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2009 DIGILAW 2555 (ALL)

Krishna Kumar Singh v. State of U. P.

2009-07-14

SHABIHUL HASNAIN

body2009
JUDGMENT : Shabihul Hasnain, J. Heard Sri Amit Bose, learned Counsel for the petitioner and learned standing counsel for the opposite parties. 2. The petitioner has been dismissed from service vide order dated 3.10.2005, passed by Superintendent of Police, Sultanpur under Rule 8(2)(b) of the U.P. Police Officers and the Subordinate Ranks (Punishment and Appeal) Rules, 1991. It is necessary to find out under what circumstances the impugned order has been passed by the Superintendent of Police, Sultanpur, briefly stated facts are as below. 3. The petitioner who was a constable was posted in the District Court, Sultanpur to look after the security of the lock-up of the district court. On 19.9.2005 one accused, namely Mujeeb alias Juggan was brought in the police custody in order to ensure his appearance in the Court of Additional Chief Judicial Magistrate. One constable Ram Dev Rawat had the custody of accused Mujeeb. The accused managed to break free and ran away from the police custody. The first information report was lodged in which besides Mujeeb and the constable Ram Dev Rawat name of the petitioner was also mentioned. It was alleged that while constable Ram Dev Rawat was bringing the accused to the Court, the petitioner left his post of duty and met Ram Dev Rawat alongwith the accused. He is alleged to have told Ram Dev Rawat that Mujeeb was known to him and the said accused has been taken under custody from police station Kurebhar where the petitioner himself has remained posted. He incited constable Ram Dev Rawat to have a cup of tea alongwith accused Mujeeb. It was further alleged that while the petitioner alongwith R. D. Rawat and Mujeeb proceeded towards the tea-stall Mujeeb had occasion to break away from the custody and abscond. It has also come to record that after having tea the trio went to have 'paan' outside the premises of the kutchehry, hence the petitioner plotted and abetted in the crime of making a criminal break the police custody and abscond himself. 4. The Police Superintendent, Sultanpur has passed the dismissal order on these facts and circumstances of the case. 5. The services of the petitioner had been dismissed under Rule 8(2) (b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. 4. The Police Superintendent, Sultanpur has passed the dismissal order on these facts and circumstances of the case. 5. The services of the petitioner had been dismissed 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. 6. The language of the aforesaid rule is similar to the second proviso to Article 311(2) of the Constitution of Union of India and Another Vs. Tulsiram Patel and Others, (1985) 3 SCC 398 , 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. 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. 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 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. 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. 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 impugned order of penalty would stand invalidated. 7. In Chief Security Officer and Others Vs. Singasan Rabi Das, (1991) 1 SCC 729 , the Supreme Court held that there was a total absence of sufficient material of 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 Vs. 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. The Supreme Court further held: The decision to dispense with the departmental inquiry cannot, therefore, be rested solely on the ipse dixit 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. 9. 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 inquired through a departmental enquiry. It is not a case where it could be said that it was not reasonably practicable to hold an enquiry. The charges so levelled are such, that it can easily be inquired through a departmental enquiry. It is not a case where it could be said that it was not reasonably practicable to hold an enquiry. The reasons given for dispensing with the enquiry was wholly arbitrary and irrelevant. I am of the view that the disciplinary authority has misused its powers. Similar view was taken in Dharam Pal Singh Vs. State of U.P. and Others, (2005) 5 AWC 3973 10. 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. The invocation of the provisions of Rule 8(2)(b) by the authority of this provision was totally arbitrary. 11. Consequently, the impugned dismissal order dated 3.10.2005 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.