Allahabad High Court
Kushal Pal Singh vs State Of U.P. And Another on 16 December, 2020
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On: 07.12.2020 Delivered On: 16.12.2020. Court No. - 75 Case :- WRIT - A No. - 16247 of 2019 Petitioner :- Kushal Pal Singh Respondent :- State of U.P. and Another Counsel for Petitioner :- Nisheeth Yadav Counsel for Respondent :- C.S.C. Hon'ble Shekhar Kumar Yadav,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. By means of present petition, petitioner has sought following reliefs:-
I. A writ, order or direction in the nature of certiorari quashing the impugned order dated 07.08.2019 passed by the respondent no. 2 II. A writ, order or direction, in the nature of mandamus directing the respondents to reinstate the petitioner on his post with all emoluments payable to him.
III. Any other suitable order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case.
3. Facts in narrow compass are that petitioner was appointed on the post of Constable in Uttar Pradesh Police Services on 25.06.2005. The petitioner was on security duty at Sadar Jail situated in the periphery of Ghaziabad Kutchery. Usually, it was not his duty to produce the prisoners before the court. On 7.8.2019, he was assigned the duty of search at gate of Prison Room but he accompanied one Naushad, who was accused in Case Crime No. 438 of 2016 under Sections 302, 201 I.P.C. Police Station Kheda, District Ghaziabad, to produce before Court Room No.1 at about 1.45 p.m. and came back at about 4.00 p.m. without the said prisoner. On enquiry, respondent no.2 came to know that after producing the said accused before the said court room, he illegally helped him in fleeing away from the court campus and, thus, he terminated the petitioner from service holding that he played an active role in getting the accused fled away.
4. Learned counsel for the petitioner submitted that on 07.08.2019 approximately 350 criminals including said accused Naushad were brought from Dasna Jail and were kept in the lock-up room situated in the court campus of Ghaziabad. As accused persons were more, who had to be produced before the Court concerned and the constables were less in number, the Head Constable, namely, Satish Kumar, who was supervisor of the said lock-up had ordered him to produce said accused Naushad before the Court of Additional District Judge, First Court, Ghaziabad. Therefore, the petitioner escorted him to the said Court where he came to know that his case was transferred to the Additional District Judge 7th . When he reached there and waited for his turn to be produced before the Court, the accused, taking advantage of the rush, jacked off his hands of the petitioner and rushed away. It is submitted that the petitioner had only obeyed the order of his higher officer, namely, Satish Kumar, Head Constable and there was no control over the circumstances in which the accused fled away as there was huge rush in the surrounding area. Without looking to the fact and getting the matter inquired by way of holding enquiry, the respondent No. 2 terminated his services invoking the power conferred under Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the ''Rules 1991') as well as Article 311(2)(b) of the Constitution of India without even giving opportunity of hearing to him. It is further submitted that in case of termination/dismissal order passed under Rule 8(2)(b), it is required on the part of the Disciplinary Authority to record reasons in writing that reasonably it was not practicable to hold enquiry. Rule 8(2)(b) of the Rules 1991 is pari-materia to Article 311(2)(b) of the Constitution of India. It is lastly submitted that as the order of termination has been passed without recording reasons in writing for not holding the enquiry in the matter and even without providing opportunity of hearing to the petitioner, the same is bad and liable to be set aside.
5. In support of his submissions, the learned counsel for the petitioner placed reliance on the judgment of Apex Court as well as this Court rendered in the cases of Union of India and another vs. Tulsiram Patel, AIR 1985 SC 1416; Jaswant Singh vs. State of Punjab and others (1991) SCC 362 and State of U.P. and another vs. Satya Prakash Rai, Special Appeal Defecctive no. 565 of 2020 dated 29.09.2020.
6. Per contra, learned Standing Counsel for the respondents urged that there is no need to conduct enquiry and order has rightly been passed by exercising power under Rule 8(2)(b) of Rules 1991. It is further contended that the impugned order clearly gives reasons for dispensing with the service of the petitioner as such no interference is required in the matter. There is no illegality in the order, as such, the order impugned requires no interference by this Court under Article 226 of the Constitution of India.
7. I have considered the submissions advanced on behalf of both the parties and perused the judgments relied upon by the learned counsel for the parties.
8. The facts of the case are not disputed. 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 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."
9. Perusal of aforesaid, clearly mandates that no police officer shall be dismissed, removed or reduced in rank except after proper enquiry and disciplinary proceedings as contemplated under the Rules. Further proviso (b) stipulates that this rule shall not apply 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. Thus, 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 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.
10. The above provision is pari-materia with Article 311 (1) and (2) of the Constitution, which gives constitutional protection to a Member of civil service of the Union or of the State. The normal rule is that no major punishment, such as, dismissal, removal or reduction in rank should be inflicted without taking recourse of regular disciplinary enquiry against any delinquent. However, Rule 8 (2) (b) of the Rules, 1991 has carved out certain exceptions where even without holding regular proceeding punishment of dismissal, removal or reduction in rank can be inflicted. In order to dispense with the regular departmental proceeding for inflicting major punishment recording reasons is a condition precedent to prevent arbitrary, capricious and mala fide exercise of power. Absence of reasons vitiates the order and renders it unsustainable in law. Secondly, the authority has to record its satisfaction based on credible material in the record, to dispense with the enquiry. Onus is on the State or its authorities to show that the order of dismissal has been passed strictly as per prescription of the statutes.
11. The power under Rule 8(2)(b) of the Rules, 1991, could have been invoked only on being satisfied that holding of enquiry is not "reasonably practicable" and that too after recording the reasons. The circumstances in which it cannot be "reasonably practicable" to hold enquriy were considered by Hon'ble the Supreme Court in the case of Union of India Vs Tulsi Ram Patel, AIR 1985 SC 1416 held as follows:
"60. The Second Proviso to Article 311(2) Clause (2) of Article 311 gives a constitutional mandate to the principles of natural justice and audi alteram partem rule by providing that a person employed in a civil capacity under the Union or a State shall not be dismissed or removed from service or reduced in rank until after an inquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. To this extent, the pleasure doctrine enacted in Article 310 (1) is abridged because Article 311 (2) is a express provision of the Constitution. This safeguard provided for a government servant by clause (2) of Article 311, however, taken away when the second proviso to that clause becomes applicable. The safeguard provided by clause(1) of Article 311, however, remains intact and continues to be available to the government servant. The second proviso to Article 311 (2) becomes applicable in the three cases mentioned in clauses (a) to (c) of that proviso. These cases are :
(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 inquiry; and
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
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 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 given 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."
12. In the case of Jaswant Singh vs. State of Punjab and others, AIR (1991) 1 SCC 362, the Apex Court while dealing with the exercise of power as conferred by way of exception under Article 311 (2) (b) of the Constitution of India, opined as under:
"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 sanctification 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."
13. In Reena Rani vs. State of Haryana, (2012) 10 SCC 215, after referring to the various authorities in the field, the Hon'ble Apex Court ruled out when reasons are not ascribed, the order is vitiated and accordingly set aside the order of dismissal which had been concurred with by the Single Judge and directed for reinstatement in service with all consequential benefits. It has also been observed therein that the order passed by this Court would not preclude the competent authority from taking action against the appellant/petitioner in accordance with law.
14. In the case of Risal Singh vs. State of Haryana and others, (2014) 13 SCC 244 the Hon'ble Apex Court Court observed as follows:
"Non-ascribing of reason while passing the order dispensing with enquiry, which otherwise was must, definitely invalidates such action......
Tested on the touchstone of the aforesaid authorities, the irresistible conclusion is that the order passed by the Superintendent of Police dispensing with the inquiry is totally unsustainable and is hereby annulled. As the foundation founders, the order of the High Court giving the stamp of approval to the ultimate order without addressing the lis from a proper perspective is also indefensible and resultantly, the order of dismissal passed by the disciplinary authority has to pave the path of extinction"
15. From the perusal of judgements referred hereinabove, it is clear that order of termination cannot be passed without providing opportunity of hearing and further reasons have to be recorded by authority in writing as to why inquiry is not reasonably practicable while exercising the power under Rule 8(2)(b) of Rules 1991. In the case at hand, reasons recorded in the impugned order are not such on the basis of which it can be said that holding of inquiry was not reasonably practicable. Further Article 311(2)(b) of the Constitution of India postulates for extending reasonable opportunity to a civil servant before subjecting him to dismissal or removal from service or in the event of reduction in rank.
16. In view of the forgoing observations, this Court is of the view that the order impugned is contrary to the provisions of Rule 8(2)(b) of the Rules 1991 as well as Article 311(2)(b) of the Constitution of India and the same is not sustainable in the eye of law.
17. For the reasons recorded hereinabove the impugned order dated 07.08.2019 is hereby quashed. However, it would be open to the respondents to initiate disciplinary proceedings against the petitioner, if they so desire in accordance with the rules.
18. With aforesaid observation, the writ petition is allowed. No costs.
Order Date :- 16.12.2020 SY (Justice Shekhar Kumar Yadav)