Manoj Kumar Gupta, J. - (1.) Heard counsel for the petitioners and learned standing counsel for the respondents.
(2.) The petitioners, who were constables in the civil police department of the State, had been dismissed from service by impugned order dated 27.12.1997 passed by Senior Superintendent of Police, Ghaziabad. The dismissal has been effected without holding disciplinary proceedings by taking recourse to the power under Rule 8 (2) (b) of the U.P. Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'the Rules'). The order recites that Crime Case No.109 of 97 had been registered against the petitioners under Sections 452, 354, 323, 506, 392 IPC at P.S. Loni, wherein there is allegation of the petitioners having entered the house of a woman, misbehaved with her and committed loot. The aforesaid conduct of the petitioners has lowered the esteem of the police force in the eyes of general public. In the investigation, the misconduct was found established. Such a police employee should not be permitted to continue in service and consequently, the punishment of dismissal has been inflicted. It has further been recorded in the impugned orders that having regard to the criminality and act of indiscipline, it would not be practicable to hold a regular disciplinary enquiry.
(3.) The sole submission of learned counsel for the petitioners is that the impugned orders dismissing the petitioners from service by taking recourse of the power under clause (b) sub rule (2) of Rule 8 is wholly illegal, inasmuch as the reason why it was not reasonably practicable to hold enquiry, had not been recorded. It is submitted that merely because the alleged act was of criminal nature, involving indiscipline, it would not justify recourse to power under clause (b) of sub-rule (2) of Rule 8. It is pointed out that in the criminal case arising out of Crime Case No.109 of 97, the petitioners had been acquitted. He has placed reliance on a decision of this Court in Writ No. 1346 of 1998 Jagdish Prasad Vs. State of U.P. and another decided on 4.10.2012, wherein this Court has held that in the absence of reasons having been recorded for taking recourse to power under clause (b) sub-rule (2) of Rule 8, the order of punishment cannot be sustained. While taking such view, the Court has placed reliance on the decision of the Supreme Court in Om Prakash Yadav Vs. State of and others, 2012 7 ADJ 74 wherein it is held as under:- "9. The Rule 8(2)(b) is para materia to second proviso to Article 311 of the Constitution of India. The clause (b) of the second proviso to Article 311 of the Constitution of India came to be considered in several Judgments of the Supreme Court. The Supreme Court in the case of Satyavir Singh v. Union of India, 1985 4 SCC 252, has considered in detail the amendment of second clause of Article 311 of the Constitution by the Constitution (Forty-second Amendment) Act, 1976. The relevant portion of the Judgment in the case of Satyavir Singh at page 280 is as follows: "(104) Where a clause of the second proviso to Article 311 (2) or an analogous service rule is applied on an extraneous ground or a ground having no relation to the situation envisaged in such clause or rule, the action of the disciplinary authority in applying that clause or rule would be mala fide and, therefore, bad in law and the Court in exercise of its power of judicial review would strike down both the order dispensing with the inquiry and the order of penalty following thereupon." 10. In the case of Jaswant Singh vs. State of Punjab, 1991 1 SCC 362, the Supreme Court held that the decision to dispense the departmental inquiry is an exceptional case and the concerned authority must record its reason for its satisfaction to dispense the disciplinary proceedings. The relevant part of the Judgment in the case of Jaswant Singh at page 369 is as under: "The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. 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. In the counter filed by respondent 3 it is contended that the appellant, instead of replying to the show-cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer if any departmental inquiry was held against him." 11. The three division Benches of this Court in the Cases of State of U.P. and others v. Chandrika Prasad,2006 1 ESC 374, Pushpendra Singh and others v. State of U.P., 2008 3 ADJ 689 (DB) and Yadunath Singh v. State of U.P. and others, 2009 9 ADJ 86, have followed the principles laid down by the Supreme Court in the aforementioned cases. In the case of Pushpendra Singh , this Court held as follows: "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, ca-pricious 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 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 another v. Chief Election Commissioner, New Delhi and others, 1978 AIR(SC) 851, para 8)." 12. The similar view has been taken by the another Division Bench in Yadunath Singh v. State of U.P. and others, 2009 9 ADJ 86. In the said case also the disciplinary proceeding was dispensed with without any plausible reason. The only reason mentioned in the order was that the departmental inquiry shall consume sufficient time and on the said ground the Rule 8(2)(b) was invoked. This Court set aside the order of the disciplinary authority and held as under: "Here in the present case, the disciplinary authority had recorded its satisfaction but it is well settled that satisfaction has to be based on germane grounds and no 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. 5. The provisions contained under Rule 8(2)(b) have been incorporated keeping in view the provisions of Article 311 (2)(b) of the Constitution of India. The power conferred on the authority to dispense with an inquiry in a given situation where it is reasonably not practicable to hold an inquiry, has been envisaged therein. The Apex Court in the case of Union of India and another v. Tulsi Ram Patel,1985 3 SCC 298, had the occasion to consider the scope of the aforesaid provision and the Apex Court laid down the test of reasonableness in the said case to be reflected by the authority while proposing to dispense with an inquiry. Paragraph 130 of the said decision is reproduced below: "Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances byway of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the Government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the Government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned Government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry 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. The finality given to the decision of the disciplinary authority by article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case the Court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India, is an instance in point." 13. The aforesaid decision of the Division Bench have been followed in other cases namely Kuldeep Kumar vs. State of U.P. And others, 2011 9 ADJ 23 (NOC); Dharam Pal Singh Chauhan v. State of U.P. and others, 2011 4 ADJ 851; Gulabadhar v. State of U.P. and others, 2011 5 ADJ 835; Ram Yagya Saroj v. State of U.P. and others, 2010 4 AWC 3495; Umesh Kumar v. State of U.P. and others,2009 5 ADJ 405 and Bishambher Singh Bhadoria v. State of U.P. and others, 2008 8 ADJ 566.";