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Layak Singh v. State Of U.P. Thru' Home Secy. U.P. Govt. Of Lkw. & Ors. - WRIT - A No. - 53604 of 2003 [2007] RD-AH 16606 (11 October 2007)

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Court No.40

Civil Misc. Writ Petition No.53604 of 2003

Layak Singh Vs. State of U.P. and others


Hon'ble V.C. Misra, J.

Heard Sri Rajesh Nath Tripathi learned counsel for the petitioner and the learned standing counsel on behalf of the respondents.

Counter and rejoinder affidavits have been exchanged. On the joint request of learned counsel for the parties, this writ petition is being disposed off finally at the admission stage itself in terms of the Rules of the Court.

The facts of the case in brief are that the petitioner was appointed as constable in Civil Police against the substantive vacancy on 20.8.1996 through proper recruitment, and who was later on confirmed on the said post of constable and was subsequently transferred in the Civil Police at Police Line, Agra. He was thereafter transferred to Kanpur. On 22.6.2003 while the petitioner was on duty an incident took place regarding kidnapping and abduction of one Km. Rajwati. The petitioner was implicated in the Crime Case No.175 of 2003 under Sections 163, 366 and was lodged at police station Maharajpur District Kanpur City. Subsequently, the petitioner was released on bail on 2.8.2003. In respect with the said incident the petitioner was also placed under suspension on 3.7.2003 and the departmental proceedings were initiated against him. The respondents in pursuance of filing of the charge sheet before the Court, dismissed the petitioner without initiating any departmental inquiry and even without serving a charge sheet exercising powers under Section 8 (2) (Kha) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeals) Rules, 1991 (hereinafter referred to as the Rules).

Being aggrieved, the petitioner filed the present writ petition on the ground that the investigation report/charge sheet dated 4.9.2003 was filed only on the basis of suspicion and assumption contrary to what was on record. The authenticity of which could be tested only in the Court of law where the criminal proceedings were pending and the authorities committed manifest error of law and procedure in not adhering to the basic principles and penalty could be arrived at only after the decision of the Court but without waiting for the said decision, the petitioner was removed from service. This act of the respondents was voilative of Para-492 of the Police Regulations. Secondly, the punishing authority also did not record its reason as to why it was dispensing with the inquiry procedure and that too without affording an opportunity of hearing to the petitioner prior to the passing of the punishment which is voilative of Article 311 (2) of the Constitution of India and Section 14 of the Punishment and Appeal Rules, 1991. The relief sought by the petitioner is for quashing the impugned order dated 24.9.2003 (Annexure-5 to the writ petition) with a further relief in the nature of mandamus commanding and directing the respondents to reinstate the petitioner in service with salary and other service benefits having accrued to him w.e.f. 24.9.2003.

It is an admitted case of the respondents that no departmental inquiry was initiated neither any opportunity of hearing was provided to the petitioner as the authority concerned has exercised its power under Section 8(2) (b) of the Rules of 1991. The petitioner was subjected to harshest punishment on the ground that he was a habitual absentee without any authorized leave and this type of indiscipline was not inconsonance with the service of disciplined police force.

The learned counsel for the petitioner relied upon the decision of this Court rendered in case of Ragunath Singh Vs. State of U.P. and others (2007 (3) ADJ 143); Vashishth Narain Singh Vs. State of U.P. and others, passed by the Division Bench of this Court in Special Appeal No. 165 of 2007, decided on 8.2.2007. He has submitted that before removing/dismissing the petitioner from service, the petitioner was neither afforded any opportunity of hearing nor any departmental enquiry was held nor any notice or charge sheet was served on the petitioner.

Learned Standing Counsel has placed much emphasis on Rule 8 (2) (b) of the Rules, 1991 which empowers the authority concerned to dismiss or remove a person from service or reduce him in rank without holding an enquiry if it is satisfied that for some reason to be recorded in writing, it is not reasonably practicable to hold proper enquiry and initiate disciplinary proceedings. Rule 8 of the Rules, 1991, reads as follows :-

"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 Rules 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 reasonable practicable to hold such enquiry; or

(c) .............................

(3) .............................

(4) ............................."

From perusal of the impugned order it appears that no reason has been given in the impugned order as to why and under what compelling circumstances, the authority concerned took such decision without disclosing its satisfaction that holding of an enquiry is not reasonably practicable. In view of the provisions of Rule 8 (2)(b) of the Rules, 1991 it is absolutely clear that two conditions must be satisfied to sustain any action taken thereunder firstly, there must exist a situation which renders holding of an enquiry as not reasonably practicable and secondly, the disciplinary authority must record in writing its reasons in support of its satisfaction. The disciplinary authority is not expected to dispense with the disciplinary enquiry arbitrarily or lightly merely to avoid the holding of an enquiry. The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit on the concerned authority.

Considering the facts of the case and in the light of the settled legal position and in view of the provisions of Rule 8 (2) (b) of the Rules, 1991, I find that in the impugned order dated 24.9.2003 (Annexure-5 to the writ petition) nowhere it has been shown that the authority concerned has recorded its satisfaction that holding of a disciplinary enquiry was not reasonably practicable. Therefore, in the absence of the aforesaid two ingredients provided under the provisions of Rule 8 (2) (b) of the Rules, 1991 the impugned order, being in violation of the same, is liable to be quashed. Accordingly, the impugned order dated 24.9.2003 (Annexure-5 to the writ petition) is hereby quashed. The writ petition is allowed to the above extent. Consequently, the petitioner shall be reinstated in service on the said post with continuity in service along with all consequential benefits and arrears of salary in accordance with the rules within a period of three months from the date of production of a certified copy of this order accompanied with a copy of the writ petition with its all annexures before the authority concerned. However, the respondents are at liberty to hold a fresh enquiry against the petitioner, if any, in accordance with law.

No order as to costs.

October 11, 2007



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