{"id":133264,"date":"2010-07-08T00:00:00","date_gmt":"2010-07-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kailash-nath-dwivedi-so-late-raj-vs-state-of-u-p-thru-principal-on-8-july-2010"},"modified":"2017-08-31T05:34:40","modified_gmt":"2017-08-31T00:04:40","slug":"kailash-nath-dwivedi-so-late-raj-vs-state-of-u-p-thru-principal-on-8-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kailash-nath-dwivedi-so-late-raj-vs-state-of-u-p-thru-principal-on-8-july-2010","title":{"rendered":"Kailash Nath Dwivedi S\/O Late Raj … vs State Of U.P. Thru Principal … on 8 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Kailash Nath Dwivedi S\/O Late Raj … vs State Of U.P. Thru Principal … on 8 July, 2010<\/div>\n
                                                                           Court No.4.\n\n                               Writ Petition No. 1171 (S\/S) of 2010\n\n\nKailash Nath Dwivedi                                                ....... Petitioner\n\n                                             Vs\n\nState of U.P. & others                                          ...... opposite parties\n\n\nHon'ble Ritu Raj Awasthi, J.\n<\/pre>\n
       Heard Sri S.K. Tiwari, learned counsel for the petitioner as well as learned
\nstanding counsel and perused the records.\n<\/p>\n
       The writ petition has been filed challenging the order dated 18.02.2010
\nwhereby the petitioner has been dismissed from service in exercise of power under
\nRule 8 (2) (b) of U.P. Police Officers of the Subordinate Ranks (Punishment and
\nAppeal ) Rules, 1991 (hereinafter referred to as Rules 1991).\n<\/p>\n
       Learned counsel for the petitioner submits that petitioner when posted as
\nInspector of Police at Police Station- Kotwali Musafirkhana, District- Sultanpur, a
\nCase Crime No. 201\/2010 under Section 302 I.P.C. was registered against named
\naccused Smt. Sangeeta for the murder of her husband on the complaint made by the
\nmother of the deceased. During the investigation, the accused Sangeeta had tried to
\nrun away from the police station and she was caught hold by a lady constable and the
\npetitioner had also used some force to detained her in the Police Station. On the basis
\nof complaint of misbehaviour with the said accused, the petitioner was placed under
\nsuspension by order dated 17.02.2010 contained as Annexure No.5 to the writ
\npetition, which indicates that a disciplinary inquiry was contemplated. It is further
\nsubmitted that by another letter dated 17.02.2010, Superintendent of Police, Sultanpur
\nhad directed the Circle Officer, Gauriganj, Sultanpur to hold a preliminary inquiry
\nagainst the petitioner and submit his report within one week. However, in a most
\narbitrary, wrong and illegal manner and in clear abuse of powers, on the next date i.e.
\n18.02.2010, the Deputy Inspector General of Police, Faizabad Range, Faizabad by
\nimpugned order dismissed the petitioner from service.\n<\/p>\n
       It is vehemently submitted by learned counsel for the petitioner that under
\nRule 8 (2) (b) of Rules, 1991, the authority empowered to dismiss or remove a
\nsubordiante officer can exercise the power of dispensing with the inquiry before
\nawarding a major punishment, however, reasons for dispensing with the inquiry shall
\nbe recorded in writing.\n<\/p>\n
       It is submitted by the learned counsel for the petitioner that the opposite party
\nno. 2 while passing the impugned order has not assigned any reason as to why it is not
\npractically reasonable and possible to hold disciplinary inquiry before awarding major
\n punishment to the petitioner. In support of his submission learned counsel for the
\npetitioner has relied on the following decisions:-\n<\/p>\n
       1. Union of India & another, Appellants V. Tulsiram Patel, respondent r
\n       eported in AIR 1985 Supreme Court 1416<\/p>\n<\/blockquote>\n
       2. State of U.P. & others Vs Chandrika Prasad reported in[2006 (1) ESC
\n       374 (AII) (DB)] Allahabad High Court.\n<\/p><\/blockquote>\n
       3. Hari Prasad Rai & Another Vs State of U.P. & another.\n<\/p><\/blockquote>\n
       4. Pushpendra Singh (C.P. 2187) & another Vs State of U.P. & another
\n       reported in [2008 (2) ESC 1477 (AII) (DB)] Allahabad High Court.\n<\/p><\/blockquote>\n
       5. Bhupat Singh Yadav Vs State of U.P. & others reported in [20063 (4)
\n       ESC 2303 (AII)] Allahabad High Court.<\/p><\/blockquote>\n
       Learned standing counsel on the basis of counter affidavit submits that the
\npetitioner had misbehaved with the lady who was said to be an accused in Case Crime
\nNo. 201\/2010 under Section 302 I.P.C. and she was physically mishanded by the
\npetitioner. The said incident was recorded by media persons and the clips were
\nshown on various T.V. News channels which had resulted in lowering the image of the
\npolice department. It is further submitted by the learned standing counsel that since
\nthe alleged misconduct, on the basis of which the petitioner was dismissed from
\nservice, was proved beyond doubt on the basis of evidence as such there was no need
\nto hold the department inquiry.\n<\/p>\n
       I have considered the various submissions made by the counsel for the parties.\n<\/p>\n
 Rule 8 (2) (b) of U.P. Police Officers of the Subordinate Ranks (Punishment and
\nAppeal ) Rules, 1991 is quoted below.\n<\/p>\n
              8. Dismissal and removal- (1) No police officer shall be dismissed or
\n              removed from service by an authority subordinate to the appointing
\n              authority.\n<\/p>\n
                (2) No police officer shall be dismissed, removed or reduced in rank
\n               except after proper inquiry and disciplinary proceedings as
\n               contemplated by these rules:\n<\/p>\n
                         Provided that this rule shall not apply<\/p>\n
               (a) Where a person is dismissed or removed or reduced in rank on the
\n               ground of conduct which has let to his conviction on a criminal
\n               charge.\n<\/p>\n
               (b) Where the authority empowered to dismiss or remove a person or
\n               to reduce him in rank is satisfied that for some reason to be recorded
\n               by that authority in writing, it is not reasonably practicable to hold
\n               such inquiry; or\n<\/p>\n
               (c)   Where the Government is satisfied that in the interest of the
\n              security of the State it is not expedient to hold such enquiry.\n<\/p>\n
              (3) All order of dismissal and removal of Head Constables or
\n              Constables shall be passed by the Superintendent of Police, Cases in
\n              which the Superintendent of Police recommends dismissal or removal
\n              or a sub-Inspector or an Inspector shall be forwarded to the Deputy
\n              Inspector General concerned for orders.\n<\/p>\n
              (4) (a) The punishment for intentionally or negligently allowing a
\n              person in police custody or judicial custody to escane shall be
\n              dismissal unless the punishing authority for reasons to be recorded in
\n              writing awards a lessor punishment.\n<\/p>\n
               (b) Every officer convicted by the court for an offence involving moral
\n               turpitude shall be dismissed unless the punishing authority for reasons
\n               to be recorded in writing considers it otherwise.”\n<\/p>\n
       The requirement of Rule 8 of Rules 1991 clearly indicates that no police
\nofficer shall be dismissed or removed from service by an authority subordinate to the
\nappointing authority and no police officer shall be dismissed, removed or reduced in
\nrank except after proper inquiry and disciplinary proceeding as contemplated by
\nthese rules. However, requirement of holding disciplinary proceedings can be
\ndispensed with in the following circumstances:-\n<\/p>\n
       1.Where a person is dismissed or removed or reduced in rank on the ground of
\n       conduct which has let to his conviction on a criminal charge.\n<\/p><\/blockquote>\n
       2. Where the authority empowered to dismiss or remove a person or to reduce
\n       him in rank is satisfied that for some reason to be recorded by that authority in
\n       writing, it is not reasonably practicable to hold such inquiry<\/p>\n<\/blockquote>\n
       3. Where the Government is satisfied that in the interest of the security of the
\n       State it is not expedient to hold such enquiry.<\/p><\/blockquote>\n
       In the present case the impugned order 18.02.2010 seems to have been passed
\nin exercise of power under Rule 8 (2) (b) of Rules 1991. However, it does not
\nindicate any reason as to why it is not reasonably practicable to hold a disciplinary
\ninquiry before awarding the major punishment of dismissal of the petitioner.\n<\/p>\n
         In the counter affidavit, filed by the opposite parties in which it has been
\n mentioned that since the alleged misconduct or misbehaviour and marpeet with a
\n lady accused is proved on the basis of evidence, therefore, the departmental inquiry
\n under the Rules 1991 is not reasonably practicable.\n<\/p>\n
         The said reason does not appear to be justifiable. The record reveals that the
\n petitioner was placed under suspension by order dated 17.02.2010 and disciplinary
\n inquiry was contemplated by another              order dated 17.02.2010 by which
\n Superintendent of Police, Sultanpur, had appointed Circle Officer, Gauriganj as
\nInquiry Officer and he was directed to submit his report within one week. However,
\non the very next date the petitioner was dismissed from service by the opposite party
\nno.2 i.e. D.I.G., Faizabad Division Faizabad.\n<\/p>\n
       In the case of Union of India Vs Tulsi Ram Patel (Supra) the Hon’ble
\nApex Court has observed as under:\n<\/p>\n
       130. The condition precedent for the application of clause (b) is the
\n       satisfaction of the disciplinary authority that “It is not reasonably
\n       practicable to hold” the inquiry contemplated by clause (2) of Article\n<\/p><\/blockquote>\n
       311.   What is pertinent to note is that the words used are “not
\n       reasonable practicable” and not “impracticable”. According to the
\n       Oxford English Dictionary “practicable” means ‘Capable of being put
\n       into practice, carried out in action, effected, accomplished, or done;
\n       feasible”. Webster’s Third New International Dictionary defines the
\n       word “practicable” inter alia as meaning “possible to practice or
\n       perform: capable of being put into practice, done or accomplished:
\n       feasible” Further, the words used are not “not practicable” but “not
\n       reasonably    practicable”.    Webster’s    Third    New     International
\n       Dictionary defines the word “reasonably” as ” in a reasonable
\n       manner: to a fairly sufficient extent”. Thus, whether it was practicable
\n       to hold the inquiry or not must be judged in the context of whether it
\n       was reasonably practicable to do so. It is not a total or absolute
\n       impracticability which is required by clause (b). What is requisite is
\n       that the holding of the inquiry is not practicable in the opinion of the
\n       prevailing situation; It is not possible to enumerate the cases in which
\n       it would not be reasonably practicable to hold the inquiry, but some
\n       instances by way of illustration may, however, be given. It would not
\n       be reasonably practicable to hold an inquiry where the government
\n       servant, particularly through or together with this associates, so
\n       terrorizes, threatens or intimidate witnesses who are going to give
\n       evidence against him with fear of reprisal as to prevent them from
\n       doing so or where the government servant by himself or together with
\n       or through others threatens, intimidates and terrorizes the officer who
\n       is the disciplinary authority or members of his family so that he is
\n       afraid to hold the inquiry or direct it to be held. It would be also not be
\n       reasonably practicable to hold the inquiry where an atmosphere of
\n       violence or of general indiscipline and insubordination prevails, and it
\n       is immaterial whether the concerned government servant is or is not
\n       party to bringing about such an atmosphere. In this connection, we
\n       must bear in mind that numbers coerce and terrify while an individual
\n       may not. The reasonable practicability of holding an inquiry is a
\n        mater of assessment to be made by the disciplinary authority. Such
\n       authority is generally on the spot and knows what is happening. It is
\n       because the disciplinary authority is the best judge of this that clause
\n       (3) of Article 311 makes the decision of the disciplinary authority on
\n       this question final. A disciplinary authority is not expected to dispense
\n       with a disciplinary inquiry lightly or arbitrarily or out of ulterior
\n       motives or merely in order to avoid the holding of an inquiry or
\n       because the Department’s case against the government servant is weak
\n       and must fail. The finality given to the decision of the disciplinary
\n       authority by Article 311 (3) is not binding upon the court so far as its
\n       power of judicial review is concerned and in such a case the court will
\n       strike down the order dispensing with the inquiry as also so the order
\n       imposing penalty. The case of Arjun Chaubey v. Union of India<\/a>
\n       (1984) 3 SCR 302: (AIR 1984 SC 1356) is an instance in point. In
\n       that case, the appellant was working as a senior clerk in the office of
\n       the Chief Commercial Superintendent, Northern Railway, Varanasi.
\n       The Senior Commercial Officer wrote a letter to the appellant calling
\n       upon him to submit his explanation with regard to twelve charges of
\n       gross indiscipline mostly relating to the Deputy Chief Commercial
\n       Superintendent. The Appellant submitted his explanation and on the
\n       very next d ay the Deputy chief Commercial Superintendent served a
\n       second notice on the appellant saying that his explanation was not
\n       convincing and that another chance was being given to him to offer
\n       his explanation with respect to those charges. The appellant submitted
\n       his further explanation but on the very next day the Deputy Chief
\n       Commercial Superintendent passed an order dismissing him on the
\n       ground that he was not fit to be retained in service. This Court struck
\n       down the order holding that seven out of twelve charges related to the
\n       conduct of the appellant with the Deputy chief Commercial
\n       Superintendent who was the disciplinary authority and that if an
\n       inquiry were to be held, the principal witness for the Department
\n       would have been the Deputy Chief Commercial Superintendent himself,
\n       resulting in the same person being the main accuser, the chief witness
\n       and also the judge of the matter.”<\/p><\/blockquote>\n
       The Division Bench of this Court in the case of State of U.P. & other Vs
\nChandrika Prasad had considered the applicability of Rule 8 (2) (b) and had
\nobserved as under:-\n<\/p>\n
       Relevant paragraphs 14 to 17 are quoted below.<\/p>\n
        “14. The learned counsel for the appellant attempted to justify the
\n       order that it satisfies the requirements of Rules. We are of the view that
\n even this contention is apparently misconceived. The Apex Court at page
\n1479 in Tulis Ram Patel (Supra) held as follows:\n<\/p>\n
“A disciplinary authority is not expected to dispense with a disciplinary
\nauthority lightly or arbitrary or out of ulterior motives or merely in
\norder to avoid the holding of an inquiry or because the Department’s
\ncase against the Government servant is weak and must fail.”\n<\/p>\n
15. The words some “reasons to be recorded in writing that it is not
\nreasonably practicable to hold enquiry” means that there must be some
\nmaterial for satisfaction of the disciplinary authority that it is not
\nreasonably practicable. The decision to dispense with the departmental
\nenquiry cannot, therefore, be rested solely on the ipse dixit of the
\nconcerned authority. The Apex Court in the case of Jaswant Singh Vs
\nState of Punjab and Others, AIR 1991 SC 385 in para 5 at page 390
\nhas observed as under:\n<\/p>\n
       “It was incumbent on the respondents to disclose to the Court
\nthe material in existence at the date of the passing of the impugned
\norder in support of the subjective satisfaction recorded by respondent
\nNo.3 in the impugned order. Clause (b) of the second proviso to Article
\n311 (2) can be invoked only when the authority is satisfied form the
\nmaterial placed before him that it is not reasonably practicable to hold
\na department enquiry.”\n<\/p>\n
       “……When the satisfaction of the concerned authority is
\nquestioned in a court of law, it is incumbent on those who support the
\norder to show that the satisfaction is based on certain objective facts
\nand is not the outcome of the whim or caprice of the concerned officer.”\n<\/p>\n
       16. In almost similar circumstances the matter cam up before
\nthe Apex Court in the case of Chief Security Officer v. Singasan Rabi
\nDas, AIR<\/a> 1991 SC 1043 and the Apex Court found that the dismissal
\norder before enquiry in the said case on similar ground as in the case in
\nhand did not satisfy the requirements of the Rules as is apparent from
\nthe following:\n<\/p>\n
       “In the present case the only reason given for dispensing with
\nthat enquiry was that it was considered not feasible or desirable to
\nprocure witnesses of the security\/other Railway employees since this will
\nexpose these witnesses and make them ineffective in the future. It was
\nstated further that if these witnesses were asked to appear at a
\nconfronted enquiry they were likely to suffer personal humiliation and
\ninsults and even their family members might become target of acts of
\nviolence. In our view these reasons are totally insufficient in law. We
\nfail to understand how if these witnesses appeared at a confronted
\n         enquiry, they are likely to suffer personal humiliation and insults. These
\n        are normal witnesses and they could not be said to be placed in any
\n        delicate or special position in which asking them to appear at a
\n        confronted enquiry would render them subject to any danger to which
\n        witnesses are not normally subjected and hence these ground constitute
\n        no justification for dispensing with the enquiry. There is total absence
\n        of sufficient material or g rounds for dispensing with the enquiry. In this
\n        view it is not necessary for us to consider whether any fresh opportunity
\n        was required to be given before imposing an order of punishment. In the
\n        result the appeal fails and is dismissed. There will be no order as to
\n        costs.”\n<\/p>\n
        17. The mere mention of fact that delinquent person may influence
\n        witnesses without there being any material to support the same is
\n        nothing but a conjecture surmise and ipse dixit on the part of the
\n        disciplinary authority to dispense with the enquiry. If the contention of
\n        the appellant is accepted, the constitutional protection, available, to a
\n        Government servant under Article-311 (2) of the Constitution as
\n        reflected in Rule 8 (2) of the aforesaid Rules Would render illusory and
\n        artificial. The normal rule of enquiry can always be defeated by the
\n        disciplinary authority in an arbitrary manner whenever it intend to get
\n        rid of a Government servant for any reason, it did not find conducive to
\n        its expectations. Constitutional protection cannot be dispensed with
\n        lightly as held by the Apex Court and is to be followed and observed in
\n        words and spirit and strict manner.”\n<\/p>\n
        Relying upon the aforesaid judgments placed by the learned counsel for the
\npetitioner, I am of the considered opinion that the impugned order dated 18.02.2010
\ncontained as Annexure No.1 to the writ petition is not sustainable in the eyes of law.\n<\/p>\n
        The writ petition is liable to be allowed. It is hereby allowed. The order
\ndated 18.02.2010 is quashed. The consequences shall follow. No order as to costs.\n<\/p>\n
        However, it is open for the opposite parties to hold a disciplinary inquiry in
\naccordance with relevant rules and regulations and pass appropriate order after
\naffording adequate opportunity to the petitioner.\n<\/p>\n
08.07.2010
\nAdhir\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Kailash Nath Dwivedi S\/O Late Raj … vs State Of U.P. Thru Principal … on 8 July, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-133264","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nKailash Nath Dwivedi S\/O Late Raj ... vs State Of U.P. 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