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2011 DIGILAW 1841 (ALL)

SHANKER PAL v. STATE OF U. P.

2011-08-02

KRISHNA MURARI

body2011
JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri Adarsh Bhushan, learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. Pleadings have been exchanged between the parties and with the consent of the learned counsel for the parties, writ petition is being finally disposed of under the Rules of Court. 3. The petitioner was recruited and appointed as a constable in the Armed Police on 14.4.1978. In the year 2004 while the petitioner was posted at Police Lines, Agra an order was passed by the Inspector, Reserve Police Lines, Agra constituting a police party headed by a Head-Constable alongwith three constables including the petitioner to take the accused Chandra Sen lodged in the Central Jail, Agra to be produced in the Court at Bareilly, Nainital and Shahjahanpur. After producing the said accused in the concerned Court, he was lodged back in the central jail, Agra. However, on 1.9.2004 a First Information Report was lodged by one Fahim Khan at P.S. Faridpur, district Bareilly which was registered as case crime No. 457 of 2004 under Section 364 and 120-B I.P.C. on the allegation that his two nephews have been kidnapped by 20 to 30 persons. Nobody was named in the F.I.R. After investigation of the said case, the police submitted charge-sheet against certain persons. However, the petitioner was not named in the said charge-sheet. 4. Vide order dated 16.6.2005 passed by the Senior Superintendent of Police, Agra, the petitioner was placed under suspension on charges of having found guilty during the course of investigation of case crime No. 457 of 2004 under Section 364 and 120-B I.P.C. Subsequently, an order dated 25.4.2006 was passed by the Senior Superintendent of Police, Etah dismissing the petitioner from the service in exercise of power under Rule 8(2)(b) of U.P. Police Officers’ of the Sub-ordinate Rank (Punishment & Appeal) Rules, 1991. The reason given in the order is that the petitioner has failed to discharge his duties and took the accused Chandra Sen in a hotel and allowed him to meet his gang and extended help to the said accused in committing crime of abduction which has resulted in lowering the image of the police force and in the event, he is allowed to continue in the force the same may result in breeding further indiscipline amongst the force. 5. 5. It has been contended by learned counsel for the petitioner that under clause (b) of sub rule (2) of Rule 8, the services could be dispensed with where the disciplinary authority was satisfied for the reasons, which are to be recorded in writing that it was not reasonably practicable to hold an inquiry. It has further been submitted that the services of the petitioner had been dispensed with without holding an inquiry on entirely irrelevant grounds and no reason has been recorded for the same. 6. In reply, it has been submitted by learned counsel by referring to the averments made in the counter-affidavit that the petitioner was found involved in committing a heinous crime as such, he was not found to be fit to be retained in police force and has rightly been dismissed from the service and the impugned order does not call for any interference. 7. I have considered the argument advanced by learned counsel for the parties and perused the record. 8. The order of termination indicates that the services of the petitioner have been terminated on the allegation of his involvement in hatching a conspiracy with the criminal in committing offence under Section 364 I.P.C. while he was taking the said accused to be produced before the Court as such, his continuance was detrimental to the police force. 9. Rule 8 (2) (b) of the Rules 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.” 10. The language of the aforesaid Rules, is almost similar to 2nd proviso to Article 311 of the Constitution of India. Interpreting the provision of Article 311 of the Constitution, Hon’ble Apex Court in the case of Union of India and another v. Tulsiram Patel, AIR 1985 SC 1416 , has observed as under. “The condition precedent for the application of clause (b) is 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. “The condition precedent for the application of clause (b) is 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.” 11. It has further been held that 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. “The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold 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. 12. It is obvious that the recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty.” “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 the impugned order of penalty would stand invalidated.” 13. In Jaswant Singh v. State of Punjab and others, (1991) 1 SCC 362 , it has been 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. In Jaswant Singh v. State of Punjab and others, (1991) 1 SCC 362 , it has been 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. 14. 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.” 15. In Sudesh Kumar v. State of Haryana and others, (2005) 11 SCC 525 , the Hon’ble Apex Court has 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. 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. 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 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 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 leveled 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.” 16. 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. 17. Learned Standing Counsel could not dispute the settled proposition by the aforesaid judgments which are applicable to the case in hand. The reasons disclosed in the impugned order for terminating the services can form the basis for terminating the services of the petitioner but only in case the same are established in a regular departmental inquiry after opportunity to the incumbent or he is convicted for the said offence by a Court of law. However, the reasons recorded in the impugned order that on account of the aforesaid charges, continuance of the petitioner in the police force would be detrimental to the image of the force and may result in breeding further indiscipline in the force cannot constitute a ground to dispense with a regular departmental inquiry. However, the reasons recorded in the impugned order that on account of the aforesaid charges, continuance of the petitioner in the police force would be detrimental to the image of the force and may result in breeding further indiscipline in the force cannot constitute a ground to dispense with a regular departmental inquiry. It has further been noticed that neither in the impugned order nor even in the counter-affidavit, any reason has been disclosed as to why it was not reasonably practicable to hold an inquiry against the petitioner so as to invoke the power conferred by Rule 8(2)(b). 18. In view of the aforesaid facts and settled legal position by the decisions referred to above, the impugned order dated 25.4.2006 passed by the Senior Superintendent of Police, Etah terminating the services of the petitioner without recording any reason for dispensing with the departmental inquiry is not sustainable in law and is hereby quashed. 19. Writ petition stands allowed. 20. Petitioner is entitled to be reinstated back with all consequential benefits. It shall, however, be open to the disciplinary authority to initiate a regular departmental inquiry against the petitioner in accordance with law and the relevant rules. 21. However, in the facts and circumstances, there shall be no order as to costs. ———————