Allahabad High Court
Kailash Nath Dwivedi S/O Late Raj Dutt ... vs State Of U.P. Thru Principal Secretary ... on 8 July, 2010
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
Court No.4.
Writ Petition No. 1171 (S/S) of 2010
Kailash Nath Dwivedi ....... Petitioner
Vs
State of U.P. & others ...... opposite parties
Hon'ble Ritu Raj Awasthi, J.
Heard Sri S.K. Tiwari, learned counsel for the petitioner as well as learned standing counsel and perused the records.
The writ petition has been filed challenging the order dated 18.02.2010 whereby the petitioner has been dismissed from service in exercise of power under Rule 8 (2) (b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal ) Rules, 1991 (hereinafter referred to as Rules 1991).
Learned counsel for the petitioner submits that petitioner when posted as Inspector of Police at Police Station- Kotwali Musafirkhana, District- Sultanpur, a Case Crime No. 201/2010 under Section 302 I.P.C. was registered against named accused Smt. Sangeeta for the murder of her husband on the complaint made by the mother of the deceased. During the investigation, the accused Sangeeta had tried to run away from the police station and she was caught hold by a lady constable and the petitioner had also used some force to detained her in the Police Station. On the basis of complaint of misbehaviour with the said accused, the petitioner was placed under suspension by order dated 17.02.2010 contained as Annexure No.5 to the writ petition, which indicates that a disciplinary inquiry was contemplated. It is further submitted that by another letter dated 17.02.2010, Superintendent of Police, Sultanpur had directed the Circle Officer, Gauriganj, Sultanpur to hold a preliminary inquiry against the petitioner and submit his report within one week. However, in a most arbitrary, wrong and illegal manner and in clear abuse of powers, on the next date i.e. 18.02.2010, the Deputy Inspector General of Police, Faizabad Range, Faizabad by impugned order dismissed the petitioner from service.
It is vehemently submitted by learned counsel for the petitioner that under Rule 8 (2) (b) of Rules, 1991, the authority empowered to dismiss or remove a subordiante officer can exercise the power of dispensing with the inquiry before awarding a major punishment, however, reasons for dispensing with the inquiry shall be recorded in writing.
It is submitted by the learned counsel for the petitioner that the opposite party no. 2 while passing the impugned order has not assigned any reason as to why it is not practically reasonable and possible to hold disciplinary inquiry before awarding major punishment to the petitioner. In support of his submission learned counsel for the petitioner has relied on the following decisions:-
1. Union of India & another, Appellants V. Tulsiram Patel, respondent r eported in AIR 1985 Supreme Court 1416
2. State of U.P. & others Vs Chandrika Prasad reported in[2006 (1) ESC 374 (AII) (DB)] Allahabad High Court.
3. Hari Prasad Rai & Another Vs State of U.P. & another.
4. Pushpendra Singh (C.P. 2187) & another Vs State of U.P. & another reported in [2008 (2) ESC 1477 (AII) (DB)] Allahabad High Court.
5. Bhupat Singh Yadav Vs State of U.P. & others reported in [20063 (4) ESC 2303 (AII)] Allahabad High Court.
Learned standing counsel on the basis of counter affidavit submits that the petitioner had misbehaved with the lady who was said to be an accused in Case Crime No. 201/2010 under Section 302 I.P.C. and she was physically mishanded by the petitioner. The said incident was recorded by media persons and the clips were shown on various T.V. News channels which had resulted in lowering the image of the police department. It is further submitted by the learned standing counsel that since the alleged misconduct, on the basis of which the petitioner was dismissed from service, was proved beyond doubt on the basis of evidence as such there was no need to hold the department inquiry.
I have considered the various submissions made by the counsel for the parties.
Rule 8 (2) (b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal ) Rules, 1991 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 let to his conviction on a criminal charge.
(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 Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.
(3) All order 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 or 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 lessor 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 requirement of Rule 8 of Rules 1991 clearly indicates that no police officer shall be dismissed or removed from service by an authority subordinate to the appointing authority and no police officer shall be dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceeding as contemplated by these rules. However, requirement of holding disciplinary proceedings can be dispensed with in the following circumstances:-
1.Where a person is dismissed or removed or reduced in rank on the ground of conduct which has let to his conviction on a criminal charge.
2. 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
3. Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.
In the present case the impugned order 18.02.2010 seems to have been passed in exercise of power under Rule 8 (2) (b) of Rules 1991. However, it does not indicate any reason as to why it is not reasonably practicable to hold a disciplinary inquiry before awarding the major punishment of dismissal of the petitioner.
In the counter affidavit, filed by the opposite parties in which it has been mentioned that since the alleged misconduct or misbehaviour and marpeet with a lady accused is proved on the basis of evidence, therefore, the departmental inquiry under the Rules 1991 is not reasonably practicable.
The said reason does not appear to be justifiable. The record reveals that the petitioner was placed under suspension by order dated 17.02.2010 and disciplinary inquiry was contemplated by another order dated 17.02.2010 by which Superintendent of Police, Sultanpur, had appointed Circle Officer, Gauriganj as Inquiry Officer and he was directed to submit his report within one week. However, on the very next date the petitioner was dismissed from service by the opposite party no.2 i.e. D.I.G., Faizabad Division Faizabad.
In the case of Union of India Vs Tulsi Ram Patel (Supra) the Hon'ble Apex Court has observed as under:
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 is that the words used are "not reasonable 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 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 this 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 others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would be 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 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 mater 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 as 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 so the order imposing penalty. The case of Arjun Chaubey v. Union of India (1984) 3 SCR 302: (AIR 1984 SC 1356) is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi.
The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The Appellant submitted his explanation and on the very next d ay the Deputy chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter."
The Division Bench of this Court in the case of State of U.P. & other Vs Chandrika Prasad had considered the applicability of Rule 8 (2) (b) and had observed as under:-
Relevant paragraphs 14 to 17 are quoted below.
"14. The learned counsel for the appellant attempted to justify the order that it satisfies the requirements of Rules. We are of the view that even this contention is apparently misconceived. The Apex Court at page 1479 in Tulis Ram Patel (Supra) held as follows:
"A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrary 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."
15. The words some "reasons to be recorded in writing that it is not reasonably practicable to hold enquiry" means that there must be some material for satisfaction of the disciplinary authority that it is not reasonably practicable. The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. The Apex Court in the case of Jaswant Singh Vs State of Punjab and Others, AIR 1991 SC 385 in para 5 at page 390 has observed as under:
"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 form the material placed before him that it is not reasonably practicable to hold a department enquiry."
"......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."
16. In almost similar circumstances the matter cam up before the Apex Court in the case of Chief Security Officer v. Singasan Rabi Das, AIR 1991 SC 1043 and the Apex Court found that the dismissal order before enquiry in the said case on similar ground as in the case in hand did not satisfy the requirements of the Rules as is apparent from the following:
"In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security/other Railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become target of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these ground constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or g rounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result the appeal fails and is dismissed. There will be no order as to costs."
17. The mere mention of fact that delinquent person may influence witnesses without there being any material to support the same is nothing but a conjecture surmise and ipse dixit on the part of the disciplinary authority to dispense with the enquiry. If the contention of the appellant is accepted, the constitutional protection, available, to a Government servant under Article-311 (2) of the Constitution as reflected in Rule 8 (2) of the aforesaid Rules Would render illusory and artificial. The normal rule of enquiry can always be defeated by the disciplinary authority in an arbitrary manner whenever it intend to get rid of a Government servant for any reason, it did not find conducive to its expectations. Constitutional protection cannot be dispensed with lightly as held by the Apex Court and is to be followed and observed in words and spirit and strict manner."
Relying upon the aforesaid judgments placed by the learned counsel for the petitioner, I am of the considered opinion that the impugned order dated 18.02.2010 contained as Annexure No.1 to the writ petition is not sustainable in the eyes of law.
The writ petition is liable to be allowed. It is hereby allowed. The order dated 18.02.2010 is quashed. The consequences shall follow. No order as to costs.
However, it is open for the opposite parties to hold a disciplinary inquiry in accordance with relevant rules and regulations and pass appropriate order after affording adequate opportunity to the petitioner.
08.07.2010 Adhir