Gopal Ji Dwivedi vs State of U.P. and Another

V.K. Shukla, J.—In the present writ petition, Petitioner is questioning the validity of the order of dismissal from service dated 21.03.2009 passed by Deputy Inspector General of Police/Senior Superintendent of Police Kanpur Nagar in exercise of authority vested under Rule 8(2)(b) U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 and order of its affirmance in Appeal dated 26.02.2010 passed by Inspector General of Police Kanpur Range Kanpur.

Brief background of the case is that Petitioner has been member of disciplined Force and has been performing and discharging duties as Constable. Allegations mentioned against the Petitioner is that on 23.11.2008 he left from the Police Station on two days sanctioned casual leave and was likely to return on duty on 25.11.2008 but Petitioner failed to return to resume his duty and was as such unauthorizedly absent. During this period, a First Information Report has been lodged being Case Crime No. 313 of 2008 under Sections 389 IPC and Section 3/13 of the Prevention of Corruption Act at Police Station Raipurwa District Kanpur and an enquiry was conducted in the matter by the Inspector Incharge of Police Station Juhi and enquiry report revealed that accused Vijay and Virappan and his accomplish Shekhu told that Constable 72 CP Gopal Ji Dwivedi and Constable Rajesh Rana used to come his house and demanded money and also threatened that if you failed to give money you will be booked in chain snatching case. Based on the said inquiry report Petitioner was placed under suspension on 24.11.2008 in contemplation of the inquiry proceeding. Thereafter report has been submitted that Petitioner is continuously unauthorizedly absent without any information. Thereafter impugned order in question has been passed directing dispensation of service of the Petitioner and same has been affirmed in appeal.

Thereafter present writ petition is being taken up for final hearing and disposal with the consent of the parties after pleadings interse parties have been exchanged.

Sri Vijay Gautam Advocate contended with vehemence that in the present case there was no occasion to invoke and exercise authority under Rule 8(2)(b) U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 without there being any foundation and basis and here mechanically it has been mentioned that inquiry into the matter is neither reasonable nor practicably possible, as such authority in question has been colourably exercised, consequently writ petition, deserves to be allowed.

Countering the said submission learned Standing Counsel on the other hand contended that impugned order clearly gives reasons for dispensing with the service of the Petitioner as such no interference be made.

In order to appreciate the respective arguments which has been advanced relevant Rule 8 of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 is being quoted below:

Rule 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

(c) Where the Government is satisfied that in the interest of the security of the State is is not expedient to hold such enquiry.

(3) All orders of dismissal and removal of Head Constables or Constables shall be passed by the the Superintendent of Police. Cases in which the Superintendent of Police recommends dismissal or removal of 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.

Bare perusal of the aforesaid rules would go to show that holding of inquiry is a rule and dispensing with the enquiry is an exception. Before proceedings to impose any one of the major penalty of dismissal, removal or reduction in rank the departmental inquiry is must. However in certain contingency said rigor of the rule can be dispensed with and one such contingency provided for is that in case it is not reasonably practicable to hold inquiry and for this reasons will have to be recorded in writing. The said authority is to be exercised in exceptional circumstances and that to by recording finding to the effect as to why it is not reasonably practical to hold an inquiry. Thus, recording of finding that it is not reasonably practicable to hold inquiry before proceeding to exercise aforesaid authority of dispensation of service under Rule 8(2)(b) of U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules 1991 is sine quo non.

This Court in the case of Ravindra Raghav Vs. State of U.P. and Superintendent of Police, taking in view that the provisions of Rule 8(2)(b) are pari materia with second proviso (b) of Article 311 Sub-Clause 2 and the keywords for exercise of such authority is "not reasonably practicable" held as follows. Paragraphs 6, 7 & 8 of the said judgment are being extracted below:

Rules 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, the authority empowered to dismiss has to be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold inquiry. Thus, the requirements are two fold; firstly recording of reasons and secondly that it is not reasonably 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 satisfactions 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 part materia 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.

...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 passing of the order. 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 ruse to dispense with the inquiry. Also see : Shivaji Atmaji Sawani v. Union of India; Shivaji Atmaji Sawani v. State of Maharastra and Ikrammuddin Ahmed Borah v. Superintendent of Police Darrang.

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:

...it was incumbent on the Respondents to disclose to at 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 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 a departmental enquiry. This is clear from the following observation at page 270 of Tulsiram�s 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 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 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 the present case the order of Superintendent of Police dismissing the Petitioner from service after invoking the powers under Rules 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 alongwith 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 encouragement of indiscipline 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 further 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. It has been observed by the Apex Court in Union of India and Another Vs. Tulsiram Patel and Others, that disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily. In the counter-affidavit which has been filed by the Respondents also there is no reason given for not holding disciplinary enquiry against the Petitioner. No facts have been mentioned in the order or referred to on the basis of which satisfaction has been recorded for dispensing holding of disciplinary enquiry against the Petitioner. The observation that in the event Petitioner is allowed to remain in the department there is possibility of increase of indiscipline in the department cannot be held to be germane for dispensing holding of disciplinary enquiry. The appellate authority while dismissing the appeal has observed that there was possibility of Petitioner threatening the complainant and witnesses was an observation which does not find place in the order of Superintendent of Police who invoked the power under Rule 8(2)(b) of the Rules. Neither any reasons have been recorded in the order of Superintendent of Police for dispensing holding of disciplinary enquiry nor other observations made in the order to the effect that continuance of the Petitioner in the police force would have encouraged indiscipline in the department were relevant for dispensing holding of disciplinary enquiry. The key words in Rule 8(2)(b) are �not reasonably practicable�. The rules contemplate exercise of power under Rules 8 (2)(b) for dispensing holding of disciplinary enquiry when it is not reasonably practicable to hold such enquiry. The reasons thus which can satisfy the requirement of Rule 8(2) has to be referable to not reasonably practicable to hold an enquiry. No reasons have been given in the order which can be said to fulfill the requirement of not reasonably practicable to hold enquiry. The statutory requirement of exercising the power is absent in the present case. As observed above, no reasons have also been given in the counter affidavit bringing on the record the reasons on the basis of which such satisfaction was recorded by Superintendent of Police, the Court is at last to find out the basis for invoking the power under Rule 8(2)(b) of the Rules.

This Court again in the case of Bhupat Singh Yadav v. State of U.P. reported in 2006 (4) ESC 2303 took the view that for invoking the power under second proviso to Rule 8(2)(b) the authority will have to satisfy himself for reasons to be recorded in writing that it is not reasonably practicable to hold enquiry. Paragraphs 7 and 9 of the said judgment are being extracted below:

It is, therefore, clear that for invoking the power under the second proviso to Rule 8(2) of the 1991 Rules, the authority has to be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such inquiry.

In Sudesh Kumar v. State of Haryana and Ors. (2005) 11 SCC 525 the Supreme Court observed as follows:

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 are 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 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the presence of Mr. Kenichi Tanaka in the inquiry. A reasonable opportunity of hearing in Article 311(2) of the Constitution 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.

On the parameter as set out, factual situation which has arisen in the present case that on 23.11.2008 Petitioner left from the Police Station for two days sanctioned casual leave and was likely to return on duty on 25.11.2008 but Petitioner failed to return to resume his duty and to the contrary was unauthorizedly absent and during this period, a First Information Report has been lodged being Case Crime No. 313 of 2008 under Sections 389 IPC and Section 3/13 of the Prevention of Corruption Act at Police Station Raipurwa District Kanpur and qua the same an enquiry was conducted in the matter by the Inspector Incharge, Police Station Juhi who submitted enquiry report which revealed that accused Vijay and Virappan and his accomplish Shekhu told that Constable 72 CP Gopal Ji Dwivedi and Constable Rajesh Rana used to come his house and demanded money and also threatened that if they failed to give money they will be booked in chain snatching case. Based on the said inquiry report Petitioner was placed under suspension on 24.11.2008 in contemplation of the inquiry proceeding. Thereafter it has been mentioned that Petitioner is continuously unauthorizedly absent without any information. Disciplinary authority in the present case initially proceeded to pass order of suspension and thereafter has proceeded to pass order of dispensation of service of the Petitioner. Deputy Inspector General of Police/Senior Superintendent of Police after noting down the entire facts of the case and after noting the fact that Petitioner has been placed under suspension, then has proceeded to mention that such conduct of the Petitioner has eroded the reputation of the police force that in departmental proceeding no one would come forward and Petitioner would be acquitted. Fact of the matter is that Senior Superintendent of Police has not undertaken any exercise whatsoever which would have prompted him to form opinion as to why departmental inquiry is not reasonably practicable. Senior Superintendent of Police, Kanpur has not at all given reason as to why it is not reasonable and practicable possible to hold the inquiry against the Petitioner after placing the Petitioner under suspension for such a misconduct. This fact has also not come on record that victim was not prepared to come forward to depose against the Petitioner or was not traceable, as such it was not reasonable, practicable or it was impossible to hold inquiry. This fact has also not come on record, that on ac count of Petitioners absence he was not traceable and in spite of sending of notice was not cooperating in enquiry. At the point of time when authority has chosen to exercise and invoke extraordinary power conferred upon him under Rule 8(2)(b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 then he has to record satisfaction that it is not reasonably practicable possible to hold inquiry. Rule 8(2)(b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 requires recording of reason in writing that it is not reasonably practicable possible to hold inquiry and this recording of reason certainly has to be before passing the order of dismissal and not after the authority stood exercised. In the present case as power under Rule 8(2)(b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 has been exercised, by mentioning that it is not reasonably practicable possible to hold inquiry, but there is no material on record to substantiate the same as nothing has been brought on record to show and substantiate that attempt and endeavour has been made to summon the victim and the witness and contact victim and the witnesses but same failed, consequently order of dismissal is liable to to set aside.

Consequently, order dated 21.03.2009 passed by Deputy Inspector General of Police/Senior Superintendent of Police Kanpur Nagar and order of its affirmance in Appeal dated 26.02.2010 passed by Inspector General of Police Kanpur Range Kanpur are hereby quashed and set aside. However passing of this order will not prevent the Respondents from proceeding to exercise and invoke the authority vested under U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 in accordance with law.

With the above observation present writ petition is allowed.