- (1.) PARITOSH K. Mukherjee, J. Balveer Singh, the present writ petitioner moved this writ petition challenging the appellate order, dated 3-9-1992 affirm ing the order of termination dated 24-12-1991 set out at Annexures IV and I respectively to the petition.
(2.) THE said order of termination was passed against the petitioner by respondent No. 3 in exercise of powers under the provisions of Para 8 (2) (b) of the U. P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'rules, 1991 ). THE said para 8 of the Rules, 1991 reads as follows : "8. Dismissal and removal.- (I) No police officer shall be dismissed or removed from service by an authority subordinate to the ap pointing authority. (2) No police officer shall be dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceedings as con templated 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 per son or to reduce him in rank is satisfied that for some reason to be recorded by that- authority in writing, it is not reason ably 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 appears from the aforesaid para 8 (2) (b) of the rules that the au thority has power to dismiss or remove a person or to reduce him in rank if he is satisfied that for some reason to be recorded by the said authority in writing, it is not reasonably practicable to hold such enquiry. This provision is parameter to the provisions of Article 311 (2) (b) of the Constitution whereby such dispensation of enquiry was provided when it is not practicable to hold enquiry and Governor or the President of India is of the opinion to that effect. In the case of B. K. Sardari Lal v. Union of India, AIR 1971 SC 1547, it was, inter alia, held that such an enquiry may be held by the President or the Governor of the State-as the case may be but in the case of Shamsher v. State of Punjab, AIR 1974 SC 2192 it has been held that the satisfaction could be arrived at by the Minister and Governor should be entitled to pass the order of ex parte, the order for satisfaction is not transferr ed and earlier view expressed in B. K. Sardari Lal, (supra) has been reversed to that extent. It will be relevant to point out at this stage that the lapse judgment of the Supreme Court reported in J as want Singh v. State of Punjab, AIR 1991 SC 385 wherein the Bench consisting of Hon'ble K. Jagannatha Shetty and Hon'ble A. M. Ahmadi, JJ. , inter alia interpreted the dispensa tion with departmental enquiry-subjective satisfaction of concerned authority must be fortified by independent material. The observation of the Supreme Court in Jaswant Singh (supra) is as follows : "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 No. 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. " Their Lordships in the said judgment of Jaswant Singh (supra) have also placed reliance on the judgment of Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 where it was observed as follows : "a disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Depart ment'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 ipso dixit of the concerned authority.
(3.) IN the case of Jaswant Singh (supra), thereafter the Supreme Court held that since no particular subjective satisfaction of the concerned authority, having been disclosed, the impugned order of dismissal dated 7-4-1981 was set aside and appellant was re-instated in the service forthwith. Prior to passing of the said judgment of the Supreme Court, a single Judge of Calcutta High Court presided by Hon'ble Omiyo Kumar, J. in the case of Jyoti Prasad v. Union of India, 1974 Cal LJ, sic, inter alia held in interpreting the provisions of Rule 14 (ii) of the Railways Service Conduct and Discipline Rules, 1958 that material should be disclosed in the counter-affidavit to the effect that in the meantime made to serve charge sheet for the purpose of holding enquiry. The delinquent was not available and by not mere subjec tive satisfaction of the disciplinary authority, such enquiry should be dispensed with.;