(Delivered by Hon’ble Devendra Kumar Arora, J.)—By means of present writ petition, the petitioners (State) have challenged the impugned judgment & order dated 08.4.2010, passed by State Public Service Tribunal, Lucknow, in Claim Petition No. 869 of 2008, Harendra Kumar vs. State of U. P. & others, as contained in Annexure No. 1 to the writ petition by which claim petition of opposite party no. 2 was allowed with liberty to the petitioners to proceed against the opposite party no. 2 afresh in accordance with law. 2. Facts of the case, in nutshell, are that the opposite party no. 2 was appointed as Sub Inspector of U. P. Police in the year 1990. He was transferred from time to time to various places and in the year 2001 opposite party no. 2 was sent on deputation in Vigilance Department of U. P. Power Corporation Ltd. at its Headquarter Shakti Bhawan, Lucknow and remained there w.e.f. 20th April, 2001 to 22nd November, 2004. During his posting at Enforcement Cell, U. P. Power Corporation Ltd., Allahabad, an F.I.R. was lodged on 19.8.2001 by one Sri Manoj Dubey against the S.H.O. Of Mahila Thana, Civil Lines, Allahabad and one Harendra Singh son of Sri Ram Dhari Singh resident of Gobraiya, Police Station Gagha, district Gorakhpur In the said criminal case chargesheet was also filed before the competent court on 17.4.2003 against two persons namely the Sub Inspector Mrs. Vijay Laxmi wife of Sri Ghasita Lal and S.I. Harendra Singh son of Ram Dhari Singh. 3. Further submission of learned counsel for the petitioners is that the opposite party no. 2 has deliberately given his fake identity during the investigation and for this his name was written in the chargesheet as S.I. Harendra Singh son of Ramdhari Singh instead of Harendra Kumar son of Ram Dahni. The address of Harendra Kumar was correctly mentioned in the F.I.R. as well as in the chargesheet as village Gobraiya, Police Station Gagha, district Gorakhpur. The said address has also been mentioned in the Service Book of opposite party no. 2. The opposite party no. 2 was evading service of the notice and summons on him and when he was not arrested , the proceedings under sections 82 & 83 Cr.P.C. were initiated against him and thereafter chargesheet was filed. As the opposite party no. The said address has also been mentioned in the Service Book of opposite party no. 2. The opposite party no. 2 was evading service of the notice and summons on him and when he was not arrested , the proceedings under sections 82 & 83 Cr.P.C. were initiated against him and thereafter chargesheet was filed. As the opposite party no. 2 was involved in the above criminal case and was absconding, the Senior Superintendent of Police, Jhansi informed the Superintendent of Police, Vigilance Department, U. P. Power Corporation Ltd regarding the involvement of opposite party no. 2 in the said criminal case. The Superintendent of Police of Vigilance Department of U. P. Power Corporation Ltd. suspended the opposite party no. 2 on 17.2.2003. Since the opposite party no. 2 was evading the service of notice and summons, he was declared absconder by the Inspector General of Police, Lucknow Zone, Lucknow vide Office Memo dated 6.8.2003 and further declared a reward of Rs,. 20,000/- to the person who will give the whereabout/ information of the opposite party no. 2. The Senior Superintendent of Police, Lucknow was not having the details and whereabout of opposite party no. 2 in the said criminal case no. 252 of 2001 and because of this reason, the opposite party no. 2 was posted at Aminabad Police Station, Lucknow. On 06.4.2006, the opposite party no. 2 was sent in Police Line for C.I.U.R. and thereafter on 5.5.2006 he applied for five days’ casual leave which was sanctioned by the competent authority. Thereafter since 10.5.2006 the opposite party no. 2 was unauthorisedly absented from duty. On 21st May, 2006, the Senior Superintendent of Police, Allahabad informed the Senior Superintendent of Police, Lucknow that the opposite party no. 2 was named accused in case crime no. 252 of 2001 and has been absconding for the last five years. The Senior Superintendent of Police, Lucknow suspended the opposite party no. 2 on 26.7.2006 as he was continuously unauthorisedly remained absent from duty. As opposite party no. 2 was named accused in case crime no. 252 of 2001 and has been absconding for the last five years. The Senior Superintendent of Police, Lucknow suspended the opposite party no. 2 on 26.7.2006 as he was continuously unauthorisedly remained absent from duty. As opposite party no. 2 was unauthorisedly absent from duty and was also absconding in the criminal case for the last five years, it was not practicably possible for the competent authority to hold any departmental inquiry against him and, thus, by invoking the provisions of sub rule (b) of Rule 8(2) of U. P. Police Officers of Subordinate Rank (Punishment & Appeal) Rules, 1991 (hereinafter referred to as ‘Rules, 1991’) read with Article 311 (2) (b) of the Constitution of India, the Senior Superintendent of Police, Lucknow dismissed the opposite party no. 2 from service by means of order dated 30th October, 2006. The opposite party no. 2 preferred a statutory appeal before the Inspector General of Police, Lucknow Zone, Lucknow and the same was rejected by means of speaking order dated 26.4.2007. The opposite party no. 2 thereafter challenged the punishment order as well as the appellate order before the State Public Service tribunal by way of filing Claim Petition no. 869 of 2008, Harendra Kumar v. State of U. P. & others. The same was allowed by means of Judgment & Order dated 8.4.2010. 4. Submission of learned counsel for the petitioners is that the learned Tribunal has not appreciated the facts and the submissions made by the present petitioners/opposite parties and quashed the dismissal order on the ground that the same is based on the recommendations of the Senior Superintendent of Police dated 26.10.2006 and is not an outcome of the independent application of mind by the present petitioner no. 4. Learned counsel for the petitioners also submitted that the dismissal order dated 30.12.2006 was passed by the D.I.G., Lucknow Range, Lucknow after taking into consideration the entire material available on record and also considered the fact that the opposite party no. 2 was declared absconder in Criminal Case No. 252 of 2001 and was also unauthorizedly remained absent from duty w.e.f. 10th May, 2006 and was placed under suspension on 26.7.2006 for his unauthorized absence and it was not practicably possible to hold departmental inquiry against him. 2 was declared absconder in Criminal Case No. 252 of 2001 and was also unauthorizedly remained absent from duty w.e.f. 10th May, 2006 and was placed under suspension on 26.7.2006 for his unauthorized absence and it was not practicably possible to hold departmental inquiry against him. The order of dismissal was passed by the competent authority after being satisfied that it was not reasonably practicable to hold the inquiry against the opposite party no. 2. The decision taken by the authority was perfectly legal and justified and in accordance with the provisions of Rules, 1991 read with Article 311 (2) (b) of the Constitution of India. The learned Tribunal exceeded its jurisdiction while quashing the dismissal order by means of impugned judgment & order dated 8.4.2010. 5. Learned counsel for opposite party no. 2 (Caveator) while opposing the writ petition, submitted that there is no illegality in the impugned judgment & order passed by the learned Tribunal and the same is based on various decisions of Hon’ble Apex Court as well as of this Court. It is also submitted that the opposite party no. 2 was not associated or involved in any manner in the concerned criminal case. Basically, it is a case of wrong identification. It is also submitted that during investigation the Investigating Officer, CBCID made query about the person named in the F.I.R. namely, Harendra Singh from the Superintendent of Police, Vigilance, U. P. Power Corporation Ltd. who furnished him petitioner’s address as he was working there on deputation and in the report submitted in trial court by Sri P. C. Pandey, Senior Sub Inspector of Civil Police, also states that no person named as Harendra Kumar Singh son of Ram Dhari Singh was posted at Aminabad Police Station, Lucknow instead the person posted at Police Station Aminabad was having the name of Harendra Kumar son of Ram Dhani Singh. In the F.I.R. also address of the person named accused has been given as Harendra Kumar Singh r/o 625-W-II Juhi Kalan, Basant Vihar, Police Station Naubasta, Kanpur City whereas opposite party no. 2 never resided there. The opposite party no. 2 also moved a Questionnaire in trial court to find out as to whether he was named as accused in the said criminal case of which he got answer in negative. It is also submitted that while opposite party no. 2 never resided there. The opposite party no. 2 also moved a Questionnaire in trial court to find out as to whether he was named as accused in the said criminal case of which he got answer in negative. It is also submitted that while opposite party no. 2 was posted at Aminabad Police Station, he was sent on emergency duty to Police Line from where he proceeded for five days’ casual leave w.e.f. 5.5.2006 which was duly sanctioned by the competent authority. This fact was also mentioned in the G.D. At Report No. 62 on 4.5.2006. In the meantime, opposite party no. 2 fell ill and, therefore, he submitted an application for leave alongwith Medical Certificate to the Senior Superintendent of Police, Lucknow through speed post on 13.5.2006 which was received in his office on 15.5.2006. The opposite party no. 2 further submitted leave application to the Senior Superintendent of Police, Lucknow on 13.7.2006, 6.8.2006 and 11.8.2006 which was received in the office of Senior Superintendent of Police, Lucknow. The opposite party no. 2 was placed under suspension by means of order dated 26.7.2006 only on the ground of unauthorized absence and thereafter he was dismissed from service by means of order dated 30th October, 2006 by invoking the provisions of Rules, 1991 read with Article 311 (2)(b) of Constitution of India. The learned Tribunal after examining the issue in detail by means of judgment & order dated 08.4.2010 (Annexure No. 1) quashed the dismissal order dated 30th October, 2006 alongwith the appellate order dated 26.4.2007 and directed the reinstatement of the opposite party no. 2 in the same condition as he was on the date of passing of the impugned order. The opposite parties/ present petitioners were also given liberty to proceed against the opposite party no. 2 afresh in accordance with law after serving the chargesheet and in case they do not serve any charge memo or do not initiate disciplinary inquiry again within period of three months from the date of receipt of certified copy of judgment, then the suspension of the petitioner shall stand revoked and he shall be allowed to perform his official duty. 6. Lastly, learned counsel for opposite party no. 6. Lastly, learned counsel for opposite party no. 2 submitted that there is no illegality in the impugned judgment and order of the learned Tribunal and the present writ petition is misconceived and, as such, the same deserves to be dismissed with cost. 7. Learned counsel for the opposite party no. 2, in support of his submission, has placed reliance upon a judgment of Bhupat Singh Yadav v. State of U. P., reported in 2006 (4) ESC 2303 in which it has been held that for invoking power under second proviso to Rule 8 (2) (b), the authority will have to satisfy himself for the reasons to be recorded in writing that it is not reasonably practicable to hold an inquiry. 8. Similarly, in the case of State of U. P. and others v. Chandrika Prasad, reported in 2006 (1) ESC 374 (Alld)(DB) this Court considered the provisions of Section 8 (2) (b) of Rules, 1991 and held that there must be valid reasons given to dispense with the departmental proceedings. 9. Learned counsel for the opposite party no. 2 also placed reliance upon the judgment of Yadunath Singh v. State of U. P. & others, reported in 2009 (4) AWC 3980 in which dispensing with enquiry on the ground that the same would have adverse affect on morale of the other police personnels, was negated. We have considered the submissions of learned counsel for parties and gone through the record. 10. In the present case, the impugned order of dismissal from service of the petitioner dated 30th October, 2006 has been passed purportedly in exercise of powers conferred under the provisions of sub rule (b) of Rule 8 (2) of U. P. Police Officers of Subordinate Rank (Punishment & Appeal) Rules, 1991 (hereinafter referred to as Rules, 1991. Rule 8 of the 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. Rule 8 of the 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 Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.” 11. The examination of Rule 8 of the Rules, 1991 reveals that the same is pari materia with Article 311 (1) and (2) of the Constitution of India which confers certain constitutional protection upon an incumbent who is a member of a civil service of the Union or a State. The basic principle is that no punitive action entailing consequence of dismissal, removal or reduction in rank would be taken without holding a disciplinary enquiry against a government servant meaning thereby unless and until an incumbent has been informed of the charges and given fairly reasonable opportunity to defend himself in respect of those charges. 12. The Article 311 (2)(b) provides an exception in respect of the certain cases where holding of departmental enquiry would not be possible, may be either due to not reasonably practicable or in the interest of security of the State, the inquiry should not be held. 13. Article 311 of the Constitution of India reads as under: “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State:- (1) No person who is a member of a civil service of the Union or an All India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. 2. 2. No such person as aforesaid 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. (provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed; Provided further that this clause 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 where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. 3. If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such 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.” The aforesaid provision of the Constitution guarantees an inquiry into the alleged misconduct of the Government servant as a rule whereas dispensing with the same is an exception. Sub-clause (2) of Article 311 specifically prohibits dismissal, removal or reduction in rank of a Government servant without holding any inquiry and without giving him any opportunity of being heard in respect of the charges on which he may be subjected to any of the major punishment. Sub-clause (2) of Article 311 specifically prohibits dismissal, removal or reduction in rank of a Government servant without holding any inquiry and without giving him any opportunity of being heard in respect of the charges on which he may be subjected to any of the major punishment. Explanation to the aforesaid rule is given in second proviso wherein sub-clause (a), (b) and do envisage a possibility when a person is dismissed, removed or reduced in rank on the ground of misconduct which has led to his conviction on a criminal charge or where the authority empowered to dismiss or remove or reduce 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 or where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.” 14. Considering the scope of Article 311 of the Constitution of India in the case of Union of India vs. Tulsiram Patel, (1985) 3 SCC 398 the Hon’ble Apex Court pleased to observe as under: “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 though it would be better to do so 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 need not contain detailed particulars,but must not be vague or just a repetition of the language of clause (b) of the second proviso. 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.” 15. 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.” 15. The Hon’ble Supreme Court in the case of Union of India v. Balbir Singh, AIR 1998 SC 2043 while referring its earlier decision with reference to clause of Second proviso of Article 311 (2) pleased to observe 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 alia, 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 materials and Constitution has trusted their judgment 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.” 16. The Hon’ble Supreme Court while interpreting the words some “reasons to be recorded in writing that it is not reasonably practicable to hold enquiry” pleased to observe in the case of Jaswant Singh v. State of Punjab and others, AIR 1991 SC 385 to the effect that there must be some material for satisfaction of the Disciplinary Authority that it is not reasonably practicable. The decision to dispense with the departmental enquiry, cannot, therefore, be rested solely on the ipse dixit of the concerned authority. The decision to dispense with the departmental enquiry, cannot, therefore, be rested solely on the ipse dixit of the concerned authority. The relevant paragraph 5 of the judgment reads 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 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 enquiry.” “...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.” 17. In the case of Chief Security Officer v. Singasan Rabi Das, AIR 1991 SC 1043 the Apex Court while dismissing the appeal, pleased to observe as under: “In the present case, the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/other Railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view, these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these ground constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good ground for dispensing with the enquiry. In this view, it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result, the appeal fails and is dismissed. There is total absence of sufficient material or good ground for dispensing with the enquiry. In this view, it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result, the appeal fails and is dismissed. There will be no order as to costs.” 18. In the present case, the impugned order of dismissal from service of the petitioner has been passed purportedly in exercise of the power under Rule 8 (2) (b) of Rules 1991. Clause (b) of Rule 8 (2) mandates that it is essential that the authority empowers to inflict major punishment must feel satisfied that for some reason or the other, the enquiry cannot be held but that reason has also to be recorded in writing which should indicate that it was not reasonably practicable to hold such inquiry and unless such a finding is recorded, the order passed under the said provision, would become bad. 19. Further, the reasons, so recorded, must be also valid and relevant and not merely a camouflage. It is not pure subjective satisfaction of the authority to dispense with the inquiry but his discretion is circumscribed by the requirement of recording such a reason which, of course, has to be a valid reason for which the inquiry cannot be practicably held, meaning thereby if the documents, witnesses or the material on which the inquiry is to be conducted is available and there is no other legal or practical impediment, there would be no reason to dispense with the inquiry and pass the order of major punishment. 20. Clause (2) of Rule 8 is a substantive provision and does not lay down any exception or confers any discretion upon the empowered authority of not holding an enquiry into the charges of misconduct against a police officer and to pass order without affording an opportunity. It is only in the proviso (b) an exception is carved out but exception cannot take place of a rule and has to apply in the circumstances given therein and in-fact heavy burden lies upon the empowered authority to show that the order has been passed strictly within the four corners of the statute and all the relevant ingredients have been taken into account. 21. 21. Learned counsel for the petitioners failed to satisfy to this Court with any cogent reason for not holding departmental enquiry against the opposite party no. 2. Admittedly, opposite party no. 2 was on duty till 4th May, 2006 and thereafter he was on casual leave for five days w.e.f. 05.5.2006 and the learned Tribunal has rightly observed that the opposite party no. 2 was not absconding and was very well serving in the police department and this makes the version of the authorities vague that the opposite party no. 2 was absconding and, therefore, departmental inquiry against him, was not reasonably practicable, is unacceptable. However, the observation in the punishment order that the opposite party no. 2 remained unauthorisedly absent from duty and his continuance in police department would damage the image of the Police Organisation and will adversely affect the morale of police officers, these reasons are not objective but subjective in nature and are not based on any independent material, the impugned order is based on the recommendations dated 26.10.2006 of the Senior Superintendent of Police, Lucknow and is not an outcome of the independent application of mind by the D.I.G., Lucknow Zone, Lucknow. 22. On thorough examination of the judgment of the learned Tribunal, we do not find any illegality or infirmity in the judgment & order. The same does not warrant any interference of this Court. 23. Writ Petition is, therefore, dismissed. No order as to costs. (Petition dismissed) _____________