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Lokendra Pal Singh Vs. State Of U.P. And 3 Others

  Allahabad High Court Writ - A No. 25018 Of 2018
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Case Background

By means of this petition under Article 226 of the Constitution, the petitioner has assailed the order dated 09.03.2018 passed by respondent no.4-Inspector General of Police, Moradabad Region, Moradabad and order dated 11.08.2018 ...

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Document Text Version

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Writ-A No. 25018 of 2018

AFR

RESERVED

Court No. - 27

Case :- WRIT - A No. - 25018 of 2018

Petitioner :- Lokendra Pal Singh

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Pankaj Kumar Tiwari, Amit Saxena

Counsel for Respondent :- C.S.C.

Hon'ble Vivek Varma, J.

By means of this petition under Article 226 of the

Constitution, the petitioner has assailed the order dated 09.03.2018

passed by respondent no.4-Inspector General of Police, Moradabad

Region, Moradabad and order dated 11.08.2018 passed by

respondent no.3-Additional Director General of Police, Bareilly

Region, Bareilly (Annexure Nos.5 and 9 to the writ petition).

Briefly, the facts of the case are that the petitioner was sub-

inspector in civil police. When he was posted as Station House

Officer in District Bulandshahar, he was approached by a lady,

namely, Ms. Ruma Chaudhary in connection with a land dispute

with her uncle. Upon intervention of the petitioner, the aforesaid

dispute was resolved. Thereafter, Ms. Ruma Chaudhary became

familiar with the family of the petitioner and won their trust. She

took a loan and financial help from the petitioner to continue her

studies. According to the petitioner, in the year 2011, Ms. Ruma

Chaudhary successfully qualified the examination of constable in

U.P. Police. But she still continued to take financial help from the

family of the petitioner. Even after 4 to 5 years of service, she

refused to repay the loan. It is stated that in October, 2017, the wife

of the petitioner filed a complaint case being Case No. 23786 of

NeutralU:itationUNocUpU49bHq“H:qbMM4G9

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Writ-A No. 25018 of 2018

2017 (Smt. Geeta vs. Ruma Chaudhary), under Sections 406, 506

I.P.C. against Ms. Ruma Chaudhary. On 23.01.2018, Ms. Ruma

Chaudhary, it is submitted as a counter blast, lodged an FIR against

the petitioner under Sections 376, 377 and 506 I.P.C. alleging that

said offences have been committed from June, 2010 onwards.

Again on 09.02.2019, in order to pressurize the petitioner, Ms.

Ruma Chaudhary lodged another FIR under Sections 364, 511, 507,

504 and 506 I.P.C. Due to the aforesaid FIR and complaint of Ms.

Ruma Chaudhary, the petitioner was placed under suspension vide

order 14.02.2018 passed by S.S.P, Moradabad. On 27.03.2018, a

charge-sheet was submitted against the petitioner in the FIR dated

23.01.2018. Thereafter, the petitioner is stated to have challenged

the charge-sheet by filing Criminal Misc. Application U/S 482

Cr.P.C. No.21454 of 2018 and this Court vide order dated

20.06.2018 stayed the further proceedings. It is also stated that in

the FIR dated 09.02.2018, a final report was submitted and no

protest petition has been filed as yet.

It is submitted that while those proceedings were continuing,

a departmental preliminary enquiry was initiated against the

petitioner by the S.P. City, District Moradabad. The statements of

Ms. Ruma Chaudhary and the Investigating Officers of the two

cases instituted against the petitioner, were recorded by the enquiry

officer. The preliminary enquiry report recorded that, prima facie,

the allegations made by Ms. Ruma Chaudhary were correct.

On the basis of said ex-parte enquiry report, the petitioner

was dismissed from service vide order dated 09.03.2018 by the

Inspector General of Police, Moradabad Region, Moradabad under

Rule 8 (2) (b) of the Uttar Pradesh Police Officers of the

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Writ-A No. 25018 of 2018

Subordinate Ranks (Punishment and Appeal) Rules, 1991

(hereinafter referred to as the “Rules, 1991”).

Aggrieved by the aforesaid order, the petitioner preferred a

departmental appeal and the same was rejected by the Additional

Director General of Police, Bareilly Region, Bareilly vide order

dated 11.08.2018. The orders dated 09.03.2018 and 11.08.2018 are

under challenge before this Court by means of present writ petition.

Heard Sri Amit Saxena, learned Senior Advocate, assisted by

Sri Ashish Pandey, learned counsel for the petitioner and Mr D. K.

Tiwari, learned Standing Counsel for the State.

Submission of Sri Amit Saxena, learned counsel for the

petitioner is that the dismissal order passed against the petitioner

without holding a departmental enquiry is entirely arbitrary,

discriminatory and the same has been passed in violation of the

principles of nature justice. There is no material before the

disciplinary authority for arriving at any subjective satisfaction to

dispense with the enquiry. There was no occasion to hold that

enquiry into the matter is neither reasonable nor practicably

possible.

Further submission is that reasons recorded for dispensing

with the enquiry was irrelevant and was arbitrary and, therefore, the

impugned termination was invalid and that the petitioner was liable

to be reinstated in service.

Per contra, learned Standing Counsel for the State, in support

of orders impugned, has submitted that Rule 8 (2) (b) of the Rules,

1991 has rightly been invoked in the matter as it was not possible to

hold a departmental enquiry. He has further stated that the enquiry

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Writ-A No. 25018 of 2018

officer has clearly stated in his enquiry report that the petitioner

indulged in criminal acts.

I have considered the rival submission advanced by learned

counsel for the parties.

The services of the petitioner had been dismissed after

invoking, the proviso to Rule 8 (2) of the Uttar Pradesh Police

Officers of the Subordinate Ranks (Punishment and Appeal ) Rules,

1991. To appreciate the contention made by learned counsel for the

parties, it is necessary first to have a look at the provisions

contained in Rule 8 of the Rules, 1991. It 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 is not expedient to hold such enquiry.

(3) All orders of dismissal and removal of Head Constables or

Constables shall be passed by the Superintendent of Police. Cases

in which the Superintendent of Police recommends dismissal or

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Writ-A No. 25018 of 2018

removal of a Sub-Inspector or an Inspector shall be forwarded to

the Deputy Inspector-General concerned for orders.

(4) (a) The punishment for intentionally or negligently allowing a

person in police custody or judicial custody to escape shall be

dismissal unless the punishing authority for reasons to be

recorded in writing awards a lessor punishment.

(b) Every officer convicted by the Court for an offence involving

moral turpitude shall be dismissed unless the punishing authority

for reasons to be recorded in writing considers it otherwise.''

Bare perusal of the aforesaid Rule would go to show that

holding of inquiry is a rule and dispensing with the enquiry is an

exception. Before proceedings to impose any one of the major

penalty of dismissal, removal or reduction in rank the departmental

inquiry is must. However in certain contingency said rule can be

dispensed with. One such contingency provided for is that, it is not

reasonably practicable to hold an inquiry for reasons recorded in

writing. The said authority is to be exercised in exceptional

circumstances and that too by recording finding to the effect as to

why it is not reasonably practical to hold an inquiry. The sine quo

non for exercise of power under the proviso (b) to Rule 8 (2) of U.P.

Police Officers of the Subordinate Rank (Punishment and Appeal)

Rules, 1991, is the requirement to record reasons that it is not

reasonably practicable to hold such inquiry.

The proviso to Article 311 (2) of the Constitution of India,

which is analogous to Rule 8 (2) (b) of Rules, 1991 provides for the

mandatory requisites to dispense with the enquiry. In the aforesaid

provision also, an exception is carved out to the normal rule of

holding a departmental enquiry, before imposing a major

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Writ-A No. 25018 of 2018

punishment upon the delinquent officer.

The condition precedent for exercise of powers to dispense

with the departmental enquiry arose for consideration before the

Hon’ble Supreme Court in the case of Union of India and another

vs. Tulsi Ram Patel

1

. The Hon’ble Court held as under:

"60. The Second Proviso to Article 311(2) Clause (2) of Article

311 gives a constitutional mandate to the principles of natural

justice and audi alteram partem rule by providing that a person

employed in a civil capacity under the Union or a State shall not

be dismissed or removed from service or reduced in rank until

after an inquiry in which he has been informed of the charges

against him and has been given a reasonable opportunity of being

heard in respect of those charges. To this extent, the pleasure

doctrine enacted in Article 310 (1) is abridged because Article

311 (2) is a express provision of the Constitution. This safeguard

provided for a government servant by clause (2) of Article 311,

however, taken away when the second proviso to that clause

becomes applicable. The safeguard provided by clause(1) of

Article 311, however, remains intact and continues to be available

to the government servant. The second proviso to Article 311 (2)

becomes applicable in the three cases mentioned in clauses (a) to

(c) of that proviso. These cases are :

(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 inquiry; and

(c) where the President or the Governor, as the case may be, is

1 AIR 1985 SC 1416

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Writ-A No. 25018 of 2018

satisfied that in the interest of the security of the State it is not

expedient to hold such inquiry.

130. The condition precedent for the application of clause

(b) is the satisfaction of the disciplinary authority that "it is not

reasonably practicable to hold" the inquiry contemplated by

clause (2) of Article 311. What is pertinent to note is that the

words used are "not reasonably practicable" and not

"impracticable". According to the Oxford English Dictionary

"practicable" means "Capable of being put into practice, carried

out in action, effected, accomplished, or done; feasible". Webster's

Third New International Dictionary defines the word

"practicable" inter alia as meaning "possible to practice or

perform : capable of being put into practice, done or

accomplished : feasible". Further, the words used are not "not

practicable" but "not reasonably practicable". Webster's Third

New International Dictionary defines the word "reasonably" as

"in a reasonable manner : to a fairly sufficient extent". 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 by

way 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

given 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

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Writ-A No. 25018 of 2018

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 Hon'ble Apex Court in the case of Jaswant Singh vs.

State of Punjab and others

2

, the Court while dealing with the

exercise of power as conferred by way of exception under Article

311 (2) (b) of the Constitution of India, opined as under:

“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. This is clear from the following observation at page 270 of

Tulsiram Case: (SCC p.504, para 130)

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

2 (1991) 1 SCC 362

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Writ-A No. 25018 of 2018

inquiry or because the department's case against the

government servant is weak and must fail.

The decision to dispense with the departmental enquiry cannot,

therefore, be rested solely on the ipse dixit of the concerned

authority. When the sanctification 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 Reena Rani vs. State of Haryana

3

, after referring to the

various authorities holding the field, the Hon'ble Apex Court ruled

out when reasons are not ascribed, the order is vitiated and

accordingly set aside the order of dismissal which had been

concurred with by the Single Judge and directed for reinstatement

in service with all consequential benefits. It has also been observed

therein that the order passed by this Court would not preclude the

competent authority from taking action against the

appellant/petitioner in accordance with law.

Recently, in the case of Risal Singh vs. State of Haryana

and others

4

, while construing a similar provision, the Hon'ble Apex

Court Court observed as follows:

“Non-ascribing of reason while passing the order dispensing with

enquiry, which otherwise was must, definitely invalidates such

action....

Tested on the touchstone of the aforesaid authorities, the

irresistible conclusion is that the order passed by the

Superintendent of Police dispensing with the inquiry is totally

unsustainable and is hereby annulled. As the foundation founders,

3(2012) 10 SCC 215

4(2014) 13 SCC 244

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Writ-A No. 25018 of 2018

the order of the High Court giving the stamp of approval to the

ultimate order without addressing the lis from a proper perspective

is also indefensible and resultantly, the order of dismissal passed

by the disciplinary authority has to pave the path of extinction”

The provisions of Rule 8 (2) (b) of the Rules, 1991 and

Article 311 (2) of the Constitution of India are almost in pari-

materia and the legislative intent behind the provisions are the

same.

In view of the law laid down by the Hon’ble Apex Court

noticed above, before exercising special powers to dispense with

the enquiry, the disciplinary authority must be satisfied on the basis

of objective material that it is not practicable to hold such enquiry.

At this stage, it would be appropriate to notice some

authorities in point rendered by this Court, while interpreting

proviso (b) to Rule 8 (2) of the Rules, 1991.

In Pushpendra Singh and another vs. State of U.P. and

another

5

, the Court in paragraphs 7, 8, 9 and 10 held as follows:

“7. …….. 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, AIR 1985 SC 1416

while considering Articles 310 and 311 of the Constitution of India

52008 (3) ADJ 689 (D.B.)

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Writ-A No. 25018 of 2018

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 (supra) held as follows :

''A disciplinary authority is not expected to dispense with a

disciplinary authority lightly or arbitrary 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 Ors. 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.”

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Writ-A No. 25018 of 2018

“...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. ).

9. It is also an admitted position that the appellants have been

dismissed from service without holding any enquiry. They have

not been informed of the charges against them nor been afforded

opportunity of being heard in respect of charges before inflicting

punishment of dismissal from service. Thus, in the absence of

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Writ-A No. 25018 of 2018

reasons for dispensing with the regular enquiry the impugned

order of dismissal is patently illegal and it is difficult to uphold

the same.”

In Dayashankar Tiwari and another vs. State of U.P. and

others

6

, the Court in paragraphs 9, 10 and 11 held as follows:

“9. In the present case, it is admitted that the petitioners were

caught red handed while on duty, and no preliminary enquiry

was held nor the petitioners were given opportunity to explain

their conduct. The Senior Superintendent of Police has found

that it was not reasonably practicable to hold a departmental

enquiry against them only on the ground that the act of police

personnel will cause serious damage to the police department,

and general public will loose confidence in the police

department.

10. In all the aforesaid cases, it was held that unless the

reasons given by the disciplinary authority that it was not

reasonably practicable to hold departmental enquiry, relevant

for the exercise of power, the courts will not exercise power of

judicial review.

11. In the present case, acceptance of bribe and being caught

red handed in the act, may lower the image of the police

department, and the confidence of general public, but that by

itself cannot be said to relevant grounds to dispense with the

preliminary and thereafter departmental enquiry. The exercise

of powers under Section 8 (2) (b) will require the act of

indiscipline or misconduct to be such, and not its consequences,

which may be relevant to record findings that it is not

reasonably practicable to hold departmental enquiry. Every

allegation of corrupt practice by police officers results into

possibility of indiscipline, lowering of image and loss of public

62010 (10) ADJ 574 (D.B.)

14

Writ-A No. 25018 of 2018

faith. These consequences cannot be taken to be sufficient not to

cause departmental enquiry to enquire into the truth of

allegations after affording an opportunity of hearing to the

delinquent employee.”

In Rajendra Prasad Singh vs. State of U.P. and others

7

, the

Court in paragraphs 9 & 10 held as follows:

“9. Thus, the consistent view is that holding an enquiry is a rule

and it's dispensation, an exception. The test is that in a

prevailing situation, what a reasonable man, taking a

reasonable view, would have done. Further, the decision to

dispense with the departmental enquiry is not based on the ipse

dixit of the authority concerned but should be based on

objective assessment of the relevant facts. If the subjective

satisfaction is challenged before the Court of law, it has to pass

the test laid down above and for which, it is the burden of the

disciplinary authority to place the relevant facts and material

before the Court to justify it's action in dispensing with the

disciplinary enquiry.

10. Applying these principles to the facts of the present case,

this Court finds that the decision to dispense with the enquiry is

not based on relevant considerations and cannot be sustained in

law. Perusal of the impugned order will demonstrate that the

decision to dispense with the disciplinary enquiry is primarily

based on two grounds: (1) that the delinquent continues to be

absent and there is no possibility of his co-operation in the

enquiry; and (2) the deeds of the delinquent were widely

reported in various newspapers and media and, therefore, it

would be inexpedient and impracticable to hold the enquiry.”

Recently, a Division Bench of this Court in the case of

Umesh Chandra vs. State of U.P. through Secretary, Special

72014 (3) AWC 2616

15

Writ-A No. 25018 of 2018

Appeal No.350 of 2017, decided on 06.08.2019, (of which I was a

member), the Court construed the provisions of Rule 8 (2) (b) of the

Rules, 1991. The relevant extract of the judgments is quoted below:

“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 any

delinquent. However, Rule 8 (2) (b) of the Rules, 1991 has

carved out certain exceptions where even without holding

regular proceeding punishment of dismissal, removal or

reduction in rank can be inflicted. In order to dispense with the

regular departmental proceeding for inflicting major

punishment recording reasons is a condition precedent to

prevent arbitrary, capricious and mala fide exercise of power.

Absence of reasons vitiates the order and renders it

unsustainable in law. Secondly, the authority has to record its

satisfaction based on credible material in the record, to

dispense with the enquiry. 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 authorities in point are long, but the position of law has

been consistent on the point.

In the case in hand, the Inspector General of Police vide his

order dated 09.03.2018, dismissed the services of the petitioner

relying upon a confidential/ex-parte preliminary enquiry report

dated 15.02.2018 conducted by Deputy Inspector of Police,

Moradabad by stating that since the petitioner had been posted as

Inspector in police department, a cloud of fear exists, no witness

16

Writ-A No. 25018 of 2018

came forward to depose against him, as such, further enquiry is not

possible.

The said order also records that the petitioner is a married

person and being a senior member of a disciplined force, has

committed misconduct within the meaning of Rule 3 of The U.P.

Government Servant Conduct Rules, 1956. He has tarnished the

image of the police force. The continuance of such undisciplined

and criminal minded person will cause serious damage to the

police department and general public will loose faith. For this

reason the disciplinary authority thought it fit to dispense with the

enquiry.

The recital in the impugned dismissal order dated 09.03.2018

that no witness came forward to depose against the petitioner in the

preliminary enquiry as such further enquiry is not possible, needs

consideration. It does not stand to reason how witnesses were aware

about the enquiry when even the petitioner was not informed. The

said reasoning by no stretch of imagination could be a ground for

dispensing with the disciplinary enquiry. It is a wholly subjective

opinion not arising from any objective material.

It is also relevant to be noted that if a preliminary enquiry can

be held then there is no reason as to why a regular departmental

enquiry cannot be held, in such facts. Admittedly, there are cross

cases registered between petitioner and Ms. Ruma Chaudhary and

also the fact that Ms. Ruma Chaudhary had duly appeared and

deposed before the ex-parte preliminary enquiry.

It is trite law that the satisfaction of the authority has to be

based upon objective material on record. There is no material on

17

Writ-A No. 25018 of 2018

record to justify the conclusion that it was not possible to hold a

departmental enquiry.

Also, the order has been passed on the basis of preliminary

enquiry. The preliminary enquiry report was never supplied to the

petitioner. The petitioner did not have an opportunity to refute the

preliminary enquiry report. The report was adverse to the petitioner.

The authority by failing to provide preliminary enquiry report to the

petitioner and omitting to call for objections from the petitioner, has

acted in violation of principles of natural justice. The procedure

adopted by the authority while passing the impugned order is

arbitrary and illegal. Even the appellate authority failed to

appreciate the aforesaid issues and dismissed the appeal. The

reasoning assigned in the impugned orders cannot be said to be

relevant grounds to dispense with the departmental inquiry.

In view of the admitted facts and the legal position referred to

above, the impugned dismissal order dated 09.03.2018 and

appellate order dated 11.08.2018 cannot be sustained and are hereby

set aside.

The writ petition is allowed.

The matter is remanded back to the disciplinary authority to

proceed from the stage prior to the passing of the impugned order

dated 09.03.2018 and conclude the enquiry within a period of six

months from the date of production of a certified copy of this Court.

Order Date :- 30.8.2019

Ajeet

(Vivek Varma, J.)

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