Shishir Kumar - (1.) -By means of the present writ petition the petitioner has approached this Court for a writ of certiorari quashing the order dated 8.5.2006 (Annexure-1 to the writ petition) passed by respondent No. 2. Further a writ in the nature of mandamus commanding the respondents from interfering with the peaceful functioning of the petitioner as Constable.
(2.) THE petitioner was selected in the year 1998 on the post of Constable. After completion of training he was posted at different places. When the petitioner was posted at Kotwali, Farrukhabad, an incident took place on 30.4.1996 in which cross F.I.R.'s were lodged by the Superintendent of Police and Inspector Kotwali. It was stated in the F.I.R. that an incident has taken place on 2nd May, 2006, when the Superintendent of Police was sitting in his office and one Sri Nar Singh Pal Singh, Inspector, Kotwali alongwith Anand Kumar Singh and Rajesh Singh, Sub-Inspector Kotwali, Farrukhabad alongwith two constables, entered into the office and attacked the Superintendent of Police. It was also stated in the F.I.R. lodged by the Superintendent of Police that he was threatened by the police officials. Another F.I.R. was also lodged by Nar Singh Pal Singh, Inspector Kotwali which states that no such incident has taken place. On the basis of the aforesaid F.I.R. it appears that the Superintendent of Police had passed an order dispensing the services of the petitioner by invoking Rule 8 (2) (b) of the U. P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rule, 1991 (hereinafter referred to as the Rules of 1991). Rule 8 is being reproduced below : "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 as 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." Petitioner aggrieved by the aforesaid order of dismissal has approached this Court. It has been submitted by the learned counsel for the petitioner that Rule 8 (2) (b) clearly indicates that no police officer shall be dismissed, removed or reduced in rank except after proper enquiry and disciplinary proceedings, as contemplated by the Rules, provided that this rule will not apply where an order of dismissal or removal was passed on the ground of conduct, which has led to conviction on a criminal charge or where the authority empowered to pass an order is satisfied that for some reasons, to be recorded in writing, it is not reasonably practicable to hold such enquiry or where the State Government is satisfied that in the interest of security of the State, it is not expedient to hold such an enquiry. The bare perusal of the order dated 8.5.2006 would clearly indicate that the conditions mentioned in the aforesaid rule has not at all been complied with. The impugned order further indicate that some preliminary enquiry was conducted by the Superintendent of Police, Kannauj and on the basis of some information received from eye-witnesses, he has submitted a report that Superintendent of Police Sri Rahul Asthana was assaulted by some police officials. While passing the order impugned, the competent authority has not recorded a finding to this effect that it is not practicable to hold the regular enquiry. The condition precedent of Rule 8 (2) (b) is over stayed rule can be invoked only when the authority who is empowered to pass the order is satisfied that holding of enquiry is not practicable. Once a finding has been recorded in the impugned order that there was some eye-witness and on the basis of the information received, it was found that the Superintendent of Police was assaulted, then there is no justification for not conducting the enquiry while dispensing with the services of the petitioner. The rule clearly indicates that no police officer should be dismissed or removed from service by an authority except after proper enquiry and disciplinary proceedings, as contemplated under the Rule. The only exception in Rule 8 (2) (b) provides that while passing the impugned order a satisfaction to that effect has to be recorded. As the disciplinary authority has not recorded satisfaction in respect of employment and the practicability of holding an enquiry, as such, the order is liable to be quashed. The respondents have erred in dismissing the services of the petitioner without holding any enquiry and without affording him an opportunity of hearing. But the preliminary enquiry alleged to have been done was behind the back of the petitioner. In view of the aforesaid fact, the learned counsel for the petitioner submits that order is liable to be quashed.
(3.) THE learned counsel for the petitioner has placed reliance upon a judgment in Ravindra Raghav v. State of U. P. and others, 2005 (2) ESC 1229 (All) : 2005 (3) AWC 2409 and reliance has been placed upon paras 8 and 9 of the said judgment. THE same are being quoted below : "8. In the present case, the order of Superintendent of Police, dismissing the petitioner from service, after invoking the powers under Rule 8 (2) (b) of the Rules, has been given any reason as to why it is not reasonably practicable to hold an enquiry. THE order notes the incident, dated 19th October, 2000, in which allegation against the petitioner was made that he alongwith other Constables had realised Rs. 50 each from drivers of Combine Machines and when Incharge Kotwali reached on the spot, then he misbehaved with Incharge in presence of public. Observation has been made in paragraph 3 of the order that by the misconduct of the petitioner, the faith of public is losing in police and by the above act of petitioner, there is strong possibility of encouragement of indiscipline in the force. After noticing the above facts, the Superintendent of Police held that he is satisfied that it is not reasonably practicable to hold enquiry against the petitioner. It was further observed that in case petitioner remain in the force, he may repeat the incident in future, and taking advantage of he being in police, he may make efforts to save himself from his deeds and in continuing the petitioner in Department, there will be possibility of increase of indiscipline in the employees. No reason in the order has been recorded as to why it is not reasonably practicable to hold disciplinary enquiry against the petitioner. It has been observed by the Apex Court in Union of India v. Tulsiram Patel, (1985) 3 SCC 398, that disciplinary authority is not expected to dispense with a disciplinary enquiry lightly, or arbitrarily. In the counter-affidavit, which has been filed by the respondents also, there is no reason given for not holding disciplinary enquiry against the petitioner. No facts have been mentioned in the order, or referred to, on the basis of which satisfaction has been recorded for dispensing/holding of disciplinary enquiry against the petitioner. THE observation that in the event petitioner is allowed to remain in the Department, there is possibility of increase of indiscipline in the Department, cannot be held to be germane for dispensing / holding of disciplinary enquiry. THE appellate authority, while dismissing the appeal has observed that there was possibility of petitioner threatening the complainant and witnesses, was an observation, which does not find place in the order of Superintendent of Police, who invoked the power under Rule 8 (2) (b) of the Rules. Neither any reasons have been recorded in the order of Superintendent of Police for dispensing/holding of disciplinary enquiry, nor other observations made in the order to the effect that continuance of the petitioner in the police force, would have encouraged indiscipline in the Department were relevant for dispensing/ holding of disciplinary enquiry. THE key words in Rule 8 (2) (b) are "not reasonably practicable". THE Rules contemplate exercise of power under Rule 8 (2) (b) for dispensing / holding of disciplinary enquiry, when it is not reasonably practicable to hold such enquiry. THE reasons, thus, which can satisfy the requirement of Rule 8 (2) (b) has to be referable to "not reasonably practicable", to hold an enquiry. No reasons have been given in the order, which can be said to fulfil the requirement of not reasonably practicable to hold enquiry. THE statutory requirement of exercising the power is absent in the present case. As observed above, no reasons have also been given in the counter-affidavit, bringing on the record the reasons on the basis of which such satisfaction was recorded by Superintendent of Police, the Court is at last to find out the basis for invoking the power under Rule 8 (2) (b) of the Rules. 9. In above view of the facts, it is clear that power has been exercised by Superintendent of Police, under Rule 8 (2) (b) contrary to the requirement as laid down in Rule 8 (2) (b). THE order of Superintendent of Police, cannot be sustained. THE appellate order, which confirms the said order, also cannot survive, and both the orders are consequently quashed. It is, however, open to the respondents to hold disciplinary enquiry against the petitioner, in accordance with law." As the counter and rejoinder-affidavits have already been exchanged, therefore, with the consent of the parties the present writ petition is being disposed of finally.;