Bhagwan Singh Baghel vs State Of U.P. And Others
2013 Latest Caselaw 4302 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 
AFR
 
Case :- WRIT - A No. - 2353 of 2000
 

 
Petitioner :- Bhagwan Singh Baghel
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- R.U. Ansari,A.K.Singh,Arvind Kumar Singh Ii
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioner challenging the order dated 28.12.199 by which he has been removed from service.

Briefly stated, the facts of the case are that the petitioner was a permanent Constable in the U.P. Civil Police. He was appointed in the year 1981 and at the relevant time was posted at Gorakhpur on 22.12.1999. It is stated that the petitioner fell ill and he had to go home as he was suffering from dysentery and was on bed rest. On 25.12.1999 when he reported back for duty he was allowed to join his duties and he also marked his attendance upto 27.12.1999. Thereafter all of sudden the impugned order dated 28.12.1999 has been served upon the petitioner removing him from service by the competent authority exercising power under Rule 8(b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991.

I have heard Shri Arvind Kumar Singh-II, learned counsel for the petitioner and the learned standing counsel appearing for the respondents and have perused the documents on record.

The submission of the learned counsel for the petitioner is that the impugned order has been passed holding that it is reasonably not practicable to hold any enquiry and therefore neither was any enquiry held nor any opportunity of hearing was given to the petitioner.

From a perusal of the impugned order, it will be seen that the petitioner's services have been dispensed with in exercise of powers under Rule 8(b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. The rule 8 reads as under:

"8(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, 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."

Rule 8 empowers the competent authority to impose a penalty of removal, dismissal or reduction in rank and dispense with the services of a police officer to whom the Rules apply, if the authority is satisfied, for reasons to be recorded in writing by the competent authority that it is not reasonably practicable to hold such enquiry. The petitioner, as per his own admission, remained absent from duty from 22.12.1999 to 24.12.1999 and he reported back for duty on 25.12.1999 and worked upto 27.12.1999 and also signed the attendance register and on 28.12.1999 the impugned order has been passed. The impugned order does not record any reasons as to why the power under Rule 8(b) of the Rules, 1991 was resorted to and if the petitioner was absent from duty without a proper leave application being sanctioned why it was impracticable to hold an enquiry by issuing a charge sheet to the petitioner. All that has been stated in the impugned order is that the petitioner has been habitually absenting himself from duty and has been negligent in the performance of his duties and also disobeyed the order. These allegations are of general nature and in the absence of any particulars are absolutely vague. If absence from duty was the reason for terminating the services of the petitioner, it was the duty of the competent authority to have issued a charge sheet to him and sought his explanation and held an enquiry and only if the guilt of the petitioner was established then the order of penalty could have been passed. Absence from duty cannot be such a ground wherein it may be said that it is impracticable to hold an enquiry, when as in the present case the employee is throughout present thereafter and attending his duties.

The Constitution Bench of the Supreme Court in the case of Union of India Vs. Tulsiram Patel reported in AIR 1985 1416 has held in paragraphs 132, 133 and 134 as under:

"132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word "inquiry" in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2).

133.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.

134.It is obvious that the recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty.The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order 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 for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. 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."

Thus in the facts of the present case and the settled legal position, the impugned order dated 28.12.1999 is wholly illegal and arbitrary and is accordingly set aside.

The writ petition is allowed. There shall be no order as to cost.

Order Date :- 19.7.2013

o.k.