Allahabad High Court
Ram Naresh Tripathi vs State Of U.P. Thru Prin. Secy. Home & Anr. on 7 February, 2019
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 20
Case :- SERVICE SINGLE No. - 3198 of 2008
Petitioner :- Ram Naresh Tripathi
Respondent :- State Of U.P. Thru Prin. Secy. Home & Anr.
Counsel for Petitioner :- Ashutosh Singh,Pankaj Kumar Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Rajnish Kumar,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the opposite parties.
The petitioner has filed the instant writ petition assailing the validity and correctness of the order dated 29.05.2008 passed by the Superintendent of Police, Bahraich dismissing the petitioner from service invoking the provisions of Rule 8(2)(b) of the U.P. Subordinate Police Officers Punishment & Appeal Rules, 1991 (hereinafter referred to as the Rules, 1991).
Facts, in brief, are that the petitioner was appointed as Police Constable on 01.01.1987. While he was posted as Constable (558) under the Senior Prosecuting Officer, Bahraich and was Lock-up Moharrir, in a routine manner, on 27.05.2008 about 33 accused persons alongwith one Mulim were sent to the C.J.M. Court, Bahraich for personal appearance and after their appearance they returned back. On the very same day, i.e. on 27.05.2008 after the accused Mulim returned, Constable Shailendra Singh informed that the accused Mulim was again required for appearance before the C.J.M. Court. Accordingly, the accused Mulim was again sent alongwith the constable Shailendra Singh in his custody and the entry was made in general diary. Thereafter the constable Shailendra Singh returned back alone and informed that the accused Mulim had thrown chilli powder in his eyes and ran away from his custody. The said information was also recorded in the general diary. Constable Shailendra Singh had also lodged a First Information Report on 27.05.2008 at about 03:20 p.m. in Police Station- Kotwali Nagar, Bahraich.
The petitioner was accompanying the constable Shailendra Singh. The petitioner performed his duty on 28.05.2008 after the said incident. The petitioner proceeded on leave on account of illness on 29.05.2008 and on the very same day i.e. 29.05.2008 the opposite party no.2 passed the impugned order dated 29.05.2008 just after two days of the alleged incident of absconding of the accused Mulim without holding any enquiry. Therefore the present writ petition has been filed challenging the order dated 29.05.2008.
Submission of learned counsel for the petitioner is that the petitioner had worked to the satisfaction of his higher authorities with utmost dedication in the department. The petitioner was sent as companion with constable Shailendra Singh but the impugned order has been passed on incorrect facts in violation of Rule 8(2)(b) of Rules 1991. He further submitted that the impugned order is not only violative of the procedure prescribed under Rules 1991 but also to the provisions of Article 311 of the Constitution of India.
On the basis of above, learned counsel for the petitioner submitted that the impugned order dated 29.05.2018 is liable to be set aside and the petitioner is liable to be reinstated into service with all consequential service benefits.
Per contra, learned Standing Counsel submitted that the impugned order has rightly been passed in accordance with law after recording reasons in the order itself and there is no illegality or infirmity in the same.
I have considered the submission of learned counsel for the parties and perused the records.
The nature of misconduct committed by the petitioner is of a very grave in nature and brings a bad name to the police force of the State on the whole but it is not in dispute that in awarding the punishment of dismissal from service, no formal enquiry was held purportedly on the ground that the same could be dispensed with under Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991.
Rule 8(2)( b) of Rules 1991 are pari materia with Article 311(2)(b) of Constitution of India. Therefore both the provisions are reproduced as under:
Article 311 of Constitution of India is reproduced as under:-
"311 Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or State;-
(1) No person who is a member of a civil service of the Union or an all-India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges;
(Provided that where it is proposed after such enquiry to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such enquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed;
Provided further that this clause 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 for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry; or
(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 enquiry.
(3) If,in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as it is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
Rule 8(2) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 is reproduced as under:-
"8(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."
The scheme of the aforesaid provision guarantees an enquiry into the alleged misconduct of the government servant as a rule whereas dispensing with the same is an exception. Sub clause 2 of Article 311 specifically prohibits dismissal, removal or reduction in rank of a government servant without holding any inquiry and without giving him an opportunity of being heard in respect of the charges on which he may be subjected to any of the major punishment. Explanation to the aforesaid rule is given in the second proviso wherein sub clause (a) (b) and (c) do envisage a possibility when a person is dismissed, removed or reduced in rank on the ground of misconduct which has led to his conviction on a criminal charge or where the authority empowered to dismiss or remove or reduce in rank, is satisfied that for some reason, to be recorded by the authority in writing, it is not reasonably practicable to hold such enquiry; or where the President or the Governor, as the case may be, is satisfied that in the interest of the security by the State, it is not expedient to hold such enquiry.
In the instant case, the impugned order of dismissal from service has been passed purportedly in exercise of power under sub clause (b) and (c). For attracting sub clause (b) it is essential that the authority empowered to inflict major punishment must feel satisfied that for some reason or the other, the inquiry cannot be held but that reason also has to be recorded in writing which should indicate that it was not reasonably practicable to hold such enquiry unless such a finding is recorded, the order passed under the said provision would become bad.
The reason so recorded must also be valid and relevant and not merely a camouflage. It is not pure subjective satisfaction of the authority to dispense with the inquiry but his discretion is circumscribed by the requirement of recording such a reason which, of course, has to be a valid reason for which the inquiry cannot be practically held. For example, if a government servant is available, the documents, witnesses or the material on which the inquiry is to be conducted and there is no other legal or practical impediment, there would be no reason to dispense with the inquiry and pass the order of major punishment.
Sub clause (2) of Article 311, which is the substantive provision, does not lay down any exception nor confers any discretion upon the empowered authority of not holding an inquiry into the charge of misconduct against a government servant and to pass order without affording any opportunity. It is only in the second proviso that an exception is carved out but an exception cannot take a place of rule and has to be applied only in the circumstances given therein as may be permissible under the said Article. The exception is that the authority is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to hold such enquiry.
The impugned order of dismissal from service does not record any reason as to how it was not reasonably practicable to hold an enquiry but even then, such a recital has been made in the impugned order.
The Apex Court in the case of Union of India versus Tulsiram Patel, reported in (1985) 3 SCC 398 observed as under:
"The recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particular, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances."
Nothing has been brought on record nor produced before this Court to establish that any reason making the holding of enquiry impracticable has been mentioned in the record. The only reason given in the counter affidavit is that the impugned order has been passed on the basis of a confidential report submitted by the Circle Officer City. The report does not disclose any reason. Only a recommendation has been made to take action under the Rules 1991.Thus it can safely be concluded; that neither such reasons were recorded elsewhere in the record, nor they find mention in the impugned order.
In the case of Jaswant Singh versus State of Punjab (AIR 1991 Supreme Court 385), the Apex Court has held that 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 the 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.
This Court considered the Rule 8(2)(b) of Rules 1991 in Ravindra Raghav Versus State of U.P.;2005(3) AWC 2409. The relevant paragraphs 6,7 and 8 are reproduced as under:
6.Rule 8(2)(b) of the Rules provides that where the authority empowered to dismiss or remove a person is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry, the police officer shall be dismissed or removed without proper enquiry as contemplated in Sub-rule (2) of Rule 8 of the Rules. For invoking the power under Rule 8(2)(b) of the Rules, the authority empowered to dismiss has to be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold enquiry. Thus the requirements are two fold; firstly recording of reasons; and secondly that it is not reasonable practicable to hold such enquiry. It is well settled that when power under Rule 8(2)(b) is invoked judicial review is permissible where subjective satisfaction of the authority that it was not reasonably practicable to hold an enquiry was not based on objective facts as laid down by the apex Court in Jaswant Singh's case (supra). The apex Court in Jaswant Singh's case (supra) had considered the provisions of Article 311(2) second proviso (b) of the Constitution of India. Rule 8(2)(b) of the Rules is para material with the second proviso (b) of Article 311 Sub-clause (2). The apex Court in the aforesaid judgment laid down two conditions for invoking the power under Clause (b) of Rule 8(2) of the Rules. Following was laid down in paragraph 4 of the said judgment:-
"4. ........................Insofar as Clause (b) is concerned this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any inquiry "not reasonably practicable"; and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. Of course the question of practicability would depend on the existing fact-situation and other surrounding circumstances, that is to say, that the question of reasonable practicability must be judged in the light of the circumstances prevailing at the date of the passing of the order. Although Clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finality can be certainty be tested in a court of law and interfered with if the action is found to be arbitrary of mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry. Also see: Satyavir Singh v. Union of India, Shivaji Atmaji Sawani v. State of Maharashtra and Ikrammudin Ahmed Borah v. Superintendent of Police, Darrang.
7. The apex Court further held in the above judgment that Clause (b) of 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 enquiry. Further satisfaction has to be based on certain objective facts and not the outcome of whim or caprice of concerned officer. Following was laid down in paragraph 5 of the said judgment:-
5. ...........................It was incumbent on the respondents to disclose to the Court the material in existence at the date of 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 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 departments 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 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....................."
8. In the present case the order of Superintendent of Police dismissing the petitioner from service after invoking the powers under Rule 8(2)(b) of the Rules has not given any reason as to why it is not reasonably practicable to hold an enquiry. The order notes the incident dated 19th October, 2000 in which allegation against the petitioner was made that he along with other constables had realized Rs. 50/- each from drivers of Combine Machines and when Incharge Kotwali reached on the spot then he misbehaved with Incharge in presence of public. Observation has been made in paragraph-3 of the order that by the misconduct of the petitioner the faith of public is losing in police and by the above act of petitioner there is strong possibility of encoragement of indscipline in the force. After noticing the above facts, the Superintendent of Police held that he is satisfied that it is not reasonably practicable to hold enquiry against the petitioner. It was further observed that in case petitioner remain in the force he may repeat the incident in future and taking advantage of he being in police he may make efforts to save himself from his deeds and in continuing the petitioner in department there will be possibility of increase of indiscipline in the employees. No reason in the order has been recorded as to why it is not reasonably practicable to hold disciplinary enquiry against the petitioner.
This Court in the case of Suresh Chandra Dubey versus State of U.P.; 2016 SCC ALL 497 held that it is now well settled that reasons so recorded must be cogent and sufficient. The relevant portion of paragraph 16 is reproduced as under:
".Of late, the Apex Court in Southern Railway Officers Association and another vs. Union of India and others and other connected matters reported in (2009) 9 SCC 24while reiterating the principle laid down in Tulsiram's case [supra] Kuldip Singh vs. State of Punjab; (1996) 10 SCC 659 observed that recording of reasons, thus, provides adequate protection and safeguard to the employee concerned. It is now well settled that reasons so recorded must be cogent and sufficient. Satisfaction to be arrived by the disciplinary authority for the aforementioed purpose cannot be arbitrary. It must be based on objectivity."
This Court in the case of Hoshiyar Singh versus State of U.P.; 2018 SCC Online ALL 1178 held that the action of the competent authority invoking power under Rule 8(2)(b) without recording satisfaction as to why holding of enquiry is not possible in the facts of the case is found to be in teeth of law laid down by the Apex Court. The relevant paragraph 4 is extracted below:
Perusal of the records would go to show that before invoking power under rule 8(2)(b), no satisfaction has been recorded by the competent authority as to why holding of disciplinary inquiry is not possible in the facts of the present case? The action of the Superintendent of Police, therefore, is found to be in teeth of law laid down by the Apex Court in the case of Union Of India And Another vs Tulsiram Patel And Others, 1985 (3) SCC 398 as well as subsequent judgements of this Court in Raja Ram Yadav Vs. State of U.P. and others, 2009(6) ADJ 657; Jahir Singh Yadav Vs. State of U.P. and others, 2009(6) ADJ 605; Subhas Chandra Yadav Vs. State of U.P., 2009 All L.J. (3) 414; Satya Prakash Vs. State of U.P. and others (Civil Misc. Writ Petition No. 28875 of 2006), decided on 07.11.2008; Ram Sanehi Misra Vs. State of U.P. and others (Civil Misc. Writ Petition No. 61271 of 2006), decided on 05.10.2009; and Ravi Dutt Tyagi Vs. State of U.P. and others (Civil Misc. Writ Petition No. 56979 of 2006), decided on 17.02.2009.
Adverting to the facts of the present case I found that in the order of dismissal from service no reasons at all have been recorded as to how it was not reasonably practicable to hold inquiry in the facts of the present case. The mandatory requirement under Rule 8(2)(b) has been apparently complied with by making a mere recital in the order, that it is not reasonably practicable to hold such inquiry,which is nothing but a camouflage. Therefore the impugned order is not sustainable in the eyes of law and is liable to be quashed.
The writ petition filed by Sri Shailendra Singh against his dismissal in regard to the same incident, who had accompanied the accused Mulim, had been allowed by means of the judgment and order dated 28.01.2009 passed in Writ Petition Service Single No.4808 of 2008 and he was reinstated into service. The petitioner was only accompanying Constable Shailendra Singh. In this regard a supplementary counter affidavit was filed admitting that the order dated 28.01.2009 passed in case of Sri Shailendra Singh has been complied. It was also stated in the said affidavit that the benefit of order dated 28.01.2009 passed in writ petition 4808 S/S of 2008 has also been extended to the petitioner but subsequently by an application for amendment in the supplementary counter affidavit it has been clarified that it was wrongly mentioned in paragraph 6 of the supplementary counter affidavit.
In any case, it is admitted by the opposite parties that the case of the petitioner is identical to the case of Sri Shailendra Singh. In fact the allegation levelled against the petitioner are not so serious as against Sri Shailendra Singh whose writ petition has been allowed.
The writ petition is accordingly allowed. The order of dismissal dated 29.05.2008 is hereby quashed. The opposite parties are directed to reinstate the petitioner into service forthwith. The petitioner shall be entitled for all consequential service benefits including 50% of the back wages from the date of dismissal till the date of reinstatement which shall be paid within a period of four months failing which the petitioner shall be entitled for interest thereon @ 8% per annum from the date of this order.
However, the above order will not prevent the respondents from initiating departmental enquiry against the petitioner,if they so desire.
No order as to costs.
Order Date :- 7.2.2019 Akanksha