JUDGMENT Honble V.K. Shukla, J.—Petitioner, in present writ petition, is assailing the validity of decision dated 26.12.1997 taken by Senior Superintendent of Police, Moradabad, dispensing with the services of petitioner and the orders of its affirmance in appeal and revision by Deputy Inspector General of Police, Moradabad Region, Moradabad and the Inspector General of Police, Bareilly Zone, Bareilly dated 15.07.1998 and 24.02.1999, respectively. 2. Brief background of the case is that petitioner had been performing and discharging duties as constable and thereafter he was promoted to the post of Head Constable. On 27.08.1997 an F.I.R. was lodged by Sub-Inspector Ram Naresh Pandey, Police Lines, Moradabad, alleging therein that 93 prisoners were sent to Sessions Court, for which complaint was received, as only 91 prisoners were entered in jail after their counting and two accused persons were not there, while Bhagwan Singh, Nem Chand and Dusht Daman Tyagi (petitioner) along with other police personnel were engaged in duty. Thereafter search was carried out and then constable Hari Ram was found in drunken condition and accused persons had escaped on account of mistake on the part of Hari Ram. After lodging of the First Information Report, petitioner was placed under suspension for holding of departmental enquiry on 28.08.1997. Said order of suspension was subject matter of challenge before this Court in writ petition No. 40277 of 1997. This Court had asked the respondents to conclude the disciplinary proceedings within three months. Thereafter, order, impugned has been passed,dispensing with the services of petitioner in exercise of the authority vested under Rule 8 (2)(b) of the U.P. Police Officers of Subordinate Rank (Discipline and Appeal) Rules, 1999. Petitioner preferred appeal, which was dismissed. Revision too, preferred against the order dismissing appeal, has been rejected. At this juncture, present writ petition had been filed. 3. Counter affidavit has been filed justifying the action taken by respondent-authorities. To this counter affidavit, rejoinder affidavit has been filed, rebutting the statement of facts mentioned in the counter affidavit and reiterating that arbitrary action has been taken against petitioner. Supplementary affidavit, supplementary counter affidavit and supplementary rejoinder affidavit have been filed. 4. After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. 5. Supplementary affidavit, supplementary counter affidavit and supplementary rejoinder affidavit have been filed. 4. After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. 5. Sri D. Kumar, Advocate, appearing for petitioner, contended with vehemence that in the present case there was no occasion to exercise and invoke the provisions of Rule 8 (2)(b) of the aforesaid Rules, as holding of enquiry was practicable and coupled with this, persons who were actually guilty of misconduct, they have been reinstated back in service, as such writ petition deserves to be allowed. 6. Sri P.P. Srivastava, learned Standing Counsel, on the other hand, has contended that looking into the gravity of charge, the authority vested under Rule 8 (2)(b) of the aforesaid Rules has rightly been exercised, as such there is no occasion to interfere with the impugned orders. 7. In order to appreciate the respective arguments which has been advanced relevant Rule 8 of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 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 : 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 not expedient to hold such enquiry. (3) All orders of dismissal and removal of Head Constables or Constables shall be passed by 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. (3) All orders of dismissal and removal of Head Constables or Constables shall be passed by 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 escape 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." 8. Bare perusal of the aforesaid rules would go to show that holding of inquiry is a rule and dispensing with the enquiry is an exception. Before proceedings to impose any one of the major penalty of dismissal, removal or reduction in rank the departmental inquiry is must. However in certain contingency said rigor 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 dispension of service under Rule 8 (2)(b) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 is sine qua non. 9. This Court in the case of Ravindra Raghav v. State of U.P., 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 and 8 of the said judgment are being extracted below : "6. Paragraphs 6, 7 and 8 of the said judgment are being extracted below : "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, 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 Singhs case (supra). The Apex Court in Jaswant Singhs 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 pari 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. 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 v. Union of India; Shivaji Atmaji Sawani v. State of Maharastra and Ikrammuddin Ahmed Borah v. 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 at 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 Tulsirams 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 departments 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 v. 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. 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 fulfil 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." 10. This Court again in the case of Bhupat Singh Yadav v. State of U.P., 2006 (4) ESC 2303 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. This Court again in the case of Bhupat Singh Yadav v. State of U.P., 2006 (4) ESC 2303 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 v. State of Haryana and others, (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. 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." 11. On the touchstone of the judgments quoted above, order impugned is being looked into. It reflects that Disciplinary Authority has proceeded to mention that he is satisfied that it was not reasonably practicable to hold enquiry. In order to arrive at this conclusion, Disciplinary Authority has proceeded to mention that petitioner being a member of disciplined force, his complicity has been found in case crime No. 1131 of 1997 under Sections 223 and 224, I.P.C., investigation of said case is on going. Disciplinary Authority has further proceeded to mention that petitioner indulged in helping escape of two antisocial elements from police custody. It has also been mentioned that whenever accused persons were brought from jail to Court premises, then petitioner used to indulge in talking to them and it is reflected that he was in conspiracy with them. This fact is further fortified from confidential report. Disciplinary Authority has further proceeded to mention that through his criminal associates, pressure is being exerted on the witnesses. Disciplinary Authority has further proceeded to mention that on account of such activities of petitioner, the image of police force has been tarnished and public confidence in police has been lowered down and habit of the petitioner is not conducive to remain in police force. Information has been received that in future such activities may be repeated and the petitioner would try to take benefit of being in police force, as such Disciplinary Authority has proceeded to dismiss the services of petitioner. 12. The grounds which have been disclosed by the Disciplinary Authority for passing impugned order are not at all sustainable and tenable, rather they are totally vague and evasive grounds, inasmuch as, as far as criminal case is concerned, qua the same investigation is ongoing has been mentioned. Petitioner has categorically mentioned that, he has not at all been charge-sheeted in the said case and he has no concern with the said criminal case in question. The order impugned further proceeds to mention that there is confidential report that petitioner has nexus with criminals, and undue pressure is being exerted on witnesses. Petitioner has categorically mentioned that, he has not at all been charge-sheeted in the said case and he has no concern with the said criminal case in question. The order impugned further proceeds to mention that there is confidential report that petitioner has nexus with criminals, and undue pressure is being exerted on witnesses. These conclusions are not based on any material, whatsoever, as copy of same has not been appended, and on totally on vague and evasive material, services of petitioner have been dispensed with. In paragraph 13 of writ petition, petitioner has categorically stated Bhagwan Singh and Ram Naresh Pandey, who were also suspended along with petitioner, have been reinstated. Qua this paragraph, in counter affidavit, it has been mentioned, in paragraph 15, that in enquiry both these incumbents were found innocent and no charge was found against them proved, and they were reinstated. When regular departmental enquiry was undertaken against other charge sheeted incumbents, then under what circumstances, petitioner has been meted with different treatment, has not at all been explained. Without actually undertaking exercise in the direction of regular departmental proceeding, straightaway presumption has been drawn, that enquiry is not reasonably practicable. Appellate Authority proceeds to mention that in case departmental enquiry would have been undertaken, then statement of persons who had fled away, would have been recorded and as they had fled away, their presence was not possible, in this background, departmental enquiry was not possible. This reasoning was not mentioned by Disciplinary Authority, and same was given by Appellate Authority, unmindful of the fact that on the date when he was deciding appeal, both the accused persons who had fled, had already been arrested, and were in judicial custody. Not only this on one hand enquiry has been dispensed with, and on the other hand in the counter affidavit filed before this Court, in paragraph 11 it has been mentioned that charge sheet was given, enquiry was conducted, opportunity was given and guilt of petitioner was found. Thus totally false affidavit has been filed before this Court. In these circumstances and in this background, opinion formed that it was not reasonably practicable to hold the enquiry is based on the vague and evasive material, and said authority to dispense with the services of petitioner has been colourably exercised, in the facts of present case. Consequently, present writ petition succeeds and is allowed. In these circumstances and in this background, opinion formed that it was not reasonably practicable to hold the enquiry is based on the vague and evasive material, and said authority to dispense with the services of petitioner has been colourably exercised, in the facts of present case. Consequently, present writ petition succeeds and is allowed. Impugned orders dated 26.12.1997, 15.07.1998 and 24.02.1999 are hereby quashed and set aside. However, passing of this order will not prevent the respondents from proceeding against petitioner in accordance with law. 13. No order as to costs. ————