Ajai Kumar vs State Public Service Tribunal ...
2013 Latest Caselaw 1491 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
Lucknow Bench Lucknow
 

 
***********
 
[A.F.R.]
 
Court No. - 27
 

 
Case :- SERVICE BENCH No. - 1663 of 2004
 

 
Petitioner :- Ajai Kumar
 
Respondent :- State Public Service Tribunal Indira Bhawan Lko.Through
 
Petitioner Counsel :- P.P.Srivastava,Gyanendra Singh
 
Respondent Counsel :- C.S.C., Chaudhary Shatrughan Addl. CSC.
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Ashok Pal Singh,J.

1. Heard learned counsel for the parties and perused record.

2. This writ petition under Article 226 of the Constitution of India, has been preferred against the impugned judgment and order passed by the U.P. State Public Services Tribunal Lucknow, dismissing the claim petition upholding the order passed by the State under Rule 8 (2) (b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short 1991 Rules).

The controversy in brief is summarised as under:

3. The petitioner, a police constable, was selected for appointment against substantive vacancy on 1.8.1989. He successfully completed his probationary period and posted n the Government Railway Police at Agra. On 21.6.1996, the petitioner proceeded for 30 days sanctioned earned leave. It appears that he could not resume duty on account of illness and variety of reasons for about a year. The cause assigned by the petitioner is that on account of serious illness, he moved representation dated 24.7.1996 which was forwarded to competent authority for extension of leave. On the other hand, Superintendent of Police, Agra, issued different letters to the petitioner to resume duty. It appears that when the petitioner did not turn up, he was placed under suspension by the order dated 10.10.1996. The petitioner was absented from duty from 23.7.1996. The copy of the suspension order dated 10.10.1996 has been filed as Annexure No.10 to the claim petition of the petitioner which is on Tribunal's record. The order of suspension in its totality, is reproduced as under:

आदेश

कान्स०ना०पु०723 अजय कुमार, जीआरपी लाइन्स आगरा को बाद उपभोग उपार्जित अवकाश समय से अपने कर्तव्य पर वापस न आकर दिनांक 23-7-96 से बदस्तूर अनुपस्थित रहने के फलस्वरूप तत्काल प्रभाव से निलम्बित किया जाता है। यह निलम्बन अधीनस्थ श्रेणी के पुलिस अधिकारियों की (दण्ड एवं अपील) नियमावली 1991 के नियम 17-1, के अन्तर्गत किया गया है।

निलम्बन की अवधि में उक्त कान्स० वित्तीय नियम संग्रह भाग 2 से 4 के मूल नियम 53 के प्राविधान के अनुसार जीवन निर्वाह भरण की धनराशि अर्द्घऔसत वेतन पर अथवा अर्द्घवेतन पर देय अवकश के बराबर होगी पायेगा, तथा उनके जीवन निर्वाहन भत्ते की धनराशि पर महंगाई भत्ता यदि ऎसे अवकाश वेतन पर देय है, भी अनुमन्य होगा। किनतु ऎसे जीवन निर्वाह भत्ते के साथ कोई मंहगाई भत्ता अथवा मंहगाई भत्ते का उपार्जिक समायोजन प्राप्त था, निलंबन की अवधि में इस शर्त पर देय होंगे जब कि इसका सत्यापन हो जाये की उनके द्वारा इस मद में व्यय वास्तव में किया जा रहा है। इसके लिए उक्त प्रतिकर भत्ते अनुमन्य हैं।

उपर्युक्त उल्लिखित मदो का भुगतान तभी किया जायेगा जब कि उक्त कान्स० इस आशय का प्रमाण पत्र प्रस्तुत करें कि वह अन्य किसी सेवायोजन, व्यापार, वित्तीय व्यवसाय में नहीं लगे हैं। निलम्बन की अवधि में उक्त कान्स० जीआरपी लाइन्स आगरा में रहेगा और अपनी किट लाइन्स में जमा करेगा।

संख्याःन-161/96                                                 ह० अपठनीय  10./x
 
दिनांकःअक्टूबर       , 1996,                               पुलिस अधीक्षक रेलवे
 
                                                                               आगरा ।
 
प्रतिलिपि/-
 
1-	प्र०उ०नि० जीआरपी लाइन्स आगरा को एच०ओ०बी० हेतु।
 
2-	प्रभारी जीआरपी लाइन्स आगरा को अनुपालन हेतु।
 
3-	प्रधान लिपिक/आंकिक/चरित्रावली लिपिक को सूचनार्थ एवं आ० का० हेतु।
 

4- उपप्रतिसार निरीक्षक जीआरपी लाइन्स आगरा को इस निर्देश के साथ कि कानि०723ना०पु० अजय कुमार पुत्र श्री केशव देव नि० ग्राम-बैलारा थाना-सादाबाद, पो० विसावर जिला मथुरा के घर के पते पर एक कानि० भेजकर उक्त आदेश की एक प्रति कानि० को तामील कराकर दूसरी प्रति पर प्राप्ति के दिनांक सहित हस्ताक्षर लेकर इस कार्यालय को वापस करें यदि उक्त कान० आदेश लेने से मना करें तो चस्पा की कार्यवाही कर दो सभ्रान्त नागरिक के सामने चस्पा कर गवाहों के हस्ताक्षर लेकर इस कार्यालय को अपनी रिपोर्ट के साथ भेजे।

5- क्षेत्राधिकारी रेलवे कासगंज को इस निर्देश के साथ कि प्रारम्भिक जांच कर आख्या 7 दिवस के अन्दर प्रेषित करें।

संलग्न पत्रावी 9 वर्क "

_____

4. It appears that instead of holding regular inquiry after the impugned order of suspension, the Superintendent of Police Railway, Agra, invoked the provisions contained in Rule 8 (2) (b) of 1991 Rules. The 1991 Rules empower the competent authority to remove, dismiss or reduce in rank. Sub-rule provides that dismissal, removal or reduction in rank cannot be done unless proper inquiry or disciplinary proceeding is held. However, sub-rule (b) of sub-rule (2) of Rule 8 provides that where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for reason to be recorded in writing, it is not reasonably practicable to hold such enquiry a police officer may be dismissed. For convenience Rule 8 (2) (b) of 1991 is reproduced 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.

(3) All orders of dismissal and removal of head Constables to Constables shall be passed by the Superintendent of Police. Cases in which the Superintendent of Police recommends dismissal or removal of a Sub-Inspector or an Inspector shall be forwarded to the Deputy Inspector General concerned for orders.

(4) (a) The punishment for intentionally or negligently allowing a person in police custody or judicial custody to escape shall be dismissed unless the punishing authority for reasons to be recorded in writing awards a lessor punishment.

(b) Every officer convicted by the Court for an offence involving moral turpitude shall be dismissed unless the punishing authority for reasons to be recorded in writing considers it otherwise."

5. In pursuance of power conferred by Rule 8 (2) (b) of 1991 Rules, by an order dated 21.7.1997, the Superintendent of Police (Railway), Agra dismissed the petitioner from service without holding regular inquiry that too, within the teeth of order of suspension. The impugned order dated 21.7.1997 contained in Annexure No.3 to the writ petition, is reproduced as under:-

''आदेश

मैं, हरिश्चन्द्र सिंह पुलिस अधीक्षक रेलवे आगरा, श्री कुंवरपाल सिंह पुलिस उपाधीक्षक रेलवे कासगंज द्वारा सम्पादित आख्या दिनांकित3-7-97 का परिशीलन किया। जिससे यह विदित होता है कि आरक्षी 723 अजय कुमार थाना जीआरपी फर्रूखाबाद स्वीकृत 30 दिवस उपार्जित अवकाश पर दिनांक 21-6-96 को रपट नं०27 समय 14.15 बजे जीआरपी लाइन आगरा से रवाना किया गया। तत्पश्चात् दिनांक 22-6-96 को रपट नं० 24 समय 15.15 बजे अवकाश पर रवाना किया गया। बाद समाप्ति 30 दिवस उपार्जित अवकाश आरक्षी अपरोक्त को दिनांक 23-7-96 को वापस अपने कर्त्तव्य पर उपस्थित हो जाना चाहिये था, परन्तु नहीं आया और आज तक लगातार अनुपस्थित चल रहा है।

उपरोक्त आरक्षी को कर्त्तव्य के अनुपस्थित रहने के फलस्परूप तत्कालीन पुलिस अधीक्षक रेलवे आगरा द्वारा दिनांक 10-10-96 को निलम्बित किया गया और निलम्बन आदेश दिनांक 14-10-96 को आरक्षी को व्यक्तिगत रूप से प्राप्त कराया गया।

अतः इस निलम्बित आरक्षी 723 अजय कुमार को उ० प्र० अधीनस्थ श्रेणी के पुलिस अधिकारियों की ( दण्ड एवं अपील) नियमावली 1991 के नियम 16 (2) के अन्तर्गत उसके घर के पते पर कर्त्तव्य पर उपस्थित होने हेतु नोटिस नियमानुसार प्रेषित किये गये। इस प्रकार युक्ति-युक्त उपाय करने के पश्चात भी आरक्षी कर्त्तव्य पर उपस्थित नहीं हुआ। उक्त नियमावली के नियम 8 (2) (ख) के अन्तर्गत कर्त्तव्य पर उपस्थित होने हेतु युक्ति-युक्त अवसर प्रदान किये गये किन्तु आरक्षी अपने कर्त्व्य पर वापस नहीं आया।

मैं, हरिश्चन्द्र सिंह नियुक्त प्राधिकारी हूं। वर्तमान में यह आरक्षी अनुपस्थित चल रहा है। पुलिस बल एक अनुशासित संगठन है तथा लम्बी अवधि के बिना किसी वैधानिक कारण से अनुपस्थति रहना आरक्षी के अपने कर्त्तव्य पालन में अकर्मण्यता, उदासीनता व पद के अयोग्य पाने हेतु परिलक्षित करता है।

वर्तमान में आरक्षी को राजकीय कर्त्तव्य पर वापस आने हेतु नियमानुसार प्रयास किये परन्तु आरक्षी अपने कर्त्तव्य पर उपस्थित नहीं हुआ। अरक्षी के इस कृत्य से समूचे पुलिस बल पर कुप्रभाव पड़ रहा है, जो असंगत तथा अनुचित है। इन परिस्थितियों में मेरा यह समाधान हो गया है कि उक्त आरक्षी 723 अजय कुमार को पदच्युत करने के लिये जांच करना युक्ति-युक्त व्यावहारिक नहीं है।

अतएव मैं, उक्त नियमावली के नियम 4-1 (क) (1) के अधीन प्रदत्त अधिकारों का प्रयोग करते हुये निलम्बत आरक्षी 723 अजय कुमार को तत्काल प्रभाव से उसकी आरक्षी की सेवा से पदच्युत करता हूं।

पत्र संख्या- 1-161/96				ह० अपठनीय
 
दिनांक- जुलाई 21, 1997                                 (हरिश्चन्द्र सिंह)
 
	                                                       पुलिस अधीक्षक रेलवे,
 
							  आगरा।
 
प्रतिलिपि/--
 
1-	प्र०उ०नि० जीआरपी लाइन आगरा को एच०ओ०बी० हेतु।
 
2-	प्रभारी जीआरपी लाइन्स आगरा को अनुपालन हेतु।
 

3- पुलिस उपाधीक्षक रेलवे, आगरा को दो प्रतियों में इस निर्देश के साथ (अस्पष्ट) नि० द्वारा एक प्रति आरक्षी 723 अजय कुमार पुत्र श्री केशव देव ग्राम- बिसारा थाना सादाबाद जिला मथुरा को प्राप्त करायें तथा दूसरी हस्ताक्षरयुक्त प्रति इस कार्यालय को वापस करें यदि आरक्षी लेने के इन्कार करे तो उसके निवास स्थान पर एक प्रति चस्पा करें तथा दो गवाहों के हस्ताक्षर लेकर इस कार्यालय को वापस करें।

4- पुलिस अधीक्षक महामायानगर (मथुरा) को दो प्रतियो में इस अनुरोध के साथ कि एक प्रति थाना सादाबाद के माध्यम से आरक्षी को प्राप्त कराकर दूसरी प्रति पर हस्ताक्षर लेकर इस कार्यालय को वापस करने की कृपा करें।

5- आरक्षी 723 अजय कुकामर पुत्र श्री केशवदेव ग्राम-बिसारा थाना-सादाबाद जनपद महामायानगर (मथुरा) को पंजीकृत डाक से सूचनार्थ।

--------''

6. A perusal of the impugned order (supra) reveals that the Superintendent of Police was impressed from the fact that the petitioner had not resumed due in spite of communications sent by him from time to time. It has been stated that in spite of sending of notices, the petitioner did not turn up. The power conferred by Rule 8 (2) (b) is an exception and may be invoked if it is not feasible to hold a regular inquiry. The impugned order of dismissal from service dated 21.7.1997 was disputed before the Tribunal. The Tribunal dismissed the claim petition on the ground that the authority concerned was having full power to pass the impugned order of dismissal without regular inquiry.

7. While considering the rival claims, the Tribunal recorded a finding that the Superintendent of Police rightly exercised power conferred by Rule 8 (2) (b) of 1991 Rules since the petitioner did not turn up in spite of letters sent by the Superintendent of Police. For convenience, para 15, 16 and 17 of the Tribunal's order is reproduced as under:-

"15. In the present case the petitioner avoided to join his duties in a disciplined force like Police one. He availed earned leave on 22.6.96 and did not join his services for one full year. He was visiting Agra for his treatment, but had neither join his duties nor got himself examined in the Police Hospital. Inspite of due service of show cause notice, he had not given its reply.

16. On consideration of the entire material, we are satisfied that the Superintendent of Police, Agra was justified in taking action according to the provisions of Rule 8 (2) (b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991.

17. The learned counsel for the petitioner relied in the case Malkiat Singh Vs. State of Punjab (SC) 1996 (2) LBESR-71, wherein on being absent from duty for more than on month 9 days, it was observed that the order of discharge was harsh punishment and one more opportunity was given to him to show his conduct. In the present case, the absence from duty is for much long period and at any rate once on the facts of the case, the applicability of rule 8 (2) (b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 is held to be to be justified, it would not be proper to interfere with the quantum of punishment. In the circumstances, no case for interference is made out."

8. Against the impugned order dated 21.3.2003 passed by the Tribunal, a review petition bearing Review Petition No.23/2003 in Claim Petition No.2084/1999, was preferred that too, was dismissed by the order dated 24.8.2004 contained in Annexure No.2 to the writ petition, with the finding that by deciding review, new ground cannot be looked into.

9. While assailing the order passed by the Tribunal, petitioner's counsel relied upon the cases reported in (2008) 2 SCC (L&S) 140: Tarsem Singh Vs. State of Punjab and others; (1991) 1 SCC 362: Jaswant Singh. Vs. State of Punjab and others; (1991) 1 SCC 729: Chief Security Officer Vs. Singasan Rabi Das; (2008) 2 SCC (L&S) 135: Prithi Pal Singh Vs. State of Punjab; SLR 1981 (2) 451: Maksudan Pathak Vs. The Security Officer Eastern Railways Mughalsarai; [2011 (29) LCD 2667]: State of U.P. Vs. State Public Services Tribunal and others; (1996) 1 U.P.L.B.E.C. 316: Balveer Singh. Vs. State of U.P. and others and (2008) (26) LCD 93: Motilal Vs. State of U.P. and others.

10. On the other hand, learned Additional Chief Standing Counsel Sri Shatrughan Chaudhary, while defending the impugned order passed by the Tribunal would submit that the petitioner has not complied with the provisions contained in Regulation 381, 382 and 383 of U.P. Police Regulations, which cast duty upon the petitioner to report adjoining police chowki even if he was on leave. It is vehemently argued by the learned Additional Chief Standing Counsel that repeated letters were sent to the petitioner from time to time by the Superintendent of Police, Railway, Agra, but the petitioner did not turn up hence, there was no option except to exercise power conferred by Rule 8 (2) (b) of 1991 Rules. Submission of the learned Additional Chief Standing Counsel is that it would have been a futile exercise of power to hold regular inquiry. Since the petitioner himself did not turn up hence there was no occasion on the part of the Superintendent of Police except to pass the order of dismissal instead of holding a regular inquiry.

11. However, the fact remains that by order dated 10.10.1996, the petitioner was placed under suspension. Keeping in view the fact that the petitioner was suspended by the appointing authority, it was incumbent upon the authority concerned to hold a regular inquiry in pursuance of powers conferred by Rule 8 itself. Once a decision was taken to suspend the petitioner, there was no occasion on the part of the Superintendent of Police to dispense with the services of the petitioner under the garb of Rule 8 (2) (b) of 1991 Rules. Argument of the learned standing counsel that the petitioner was not cooperating hence power conferred by instant clause was invoked, seems to be not sustainable. In case a decision was taken to suspend the petitioner, then option was open to the respondents to serve chargesheet and in case the petitioner did not cooperate, an ex parte proceeding should have been initiated and after due inquiry, proper order could have been passed by the disciplinary authority.

12. A perusal of Rule 8 (2) (b) of 1991 Rules at the face of record provides that power conferred under Rule 8 (2) (b) of 1991 Rules may be invoked in case the authority concerned is satisfied that for some reason to be recorded in writing by the authority, it was not reasonably practicable to hold inquiry. Keeping in view the mandate of clause (b) of sub-rule (2) of Rule 8, it was incumbent on the authority to record a finding as to why in spite of the order of suspension passed, a regular inquiry is not reasonably practicable. Once the order of suspension was imposed and served, there was no occasion on the part of the authority concerned to invoke the power conferred by Rule 8 (2) (b) of 1991 Rules.

13. A perusal of the impugned order reveals that the disciplinary authority had made up mind that the petitioner did not turn up in spite of letters sent by the department on the recorded address of the service book, no purpose will be served by holding inquiry. Holding regular inquiry is valuable right conferred on employees in pursuance of mandate of Article 14 and 311 (1) of the Constitution of India. Employees ordinarily may not be deprived of compliance of principle of natural justice more so, when Rules itself provides that inquiry shall be held with due compliance of natural justice. Merely because the petitioner did not turn up in pursuance of notice sent by the respondents, does not seem to make out a case to dispense with the petitioner from service by invoking powers conferred by clause (b) of sub-rule (2) of Rule 8 of 1991 Rules more so, when the order of suspension was passed by the same authority.

14. In the case of Tar Sem Singh (supra), their lordship held that inquiry may be dispensed with only on the ground that it is reasonably not practicable. The subjective satisfaction of authority while recording finding with regard to reasonable practicability of inquiry proceeding, based on objective criteria is must. The reasons for denial of inquiry must be supported by document and other related material. In the present case, while passing the impugned order, the Superintendent of Police Railways, has not considered the effect of the order of suspension, as a natural consequence of which, regular inquiry should not be denied.

15. In the case of Jaswant Singh (supra), Hon'ble Supreme Court reiterated the aforesaid principle and held as under:-

"5. The impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311 (2) of the Constitution. Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it was not reasonably practicable to hold a departmental enquiry against the appellant. There are (i) the appellant has thrown threats that he with the help of other police employees will not allow holding of any departmental enquiry against him and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Now as stated earlier after the two revision applications were allowed on October 13, 1980, the appellant had rejoined service as Head Constable on March 5, 1981 but he was immediately placed under suspension. Thereafter, two show cause notices dated April 4, 1981 were issued against him calling upon him to reply thereto within 10 days after the receipt thereof. Before the service of these notices the incident of alleged attempt to commit suicide took place on the morning of April 6, 1981 at about 11.00 a.m. In that incident the appellant sustained an injury on his right arm with a knife. He was, therefore, hospitalised and while he was in hospital the two show cause notices were served on him at about 10.00 p.m., on April 6, 1981. Before the appellant could reply to the said show cause notices respondent 3 passed the impugned order on the very next date i.e. April 7, 1981. Now the earlier departmental enquiries were duly conducted against the appellant and there is no allegation that the department had found any difficulty in examining witnesses I n the said inquiries. After the revision applications were allowed the show cause notices were issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned counsel for the respondents to point out what impelled respondent 3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as required by Article 311 (2). The learned counsel for the respondents could only point out clause (iv) (a) of sub-para 29 (A) of the counter which reads as under:

"The order dated April 7, 1981 was passed as the petitioner's activities were objectionable. He was instigating his fellow police officials to cause-indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful."

This is no more than a mere reproduction of para 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned orde rinsupport 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 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 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. No particulars are given. Besides it is difficult to understand how he could have given threats etc. when he was in hospital. It is not shown on what material respondent 3 came to the conclusion that the appellant had thrown threats as alleged in para 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at Jullundur on April 3, 1981 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one's contention that the said SHO was threatened. Respondent 3's counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with of the inquiry envisaged by Article 311 (2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained."

16. In the case of Chief Security Officer (supra), while reiterating the aforesaid proposition of law, their lordships of Hon'ble Supreme Court while considering the identical Rule with regard to employee of Railway Protection Force, held that in the absence of sufficient material or good ground for dispensation with inquiry, the recourse of Article 311 (2) cannot be adopted by the authorities.

17. In the case of Prithi Pal Singh (supra), their lordships of Hon'ble Supreme Court held that holding of departmental proceeding is the Rule. The second proviso to Article 311 (2) of the Constitution provides an exception. Existence of such an exceptional situation must be shown to exist on the basis of relevant materials, to quote relevant portion of para 9 as under:-

"9. Holding of a departmental proceeding is the rule. The second proviso appended to Article 311 (2) of the Constitution of India provides for an exception. It is a trite law that existence of such an exceptional situation must be shown to exist on the basis of relevant materials. In this case, even such a question did not arise as a departmental proceeding had been held and the appellant was not found guilty therein. Once he was exonerated of the charges, the question of issuing an order of dismissal against him and that too, upon dispensation of a formal inquiry, did not arise. The judgment of the High Court as also of the first appellate court are set aside and that of the trial court is restored. In the peculiar facts and circumstances of the case the appellant shall be entitled to the costs, which is quantified at Rs.10,000."

18. A Full Bench of this Court in the case of Masudan Pathak (supra), whle considering the proviso to Article 311 (2) and Rules relating to Railway Protection Force, had held that inquiry may be dispensed with only in case it is reasonably not practicable. The aforesaid proposition of law has been reiterated by a Division bench of this Court in the case of State of U.P. Vs. State Public Service Tribunal (supra) and in the case of Balveer Singh (supra).

19. In another case, decided by one of us (Hon'ble Mr. Justice Devi Prasad Singh), reported in [2008 (26) LCD 93]: Moti Lal Vs. State of U.P. and others (supra), in identical situation where the officer was dismissed in pursuance of power conferred by clause (b) of sub-rule (2) of Rule 8 of 1991 Rules, the order of punishment has been set aside keeping in view the aforesaid proposition of law, and the following observation is made:-

" 12. It has been settled by the catena of decisions of judgments of Hon'ble Supreme Court that denial of opportunity provided by the statute or non-compliance of statutory provisions falls in the category of exception. Ordinarily, the authority should adopt the recourse of departmental proceedings in accordance with Rules before awarding major penalty. The order for dismissal from service which takes away the right of livelihood of an employee should be passed only with due compliance of principles of natural justice and the service rules. The provisions contained in rule 8 (2) (b) of the rules, is an exception to the general rule which requires compliance of principles of natural justice. The recourse of Rule 8 (2) (b) of the Rules, should be adopted only in exceptional cases and justified grounds where the departmental inquiry against the delinquent is not possible or in case departmental inquiry his held, it shall affect the national integrity, security or alike matters. "

20. In view of the aforesaid proposition of law and keeping in view the factual matrix on record that the respondents passed the order of suspension and reason assigned in the impugned order of dismissal from service, is not in conformity with the provisions of clause (b) of sub-rule (2) of Rule 8 of 1991 Rules, we are of the view that the order of dismissal from service suffers from vice of arbitrariness. The authority could have proceeded with regular inquiry after passing of the impugned order of suspension where the petitioner could have availed the opportunity to defend his case by producing medical certificates or adducing other evidence. Otherwise, the denial of opportunity by holding regular inquiry, seems to suffer from vice of arbitrariness.

21. We are of the view that the writ petition deserves to be allowed. The order of dismissal in pursuance of power conferred by Rule 8 (2) (b) of 1991 Rules also does not stand good and vitiates. However, since the petitioner has not discharged duty, we are not inclined to provide arrears of salary. Keeping in view the fact that the petitioner was placed under suspension and was not paid subsistence allowance, we assess a lumpsum amount of Rs.50,000/- which shall be paid to be petitioner in lieu of arrears of salary and 25000/- in lieu of subsistence allowance.

22. Subject to above, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned judgment and order dated 21.3.2003, passed by the Tribunal in Claim Petition No.2084/1999, as contained in Annexure No.1 to the writ petition. The claim petition preferred before the Tribunal also stands allowed. Further writ of certiorari is issued quashing the impugned order of dismissal from service dated 21.7.1997, as contained in Annexure No.3 to the writ petition.

Respondents shall pay a lumpsum amount of Rs.75,000/-(supra) to the petitioner within two months from the date of service of a copy of this judgment and shall restore the petitioner in service forthwith, with effect from May, 2013 and be paid salary without any back wages but for the purpose of service record, continuity of service shall be provided to the petitioner. Keeping in view the facts and circumstances of the case, liberty is given to the respondents to proceed with regular inquiry after serving chargesheet. In case State took a decision to hold a fresh inquiry, let fresh inquiry be concluded expeditiously say, within six months from the date of receipt of a certified copy of the present order.

The writ petition is allowed accordingly. No orders as to costs.

[Justice Ashok Pal Singh] [Justice Devi Prasad Singh]

Order Date :- 30.4.2013

Rajneesh DR-PS)