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2016 DIGILAW 3679 (ALL)

SANJAY SINGH v. STATE OF U. P.

2016-11-10

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner was a Constable in the Provincial Armed Constabulary (PAC). He has challenged his dismissal order dated 14.5.2011 passed by the fourth respondent, appellate order dated 18.10.2012 passed by the third respondent and the revisional order dated 18.1.2013 passed by the second respondent. 2. The essential facts of the case are; the petitioner was initially appointed as a Constable in PAC in the year 2006. A first information report was lodged against him on 30.5.2010 under Sections 302/201 IPC which was registered as Case Crime No. 371 of 2010 in Police Station Shikohabad, district Firozabad. He was arrested on 30.5.2010 and sent to jail. He was placed under suspension. It appears that a preliminary enquiry was instituted in the matter and on the basis of preliminary enquiry the disciplinary authority took a decision to invoke Rule 8(2)(b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (for short, the “Rules, 1991”). A copy of the dismissal order is on the record as annexure-1 to the writ petition. It is stated that in the criminal case the petitioner has been acquitted. 3. Learned counsel for the petitioner submits that the disciplinary authority has wrongly invoked the Rule 8(2)(b) of the Rules, 1991. He further urged that the condition precedents for invoking Rule 8(2)(b) of the Rules, 1991 are: (i) there must exist a situation which renders holding any enquiry not reasonably practicable; (ii) the disciplinary authority must record, in writing, its reasons in support of his satisfaction. 4. The issue with regard to the said two objections has been settled by the Supreme Court in the case of Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 , and Union of India v. Balbir Singh, AIR 1998 SC 2043 . 5. Learned counsel for the petitioner also relied on a judgement in the case of of the State of U.P. v. Babu Ram Upadhyay, AIR 1961 SC 751 , wherein the Supreme Court had occasioned to consider the object of Rule 486 of the U.P. Police Regulations. 6. Learned Standing Counsel has justified the reasons mentioned in the impugned order and submits that the petitioner was given the benefit of doubt and it was not an honourable acquittal. 7. I have heard learned counsel for the parties and considered their submissions. 8. 6. Learned Standing Counsel has justified the reasons mentioned in the impugned order and submits that the petitioner was given the benefit of doubt and it was not an honourable acquittal. 7. I have heard learned counsel for the parties and considered their submissions. 8. Against the petitioner, a first information report was lodged, he was arrested and while he was in jail he was placed under suspension. The authority concerned has initiated a preliminary enquiry against the petitioner. In the said fact finding enquiry it appears that the petitioner has been found guilty and on the basis of the said enquiry report the disciplinary authority has taken a decision to invoke Rule 8(2)(b) of the Rules, 1991. In the impugned order it is recorded that against the petitioner sufficient documentary and oral evidences are available but one of the grounds for invoking Rule 8(2)(b) of the Rules, 1991 is that there is a very slim chance of bail to the petitioner hence the enquiry would not be possible. 9. It is a well-settled law that if a criminal case is pending against an employee and he has been convicted, no further enquiry is necessary and the services can be dispensed with. In the present case the preliminary enquiry has been initiated in the criminal case which was pending at that point of time, thus, there was no occasion to consider those criminal charges in the departmental proceedings when the incident was taken place at his village and the said incident has no relation with the official duties of the petitioner. 10. It is surprising that how in the preliminary enquiry the facts have been considered in respect of a criminal case under Section 302 IPC. Moreover, in case the disciplinary authority was satisfied, on the basis of material which has been collected in the preliminary enquiry, that there was a prima facie case to initiate departmental proceedings against the petitioner, the disciplinary authority could have held a departmental proceedings in terms of the Rules, 1991 and there was no occasion to invoke the provisions of Rule 8(2)(b) of the Rules, 1991. The reason that the petitioner has committed a serious offence and he has no chance to get the bail, therefore, enquiry is not possible, appears to be based on surmises and conjectures. On this ground the enquiry cannot be dispensed with. 11. The reason that the petitioner has committed a serious offence and he has no chance to get the bail, therefore, enquiry is not possible, appears to be based on surmises and conjectures. On this ground the enquiry cannot be dispensed with. 11. The operation of the Rule 8(2)(b) has a very limited circumstances. Those circumstances have been considered by the Supreme Court at length in Tulsi Ram Patel (supra) and in the case of Jaswant Singh v. State of Punjab and others, AIR 1991 SC 385 . The Supreme Court has dealt elaborately the contingency when the Article 311(2) of the Constitution can be invoked. 12. 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. 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).” 13. 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. 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. 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. 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. 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.” 14. The case of Arjun Chaubey v. Union of India, is an instance in point.” 14. In view of the above, there is no need to examine the issue that whether the judgement of the criminal Court was based on the benefit of doubt or honourable acquittal. Since the exercise of the powers under Rule 8(2)(b) of the Rules, 1991 itself is not based on any legal premise, the impugned orders dated 14.5.2011, 18.10.2012 and 18.1.2013 need to be set aside. Accordingly, these are set aside. It is open to the respondents to proceed in accordance with law. 15. The writ petition is, accordingly, allowed. 16. No order as to costs.