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Vashishth Narain Singh v. State Of U.P. & Others - SPECIAL APPEAL No. 165 of 2007 [2007] RD-AH 2118 (8 February 2007)


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Court No.32

Special Appeal No.165 of 2007

Vashishth Narain Singh   ..Appellant


State of U.P. and others         .. Respondents


Hon'ble S.Rafat Alam, ACJ.

Hon'ble Sudhir Agarwal,J.

This appeal, under the Rules of the Court, has been filed against the judgment dated 19.12.2006 passed by the Hon'ble Single Judge in Civil Misc. Writ Petition No. 2357 of 2004 whereby the writ petition has been disposed of directing the respondents no. 2 and 3 to hold an enquiry against the petitioner within a period of ten days and to conclude the same within a period of six months in accordance with law. The Hon'ble Single Judge has further held that the impugned order dated 26th December, 2003 will be kept in abeyance for a period of six months or till the conclusion of the enquiry whichever is earlier. The Hon'ble Judge has further held that the order, however, would not amount to reinstatement of the petitioner in service though he would be entitled for the benefits whatever he was so entitled under the law.

The appellant has assailed the aforesaid judgment only to the extent it has kept the impugned order dated 26th December, 2003 in abeyance and has further held that the petitioner-appellant would not be entitled for reinstatement.

Sri V.Malaviya, learned counsel appearing for the appellant submitted that a person holding civil post cannot be dismissed or removed from service except after holding proper enquiry in accordance with law and after affording opportunity to him. This right is conferred by Article 311 (2) of the Constitution of India as also under Rule 8(2) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal Rules), 1991 (hereinafter referred to as the Rules). He further submitted that there are certain exceptions under Clause (a) & (b) of Rule 8(2) of the said Rules read with proviso to Article 311 (2) of the Constitution of India whereunder the competent authority may dismiss or remove a person by recording reasons to the satisfaction that it is not reasonably practicable to hold such enquiry. The order, however, passed in violation of the aforesaid provision, is illegal and void ab initio and, therefore, it is contended that the Hon'ble Single Judge erred in law in not setting aside the order impugned in the writ petition  and only directing it to be kept in abeyance, inasmuch as, without setting aside the punishment order, there is no question of holding a fresh enquiry. He said that the petitioner-appellant would also not be entitled for any benefits unless such order is set-aside. He further contended that mere keeping the order in abeyance for a limited period, would result in revival of the order after the expiry of the period and it is inconceivable that there would exist a punishment order which is impugned in the writ petition and the second fresh order passed after holding enquiry afresh as directed by this Court and, therefore, in law as well as in the interest of justice, it would be expedient that the order impugned in the writ petition ought to have been set-aside.

Having heard learned counsel for the appellant, we find that the Hon'ble Single Judge has clearly recorded a finding that the order impugned in the writ petition dated 26th December, 2003 did not contain any reason whatsoever and it was in the teeth of Rule 8(2) of 1991 Rules and, therefore, could not have been sustained. Rule 8(2) to proviso Clause (b) of 1991 Rules dispenses with the requirement of the departmental enquiry provided the competent authority record its reasons showing its satisfaction that holding of an enquiry is not reasonably practicable.  The provision is pari materia with proviso to Article 311 (2), of the Constitution of India. Article 311 of the Constitution of India came up for consideration before a Constitution Bench  in Union of India Vs. Tulsi Ram Patel, AIR 1985, SC 1416 and the Hon'ble Apex Court held that two conditions must be satisfied to sustain any action taken there under. These are (i) there must exist a situation which renders holding of an enquiry not reasonably practicable,(ii) The  Disciplinary authority must record in writing its reasons in support of its satisfaction. The Apex Court also held that 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.

The 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."

In the case of Union of India Vs. Balbir Singh, AIR.1998, SC,2043 referring to its earlier decision, the Apex Court with reference to Clause(c )of Second proviso of Article-311(2) read as under:-

"(!) that the order would be open  to challenge on the ground  of mala fides  or being based wholly on extraneous and/or irrelevant  grounds' (2) even  if some of the material on which the action is taken is found  to be irrelevant the court would still not interfere so long as there is some relevant material sustaining the  action;(3) the truth or correctness of the material cannot be questioned by the court nor will it go into the  adequacy of the material and it will also not substitute its  opinion for that of the President;(4) the ground of mala fides takes in, inter alia, situations where the  proclamation is found to be a clear case of abuse of power or what  is sometimes called fraud on power;(5) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Council of Ministers are the best judge of the situation and that they are also  in possession of the information and material and Constitution has trusted their judgment in the matter;(6) this does not mean that the President and the Council of Ministers are the final arbiters in the matter or that their opinion is conclusive."

The words some "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, therefore, be rested  solely  on the ipse dixit of the concerned authority. The Apex Court in the case of Jaswant Singh Vs,  State of Punjab and others, AIR,1991,SC,385 in para -5 at page 390 has observed as under:-

"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."

In almost similar circumstances the matter came up before the Apex Court in the case of Chief Security Officer Vs. Singasan Rabi Das,AIR,1991,SC,1043 and the Apex court found that the dismissal order before enquiry in the said case on similar ground as in the case in hand did not satisfy the requirements of the Rules as is apparent  from the following:-

"In the present case the only reason given for dispensing with that enquiry was that it was considered not  feasible or desirable to procure witnesses of the security/other Railway employees since  this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these ground constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment In the result the appeal fails and is dismissed. There will be no order as to costs."

In the case in hand, the order dated 26th December, 2003 passed by the Superintendent of Police, Mirzapur after referring to the various acts or omission on the part of the petitioner-appellant only mentions that the holding of departmental enquiry is not reasonably practicable. There is not even a single reason stated in the said order. The constitutional protection available to a government servant under Article 311(1) of the Constitution of India as reflected under Rule 8(2) of 1991 Rules, cannot be dispensed with lightly otherwise the protection provided thereunder would render illusory and artificial. The normal rule of enquiry can always be defeated by the disciplinary authority in an arbitrary manner whenever it intend to get rid of a government servant for any reason, if he is not found conducive to his expectations and as such interpretation cannot be sustained by this Court.  Constitutional protection has to be followed and observed in words and spirit and strict manner. Same view has been taken by this Court in Special Appeal No. 1122 of 2001 (State of U.P. and others Vs. Chandrika Prasad) decided on 19th October, 2005 wherein setting aside the dismissal order for lack of cogent reasons while dispensing with the enquiry was held illegal by this Court though liberty was granted to the authorities to hold regular enquiry in accordance with law.

Considering the case in hand, in the light of the legal principle laid down in the above cases, we find that the order of dismissal nowhere shows that the authority has recorded its satisfaction that holding of a disciplinary enquiry is not reasonably practicable. No record has been produced by the respondents to show that such findings were recorded by the disciplinary authority. Therefore, the impugned order is in violation of the aforesaid Rules.

We, therefore, modify the judgment of the Hon'ble Single Judge of this Court to the extent that the order dated 26th December, 2003 impugned in the writ petition is also set-aside and liberty is granted to the respondents to hold enquiry against the petitioner-appellant, if any, in accordance with law. The appellant shall also be entitled for consequential benefits and arrears of salary in accordance with the Rules.

With the above order, the writ petition and the special appeal are disposed of.

Dated: 8.2.2007



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