Sanjay Misra - (1.) HEARD Sri N.D. Shukla, learned counsel for the petitioner and learned Standing Counsel for the respondent. Counter and rejoinder affidavits have been exchanged between the parties. Although the counter-affidavit filed by the respondent is not available on record. Learned Standing Counsel has provided his copy for perusal of the Court.
(2.) THE petitioner claims to have been appointed as a Constable in U.P. Police Force in 1998 and was posted as Police Constable No. 303 at Reserve Police Line, Varanasi. THE petitioner alleges to have been involved in an offence under Sections 392 and 386 IPC, Police Station Cantt., District Varanasi, Case Crime No. 501 of 2009 dated 7.6.2009 regarding an incident that is alleged to have occurred on 4.6.2009 at 8:30 p.m. when the petitioner is alleged to have snatched two mobile phones from the possession of the complainant. He alleges to have been granted bail on 20.8.2009. However, another F.I.R. was lodged agianst the petitioner on 23.6.2009 as Case Crime No. 545 of 2004, Police Station Cantt., District Varanasi under Section 3(I)(X) of the U.P. Gangster Act, wherein he has been granted bail on 11.9.2009. A third F.I.R. was lodged against the petitioner under Section 386 IPC, Police Station Kotwali, District Varanasi as Case Crime No. 163 of 2009, wherein also he has been granted bail on 24.8.2009. It is alleged that he was served with dismissal order dated 7.6.2009 passed by the Respondent No. 3 and his dismissal has been made by exercising the powers under Section 8(2)(b) of the U.P. Subordinate Police Officers (Punishment and Appeal) Rules, 1991. Learned counsel for the petitioner has submitted that the requirement for exercising powers under Section 8(2)(b) is primarily that reasons have to be recorded as to why it is not reasonably practical to hold a departmental enquiry and in absence of any such satisfaction recorded by the authority the jurisdiction under Section 8(2)(b) of the Rules cannot be exercised. Learned counsel has placed reliance upon a decision of the Hon'ble Supreme Court in the case of "Union of Indiav. Tulsi Ram Patel,AIR 1985 SC 1416 and a decision of this Court in the case of Babban Chaturvedi v. State of U.P., passed in Writ Petition No. 40243 of 2008 decided on 12.6.2009. Learned Standing Counsel has submitted that the petitioner was having criminal antecedents and was a person not required to be retained in police service for the reasons that it would cause indiscipline amongst the other employees of the department and the reputation of the department itself would become cloudy. He also submits that the offence under which the petitioner was booked are serious in nature and the petitioner being a protector of law was involved in breaking the law. He, therefore, submits that the impugned order has been passed upon such satisfaction of the authority and requires no interference by this Court.
(3.) HAVING considered the submission of learned counsel for the parties and perused the record the satisfaction alleged to have been recorded by the authority while passing the impugned order is self explanatory and is quoted hereunder: JUDGEMENT_130_ADJ9_2010Image1.jpg A perusal of the reason given in the above quoted impugned order is clearly not the satisfaction required to be recorded for exercising power under Section 8(2)(b) of 1991 Rules. HONOURABLE Supreme Court in the case of Tulsi Ram Patel (Supra) has held as under: 130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning"possible to practice or perform: capable of being put into practice, done or accomplished: feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner :to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the Government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to given evidence against him with fear of reprisal as to prevent them from doing so or where the Government servant by himself or 270 together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned Government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause(3) of Article 311 makes the decision of the disciplinary authority on this question final. 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 finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case the Court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India and others, (1984) 3 SCR 302, is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter. 131. It was submitted that where a delinquent Government servant so terrorizes the disciplinary authority that neither that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent Government servant either by himself or alongwith or through others makes the holding of an inquiry not reasonably practicable. 132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a Government servant. Such a situation can also come into existence subsequently during he course of an inquiry, for instance, after the service of a charge-sheet upon the Government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word "inquiry" in that clause in cludes part of an inquiry. It would also not be reasonably practicable to afford to the Government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the Government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the Government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311 (2). 133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. 134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must proceed the order imposing the penalty. The reason for dispensing with the inquiry need not,therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particular, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances. 135. It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned Government servant to enable him to challenge the validity of that reasons in a departmental appeal or before a Court of law and the failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the Government servant. As clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause(b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would, however, be better for the disciplinary authority to communicate to the Government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the Government servant to approach the High Court under Article 226 or, in 273 a fit case, this Court under Article 32. If the reasons are not communicated to the Government servant and the matter comes to the Court, the Court can direct the reasons to be produced, and furnished to the Government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons. 136. It was next submitted that though clause (b) of the second proviso excludes an inquiry into the charges made against a Government servant, it does not exclude an inquiry preceding it, namely, an inquiry into whether the disciplinary inquiry should be dispensed with or not, and that in such a preliminary inquiry the Government servant should be given an opportunity of hearing by issuing to him a notice to show-cause why the inquiry should not be dispensed with so as to enable him to satisfy the disciplinary authority that it would be reasonably practicable toehold the inquiry. This argument is illogical and is a contradiction in terms. If an inquiry into the charges against a Government servant is not reasonably practicable, it stands to reason that an inquiry into the question whether the disciplinary inquiry should be dispensed with or not is equally not reasonably practicable. 136A. AGovernment servant who has been dismissed, removed or reduced in rank by applying to his case clause (b) or an analogous provisions of a service rule is not wholly without a remedy. As pointed out earlier while dealing with the various service rules, he can claim in a departmental appeal or revision that an inquiry be held with respect to the charges on which the penalty of dismissal, removal or reduction in rank has been imposed upon him unless the same or a similar situation prevails at the time of hearing of the appeal or revision application. If the same situation is continuing or a similar situation arises, it would not then be reasonably practicable to hold an inquiry at the time of the hearing of the appeal or revision. Though in such a case as the Government servant if dismissed or removed from service, is not continuing in service and if reduced in rank, is continuing in service with such reduced rank, no prejudice could be caused to the Government or the Department if the hearing of an appeal or revision application, as the case may be, is postponed for a reasonable time. 137. Where a Government servant is dismissed, removed or reduced 274 in rank by applying clause (b) or an analogous provision of the service rules and the approaches either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the Court. The Court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the Court will not, however, sit in judgment over them like a Court of first appeal. In order to decide whether the reasons are germane to clause (b), the Court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a Court room,removed in time from the situation in question. Where two views are possible, the Court will decline to interfere. ;