Allahabad High Court
Satya Prakash Rai vs State Of U.P. And Another on 17 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2284
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On: 16.10.2019 Delivered On: 17.12.2019 Case :- WRIT - A No. - 68437 of 2009 Petitioner :- Satya Prakash Rai Respondent :- State Of U.P. And Another Counsel for Petitioner :- Nisheeth Yadav,C.B. Yadav Counsel for Respondent :- C.S.C. Hon'ble Neeraj Tiwari,J.
Heard Sri Nisheeth Yadav, learned counsel for the petitioner and learned Standing Counsel for the respondents.
Pleadings have been exchanged between the parties. With the consent of parties, writ petition is being decided at the admission stage itself.
Learned counsel for the petitioner is assailing the impugned order dated 31.8.2009 by which he was terminated from service by exercising the power under Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as Rules, 1991). He submitted that petitioner is having qualification of Intermediate and he was recruited as Police Constable on 11.12.1984. During the course of service, several disciplinary proceedings were initiated against him in which he was given minor punishment. He further submitted that there is allegation against the petitioner that he was off duty, he has taken excess liquor and scuffled with the colleagues and due to this reason, considering his past conduct, impugned order has been passed by exercising power under Rule 8(2)(b) of Rules, 1991. He next submitted that in case of termination/dismissal order passed under Rule 8(2)(b), it is required on the part of Disciplinary Authority to record reasons in writing that reasonably it is not practicable to hold inquiry. Rule 8(2)(b) of Rules, 1991 is pari materia to Article 311(2)(b) of the Constitution of India. He further submitted that no such reasons was recorded and only considering his past conduct, order of termination has been passed. He next submitted that in light of judgments of Apex Court in the cases of Indu Bhushan Dwivedi Vs. State of Jharkhand and another reported in 2010 (126) FLR 994 and Mohd Yunus Khan Vs. State of Uttar Pradesh and others reported in (2010) 10 SCC 539 wherein the Apex Court held that for imposing punishment, Disciplinary Authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position. Lastly, he submitted that in case reasons are not recorded, order passed under Rule 8(2)(b) of Rules, 1991 is bad and liable to be set aside.
In support of his contention, he has placed reliance upon the judgments of Apex Court as well as this Court in the cases of Union of India and another v. Tulsiram Patel; AIR 1985 SC 1416, Chief Security Officer and others v. Singasan Rabi Das; 1991 (1) SCC 729, Jaswant Singh Vs. State of Punjab and others; (1991) 1 SCC 362, Bishambher Singh Bhadoria Vs. State of U.P. and others; 2008(4) ESC 2872 All, Sudesh Kumar v. State of Haryana and others; (2005) 11 SCC 525, Raksh Pal Singh Vs. State of U.P. and another; 2009 (5) ADJ 735 and Yadunath Singh Vs. State of U.P. and others; 2009 (9) ADJ 86 (DB) in which Courts have held that even if reason is assigned that has to be based on germane grounds and not ipse dixit of the disciplinary authority. It has to be supported by the evidence.
Learned Standing Counsel appearing for the respondents submitted that considering the past conduct of petitioner, there is no need to conduct enquiry and order has rightly been passed by exercising power under Rule 8(2)(b) of Rules, 1991, therefore, there is no illegality in the order and Disciplinary Authority has rightly passed the order.
I have considered the rival submissions made by the learned counsel for the parties and perused the judgments relied upon by the learned counsel for the parties.
The facts of the case are not disputed. Even in the counter affidavit, there is no denial of the fact that as required under Rule 8(2)(b) of Rules, 1991 reasons have not been recorded by the Disciplinary Authority while passing the impugned order.
Rule 8(2)(b) of Rules, 1991 as well as Article 311 (2)(b) of Constitution of India reads as under:-
Rule 8(2)(b) of Rules, 1991 "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."
Article 311 (2)(b) of Constitution of India "311 (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."
By perusal of Rule 8(2)(b) of Rules, 1991 as well as Article 311 (2)(b) of Constitution of India, it is absolutely clear that while dispensing with the inquiry, it is necessary to record reasons in writing.
The issues, whether on the basis of past service record any punishment order can be passed or not and recording reasons to dispense with the inquiry as provided under Rule 8 (2)(b) of Rules, 1991 as well as Article 311 (2)(b) of the Constitution of India came many times before this Court as well as Apex Court and Courts have decided the same.
The Apex Court in the matter of Indu Bhushan Dwivedi (Supra) has clearly held that if any employee is found guilty of misconduct, Disciplinary Authority cannot consider his past adverse record for punishment without giving opportunity of hearing. Relevant paragraph no.20 of the said judgment is being quoted hereinbelow:-
"20. An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment."
Again in the matter of Mohd Yunus Khan (Supra), Supreme Court reiterated the same ratio of law. Relevant paragraph no.34 of the said judgment is being quoted hereinbelow:-
"34. The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show cause notice, before imposing the punishment."
Apex Court in the matter of Tulsiram Patel (Supra) has considered and ruled that while dispensing with the inquiry it is incumbent upon the authority to record reasons as to why inquiry is reasonably not practicable to hold. Relevant paragraph is being quoted hereinbelow:-
"The language precedent for the application of clause(b) 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 holding 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."
The Supreme Court further held:-
"The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason 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:-
"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 (Supra), 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 the matter of Jaswant Singh (Supra), the Supreme Court held:-
"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 place 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 of caprice of the concerned officer."
Following the judgments of Apex Court, this Court in the matter of Bishambher Singh Bhadoria (Supra) has allowed the writ petition by quashing the order of termination. Relevant paragraphs no. 13 & 14 of the said judgment are being quoted hereinbelow:-
"13. In view of the aforesaid, I am of the opinion that the impugned order of termination does not contain sufficient reasons for dispensing with the inquiry. The charges so leveled are such that it can easily be enquired through a departmental enquiry. It is not a case where it could be said that it was not reasonably practicable to hold an inquiry. In my opinion, the decision of the disciplinary authority was wholly arbitrary. The reasons given for dispensing with the enquiry was wholly irrelevant. I am of the view that the disciplinary authority has misused the provision of Rule 8(2)(b) of the Rules. Similar view was taken by me in Dharam Pal Singh Vs. State of U.P. And others, 2005(1) ESC 566 and in writ petition No.33057 of 2006, Virendra Kumar Premi v. State of U.P. And another, decided on 7.8.2008.
14. In view of the aforesaid, the exercise of the powers under Rule 8(2)(b) of the Rules was totally arbitrary. Consequently, the impugned order terminating the services of petitioners cannot be sustained and is quashed. The writ petitions are allowed and the matter is remitted to the authority to proceed from the stage prior to passing of the impugned order and conclude the inquiry and pass a final order within six months from the date of the production of a certified copy of this order."
In the matter of Sudesh Kumar (Supra), 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.35 A reasonable opportunity of hearing enshrined 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."
Following the judgment of Apex Court in the matter of Raksh Pal Singh (Supra), this Court observed as follows:-
"10. In the present case the order passed by the Superintendent of Police, Badaun does not give any reason as to why it was not reasonable practicable to hold the inquiry. The impugned order merely refers to the charges leveled against the petitioner but is delightfully vague about the statutory requirement contained in the second proviso to Rule 8(2) of the 1991 Rules relating to dispensing with the inquiry. In such circumstances, the order dated 19th January, 2001 passed by the Superintendent of Police cannot be sustained."
Similarly again placing reliance upon the judgments of Apex Court, this Court in the matter of Yadunath Singh (Supra) has observed as follows:-
"4. It is common ground that the service of the writ petitioner-appellant is governed by the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "the Rules"). Rule 8 of the aforesaid Rules provides for dismissal and removal of police officers of the subordinate rank only after proper inquiry. However, proviso (b) to Rule 8 (2) contemplates that where the government is satisfied, that in the interest of the security of the State, it is not expedient to hold such inquiry, it can be dispensed with. It further provides that 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 an inquiry, it may dispense with the inquiry. Here in the present case, the disciplinary had recorded its satisfaction but it is well settled that satisfaction has to be based on germane grounds and not ipse dixit of the disciplinary authority. Here the only ground to dispense with the inquiry is that if writ petitioner-appellant is allowed to continue in service, a departmental inquiry shall consume sufficient time and, therefore, such continuance will have ground recorded by the disciplinary authority while dispensing with the inquiry is not germane nor is it on any material that may be relevant, as such, the ground set forth cannot justify dispensing the inquiry at all."
5. The provisions contained under Rule 8 (2(b) have been incorporated keeping in view the provisions of Article 311 (2)(b) of the Constitution of India. The power conferred on the authority to dispense with an inquiry in a given situation where it is reasonably not practicable to hold an inquiry, has been envisaged therein. The Apex Court in the case of Union of India and another v. Tulsi Ram Patel, (1985) 3 SCC 398, had the occasion to consider the scope of the aforesaid provision and the Apex Court laid down the test of reasonableness in the said case to be reflected by the authority while proposing to dispense with an inquiry. Paragraph 130 of the said decision is reproduced below:-
"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. What is pertinent to note that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected accomplished, or done; feasible. Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform: capable of being put into practice, done or accomplished: feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner : to a fairly sufficient extent". 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. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the Officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or 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. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry 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. 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 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 and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India is an instance in point."
The ratio of the decision in Tulsiram Patel's case (supra) has been further explained in paragraph 128 to 132, 133, 135, 138 and 141. Applying the aforesaid test, in the present case, the question is as to whether the loss of rifle carried by the petitioner makes out a situation for not holding an enquiry. The reason given in the impugned order that the continuance of the petitioner in service would have an adverse moral effect has absolutely no rational connection with the subject matter of inquiry. Whether the rifle was lost in transit by the petitioner or not could have been enquired into and it is not the case of the respondent that there was any threat to security or anything otherwise which may obstruct the smooth holding of an inquiry. The reason given in the impugned order, therefore, proceeds on an assumption which cannot be accepted as reasonable. It cannot stand the scrutiny as indicated by the Apex Court in the decision of Tulsi Ram Patel (supra) and we are, therefore, unable to approve the same.
From the perusal of judgments referred in above, this fact is very much clear that order of termination cannot be passed on the basis of punishment or past service record without providing opportunity of hearing and further while passing any order under Rule 8(2)(b) of Rules, 1991 reasons have to be recorded by authority in writing as to why inquiry is not reasonably practicable.
In the present case, there is no dispute that while passing the impugned order, no reasons have been recorded and it is passed only on the basis of previous service record, which is contrary to the provisions of Rule 8(2)(b) of Rules, 1991 as well as Article 311(2)(b) of the Constitution of India. The Court has repeatedly held that order cannot be passed on the basis of previous service record as well as without recording reasons. Not only this Court had gone to the extent that in case reasons are recorded that must be satisfactory and mere formality of recording reasons cannot be accepted.
Therefore, in light of factual and legal discussions made hereinabove, impugned order dated 31.8.2009 is bad in law and is hereby set aside.
Accordingly, the writ petition is allowed. No order as to costs.
Order Date :- 17.12.2019 Junaid