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SANJEEV KUMAR versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Sanjeev Kumar v. State Of U.P. And Others - WRIT - A No. 43442 of 2006 [2007] RD-AH 2280 (12 February 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 43442 of 2006

Sanjeev Kumar

Versus

State of U.P. and other

Hon'ble V.K. Shukla.J.

Petitioenr has approached this Court questioning the validity of the decision dated 05.08.2006 taken by Senior Superintendent of Police, Ghaziabad respondent no. 4 dispensing with the services of the petitioner by exercising and invoking power vested under Rule 8(2)(b)  U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991.  

Brief background of the case is that on 03.08.2006 petitioner alongwith Sub-Inspector Raghunath Singh was on petrolling duty. During petrolling duty at about 9.30 pm, four unknown miscreants attacked the petitioner and on account of which rifle which was being carried by the petitioner sealing of the same was broken and all  four miscreants carried the rifle of petitioner with five live cartridges in jungle. First Information Report being Case Crime No. 148 of 2006 under Section 392 IPC was lodged. On 05.08.2006 Circle Officer, Garhmukteshwar and  Superintendent of Police (Rural Area)   submitted their comments and found that petitioner did not make any resistance which reflects unsuitability on the part and in case any resistance would have been put qua the said incident then same could  have been avoided. In this background prima facie petitioner was found unfit for retaining the post and it was also mentioned that image of police has been tarnished and retention of the petitioner in disciplined force is inappropriate. It has further been mentioned that from the facts and comments supplied that there is no requirement for detailed inquiry as such  Senior Superintendent of Police, Ghaziabad in exercise of power vested under Rule 8(2)(b)  U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 dismissed the services of the petitioner. At this juncture present writ petition has been filed.

Counter affidavit has been filed and much stress has been laid on the fact that action which has been taken is on the basis of report which was submitted and rightful decision has been taken warranting no interference by this Court.

Rejoinder affidavit has been filed and therein it has been contended that there was no occasion to exercise and invoke the power vested under Rule 8(2)(b)  U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 and that too without recording any reasons as to why it was not reasonably, practicable to hold inquiry in to the alleged misconduct.

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

Sri Vijay Gautam learned counsel for the petitioner contended with vehemence that in the present case without recording any finding that inquiry into the matter is practically not feasible, the authority concerned has passed totally unsustainable order of dismissal, as such writ petition is liable to be allowed.

Learned Standing Counsel, Sri P.K. Pandey 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."

Hon'ble Apex Court in the case of Major Radha Krishan Vs. Union of India and others reported in [(1996) 3 SCC 507] has considered the words and phrases namely  reasonably practicable, impracticable and inexpedient. Relevant paragraphs 8 and 9 are being quoted below:

"8. it is not dispute that at the time the impugned notice was sent, no trial of the appellant by court-martial could be held for sub-section(1) of Section 122 (as it then stood) clearly envisaged that it should not be commenced after expiration of three years from the date of commission of the offence which in the instant case was about 7 years prior to the issuance of the notice. Indeed, as seen earlier, in the notice itself it is stated that the trial had become time-barred. When the trial itself was legally impossible and impermissible the question of its being impracticable, in our view cannot or does not arise. 'Impracticality' is a concept different from 'impossibility' for while the latter is absolute the former introduces at all events some degree of reason and involves some regard for practice. According to Webster's Third New International Dictionary 'impracticable' means not practicable; incapable of being performed or accomplished by the means employed or at command. 'Impracticable' presupposes that the action is 'possible' but owing to certain practical difficulties or other reasons it is incapable of being performed. The same principle will equally apply to satisfy the test of 'inexpedient' as it means not expedient; disadvantageous in the circumstances, inadvisable, impolitic. It must therefore be held that so long as an officer can be legally tried by a court-martial the authorities concerned may, on the ground that such a trial is not impracticable or inexpedient, invoke Rule 14(2). In other words, once the period of limitation of such trial is over the authorities cannot take action under Rule 14(2). While passing the impugned order the Division Bench however did not at all consider, while interpreting Rule 14(2), the import of the words 'impracticable' or 'inexpedient' as appearing therein and proceeded on the basis that since Section 127 of the Act (since repealed) permitted trial even after a conviction or acquittal by a court-martial, it necessary meant that the Rule could be pressed into service even after the period of limitation. It appears that in making the above observation the High Court did not notice that Section 127 relates to a trial by a "criminal court" and not "court-martial"- and speak of a stage after the trial by the latter is over.      

9. The matter can viewed from another angle also. So far as period of limitation of trails by court-martial is concerned Section 122 of the Act is a complete Code in itself for not only it provides in its sub-section (1) the period of limitation for such trials but specifies in sub-section (2) thereof the offences in respect of which the limitation clause would not apply. Since the terms of the above section is absolute and no provisions has been made under the Act for extension of time-like Section 473 Criminal Procedure Code- it is obvious that any trial commenced after the period of limitation will be patently illegal. Such a provision of limitation prescribed under the Act cannot be overridden or circumvented by an administrative act, done in exercise of powers conferred under a Rule. Mr. Ramachandran was, therefore, fully justified in urging that power under Rule 14 of the Army Rules could not be exercised in a manner which would get over the bar of limitation laid down in the Act and that if Rule 14 was to be interpreted to give such power it would clearly be ultra vires. We are therefore in complete agreement with the observations made by the Delhi High Court in H.C. Dhingra Vs. Union of India Case reported in 1988 (2) Del. Law 109 that in purported exercise of administrative power under Rule 14, in respect of allegations of misconduct triable by court-martial, the authorities, cannot override the statutory bar of sub-section (1) of Section 122 of the Act for no administrative act or fiat can discard, destroy or annul a statutory provision."

Now on the touch stone of the judgment quoted above the action taken against the petitioners is being seen. Impugned order in question reflects that on 03.08.2006 petitioner alongwith Sub-Inspector Raghunath Singh was on petrolling duty. During petrolling duty at about 9.30 pm, four unknown miscreants attacked the petitioner and on account of which rifle which was being carried by the petitioner, seal of the same was broken and all  four miscreants carried the rifle with five live cartridges in Jungal. First Information Report being Case Crime No. 148 of 2006 under Section 392 IPC was lodged. On 05.08.2006 Circle Officer, Garhmukteshwar and  Superintendent of Police (Rural Area)   submitted their comments and found that petitioner did not make any resistance which reflects unsuitability on his part and in case any resistance would have been put,  then said incident could  have been avoided. In this background prima facie petitioner was found unfit for retaining the post and it was also mentioned that image of police has been tarnished and retention of the petitioner in disciplined force is inappropriate. It has further been mentioned

that from the facts and comments supplied there is no requirement for detailed inquiry as such Senior Superintendent of Police, Ghaziabad in exercise of power vested under Rule 8(2)(b)  U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 dismissed the services of the petitioner. Entire exercise undertaken by the Senior Superintendent of Police goes to show that as continuance of petitioner has been concluded not to be conducive to police force as petitioner did not make any resistance and in case any resistance would have been put, then said incident could have been avoided which reflects unsuitability on the part of the petitioner as such it is not necessary to get the inquiry done.  Reasons which have been furnished by the Senior Superintendent of Police are totally misconceived and misreading of the provisions inasmuch as endeavour ought to have been made for getting inquiry conducted and in case it was not reasonably practicable possible to hold the inquiry then inquiry could have been dispensed by indicating reasons. Reasons has not at all be disclosed why enquiry was not feasible.   Not reasonable practicable presupposes that the action is possible but owing to certain practical difficulties or other reasons it is incapable of being performed. Here no reasons whatsoever is there as to what are practical difficulties and other reasons which is incapable of being performed.

Here 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 05.08.2006 passed by respondent no. 4 is 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: 12th February, 2007

          Dhruv

     


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