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2009 DIGILAW 3740 (ALL)

BARKHU RAM v. STATE OF U. P.

2009-12-14

KRISHNA MURARI

body2009
JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri Vijay Gautam learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. The petitioner who is constable in civil police has filed this petition for a writ of certiorari to quash the order dated 20.8.2008 passed by the Superintendent of Police, Azamgarh dismissing him from service exercising powers conferred by Rule 8(2)(b) of the U.P. Police Officers of Sub-ordinate Ranks (Punishment & Appeal) Rules, 1991 (hereinafter referred to as ‘Rules of 1991’). Writ of mandamus has also been prayed for to command the respondents to pay all consequential benefits including arrears of salary. The order of dismissal was passed by the Superintendent of Police dispensing with the departmental inquiry on the ground that it was not reasonably practicable to hold the inquiry for the reason that the petitioner was earlier suspended on the allegation of some scuffle between him and Om prakash on 20.5.2003 and was later on reinstated. He again misbehaved with the clerk and other assistant clerks in the department for which a case was registered against him under Sections 352, 504 and 506, I.P.C. read with Section 7 of the Criminal Law Amendment Act and Section 29 of the Police Act and he was arrested and sent to jail. Further allegations are that on 11.5.2007 he misbehaved with the Additional Superintendent of Police and was again suspended and was reinstated on 14.9.2007. On 18.12.2007 he again misbehaved with A.S.I. for which he was awarded a censor entry to be recorded in his service record. It is further stated in the order that on 10.6.2008 he was found wandering in a confused state near the Chief Minister’s residence. He was sent for medical examination and was diagnosed to be suffering from mental disease and since he is habitual of misbehaving with other police personnel his retention in public service shall tarnish the image of the police force in the eyes of general public. 3. Learned counsel for the petitioner submitted that the order of dismissal from the service is arbitrary, discriminatory and has been passed in violation of the principle of natural justice. It has further been submitted that no reason has been assigned in the order for dispensing with the departmental inquiry nor there is any material brought on record in the counter affidavit which may go to show it was not reasonably practicable to hold inquiry. It has further been submitted that no reason has been assigned in the order for dispensing with the departmental inquiry nor there is any material brought on record in the counter affidavit which may go to show it was not reasonably practicable to hold inquiry. It has further been pointed out by learned counsel for the petitioner that the petitioner was admitted in the mental hospital at Varanasi on 17.1.2008 by the respondents authorities and was treated for mental illness and the Visitors Board of the Hospital declared him to be mentally fit on 12.9.2008 and the Director and Chief Superintendent of Mental Hospital Varanasi vide letter dated 7.10.2008 informed the Superintendent of Police, Azamgarh that the petitioner has been declared fit by the Medical Board and has been discharged but the impugned order was passed on 20.8.2008 much before the petitioner was discharged from the hospital. 4. The sole question for consideration in the case is as to whether the order of dismissal fulfills the conditions precedent before passing the order prescribed by the Rules of 1991. The relevant Rule 8 of Rules 1991 reads as under : "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. 5. The aforesaid Rule (8) is pari materia with Article 311(1) & (2) of the Constitution of India which confers constitutional protection upon a person who is a member of civil service of the Union or the State. 6. 5. The aforesaid Rule (8) is pari materia with Article 311(1) & (2) of the Constitution of India which confers constitutional protection upon a person who is a member of civil service of the Union or the State. 6. 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 an incumbent unless and until he has been informed of the charges and provided a reasonable opportunity of being heard in respect of those charges. However, the second proviso to the Article 311(2) carves exception in respect of certain cases where holding of departmental inquiry would not be possible may be either due to not being reasonably practicable or holding any disciplinary inquiry is not in the interest of the security of the State. 7. The Hon’ble Apex Court in the case of Union of India v. Tulsiram Patel, AIR 1985 SC 1416 while considering the provision of Article 311(2) of the Constitution of India has held that two conditions must be satisfied to sustain any action taken thereunder. These are (1) there must exist a situation which renders holding of an inquiry not reasonably practicable; (2) the disciplinary authority must record in writing the reason in support of its satisfaction. The Hon’ble Apex Court also held that although clause (3) of Article 311 makes the decision of the disciplinary authority final but the same can be tested in a Court of law and interfered with if the action is found to be arbitrary, malafide, motivated by extraneous consideration or merely ruse to dispense with the regular departmental inquiry. 8. The exception carved out by proviso to Article 311(2) of the Constitution are embodied in Rule 8(2) of the Rules of 1991 and both are pari materia. Various Division Benches of this Court have followed the aforesaid principle of law laid down by the Hon’ble Apex Court while considering the validity of the orders passed in exercise of powers conferred by Rule 8(2) of Rules of 1991. Reference may be made to the case of State of U.P. and others v. Chandrika Prasad, 2006(1) ESC 374(All) (DB), Pushpendra Singh (CP 2187) and another v. State of U.P. and others, 2008(3) ADJ 689 (DB). 9. Reference may be made to the case of State of U.P. and others v. Chandrika Prasad, 2006(1) ESC 374(All) (DB), Pushpendra Singh (CP 2187) and another v. State of U.P. and others, 2008(3) ADJ 689 (DB). 9. In the case in hand, after referring various acts and omissions on the part of the petitioner only reason assigned for dispensing with the inquiry is that in case the inquiry is held there may be danger to fellow policemen and public life and property. 10. The words ‘reasons to be recorded in writing that it is not reasonably practicable to hold inquiry’ implies that there must be some material for satisfaction of the authority that it is not reasonably practicable to hold the inquiry. The decision to dispense with the departmental inquiry not based on material and solely on the ipse dixit of the concerned authority cannot be sustained. The material on which the subjective satisfaction of the authority is based should either be reflected from the order or be brought on record when such satisfaction of the concerned authority is questioned in a Court of law. The Hon’ble Apex Court in the case of Jaswant Singh v. State of Punjab, AIR 1991(1) SC 385 has observed as under : "It was incumbent on the respondents to disclose to the Court the material in existence at the date of 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 authorities is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental inquiry." 11. The mere mention of fact that the petitioner would prove to be danger to fellow policemen and public life and property without there being reference of any material in the order for recording such satisfaction and there being nothing in the counter affidavit to demonstrate that the petitioner had become dangerous or caused damage to the property or indulged into any offence against any person or the State, the satisfaction recorded by the Superintendent of Police, Azamgarh for invoking Rule 8(2)(b) of Rules of 1991 and dispensing with the disciplinary inquiry do not satisfy the test of exercise of such power. The order, therefore, suffers from gross error of law and deserves to be set aside. 12. The order, therefore, suffers from gross error of law and deserves to be set aside. 12. The writ petition is allowed. The order dated 20.8.2008 passed by the Superintendent of Police, Azamgarh is set aside. 13. However, liberty is given to the respondent authorities, if they so desire, to hold a departmental inquiry against the petitioner in accordance with the law and the procedure prescribed under the Rules of 1991. ————