Yashwant Varma, J. - (1.) Heard learned counsel for the petitioner and the learned Standing Counsel for the State respondents.
(2.) This petition assails an order dated 29 February 2000 in terms of which the services of the petitioner have come to be dispensed with in exercise of powers conferred by Rule 8 (2) (b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. The respondents have taken the stand that the petitioner secured employment in the police force on the basis of forged High School and Intermediate certificates. It was their stand that on receipt of a complaint, it was brought to their attention that the petitioner had obtained appointment on the basis of forged testimonials. After undertaking an enquiry upon the said complaint, the respondents came to hold that the complaint had substance and that the petitioner had in fact obtained employment on the basis of forged certificates. They further proceeded to record that a First Information Report had also come to be lodged against the petitioner for alleged commission of offences under Sections 420, 468, 471 I.P.C. The Senior Superintendent of Police thereafter proceeded to record that it was not practicable to undertake an enquiry as contemplated under the 1991 Rules. On the basis of the said summation, he proceeded to dispense with the services of the petitioner resorting to the powers conferred by Rule 8 (2) (b).
(3.) While this Court does not dispute the existence of a power inhering in the respondents to dispense with the holding of an enquiry if it be not reasonably practicable to do so, the same has to be exercised bearing in mind the express language used and employed in clause (b) of Rule 8 (2). One of the fundamental safeguard which stands placed and acts as a check upon the exercise of this power is an obligation upon the respondents to record reasons as to why it is not reasonably practicable to hold an enquiry. No such reasons stand assigned in the impugned order. In the Counter Affidavit also the respondents neither take any plea nor do they rely upon any material which may have tended to evidence an impracticability in holding an enquiry against the petitioner. The law in this respect is well settled and therefore rather than burdening this judgement with various precedents, one may only notice the following observations as they appear in a judgement rendered by a Division Bench of the Court in Pushpendra Singh and another Vs. State of U.P. and another, 2008 2 AWC 1572 which reads thus: "7. The above provision is pari materia with Article 311 (1) and (2) of the Constitution, which gives constitutional protection to a Member of Civil Service of the Union or of the State. The normal rule is that no major punishment, such as, dismissal, removal or reduction in rank should be inflicted without taking recourse of regular disciplinary enquiry against such delinquent. However, second proviso to Article 311(2) has carved out certain exception where even without holding regular proceeding punishment of dismissal, removal or reduction in rank can be inflicted. Similarly, Rule 8(2)(b) like Article 311(2)(b) provides that where the authorities empowered to dismiss or remove a person or to reduce him in rank is satisfied that it is not reasonably practicable to hold such enquiry then in that event he has to record reasons as to why it is not reasonably practicable to hold the enquiry. Thus, in order to dispense with the regular departmental proceeding for inflicting punishment of dismissal, removal or reduction in rank, recording reasons is condition precedent. The idea or object of recording reasons is obviously to prevent arbitrary, capricious and mala fide exercise of power. Therefore, recording of reason is mandatory and in its absence the order becomes laconic and cannot sustain. Onus is on the State or its authorities to show that the order of dismissal has been passed strictly as per prescription of the statutes. The Hon'ble Apex Court in the case of Union of India v. Tulsi Ram Patel, 1985 AIR(SC) 1416, while considering Articles 310 and 311 of the Constitution of India held that two conditions must be satisfied to uphold action taken under Article 311 (2) of the Constitution of India, viz., (i) there must exist a situation which renders holding of any enquiry not reasonably practicable; (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. The Hon'ble Apex Court further observed that though Clause 3 of Article 311 makes the decision of the disciplinary authority in this behalf final, yet such finality can certainly be tested in the court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a rule to dispense with the enquiry. The Hon'ble Apex Court at page 1479 in Tulsi Ram Patel held 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 Department's case against the Government servant is weak and must fail." 8. The words some "reason to be recorded in writing that it is not reasonably practicable to hold enquiry" means that there must be some material for satisfaction of the disciplinary authority that it is not reasonably practicable. The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. The Apex Court in the case of Jaswant Singh v. State of Punjab and Others, 1991 AIR(SC) 385, in para 5 at page 390 has observed as under: "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." "...When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer." 9. Therefore, in view of the exposition of law such satisfaction has to be recorded either in the impugned order or in any case it must be available on record. In the case in hand, the impugned order is enclosed as Annexure 5 to the writ petition. From a perusal thereof it is evident that the Senior Superintendent of Police merely reproduced the provisions contained in Rule 8(2)(b) against the above police personnel, stating that it is not reasonably practicable to hold such enquiry. It does not contain any reason showing as to why it is not reasonably practicable to hold regular enquiry. The satisfaction that it is not reasonably practicable to hold such enquiry has to be spelled out either in the order itself or at least it has to be available on record. Learned Standing Counsel also during his submission could not show us any such reason recorded by the competent authority in the record to show any ground or reason for invoking the provisions contained in Rule 8(2)(b) of the Rules. It is well settled legal position that when a statutory functionary makes an order based on some reasons or grounds, its validity is to be tested on the ground or reasons mentioned therein and cannot be supplemented by giving reasons through affidavit filed in the case (See Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., 1978 AIR(SC) 851, para 8)";