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MOHD. KASEER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Mohd. Kaseer v. State Of U.P. And Others - WRIT - A No. 19942 of 2006 [2006] RD-AH 21020 (13 December 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 19942 of 2006

Mohd. Kaseer

Versus

State of U.P. and other

Hon'ble V.K. Shukla.J.

Petitioner was appointed as constable in U.P. Police  in the year 1989. Petitioner was transferred from District Meerut to District Sant Kabir Nagar on the order passed by Police Headquarter, Allahabad. Petitioner was relieved on 22.07.2002 and was to report at Police Lines District Sahjahanpur, on 30.07.2002, but petitioner did not present himself and absented himself and thereafter presented himself on 22.07.2003 after approximately 366 days. Thereafter services of the petitioner has been dispensed with in exercise of power vested under Rule 8(2)(b)  U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991. Appeal/ Revision preferred against the same has also been dismissed. At this juncture present writ petition has been filed.

Counter affidavit has been filed contending therein that petitioner absented himself and presented himself after delay of approximately  366 days and further past conduct of petitioner has also referred and seeing increasing tendency of indiscipline it has been contended that said decision has been taken.

Rejoinder affidavit has been filed and therein rebutting the  statement of fact mentioned in the counter affidavit and that of writ petition has been reiterated.  

After pleading mentioned above have been exchanged present writ petition has been taken up with the consent of the parties for final hearing and disposal.

Sri M.L. Rai Advocate, contended with vehemence that in the present case there were valid reason for absence of petitioner and without recording any finding that inquiry into the matter is practically not feasible, the authority concerned has passed totally unsustainable order of dismissal which has been subsequently affirmed, as such writ petition is liable to be allowed.

Learned Standing Counsel countered the said submission by contending that impugned order clearly gives reasons for dispensing with the service of the petitioner as such no interference be made.

In order to appreciate the respective arguments which has been advanced relevant Rule 8 of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 is being quoted below:

Rule 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 is is not expedient to hold such enquiry.

(3) All orders of dismissal and removal of Head Constables or Constables shall be passed by the 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 escane shall be dismissal 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."

Bare perusal of the aforesaid rules would go to show that holding of inquiry is a rule and dispensing with the enquiry is an exception.  Before proceedings to impose any one of the major penalty of dismissal, removal or reduction in rank the departmental inquiry is must. However in certain contingency said rigor of the rule can be dispensed with and one such contingency provided for is that in case it is not reasonably practicable to hold inquiry and for this reasons will have to be recorded in writing. The said authority is to be exercised in exceptional circumstances and that to by recording finding to the effect as to why it is not reasonably practical to hold an inquiry. Thus, recording of finding that it is not reasonably practicable to hold inquiry before proceeding to exercise aforesaid authority of dispension of service under Rule 8 (2)(b) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 is sine quo non.

This Court in the case of Ravindra Raghav Vs. State of U.P. reported in 2005 (3) AWC 2409 taking in view that the provisions of Rule 8(2) (b) are pari materia with second proviso (b) of Article 311 sub clause 2 and the keywords for exercise of such authority is "not reasonably practicable" held as follows . Paragraphs 6, 7 & 8 of the said judgment are being extracted below:

6. Rules 8 (2) (b) of the Rules provides that where the authority empowered to dismiss or remove a person is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry, the Police Officer shall be dismissed or removed without proper enquiry as contemplated in sub-rule (2) of Rule 8 of the Rules, the authority empowered to dismiss has to be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold inquiry. Thus, the requirements are two fold; firstly recording of reasons and secondly that it is not reasonably practicable to hold such enquiry. It is well settled that when power under Rule 8(2)(b) is invoked judicial review is permissible where subjective satisfactions of the authority that it was not reasonably practicable to hold an enquiry was not based on objective facts as laid down by the Apex Court in Jaswant Singh's case (supra). The Apex Court in Jaswant Singh's case (supra) had considered the provisions of Article 311 (2) second proviso (b) of the Constitution of India. Rule 8(2) (b) of the Rules is part materia with the second proviso (b) of Article 311 Sub-Clause (2). The Apex Court in the aforesaid judgment laid down two conditions for invoking the power under clause (b) of Rule (8) (2) of the Rules. Following was laid down in paragraph 4 of the said judgment.

"....... insofar as clause (b) is concerned this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any inquiry "not reasonably practicable"; and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. Of course the question of practicability would depend on the existing fact situation and other surrounding circumstances, that is to say, that the question of reasonable practicability must be judged in the light of the circumstances prevailing at the date of passing of the order. Although clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a 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 ruse to dispense with the inquiry. Also see: Shivaji Atmaji Sawani Vs. Union of India; Shivaji Atmaji Sawani Vs. State of Maharastra and Ikrammuddin Ahmed Borah Vs. Superintendent of Police Darrang."

7. The Apex Court further held in the above judgment that clause (b) of 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 enquiry. Further satisfaction has to be based on certain objective facts and not the outcome of whim or caprice of concerned officer. Following was laid down in paragraph-5 of the said judgment:

5......................it was incumbent on the respondents to disclose to at the Court the material in existence at the date of 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. This is clear from the following observation at page 270 of Tulsiram's 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 fall."

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 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. In the present case the order of Superintendent of Police dismissing the petitioner from service after invoking the powers under Rules 8 (2) (b) of the Rules has not given any reason as to why it is not reasonably practicable to hold an enquiry. The order notes the incident dated 19th October 2000 in which allegation against the petitioner was made that he alongwith other constables had realized Rs. 50 each from drivers of Combine Machines and when Incharge Kotwali reached on the spot then he misbehaved with Incharge in presence of public. Observation has been made in paragraph 3 of the order that by the misconduct of the petitioner the faith of public is losing in police and by the above act of petitioner there is strong possibility of encouragement of indiscipline in the force. After noticing the above facts, the Superintendent of Police held that he is satisfied that it is not reasonably practicable to hold enquiry against the petitioner. It was further observed that in case petitioner remain in the force he may repeat the incident in further and taking advantage of he being in police he may make efforts to save himself from his deeds and in continuing the petitioner in department there will be possibility of increase of indiscipline in the employees. No reason in the order has been recorded as to why it is not reasonably practicable to hold disciplinary enquiry against the petitioner. It has been observed by the Apex Court in Union of India Vs. Tulsiram Patel (1985) 3 SCC 398; that disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily. In the counter-affidavit which has been filed by the respondents also there is no reason given for not holding disciplinary enquiry against the petitioner. No facts have been mentioned in the order or referred to on the basis of which satisfaction has been recorded for dispensing holding of disciplinary enquiry against the petitioner. The observation that in the event petitioner is allowed to remain in the department there is possibility of increase of indiscipline in the department cannot be held to be germane for dispensing holding of disciplinary enquiry. The appellate authority while dismissing the appeal has observed that there was possibility of petitioner threatening the complainant and witnesses was an observation which does not find place in the order of Superintendent of Police who invoked the power under Rule 8(2) (b) of the Rules. Neither any reasons have been recorded in the order of Superintendent of Police for dispensing holding of disciplinary enquiry nor other observations made in the order to the effect that continuance of the petitioner in the police force would have encouraged indiscipline in the department were relevant for dispensing holding of disciplinary enquiry. The key words in Rule 8(2) (b) are ''not reasonably practicable'. The rules contemplate exercise of power under Rules 8 (2) (b) for dispensing holding of disciplinary enquiry when it is not reasonably practicable to hold such enquiry. The reasons thus which can satisfy the requirement of Rule 8 (2) has to be referable to not reasonably practicable to hold an enquiry. No reasons have been given in the order which can be said to fulfill the requirement of not reasonably practicable to hold enquiry. The statutory requirement of exercising the power is absent in the present case. As observed above, no reasons have also been given in the counter affidavit bringing on the record the reasons on the basis of which such satisfaction was recorded by Superintendent of Police, the Court is at last to find out the basis for invoking the power under Rule 8 (2) (b) of the Rules."  

This Court again in the case of Bhupat Singh Yadav Vs. State of U.P. reported in 2006 (4) ESC 2303 that for invoking the power under second proviso to Rule 8(2)(b) the authority will have to satisfy himself for reasons to be recorded in writing that it is not reasonably practicable to hold enquiry. Paragraphs 7 and 9  of the said judgment are being extracted below:

"7. It is, therefore, clear that for invoking the power under the second proviso to Rule 8(2) of the 1991 Rules, the authority has to be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such inquiry.

9. In Sudesh Kumar Vs. State of Haryana & Ors., (2005) 11 SCC 525 the Supreme Court observed as follows :-

"It is now established principle of law that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2) (b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.

A reasonable opportunity of hearing in Article 311(2) of the Constitution would include an opportunity to defend himself and establish his innocence by cross-examining the prosecution witnesses produced against him and by examining the defence witnesses in his favour, if any. This he can do only if inquiry is held where he has been informed of the charges levelled against him. In the instant case, the mandate of Article 311(2) of the Constitution has been violated depriving reasonable opportunity of being heard to the appellant."

Now the case in hand is being seen, petitioner has been transferred on 12.08.2002 from Meerut to Sahjahanpur and was relieved from District Meerut on 22.07.2002 and was to join at Police Line Sahjahanpur, on 30.07.2002. In stead of reporting at Police Line Sahjahanpur petitioner has reported on 22.07.2003 i.e. after 366 days. The Authority concerned thereafter has invoked and exercised power under Rules 8 (2) (b) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991. Impugned order in question which has been passed clearly reflects that service of the petitioner has been dispensed with keeping in view the past conduct of the petitioner that there was no chance of improvement and petitioner has absented himself for about 366 days, as such it would not be reasonably practicable possible to hold inquiry.  No reason whatsoever has been indicated as to why it was not reasonably practicable to hold inquiry into the matter and merely because petitioner had  absented himself for 366 days was not sufficient ground, that it was not reasonably practicable to hold inquiry and reason ought to have been indicated that same was impossible and not at all feasible. Order in question reflects that past conduct of the petitioner clearly warranted passing of order. Past conduct of the petitioner is certainly relevant at the point of time of awarding punishment in regular departmental proceedings, but at the point of time when authority has chosen to exercise and invoke extraordinary power conferred upon him under Rule 8 (2)(b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 then he has to record satisfaction that it is not reasonably, practically possible to hold inquiry. Rule 8 (2)(b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 requires recording of reason in writing that it is not reasonably practicable possible to hold inquiry and this recording of reason certainly has to be before passing the order of dismissal and not after the authority stood exercised. In the present case  as power under Rule 8 (2)(b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 has been exercised, without recording any reason in writing that it is not reasonably, practicable possible to hold inquiry, impugned order of dismissal and subsequent orders affirming the same in Appeal/Revision are liable to to set aside and as such all the orders are hereby quashed and set aside. However passing of this order will not prevent the respondents from proceeding to exercise and invoke the authority vested under U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 in accordance with law.

With the above observation present writ petition is allowed and disposed of.

Dated: 13th December, 2006

Dhruv

     


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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