JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—Petitioner, who is a Sub Inspector in U.P. Police, is aggrieved by an order dated 26th December, 1997, passed under Rule 8 (2)(b) of the Uttar Pradesh Police Officers of the Sub ordinate Ranks (Punishment and Appeal) Rules, 1991, dismissing him from service, without holding any disciplinary proceedings on the ground that a charge-sheet had been submitted against him by C.B.C.I.D., under Sections 302/34/167/177/218/120-B I.P.C. 2. Facts, relevant for adjudicating the controversy involved, are that petitioner was posted at the relevant point of time at Police Station Milakh Khanam, District Rampur, as a Sub Inspector. A First Information Report was lodged at 1.30 a.m. on 28.8.1992, by the petitioner, stating that police party was attacked by certain militants, in which one of the members of police party i.e. Constable Yashvir Singh was killed. A request was made by father of the deceased Constable to the State Government for proper investigation on the ground that the version recorded in the F.I.R. lodged by the petitioner was not correct, and complainant sensed foul play. Consequently, the matter was transferred to C.B.C.I.D. Investigation was carried out, in which it found that the version of petitioner about attack by terrorists upon the police party was baseless, and consequently, another F.I.R. was registered by the C.B.C.I.D., in which a charge-sheet was filed holding the petitioner guilty of committing murder of Constable. It seems that petitioner was initially placed under suspension on 30th August, 1992, but the suspension was subsequently revoked on 18th December, 1992. However, after a charge-sheet was filed on 10th February, 1997 against the petitioner, the Deputy Inspector General of Police proceeded to invoke his authority under Rule 8(2)(b) of the Rules of 1991 to pass the order of dismissal. 3. Learned counsel for the petitioner submits that the incident, in respect of which the order of dismissal has been passed, related to the year 1992, and for a period of nearly five years, no proceedings were drawn, and without there being any material available on record to support the finding that disciplinary proceedings were not possible in the matter or that holding of enquiry was not practicable, the respondents have proceeded to dismiss the petitioner from service, which is arbitrary. Reliance has been placed upon a Division Bench Judgment of this Court in Pushpendra Singh (C.P. 2187) and another v. State of U.P. and another, 2008(3) ADJ 689 , as well as judgment of Hon’ble Single Judge in Om Prakash Yadav v. State of U.P. and others, 2012(7) ADJ 74 . 4. Learned Standing Counsel, with reference to the counter-affidavit filed in the matter, submits that as it was found in the investigation conducted by C.B.C.I.D. that petitioner is guilty of a heinous offence and was lodged in jail, and that holding of enquiry was not practicable, as none of the police personnel would give testimony against the petitioner, as such, the order has been passed, invoking power under Rule 8(2)(b) of the Rules of 1991. 5. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents, and perused the records. 6. The short question that arises for consideration in the facts of the present case is as to whether necessary ingredients existed on record of the respondents to invoke authority under Rule 8(2)(b) of the Uttar Pradesh Police Officers of the Sub ordinate Ranks (Punishment and Appeal) Rules, 1991? Rule 8(2)(b) of the Rules of 1991 reads as under : “8. Dismissal and removal.— (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- (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.” 7. The order impugned mentions that pursuant to investigation conducted by C.B.C.I.D. in the matter, a charge-sheet has been submitted against the petitioner under Sections 302/167/177/218 read with Section 120-B I.P.C., and it has been found that petitioner had murdered Constable Yashvir Singh. It has further been recorded that holding of disciplinary proceedings, in the facts of the present case, is not practicable, as the police personnels, who were involved in the matter, would not give statement against him, and as such, the disciplinary authority has arrived at a conclusion that holding of enquiry in the matter is not possible. 8. It has further been recorded that holding of disciplinary proceedings, in the facts of the present case, is not practicable, as the police personnels, who were involved in the matter, would not give statement against him, and as such, the disciplinary authority has arrived at a conclusion that holding of enquiry in the matter is not possible. 8. No material has been brought on record of the present writ petition to support such a conclusion of the disciplinary authority. The recital in the order seems entirely presumptive in nature, inasmuch as no basis has been shown to infer that the police peronnels involved in the matter would not give a fair and a correct statement. The exercise of power under Rule 8(2)(b) of the Rules of 1991 has to be based upon consideration of valid materials available on record, and such a conclusion cannot be drawn merely on surmises and conjectures. A Division Bench of this Court in Pushpendra Singh (supra) had dealt with the exercise of power under Rule 8(2)(b), and it was observed that such provision is pari materia with Aricle 311 of the Constitution of India, which gives constitutional protection to a member of civil service of the Union or of the State. Reliance had been placed upon the judgment of the Apex Court in the case of Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 , in which following observations were made at page 1479 : “A disciplinary authority is not expected to dispense with a disciplinary proceeding 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.” Paragraph Nos. 8, 9 and 10 of the judgment delivered by the Division Bench is reproduced : “8. The words some “reason to be recorded in writing that it is not reasonably practicable to hold enquiry” means 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 words some “reason to be recorded in writing that it is not reasonably practicable to hold enquiry” means 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 Apex Court in the case of Jaswant Singh v. State of Punjab and others, has observed 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.” 9. Therefore, in view of the exposition of law such satisfaction has to be recorded either in the impugned order or in any case it must be available on record. In the case in hand, the impugned order is enclosed as Annexure 5 to the writ petition. From a perusal thereof it is evident that the Senior Superintendent of Police merely reproduced the provisions contained in Rule 8(2)(b) against the above police personnel, stating that it is not reasonably practicable to hold such enquiry. It does not contain any reason showing as to why it is not reasonably practicable to hold regular 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. 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). 10. It is also an admitted position that the appellants have been dismissed from service without holding any enquiry. They have not been informed of the charges against them nor been afforded opportunity of being heard in respect of charges before inflicting punishment of dismissal from service. Thus, in the absence of reasons for dispensing with the regular enquiry the impugned order of dismissal is patently illegal and it is difficult to uphold the same.” 9. Similar view has been reiterated in Om Prakash Yadav (supra), relying upon judgment of the Division Bench in Yadunath Singh v. State of U.P. and others, 2009(9) ADJ 86 , which has been reiterated and followed in the cases of Kuldeep Kumar v. State of U.P. and others, 2011(9) ADJ 23, Dharam Pal Singh Chauhan v. State of U.P. and others, 2011(4) ADJ 851 , and Gulabdhar v. State of U.P. and others, 2011(5) ADJ 835 . 10. In view of the settled proposition of law and for the discussions and observations, made above, this Court is satisfied that no material existed on record of the respondents to invoke its authority under Rule 8(2)(b) of the Rules, 1991. Since the action of dismissal has been taken without conducting any enquiry in the matter, and the petitioner has been deprived of his right to defend himself in such an enquiry, dispensation whereof has already been found to be arbitrary, the order impugned cannot be sustained, and is set aside. Since the petitioner is already continuing in employment under an interim order granted in the present writ petition, petitioner shall be entitled to all consequential benefits. 11. Since the petitioner is already continuing in employment under an interim order granted in the present writ petition, petitioner shall be entitled to all consequential benefits. 11. At this stage, learned Standing Counsel submits that liberty be granted to the respondents to initiate and conduct disciplinary proceedings against the petitioner, in accordance with law. This prayer is opposed by Sri Khare, learned counsel appearing for the petitioner on the following two grounds : (i) Although F.I.R. in the matter was lodged in 1992, but no disciplinary action was initiated against the petitioner till 1997, and straightway an order of dismissal was passed against him on 26th December, 1997, and after such long lapse of time, the respondents ought not to be permitted to initiate fresh proceedings. (ii) It is also contended that a period of nearly 24 years has expired, and it would otherwise be inequitable to permit the respondents to conduct fresh proceeding against the petitioner, particularly as the only material to proceed against him was the charge-sheet where petitioner has ultimately been acquitted. 12. Reliance has been placed upon a decision of the Apex Court in the case of State of Madhya Pradesh v. Bani Singh and another, 1990 (Supp.) SCC 738, in which following proposition of law has been laid down in Paragraph No. 4 : “4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal’s orders and accordingly we dismiss this appeal.” 13. Reliance has also been placed upon paragraph 17 of the judgment of the Apex Court in the case of Cantonment Executive Officer and another v. Vijay D. Wani and others, 2008 (12) SCC 230 , as well as upon the judgment of the Apex Court in the case of P.V. Mahadevan v. MD. T.N. Housing Board, 2005 (6) SCC 636 , wherein following observations have been made in paragraph Nos. 7, 11 and 12 : “7. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition. 11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. 12. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefit shall be disbursed within three months from this date. No costs.” 14. In light of the ratio laid down by the Apex Court in the judgments relied upon by the counsel for the petitioner, facts of this case would have to be viewed. The judgments relied upon were delivered in the factual scenario, where inordinate delay and laches existed in holding of disciplinary proceedings. In the facts of the present case, it has been contended by Sri Khare that a period of five years had lapsed, during which no enquiry was initiated, although for the same charge, petitioner had been placed under suspension in August, 1992, and he was subsequently reinstated in December, 1992 itself. On this aspect, it would be relevant to notice that though the incident had taken place on 28th August, 1992 and petitioner was initially suspended, but till such time, no material existed on record to establish complicity of petitioner in the offence. It was only on 10th February, 1997 that investigation was concluded by C.B.C.I.D., and a charge-sheet was filed against the petitioner. Basis to establish petitioner’s complicity in the offence is the charge-sheet filed by C.B.C.I.D., which itself had come into existence in 1997, and in the same year, order of dismissal has been passed. No delay, in such circumstances, could be attributed to the action of State in proceeding against the petitioner. 15. So far as the delay of about 24 years is concerned, it may be noticed that in 1997 itself, petitioner was dismissed from service by invoking jurisdiction under Rule 8(2)(b) of the Rules of 1991. The writ petition has been filed in January, 1998, and the proceedings are being concluded now. 15. So far as the delay of about 24 years is concerned, it may be noticed that in 1997 itself, petitioner was dismissed from service by invoking jurisdiction under Rule 8(2)(b) of the Rules of 1991. The writ petition has been filed in January, 1998, and the proceedings are being concluded now. The pendency of writ petition or period spent during its pendency cannot be a ground to suggest that respondents had not acted within a reasonable period of time. The action of respondents since has been set aside after holding that authority under Rule 8(2)(b) of the Rules of 1991 was not open to be exercised, as such, it would not be appropriate to sustain the objections raised by Sri Khare to the prayer made by learned Standing Counsel for grant of liberty. 16. It is also submitted that the basis of petitioner’s implication since was the charge-sheet against the petitioner, which has vanished with the order of acquittal, as such, no material exists on record to proceed departmentally against the petitioner. Sufficiency or otherwise to proceed departmentally against the petitioner is an aspect, which has to be examined by the department, and this Court is not required to undertake any such exercise, at the first instance, at this stage. It goes without saying that fresh proceedings would be initiated against the petitioner only if material exists on record of the employer to proceed against him. Evaluations of existence or otherwise of material need not be commented upon, at this stage. Law is otherwise settled that acquittal by criminal Court would not automatically and conclusively impact departmental proceedings, as the standard of proof in disciplinary proceedings is preponderance of probabilities, while in criminal proceedings, it has to be beyond reasonable doubt. In such view of the matter, it shall be open for the respondent State to proceed to conduct disciplinary proceedings against the petitioner, in case it comes to a conclusion that material exist on record to proceed departmentally against him. 17. With the aforesaid observations/directions, the writ petition stands allowed. There shall, however, be no order as to costs. ———————