Allahabad High Court
Brijendra Singh Yadav vs State Of U. P. And Others on 27 August, 1997
Equivalent citations: 1998(1)AWC522, (1998)1UPLBEC638
Author: J. C. Gupta
Bench: J.C. Gupta
JUDGMENT J. C. Gupta, J.
1. The petitioner, who was serving as Constable in U. P. Police Force, has filed this writ petition challenging the validity of the order of dismissal dated 6.1.92 (Annexure 6) passed by respondent No. 3. the then Senior Superintendent of Police, Jhansi, which order has been confirmed by the order dated 10.4.92 of the appeilate authority, respondent No. 2, dismissing the appeal.
2. While passing the dismissal order, the appointing authority purported to. have exercised powers under the provisions of clause 8 (2), Proviso (b) of the U. P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules. 1991 dispensing with the regular enquiry on the ground that it was not reasonably practicable to hold the enquiry. The grounds of dismissal, as stated in the dismissal order, were that the petitioner sent a letter dated 27.12.91 directly to the Governor, Uttar Pradesh, making some demands and further stating therein that in case the demands were not fulfilled, he would commence his fast unto death and thereafter would also commit self-immolation on 9.1.92. The same demand was again reiterated by the petitioner in his letter dated 2.1.92, wherein again a threat was given that the petitioner wogld commit self-immolation on 14.1.92. These two letters have been treated as act of highest order of indiscipline in police force amounting to gross misconduct. The dismissal order further mentions that a secret enquiry was got conducted by Sri Ranvir Singh Chauhan, then posted under respondent No. 3 as Circle Officer, Police Lines, Jhansi to ascertain the veracity of the letters alleged to have been sent by the petitioner. Sri Chauhan is said to have submitted a confidential enquiry report to respondent No. 3. wherein it was reported that the fact of sending the letters was correct as was admitted by the petitioner before his fellow colleagues and as the petitioner wielded considerable influence over the police force, no person was coming forward to depose against him and the petitioner has created a panic, which was nothing else than the disposition of mutiny. The Inquiry Officer thus was of the opinion that it was not reasonably practicable to hold disciplinary enquiry and passed the impugned order of dismissal of the petitioner from service without holding a regular inquiry.
3. The petitioner in this petition has made the Senior Superintendent of Police a party by his name also as respondent No. 4. The petitioner challenges the impugned order mainly on the grounds that it is based on gross mala fide as a revenge by respondent No. 4 against the petitioner for raising voice against the misbehaviour of the wife of respondent No. 4 vis-a-vis a lady Constable Shama Parveen and the reasonings recorded for dispensing with the enquiry on the charges levelled against the petitioner were not at all bona fide and it was purely a plot to trap the petitioner in such a situation that the petitioner may be left with no alternative or solution to rebut the charges as alleged against him. His case further is that he has not at all signed or sent the alleged letters to the Hon,ble Governor, Uttar Pradesh nor he was in a position to have any influence over his colleagues as he was under suspension. There was no material before the Punishing Authority to dispense with the enquiry and, therefore, an imaginary ground has been created for proceeding under the above referred clause 8 (2), proviso (b) that no member of the police force was coming to depose against the petitioner and for that reason, it was not practicable to hold enquiry. Further case of the petitioner is that respondent No. 4 was so much prejudiced against the petitioner that he got the alleged secret enquiry conducted by his own man Sri Ranvir Singh Chauhan knowing fully well that the petitioner had made complaint against him also even before the matter is said to have been got enquired by him. The alleged enquiry was purely farcical and cloak to dispense with the service of the petitioner, though there was no material before the Inquiry Officer for arriving at any subjective satisfaction to dispens'e with the enquiry. Respondent No. 2 has also dismissed the appeal in a cursory manner without applying his mind to the facts and circumstances of the case.
4. The charges of mala fide against respondent No. 4 in short may be stated. It is stated by the petitioner that on 28.10.91. a Traffic Mela was organised in Police Lines. Jhansi and therein a lady Constable Shama Parveen was posted on duty on a Stall. The wife of respondent No. 4 Smt. Poonam Sagar misbehaved with the said lady Constable and even in the process abused and assaulted her. On that very day. about 50 Constables led by the petitioner including the lady Constable Shama Parveen raised voice against the said misbehaviour and since the D.I.G. Police Range, Jhansi was out of station, they all went to the office of the Commissioner. Jhansi Division, Jhansi for lodging complaint against Smt. Poonam Sagar, the wife of respondent No. 4. Before the Commissioner, the lady Constable narrated the entire facts and also gave an application, whose copy has been annexed as Annexure 1. The matter became sensational and a Hurry was created amongst the top circle of the police authorities and the lady Constable Shama Parveen was abducted for making confession that no such misbehaviour was committed by the wife of Senior Superintendent of Police. As soon as this mischivious act came to be known amongst the fellow colleagues, they urged the petitioner to send an information to the Director General of Police for taking suitable action. On their pursuasion, the petitioner sent a telegram dated 20.10.91 to the Director General of Police stating therein that the lady Constable Shama Parveen was assaulted by the wife of respondent No. 4 and from 10.00 p.m. her whereabouts were not known. Copy of the telegram has been annexed as Annexure 2. A protest was raised by the lesser grade police officers viz.. Constables and Head Constables against the misbehaviour of the wife of the Senior Superintendent of Police and all of them went on fast. This Incident was even published in local Newspapers and one of the witnesses of the Incident of misbehaviour, Sri Vireshwar Nagar was dismissed from service as an outcome of revenge by respondent No. 4. Since a large scale persecution of Constables who were raising their voice against the misdemeanour of the wife of Senior Superintendent of Police, was being apprehended triggered by the dismissal of Sri Vireshwar Nagar, a representation was sent by the petitioner to the Deputy Inspector General of Police. Jhansi Range on 25.12.91, Copy of the said representation has been annexed as Annexure-5. In the said representation, a complaint was made by the petitioner that as an outcome of revenge, the dismissal or even elimination of the petitioner was being planned by respondent No. 4 in conspiracy with Sri Ranvir Singh Chauhan, his trusted Officer, who was also inimically disposed towards the petitioner.
5. It is note-worthy that despite serious allegations of mala fide, respondent No. 4, who has been impleaded in person, has not filed any counter-affidavit of his own, instead Sri Radhey Shyam Singh Chauhan, who was presently posted as Deputy Superintendent of Police, Jhansi, filed counter-affidavit. Subsequently, under the direction of this Court, Sri Ranvir Slngh Chauhan, the then Circle Officer filed his own counter-affidavit.
6. Learned counsel for the petitioner argued that the petitioner had not sent any letters nor had extended any threat to go on hunger strike or to commit self-immolation and there was no material before respondent No. 3. to dispense with the regular inquiry and dismissal of the petitioner without holding any inquiry is nothing but a result of mala fide.
7. It is not necessary for this Court in this writ petition to go into the question whether in fact the alleged letters were sent by the petitioner to the Governor and whether he had planned to go on hunger strike unto death or to commit self-immolation. The only point for consideration in this petition is whether the action of respondent No. 3 in dispensing with the departmental inquiry was justified and bona fide. Normally, a Government servant is entitled to the holding of a regular inquiry before any punishment is awarded on him. It is only in exceptional cases where the Punishing Authority may dispense with the departmental inquiry under the provisions of clause 8 (2), proviso (b) of the U. P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. Paragraph 8 (2) (b) of the U. P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 reads 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 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."
8. It would thus appear from the aforesaid paragraph 8 (2) of the Rules that as a general rule, no police officer shall be dismissed, removed or reduced in rank except after proper enquiry and disciplinary proceedings as contemplated by the Rules. Clause (b) is in the form of a proviso which permits the authority concerned to dismiss or remove a person or to reduce him in rank. If he is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry.
9. It is well-settled that the satisfaction of the authority concerned for dispensing with the enquiry on the ground that it was not reasonably practicable to hold the enquiry, is open to Judicial Review. Before an order dispensing with an enquiry can be sustained, two conditions must be satisfied (1) that there existed a situation which rendered holding of any enquiry not reasonably practicable and (2) that the disciplinary authority has recorded in writing its reasons in support of its conclusion. In addition to that, it must also be shown that the authority concerned has not exercised the statutory power maliciously and is not motivated by personal animosity.
10. In the present case, the petitioner has challenged the impugned order on the ground of mala fide and according to him, the decision to dispense with the enquiry was based on no material, but was a result of malice which respondent No. 4 was having against the petitioner as he had raised voice against the misbehaviour of the wife of respondent No. 4 with a lady Constable.
11. The principal question that arises for consideration is whether the action of respondent No. 4 in dismissing the petitioner from service after dispensing with the enquiry under clause (b) of Rule 8 (2) of the Rules was wholly mala fide and motivated to take revenge against the petitioner.
12. In the present case, admittedly the Impugned order was passed by respondent No. 4 who was then posted as Senior Superintendent of Police, Jhansi. In the writ petition, serious allegations of mala fide have been made against respondent No. 4 and his wife giving details about the prejudices which respondent No. 4 was having against him. Despite the fact that respondent No. 4 has been impleaded in person, he did not file any counter-affidavit to controvert the averments made in the writ petition and instead Sri Radhey Shyam Singh Chauhan filed his counter-affidavit, who had neither passed the impugned order nor had conducted the preliminary enquiry and all the paragraphs in which reply has been given in the counter-affidavit to the averments made in the writ petition regarding mala fide of respondent No. 4, have been sworn on the basis of documents. The allegations of malajide made against respondent No. 4 and his wife thus stood uncontreverted. It Is also noteworthy that the fact that the petitioner had sent complaint and telegram to the higher authorities about the highhandedness of respondent No. 4 and his wife, has not been specifically denied and controverted, as it is no where stated in the counter-affidavit that no such letters and telegram were sent by the petitioner, instead Sri Radhey Shyam Singh Chauhan in his counter-affidavit merely stated that the fact of sending telegram and letters was not relevant for purposes of controversy involved in the case and the petitioner was trying to connect his order of dismissal with his story of misbehaviour by the wife of Senior Superintendent of Police by the lady Constable. Similarly, paragraphs 14 and 15 of the writ petition, which contained the averments regarding dismissal of Sri Vireshwar Nagar, Constable as an outcome of revenge and of sending a letter by the petitioner to the higher authority on 25.12.91 complaining about the behaviour of the Senior Superintendent of Police and Sri Ranvir Singh Chauhan, have not been specifically rebutted and the reply given in the counter-affidavit is to the effect that Sri Vireshwar Nagar, Constable was dismissed from service in accordance with law and has no rational with petitioner's dismissal from service. In the representation dated 25.12.91, whose copy has also been annexed as Annexure 5, the petitioner had made specific complaint against the Senior Superintendent of Police as well as the Circle Officer Sri Ranvir Singh Chauhan that they were planning petitioner's dismissal and even elimination on account of grudge, which respondent No. 4 was having against him for raising voice against the misbehaviour of the wife of the Senior Superintendent of Police, Even Sri Ranvir Singh Chauhan, who filed his counter-affidavit under the orders of this Court could not dare to controvert the fact of sending of the representation on 25.12.91 by the petitioner to the D.I.G. Police wherein he had made allegation of mala fide against him as well as against respondent No. 4, yet In these circumstances why the so-called preliminary enquiry was got conducted by Sri Ranvir Singh Chauhan, has not been explained from the side of the State.
13. In the case of State of Punjab and another v. Gurdial Singh and others. (1980) 2 SC 471, it was held that :
"In the absence of any denial of the allegations made by respondents 1 to 21 In the writ petition by a person having personal and direct knowledge in the matter and having regard to the entire history of the case. It is difficult to resist the conclusion that the averments In the writ petition alleging mala Jides must be accepted, the affidavit sworn on the basis of the record is not relevant."
14. Similarly in the case of Express Newspapers Put. Ltd. and others v. Union of India and others, AIR 1986 SC 872, it was held that :
"Where mala Jides are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability."
15. In the same decision a passage from the book of Judicial Review of Administrative Action, by Professor de Smith has been quoted, which is reproduced as under :
The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred ..... A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise."
16. In the case of S. Pratap Singh v. State of Punjab, (1964) 4 SCR 733. it was held that :
"A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an alien purpose other than the one for which the power is conferred is mala fide use of that power."
17. In the case of Express Newspapers (supra), the Apex Court also observed that :
"Fraud on power voids the order if it is not exercised bona fide for the bad design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by Ignoring relevant matters. That would render the Impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance."
18. In the case in hand, the alleged secret enquiry is said to have been got conducted by Sri Ranvir Singh Chauhan with regard to the two letters alleged to have been sent by the petitioner. As already stated above, even before this enquiry is said to have been entrusted to Sri Chauhan, the petitioner had made complaint against Sri Chauhan also in his representation dated 25.12.91. In the enquiry report, Sri Chauhan has stated that when he asked the petitioner about the fact of sending the letters to the Governor, he (petitioner) in the presence of his colleagues admitted to have sent the said letters. However, the names of such colleagues have neither been disclosed in the report nor in the counter-affidavit by Sri Chauhan. It has also not been disclosed as to from whom the Inquiry Officer had made enquiry. It is further stated In the report that In respect of the intended hunger strike, he Interrogated a number of police officials, who requested him not to disclose their names, as they apprehended danger at the hands of the petitioner. On the basis of this vague report, respondent No. 4, against whom the petitioner had made complaints, dispensed with the enquiry on the ground that it was not reasonably practicable to hold the same, as no witness was coming forward to depose against the petitioner. It has not been explained as to why the petitioner was not asked in writing whether he had sent any such letters to the Governor. Sri Chauhan in his report did not disclose the names of any witness or police officials, who are alleged to have been interrogated by him. Non-disclosure of their names does not seem to be reasonable because it was a confidential report and while mentioning their names, he could have simultaneously made a request to the S.S.P. not to disclose their names, if at all there was any truth that the officials of the police force were apprehending danger at the hands of the petitioner. It is not easy to digest that even on the asking of the Senior Superintendent of Police, no member of police force working under him would have come to give statement in the enquiry. No tangible material is shown to be existing on the date of the Impugned order in support of the allegation that the petitioner had himself admitted to have sent the alleged letters to the Governor excepting a bald statement made in the preliminary enquiry report that such an admission was made by the petitioner in the presence of his colleagues, whose names the Inquiry Officer has very conveniently avoided to disclose. It is difficult to understand how the petitioner could have had such an influence on the entire police force as compared to the Senior Superintendent of Police that they would be reluctant to disclose their identity especially when the petitioner was under suspension and is not shown to be holding any post or office of the Union or Association. It was incumbent upon the respondents to disclose to the court the material, which existed at the date of passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3 in the impugned order especially when serious allegations of mala fide were made against him as well as Sri Ranvlr Singh Chauhan. In the facts and circumstances, the contention of the petitioner cannot be ruled out that respondent No. 3 apprehended that if the departmental enquiry was held, truth would come out and he might not be able to succeed in his plan in getting the petitioner removed from service, so he chose the best and shortest way to throw the petitioner out of service by taking recourse to clause (b) of Rule 8 (2) of the Rules in dispensing with the enquiry after having a collusive and concocted report from his trusted subordinate officer, who was also prejudiced against the petitioner on account of the later having sent a complaint against him also. It is well settled that the decision to dispense with the deparmental enquiry cannot be rested solely on the tpse dixit of the concerned authority. In any view of the matter, considering the nature of the charges made against the petitioner, a departmental enquiry could have been completed even without examination of any colleagues of the petitioner as witnesses, by obtaining the opinion of Hand Writing Expert by getting the signatures appearing on the letters compared with those of the petitioner. Non-holding of a regular enquiry in the background of allegations of mala fide, was highly unjustified and the ground recorded for subjective satisfaction for non-holding of enquiry that no witness was prepared to give evidence against the petitioner, was nothing but a lame excuse and appears to be a concoction.
19. In the case of Jaswant Singh v. State of Punjab and others, AIR (1991) 1 SCC 362. it has been held that the subjective satisfaction of the Punishing Authority in dispensing with the departmental enquiry must be fortified by independent material. The Apex Court has observed as follows :
"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 enquiry."
20. In another decision In the case of Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398, it was observed :
"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 enquiry or because the department's case against the Government servant is weak and must fall."
21. In Jaswant Singh's case (supra), the Apex Court drew adverse inference when particulars of witnesses who were alleged to have been threatened, were not given. In that case, mainly two reasons were given for dispensing with the departmental enquiry (1) the appellant had thrown threats that he with the help of other police employees would not allow holding of any departmental enquiry against him, and (it) he and his associates would not hesitate to cause physical injury to the witnesses as well as the enquiry officer. These reasons were found to be non-existent and the decision to dispense with the enquiry was not approved.
22. In the present case, the petitioner has pleaded the facts with sufficient degree of particularity tending to show that the impugned order was wholly mala Jide and there was hardly any material before the punishing authority which could Justify the imposition of extreme penalty of dismissal without holding any departmental enquiry. As already stated above, respondent No. 4 did not come forward to file his own affidavit to controvert the allegations of mala fide made against him in the writ petition, which could only be denied by him. as those facts were within his personal knowledge. The circumstances of the case and uncontroverted facts leave no room of doubt that there was some agitation against the Senior Superintendent of Police and his wife for the alleged misconduct of his wife with a lady Constable and it is also borne out from the record that the petitioner took active part in the said agitation and had sent representations to the higher authorities against respondent No. 4 and Sri Ranvir Singh Chauhan. It is true that police force requires maintenance of discipline of highest degree and If any member of police force sends letters to the Governor threatening hunger strike unto death and to commit self-immolation, it would not be an act of indiscipline, but may also provoke others to break discipline and the same may amount to gross misconduct. However, the law requires that before a Government servant is punished and Is given extreme penalty of dismissal from service, normally he has to be given an opportunity of hearing as contemplated under Article 311(2) of the Constitution, As already found above, in the present case, the order of respondent No. 3/4 in dispensing with the enquiry on the ground that it was not reasonably practicable to hold the same, is not fortified by any independent material to justify the said action, which appears to be a result of mala fide and personal vindicta and on these grounds, the impugned order cannot be sustained.
23. It was vehemently argued by the learned standing counsel that the petitioner had a remedy of filing a revision against the order of the appellate authority, therefore, this writ petition is liable to be dismissed on the ground of availability of an alternative remedy. This argument of the learned standing counsel cannot be entertained at the concluding stage of the writ petition.
24. This writ petition was admitted as nearly as on 22.5.92 after service of notice on the chief standing counsel, but no such objection was raised at that time and after counter and rejoinder affidavits have been exchanged and the arguments have been heard, it would not be Justified for this Court to dismiss this writ petition on the ground of availability of an alternative remedy. Similar view was taken by a Division Bench of this Court In the case of Lt. Col. Balraj Chibbar and others v. New Ikhia Industrial Development Authority and others. 1995 (2) ACJ 1095 following the Supreme Court decision of L. Hirday Narain v. Income Tax Officer, Barellly, AIR 1971 SC93. Similarly, in a recent case of Dr. Bal Kishna Agarwal v. State of U. P. and others, (1996) 2 UPLBEC 1055, it has been held that the High Court should not dismiss a writ petition on the ground of availability of an alternative remedy especially when the writ petition has already been admitted and has remained pending in the High Court for the past more than five years.
25. For the reasons stated above, this writ petition is allowed. The impugned orders dated 6.1.92 and 10.4.92 are set aside and the respondents are directed to relegate back the petitioner to the same position, which he was occupying soon before the Impugned order of dismissal was passed and the petitioner would be entitled to all consequential benefits to which he would have been entitled, had he been not dismissed from service. It is, however, made clear that respondent No. 3 shall be at liberty to initiate proceedings against the petitioner in accordance with law and in the light of the observations made above and to pass a fresh order after holding regular enquiry under the relevant Rules.
26. In the circumstances, I make no order as to costs.