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2008 DIGILAW 2169 (ALL)

BHARAT SINGH v. STATE OF U. P

2008-10-22

SANJAY MISRA

body2008
JUDGMENT Honble Sanjay Misra, J.—Heard Ms. Rashmi Tripathi learned counsel for the petitioner and learned Standing Counsel for the respondents. Rejoinder affidavit has been filed today by the petitioner. Let the same be taken on record. 2. The petitioner had filed this writ petition in the year 2000 against the order of termination dated 17.5.2000 passed by the Senior Superintendent of Police, Meerut. During the pendency of this writ petition, admittedly the petitioner has died and has been duly substituted by his heirs and legal representatives. 3. Learned counsel for the respondents has at the outset raised a preliminary objection about the maintainability of this writ petition in view of the alternative remedy available to the petitioner against the impugned order under the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 to say that the petitioner had remedy under Rule 20 of filing an appeal as also under Rule 23 of filing a revision against such order. 4. Learned counsel for the petitioner has resisted to the said preliminary objection by saying that when the principles of natural justice are grossly violated, the alternative remedy is not an absolute bar for maintaining a writ petition under Article 226 of the Constitution of India. She has referred to the decision of the Hon’ble apex Court in the case of Whirlpool Corporation Ltd. v. Registrar of Trade Marks and others, (1998) 8 SCC 1 . While referring to the law laid down by the Hon’ble Apex Court, learned counsel for the petitioner has referred to the provisions of the Punishment Rules to state that a procedure has been provided under Rule 14 for conducting departmental proceedings and in case the punishment is a major penalty like, dismissal or removal from service, then it has to be conducted in accordance with the procedure prescribed in Appendix (A) to the Rules of 1991. The said procedure according to learned counsel for the petitioner is that after institution of a formal enquiry, the enquiry has to be instituted by informing in writing of the grounds on which it is proposed to take action and such officer will be afforded adequate opportunity of defending himself. The said procedure according to learned counsel for the petitioner is that after institution of a formal enquiry, the enquiry has to be instituted by informing in writing of the grounds on which it is proposed to take action and such officer will be afforded adequate opportunity of defending himself. It also provides for framing of definite charges under Form 1 appended to the Rules to be communicated to the officer and he shall be required to put in a written statement of his defence and state whether he requires to be heard in person. The enquiry officer has to conduct the proceedings after obtaining the evidence oral or documentary, as the case may be and permitting the officer of his right to cross-examine the witnesses and produce his own witnesses. According to learned counsel for the petitioner, none of the said procedure as provided under Rule 14 of 1991 Rules were followed and in turn, the respondent No. 3 has passed the termination order by invoking his powers under Rule 8(2)(b) of the 1991 Rules. She states that a perusal of the impugned order itself indicates that there are no reasons given for dispensing with the enquiry contemplated under Rule 14 of the 1991 Rules. It is on the basis of the aforesaid circumstances that the petitioner states that this writ petition is maintainable and he should not be relegated to avail the alternative remedy of appeal or revision as provided under Rules 20 and 23 of the 1991 Rules. 5. Having considered the submission of learned counsel for the petitioner as also learned Standing Counsel and perused the records, it is true that the petitioner has approached this Court against an order of termination by bye-passing the remedy of appeal and revision provided under the Rules. However, there are two reasons why the petitioner may not be relegated to avail the alternative remedy. Firstly, because the writ petition was entertained in the year 2000 and the respondents have filed their counter affidavits to the writ petition. After affidavits having been exchanged between the parties and upon a lapse of eight years, it would not be appropriate to relegate the petitioner to avail the alternative remedy at this stage of the proceedings, particularly when no issues of disputed facts is involved in this case. After affidavits having been exchanged between the parties and upon a lapse of eight years, it would not be appropriate to relegate the petitioner to avail the alternative remedy at this stage of the proceedings, particularly when no issues of disputed facts is involved in this case. In State of U.P. v. U.P. Rajya Khanij Vikas Nigam, JT 2008(6) SC 489, the Hon’ble Supreme Court clearly laid down that “Normally when such disputed questions of fact come up for consideration and are required to be answered, appropriate forum would not be a writ court.........” Such issue is not to be decided in this writ petition and there are no disputed questions of fact required to be considered. The second reason is that from a perusal of the impugned order, it is quite apparent that the procedure prescribed under Rule 14 of the Rules has been violated by the authority while terminating the services of the petitioner. It is for that purpose that the writ petition was entertained directly in the year 2000. Consequently, in view of the law laid down by the Hon’ble Apex Court in the case of Whirlpool Corporation Ltd. (supra), the preliminary objection raised by learned counsel for the respondents cannot be accepted since alternative remedy is no bar in case of infringement of fundamental rights enshrined in Part III of the Constitution of India. The Rules of 1991 have provided for the procedure in Rule 14. Such rules have been framed under the Police Act 1861 and therefore have statutory force. 6. Insofar as the merit of the claim of the petitioner is concerned, the impugned order dated 17.5.2000 passed by Senior Superintendent of Police, Meerut is available as Annexure 1 to the writ petition. The reason for dispensing with the enquiry and exercising his powers under Rule 8(2)(b) of the 1991 Rules have been given in the penultimate paragraph of the impugned order. The reason for dispensing with the enquiry and exercising his powers under Rule 8(2)(b) of the 1991 Rules have been given in the penultimate paragraph of the impugned order. The said paragraph itself is quoted hereunder : vr% eS bl fu"d"kZ ij igqWprk gWw fd vkj 507 Ukk0 iq0 Hkjr flag onhZ ifgudj kjkc ihus o drZO; ikyu esa ykijokgh izekn f’kfFkyrk ,oa vdeZ.;rk cjrus dk iw.kZr% vH;RFk gks pqdk gS ftlesa lq/kkj dh dksbZ lEHkkouk ugh gSA bl iqfyl dehZ ds dk;Zdykiksa ls iqfyl tSls vuq’kkflr cy ds vU; lnL;ks ij foijhr izHkko iMus dh izcy lEHkkouk gSA bl izdkj bl vkj>h dk iqfyl foHkkx esa cus jguk iqfyl foHkkx o tufgr esa o jktfgr esa ugh gSA 7. From the aforesaid circumstances, it appears that the reason for dispensing with the enquiry was that when the petitioner was found in an intoxicated state during his duty, he has flouted the discipline of the disciplined force and therefore, he is not required to be permitted to continue in the force otherwise it would have a demoralizing effect on the other police personnels. 8. Insofar as the provision of Rule 8(2)(b) is concerned, it clearly provides as under : “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 the authority in writing, it is not reasonably practicable to hold such an enquiry.” 9. From the aforesaid provision, it has to be recorded by the authority that he is satisfied that it is not reasonably practicable to hold such enquiry and the satisfaction must be on some reason to be recorded by him in writing. The Hon’ble Apex Court in the case of Major Radha Krishan v. Union of India and others, (1996) 3 SCC 507 was considering a case of termination of service of an Army Personnel wherein under Rule 14, a similar provision was provided. The Hon’ble Apex Court while considering the said provision relating to reasonably practicable to give the officer an opportunity of showing cause has recorded as under : " Impracticability’ is a concept different from ’impossibility’ for while the latter is absolute, the former introduces at all events some degree of reason and involves some regard for practice. The Hon’ble Apex Court while considering the said provision relating to reasonably practicable to give the officer an opportunity of showing cause has recorded as under : " Impracticability’ is a concept different from ’impossibility’ for while the latter is absolute, the former introduces at all events some degree of reason and involves some regard for practice. According to Webster’s Third New International Dictionary impracticable’ means not practicable incapable of being performed or accomplished by the means employed or at command. Impracticable’ presupposes that the action is possible’ but owing to certain practical difficulties or other reasons it is incapable of being performed. The same principle will equally apply to satisfy the test of inexpedient’ as it means not expedient; disadvantageous in the circumstances, inadvisable, impolitic." 10. From the aforesaid, it is quite clear that the authority has to for some reason to be recorded in writing be satisfied that it is not reasonably practicable to hold such an enquiry. The concept of impracticability is a concept quite different from impossibility as has been clearly laid down by the Hon’ble Apex Court. It is in view of the aforesaid circumstances that the reason given in the impugned order for dispensing with the enquiry and not holding it while terminating the services of the petitioner that it has to be adjudged. 11. From the reason given in the impugned order and as quoted above, there is no such satisfaction that it is not reasonably practicable to hold an enquiry against the charge levelled against the petitioner. The gravity of the charge and the view that it is not for the good of the police force for the petitioner to remain therein is not a reason to hold that it was not reasonably practicable to hold an enquiry into the charges. The impugned order therefore does not give the reason for satisfaction to record that it is not reasonably practicable to hold an enquiry against the petitioner. 12. For the aforesaid reason, the impugned order cannot be sustained, it being not only violative of the principles of natural justice but has also denied the petitioner an opportunity to defend himself in an enquiry which in the absence of valid reasons for not holding the enquiry, ought to have been conducted under Rule 14 of the 1991 Rules. As such, the impugned order dated 17.5.2000 is set aside. 13. As such, the impugned order dated 17.5.2000 is set aside. 13. Since the petitioner had admittedly died on 11.5.2000 during the pendency of this writ petition, the question of granting liberty to the State Respondents to conduct an enquiry in accordance with the Rules does not arise. On the same ground, as the heirs and legal representatives of the petitioner are available on record, the question of reinstatement does not arise and therefore, the matter is remitted back to respondent No. 3 Senior Superintendent of Police to pass orders in accordance with law with respect to the arrears of salary of the deceased petitioner and any other consequential benefits to which he would have been entitled had he not been terminated illegally by the impugned order. The respondent No. 3 shall pass orders in accordance with law within a period of three months from the date the petitioners file a certified copy of this order before him and communicate the same to the petitioner forthwith. 14. The writ petition is accordingly allowed. No order is passed as to costs. ————