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2008 DIGILAW 840 (ALL)

SHIV RAM SINGH v. STATE OF U P

2008-04-14

PANKAJ MITHAL

body2008
PANKAJ MITHAL, J. ( 1 ) PETITIONER, a head constable in U. P. Police, has been straight away dismissed from service by the impugned order dated 31. 1. 2008 on account of an incident in which an accused had escaped from his custody while returning from the Court on the same very day holding that it is not reasonably practicable to conduct an inquiry against him before dismissing him from service. ( 2 ) HEARD learned Counsel for the petitioner and the Standing Counsel for the respondents. ( 3 ) THE contention of the learned Counsel for the petitioner is that not holding of an inquiry before imposing a major punishment is totally contrary to the principles of natural justice and even if such an inquiry is to be dispensed with at least the order should contain reasons for recording such satisfaction as to why it is not practically possible to hold such an inquiry. ( 4 ) LEARNED Standing Counsel who was given time on the earlier occasion to seek instructions, on the basis of instructions accepts that the order impugned does not contain any such reasons and that the satisfaction in this regard is also not recorded even on the concerned file. ( 5 ) THE matter with regard to imposition of punishment of dismissal of a police employee is governed by the provisions of U. P. Police Officer of subordinate Ranks (Punishment and Appeal) Rules, 1991. Rule 8 of the aforesaid rules is relevant and as such is reproduced herein below for convenience :- "8. Dismissal and removal.- (1) No police officer shall be dismissed or removed from service by an authority subordinate to the appointing authority. Rule 8 of the aforesaid rules is relevant and as such is reproduced herein below for convenience :- "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. (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. " ( 6 ) THE aforesaid Rule is analogous and perimateria with Article 311 of the Constitution of India and provides that normally no punitive order in the shape of dismissal, removal or reduction in rank would be passed without holding a disciplinary inquiry against the delinquent employee. However, in certain circumstances, exception to the above general rule have been provided i. e. where action is taken pursuant to his conviction on a criminal charge; or where the authority is satisfied that for some reason to be recorded in writing it is not reasonably practicable to hold such an inquiry; or where the Government is satisfied that such inquiry is not in the interest of the security of the State. ( 7 ) NOW, therefore, unless the petitioners case falls in any of the above three exceptional circumstances he cannot be dismissed without holding an inquiry. According the order impugned it has been passed invoking powers under section 8 (2) (b) i. e. on the satisfaction that it is not reasonably practicable to hold an inquiry against him before dismissal/removal. In the case of Union of india v. Tulsi Ram Patel, 1985 51 FLR (SC) 362 it has been held that before dispensing an inquiry it is not only necessary to be satisfied that holding of an inquiry is not reasonably practicable but it is also mandatory to record in writing reasons in support of such satisfaction. Such reasons are completely lacking in the impugned order. ( 8 ) A Division Bench of this Court while considering with these very rules in State of U. P. and others v. Chandrika Prasad, 2006 1 ESC 374 has categorically held that while dispensing with disciplinary inquiry before imposing major punishment, the authority concerned is obliged to record reasons about the practicability of not holding a disciplinary inquiry and if such reasons are not recorded the order would stand vitiated. ( 9 ) A similar view has been expressed in Motilal v. State of U. P. and others, 2008 2 ADJ 591 and it has held that principles of natural justice are pulse beet of the constitution of India and therefore, depriving an employee of his right of hearing affects his civil rights or the right to his livelihood and as such even if there are statutory provisions denying right of hearing such taking away of the rights by the State must be based on material on record and must be informed by reasons. Admittedly, no reasons in support of the satisfaction recorded for dispensing with the inquiry have been recorded in the instant case. ( 10 ) IN view of the fact that no reasons have been recorded by the authority concerned for dispensing with an inquiry under section 8 (2) (b), the matter is covered by the aforesaid decisions and as such the writ petition deserves to be allowed. A writ of certiorari is issued quashing the impugned order dated 31. 1. ( 10 ) IN view of the fact that no reasons have been recorded by the authority concerned for dispensing with an inquiry under section 8 (2) (b), the matter is covered by the aforesaid decisions and as such the writ petition deserves to be allowed. A writ of certiorari is issued quashing the impugned order dated 31. 1. 2008 (Annexure-1 to the writ petition) with liberty to the respondents to pass a fresh order in accordance with law or to proceed against the petitioner departmentally in accordance with law before imposing any punishment. ( 11 ) PETITION allowed. No orders as to costs. Petition Allowed. .