Naveen Kumar vs State Of Uttarakhand And Others on 14 July, 2017

IN THE HIGH COURT OF UTTARAKHAND
(Under Article 226 of the Constitution of India)
Writ Petition (S/S) No. 68 of 2014

Naveen Kumar ……. Petitioner

Versus

State of Uttarakhand others …Respondents

Mr. M.S. Pal, Senior Advocate assisted by Mr. Amir Malik, Advocate for the petitioner.
Mr. Vikas Pande, Brief Holder for the State/respondents.

Hon’ble Manoj K. Tiwari, J.

By means of this petition, petitioner seeks following
reliefs:

(i) Issue a writ, order or direction in the nature of certiorari
quashing the impugned dismissal order dated 18.11.2004
passed by respondent no.4 affirmed by the Deputy Inspector
General of Police Garhwal Division on 07.03.2005 (annexure
no.2) and then reaffirmed by the Second Appellate Authority
vide its order dated 08.06.2005 passed by Upper Police
Mahanirikshak, Police Head Quarters, Dehradun.

(ii) Issue a writ, order or direction in the nature of mandamus
directing the respondents to reinstate the petitioner in service.

Heard learned counsel for the parties.

2. Learned counsel for the petitioner submits that
petitioner was appointed as Constable in Civil Police in the year
1986 and was posted in District Pauri till 18.11.2004.

3. Petitioner is aggrieved by the order dated 18.11.2004
passed by respondent no. 4 (Superintendent of Police, Pauri
Garhwal), whereby, punishment of removal from service was
imposed on him. Petitioner has also challenged the order dated
07.03.2005 passed by the Deputy Inspector General of Police,
Garhwal Division and the order dated 08.06.2005 passed by Upper
Police Mahanirikshak, Police Head Quarters, Dehradun.

4. According to learned counsel for the petitioner, grievance
of the petitioner is that punishment of removal from service is
imposed upon him without holding any disciplinary inquiry.
Learned counsel for the petitioner submits that no show cause
notice or charge-sheet whatsoever was issued against the petitioner.

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5. Perusal of the order dated 18.11.2004 passed by the
Disciplinary Authority reveals that power available under Rule
8(2)(b) of the U.P. Police Officers of the Subordinate Ranks
(Punishment And Appeal) Rules, 1991 was invoked for imposing
penalty of removal from service. Rule 8(2)(b) of the aforesaid Rules
enables the Disciplinary Authority to dispense with the disciplinary
inquiry once he is satisfied that it is not reasonably practicable to
hold such inquiry. However, this power is not unfettered and while
exercising this power, Disciplinary Authority is required to record
reasons in writing, why holding of regular disciplinary inquiry is not
reasonably practicable. For ready reference Rule 8 of aforesaid Rule
is extracted below:

“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.

(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 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.”

6. Counter affidavit has been filed on behalf of respondent
no.4, in which it is stated that petitioner alongwith another
Constable were detailed for Guard duty with a under trial prisoner,
who was sent for treatment to Medical College, Meerut and the said
under trial prisoner has absconded on 09.11.2014 from the custody
of petitioner and other Constable, namely, Omveer Singh. It is
further stated that petitioner informed about this fact to the Higher
Authorities only on 17.11.2014. Paragraph no.12 of the counter
affidavit is extracted below:

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“12- That the contents of Para No-11 of the writ petition are wrong
hence denied. The dismissal order passed by respondent no-4 in exercise of
Rule-8(2) b of U.P. Subordinate Police Officers (Punishment Appeal) Rule
1991 which provides where the authority empowered to dismiss or remove
a person or reduce him in rank is satisfied that for some reason to be
recorded by that authority in writing is not reasonable practicable to hold
such enquiry or Rule-8(2) C and where the Govt. is satisfied that in the
interest of the security of the State it is not expedient to hold such enquiry.
As such Rule-8(2) b empowers the authority concern to dispense with the
enquiry in a case where his is satisfied for some reason to be recorded in
writing that is not reasonably practicable in holding such enquiry and
where Officer/Govt. is satisfied that in the interest of Security of the state it
is expedient to hold such enquiry. The said rules has not been challenged to
its validity and legality in writ petition by the petitioner. Therefore, in view
of the said rule and in exercise of it and keeping in view of the past conduct
of the petitioner as stated in foregoing pares he was dismissed from the
service, which is just and proper.”

6. I have perused the punishment order dated 18.11.2004
passed by respondent no.4-Superintendent of Police, Pauri
Garhwal. The disciplinary authority has discussed about the past
conduct of the petitioner and has expressed opinion that there is no
possibility for improvement in work and conduct of the petitioner.
The disciplinary authority has also held petitioner guilty on various
counts, however, no reason has been recorded as to how he is
satisfied that it is not reasonably practicable to hold disciplinary
inquiry against the petitioner. Past misconduct, if any, cannot be
sufficient ground for dispensing with the requirement of holding
regular disciplinary inquiry.

8. Hon’ble Supreme Court in the case of Tarsem Singh
Versus State of Punjab reported in (2006) 13 SCC 581, while
dealing with a similar controversy with reference to Article 311 (2)

(b) observed as under:-

“10. It is now a well-settled principle of law that a
constitutional right conferred upon a delinquent cannot be dispensed
with lightly or arbitrarily or out of ulterior motive or merely in order to
avoid the holding of an enquiry. The learned counsel appearing on
behalf of the appellant has taken us through certain documents for
the purpose of showing that ultimately the police on investigation did
not find any case against the appellant in respect of the purposed
FIR lodged against him under Section 377 IPC. However, it may not
be necessary for us to go into the said question.

11. We have noticed hereinbefore that the formal
enquiry was dispensed with only on the ground that the appellant
could win over aggrieved people as well as witnesses from giving
evidence by threatening and other means. No material has been
placed or disclosed either in the said order or before us to show that
subjective satisfaction arrived at by the statutory authority based
upon objective criteria. The purported reason for dispensing with the
departmental proceedings is not supported by any document. It is
further evident that the said order of dismissal was passed, inter
alia, on the ground that there was no need for a regular
departmental enquiry relying on or on the basis of a preliminary
enquiry. However, if a preliminary enquiry could be conducted, we
fail to see any reason as to why a formal departmental enquiry
could not have been initiated against the appellant. Reliance placed
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upon such a preliminary without complying with the minimal
requirements of the principle of natural justice is against all canons
of fair play and justice. The appellate authority, as noticed
hereinbefore, in its order dated 24.06.1998 jumped to the conclusion
that he was guilty of grave acts of misconduct proving complete
unfitness for police service and the punishment awarded to him is
commensurate with the misconduct although no material therefor
was available on record. It is further evident that the appellate
authority also misdirected himself in passing the said order insofar
as he failed to take into consideration the relevant facts and based
his decision on irrelevant factors.

12. Even the Inspector General of Police in passing his
order dated 26.11.1999, despite having been asked by the High
Court to pass a speaking order, did not assign sufficient or cogent
reason. He, like the appellate authority, also proceeded on the basis
that the appellant was guilty of commission of offences which are
grave and heinous in nature and bring a bad name to the police
force of the State on the whole. None of the authorities mentioned
hereinbefore proceeded on the relevant material for the purpose of
arriving at the conclusion that in the facts and circumstances of the
case sufficient cause existed for dispensing with the formal enquiry.
This aspect of the matter has been considered by this Court in
Jaswant Singh v. State of Punjab wherein relying upon the judgment
of the Constitution Bench of this Court, inter alia, in Union of India v.
Tulsiram Patel, it was held: (Jaswant Singh case, SCC p. 368, para

4)
“Although Clause (3) of that article makes the decision
of the disciplinary authority in this behalf final such finality can
certainly be tested in a court of law and interfered with if the action
is found to be arbitrary or mala fide or motivated by extraneous
consideration or merely a ruse to dispense with the inquiry.”

9. In the absence of any reason in the order passed by
Disciplinary Authority for dispensing with disciplinary inquiry, the
punishment of removal from service imposed upon petitioner by
invoking Rule 8(2)(b) of the aforesaid Rules cannot be sustained in
the eyes of law. No other material has been placed by the
respondents to justify dispensing of formal inquiry in terms of Rule
8(2)(b) of the aforesaid Rules.

10. Accordingly, the writ petition is allowed. Impugned
orders dated 18.11.2004 (annexure no.1 to the writ petition),
07.03.2005 (annexure no.2 to the writ petition) 08.06.2005
(annexure no.3 to the writ petition) are quashed. Petitioner is
directed to be reinstated in service. However, it will not preclude the
respondents from holding regular disciplinary inquiry against the
petitioner.

12. No order as to costs.

(Manoj K. Tiwari, J.)
14.07.2017
Mamta

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