Devendra Kumar Arora, J.@mdashHeard Sri R.N. Singh, Senior Advocate, assisted by Sri Manoj Kumar Singh, Advocate, appearing for the petitioner and the learned Standing Counsel appearing for the respondents.
2. By means of instant writ petition, the petitioner seeks a writ in the nature of certiorari for quashing the impugned dismissal order dated 05.6.2003, passed by respondent No. 2 (Annexure No. 3 to the Writ Petition). The petitioner further prays for a writ of mandamus commanding the respondents to reinstate him on the post of Police Constable and pay him salary.
3. Facts of the case, as per pleadings of the writ petition, in nutshell, are that in the year 1995 petitioner was selected and appointed on the post of Constable in the police department as Constable 1068 A.P. In the month of May, 2003, petitioner was discharging his duties at Police Line, Kanpur Nagar. On 28.5.2003, a prisoner, namely, Kallan @ Kalloo, an accused in case crime No. 92 of 2003, u/s 18/20 N.D.P.S. Act, Police Station Mangalpur, district Kanpur Nagar was given in the custody of the petitioner including two other constables namely, Constable 132 A.P. Yadubansh Singh and Constable 233 A.P. Virendra Singh. The said prisoner fell ill and with the result, he was sent for his treatment in Murarilal Chest Hospital, Kanpur Nagar. In the night of 28/29.5.2003 the prisoner Kallan @ Kalloo absconded from the said hospital. The petitioner immediately informed at police station Swaroop Nagar, district Kanpur Nagar about absconding of the accused but the police of P.S. Swaroop Nagar did not lodge any First Information Report. However, S.I. Matadin Verma of PS. Swaroop Nagar reached the spot and then F.I.R. was lodged on 29.5.2003 as case crime No. 64 of 2003 under Sections 223 and 224 I.P.C. at Police Station, Swaroop Nagar, Kanpur Nagar. On 30.5.2003 petitioner was placed under suspension in contemplation of inquiry and Addl. Superintendent of Police -I was directed to conduct a preliminary enquiry and submit his report within seven days. The respondent No. 2 by means of Order dated 05.6.2003 dismissed the petitioner from services by invoking powers under Rule 8(2)(b) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. Being aggrieved, petitioner has approached this Court.
4. Submission of learned Counsel for petitioner is that in the hospital, electric supply used to fail off and on and taking advantage of electricity failure the accused Kallan @ Kalloo absconded from the hospital. As such, there was no fault on the part of the petitioner in discharging his duties. The other two constables who were on duty alongwith the petitioner, were not present at the relevant time.
5. Counter Affidavit has been filed by learned Standing Counsel denying the contents of the writ petition and it was submitted that the petitioner was a very careless and irresponsible person and he was given adverse entries in the past. If the petitioner would have vigilant on his duty, the prisoner could not have absconded from the hospital. The petitioner''s services were dismissed after following legal process. The respondent No. 2 got conducted a preliminary inquiry in the matter and after receipt of the report the petitioner''s services were dismissed. In para 13 of the counter affidavit it has been mentioned that as per Rules, 1991 there were sufficient grounds for dismissing the petitioner from service by invoking powers under Rule 8(2)(b) as it was not reasonably practicable to hold a departmental inquiry. However, if the petitioner would have preferred appeal before the Deputy Inspector General of Police, he would have been given full opportunity.
6. Learned Counsel for the petitioner, in his reply, reiterated his previous arguments and further submitted that the impugned order is arbitrary and illegal and once it was decided to initiate disciplinary proceedings by placing the petitioner under suspension, there was no reason to dispense with the proposed disciplinary proceedings without assigning any reason. The impugned order has been passed in gross violation of the provisions of the Rule 8(2)(b) and Articles 311(2)(b) of the Constitution of India.
7. Sri R.N. Singh, Senior Advocate emphasised that Rule 8(2)(b) guarantees an enquiry into the alleged misconduct, whereas dispensing with the enquiry is an exception. However, respondent No. 2 himself got done preliminary enquiry by Addl. Superintendent of Police -I before passing the impugned order. It is also submitted by Sri Singh that no reason has been disclosed as to why it is not reasonably practicable to hold the regular inquiry against the petitioner.
8. Learned Counsel for the petitioner in support of his submission placed reliance upon a judgment of Bhupat Singh Yadav v. State of U.P. reported in 2006 (4) ESC 2303 in which it has been held that for invoking power under second proviso to Rule 8(2)(b) the authority will have to satisfied himself for the reasons to be recorded in writing that it is not reasonably practicable to hold inquiry. It is now established principle of law that inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority while dispensing with the inquiry under the aforesaid Article must satisfy for the reasons to be recorded but if the reasons have been recorded then the authority concerned can proceed after dispensing with the inquiry and can pass order of dismissal or removal.
9. Similarly, in the case of State of U.P. and Ors. v. Chandrika Prasad, reported in 2006 (1) ESC 374 (Alld)(DB) this Court considered the provisions of Section 8(2)(b) of Rules, 1991 and held that there must be valid reasons given to dispense with the departmental proceedings.
10. Learned Counsel for the petitioner also placed reliance upon the judgment of
6. The ratio of the decision in Tulsiram Patel''s case (supra) has been further explained in paragraph Nos. 128 to 132, 133, 135, 138 and 141. Applying the aforesaid test, in the present case, the question is as to whether the loss of rifle carried by the petitioner makes out a situation for not holding an enquiry. The reason given in the impugned order that the continuance of the petitioner in service would have an adverse moral effect has absolutely no rational connection with the subject matter of inquiry. Whether rifle was lost in transit by the petitioner or not could have been enquired into and it is not the case of the respondent that there was any threat to security or anything otherwise which may obstruct the smooth holding of an inquiry. The reason given in the impugned order, therefore, proceeds on a assumption which cannot be accepted as reasonable. It cannot stand the scrutiny as indicated by the Apex Court in the decision of Tulsi Ram Patel (supra) and we are, therefore, unable to approve the same.
11. I have considered the arguments of learned Counsel for the respective parties and also perused the record.
12. The vital question involved in the present petition is that as to whether the order of dismissal dated 05.6.2003 fulfils the requirement before passing the order as provided under the provisions of Rule 8(2)(b) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as ''Rules, 1991''). Rule 8 of the Rules 1991 reads as under:
8. Dismissal and removal- (1) No Police Officer shall be dismissed or removed from service by an authority subordinate to the appointing authority.
(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-
(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 enquiry; or
(c) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry
13. The examination of Rule 8 of the Rules, 1991 reveals that the same is pari materia with Article 311(1) and (2) of the Constitution of India which confers certain constitutional protection upon an incumbent who is a member of a civil service of the Union or a State. The basic principle is that no punitive action entailing consequence of dismissal, removal or reduction in rank would be taken without holding a disciplinary enquiry against a government servant meaning thereby unless and until an incumbent has been informed of the charges and given fairly reasonable opportunity to defend himself in respect of those charges.
14. The Article 311(2)(b) provides an exception in respect of the certain cases where holding of departmental enquiry would not be possible, may be either due to not reasonably practicable or in the interest of security of the State, the inquiry should not be held.
Article 311 of the Constitution of India reads as under:
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State- (1) No person who is a member of a civil service of the Union or an All India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
(provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed;
Provided further that this clause shall not apply-
(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 enquiry or
(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.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
15. The aforesaid provision of the Constitution guarantees an inquiry into the alleged misconduct of the Government servant as a rule whereas dispensing with the same is an exception. Sub-clause (2) of Article 311 specifically prohibits dismissal, removal or reduction in rank of a Government servant without holding any inquiry and without giving him any opportunity of being heard in respect of the charges on which he may be subjected to any of the major punishment.
16. Explanation to the aforesaid rule is given in second proviso wherein Sub-clause (a), (b) and (c) do envisage a possibility when a person is dismissed, removed or reduced in rank on the ground of misconduct which has led to his conviction on a criminal charge or where the authority empowered to dismiss or remove or reduce 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 or 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.
17. Considering the scope of Article 311 of the Constitution of India in the case of
the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order though it would be better to do so in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason need not contain detailed particulars, but must not be vague or just a repetition of the language of Clause (b) of the second proviso. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per-se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.
18. The Hon''ble Supreme Court in the case of
(1) that the order would be open to challenge on the ground of mala fides or being based wholly on extraneous and/or irrelevant grounds (2) even if some of the material on which the action is taken is found to be irrelevant the court would still not interfere so long as there is some relevant material sustaining the action; (3) the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President (4) the ground of mala fides takes in, inter alia, situations where the proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power; (5) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Council of Ministers are the best judge of the situation and that they are also in possession of the information and materials and Constitution has trusted their judgment in the matter; (6) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive.
19. The Hon''ble Supreme Court while interpreting the words some "reasons to be recorded in writing that it is not reasonably practicable to hold enquiry" pleased to observe in the case of
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.
20. In the case of
In the present case, the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/other Railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view, these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these ground constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good ground for dispensing with the enquiry. In this view, it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result, the appeal fails and is dismissed. There will be no order as to costs.
21. In the present case, the impugned order of dismissal from service of the petitioner has been passed purportedly in exercise of the power under Rule 8(2)(b) of Rules 1991. Clause (b) of Rule 8(2) mandates that it is essential that the authority empowers to inflict major punishment must feel satisfied that for some reason or the other, the enquiry cannot be held but that reason has also to be recorded in writing which should indicate that it was not reasonably practicable to hold such inquiry and unless such a finding is recorded, the order passed under the said provision, would become bad.
22. Further, the reasons, so recorded, must be also valid and relevant and not merely a camouflage. It is not pure subjective satisfaction of the authority to dispense with the inquiry but his discretion is circumscribed by the requirement of recording such a reason which, of course, has to be a valid reason for which the inquiry cannot be practicably held, meaning thereby if the documents, witnesses or the material on which the inquiry is to be conducted is available and there is no other legal or practical impediment, there would be no reason to dispense with the inquiry and pass the order of major punishment.
23. Clause (2) of Rule 8 is a substantive provision and does not lay down any exception or confers any discretion upon the empowered authority of not holding an enquiry into the charges of misconduct against a police officer and to pass order without affording an opportunity. It is only in the proviso (b) an exception is carved out but exception cannot take place of a rule and has to apply in the circumstances given therein and in-fact heavy burden lies upon the empowered authority to show that the order has been passed strictly within the four corners of the statute and all the relevant ingredients have been taken into account.
24. Nothing has been brought on record nor produced before this Court to establish that any reason making the holding of enquiry impracticable has been mentioned in the record and applying the aforesaid principle in the case, in hand, on the examination the order of dismissal from service of petitioner, it reveals that the respondent No. 2 only reiterated the allegations of the suspension order in the impugned order. The impugned dismissal order also shows that the respondent No. 2 further mentioned that due to laxity of the petitioner a prisoner became successful in absconding from the hospital and because of which the image of the police has been diminished in the eyes of public at large and faith of the public has also decreased in the Constitution and law and if the petitioner continues in service, it will affect the morale of other employees and there is great possibility of their being reluctant in duties and indisciplined.
25. This Court after examining the issue in its entirety and the record comes to the conclusion that the respondent No. 2, in- fact, has not recorded any reason as to why it was not reasonably practicable to hold an inquiry in the present case. The necessary mandatory requirement under sub Clause (b) has been apparently complied with by making a mere recital in the order that it is not reasonably practicable to hold an inquiry against the petitioner. Further, the stand has been taken in para 13 of the counter affidavit that if the petitioner would have approached the Deputy General of Police by filing an appeal, then he would have been given full opportunity.
26. For the reasons, stated above, this Court comes to the conclusion that the impugned order of dismissal of petitioner from service deserves to be set aside on the ground that it does not stand protected under the provisions of sub Clause (b) of Rule 8(2) of the Rules, 1991.
27. In the result, the writ petition succeeds and is allowed. The impugned dismissal order dated 05.6.2003, passed by respondent No. 2 (Annexure No. 3 to the Writ Petition) is hereby quashed.
28. Respondent No. 2 is hereby directed to reinstate the petitioner in service forthwith. It is, however, open for the respondent No. 2 to proceed against the petitioner afresh in accordance with law and in case, the respondent No. 2 chooses to proceed afresh against the petitioner, the payment of back-wages of the petitioner will be subject to final outcome of the said proceedings.
29. No order as to costs.
