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RAM DAS YADAV versus SENA NAYAK, & OTHERS

High Court of Judicature at Allahabad

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Ram Das Yadav v. Sena Nayak, & Others - WRIT - A No. 12202 of 1996 [2001] RD-AH 14 (22 March 2001)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

[ Reserved]

Civil Misc. Writ Petition No. 12202 of 1996

Ram Das Yadav ................................................Petitioner

Vs.

Sena Nayak, 45th Battalion, P.A.C. Contingent, Konkarajhar, Asam & others ............................................................Respondents.

___________

Hon. R.K.Agrawal, J.

The petitioner has filed the present petition seeking a writ, order or direction in the nature of certiorari quashing the order dated 6.1.1996 passed by the respondent no.1  contained in annexure 1 to the writ petition and further  a writ of mandamus commanding the respondents not to interfere in the services of the petitioner as constable in 45th Battalion, P.A.C.,  Aligarh and pay him salary  treating his services in continuation.

Briefly stated facts of the case are that the petitioner was appointed as a Constable in 35th Battalion, P.A.C. Lucknow sometimes in the year 1984. In the year 1987he was transferred to 45th Battalion P.A.C. Aligarh. Further he was sent alongwith his Battalion to Konkrajhar, Assam. His services was terminated vide order dated 6.1.1996 , which was communicated to him on 8.1.1996 at Aligarh when his Battalion came to Aligarh.

It appears that the petitioner was found absent from the Battalion at 1900 hours on 3.1.1996 and had gone to a nearby hotel. He had consumed liquor  and had quarreled with the public. A preliminary enquiry was held by one Shri Mahipal Singh, Asstt. Commandant  of Operational Head Quarter , who after considering the statement of the petitioner and other witness submitted his report to the Commandant on 4.1.1996 recommending for termination of his services by invoking the provisions of Rule 8(2)  (b)  and (c) of U.P. Police Officers of the Subordinate Ranks (Punishment & Appeal) Rules, 1991, ( hereinafter referred to as the Rules), the Commandant, vide order dated 6.1.1996 dispensed with the regular enquiry and passed order terminating the services of the petitioner. He found that if regular enquiry is held, the lives of the officers and staff would be in danger and it would not be in the national interest. The said order is under challenge.

I have heard Shri C. B. Yadav learned counsel for the petitioner and the learned standing counsel for the respondents. The learned counsel for the petitioner submitted that the respondent no.1 cannot dispense with the disciplinary enquiry without recording its satisfaction and such satisfaction should be reasonable and not arbitrary. He submitted that from the perusal of the impugned order, the satisfaction recorded by the respondent no.1 does not meet the requirement of the provisions of Rules 8(2) (b) of the Rules, thus, the impugned order is liable to be set aside. In support of this plea, the learned counsel for the petitioner relied upon the following decisions rendered in the cases mentioned below:

(i) Jaswant Singh vs. State of Punjab & others, AIR 1991 S.C.385.

(ii) Chief Security Officer & others vs. Singasan Rabi Das, AIR 1991 S.C. 1043

(iii) Brijendra Singh Yadav vs. State of U.P. and others (1998) 1 UPLBEC 638.

 

He further submitted that even on the material on record, the preliminary enquiry was not conducted fairly and in any event the impugned order terminating the services of the petitioner is highly disproportionate to the charges levelled against the petitioner. According to him the extreme penalty of termination of service should be set aside  and if at all any punishment is to be given then a lesser punishment should be given. In support of his aforesaid plea the learned counsel relied upon a decision of this Court in the case of Ram Bachan Yadav vs. Commandant P.A.C. 20th BattalionAzamgarh and others reported in (1998)1 UPLBEC 730.  

The learned Standing counsel on the other hand submitted that the petitioner was posted in Assam and was expected to maintain discipline  whose battalion was sent  to check the terrorist. The sending of the Battalion to Assam  was highly confidential and if the petitioner indulged in consuming liquor and involved himself in quarrelling with public the secret mission could be exposed which had put the life of other officers and constables in danger. Thus, there was sufficient material before the authority to dispense with the enquiry and the authorities were justified in dispensing with the regular enquiry and terminating the services of the petitioner.

Having heard the learned counsel for the parties, I find that admittedly in the present case, enquiry has been  dispensed with the by respondent no.1 under Rule 8(2)(b)  of the Rules. The question is as to whether there was sufficient material before the respondent no.1 to dispense with the enquiry or not. In the case of Union of India Vs. Tulsiram Patel, reported in AIR 1985 S.C. 1416, it has been held that 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 Hon. Supreme Court has further held that the disciplinary authority should record in writing its reason for its satisfaction it was not reasonably practicable to hold the enquiry contemplated by Article 311(2) of the Constitution.  

In the case of Jaswant Singh, supra, the Hon. Supreme Court has held that  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 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 the case of Chief Security Officer & Ors (supra) , the Hon. Supreme Court in para 5 of the judgment has held as under:

"5.  In our view it is not necessary to go into the submissions made by Dr. Anand Prakash because we find that in this case the reason given for dispensing with the enquiry is totally irrelevant and totally insufficient in law. It is common ground that under Rules 44  to46 of the said Rules normal procedure for removal is that before any order for removal from service can be passed the employee concerned must be given notice and an enquiry must be held on charges supplied to the employees concerned. In the present case the only reason 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 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 grounds 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."

In the case of Union of India and others Vs. R. Reddappa and another reported (1993)4 S.C.C. 269, in  para 5 of its judgment the Hon. Supreme Court has held as under:

"5. ..................True the jurisdiction exercised by the High Court under Article 226 or the tribunal is not as wide as it is in appeal or revision but once the court is satisfied of injustice or arbitrariness then the restriction, self-imposed or statutory, stands removed and no rule or technicality on exercise of power, can stand in any way of rendering justice. We are not impressed by the vehement submission of the learned Additional Solicitor General that the CAT, Hyderabad exceeded its jurisdiction in recording the finding that there was no material in support of the finding that it was not reasonably practicable to hold an enquiry. The jurisdiction to exercise the power under Rule 14(ii) was dependent on existence of this primary fact. If there was no material on which any reasonable person could have come to the conclusion as is envisaged in the rule then the action was vitiated due to erroneous assumption of jurisdiction fact, therefore, the Tribunal was well within its jurisdiction to set aside the orders on this ground. An illegal order passed by the disciplinary authority does not assume the character of legality only because it has been affirmed in appeal or revision unless the higher authority is found to have applied its mind to the basic infirmities in the order.

In the case of Chandigarh Administration, Union Territory Chandigarh and others vs. Ajay Manchanda etc. reported in AIR 1996 S.C. 3152, the Hon. Supreme Court has held that each case has to be judged on its own merits, keeping in mind the relevant provisions o fArticle 311(2)  and the interpretation placed upon it by the Court in Tulsiram Patel (supra).

In the case of Kuldip Singh Vs. State of Punjab and others reported in AIR 1997 S.C. 79, in paras 8 and 9 of its judgment the Hon. Supreme Court has held as under:

"8. Proviso(b) to Article 311(2) says that the enquiry contemplated by clause (2) need not be held" 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".. Clause(3) of Article 311 expressly provides that " if, in respect of any such person as aforesaid, the question arises whether it is reasonably practicable  to hold such enquiry as is referred to in clause(2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final". These provisions have been the subject-matter of consideration by a Constitution Bench of this Court in Union of India v. Tulsi Ram Pately,  1985 Suppl.(2) SCR 131LAIR 1985 SC 1416). It would be appropriate to notice a few relevant holdings in the said judgment:

"before denying a Government servant his constitutional right to an enquiry, the first consideration would be whether the conduct of concerned Government servant is such as justified the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the Government servant is not entitled to an enquiry(p. 205 of Supp(2) SCR)Lat p. 1445 of AIR)..............It would also not be reasonably practicable to hold the enquiry where an atmosphere of violence r 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.... The reasonable practicability of holding an enquiry 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.........The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the Court so far its power of judicial review is concerned (p.270 of Supp(2) SCR):(at p.1479 of AIR).............Where a Government servant is dismissed, removed or reduced in rank by applying clause(h) or an analogous provision of the service rules and he approaches either the Higher Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause(b) or an analogous provision in the service rules was properly applied or not. ..........In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold inquiry...................in considering the relevant of the reasons given by the disciplinary authority, the Court will not , however, sit in judgment over them like a Court of first appeal(pp.273-274 of Supp(2) SCR):(at p. 1481 of AIR)."

9. The judgment also stresses that very often a person dealt with under any of the three clauses in the second proviso to Article 311(2) has a right of appeal where the correctness of the decision taken by the appropriate authority will be subject to review-apart, of course, from the remedy of judicial review provided in the Constitution."

In the case of Brijendra Singh Yadav (supra) this Court has held that the enquiry under Rule 8(2)(b) of the Rules cannot be dispensed with by the authority maliciously or motivated by personal animosity.

Applying the principles laid down by the Hon. Supreme Court in the aforesaid cases, I find that except for the  recital in the impugned order that life of officers and employees of the Battalion had been put to danger, and national interest was likely to suffer, no material has been  placed before the Court in support of said satisfaction by the officer. It may be mentioned that in paras 9 and 10 of the writ petition, it has been stated that  no reasons have been recorded by  the authorities while taking a decision to  dispense with the enquiry. In the counter affidavit filed by Wahi Ahamad Deputy Commandant, paragraphs 9 and 10 of the writ petition have been denied. However no material has been placed before the Court to justify the dispensing of the enquiry. In the absence of any material having been placed before the Court, the decision to dispense with the enquiry and the satisfaction of the authority cannot be sustained.  Thus, it is held that there was no material before the authority to dispense with the enquiry under Rule 8(2)(b) of the Rules.

In view of the foregoing discussions, the impugned order dated 6.1.1996 is hereby quashed on the ground that dispensing with the enquiry under Rule 8(2)(b) of the Rules was not justified. Accordingly, it is needless to go into the question as to whether the punishment imposed is disproportionate to the gravity of charges or not? However, it will be open the authorities to proceed in accordance with law. In the result the writ petition succeeds and is allowed.

DT: 22.3.2001

Iss/-


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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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