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2016 DIGILAW 2590 (ALL)

SADHANA YADAV v. STATE OF U. P.

2016-07-27

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner was initially recruited as a lady Constable in Civil Police in August, 1986. She completed her training and was posted as a lady constable in District Jhansi. It is stated that due to family feud a complaint was made to the Director General of Police, Uttar Pradesh on 13th August, 1995 to the effect that the petitioner has secured the employment on the basis of fabricated documents. The allegation made against the petitioner was that the petitioner is Draupadi Yadav and Sadhna Yadav was her younger sister and the petitioner has secured employment on the basis of the certificates of her younger sister Sadhna Yadav, who died about 16 years earlier. 2. It is stated that on the aforesaid allegation a First Information Report was lodged against the petitioner, which was registered as Case Crime No. 716 of 1996, under Sections 420, 467, 468 and 471 I.P.C., Police Station Nababad, District Jhansi, pursuant to which Criminal Case No. 586 of 1998 was registered before the trial Court. 3. It is further stated that the Senior Superintendent of Police, Jhansi, the second respondent, on the basis of the aforesaid allegations placed the petitioner under suspension on 10th September, 1997 and issued a direction for initiating disciplinary proceedings against the petitioner. However, the said proceeding was not initiated and the second respondent has resorted to Rule 8(2)(b) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991 (for short, the “Rules, 1991”) and by the impugned order dated 19th February, 1998 dismissed the petitioner from service. Aggrieved by the said order, the petitioner has preferred this writ petition. 4. A supplementary-affidavit has been filed on behalf of the petitioner wherein it is stated that in the aforesaid criminal trial the petitioner has been acquitted by the judgement and order dated 10th December, 2004 and the charge against the petitioner about the forgery has not been found to be true. A copy of the judgement of the trial Court is on the record as annexure-1 to the supplementary-affidavit. 5. A counter-affidavit has been filed on behalf of the respondents, wherein it is stated that there was serious allegation of fraud against the petitioner. In fact, the correct name of the petitioner is Draupadi daughter of Jhagru Prasad Yadav but she has impersonated herself as Sadhna Yadav, daughter of Banke Lal. 5. A counter-affidavit has been filed on behalf of the respondents, wherein it is stated that there was serious allegation of fraud against the petitioner. In fact, the correct name of the petitioner is Draupadi daughter of Jhagru Prasad Yadav but she has impersonated herself as Sadhna Yadav, daughter of Banke Lal. Hence, the petitioner has committed a fraud and the authority concerned has rightly invoked the provisions of Rule 8(2)(b) of the Rules, 1991. 6. I have heard learned counsel for the petitioner and learned Standing Counsel. 7. Learned counsel for the petitioner submits that the petitioner was implicated in the criminal case due to family dispute. The detailed facts have been averred in the writ petition in this regard. He has further submitted that now in the trial the petitioner has been acquitted and the criminal case itself was initiated against the petitioner as Sadhna Yadav and not as Draupadi Yadav. 8. Learned counsel for the petitioner contends that Regulation 493 (c) of the Uttar Pradesh Police Regulations enjoins that any finding recorded in the judicial proceedings is final and it cannot be reopened by the department. Lastly, he submitted that the exercise of power under Rule 8(2)(b) of the Rules, 1991 was completely illegal in the facts of this case and this Court in a catena of decisions has held that the power of Rule 8(2)(b) can be invoked when the ingredients mentioned in the said rule are attracted. He further submitted that ingredients of Rule 8(2)(b) do not attract in the present case and it has wrongly been invoked in the case of the petitioner. 9. Learned Standing Counsel submits that the petitioner has been given benefit of doubt by the trial Court, therefore, she is not entitled for her reinstatement as there is allegation of fraud against her. 10. I have heard learned counsel for the parties and perused the record. 11. The services of the petitioner have been dismissed exercising the power under Rule 8(2)(b) of the Rules, 1991 after 12 years of service. The exercise of power under Rule 8(2)(b) of the Rules, 1991 came to be considered by this Court in a long line of decisions. I have heard learned counsel for the parties and perused the record. 11. The services of the petitioner have been dismissed exercising the power under Rule 8(2)(b) of the Rules, 1991 after 12 years of service. The exercise of power under Rule 8(2)(b) of the Rules, 1991 came to be considered by this Court in a long line of decisions. This Court in the case of Om Prakash Yadav v. State of U.P. and others, Writ-A No. 3625 of 2010, decided on 23rd April, 2012, has considered three Division Bench decisions of this Court and held as under: “The three Division Benches of this Court in the Cases of State of U.P. and others v. Chandrika Prasad, 2006(1) ESC 374, Pushpendra Singh and other v. State of U.P. and Yadunath Singh v. State of U.P. and others, 2009(9) ADJ 86 , have followed the principles laid down by the Supreme Court in the aforementioned cases. In the case of Pushpendra Singh (supra), this Court held as follows : “Thus, in order to dispense with the regular departmental proceeding for inflicting punishment of dismissal, removal or reduction in rank, recording reasons is condition precedent. The idea or object of recording reasons is obviously to prevent arbitrary, capricious and mala fide exercise of power. Therefore, recording of reason is mandatory and in its absence the order becomes laconic and cannot sustain. Onus is on the State or its authorities to show that the order of dismissal has been passed strictly as per prescription of the statutes. The Hon’ble Apex Court in the case of Union of India v. Tutsi Ram Patel, AIR 1985 SC 1416 , while considering Articles 310 and 311 of the Constitution of India held that two conditions must be satisfied to uphold action taken under Article 311 (2) of the Constitution of India, viz., (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 Hon’ble Apex Court further observed that though Clause (3) of Article 311 makes the decision of the disciplinary authority in this behalf final, yet such finality can certainly be tested in the 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 rule to dispense with the enquiry. The satisfaction that it is not reasonably practicable to hold such enquiry has to be spelled out either in the order itself or at least it has to be available on record. Learned Standing Counsel also during his submission could not show us any such reason recorded by the competent authority in the. record to show any ground or reason for invoking the provisions contained in Rule 8 (2)(b) of the Rules. It is well-settled legal position that when a statutory functionary makes an order based on some reasons or grounds, its validity is to be tested on the ground or reasons mentioned therein and cannot be supplemented by giving reasons through affidavit filed in the case (See Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 , para 8).” 12. The similar view has been taken by the another Division Bench in Yadunath Singh v. State of U.P. and others. In the said case also the disciplinary proceeding was dispensed with without any plausible reason. The only reason mentioned in the order was that the departmental inquiry shall consume sufficient time and on the said ground the Rule 8(2)(b) was invoked. This Court set aside the order of the disciplinary authority and held as under : “Here in the present case, the disciplinary authority had recorded its satisfaction but it is well-settled that that satisfaction has to be based on germane grounds and not ipse dixit of the disciplinary authority. Here the only ground to dispense with the inquiry is that if the writ petitioner-appellant is allowed to continue in service, a departmental inquiry shall consume sufficient time and, therefore, such continuance will have bearing on the moral of the other police personnel. We are of the opinion that the ground recorded by the disciplinary authority while dispensing with the inquiry is not germane nor is it on any material that may be relevant, as such, the ground set forth cannot justify dispensing the inquiry at all. 5. The provisions contained under Rule 8 (2)(b) have been incorporated keeping in view the provisions of Article 311 (2)(b) of the Constitution of India. The power conferred on the authority to dispense with an inquiry in a given situation where it is reasonably not practicable to hold an inquiry, has been envisaged therein. 5. The provisions contained under Rule 8 (2)(b) have been incorporated keeping in view the provisions of Article 311 (2)(b) of the Constitution of India. The power conferred on the authority to dispense with an inquiry in a given situation where it is reasonably not practicable to hold an inquiry, has been envisaged therein. The Apex Court in the case of Union of India and another v. Tulsi Ram Patel, (1985) 3 SCC 398 , had the occasion to consider the scope of the aforesaid provision and the Apex Court laid down the test of reasonableness in the said case to be reflected by the authority while proposing to dispense with an inquiry. Paragraph 130 of the said decision is reproduced below: 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. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances byway of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the Government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the Government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned Government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. 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 finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case the Court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India, is an instance in point.” The aforesaid decision of the Division Bench have been followed in other cases namely Kuldeep Kumar v. State of U.P. and others, 2011(3) UPLBEC 2421; Dharam Pal Singh Chauhan v. State of U.P. and others, 2011(4) ADJ 851 ; Gulabdhar v. State of U.P. and others, 2011(5) ADJ 835 ; Ram Yagya Saroj v. State of U.P. and others, 2010(4) AWC 3495 ; Umesh Kumar v. State of U.P. and others, 2009(5) ADJ 405 ; and Bishambher Singh Bhadoria v. State of U.P. and others, 2008(8) ADJ 566 .” 13. In view of the above, in my view, the exercise of power under Rule 8(2)(b) cannot be justified. The petitioner was placed under suspension and the allegations, which have been made against the petitioner, clearly indicate that the departmental proceedings ought to have been completed against the petitioner. 14. It is a well-established law that the law of evidence is not applicable in the case of the departmental proceedings, whereas it is applicable in criminal cases. Thus, even if a person has been acquitted by the Court on the same charge, regular departmental enquiry can be held. 14. It is a well-established law that the law of evidence is not applicable in the case of the departmental proceedings, whereas it is applicable in criminal cases. Thus, even if a person has been acquitted by the Court on the same charge, regular departmental enquiry can be held. However, learned counsel for the petitioner has drawn the attention of the Court to the provisions of Regulation 493(c) of the Police Regulations, which read as under: “493. (c) If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and/or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court not be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General of Police and ask for permission to try the accused departmentally for such negligence or unfitness.” 15. However, I find that the submission of learned counsel for the petitioner regarding Regulation 493(c) of the U.P. Police Regulations needs consideration by the authority concerned. 16. For the reasons stated above, the impugned order dated 19th February, 1998 passed by the second respondent is set aside. It is left open to the respondents to conduct a regular departmental proceeding. While taking the said decision the authority concerned shall pay regard to the provisions of Regulation 493 (c) of the U.P. Police Regulations. 17. With the aforesaid observations and directions, the writ petition is disposed of. No order as to costs.