Om Prakash Yadav vs State Of U.P. And Others
2012 Latest Caselaw 616 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 3
 
Case :- WRIT - A No. - 3625 of 2010
 
Petitioner :- Om Prakash Yadav
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Siddharth Khare,Ashok Khare
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

By means of the present writ petition, the petitioner has challenged his dismissal order dated 25.7.2007 whereby he has been dismissed from service in terms of Rule 8 (2)(b) of the Uttar Pradesh Police Officers of Subordinate Rank (Punishment & Appeal) Rules, 1991.

The brief facts of the case are that the petitioner was initially appointed in the year 2004 as a constable in Provincial Armed Constabulary. He completed his one year training during the period 2005-06 and after completion of his training, he was posted at Fatehpur. While he was posted in Mirzapur, on 25.7.2007 the Commandant, 12th Battalion, Provincial Armed Constabulary, Fatehpur dismissed him in terms of the proviso (b) of Rule 8(2) of the Uttar Pradesh Police Officers of Subordinate Rank (Punishment & Appeal) Rules, 1991.

The respondent nos. 2 and 3 have filed counter affidavit. In paragraph no. 7 of the counter affidavit, it has been mentioned that the petitioner was selected on the post of Constable and he has submitted a forged certificate in regard to his three years working in U.P. Home Guard Department. Thus, on the basis of the forged certificate, he has got benefit of relaxation of age. It is the further stand of the respondents that  in the inquiry, it was found that the petitioner has worked only one year and he was not entitled for the maximum age relaxation on the basis of his working certificate of U.P. Home Guard Department and as such the Rule 8(2)(b) has been invoked. No other ground has been mentioned in the counter affidavit for holding the inquiry.

I have heard Sri Siddharth Khare for the petitioner and learned Standing Counsel for the respondent.

Sri Khare has submitted that no notice or opportunity has been given to him before passing the said order and from the counter affidavit, it is clear that some inquiry was conducted behind his back and as such he ought to have been given opportunity if any inquiry was conducted against the petitioner. Sri Khare has further urged that Rule 8(2)(b) enjoins the Disciplinary Authority to record the reason in writing that why it was not reasonably practicable to hold such inquiry.

From the perusal of the impugned order, it is evident that no reason at all has been recorded in the impugned order. He further stated that since criminal case was pending and he expected that the said criminal case shall be concluded within a reasonable time and as such there was some delay in filing the writ petition. Mr. Khare has further submitted that the order of the disciplinary authority is without jurisdiction as he was posted at Mirzapur and the Commandant, Mirzapur was competent authority to pass the order. However, the order has been passed by the Commandant Fatehpur and as such the impugned order is without jurisdiction. He has placed reliance on the Division Bench Judgements of this Court in State of U.P. and others Vs. Chandrika Prasad, 2006(1) ESC 374; Yadunath Singh Vs. State of U.P. and others, 2009(9)ADJ 1986; and Single Bench Judgments of this Court in Writ Petition No. 76110 of 2011, Girijesh Kumar Singh Vs. State of U.P. and others and Writ Petition No. 5471 of 2011, Girijesh Kumar Singh Vs. State of U.P. through Principal Secretary Transport Department.

Learned Standing Counsel has submitted that since the petitioner has used the forged certificate as such the disciplinary authority has rightly invoked Rule 8(2)(b) in this case. He has invited attention of the Court towards paragraph 7 of the counter affidavit. He has further submitted that in this case, there was no need to comply the principles of natural justice as he has secured his employment by furnishing a forged document and if that document had not been filed by him he would not have got the age relaxation and in such a case the disciplinary authority has rightly dispensed with his services in terms of Rule 8(2)(b) of the aforesaid Rules, 1991.

I have considered the rival submissions. Rule 8(2)(b) gives power to the disciplinary authority to dismiss/review a police officer only on the ground that it is not reasonably practicable to hold inquiry against him. It further enjoins the disciplinary authority to record the reasons for reaching to such conclusion. The Rule 8(2)(b) of the Police 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 Rule 8(2)(b) is para materia to second proviso to Article 311 of the Constitution of India. The clause (b) of the second proviso to Article 311 of the Constitution of India came to be considered in several Judgments of the Supreme Court. The Supreme Court in the case of Satyavir Singh Vs. Union of India, (1985) 4 SCC 252, has considered in detail the amendment of second clause of Article 311 of the Constitution by the Constitution (Forty-second Amendment) Act, 1976. The relevant portion of the Judgment in the case of Satyavir Singh (supra) at page 280 is as follows:-

"(104) Where a clause of the second proviso to Article 311(2) or an analogous service rule is applied on an extraneous ground or a ground having no relation to the situation envisaged in such clause or rule, the action of the disciplinary authority in applying that clause or rule would be mala fide and, therefore, bad in law and the court in exercise of its power of judicial review would strike down both the order dispensing with the inquiry and the order of penalty following thereupon."

In the Case of Jaswant Singh Vs. State of Punjab, (1991) 1SCC 362, the Supreme Court held that the decision to dispense the departmental inquiry is an exceptional case and the concerned authority must record its reason for its satisfaction to dispense the disciplinary proceedings. The relevant part of the Judgement in the case of Jaswant Singh (supra) at page 369 is as under:-

"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 the counter filed by respondent 3 it is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him."

The three Division Benches of this Court in the Cases of State of U.P. and others Vs. Chandrika Prasad, 2006(1) ESC 374, Pushpendra Singh and other Vs. State of U.P. and Yadunath Singh Vs. State of U.P. and others, 2009(9) ADJ86 have followed the principles laid down by the Supreme Court in the aforementioned cases. In the case of Pushpendra Singh (supra), this Court held as follows:-

"Thus, in order to dispense with the regular departmental proceeding for inflicting punishment of dismissal, removal or reduction in rank, recording reasons is condition precedent. The idea or object of recording reasons is obviously to prevent arbitrary, capricious and mala fide exercise of power. Therefore, record­ing of reason is mandatory and in its absence the order becomes laconic and cannot sustain. 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. The Hon'ble Apex Court in the case of Union of India v. Tutsi Ram Patel, AIR 1985 SC 1416 while considering Articles 310 and 311 of the Constitution of India held that two conditions must be satisfied to uphold action taken under Article 311 (2) of the Constitution of India, viz., (i) there must exist a situation which renders holding of any enquiry not reasonably practicable, (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. The Hon'ble Apex Court further observed that though Clause (3) of Article 311 makes the decision of the disciplin­ary authority in this behalf final, yet such finality can certainly be tested in the Court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a rule to dispense with the 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. 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)."

The similar view has been taken by the another Division Bench in Yadunath Singh Vs. State of U.P. and others. In the said case also the disciplinary proceeding was dispensed with without any plausible reason. The only reason mentioned in the order was that the departmental inquiry shall consume sufficient time and on the said ground the Rule 8(2)(b) was invoked. This Court set aside the order of the disciplinary authority and held as under:-

"Here in the present case, the disciplinary authority had recorded its satisfaction but it is well settled that that satisfaction has to be based on germane grounds and not ipse dixit of the disciplinary authority. Here the only ground to dispense with the inquiry is that if the writ petitioner-appellant is allowed to continue in service, a departmental inquiry shall consume sufficient time and, therefore, such continuance will have bearing on the moral of the other police personnel. We are of the opinion that the ground recorded by the disciplinary authority while dispensing with the inquiry is not germane nor is it on any material that may be relevant, as such, the ground set forth cannot justify dispensing the inquiry at all.

5. The provisions contained under Rule 8 (2)(b) have been incorporated keeping in view the provisions of Article 311 (2)(b) of the Constitution of India. The power conferred on the authority to dispense with an inquiry in a given situation where it is reasonably not practicable to hold an inquiry, has been envisaged therein. The Apex Court in the case of Union of India and another v. Tulsi Ram Patel, (1985) 3 SCC 398, had the occasion to consider the scope of the aforesaid provision and the Apex Court laid down the test of reasonableness in the said case to be reflected by the authority while proposing to dispense with an inquiry. Paragraph 130 of the said decision is reproduced below:

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 byway 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 give 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 member 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. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case the Court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India is an instance in point."

The aforesaid decision of the Division Bench have been followed in other cases namely Kuldeep Kumar Vs. State of U.P. and others, 2011(3) UPLBEC 2421; Dharam Pal Singh Chauhan Vs. State of U.P. and others, 2011(4) ADJ 851; Gulabdhar Vs. State of U.P. and others, 2011(5) ADJ 835; Ram Yagya Saroj Vs. State of U.P. and others, 2010(4) AWC 3495; Umesh Kumar Vs. State of U.P. and others, 2009(5) ADJ 405; and Bishambher Singh Bhadoria Vs. State of U.P. and others, 2008 (3) UPLBEC 2357.

What emerges from the above mentioned cases is that the recording of the reason is a condition precedent for invoking Rule 8(2)(b) of the 1991 Rules and the reasons must be genuine to the facts of the case. In the present case, the controversy against the petitioner was that he had used the forged certificate. To prove the said allegations, disciplinary proceedings was necessary. This case does not fall under the exception carved out by the Supreme Court in the cases of Jaswant Singh (supra) and Satyavir Singh (supra).

In view of the above, the writ petition is allowed. The impugned order dated 25.7.2007 is quashed. However, it shall be open to the respondent authority to proceed to hold the inquiry under 1991 Rules. No order as to costs.

Order Date :- 23.4.2012

Ram Murti