Prem Sagar vs The Superintendent of Police and Others

Anil Kumar, J.—By means of the present writ petition, the order dated 03.07.2008 (Annexure-3) passed by Superintendent of Police, Azamgarh is under challenge. Heard Sri Surendra Kumar, learned Counsel for the petitioner and learned Standing Counsel.

Sri Surendra Kumar, learned Counsel for the petitioner submits that the order dated 03.07.2008 (Annexure-3) which is under challenge in the present writ petition was also challenged by Sri Vinod Kumar Singh before this Court by means of Writ Petition No. 43442 of 2008, allowed by means of the order dated 21.10.2009.

In addition to the abovesaid, it is also submitted by the learned Counsel for the petitioner that one Sri Ram Karan Yadav C.P. No. 882 who was working along with the petitioner, against him the order dated 03.07.2008 has been passed he challenged the said order by means of Writ Petition No. 34417 of 2008 (Ram Karan Yadav CP No. 882 v. Superintendent of Police and Ors.) and by order dated 26.10.2009 this Court has granted him the benefit of the order dated 21.10.2009 passed in the case of Vinod Kumar Singh.

He further submits that the case of the petitioner is identically similar and stands on the same footing as the case of Vinod Kumar Singh was so the petitioner should also be given benefit of the said order dated 21.10.2009 passed in the case of Vinod Kumar Singh (Supra).

Learned Standing Counsel does not dispute the abovesaid submission made by learned Counsel for the petitioner.

I have heard learned Counsel for the parties and perused the record.

Admittedly, the order dated 03.07.2008 (Annexure-3) passed by Superintendent of Police, Azamgarh which is under challenge in the present writ petition was also passed against Sri Vinod Kumar Singh and Sri Ram Karan Yadav.

Later on Sri Vinod Kumar Singh has challenged the same before this Court by filling writ petition No. 43442/2008 (Vinod Kumar Singh and Ors. v. State of U.P. and Ors.) and by judgment and order dated 21.10.2009 this Court has allowed the said writ petition in the following terms:

The perusal of the record reveals that in connection with the allegations which have been levelled against the petitioners a preliminary enquiry was conducted, thereupon it was considered appropriate to institute a departmental enquiry also and in contemplation of such a departmental enquiry the petitioners were placed under suspension vide order dated 28.6.2008.

Therefore, the authorities were initially satisfied for holding a disciplinary enquiry against the petitioners in respect of the charges so levelled. However, while passing the impugned order of termination the enquiry was dispensed with. The order does not contain any reason to indicate why it is not practicable to hold an enquiry against the petitioners. Rule 8(2)(b) of the Rules clearly provides where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied for some reasons to be recorded in writing that it is not reasonably practicable to hold an enquiry, the order of major punishment can be passed without holding a disciplinary enquiry. Therefore, recording of reasons in writing to the satisfaction of the authority that it is not reasonably practicable to hold an enquiry is sine qua non for passing the order of major punishment without holding a disciplinary enquiry. The impugned order or any other material on record does not indicate any reason which may have satisfied the authority that it was not reasonably practicable for not holding the enquiry against the petitioners. The order impugned does not record any such reason except for invoking the power of dispensing with the enquiry under Rule 8(2)(b) of the Rules. In the absence of reasons in writing recording the satisfaction of the authority for dispensing with the enquiry, the order of termination can not be sustained under law as it would not only be in breach of Rule 8(2)(b) of the Rules be violative of the principles of natural justice.

The Division Bench of this Court in the case of State of U.P., and Ors. v. Chandrika Prasad (2006) 1 ESC 374 Alld. while considering the aforesaid Rule 8(2)(b) of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991 has held that the aforesaid rule is pari materia to Article 311 of (1) and (2) of the Constitution of India and since the normal rule is that no punitive action entailing consequence of dismissal, removal or reduction in rank would be taken without holding a disciplinary enquiry, the authority concerned is obliged to record reasons for dispensing with the enquiry, otherwise it would amount to negation of constitutional/statutory protection which has been granted to the Government servant. The aforesaid Division Bench judgment has been followed in a number of decisions without any exception.

In view of the aforesaid facts and circumstances and the legal position, the order of termination passed against the petitioners does not fulfil the requirements of Rule 8(2)(b) of the Rules and as such can not be sustained under law. Accordingly, a writ of certiorari is issued quashing the order dated 3.7.2008 (annexure 1 to the writ petition). The writ petition is allowed. However, it shall be open for the respondents to pass a fresh order in accordance with the mandate of the Constitution read with Rule 8(2)(b) of the Rules or to draw disciplinary proceedings against the petitioners and to pass a suitable orders of punishment, if necessary, accordingly.

Moreover, Sri Ram Karan Yadav had also approached this Court aggrieved by the order dated 03.07.2008 (Annexure-3) challenging the same by way of writ petition No. 34417 of 2008 (Ram Karan Yadav C.P. No. 882 v. Superintendent of Police and Ors.), on 26.10.2009 the following orders has been passed:

The petitioner who is a police constable has been dismissed from service without holding any disciplinary enquiry as the same was dispensed with under Rule 8(2)(b) of the U.P. Police Officers of Subordinate Ranks Punishment and Appeal) Rules, 1991. Along with the petitioner one another constable namely Vinod Kumar Singh was dismissed on the same very incident and charges in the same manner. The writ petition No. 43442/08 of the aforesaid Vinod Kumar Singh has been allowed by me vide judgment and order dated 21.10.2009. As the petitioner has been dismissed from service for the same incident and no reasons have been assigned as to why it is not reasonably practicable to hold an enquiry, this writ petition also deserves to be allowed on the same terms and conditions as the writ petition Vinod Kumar Singh (Supra).

In view of the above, the writ petition is allowed. The impugned order dated 3.7.2008 (annexure 4 to the writ petition) is quashed on the same terms and conditions as the judgment and order dated 21.10.2009 rendered in the writ petition referred to above.

For the foregoing reasons, the present writ petition is allowed, the impugned order dated 03.07.2009 (Annexure-3) passed by Superintendent of Police, Azamgarh is quashed on the same terms and conditions as the judgment and order dated 21.10.2009 rendered in Writ Petition No. 43442 of 2008 (Vinod Kumar Singh and Anr. v. State of U.P. and Ors.).

No order as to costs.