Ashok Kumar vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri Mangala Prasad Rai for the Petitioner and learned Standing Counsel for the Respondents.

Since pleading are complete, as requested by learned Counsel for the parties, the matter is being heard and decided at this stage under the Rules of the Court.

The Petitioner is aggrieved by the dismissal order dated 20.4.2008 passed by Senior Superintendent of Police, Gautambudh Nagar in exercise of power under proviso to Rule 8 (2) (b) of U.P. Police Officers of Subordinate Rank (Punishment and Appeals) Rules, 1991 (hereinafter referred "1991 Rules") without holding enquiry on the ground that to keep the Petitioner continue in the disciplined force would not be proper in public interest since in the preliminary enquiry he has been found indulged in a heinous offence of murder etc. It is contended that in order to dispense with the departmental enquiry, it was incumbent upon the disciplinary authority to record his reason as to why the enquiry is not reasonably practicable but no such finding has not been recorded, hence the impugned order is illegal being in violation of principles of natural justice as well as Rule 8 (2) (b) of 1991 Rules read with Article 311(2) of the Constitution. He placed reliance on decisions of this Court in Yadu Nath Singh v. State of U.P. and Ors. 2009 (4) UPLBEC 3376,Jahir Singh Yadav v. State of U.P. and Ors. 2009 (4) UPLBEC 3391 and Man Chandra Singh Chauhan v. State of U.P. and Ors. 2009 (4) UPLBEC 3661.

Rule 8 provides the procedure for dismissal and removal and is in substance pari materia to the constitutional protection available to a holder of a civil post under Article 311 (1) and (2) of the Constitution of India. A perusal of the aforesaid provisions show that normal rule is that no punitive action having the consequence of dismissal, removal or reduction in rank would be taken without conducting disciplinary enquiry against the member of civil service, i.e., unless and until he has been informed of a charges leveled against him and thereafter afforded adequate opportunity of being heard in respect of such charges. However, certain exceptions have been carved out where holding of disciplinary enquiry would not be reasonably practicable or is not in the interest of security of the State or where it would be a futile exercise since the incumbent has already under gone a judicial trial before a competent court of law and has been convicted. Therefore, in order to deprive opportunity to the holder of a civil post due to aforesaid constitutional provision, and to bring his case within exception clauses, heavy burden lies upon the authority to satisfy the requirement of the statutory provisions and unless and until the order has been passed in strict compliance and within the four corners of the statutes after taking into account of the relevant ingredients dispensation of inquiry and denial of opportunity can not be justified.

Considering the scope of Articles 310 and 311 of the Constitution of India in the case of Union of India and Another Vs. Tulsiram Patel and Others, the Apex Court pointed out that two conditions must be satisfied to sustain any action taken there under. These are (i) there must exist a situation which renders holding of any enquiry not reasonably practicable, (ii) the Disciplinary authority must record in writing its reasons in support of its satisfaction. The Apex Court also held that although Clause (3) of that Article makes the decision of the disciplinary authority in this behalf final, such finality can certainly be tested in a court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a pretext or device to dispense with the inquiry.

In Union of India and Another Vs. Balbir Singh and Another, referring to its earlier decision, the Apex Court with reference to Clause (c) of Second proviso of Article 311(2), laid down the following condition where the Court may interfere:

(1) that the order would be open to challenge on the ground of malafides or being based wholly on extraneous and/or irrelevant grounds'' (2) even if some of the material on which the action is taken is found to be irrelevant the court would still not interfere so long as there is some relevant material sustaining the action; (3) the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President; (4) the ground of mala fides takes in, inter alia, situations where the proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power; (5) the Court will not lightly presume abuse or misuse of power and will make allowance for the fact that the President and the Council of Ministers are the best judge of the situation and that they are also in possession of the information and material and Constitution has trusted their judgment in the matter; (6) this does not mean that the president and the council of Ministers are the final arbiters in the matter or that their opinion is conclusive.

Rule 8 (2) Proviso (b) empowers the competent authority to dismiss or remove a person without holding any enquiry provided after recording some reason that holding of such enquiry is not reasonably practicable. The Apex Court in Tulsi 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

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, 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 authorities satisfied from the material placed before him that it is not reasonably practicable to hold a departmental 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.

In almost similar circumstances, the matter came up before the Apex Court in the case of Chief Security Officer and Others Vs. Singasan Rabi Das, and the Apex Court found that the dismissal order passed in the said case without holding any inquiry on similar ground did not satisfy the requirements of the Rules.

All the above authorities have been referred to and followed by this Court in Writ Petition No. 3711 of 1999 (Shailendra Pratap Singh v. State of U.P. and Others.) decided on 18.4.2006.

Considering the case in hand in the light of the legal principle laid down in the above cases, I find that the impugned order of dismissal nowhere shows that the authority has recorded its satisfaction that holding of disciplinary enquiry is not reasonably practicable. No record has been produced by the Respondents to show that such finding was actually recorded by disciplinary authority. The impugned order of dismissal, therefore, cannot sustain.

The writ petition is, accordingly, allowed. The impugned order dated 20.4.2008 (Annexure 1 to the writ petition) is hereby quashed.

However, this order shall not preclude the Respondents to proceed afresh in accordance with law against the Petitioner.