RAM VEER SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This petition has been filed for quashing the order dated 16th October, 2007 passed by the Superintendent of Police, Rampur dismissing the petitioner from service without holding any inquiry by invoking the power under the proviso to Rule 8 (2) of U. P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the ''1991 Rules' ). The petitioner was working as a Constable in U. P. Police. A First Information report was registered against the petitioner and another person under Sections 323/324 IPC as two prisoners who were being taken to the Court had escaped. Subsequently an order was passed on 16th October, 2007 under the proviso to Rule 8 (2) of the 1991 Rules dismissing the petitioner from service. Sri Ashok Khare, learned Senior Counsel for the petitioner has submitted that there did not exist any reason for invoking the powers under the second proviso to Rule 8 (2) of the 1991 Rules and nor does the order dated 16th October, 2007 or the counter affidavit filed to the writ petition indicate any good reason for invoking the said power. Learned Standing Counsel, however, submitted that in the facts and circumstances of the case as enumerated in the Order and the counter affidavit, the authority was justified in invoking the power under the proviso to Rule 8 (2) of the 1991 Rules. I have carefully considered the submissions advanced by the learned counsel for the parties. In order to appreciate the contentions advanced by the learned counsel for the parties, it may be necessary to refer to Rule 8 of the 1991 Rules, the same are as follows :- "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 is 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 it is not expedient to hold such enquiry. " 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. The second proviso to Rule 8 (2) of the 1991 Rules is pari metaria with the second proviso to Article 311 (2) of the Constitution of India. The Supreme Court in Jaswant Singh Vs. State of Punjab and Ors. reported in (1991) 1 SCC 362 while examining the exercise of power under the second proviso to Article 311 (2) of the Constitution observed :- ". . . . . . . . . . . . . . . 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 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 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 fail. " 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 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 Sudesh Kumar Vs. 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. " In the present case the order passed by the Superintendent of Police, Rampur does not give any reason as to why it was not reasonably practicable to hold the inquiry and nor does the counter affidavit bring on record any fact which may indicate as to why it was not reasonably practicable to hold such inquiry. The impugned order merely refers to the charges levelled against the petitioner but is delightfully vague about the statutory requirement contained in the second proviso to Rule 8 (2) of the 1991 Rules relating to dispensing with the inquiry. In such circumstances the order dated 16th October, 2007 passed by the Superintendent of Police, Rampur cannot be sustained. The writ petition, therefore, succeeds and is allowed. The impugned order dated 16th October, 2007 passed by the Superintendent of Police, Rampur is quashed. It shall, however, be open to the respondents to hold an inquiry, if they so desire in respect of the allegations levelled against the petitioner. .