Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 1553 (ALL)

VIRENDRA KUMAR PREMI v. STATE OF UTTAR PRADESH

2008-08-07

TARUN AGARWALA

body2008
JUDGMENT Hon’ble Tarun Agarwala, J.—Heard Sri A.D. Saunders, the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 2. The petitioner is a constable and his services was dispensed with, without holding a fullfledged inquiry, by using the provisions of Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 on the ground that it was not reasonably practicable to hold an inquiry. It transpires that the petitioner had brought the accused to the Civil Court for his appearance in the Court and during the course of the day, the accused made a request that he wanted to ease himself and, at that moment of time, it is alleged that the accused snatched the rope and escaped on a motorcycle which was waiting for him. The petitioner’s services has been dispensed with by an order dated 16.5.2006 by invoking the provision of Rule 8(2)(b) of the Rules of 1991 on the ground that it was not reasonably practicable to hold such an inquiry because the petitioner could influence the witnesses. In my opinion, this is an escape route adopted by the authorities by taking an easy way out from not holding an enquiry. The petitioner is only a Constable and is not holding such a powerful position where he could influence the witnesses. 3. 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.” 4. 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 another v. Tulsiram Patel, AIR 1985 SC 1416 , the Supreme Court held : “The condition precedent for the application of clause (b) 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. “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 Department’s case against the government servant is weak and must fail.” 5. In Tulsiram Patel’s 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.” 6. 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.” 7. In Chief Security Officer and others 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. 8. In Chief Security Officer and others 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. 8. In Jaswant Singh v. State of Punjab and others, (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.” 9. The Supreme Court further held : “The decision to dispense with the departmental inquiry cannot, therefore, be rested solely on the ispe 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 of 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 said 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. Similar view was taken by me in Dharam Pal Singh v. State of U.P. and others, 2005(1) ESC 566 . 11. In my opinion, the charge against the petitioner is such which can be decided if a full-fledged inquiry is held against him under the Rules of 1991. Consequently the invocation of the provisions of Rule 8(2)(b) by the authority was totally arbitrary. In view of the aforesaid decisions, the exercise by the authority of this provision was totally arbitrary. 11. In my opinion, the charge against the petitioner is such which can be decided if a full-fledged inquiry is held against him under the Rules of 1991. Consequently the invocation of the provisions of Rule 8(2)(b) by the authority was totally arbitrary. In view of the aforesaid decisions, the exercise by the authority of this provision was totally arbitrary. Consequently, the impugned order terminating the services of the petitioner cannot be sustained and is quashed. The writ petition is allowed and the matter is remitted to the authority to proceed from the stage prior to the passing of the impugned order and conclude the inquiry within a period of six months from the date of the production of a certified copy of this order. 12. It has been stated at the Bar that prior to the order of dismissal the petitioner was under suspension. Consequently, the petitioner would remain under suspension till the disposal of the inquiry proceedings but for the period from the date of suspension till today, the petitioner will neither be paid the suspension allowance nor any arrears for this period. Final orders on this aspect would also be passed by the authority after the conclusion of the inquiry and upon passing the order of the penalty, if any. ———