannot be rested solely on the ipse dixit of the concerned authority. 13. Now comes the decisions relied by the Counsel for the petitioner. In the judgment of this Court in Balveer Singh’s case (supra) this Court took the view that decision to dispense with the departmental inquiry cannot be rested solely on the ipse dixit of the concerned authority. The judgment of the Apex Court in Jaswant Singh v. State of Punjab and others; AIR 1991 SC 385 was relied where the Apex Court has laid down that 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 week and must fall, following was held in paragraph 6 of the said judgment : “6. Prior to passing of the said judgment of the Supreme Court, a single Judge of Calcutta High Court presided by Hon’ble Omiyo Kumar, J. in the case of Jyoti Prasad v. Union of India, 1974 Calcutta Law Journal, inter alia, held in interpreting the provisions of Rule 14(ii) of the Railways Service Conduct and Discipline Rules, 1958 that material should be disclosed in the counter-affidavit to the effect that in the meantime made to serve charge-sheet for the purpose of holding enquiry. The delinquent was not available and by no mere subjective satisfaction of the disciplinary authority, such enquiry should be dispensed with.” 14. In paragraph 6, relying on the judgment of Calcutta High Court in Jyoti Prasad’s case it was held that material should be disclosed in the counter-affidavit to the effect that meantime effort was made to serve the charge-sheet for the purpose of holding an inquiry. The delinquent was not available and by no mere subjective satisfaction of the disciplinary authority, such enquiry should be dispensed with. Further there has to be material brought on the record to show that efforts were made. The mere fact that delinquent was not available subjective satisfaction was not recorded by the disciplinary authority but it should be shown that that efforts have been made to serve charge-sheet for the purpose of holding the inquiry. 15. In Ravindra Raghav’s case (supra) while considering Rule 8(2)(b) of 1991 Rules, following was laid down in paragraph 6 : “6. The mere fact that delinquent was not available subjective satisfaction was not recorded by the disciplinary authority but it should be shown that that efforts have been made to serve charge-sheet for the purpose of holding the inquiry. 15. In Ravindra Raghav’s case (supra) while considering Rule 8(2)(b) of 1991 Rules, following was laid down in paragraph 6 : “6. Rule 8(2)(b) of the Rules provides that where the authority 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. For invoking the power under Rule 8(2)(b) 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 enquiry. 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 satisfaction 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 parimateria 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 : 4.....Insofar as clause (b) is concerned this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (1) 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. These are (1) 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 judges in the light of the circumstances prevailing at the date of the 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: Satyavir Singh v. Union of India: Shivaji Atmaji Sawant v. State of. Maharashtra and Ikrammuddin Ahmed Borah v. Superintendent of Police, Darrang.” 16. The judgment on which further reliance has been placed by Counsel for the petitioner is in Jai Singh Bhandari’s case (supra) of the Uttranchal High Court. Following was observed in paragraph 10 of the said judgment : “10. In the petitioners case, for not holding enquiry, according to the learned Counsel for the petitioner, it falls under Rule 8(2)(b) which says that if the Competent Authority is satisfied for the reasons to be recorded that it is not reasonably practicable to hold such enquiry, he may dismiss the Police Officer without holding enquiry. The reasons will have to be recorded by the dismissing authority that it is not reasonably practicable to hold such enquiry. In the impugned order of dismissal, it is stated that the act of the petitioner is not good for Police service and further since he was absconded, the enquiry cannot be held. Thus, if the delinquent official is absconded, the departmental proceedings can be held in absentia. Rule 16 of the Rules provided for conducting proceedings in absentia. Only the ground that the petitioner was absconded is not sufficient ground to hold that it is not reasonably practicable to hold enquiry against the petitioner.” 17. In the above case, in the order of dismissal, it was stated that act of the petitioner was not good and further since he was absconding the inquiry cannot be held. Only the ground that the petitioner was absconded is not sufficient ground to hold that it is not reasonably practicable to hold enquiry against the petitioner.” 17. In the above case, in the order of dismissal, it was stated that act of the petitioner was not good and further since he was absconding the inquiry cannot be held. Thus if the delinquent officer is absconding, the departmental proceedings can be held in absentia under Rule 16 of the 1991 Rules. As observed above, Rule 16 is an enabling provision which gives power to the appointing authority to hold the inquiry in absentia but in a case when despite efforts delinquent is not being contacted either personally or by post or through messenger, the said can also form basis for invoking power under Rule 8(2)(b) and such broad proposition that in all cases where delinquent is untraceable inquiry in absentia is mandatory cannot be accepted. In Bhupat Singh Yadav’s case (supra) the order impugned did not give any reason for not holding the inquiry and the order only referred to the charges levelled. In the said circumstances this Court held that dismissal was vitiated. In Rajesh Verma’s case (supra) no reason was given as to why it is not reasonably practicable to hold an inquiry. In the order impugned in the above case it was mentioned that inquiry was conducted by Senior Superintendent of Police in respect of taking illegal gratification of Rs. 4,00,000. It was found in the writ petition that petitioner illegally demanded Rs. 4,00,000/- and in fact had received the said amount for that an F.I.R. was also lodged. The learned Judge held that reasons which were furnished by Senior Superintendent of Police were totally misconceived and misreading of the provisions. The said case is also clearly distinguishable. Raghunath Singh’s case was also a case where no reasons were disclosed as to why the inquiry was not possible. The said case is also on its own facts. The petitioner has placed much reliance on Narendra Prasad Rai’s case (supra). Learned Single Judge in the said judgment has observed : “I have perused the order of termination. The order does not record any reason why it is impracticable to hold an inquiry. The said case is also on its own facts. The petitioner has placed much reliance on Narendra Prasad Rai’s case (supra). Learned Single Judge in the said judgment has observed : “I have perused the order of termination. The order does not record any reason why it is impracticable to hold an inquiry. The order simply is that firstly the petitioner was unauthorisedly absent, secondly that he had been absent without leave 164 days and thirdly he was found with heroin for which he has been declared indisciplined employee but no reason has been given why it is not possible to hold an inquiry against him.” 18. The said judgment was on its own facts. The present is a case not of only recording unauthorised absence and proceeding to invoke the power under Rule 8(2)(b) but efforts were made in the preliminary inquiry to contact the petitioner for recording his statement and when no whereabouts were given by his family members and he was not found at his residence, the authorities proceeded to dispense with the inquiry. The said case also do not support the petitioner in the present case. 19. From the propositions as laid down in the aforesaid cases, it is clear that two conditions must be fulfilled, i.e., recording of the reasons and as to why it is not reasonably practicable to hold an inquiry. Each case has to be examined on its own facts for which it is required to look into the order. From the facts and all attending circumstances of the present case I am satisfied that Commandant has rightly invoked the power under Rule 8(2)(b) of 1991 Rules and the subjective satisfaction recorded by the Commandant while invoking power under Rule 8(2)(b) does not suffer from any perversity or illegality. No ground have been made out to interfere with the order s impugned in the writ petition. 20. The writ petition is dismissed. No order as to costs. ————