Taiyab Ali vs State of U.P. and Others

Sudhir Agarwal, J.—The only submission advanced by the learned Counsel for the Petitioner is that the order impugned in this petition is ex facie illegal showing total non application of mind on the part of the disciplinary authority in dismissing the Petitioner from service under proviso to Rule 8 (2)(b) of U.P. Police officers of Subordinate Ranks ( Punishment And Appeal) Rules, 1991 without holding any enquiry observing that there is no possibility of collection of evidence and there is no improvement in the Petitioner''s service.

There is nothing on record to show that the disciplinary authority applied its mind to the factum that departmental enquiry is impracticable. The possibility of non-collection of evidence by itself cannot make the enquiry impracticable as contemplated in Clause 8(2) (b) of the aforesaid Rules of 1991, which is pari materia to Article 311(2) , which reads as under:

No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause 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 dismissed 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 President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause(2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

This aspect has been considered by this Court in catena of decisions where it has been held that the disciplinary authorities are completely ignoring and fails to consider the matters in correct perspective and regularly passing orders which are not in conformity with the requirement of law where an action could have been taken against an employee without holding any department enquiry; one of such judgment is on record i.e. Civil Misc. Writ Petition No. 41926 of 2008, Man Chandra Singh Chauhan v. State of U.P. and Ors..

In the circumstances, the writ petition is allowed. The impugned orders dated 30.12.2009 and 18.10.2008 are quashed. The Petitioner shall be entitled for all consequential benefits. However, this order shall not preclude the Respondents from proceeding against the Petitioner in accordance with law afresh.