Satyendra Singh vs State Of U.P.And Others
2013 Latest Caselaw 2514 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- WRIT - A No. - 39315 of 1993
 
Petitioner :- Satyendra Singh
 
Respondent :- State Of U.P.And Others
 
Petitioner Counsel :- A.K. Bhatt
 
Respondent Counsel :- S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner is a Constable in Civil Police. He has preferred this writ petition for issuance of a writ of certiorari to quash the order dated 31.07.1993, whereby he has been dismissed from service.

Brief facts of the case are that the petitioner was a Constable in Civil Police. He was placed under suspension on the ground that a criminal case was pending against him under Section 365 I.P.C.. On 31.07.1993 the respondent no. 2 i.e. Senior Superintendent of Police, Saharanpur has dismissed the petitioner from service by invoking the provisions of Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (for short, the "Rules, 1991").

Initially, when the writ petition was filed, on 07.10.1993 one month's time was granted to the respondents to file counter affidavit. Thereafter on 03.01.2012 eight weeks and no more time was granted to the learned Standing Counsel to file counter affidavit. However, no counter affidavit has been filed as yet nor there is any application for extension of time. This petition is pending for about last 20 years. State functionaries have preferred not to file counter affidavit. Learned Standing Counsel states that information was sent to the authorities but he has not received any instruction.

I have perused the impugned order. In the impugned order, the Senior Superintendent of Police has mentioned that there are serious charges against the petitioner and it is not possible to hold the disciplinary proceeding against him and, as such, by invoking his powers under Rule 8(2)(b) of the Rules, 1991 he has dismissed the petitioner from service.

Issue as to when and how the provision of Rule 8(2)(b) of the Rules, 1991 can be invoked, is no more res integra and there are large number of judgments of this Court, wherein it has been held that by simply reciting Rule 8(2)(b) of the Rules, 1991 is not enough. The disciplinary authority must record reasons why the disciplinary proceeding is not possible.

A Division Bench of this Court in the case of Pushpendra Singh (C.P. 2187) and another v. State of U.P. and another, reported in 2008 (3) ADJ 689 (DB), has held that Rule 8(1) and (2) of the Rules, 1991 is pari materia with Article 311 (1) and (2) of the Constitution of India, which gives constitutional protection to a Member of civil service of the Union or of the State. Relying upon the judgment of the Supreme Court in the case of Union of India and another v. Tulsiram Patel, reported in AIR 1985 SC 1416, the Division Bench in paragraph-7 of the Pushpendra Singh (supra) held as under:

"7. ... The normal rule is that no major punishment, such as, dismissal, removal or reduction in rank should be inflicted without taking recourse of regular disciplinary enquiry against such delinquent. However, second proviso to Article 311 (2) has carved out certain exception where even without holding regular proceeding punishment of dismissal, removal or reduction in rank can be inflicted. Similarly, Rule 8 (2)(b) like Article 311 (2) (b) provides that where the authorities empowered to dismiss or remove a person or to reduce him in rank is satisfied that it is not reasonably practicable to hold such enquiry then in that event he has to record reasons as to why it is not reasonably practicable to hold the enquiry. 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 become 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. Tulsi 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 Hon'ble Apex Court at page 1479 in Tulsi Ram Patel (supra) held as follows:

"A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrary 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 Supreme Court in the case of Jaswant Singh v. State of Punjab and others, reported in (1991) 1 SCC 362, has held that 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. The decision to dispose 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.

Taking similar view, another Division Bench of this Court in the case of Yadunath Singh v. State of U.P. and others, 2009 (9) ADJ 86 (DB), relying upon the judgment of Tulsiram Patel (supra), has held that satisfaction of the disciplinary authority has to be based on germane grounds and not ipse dixit. Similar view has also been taken by this Court in the cases of Dharam Pal Singh Chauhan v. State of U.P. and others, 2011 (4) ADJ 851; Gulabdhar v. State of U.P. and others, 2011 (5) ADJ 835; Umesh Kumar v. State of U.P. and others, 2009 (5) ADJ 405; Bishambher Singh Bhadoria v. State of U.P. and others, 2008 (8) ADJ 566; Ram Yagya Saroj v. State of U.P. and others, 2010 (4) AWC 3495 (LB); and Kuldeep Kumar v. State of U.P. and others, (2011) 3 UPLBEC 2421.

In the case of Satyavir Singh and others v. Union of India and others, reported in (1985) 4 SCC 252, the Supreme Court has held that 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, 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 enquiry and the order of penalty following thereupon.

From the aforesaid, it is well established 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, 1991 and dispense with the regular departmental enquiry. It is obvious that the recording in writing of the reason for dispensing with the enquiry must proceed the order imposing the penalty. Moreover, Rule 8(2)(b) of the Rules, 1991 itself requires that the authority will have to record a satisfaction as to why it is not reasonable and practicable to hold an enquiry and thereafter, to proceed to pass orders. Therefore, 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, as 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 reason through affidavits filed in the case.

After careful consideration of the facts and circumstances of the case and bearing in mind the law laid down in the aforementioned judgments, I find that that in the present case, no such reason has been recorded by the disciplinary authority but there is only recital of Rule 8(2)(b). Hence, the impugned order dated 31.07.1993 passed by the Senior Superintendent of Police, Saharanpur deserves to be quashed and it is accordingly quashed. The matter is remitted to the Senior Superintendent of Police, Saharanpur to hold fresh enquiry in accordance with law.

Accordingly, the writ petition is allowed.

No order as to costs.

Order Date :- 22.5.2013

SKT/-