JUDGMENT Honble Sunil Ambwani, J.—Heard Shri Vijay Gautam, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents. 2. The petitioner-Constable No. 444, Civil Police Mahendra Singh has filed this writ petition for a writ of certiorari to quash the orders dated 21.11.2007 passed by the Senior Superintendent of Police, Kanpur Nagar under Rule 8 (2)(b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short the Rules of 1991); the order of the Deputy Inspector General of Police, Kanpur Range, Kanpur dated 30.6.2008 and the order dated 25.9.2008 passed by the Inspector General of Police, Kanpur Zone, Kanpur dismissing the revision. The petitioner has also prayed for writ of mandamus for direction to reinstate him in service with regular salary and all consequential benefits and has also prayed for arrears of salary. 3. The order by which the Senior Superintendent of Police, Kanpur Nagar, as a competent authority under the Rules of 1991 has dismissed the petitioner, dispensing with departmental enquiry on the ground that it is not reasonably practicable to hold the enquiry. It is stated in the order, that on 20.11.2007 the petitioner along with Constable 1039 Civil Police Umesh Prasad Gupta were relieved in pursuance of the order of the Juvenile Justice Board, Kanpur Nagar dated 16.11.2007 by G.D. Entry No.19 at 9.00 a.m. on 20.11.2007 from the Juvenile Home, Kidwai Nagar, Kanpur with juvenile accused Raju son of Somaia for medical examination to ascertain his age. They were responsible to produce the child before the Chief Medical Officer, UHM Hospital, Kanpur for examination, and thereafter to take him back to the Government-Home, Kidvai Nagar, Kanpur. The constables committed gross negligence and impropriety in allowing an opportunity to the child accused to escape. They were physically more stronger than the child and were given handcuffs and rope to keep him under control. The Senior Superintendent of Police has observed that the negligence has not only tarnished the image of the police department but has also affected the credibility of the department in the estimation of the general public. He has thereafter observed that the petitioner is directly responsible for allowing an opportunity to the child accused to escape from police custody, and thus he find it justifiable to adopt the procedure prescribed under Rule 8 (2)(b) of the Rules of 1991 to punish him. He has thereafter observed that the petitioner is directly responsible for allowing an opportunity to the child accused to escape from police custody, and thus he find it justifiable to adopt the procedure prescribed under Rule 8 (2)(b) of the Rules of 1991 to punish him. In his opinion recorded in the order passed under Rule 8 (2)(b) of the Rules of 1991, he states that if the competent authority is satisfied for the reasons recorded in the order that it is not reasonably practicable to hold an enquiry before dismissal, removal or reversion of rank of the officer, the competent authority can exercise the powers. In the present case after deeply examining the matter he has arrived at a conclusion that the serious irregularity committed by the petitioner in which he had intentionally helped the child accused to escape does not make it reasonably practicable to hold a departmental enquiry. 4. The Deputy Inspector General of Police as appellate authority and the Inspector General of Police as revisionary authority have upheld the orders and the exercise of powers by the Senior Superintendent of Police under Rule 8 (2)(b) of the Rules of 1991. .................................................................................. "Clause (2) of Article 311 of the Constitution of India provides that no person who holds a civil post under the Union or the State “shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges”. The second proviso to clause (2), however, specifies three situations in which the requirements in Clause (2) do not apply. Clause (b) of the second proviso states that “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 an inquiry”, the enquiry and the opportunity provided by clause (2) can be dispensed with and punishment imposed straightaway. Clause (3) of Article 311 is a continuation of clause (b) of the second proviso. Clause (3) of Article 311 is a continuation of clause (b) of the second proviso. Clause (3) says, “if , in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such an inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” 5. In Union of India v. Tulsiram Patel, AIR 1985 SC 1416 , the Constitution Bench of the Supreme Court held in paragraphs 130, 131, 132, 133, 134, 135, 136, 136-A and 137 as follows : "130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are “not reasonably practicable” and not “impracticable”. According to the Oxford English Dictionary “practicable” means “Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible”. Webster’s Third New International Dictionary defines the word “practicable” inter alia as meaning “possible to practice or perform : capable of being put into practice, done or accomplished: feasible”. Further, the words used are not, “not practicable” but “not reasonably practicable”. Webster’s Third New International Dictionary defines the word “reasonably” as “in a reasonable manner: to a fairly sufficient extent”. 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. ‘It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. 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. ‘It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together, with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or, together with, or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. 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. The finality given to the decision of the disciplinary authority by Article 311(3) is not finding upon the Court so far as its power of judicial review is concerned and in such a case the Court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India, (1984) 3 SCR 302 : ( AIR 1984 SC 1356 ) is an instance in point. The case of Arjun Chaubey v. Union of India, (1984) 3 SCR 302 : ( AIR 1984 SC 1356 ) is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was, being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter. 131. It was submitted that where a delinquent government servant so terrorizes the disciplinary authority that neither that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent government servant either by himself or along with or through others makes the holding of an inquiry not reasonably practicable. 132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. 132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word “inquiry” in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2). 133. 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. 134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore find a place in the final order. It would be usual, to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore find a place in the final order. It would be usual, to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances. 135. It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned government servant to enable him to challenge the validity of the reasons in a departmental appeal or before a court of law and that failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would however, be better for the disciplinary authority to communicate to the government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the government servant and the matter comes to the court, the court can direct the reasons to be produced, and furnished to the government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons. 136. It was next submitted that though clause (b) of the second proviso excludes an inquiry into the charges made against a government servant, it does not exclude an inquiry preceding it, namely, an inquiry into whether the disciplinary inquiry should be dispensed with or not, and that in such a preliminary inquiry the government servant should be given an opportunity of hearing by issuing to him a notice to show cause why the inquiry should not be dispensed with so as to enable him to satisfy the disciplinary authority that it would be reasonably practicable to hold the inquiry. This argument is illogical and is a contradiction in terms. If an inquiry into the charges against a government servant is not reasonably practicable, it stands to reason that an inquiry into the question whether the disciplinary inquiry should be dispensed with or not is equally not reasonably practicable. 136-A. A government servant who has been dismissed, removed or reduced in rank by applying to his case clause (b) or an analogous provision of a service rule is not wholly without a remedy. 136-A. A government servant who has been dismissed, removed or reduced in rank by applying to his case clause (b) or an analogous provision of a service rule is not wholly without a remedy. As pointed out earlier while dealing with the various service rules, he can claim in a departmental appeal or revision that an inquiry be held with respect to the charges on which the penalty of dismissal, removal or reduction in rank has been imposed upon him unless the same or a similar situation prevails at the time of hearing of the appeal or revision application. If the same situation is continuing or a similar situation arises, it would not then be reasonably practicable to hold an inquiry at the time of the hearing of the appeal or revision. Though in such a case as the government servant if dismissed or removed from service, is not continuing in service and it reduced in rank, is continuing in service, with such reduced rank, no prejudice could be caused to the Government or the Department if the hearing of an appeal or revision application, as the case may be, is postponed for a reasonable time. 137. Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well-established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authoritys decision that it was not reasonably practicable to hold the inquiry is not binding upon the Court. The Court will also examine the charge of malafides, if any made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. The Court will also examine the charge of malafides, if any made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. 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. In considering the relevancy of the reasons given by the disciplinary authority the Court will not, however, sit in judgment over them like a Court of first appeal. In order to decide whether the reasons are germane to clause (b), the Court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a Court room, removed in time, from the situation in question. Where two views are possible, the Court will decline to interfere." 6. Rule 8 of the U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991 (in short the Rules of 1991) provides for dismissal and removal of police officers in the State of U.P. Rule 8 is quoted as below : "8. Dismissal and removal.—(1) No police officer shall be dismissed or removed from service by an authority subordinate to the appointing authority. 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 dismissed unless the punishing authority for reasons to be recorded in writing awards a lesser 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.” 7. Rule 8 is pari materia of Art. 311 (1) and (2) of the Constitution of India. The normal rule is that no punitive action entailing consequences of dismissal, removal or reduction of rank would be taken without holding a disciplinary enquiry against a member of a civil service unless and until he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges. The normal rule is that no punitive action entailing consequences of dismissal, removal or reduction of rank would be taken without holding a disciplinary enquiry against a member of a civil service unless and until he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges. The exceptions given in Art. 311 (2) of the Constitution of India embodied in Rule 8 (2) are in respect of certain cases, where holding of departmental enquiry has been dispensed with on the conduct, which is led to conviction of the person on a criminal charge, where authority empowered is satisfied that for some reasons to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiries; or where the government is satisfied that in the interest of the security of the State, it is not expedient to hold such enquiry. In Chandigarh Administration, Union Territory, Chandigarh v. Ajay Manchanda, AIR 1996 SC 3152 the Supreme Court held that though it is not necessary that reasons must find in place in the order of punishment, the authority must produce the same, when called upon to do by the Court. 8. The Division Bench of this Court have followed the aforesaid principles of law laid down by the Supreme Court in State of U.P. v. Chandrika Prasad, 2006 (1) ESC 374 (All) (DB); Pushpendra (Cp) 2187 and another v. State of U.P. and another, 2008 (3) ADJ 689 (DB) and Awadhesh Kumar v. State of U.P., Special Appeal No. 217 of 2008 decided on 16.7.2008. In this case the reasons given in the order, in finding, that it is not reasonably practicable to hold an enquiry are based only upon gravity of the incident. The Senior Superintendent of Police has come to a conclusion that the petitioner had deliberately and intentionally given an opportunity to the child accused to escape. He did not exercise the reasonable care and used the handcuff and rope provided to them. He was physically powerful than the child in their custody and that he could have used force, raised alarm and could have made efforts to catch them. These acts on its own were treated as sufficient to dispense with departmental enquiry. He did not exercise the reasonable care and used the handcuff and rope provided to them. He was physically powerful than the child in their custody and that he could have used force, raised alarm and could have made efforts to catch them. These acts on its own were treated as sufficient to dispense with departmental enquiry. The order also mentions that in 26 years of his service the petitioner has been punished seven times of minor penalties and has been awarded censure entry. Although the service record of the petitioner has not been found to be a reason to dispense with the departmental enquiry, the recital of the facts in the order demonstrates that authority took into account the service records of the petitioner in awarding him punishment of dismissal from service. 9. Shri Vijay Gautam, learned counsel for the petitioner submits that the Senior Superintendent of Police has drawn conclusions about the guilt of the petitioner without making any preliminary enquiry, or allowing the petitioner an opportunity to explain the circumstances in which the child had escaped. The matter called for framing of charges and to allow opportunity to the petitioner to explain the circumstances in which the delinquent child escaped. On the principles of law laid down by Supreme Court, the departmental enquiry in the present case could not be dispensed with. Shri Gautam submits that neither the charge nor the circumstances were such against the petitioner was not such on which it could be said that it was not reasonably practicable to hold an enquiry. 10. Learned Standing Counsel submits that the petitioner along with another constable was under duty to keep the child in their custody and to take him back to the protection home. The fact that the petitioners having physical superiority and authority with handcuff and rope could not prevent escape was sufficient to draw conclusions and to record reasons that it was not reasonably practicable to hold a departmental enquiry. 11. I find substance in the contention of learned counsel for the petitioner that the escape of an accused from the custody of constables, who are required to produce him for examination in the hospital, would not by itself be a ground to dispense with the departmental enquiry. 11. I find substance in the contention of learned counsel for the petitioner that the escape of an accused from the custody of constables, who are required to produce him for examination in the hospital, would not by itself be a ground to dispense with the departmental enquiry. The charge of negligence in performance of duties in which a delinquent child prisoner has escaped from the custody of the constables could not be a reason unless the facts and circumstances were such, which may has lead the disciplinary authority to draw such presumption. It is not a case, where a hardened criminal terrorists or a known dacoit has escaped from the custody of the police. The circumstances in which the child escaped from the custody of the constables could be many, and may have been explained by the petitioner. The presumption drawn by the Senior Superintendent of Police that the petitioner deliberately and intentionally allowed the child to escape, are not supported by any evidence, material or fact finding enquiry. He has drawn the conclusions of the complicity of the petitioner only on the ground that the petitioner and his fellow constable were physically stronger than the child in their custody and that they were provided with handcuffs and rope to tie him down. 12. The observation in the order of the disciplinary authority that Rule 4 (a) of the Rules 1991 provides for major penalty on the misconduct and allowing a prisoner to escape, is wholly misplaced. Such punishment can be awarded only after the police officer is found guilty of negligence in allowing the prisoner to escape. The findings in this regard can be given only after a departmental enquiry. 13. The Supreme Court and this Court have repeatedly held that whenever power under Rule 8 (2)(b) of the Rules of 1991 is to be exercised, the disciplinary authority must be very cautious and must record satisfaction on the material collected by him in writing and give reasons, which may be subject to judicial review about the necessity in public interest to dispense with the enquiry and to dismiss the delinquent employee. In the present case the Senior Superintendent of Police, Kanpur Nagar has committed patent error in recording such satisfaction. The facts and circumstances do not justify the reasons and the conclusions drawn by him. 14. The writ petition is allowed. In the present case the Senior Superintendent of Police, Kanpur Nagar has committed patent error in recording such satisfaction. The facts and circumstances do not justify the reasons and the conclusions drawn by him. 14. The writ petition is allowed. The orders dated 21.11.2007, 30.6.2008 and 25.9.2008 are set aside. The respondents are directed to reinstate the petitioner with all consequential benefits, and with liberty to initiate departmental enquiry against him in accordance with Rules of 1991. ————