JUDGMENT Hon’ble Krishna Murari, J.—Heard learned counsel for the petitioner and learned Standing Counsel. 2. Pleadings have been exchanged between the parties. With the consent of the learned counsel for the parties, the petition is being finally disposed of at this stage. 3. The facts are that the petitioner, who was working as a Constable in the U.P. Police Force, was dismissed from service vide order dated 18th June, 2005 passed by Senior Superintendent of Police, Kanpur Nagar, respondent No. 3 without holding any enquiry by invoking the power conferred under proviso to Rule 8 (2)(b) of the U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 (for short the Rules). The petitioner went up in appeal. The appellate authority vide order dated 20th of August, 2005 allowed the appeal in part and set aside the order dated 18th of June, 2005 dismissing the petitioner from service on the ground that the order was passed without recording any reason as to why it was not practicable to hold the enquiry and directed the Senior Superintendent of Police to conduct disciplinary enquiry against the petitioner and thereafter pass suitable orders. However, it was further directed that the petitioner will not be entitled to get any salary for the period he has remained out of service, however, the said period shall be counted for other benefits. It appears that respondent No. 3, Senior Superintendent of Police again invoking the powers of Rule 8 (2)(b) of the Rules passed the order of dismissal dated 2.12.2005 without recording any reason. A perusal of the order dated 2.12.2005 as well as earlier order dated 18th June, 2005 goes to show that they are in verbatim, copy of each other. The petitioner again went up in appeal, which was dismissed vide order dated 22nd March, 2006. Revision filed by the petitioner also came to be dismissed vide order dated 28th September, 2006. Aggrieved, the petitioner has approached this Court. 4. A perusal of the impugned orders goes to show that petitioner was dismissed from service on the basis of some report submitted by Superintendent of Police (Traffic) that the petitioner went on 5 days’ leave on 1.1.2005, but remained absent unauthorizedly and he is habitual of absenting himself from duty and in past also on various occasions, he absented himself without any leave application. 5. 5. It has been contended by the learned counsel for the petitioner that the proviso to Rule 8 (2)(b) of the Rules empowers the authority to dispense with the disciplinary enquiry when he finds that it is not practicable to conduct the same, but he is required to record reasons for the same. It has further been submitted that the petitioner had pointed out in his appeal as well as in revision that on account of certain mental disease for which he underwent treatment in U.H.M. Hospital, Kanpur as well as L.L.R. Hospital, Kanpur on various days because of which he could not report for duty and the leave application along with the medical certificates was duly forwarded to the authorities concerned by means of registered post. It has further been urged that in case an opportunity would have been given to the petitioner, he would have demonstrated, on the basis of the evidence that he could not report for duty on account of illness and the fact was duly informed to the authorities by means of application sent by registered post. 6. In reply, it has been submitted by the learned Standing Counsel that since the petitioner is habitual of absenting himself from duty without any application, as such, was unfit to be retained in police force, and thus, his services have rightly been dismissed and impugned orders do not call for any interference. 7. I have considered the arguments advanced on behalf of the learned counsel for the parties and perused the record. 8. It is well settled legal position that when the disciplinary authority is satisfied that there is sufficient reason to dispense with the regular departmental proceeding, in that event, he can invoke the power conferred by proviso to Rule 8 (2)(b) of the Rules, which empowers the authority to award major punishment, in case, he is satisfied that for reasons to be recorded in writing, it is not reasonably practicable to hold an enquiry. Second proviso to Rule 8 (2)(b) of the Rules is pari materia with the second proviso to Article 311 of the Constitution of India. The Apex Court in Jaswant Singh v. State of Punjab and others, (1991) 1 SCC 362 has held as under : “........................ Second proviso to Rule 8 (2)(b) of the Rules is pari materia with the second proviso to Article 311 of the Constitution of India. The Apex Court in Jaswant Singh v. State of Punjab and others, (1991) 1 SCC 362 has held as under : “........................ 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 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 enquiry. This is clear from the following observation at page 270 of Tulsiram case (SCC p. 504, para 130) “A disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry or because the department’s case against the government servant is weak and must fail.” The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse 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 or caprice of the concerned officer.” 9. Similar view was reiterated in Sudesh Kumar v. State of Haryana and others, (2005) 11 SCC 525 wherein the Apex Court observed as under : “It is now established principle of law that an enquiry under Article 311(2) is a rule and dispensing with the enquiry is an exception. The authority dispensing with the enquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an enquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an enquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an enquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the enquiry. This is no ground for dispensing with the enquiry. On the other hand, it is not disputed that, by order dated 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the enquiry. A reasonable opportunity of hearing in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if enquiry is held where he has been informed of the charges levelled against him. In the instant case, the mandate of Article 311(2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant.” 10. Same view has been taken by this Court in Special Appeal No.1122 of 2001 (State of U.P. and others v. Chandrika Prasad) decided on 19th October, 2005 as well as in Special Appeal No. 647 of 2009, State of U.P. and others v. Santosh Kumar Gupta, wherein the dismissal order dispensing with the enquiry, was held illegal by this Court for lack of cogent reasons though liberty was granted to the authorities to hold regular enquiry in accordance with law. 11. The law, thus, stands settled that it is only on a subjective satisfaction based on material on record, the authority after recording reason why it is not practicable to hold the disciplinary enquiry, can invoke the power conferred by proviso to Rule 8 (2) (b) of the Rules and dispense with the regular departmental enquiry. 12. 11. The law, thus, stands settled that it is only on a subjective satisfaction based on material on record, the authority after recording reason why it is not practicable to hold the disciplinary enquiry, can invoke the power conferred by proviso to Rule 8 (2) (b) of the Rules and dispense with the regular departmental enquiry. 12. The reasons disclosed in the termination orders are that the petitioner unauthorisedly absented from duty without leave and is habitual of absenting from duty and he has been awarded censure entry and was earlier placed under suspension, as such, is not fit to be retained in the force. The aforesaid can be reason for terminating the service, but only after an opportunity in proceedings in case the charges stand established. However, the same cannot be said to be the reason for dispensing the regular departmental enquiry. 13. In view of the settled legal position by the decisions referred to above, the impugned orders passed by the authorities without recording any reason for dispensing with the disciplinary enquiry against the petitioner, are not liable to be sustained and are hereby quashed. Writ petition stands allowed. It is, however, open to the authorities concerned to hold regular disciplinary proceedings against the petitioner in accordance with law and the provisions contained in the Rules. ————