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EX CONSTABLE 539 CP KANHAYA LAL versus STATE OF UP THRU' D.I.G. (ESTABLISHMENT) UP H.Q. ALLD. & ORS

High Court of Judicature at Allahabad

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Ex Constable 539 Cp Kanhaya Lal v. State Of Up Thru' D.I.G. (Establishment) Up H.Q. Alld. & Ors - WRIT - A No. 1107 of 2002 [2005] RD-AH 2613 (9 September 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Misc. Writ Petition No.     1107           of 2002

Ex. Constable 539 CP Kanhaya Lal..............................Petitioner

Versus

State of U.P. and others........................................Respondents.

********

Hon.Tarun Agarwala,J.

The petitioner was working as a Constable. He was removed from the service by an order dated 9.7.2001 under Sub Rule (2) of Rule 8 of the U.P. Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. The petitioner preferred an appeal which was also rejected by an order dated 9.11.2001. Consequently, the present writ petition has been filed. The learned counsel for the petitioner submitted that under sub-clause (b) of clause (2) of Rule 8, the services of the petitioner could be dispensed with provided the disciplinary authority was satisfied that it was not reasonably practicable to hold an inquiry and that the satisfaction of the authority was recorded in writing. The learned counsel for the petitioner submitted that the disciplinary authority had not recorded any reasons in the impugned order while dispensing with the inquiry and, since no reasons had been recorded, the impugned order could not be sustained and was liable to be quashed.

Admittedly, the services of the petitioner had been terminated under Rule 8(2)(b) of The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. Rule 8(2)(b) reads as under:-

"8.(2)(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."

The language of the aforesaid rule is similar to the second proviso to Article 311(2) of the Constitution of India. In Union of India vs. Tulsiram Patel, A.I.R. 1985 SC 1416, the Supreme Court held (para 130)-

"The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that" it is not reasonably practicable to hold the inquiry contemplated by clause (2) of Article 311....

"....Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability, which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.

".....The reasonable practicability of holing an inquiry is a matter of assessment to be made by the disciplinary authority."

"......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".

In Tulsiram Patel's case (AIR 1986 SC 1416) (supra) the Supreme Court further held- (paras 133 and 134)

"The second condition necessary of the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reasons for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following  thereupon would both be void and unconstitutional.

It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty."

The Supreme Court further went on to say that-

"If the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated."

In Chief Security Officer v. Singasan Rabi Das, AIR 1991 SC 1043, the Supreme Court held that there was a total absence of sufficient material or good ground for dispensing with the inquiry and accordingly held that the order of termination dispensing with the inquiry was illegal.

In Jaswant Singh vs. State of Punjab, (1991)1 SCC 362: (AIR 1991 SC 385), the Supreme Court held (para 5)-

"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 inquiry".

The Supreme Court further held-

"The decision to dispense with the departmental inquiry 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 Maksudan Pathak and others vs. Security Officer, Eastern Railway and others,  1981 A.L.R. 317, a Full Bench of this Court held:

"We are, therefore, of the opinion  that the words 'reasonably practicable' would apply in the case where the authority cannot, in a reasonable manner, put into practice the clauses in relation to an enquiry, namely, because of certain facts and circumstances peculiar to each case, the authority cannot, in a reasonable manner, hold an enquiry. There may be a case where the charged person may have absconded, or a case where in spite of the best efforts, the disciplinary authority may not have been above to serve the notice of the enquiry on the person charged or it may be a case where it is not possible for the person against whom the charge had been made to come and join, at the enquiry or there may be similar other valid reasons depending on the facts and circumstances of each case."

Similar view has been held by this Court in Tej Bahadur Singh vs. The Senior Superintendent of Police, Moradabad and others, 1999(3) ALR 812 and in Achal singh vs. State of U.P. and others, (2002) 47 ALJ 510.

In Dharam Pal Singh vs. State of U.P. and others, 2005 ALJ 819, the impugned order of termination passed under Rule 8(2)(b) of the Rules of 1991 was set aside by this Court as it did not contain the reasons for dispensing with the inquiry.

In the present case, I find that the petitioner absented himself on several occasions for which he was penalised. The disciplinary authority found that in 20 years he was absent for 576 days and that he was also involved in a criminal case, and on this basis, the disciplinary authority had passed the order removing the petitioner from the service. The impugned order indicates that the authority had not given any reason for dispensing with the inquiry. Consequently, the impugned order is the violation of the provisions of Rule 8(2)(b) of the Rules of 1991. Further, the charges so levelled against the petitioner are such which can be easily enquired through a departmental inquiry and it is not a case where an oral inquiry cannot be held. Consequently, in my opinion, the decision of the disciplinary authority in taking recourse to the provisions of Section 2(8)(b) of the 1991 Rules was wholly arbitrary.

In the result, the writ petition succeeds and is allowed. The impugned orders dated 9.7.2001 and 9.11.2001, passed by the respondents are quashed. It is open to the disciplinary authority to initiate a departmental inquiry against the petitioner, if they are so advised and provide an opportunity of hearing to the petitioner as contemplated under The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991.

Dated:9 .9.2005

AKJ.


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