SUNIL AMBWANI, J. - (1.) HEARD Shri Vijay Gautam, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents.
(2.) THE petitioner-Constable No. 444, Civil Police Mahendra Singh has filed this writ petition for a writ of certiorari to quash the orders dated 21.11.2007 passed by the Senior Superintendent of Police, Kanpur Nagar under Rule 8(2)(b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short the Rules of 1991); the order of the Deputy Inspector General of Police, Kanpur Range, Kanpur dated 30.06.2008 and the order dated 25.09.2008 passed by the Inspector Genera of Police, Kanpur Zone, Kanpur dismissing the revision. The petitioner has also prayed for writ of mandamus for direction to reinstate him in service with regular salary and all consequential benefit and has also prayed for arrears of salary. The order by which the Senior Superintendent of Police, Kanpur Nagar, as a competent authority under the Rules of 1991 has dismissed the petitioner, dispensing with department enquiry on the ground that it is not reasonably practicable to hold the enquiry. It states in the order, that on 20.11.2007 the petitioner along with Constable 1039 Civil Police Umesh Prasad Gupta were relieved in pursuance of the order of the Juvenile Justice Board, Kanpur Nagar dated 16.11.2007 by G.D. Entry No. 19 at 9.00 a.m. On 20.11.2007 from the juvenile Home, Kidwai Nagar, Kanpur with juvenile accused Raju son of Somaia for medical examination to ascertain his age. They were responsible to produce the child before the Chief Medical Officer, UHM Hospital, Kanpur for examination, and thereafter to take him back to the Government Home, Kidvai Nagar, Kanpur. The constables committed gross negligence and impropriety in allowing an opportunity to the child accused to escape. They were physically more stronger than the child and were given handcuffs and rope to keep him under control. The Senior Superintendent of Police has observed that the negligence has not only tarnished the image of the police department but has also affected the credibility of the department in the estimation of the general public. He has thereafter observed that the child accused to escape from police custody, and thus he find it justifiable to adopt the procedure prescribed under Rule 8(2)(b) of the Rules of 1991 to punish him. In his opinion recorded in the order passed under Rule 8(2)(b) of the Rules of 1991, he states that if competent authority is satisfied for the reason recorded in the order that it is not reasonably practicable to hold an enquiry before dismissal, removal or reversion of rank of the office, the competent authority can exercise the powers. In the present case after deeply examining the matter he has arrived at a conclusion that the serious irregularity committed by the petitioner in which he had intentionally helped the child accused to escape does not make it reasonably practicable to hold a departmental enquiry.
(3.) THE Deputy Inspector General of Police as appellate authority and the Inspector General of Police as revisionary authority have upheld the orders and the exercise of powers by the Senior Superintendent of Police under Rules 8(2)(b) of the Rules of 1991. Clause (2) of Article 311 of the Constitution of India provides that no person who holds a civil post under the Union or the State "shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. " The second proviso to clause (2), however, specifies three situations in which the requirement in Clause (2) do not apply. Clause (b) of the second proviso states that "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 an inquiry. " the enquiry and the opportunity provided by clause (2) can be dispensed with and punishment imposed straightaway. Clause (3) of Article 311 is a continuation of clause (b) or the second proviso. Clause (3) says, "if, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such an inquiry as is referred to in clause (2), the decision thereon on the authority empowered to dismiss or remove such person or to reduce him in rank shall be final " ;