KRISHNA MURARI, J. - (1.) HEARD Sri Vijay Gautam learned counsel for the petitioner and learned Standing Counsel for the Staterespondents.
(2.) THE petitioner who is constable in civil police has filed this petition for a writ of certiorari to quash the order dated 20.8.2008 passed by the Superintendent of Police, Azamgarh dismissing him from service exercising powers conferred by Rule 8(2)(b) of the U.P. Police Officers of Sub-ordinate Ranks (Punishment & Appeal) Rules, 1991 (hereinafter referred to as 'Rules of 1991'). Writ of mandamus has also been prayed for to command the respondents to pay all consequential benefits including arrears of salary. The order of dismissal was passed by the Superintendent of Police dispensing with the departmental inquiry on the ground that it was not reasonably practicable to hold the inquiry for the reason that the petitioner was earlier suspended on the allegation of some scuffle between him and Om prakash on 20.5.2003 and was later on reinstated. He again misbehaved with the clerk and other assistant clerks in the department for which a case was registered against him under Section 352, 504 & 506 I.P.C. read with Section 7 of the Criminal Law Amendment Act and Section 29 of the Police Act and he was arrested and sent to jail. Further allegations are that on 11.5.2007 he misbehaved with the Additional Superintendent of Police and was again suspended and was reinstated on 14.9.2007. On 18.12.2007 he again misbehaved with A.S.I. for which he was awarded a censor entry to be recorded in his service record. It is further stated in the order that on 10.6.2008 he was found wandering in a confused state near the Chief Minister's residence. He was sent for medical examination and was diagnosed to be suffering from mental disease and since he is habitual of misbehaving with other police personnel his retention in public service shall tarnish the image of the police force in the eyes of general public. Learned counsel for the petitioner submitted that the order of dismissal from the service is arbitrary, discriminatory and has been passed in violation of the principle of natural justice. It has further been submitted that no reason has been assigned in the order for dispensing with the departmental inquiry nor there is any material brought on record in the counter affidavit which may go to show it was not reasonably practicable to hold inquiry. It has further been pointed out by learned counsel for the petitioner that the petitioner was admitted in the mental hospital at Varanasi on 17.1.2008 by the respondents authorities and was treated for mental illness and the Visitors Board of the Hospital declared him to be mentally fit on 12.9.2008 and the Director and Chief Superintendent of Mental Hospital Varanasi vide letter dated 7.10.2008 informed the Superintendent of Police, Azamgarh that the petitioner has been declared fit by the Medical Board and has been discharged but the impugned order was passed on 20.8.2008 much before the petitioner was discharged from the hospital.
(3.) THE sole question for consideration in the case is as to whether the order of dismissal fulfills the conditions precedent before passing the order prescribed by the Rules of 1991. The relevant Rule 8 of Rules 1991 reads as under : "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. ;