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2010 DIGILAW 2602 (ALL)

VIJAY PAL SINGH v. STATE OF U. P.

2010-08-27

B.K.NARAYANA

body2010
JUDGMENT Hon’ble B.K. Narayana, J.—Heard Sri Vijay Gautam learned counsel for the petitioner and learned Standing counsel for the state respondents. 2. By means of this writ petition the petitioner has challenged the order dated 13.10.2008 passed by respondent No. 5, the Senior Superintendent of Police Agra,(Annexure 1 to the writ petition) by which he has been dismissed from service. 3. The facts of the case are that the petitioner was appointed as constable in the police department on 1.11.1984. After completing more than 22 years of service the petitioner was dismissed from service by order dated 4.6.2007 passed by respondent No. 5 in exercise of his power under Rule 8 (2)(b) of U.P. Police Officers of Subordinate Rank Punishment Rules 1991 (hereinafter referred to as the ‘Rules’), without holding any inquiry and without giving any opportunity of hearing to the petitioner. 4. Against the order dated 4.6.2007 the petitioner filed Civil Misc. Writ Petition No. 523 of 2008 before this Court which was allowed by this Court by order dated 11.1.2008 on the ground that the respondent No. 5 did not record any reason in his order and this Court left it open to the Senior Superintendent of Police Agra, to pass fresh order as to why it was not reasonably practicable to hold disciplinary inquiry against the petitioner. After the order dated 4.6.2007 was filed before the respondent No. 5 he has by the impugned order again dismissed the petitioner from service. 5. Learned counsel for the petitioner submitted that despite categorical direction issued by this Court vide order dated 11.1.2008 passed in Writ Petition No. 522 of 2008, the respondent No. 5 has again dismissed the petitioner from service without complying with the requirements of Rule 8(2)(b) of the Rules and thus the impugned order cannot be sustained. 6. Learned counsel for the petitioner also submitted that the respondent No. 5 in the impugned order has merely reiterated the recitals contained in his earlier order dated 4.6.2007 with slight variations and after referring to the factual matrix of the case and the gravity of the offence with which the petitioner was charged, he recorded his satisfaction that it was not reasonably practicable to hold regular inquiry against the petitioner. He further contended that there was no material on the basis of which the satisfaction recorded by the competent authority in the impugned order that holding of regular inquiry was not reasonably practicable could be sustained and reason given in the impugned order for the satisfaction of the competent authority for dispensing with the holding of inquiry is totally in-sufficient in law. 7. Learned Standing counsel per contra submitted that the impugned order does not suffer from any illegality or infirmity calling for any interference by this Court. He also contended that the respondent No. 5 in the impugned order has dealt with the matter in detail and has given cogent reasons for his coming to the conclusion that it was not reasonably practicable to hold inquiry against the petitioner on facts and circumstances of the case narrated in the impugned order. 8. After carefully examining the submissions made by learned counsel for the parties and perusing the impugned order and the other material brought on record I am of the view that the submissions made by learned counsel for petitioner have substance and are liable to be accepted whereas those made by the learned standing counsel have no merit and are liable to be rejected. 9. It is undisputed that the petitioner was earlier dismissed from service by order dated 4.6.2007 passed by Senior Superintendent of Police Agra in exercise of his power under 8(2)(b) of the Rules, copy of the order has been filed as Annexure- 2 to this writ petition. 10. It is also not disputed that against the order dated 4.6.2007 petitioner filed Writ Petition No. 566- which was allowed by this Court by order dated 11.1.2008 and the order dated 4.6.2007 was quashed on the ground that the Senior Superintendent of Police Agra, in his order had failed to give any reason as to why it was not reasonably practicable to hold disciplinary inquiry against the petitioner. 11. By the said order this Court had given liberty to the Senior Superintendent of Police to pass a fresh order in the matter in accordance with Rule 8 (2) (b) of the Rules. 12. By the impugned order dated 13.10.2008 copy whereof has been filed as Annexure 1 to the writ petition, the petitioner has been dismissed from service again. 13. 12. By the impugned order dated 13.10.2008 copy whereof has been filed as Annexure 1 to the writ petition, the petitioner has been dismissed from service again. 13. The crucial question involved in this case is as to whether the order of dismissal dated 13.10.2008 fulfils the condition precedent before passing the order as provided under the aforesaid Rule. Rule 8 of the Rules 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 reasons to be recorded by that authority in writing it is not reasonably practicable to hold such inquiry; 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.” 14. The aforesaid Rule -8 is pari materia with Article 311(1) and (2) of the Constitution of India which confers certain constitutional protection upon a person who is a member of a civil service of the Union or a State. The normal rule is that no punitive action entailing consequence of dismissal, removal or reduction in rank would be taken without holding a disciplinary enquiry against a member of a civil service i.e. unless and until he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges. However, an exception has been given in respect of certain cases where holding of departmental enquiry would not be possible, may be either due to not being reasonably practicable or in the interest of security of the State, the enquiry should not be held. 15. However, an exception has been given in respect of certain cases where holding of departmental enquiry would not be possible, may be either due to not being reasonably practicable or in the interest of security of the State, the enquiry should not be held. 15. Considering the scope of Articles 310 and 311 of the Constitution of India in the case of Union of India V Tulsi Ram Patel, AIR 1985 SC 1416 , the Apex Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any enquiry not reasonably practicable (ii) The Disciplinary authority must record in writing its reasons in support of its satisfaction. The Apex Court also held that although clause (II) of that Article makes the decision of the disciplinary authority in this behalf final, such finality can certainly be tested in a Court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry. 16. 16. In the case of Union of India v. Balbir Singh, AIR 1998 SC 2043 , referring to its earlier decision, the Apex Court with reference to Clause (c) of Second proviso of Article 311(2) held as under : “(1) that the order would be open to challenge on the ground of mala fides or being based wholly on extraneous and/ or irrelevant grounds’ (2) even if some of the material on which the action is taken is found to be irrelevant the Court would still not interfere so long as there is some relevant material sustaining the action ;(3) the truth or correctness of the material cannot be questioned by the Court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President; (4) the ground of mala fides takes in, inter alias, situations where the proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power;(5) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Council of Ministers are the best judge of the situation and that they are also in possession of the information and material and Constitution has trusted their judgement in the matter; (6) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive.” 17. From the above the settled legal position which emerges is that two conditions must be satisfied to sustain any action taken under Rule 8 which has been held to be pari materia with Article 311 (1) and (2) of the Constitution of India namely there must exist a situation which renders holding of any inquiry not reasonably practicable and that the disciplinary authority must record in writing its reasons in support of his satisfaction and any order passed under the aforesaid ‘Rule’ shall be open to challenge only on the ground of mala fide or being based on extraneous and /or irrelevant grounds. 18. I now proceed to examine as to whether the action taken under Rule 8 against the petitioner can be sustained within the parameters laid down by the Apex Court in the Cases of Tulsiram Patel (Supra) and Balbir Singh (Supra) or not. 19. 18. I now proceed to examine as to whether the action taken under Rule 8 against the petitioner can be sustained within the parameters laid down by the Apex Court in the Cases of Tulsiram Patel (Supra) and Balbir Singh (Supra) or not. 19. I have very carefully perused both the orders of dismissal dated 14.6.2007 and 13.10.2008 and I am constrained to observe that there is no material difference between the tenor and substance of the two orders. The Senior Superintendent of Police Agra has referred to six circumstances in the impugned order and after referring to the aforementioned six circumstances and the gravity of the offence with which the petitioner was charged he recorded his satisfaction that it was not reasonably practicable to hold disciplinary inquiry against the petitioner and dismissed him from service without holding any inquiry. The six circumstances referred to in the impugned order which are the basis for the satisfaction of the Senior Superintendent of Police Agra for dispensing with the holding of inquiry against the petitioner are nothing but a chronological narration of the events from the date on which the petitioner was implicated in the criminal case till submission of charge sheet against the petitioner and other co accused in the concerned criminal case and his suspension on the ground of his involvement in the criminal case. 20. The reason given in the impugned order by the competent authority Senior Superintendent of Police Agra for his satisfaction that it was not reasonably practicable to hold regular inquiry against the petitioner is, that the petitioner despite being a member of police force involved himself in a criminal case of grave offence which tarnished the image of the police department and thus his retention in the police force any further was not in the interest of the police department. 21. The respondent No. 5 in the impugned order has failed to refer to existence of any situation which rendered the holding of the inquiry against the petitioner not reasonably practicable. 22. The reason given in the impugned order in my opinion is not sufficient in law for dispensing with with the holding of regular inquiry against the petitioner. 23. It is also noteworthy that despite time being granted no counter-affidavit has been filed in the present case on behalf of the State. 22. The reason given in the impugned order in my opinion is not sufficient in law for dispensing with with the holding of regular inquiry against the petitioner. 23. It is also noteworthy that despite time being granted no counter-affidavit has been filed in the present case on behalf of the State. disclosing the material which the competent authority i.e. Senior Superintendent of Police Agra had taken into consideration while coming to the conclusion that it was not reasonably practicable to hold disciplinary inquiry against the petitioner. 24. Thus I have no hesitation in holding that the reason given in the impugned order for the satisfaction recorded by the competent authority, respondent No. 5 in the impugned order for dispensing with holding of regular inquiry against the petitioner is not supported by any material and is based upon irrelevant considerations 25. In view of the above I hold that the impugned order of dismissal dated 13.10.2008 does not fulfil the requirement of Rule 8(2)(b) of the aforesaid Rules of 1991 read with Article 311(2) proviso (B). 26. For the aforesaid reasons the impugned order dated 13.10.2008 cannot be sustained and is liable to be set aside. 27. The writ petition is accordingly allowed. 28. The order dated 13.10.2008 is quashed. However, the respondents shall be at liberty to hold disciplinary inquiry against the petitioner in accordance with law. —————