- (1.) Heard Sri Kashif Gilani, holding brief of Sri S.A. Gilani, learned counsel for the petitioner and learned Standing Counsel for the State.
(2.) Petitioner who was employed as constable, has been dismissed from service on the charge that an accused person namely Nem Kumar fled from petitioner's custody. The order of dismissal has been passed under Rule-8(2)(b) of U.P. Police Officers of the Subordinate Rank (Punishment & Appeal ) Rules, 1991. The person, who fled from the police custody, was being transported from District Jail to Central Jail and 4 police personnels were covering him. Similar action of dismissal, without conducting any inquiry, had been taken against all the four. A writ petition filed by two of those four namely Ram Avtar and another filed writ petition before this Court, which was dismissed on the ground of alternative remedy. An appeal filed against such order, however, was allowed by the Division Bench vide following orders:- "Having head the learned counsel for the parties and upon regard being had to the facts and circumstances of the case, we feel persuaded to the view that the alternative remedy being not an absolute bar, the writ petition in the fact situation of the case was not liable to be dismissed on ground of alternative remedy. In the present case, it is not disputed that disciplinary authority has not recorded its satisfaction that it was not reasonably practicable to hold disciplinary enquiry and hence, the dispensation of disciplinary enquiry was not in accordance with law. Clause(b) of the proviso to sub-rule (2) of rule-8 is in part materia to clause (b) of the 2nd proviso to Art. 311(2) of the Const. In Union of India Vs. Tulsi Ram Patel while construing clause(b) of the 2nd proviso to Art. 311(2) of the Const. the Supreme Court has very clearly held that for valid application of clause (b) of the 2nd proviso to Art. 311(2)of the Const. the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold enquiry contemplated to Art.311(2) of the Const. It has further been propounded therein that this being a constitutional obligation, if such reason is not recorded in writing the order dispensing with the enquiry and the order of penalty following thereupon would both be void and unconstitutional. In such view of the matter, the order of dismissal cannot be sustained. As a result of foregoing discussion, the appeal succeeds and is allowed. The order impugned in the writ petition is quashed with liberty reserved to the disciplinary authority to proceed in accordance with law".
(3.) Petitioner contends that in such circumstances as the petitioner's claim is similar and identical and the same question of law applies with equal force, as such, petitioner is entitled to similar relief.;