Brij Nath Yadav vs State Of U.P. And Others
2011 Latest Caselaw 2651 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 38341 of 2008
 

 
Petitioner :- Brij Nath Yadav
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Rajesh Yadav
 
Respondent Counsel :- C.C.S.
 

 
Hon'ble Krishna Murari,J.

Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

Pleadings between the parties have been exchanged and with the consent of the learned counsel for the parties, the writ petition is being finally disposed of at this stage under the Rules of Court.

Petitioner who was working as Sub Inspector in U.P. Police Force has filed the instant writ petition challenging the validity and correctness of the order dated 30.9.2006 passed by the Deputy Inspector General of Police, Gorakhpur Range, Gorakhpur dismissing him from the service invoking the provision of Rule 8(2)(b) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the '1991 Rules') as well as the order dated 22.4.2008 passed by the Inspector General of Police dismissing the appeal on the ground that it has been filed beyond the prescribed period of limitation.

The order dismissing the petitioner from the service was passed on the ground that he was co-accused in criminal case no. 177 of 2006 under Section 395, 397 & 412 I.P.C.

It is contended by learned counsel for the petitioner that the impugned order has been passed invoking the power conferred by Rule 8(2)(b) of 1991 Rules without recording reason as to why it was not reasonably practicable to hold a regular departmental inquiry into the alleged charges levelled against the petitioner. Referring to the provision of Rule 8(2)(b) of 1991 Rules, it has been urged that it was incumbent upon the authority to record a reason for invoking the said power. It has further been contended that though the appeal was preferred by the petitioner within time but the same was misplaced from the office of the appellate authority and the subsequent memo filed by the petitioner has wrongly been dismissed on the ground that it has been filed beyond the prescribed period of limitation. Learned counsel for the petitioner further submits that several writ petition of identical nature have been allowed by this Court and the order of dismissal has been quashed and the case of the petitioner stands on the same footing.

In reply, learned Standing Counsel has submitted that since the petitioner was involved in heinous crime which resulted in lowering the image of the police force in the eyes of public and he was not entitled to continue as a member of the disciplinary force as such the services of the petitioner were terminated without holding any inquiry. However, the legal proposition and various judgments of this Court in identical situated could not be disputed by the learned Standing Counsel.

I have considered the argument advanced by learned counsel for the parties and perused the record.

Rule 8 (2) (b) of the Rules reads as under.

"8. (2)(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."

The language of the aforesaid Rules, is almost similar to 2nd proviso to Article 311 of the Constitution of India. Interpreting the provision of Article 311 of the Constitution, Hon'ble Apex Court in the case of Union of India & Anr. Vs. Tulsiram Patel, AIR 1985 SC 1416 has observed as under.

"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....

"....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 has further been held that 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 second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.

It is obvious that the recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty."

"If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated."

In Jaswant Singh v. State of Punjab & others, (1991) 1 SCC 362, it has been held 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 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. 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 enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry 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 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."

In Sudesh Kumar Vs. State of Haryana & Ors., (2005) 11 SCC 525, the Hon'ble Apex Court has observed as under.

"It is now established principle of law that an enquiry under Article 311(2) is a rule and dispensing with the enquiry is an exception. The authority dispensing with the enquiry under Article 311(2) (b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an enquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an enquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the enquiry. This is no ground for dispensing with the enquiry. On the other hand, it is not disputed that, by order dated 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the enquiry.

A reasonable opportunity of hearing in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if enquiry is held where he has been informed of the charges leveled against him. In the instant case, the mandate of Article 311(2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant."

Same view has been taken by this Court in Special Appeal No.1122 of 2001 (State of U.P. and others Vs. Chandrika Prasad) decided on 19th October, 2005 as well as in Special Appeal No. (647) of 2009, State of U.P. & Ors. Vs. Santosh Kumar Gupta.

The law, thus, stands settled that it is only on a subjective satisfaction based on material on record, the authority after recording reason why it is not practicable to hold the disciplinary enquiry, can invoke the powers conferred by Rule 8 (2) (b) of the Rules and dispense with the regular departmental enquiry.

A perusal of the impugned order goes to show that absolutely no reason has been recorded by the authority for invoking the power conferred by Rule 8(2)(b) of the rules and to dispense with the regular departmental inquiry. Even in the counter affidavit filed on behalf of the respondents, no such material has been brought on record on the basis of which it could be said that the authority was satisfied that it was not reasonably practicable to hold a regular departmental inquiry. Charged alleged in the impugned order may form the basis for terminating the services of the petitioner but only in case the charges are established in a regular departmental inquiry in accordance with the procedure prescribed under the Rules.

In so far as the dismissing the appeal filed by the petitioner on laches is concerned, no useful purpose would be served by remanding the matter back to the appellate authority to decide the appeal on merit inasmuch as the impugned order dismissing the petitioner from the service is totally without jurisdiction and against the settled proposition of law.

In view of the aforesaid facts and settled legal proposition of the decisions referred to above, the impugned order of dismissal dated 30.9.2006 as well as the order dated 22.4.2008 passed by the appellate authority are hereby quahed. is not liable to be sustained and is hereby quashed.

Writ petition stands allowed.

Respondents are directed to reinstate the petitioner back in service. However, this order shall not preclude the respondents from initiating a regular departmental inquiry against the petitioner in accordance with law and the relevant rules in case they are so advised.

Order Date :- 12.7.2011

nd