Rajendra Singh vs State Of U.P. And Others
2012 Latest Caselaw 486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 680 of 2012
 

 
Petitioner :- Rajendra Singh
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- R.K. Pandey,S.P. Sharma
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Syed Rafat Alam,Chief Justice
 
Hon'ble Vikram Nath,J.

This intra-court appeal arises from the order of the learned Single Judge dated 26th March, 2012, passed in Civil Misc. Writ Petition No.54347 of 1999. The operative portion of the order of the learned Single Judge is reproduced hereunder :-

"Since no reason has been given in the impugned order as to why it was not possible to hold an enquiry order under rule 8(2)(b) is not fully justified.

In the facts and circumstances of the case, I direct the respondents to hold an enquiry in the matter and give to the petitioner a proper opportunity of hearing. The respondent authority shall conclude the enquiry in accordance with law within three months from the date of production of a certified copy of this order being placed by the petitioner before the respondent authority within ten days from today. It is made clear that this order will not amount to an order of reinstatement or setting aside the order of termination but this is being passed for this purpose of giving to the petitioner a proper opportunity of hearing.

The writ petition is disposed of as above. No costs."

We have heard learned counsel for the appellant and Sri M.S. Pipersenia, learned Standing Counsel for the State - respondents.

The appellant - Rajendra Singh filed the writ petition praying for quashing of the dismissal order dated 06.12.1999, passed by the Superintendent of Police Fatehpur, purported to have been passed invoking the provisions of Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the 'Rule').

At the outset, we may refer to Rule 8(2)(b) of the 1991 Rules which reads as under :

" 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 reasons 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."

According to the above quoted Rule, the authority is empowered to inflict punishment in exceptional cases without holding any enquiry and disciplinary proceedings, for the reasons to be recorded by the said authority that it was not reasonably practicable to hold such enquiry.

The learned Single Judge found that no reasons had been recorded as to why it was not reasonably practicable to hold the enquiry and was therefore of the view that the impugned order could not be justified. Further, the learned Single Judge directed the respondent authority to hold an enquiry in the matter and to give the petitioner - appellant a proper opportunity of hearing and the enquiry be concluded within three months from the date of production of certified copy of the order. Lastly, the order of the learned Single Judge provided that the said order would not amount to an order of reinstatement or setting aside the order of termination but was being passed for the purpose of giving the petitioner - appellant a proper opportunity of hearing.

Learned counsel for the appellant has submitted that once the learned Single Judge was of the view that no reasons had been recorded as to why it was not reasonably practicable to hold the enquiry, the only option left was to quash the order of punishment, thus, the learned Single Judge fell in error in not quashing the order of punishment instead providing that it would remain in force. The next submission is that so long as the employee is not in service whether under suspension or otherwise, there could be no occasion to continue an enquiry against a dismissed employee who has no lien in the department. According to learned counsel for the appellant, for this reason also, the order of the learned Single Judge directing to hold fresh enquiry after proper opportunity to the petitioner - appellant, cannot be sustained.

On the other hand, Sri M.S. Pipersenia, learned Standing Counsel submitted that pursuant to the order of the learned Single Judge, the Superintendent of Police, Fatehpur has already appointed Deputy Superintendent of Police, Sri Surya Kant Tripathi to conduct the enquiry vide order dated 16th April, 2012, therefore, this Court may not interfere in this appeal.

Having considered the submissions, we find substance in the argument advanced by the learned counsel for the appellant. Rule 8(2)(b) of the 1991 Rules is an exception to the general procedure followed in awarding punishment to the Government Servants. It is also an exception to Article-311 (1) and (2) of the Constitution of India, therefore, due caution and care is to be exercised while invoking the said provision. The Rule itself mentions that no Police Officer shall be dismissed or removed or reduced in rank except after proper enquiry and disciplinary proceeding as contemplated in the said Rules, provided that the said Rule would not apply under the following three given circumstances :-

(i) Where the punishment is on the ground of conduct which has led to the conviction of the employee on the criminal charge.

(ii) Where for reasons to be recorded, it was found to be not reasonably practicable to hold the enquiry and lastly,

(iii) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.

He who holds the procedural sword must perish with the sword. Thus where the procedure prescribed has not been followed by the authority then the decision taken in violation of such prescribed statutory procedure cannot be sustained.

Undisputedly, the punishment order dated 06.12.1999 did not spell out the reasons as to why it was not reasonably practicable to hold the enquiry. The learned Single Judge has also recorded a similar finding. However, it was specifically clarified by the learned Single Judge in the last part of the order that the order would not amount to reinstatement or setting aside of the termination order. It is this part of the order which is offending the appellant.

A Division Bench of this Court, of which one of us (S.R. Alam, C.J.) was a member, in the case of State of U.P. & Others Vs. Chandrika Prasad, 2006 (1) ESC 374 (All.) (DB), while considering Rule 8 of the Rules, in paragraph 15 of the judgment, observed as under :-

"15. The words some "reasons 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, AIR 1991 SC 385 in para 5 at page 390 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."

Thus, the order of the Superintendent of Police, Fatehpur dated 06.12.1999, dismissing the appellant from service, impugned in the writ petition, cannot sustain and is liable to be quashed. Besides that, a departmental proceeding can be pressed into motion only against an employee who is on the strength and the roll of the department; one who is in employment and in service or one who has lien in the service. A dismissed or a terminated employee has no lien in service. He cannot be treated to be an employee of the department. As such no enquiry could be conducted against a person not on the strength and roll of the force. Rule 8 of the Rules opens with the words "no police officer shall be dismissed or removed from service...". Police officer would mean an officer in the police department on the strength and roll of the force.

Therefore, the first direction in the order of the learned Single Judge to hold an enquiry after giving proper opportunity cannot be given effect to unless the appellant is allowed to continue on the strength of the force or in other words to continue in service, otherwise no enquiry could be conducted against him under Rule 8 of the Rules.

Thus, we are of the view that the order of punishment was liable to be quashed in view of the finding recorded by the learned Single Judge that no reasons have been recorded.  Further the last sentence of the last but one para of the order of the learned Single Judge is liable to be set aside. However, the direction given by the learned Single Judge to the effect that the enquiry be conducted and after giving due opportunity in accordance with law, appropriate orders may be passed by the disciplinary authority, does not warrant any interference.

In view of the above discussion, we modify the order of the learned Single Judge to the extent that the last sentence of the last but one para of the order is set aside and further the order of dismissal dated 06.12.1999 is quashed. Necessary consequences may follow. It would however be open to the disciplinary authority to pass order of suspension during the enquiry, which may now be conducted pursuant to the order of the learned Single Judge.

The appeal stands disposed of with the above modification.

Order Date :- 19.4.2012

VMA

(S.R. Alam, C.J.)

(Vikram Nath, J.)