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2019 DIGILAW 1904 (ALL)

Umesh Chandra v. State of U. P.

2019-08-06

GOVIND MATHUR, VIVEK VARMA

body2019
JUDGMENT : Vivek Varma, J. 1. This Special Appeal arises against the judgment and order dated 16.2.2005 passed by learned Single Bench in Civil Misc Writ Petition No. 29594 of 2003 (Umesh Chandra v. State of UP and others), whereby he declined to interfere in the order dated 5.6.2003 dismissing the appellant-petitioner from service. 2. In brief, the appellant-petitioner was appointed as Constable in Civil Police and at the relevant time, he was posted at Police Station Fazalganj, District Kanpur Nagar. On 3.5.2003, two accused are said to have ran away from custody of appellant-petitioner, while being taken to the Civil Court, Kanpur Nagar. Resultantly, appellant-petitioner was placed under suspension pending enquiry vide order dated 3.5.2003. On 5.6.2003, appellant-petitioner was dismissed from service by the Senior Superintendent of Police, Kanpur Nagar exercising power under Rule 8 (2) (b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishments and Appeal) Rules, 1991 (hereinafter referred to as Rules, 1991). The said order was challenged by the appellant-petitioner before the learned Single Bench, wherein learned Single Bench came to the conclusion that the reasons given by the authority for dispensing with the enquiry are valid and the satisfaction recorded by the disciplinary authority cannot be said to be either unjustified or unwarranted vide order dated 16.2.2005. Against the said order, present Special Appeal has been filed. 3. Learned counsel for the appellant-petitioner submitted that the order dated 5.6.2003 passed by Senior Superintendent of Police is illegal and arbitrary. The appellant had been dismissed from service without holding any regular departmental enquiry. The same is in violation of the statutory provisions and there was no material before the Disciplinary Authority for arriving at any subjective satisfaction to dispense with the enquiry. There was no occasion to hold that enquiry into the matter is neither reasonable nor practicably possible. On this count, it is submitted that the learned Single Judge had failed to consider this aspect of the matter and has wrongly held that the reasons given by the authority for dispensing with the enquiry is perfectly valid and satisfaction recorded by him cannot be said to be faulted with. 4. In support of his argument, learned counsel for the appellant-petitioner has relied upon the judgment of Union of India v. Tulsiram Patel, AIR 1985 SC 1416 . 5. 4. In support of his argument, learned counsel for the appellant-petitioner has relied upon the judgment of Union of India v. Tulsiram Patel, AIR 1985 SC 1416 . 5. To the contrary, learned Standing Counsel has contended that the impugned order clearly gives reasons for dispensing with the service of the appellant-petitioner as such no interference is required in the matter. 6. Heard learned counsel for the appellant-petitioner, learned Standing Counsel and perused the record. 7. Rule 8 (2) of the Rules, 1991, mandates that no police officer shall be dismissed, removed or reduced in rank except after proper enquiry and disciplinary proceedings as contemplated under the Rules. Further proviso (b) stipulates that this rule shall not apply 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. 8. Thus, as a general rule, no police officer shall be dismissed, removed or reduced in rank except after proper enquiry and disciplinary proceedings as contemplated by the Rules. Clause (b) is in the form of a proviso permits the authority concerned to dismiss or remove a person or to reduce him in rank, if he is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry. 9. The above provision is pari-materia with Article 311(1) and (2) of the Constitution, which gives constitutional protection to a Member of civil service of the Union or of the State. The normal rule is that no major punishment, such as, dismissal, removal or reduction in rank should be inflicted without taking recourse of regular disciplinary enquiry against any delinquent. However, Rule 8 (2) (b) of the Rules, 1991 has carved out certain exceptions where even without holding regular proceeding punishment of dismissal, removal or reduction in rank can be inflicted. In order to dispense with the regular departmental proceeding for inflicting major punishment recording reasons is a condition precedent to prevent arbitrary, capricious and mala fide exercise of power. Absence of reasons vitiates the order and renders it unsustainable in law. Secondly, the authority has to record its satisfaction based on credible material in the record, to dispense with the enquiry. Absence of reasons vitiates the order and renders it unsustainable in law. Secondly, the authority has to record its satisfaction based on credible material in the record, to dispense with the enquiry. 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. 10. The power under Rule 8(2)(b) of the Rules, 1991, could have been invoked only on being satisfied that holding of enquiry is not "reasonably practicable" and that too after recording the reasons. The circumstances in which it cannot be "reasonably practicable" to hold enquiry were considered by Hon'ble the Supreme Court in the case of Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 held as follows: "60. The Second Proviso to Article' 311 (2) Clause (2) of Article 311 gives a constitutional mandate to the principles of natural justice and audi alteram partem rule by providing that a person employed in a civil capacity under the Union or a State shall not be dismissed or removed from service or reduced in rank until after an inquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. To this extent, the pleasure doctrine enacted in Article 310 (1) is abridged because Article 311 (2) is a express provision of the Constitution. This safeguard provided for a government servant by clause (2) of Article 311, however, taken away when the second proviso to that clause becomes applicable. The safeguard provided by clause (1) of Article 311, however, remains intact and continues to be available to the government servant. The second proviso to Article 311 (2) becomes applicable in the three cases mentioned in clauses (a) to (c) of that proviso. The safeguard provided by clause (1) of Article 311, however, remains intact and continues to be available to the government servant. The second proviso to Article 311 (2) becomes applicable in the three cases mentioned in clauses (a) to (c) of that proviso. These cases are: (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 inquiry; and (c) 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. 130. 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. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform : capable of being put into practice, done or accomplished : feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner : to a fairly sufficient extent". 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 by way 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 by way 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 given 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 number 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." 11. 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." 11. The Hon'ble Apex Court in the case of Jaswant Singh v. State of Punjab and others, AIR (1991) 1 SCC 362 , the Court while dealing with the exercise of power as conferred by way of exception under Article 311 (2) (b) of the Constitution of India, opined as under: "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 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 decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the sanctification 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." 12. In Reena Rani v. State of Haryana, (2012) 10 SCC 215 , after referring to the various authorities in the field, the Hon'ble Apex Court ruled out when reasons are not ascribed, the order is vitiated and accordingly set aside the order of dismissal which had been concurred with by the Single Judge and directed for reinstatement in service with all consequential benefits. It has also been observed therein that the order passed by this Court would not preclude the competent authority from taking action against the appellant/petitioner in accordance with law. 13. Recently, in the case of Risal Singh v. State of Haryana and others, (2014) 13 SCC 244 the Hon'ble Apex Court observed as follows: "Non-ascribing of reason while passing the order dispensing with enquiry, which otherwise was must, definitely invalidates such action.... 13. Recently, in the case of Risal Singh v. State of Haryana and others, (2014) 13 SCC 244 the Hon'ble Apex Court observed as follows: "Non-ascribing of reason while passing the order dispensing with enquiry, which otherwise was must, definitely invalidates such action.... Tested on the touchstone of the aforesaid authorities, the irresistible conclusion is that the order passed by the Superintendent of Police dispensing with the inquiry is totally unsustainable and is hereby annulled. As the foundation founders, the order of the High Court giving the stamp of approval to the ultimate order without addressing the lis from a proper perspective is also indefensible and resultantly, the order of dismissal passed by the disciplinary authority has to pave the path of extinction." 14. The law laid down by the Hon'ble Supreme Court cited in the preceding paragraphs shall apply with full force to the facts of the case. 15. The dismissal order nowhere discloses that the disciplinary authority ever arrived at a conclusion that holding of enquiry as per Rule 8(2)(b) of Rules, 1991 was not reasonably practicable. The order reflects that disciplinary authority has proceeded to rely upon an ex-parte preliminary inquiry and an adverse entry awarded to the appellant-petitioner. The order also records that continuance of the appellant-petitioner in the disciplined force will be extremely prejudicial to the other members of the force and will be detrimental to the public interest. The aforesaid reasoning which have been discussed by the disciplinary authority for passing the impugned order dated 5.6.2003 are not at all sustainable in law. 16. It is also not a case where no one is coming forward to depose against the petitioner or he has created such circumstances in which a cloud of fear exists keeping the persons relevant far from enquiry. In absence of such a possibility, we are of the considered opinion that the disciplinary authority committed error apparent by dismissing the petitioner from service without holding regular enquiry. 17. The learned Single Bench, however, did not address on this core question and dismissed the writ petition on the ground that the appellant-petitioner had admitted his guilt on the basis of the statement allegedly recorded during course of preliminary enquiry and on that basis concluded that such an undisciplined person like appellant-petitioner is wholly unfit for the police force. 17. The learned Single Bench, however, did not address on this core question and dismissed the writ petition on the ground that the appellant-petitioner had admitted his guilt on the basis of the statement allegedly recorded during course of preliminary enquiry and on that basis concluded that such an undisciplined person like appellant-petitioner is wholly unfit for the police force. The said view of the learned Single Bench cannot be said to be based upon any cogent material available before him as perusal of the statement of appellant-petitioner (Annexure No. C.A-1) would reveal that there is no mention of admission in clear terms for the alleged misconduct. 18. In view of the discussion above, the special appeal is allowed. The judgment of the learned Single Bench dated 16.2.2005 and the order of Disciplinary Authority dated 5.6.2003 are hereby set aside. The respondents are directed to reinstate the appellant-petitioner. It may be mentioned that the appellant-petitioner was dismissed in the year 2003 and since then he is litigating for his rights and by now he must have attained substantive age and as such considering all these aspects of the matter, the ends of justice would be secured by directing the respondents to pay only 25% of the back wages within a period of six months from the date of order. However, it would be open to the respondents to initiate a disciplinary enquiry against the appellant-petitioner, if they so desire, in accordance with rules.