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