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Head Constable Vashishtha Singh v. State Of U.P. And Others - WRIT - A No. 48657 of 2006  RD-AH 15564 (7 September 2006)
Court No. 26
Civil Misc. Writ Petition No. 48657 of 2006
Head Constable Vashishtha Singh Vs. State of U.P. and others
Hon'ble Dilip Gupta, J.
The petitioner, who was working as a Head Constable Constable in the U.P. Police, was dismissed from service by the order dated 16.4.2003 purported to have been passed under the provisions of Rule 8(2)(b) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the 'Rules'). This petition has been filed for quashing of the order dated 22.2.2006 passed by the Inspector General of Police, Allahabad Zone, Allahabad by which the revision filed by the petitioner for quashing the order dated 16.4.2003 has been partly allowed to the extent that the dismissal order was set aside and substituted by an order withholding three increments and no arrears of salary.
The petitioner, in respect of the incident of 2.1.1996, was suspended under Rule 17 of the Rules by the order dated 5.1.1996. This suspension order was subsequently revoked on 15.2.1996 and thereafter an order dated 3.1.1998 was passed under Rule 8 (2) (b) of the Rules dismissing the petitioner from service without holding any enquiry on the ground that it was not reasonably practicable to hold the enquiry. This order was challenged by the petitioner in Writ Petition No. 2245 of 1998 which was ultimately allowed by this Court by judgment and order dated 16.3.2002 since the disciplinary authority had not recorded any reason in the order for not holding the enquiry against the petitioner. It was, however, left open to the appointing authority to pass a fresh order in accordance with the rules/law within a reasonable period.
The Senior Superintendent of Police, Allahabad then passed an order dated 16.4.2003 dismissing the petitioner from service by invoking the provisions of Rule 8(2)(b) of the Rules. The petitioner filed an appeal against the aforesaid order which was rejected. The revisional authority, however, was of the opinion that the order of dismissal was very harsh and, therefore, modified the punishment by setting aside the dismissal order but imposed the punishment of stoppage of three increments for a period of one year with no arrears of salary.
Learned counsel for the petitioner submitted that the order dated 16.4.2003 passed by the Senior Superintendent of Police, Allahabad invoking the provisions of Rule 8(2)(b) of the Rules was totally illegal and arbitrary inasmuch as no reason whatsoever had been mentioned in the order for not holding the enquiry. He further contended that it was not open to the revisional authority to impose the punishment of stoppage of three increments as no enquiry whatsoever was held against the petitioner.
Learned Standing Counsel appearing for the respondents has supported the revisional order.
In order to appreciate the contentions advanced by the learned counsel for the parties, it may be necessary to refer to Rule 8 of the 1991 Rules. The same is as follows:-
"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 is 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."
It is, therefore, clear that for invoking the power under Rule 8(2) (b) of the Rules, the authority has to be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such inquiry.
Rule 8(2) (b) of the Rules is pari metaria with the second proviso to Article 311 (2) of the Constitution of India. The Supreme Court in Jaswant Singh Vs. State of Punjab & Ors. reported in (1991) 1 SCC 362 while examining the exercise of power under the second proviso to Article 311(2) of the Constitution observed :-
"...............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 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 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 fail."
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 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."
In the present case, the Court had earlier quashed the dismissal order dated 3.1.1998 but left it open to the appointing authority to pass a fresh order in accordance with the rules/law within a reasonable period. The Senior Superintendent of Police, Allahabad then passed the order dated 16.4.2003 which after referring to the charges levelled against the petitioner and the fact that it was not in public interest to retain such a Police Constable in service as it would affect the discipline merely mentions that in such circumstances it was not reasonably practicable to hold an enquiry. In my opinion, seriousness of the charges can never be a ground to dispense with the requirement of holding an enquiry before imposing punishment under Rule 8(2)(b) of the Rules. The authority has to be satisfied that for some reason, it is not reasonably practicable to hold such an enquiry. The Senior Superintendent of Police, Allahabad completely failed to advert to the said requirement as prescribed under the Rules. The order dated 16.4.2003 cannot, therefore, be sustained. The revisional authority, however, instead of quashing the said order, was of the opinion that the punishment imposed upon the petitioner was very severe and, therefore, substituted the order of dismissal by stoppage of three increments for a period of one year and the petitioner was also deprived of arrears of salary. The revisional authority completely failed to appreciate that the issue before the revisional authority was whether the order dated 16.4.2003 passed by the Senior Superintendent of Police, Allahabad was justified in the facts and circumstances of the case. If the order of dismissal was not justified, then it could not have been modified by imposing any lesser punishment without holding any enquiry. In the present case, no enquiry whatsoever was held against the petitioner as the order was passed under Rule 8 (2) (b) of the Rules. The order passed by the revisional authority in so far as it seeks to substitute the order of dismissal cannot, therefore, be justified.
The writ petition, therefore, succeeds and is allowed and the order dated 16.4.2003 passed by the revisional authority in so far as it imposes the punishment of stoppage of three increments for a period of one year and denies the payment of arrears of salary is hereby quashed. The order of dismissal was set aside by the revisional authority. The petitioner shall, therefore, be reinstated with continuity in service with other consequential benefits and the arrears of salary shall be paid to the petitioner within a period of two months from the date a certified copy of the order is produced by the petitioner before the competent authority.
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