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Ganesh Kumar Shukla v. State Of U.P. And Another - WRIT - A No. 21191 of 2004  RD-AH 1328 (5 November 2004)
Civil Misc.Writ petition No.21191 of 2004
Ganesh Narain Shukla ...................... Petitioner
State of U.P. through Secretary, Home U.P.
Allahabad and others .................... Respondents
Hon'ble Shishir Kumar, J.
By means of the present writ petition, the petitioner has challenged the order dated 28.5.2004 passed by respondent No.2 by which the services of the petitioner have been dismissed. The case of the petitioner is that he was appointed as Constable (Civil Police) on 3.12.1987 and since then he has been working on the said post in the different police station of District Kanpur Nagar. There is no complaint whatsoever against the petitioner and the petitioner's conduct was found satisfactory. The petitioner is presently posted as constable at police station Gwaltoli District Kanpur Nagar. It appears that some inimical person in the locality made complaint against the petitioner in which it has been alleged that the petitioner is in acting in collusion with one Dilip Chaurasia who is said to be a criminal. The respondent no.2 without any enquiry in the complaint made against the petitioner, passed an order dismissing the services of the petitioner without any notice of show cause or after giving an opportunity of hearing to the petitioner. The petitioner has annexed the dismissal order dated 28.5.2004 as Annexure 1 to the writ petition. It has been submitted on behalf of the petitioner that the order of dismissal dated 28.5.2004 is contrary to law as the petitioner is a permanent employee in the police department and the services of the petitioner cannot be dismissed without holding any enquiry or without any show cause and the order can be passed only after giving due opportunity to the petitioner. It has also been argued on behalf of the petitioner that it is well settled principle of law that an employee who is subjected to a complaint should be given an opportunity to show cause to submit his explanation for the purposes of the complaint. As before passing the order of dismissal, no opportunity or hearing has been given, therefore, the order of dismissal is bad in law and is in clear violation of principle of natural justice. It has also been stated that order of dismissal is absolutely vague and without any evidence in support thereof.
Learned Standing Counsel was granted time to file counter affidavit. Counter and rejoinder affidavit have been exchange and with the consent of the parties the writ petition is being disposed of finally.
After hearing counsel for the parties and after perusal of the record, it appears before passing the order of dismissal petitioner has not been issued any show cause notice. The case of the petitioner has been controverted by way of the counter affidavit filed on behalf of the respondents. The only averment made in para 8 of the affidavit is that some enquiry was made against the petitioner on the basis of the complaint and said enquiry, report has been filed as Annexure C.A.1 to the counter affidavit. From the perusal of the counter affidavit, it is clear that a show cause notice or opportunity has not been given to the petitioner. It has been stated on behalf of the respondents that according to the provisions of the U.P. Officers of Subordinate Rank (Punishment and Appeal), Rules, 1991, Rule 8 provides that the services of the police personnel can be dismissed without any enquiry. Rule 8 is quoted below:-
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 it is not expedient to hold such enquiry.
(3) All orders of dismissal and removal of head Constables or Constables shall be passed by 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 lesser 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.
The petitioner has filed the rejoinder affidavit and has stated the fact that there is no dispute to this effect that there is a rule and under Rule 8 (2) Sub-clause (C), the respondent No.2 has got power to dismiss the services of the police employee but Clause 8 (4) (b) clearly states that if such order is passed under the aforesaid Rule, the punishing authority has to record a reason in writing that the holding of such enquiry is not possible in the security of the State.
I have considered the argument of the parties and perused the record as well as Rule 8 of the Rules mentioned above.
The aforesaid provision under the Rules of 1991 is similar to the Article 311 of the Constitution of India. Article 311 is being quoted below:-
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State - (1) No person who is a member of a civil service of the Union or an all-India service or civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
(Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause 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 inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry 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.
From the perusal of Article 311 (2) (b), of the Constitution of India the authority has been given power to dismiss or remove a person or to reduce in rank if he is satisfied that it is not reasonable and practicable to hold such enquiry but reasons are to be recorded.
In the present case, from the perusal of the order of dismissal, it appears the disciplinary authority respondent no.2 has not recorded any reason that it is not possible to hold an enquiry. As the said reason is lacking in the order of dismissal against the petitioner, the petitioner is entitled for relief.
In view of above, the order passed by the respondent no.2 dated May 20, 2004 Annexure 1 is liable to be quashed. In the result, the petition is allowed. The order dated 20.05.2004 passed by respondent no.2 is quashed and the petitioner will be reinstated in service and will be paid his salary. It would however be open to the respondents to hold an enquiry and pass the appropriate orders according to law after giving an opportunity of hearing to the petitioner.
No order as to costs.
Dated: November , 2004
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