- (1.) Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the respondents. The present writ petition has been filed with the following prayer.: "(a) Issue a writ, order or direction in the nature of certiorari for quashing the impugned dismissal order dated 20.4.2008 passed by Respondent No. 5, the Senior Superintendent of Police, Gautam Budh Nagar, enclosed as Annexure-1 to the writ petition. (b) Issue a writ, order or direction in the nature of mandamus commanding the Respondents to reinstate the services of the petitioner treating the petitioner to continuous in his services, with all consequential benefits. (c) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay all the arrears of salary since the punishment awarded the dismissal from services and accordingly pay all consequential benefits to the petitioners. (d) Issue any other writ order or direction in favour of the petitioner as this Hon'ble Court deems fit and proper in the present facts and circumstances of the case, so as to secure the ends of justice or else the petitioner shall suffer irreparably. (e) award the cost of petition to the petitioner." The order impugned in this petition is dated 20.4.2008 whereby the petitioner has been dismissed from service by the Senior Superintendent of Police, Gautam Budh Nagar in purported exercise of power under Rule 8(2)(b) proviso of U.P. Police Officers Subordinate Ranks (Punishment and Appeal) Rules, 1991. It is contended that the dispensation of enquiry is permissible only when the appointing authority is satisfied that holding of disciplinary enquiry is not reasonably practicable. The satisfaction of the authorities has to be recorded not with regard to the conduct of the delinquent employee but with reference to holding of disciplinary enquiry as to whether it would be reasonably practicable or not. Such satisfaction must be apparent from the record. The appointing authority has to record the said satisfaction either in the impugned order or in any case it must be available on record. A bare perusal of the impugned order shows that the appointing authority has only referred to the wild allegations against the petitioner but has nowhere mentioned as to how and what manner it was satisfied that holding of disciplinary enquiry is not reasonably practicable. The respondents neither have pleaded anything in the counter-affidavit nor any other record has been shown to the Court to justify that such satisfaction has been recorded by the appointing authority.
(2.) Learned counsel for the petitioner submits that on the one hand, disciplinary authority has recorded his own finding about the alleged misconduct and un-suitability of the petitioner to continue in service and on the other hand without giving any reasons as to why the departmental enquiry is not reasonably practicable has simply used the word that "the enquiry is not reasonably practicable", has proceeded to pass the impugned order. He submits that once the authority concerned has recorded finding in respect to serious misconduct, it was incumbent upon it to hold departmental enquiry in accordance with the statutory provisions and cannot decline opportunity to the petitioner and could not have exercised the power prescribed under proviso to Rule 8(2)(b) of 1991 Rules as a pretext as that would not only be in violation of principles of natural justice but also in the teeth of Article 311 of the Constitution of India.
(3.) This question has been repeatedly considered by this Court and a Division Bench of this Court in Yadunath Singh v. State of U.P. and others, 2009 9 ADJ 86 a similar matter and the Court has observed in paras 4 to 7 as under: "4. It is common ground that the service of the writ petitioner-appellant is governed by the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "the Rules"). Rule 8 of the aforesaid Rules provides for dismissal and removal of police officers of the subordinate rank only after proper inquiry. However, proviso (b) to Rule 8(2) contemplates that where the Government is satisfied, that in the interest of the security of the State, it is not expedient to hold such inquiry, it can be dispensed with. It further provides that 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 an inquiry, it may dispense with the inquiry. Here in the present case, the disciplinary authority had recorded its satisfaction but it is well-settled that that satisfaction has to be based on germane grounds and not ipse dixit of the disciplinary authority. Here the only ground to dispense with the inquiry is that if the writ petitioner-appellant is allowed to continue in service, a departmental inquiry shall consume sufficient time and, therefore, such continuance will have bearing on the moral of the other police personnel. We are of the opinion that the ground recorded by the disciplinary authority while dispensing with the inquiry is not germane nor is it on any material that may be relevant, as such, the ground set forth cannot justify dispensing the inquiry at all.";