Ram Bresh Yadav vs The State Of U.P. And 3 Others
2022 Latest Caselaw 21136 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 34
 

 
Case :- WRIT - A No. - 19180 of 2021
 

 
Petitioner :- Ram Bresh Yadav
 
Respondent :- The State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vinod Kumar Mishra,Mohammad Fahad,Rishabh Kesarwani
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard the learned counsel for the petitioner and learned Standing Counsel for respondents.

2. Petitioner has filed this writ petition challenging the order dated 27.01.2021 (Annexure 1 to the writ petition) whereby he has been dismissed from service without holding any enquiry in exercise of powers under proviso to Rule 8(2)(b) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "Rules, 1991").

3. Learned counsel for the petitioner submits that on one hand the disciplinary authority has recorded his own finding about the alleged misconduct and unsuitability of the petitioner to continue in service and on the other hand without giving any reasons as to why the departmental enquiry is not reasonably practicable has simply used the word that "the enquiry is no more reasonably practicable" and accordingly has passed the impugned order.

4. In my view it was incumbent upon disciplinary authority to hold departmental enquiry in accordance with the statutory provision and he could not have declined opportunity to the petitioner exercising the power prescribed under proviso to Rule 8(2)(b) of Rules, 1991 as a pretext as that would not only be in violation of principles of natural justice but also in the teeth of Article 311 of the Constitution of India.

5. This question has been repeatedly considered by this Court and a Division Bench of this Court in Yadunath Singh Vs. State of U.P. & Others 2009 (9) ADJ 86, in a similar matter, has observed in paras 4 to 7 as under:

"4. It is common ground that the service of the writ petitioner-appellant is governed by the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "the Rules"). Rule 8 of the aforesaid Rules provides for dismissal and removal of police officers of the subordinate rank only after proper inquiry. However, proviso (b) to Rule 8(2) contemplates that where the government is satisfied, that in the interest of the security of the State, it is not expedient to hold such inquiry, it can be dispensed with. It further provides that 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 an inquiry, it may dispense with the inquiry. 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:

"130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform; capable of being put into practice, done or accomplished : feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner : to a fairly sufficient extent". 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 by way 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 an 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 vs. Union of India is an instance in point."

6. The ratio of the decision in Tulsiram Patel's case (supra) has been further explained in paragraph 128 to 132, 133, 135, 138 and 141. Applying the aforesaid test, in the present case, the question is as to whether the loss of rifle carried by the petitioner makes out a situation for not holding an enquiry. The reason given in the impugned order that the continuance of the petitioner in service would have an adverse moral effect has absolutely no rational connection with the subject matter of inquiry. Whether the rifle was lost in transit by the petitioner or not could have been enquired into and it is not the case of the respondent that there was any threat to security or anything otherwise which may obstruct the smooth holding of an inquiry. The reason given in the impugned order, therefore, proceeds on an assumption which cannot be accepted as reasonable. It cannot stand the scrutiny as indicated by the Apex Court in the decision of Tulsi Ram Patel (supra) and we are, therefore, unable to approve the same.

7. The question as to whether the petitioner has an alternative remedy or not is not to be gone into the present case when on the facts on record, the reason given in the impugned order does not appear to be germane to the inquiry. The satisfaction recorded by the authority does not proceed on a reasonable ground and, therefore, it is not necessary for us to relegate the petitioner to the alternative remedy of filing an appeal. We are satisfied that the competent authority has not applied its mind in correct perspective and the order being contrary to law, the direction of the learned single Judge to avail the alternative remedy does not commend to us."

6. This aspect has also been considered by this court in catena of decisions where it has been held that the disciplinary authorities are completely ignoring and failing to consider the matter in correct perspective and regularly passing orders which are not in conformity with the requirement of law where an action could have been taken against an employee without holding any department enquiry (See: Raja Ram Yadav Vs. State of U.P. and others, 2009(6) ADJ 657; Jahir Singh Yadav Vs. State of U.P. and others, 2009(6) ADJ 605; Subhas Chandra Yadav Vs. State of U.P., 2009 All L.J. (3) 414; Satya Prakash Vs. State of U.P. and others (Civil Misc. Writ Petition No. 28875 of 2006), decided on 07.11.2008; Ram Sanehi Misra Vs. State of U.P. and others (Civil Misc. Writ Petition No. 61271 of 2006), decided on 05.10.2009; and, Ravi Dutt Tyagi Vs. State of U.P. and others (Civil Misc. Writ Petition No. 56979 of 2006), decided on 17.02.2009).

7. The words "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 be rested solely on the ipse dixit of the concerned authority. Apex Court in the case of Jaswant Singh Vs. State of Punjab and others AIR 1991 SC 385 has observed:

"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."

8. The learned Standing Counsel could not dispute that the observations made in the aforesaid judgments are clearly applicable to the case in hand and the impugned order thus cannot legally be sustained.

9. The writ petition is allowed. The impugned order dated 27.01.2021 (Annexure 1 to the writ petition) is hereby quashed. Petitioner shall be entitled for all consequential benefits.

10. However, this order shall not preclude the respondents from passing a fresh order in accordance with law.

Order Date :- 15.12.2022

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