Allahabad High Court
Rajendra Prasad Singh vs State Of U.P. And Others on 5 February, 2014
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on 06.12.2013 Judgment Delivered on 05.02.2014 Civil Misc. Writ Petition No. 43404 of 2006 Rajendra Prasad Singh Versus State of U.P. and others ____________ Hon'ble Manoj Kumar Gupta, J.
1. The main question for consideration in the present writ petition is whether the action of the respondents in dismissing the petitioner from service, after dispensing with the disciplinary enquiry, is justified or not.
2. The petitioner was working as a Sub-Inspector in Civil Police and his services are regulated by the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "Rules"). Rule 8 is pari materia with Article 311(1)(2) of the Constitution of India. Relavant part of it, 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............"
3. It is alleged that on 22.06.2006, when the petitioner was posted as sub-inspector at P.S Chilh, district Mirzapur, he without any prior information or permission, absented from duty, came to Allahabad and under influence of liquor, he created a ruckus at Johnstonganj crossing, at Allahabad. He is alleged to have taken out his pant and belt, indulged in indecent behaviour, wearing police uniform shirt and underwear. The aforesaid incident was reported in Newspaper 'Amar Ujala' Allahabad, 'Dainik Jagran' and 'Times of India' and in various T.V. Channels. The incident had undermined the image of the police department. It appears that a report about the incident was forwarded by Superintendent of Police, Mirzapur to Deputy Inspector General of Police, Vindhyachal Range, Mirzapur. Acting on the same, he passed an order on 23.06.2006 dismissing the petitioner from service. The order has been passed in purported exercise of power under Rule 8(2)(b) of the Rules. The reason given in the order for dispensing with the enquiry is that the petitioner continues to be absent from his duty and there was no possibility of his co-operation in the enquiry proceedings. It is further stated that the incident was widely reported in various Newspapers and electronic media and, therefore, it would not be expedient or practicable to hold the enquiry. Challenging the said order, the petitioner has preferred the instant writ petition.
4. The sole argument of learned counsel for the petitioner is that the decision of the respondents to dispense with the disciplinary enquiry is not justified. It is submitted that no reasonable man, taking reasonable view of the situation, could have arrived at the conclusion that it was not reasonably practicable to hold the enquiry. It has been further argued that subjective satisfaction of the authorities has to be based on relevant facts and material on record, not on whims or caprice. It is submitted that in the instant case, the decision to dispense with the disciplinary enquiry is wholly arbitrary and a result of colourable exercise of power. It had resulted in grave and irreparable injury to the petitioner, as his valuable right to defend himself in the disciplinary proceeding was taken away.
5. It has been further submitted that the petitioner was appointed as Sub-Inspector of Police through direct recruitment on 28.12.1974 and there was no adverse entry against him till the year 1998. It is submitted that the petitioner was deputed in Kumbh Mela at Allahabad in the year 1982 and during this period, he won as many as 18 awards. In the year 1990, he was bestowed with the award of best investigator. He had won as many as 53 awards. The petitioner was due to retire in the year 2010. On 22.06.2006, he came to Allahabad in connection with his application for sanction of loan from his GPF Account, as the petitioner was in need of money for the education of his third son, who had qualified entrance examination of engineering at MIT, Madras. It is claimed that the petitioner had taken oral permission from his superior authorities for coming to Allahabad on 22.06.2006. Prior to that, he had regularly attended the office. The observation in the impugned order that the petitioner continues to remain absent, thus it is was not possible to hold the disciplinary enquiry, is not based on any material on record. It is contended that the entire action is per se illegal and arbitrary.
6. The Constitutional Bench of the Supreme Court in the case of Union of India Versus Tulsiram Patel, (1985) 3 SCC 398, while interpreting clause (b) of Article 311(2) of the Constitution had laid down 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....... 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 intimidates 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 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 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 the order imposing penalty."
7. The law laid down by the Constitutional Bench of the Apex Court in the case of Tulsiram Patel (supra) was relied upon by a three Judge Bench of the Apex Court in the case of Chief Security Officer Versus Singasan Rabi Das, AIR1991SC1043, in holding that the reason given in that case for dispensing with the enquiry are wholly irrelevant and totally insufficient in law. It was held as under:
"5. In the present case the only reason given for dispensing with the 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 targets 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 grounds constitute no justification for for dispensing with the enquiry."
8. Since thereafter, there are catena of authorities on the aforesaid proposition of law and the Constitutional Bench judgment of the Apex Court in the case of Tulsiram Patel (supra) is being consistently followed. In a more recent decision of the Apex Court in the case of Sudesh Kumar Versus State of Haryana, (2005) 11 SCC 525, the appellant was a constable in the Haryana Police service and was promoted as Head Constable. On a complaint lodged by one Japanese national Mr. Kenichi Tanaka, an investigation was carried out by Deputy Superintendent of Police and on that basis, the services of the appellant were terminated by resorting to the provisions of Article 311(2)(b) of the Constitution, dispensing with the enquiry. The reason disclosed in the termination order for not holding the enquiry are that the complainant refused to name the accused out of fear of harassment being a foreign national and was likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to enquiry. The Supreme Court disagreed with the aforesaid reasoning and observed as follows: -
"5. 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 is 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 23rd December, 1999, the Visa of the complainant was extended up to 22nd December, 2001. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry.
6. A reasonable opportunity of hearing enshrined in Article 311(2) of the Constitution of India 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."
9. Thus, the consistent view is that holding an enquiry is a rule and it's dispensation, an exception. The test is that in a prevailing situation, what a reasonable man, taking a reasonable view, would have done. Further, the decision to dispense with the departmental enquiry is not based on the ipse dixit of the authority concerned but should be based on objective assessment of the relevant facts. If the subjective satisfaction is challenged before the Court of law, it has to pass the test laid down above and for which, it is the burden of the disciplinary authority to place the relevant facts and material before the Court to justify it's action in dispensing with the disciplinary enquiry.
10. Applying these principles to the facts of the present case, this Court finds that the decision to dispense with the enquiry is not based on relevant considerations and cannot be sustained in law. Perusal of the impugned order will demonstrate that the decision to dispense with the disciplinary enquiry is primarily based on two grounds: (1) that the delinquent continues to be absent and there is no possibility of his co-operation in the enquiry; and (2) the deeds of the delinquent were widely reported in various newspapers and media and, therefore, it would be inexpedient and impracticable to hold the enquiry.
11. I take up these grounds one by one.
12. The first ground as stated above is that the petitioner continues to be absent and there is no possibility of getting his co-operation in the disciplinary proceedings. Admittedly, the incident is of 22.06.2006 and it appears that on the very next day i.e. on 23.06.2006, the Superintendent of Police, Mirzapur forwarded a report to Deputy Inspector General of Police, Vindhyachal Range, Mirzapur, in which he suggested that action should be taken against the petitioner by invoking Rule 8(2)(b). Acting on the same, the Deputy Inspector General of Police, Vindhyachal Range, passed the impugned order on the same day i.e. 23.06.2006, dismissing the petitioner from service,after holding that it would not be practicable to hold the enquiry. It has not been disputed that the petitioner had attended his duty till 21.06.2006 and the allegation of unauthorised absence is only for 22.06.2006, when he is stated to have come to Allahabad without prior intimation or permission of the higher authorities. The dismissal order was passed on the very next day. Thus, there was absence of one day or at best two days, when order of dismissal was passed, though, it is the case of the petitioner that on 23.06.2006, he had reported for duty but his services were terminated. From the aforesaid facts, no reasonable man taking reasonable view of the situation can come to the conclusion that there has been continued absence from duty on part of the delinquent so as to arrive at the conclusion that there is no likelihood of his co-operation in the enquiry.
13. In Jaswant Singh Versus State of Punjab, AIR 1991 SC 385, the Supreme Court held that if the satisfaction of the concerned authority to dispense with the disciplinary enquiry is questioned in a Court of law, the authorities are under obligation to justify there action, by bringing on record the relevant facts and material. It was held as under: -
"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 fall.
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 what the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
14. In the instant case, even in the counter affidavit filed by the respondents, it has not been their case that the petitioner was absent from before 22.6.06. They could not place any material before this court to justify coming to the conclusion that there was no likelihood of the petitioner co-operating in the enquiry, being absent from duties since a long time.
15. The correctness of the view taken by the respondents can be judged from another angle. Under Rule 16, the authorities are empowered to take proceedings in absentia in the eventuality the delinquent absents himself from the place of his posting or from the proceedings, when in progress. Rule 16 reads as under: -
"16. Proceedings in absentia. - (1) Departmental proceedings against delinquent Police Officers may be taken in absentia by the authorities competent to take departmental proceedings if, the Police Officer, against whom departmental proceedings are pending or against whom it is proposed to start such proceedings or to whom it is impossible for the inquiry officer to contact, deliberately absents himself from the place of his posting or from the proceedings when in progress.
(2) Before taking departmental proceedings in absentia, the concerned authority shall record in writing that in spite of all reasonable steps having been taken to contact the Police Officer it has not been possible to serve the charge on him and obtain his explanation or to secure his personal presence.
Explanation. - Where the Police Officer is contacted personally or the charge or the notice is sent to him by registered post at the address given by him as recorded in his character roll and at the place of his present stay, or sent to him by Special Messenger at the place of his present stay, and at the address given by him as recorded in his character roll it shall be presumed that reasonable steps have been taken to contact the Police Officer concerned."
16. Thus, Rule 16 provides that in case the delinquent absents himself from place of posting or from the proceedings, the authorities are empowered to proceed in his absentia. Explanation appended to Rule 16 stipulates contingencies in which it can be assumed that the delinquent is deliberately absenting himself from the place of his posting or from the proceedings. It provides that when the police officer is contacted personally or the charge or the notice is sent to him by registered post at the address given by him as recorded in his character roll and at the place of his present stay or sent to him by Special Messenger, it shall be presumed that reasonable steps have been taken to contact the police officer concerned.
17. The Rules, thus empower the authorities to hold disciplinary proceedings in absence of the delinquent and also lays down the guidelines and the circumstances in which an inference can be drawn regarding his deliberate absence from place of posting or from the proceedings. It further indicates that even when the delinquent is deliberately absenting from the disciplinary proceedings, it does not entitle the authorities to dispense with the disciplinary proceedings but to proceed and conclude the same in his absence. Now, even if it is assumed that the delinquent has been absent for long and there was no likelihood of his co-operating in the enquiry, it would only empower them to proceed ex parte against the delinquent in the disciplinary proceedings but it could not be made a ground for dispensing the disciplinary enquiry.
18. The other ground is that the alleged misdeeds of the delinquent having been reported in the press and media and, therefore, it would be inexpedient and impracticable to hold the disciplinary proceeding. It does not stand to reason how reporting of the incident by the press and the electronic media could be a ground from not holding disciplinary proceedings. The reporting by the press and the electronic media could have been used as a piece of evidence against the delinquent subject to the rule of evidence but by no stretch of imagination, could it be the ground for dispensing with the disciplinary enquiry.
19. Along with the counter affidavit, the respondents have brought on record the report of Superintendent of Police, Mirzapur dated 23.06.2006. It merely recites the antecedents of the delinquent and the incident and suggests that his continuance in police force is not desirable. It further recommends for proceeding under Rule 8(2)(b). It gives absolutely no reason why power under Rule 8(2)(b) should be invoked and why it is impracticable to hold the disciplinary enquiry. On the basis of such report, it is impossible to form an opinion that enquiry proceedings should be dispensed with. The Supreme Court in a recent judgment in the case of Reena Rani Versus Sate of Haryana, (2012) 10 SCC 215 was confronted with the case of a constable in the police department of the government of Haryana. In that case, dismissal order was passed after dispensing with the disciplinary enquiry on the ground that while she was posted as Prisoner Escort Guard, she developed close links with Mustaq alias Mustakim alias Rasim, who is involved in 7 criminal cases. The reason given for dispensing with the enquiry was that there was sufficient evidence to prove the appellant's nexus with Mustaq and as such, she did not deserved to be retained in service and that it was not practicable to hold a regular departmental enquiry because no independent witness would be available. The Apex Court concluded as under: -
"11. By applying the ratio of above extracted observations to the facts of this case, we hold that the appellant's dismissal from service was ultra vires the provisions of Article 311 and the learned Single Judge and the Division Bench of the High Court committed serious error by upholding order dated 23.4.2010 passed by the Superintendent of Police."
20. In the instant case as well, the respondents seem to be moved more by the reporting of the incident in the press and the electronic media without adverting to the facts of the case and whether it would be practicable to hold the enquiry or not. Perusal of the order reflects that much emphasis was laid on adverse entries given to the petitioner during the year 1998, 1999 and 2000 and certain incidents in the past in which he was allegedly found under influence of liquor. According to the petitioner, these entries were never communicated to him and it came to the knowledge of the petitioner for the first time after reading the impugned order. Be that as it may, I do not consider it necessary to go into the aforesaid question as the decision to dispense with the disciplinary enquiry has nothing to do with the evidence in possession of the employer, to prove the charge of misconduct levelled against the delinquent, for the same has to be established in course of disciplinary proceedings after full opportunity to the delinquent to defend himself.
21. In view of the discussions made above, the irresistible conclusion is that the decision to dismiss the petitioner from service, without holding disciplinary enquiry by invoking power under Rule 8(2)(b), is manifestly illegal and cannot be sustained in law. The necessary corollary is that the impugned order of dismissal cannot be sustained, and is hereby quashed.
22. The question, which now arises is the relief to which the petitioner is entitled to. A Constitution Bench of the Apex Court in Managing Director ECIL Versus B. Karunakaran, (1993) 4 SCC 727 has laid down the solution where the order of termination is found to be vitiated on account of the some technical defect. It is held as under:-
"Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct re-instatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his re-instatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be re-instated,the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The re-instatement made as a result of the setting aside the inquiry for failure to furnish the report, should be treated as a re-instatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law."
23. In a more recent decision of the Apex Court reported in (2011) 5 SCC 142 - Chairman cum Managing Director Coal India Limited Versus Ananta Shah, the Court dwelled on the question relating to the consequence of the termination order being set-aside and the entitlement to back wages by making following observations: -
"49. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is re-instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide: U.P.SRTC v. Mitthu Singh, AIR 2006 SCC 3018; Secy., Akola Taluka Education Society & Anr. v. Shivaji & Ors., (2007) 9 SCC 564; and Managing Director, Balasaheb Desai Sahakari S.K. Limited v. Kashinath Ganapati Kambale, (2009) 2 SCC 288)."
24. In the instant case, the delinquent had attained the age of superannuation in the year 2010. Thus, no useful purpose will be served in permitting the respondents to hold the enquiry. At the same time, in view of the dictum of the Supreme Court in the above mentioned judgments, the petitioner cannot be held entitled to back wages as a matter of course. While deciding the said question, this Court cannot loose sight of the factual scenario emerging out the alleged misconduct and the principles of justice, equity and good conscience, which are necessary to be taken into consideration.
25. Here, it is noticeable that though the delinquent had challenged the dismissal order on the ground that dispensation of enquiry was illegal but he had not denied his involvement in the incident. There is not even a slightest whisper that the incident in question did not take place. Rather, it is admitted in Paragraph 10 of the writ petition that he came to Allahabad on 22.06.2006. The scene which he created in full public glare, in presence of media persons has also not been denied by him. It is presumably for the reason that the entire episode was not only witnessed by public at large but was also recorded by electronic media and was reported in Newspapers. Along with the counter affidavit, the respondents have brought on record the news item published in various Newspapers carrying photograph of the petitioner with pants in his hand and wearing only shirt and underwear. It has also been the case in the counter affidavit that the petitioner was challaned on the spot by the local police under section 34 of the Police Act and was later released on furnishing personal bond of Rs. 1000/-. The challan bears signatures of the petitioner (Counter Affidavit - 3). Apparently, it is for the said reason that the petitioner could not dare to deny the incident. In the rejoinder affidavit, the petitioner getting wiser, tried to explain his conduct by stating that while returning from Allahabad, one of his friends offered him a cold drink and thereafter, he was not aware that what transpired. The said statement, though clearly an after-thought, does not amount to denial of the incident. To the contrary, it strengthens the charge levelled against the petitioner.
26. Further in the year 1998, 1999, 2000, he was given entry to the effect that he is a drunkard Sub-Inspector. The petitioner tried to avoid these adverse entries by alleging that these were never communicated to him. Even if these adverse entries are ignored, I find that at least part of the charge regarding irresponsible behaviour and unauthorised absence stands proved, rather admitted. There is no iota of doubt that such conduct on part of a member of police force, who himself is custodian of law and is supposed to maintain high standards, requires to be condemned. It is pertinent to mention here that under section 23 of the Police Act, 1861, a police officer is enjoined with the duty to prevent commission of public nuisance but here is a case, where the petitioner himself became a source of public nuisance. Thus, award of back wages to the petitioner would in fact amount to rewarding him.
27. The other cardinal principle is "no work no pay", which is also applied in determining the question relating to back wages, though it has been held that the same cannot be the sole ground for denying back wages, as totality of facts and circumstances are to be taken into consideration. Therefore, keeping in view the overall scenario and the principles of justice, equity and good conscience , I am of the opinion that the petitioner is not entitled to back wages. His reinstatement will be notional, for granting him continuity of service and the consequential retiral benefits. Same course was adopted by Supreme Court in the case of Surya Mani Sharma Versus Union of India, (2011) 14 SCC 280, when it found that dispensation of enquiry was illegal, but in the meantime, the delinquent had attained the age of superannuation. Again in the case of Ex-Constable Chhote Lal Versus Union of India, (2000) 10 SCC 196, the Apex Court looking to the nature of charges denied backwages even after holding that enquiry was wrongly dispensed with.
28. As a result of the above discussions, the writ petition succeeds and is allowed in part. The respondents are directed to calculate the retiral benefits payable to the petitioner by granting him continuity of service till he attained the age of superannuation and to pay the entire sum found due on such calculation, within a period of three months from the date of production of certified copy of this order.
(Manoj Kumar Gupta) Dated: 5th February 2014 AM/-