# Afjal Khan v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 487
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-12
- **Case number:** Writ-A No. 62804 of 2009
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/afjal-khan-v-state-of-u-p-ors-43206
- **Pages:** 6

## Headnote

(Punishment & Appeal) Rules 1991-Rule
8(2)(b)-dismissal by evoking power under
rule-without recording satisfaction about
impractically to hold enquiry-rather self
contradictory findings recorded-on one
hand conclusive and adequate evidence-on
other in departmental enquiry no person
would come to give evidence-order not
refer or rely upon any such material to
justify impugned order-quashed.
Held: Para-15 & 16

## Text

1 All] Afjal Khan Vs. State of U.P. & Ors.
487
23. Accordingly, and in view of the
above, all these writ petitions stand
allowed.
24. All the impugned orders dated
05/10/2007, 20/12/2008 and 08/4/2008,
23/8/2007, and 27/12/2007, made against
the petitioners shall stand quashed. The
petitioners shall be entitled to the refund
of sums recovered from them pursuant to
the aforesaid orders.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Writ-A No. 62804 of 2009
Afjal Khan
 ...Petitioner
Versus
State of U.P. & Ors.
.
..Respondents
Counsel for the Petitioner:
Sri Anil Kumar Pathak
Counsel for the Respondents:
C.S.C.
U.P. Police Officers of Subordinate Rank
(Punishment & Appeal) Rules 1991-Rule
8(2)(b)-dismissal by evoking power under
rule-without recording satisfaction about
impractically to hold enquiry-rather self
contradictory findings recorded-on one
hand conclusive and adequate evidence-on
other in departmental enquiry no person
would come to give evidence-order not
refer or rely upon any such material to
justify impugned order-quashed.
Held: Para-15 & 16
15. More importantly, it must be borne
in
mind
that
when
powers
under
provisions such as those contained in
Clause (b) of Rule 8(2) are exercised,
there must exists material before the
authority which enables him to form an
opinion
that
it
is
not
reasonably
practicable to hold the departmental
inquiry. No such material appears to
have been in existence at the time when
the impugned order was passed. At least,
the order does not refer to or rely upon
any such material. Nor was any such
material laid before this Court to justify
the passing of the order impugned.
16. In the opinion of the Court, the
circumstances and the nature of the
persons who were likely to be involved in
bringing home the charge against the
petitioner were clearly present and there
was no material on the basis of which a
reasonable person could have come to a
conclusion that it was not reasonably
practicable to hold a regular inquiry
against the petitioner.
Case Law discussed:
2014 (13) SCC 244; SCC p. 369, para 5.
(Delivered by Hon'ble Yashwant Varma, J.)
1.
The challenge in the present writ
petition is to an order dated 9.2.2009
dismissing the petitioner, who was a
Constable in the Armed Police, from
service. The order itself has been passed in
exercise of powers conferred by Rule
8(2)(b) of the U.P. Police Officers of
Subordinate
Rank
(Punishment
And
Appeal) Rules, 1991 (hereinafter referred to
as the "Rules, 1991"). The provision
aforementioned confers discretion upon the
Authority to dispense with the inquiry
contemplated and liable to be conducted
before dismissing/removing a person or
inflicting upon him the punishment of
reduction in rank. A reading of the aforesaid
provision shows that the said power is
available to be exercised if the Authority is
satisfied that for reasons recorded in
writing, it is not practicable to hold such an
inquiry. The provision in such sense is akin
488
 INDIAN LAW REPORTS ALLAHABAD SERIES
to Article 311 (2) of the Constitution of
India.
2. A reading of the impugned order
establishes that the respondent No. 2 has
chosen to exercise the said power on the
ground
that
in
the
departmental
proceedings, no person will come forward
to give evidence. He further records that
the continuance of the petitioner in
service would have a deleterious effect on
other employees of the Department.
3. A reading of the impugned order
shows that on 5.2.2009, information with
regard to the conduct of the petitioner was
received at about 4:25 in the evening and
when police authorities arrived on the
scene, it is alleged, that the petitioner was
found in an intoxicated state and that his
rifle was placed against the wall. Finding
the petitioner in such a state, the police
authorities, who had arrived at the scene,
took into their custody the weapon and
ammunition on the person of the
petitioner whereafter, he was taken for a
medical examination to Lala Lajpat Rai
Hospital, Kanpur. The impugned order
further records that upon a medical
examination
being
conducted,
the
authorities submitted a report which
corroborated the fact of the Petitioner
being under the influence of alcohol and
in a state of inebriation during duty hours.
The impugned order then proceeds to
record various findings on the past
conduct of the petitioner and concludes
that the conduct of the petitioner was
clearly unbecoming of a member of a
disciplined force and that his continuance
in service would clearly not be in the
general interest of discipline in the
Department and that the conduct of the
petitioner clearly amounted to shaking the
confidence which the members of the
general public were entitled to expect
from a member of a disciplined force.
4. It is in the aforesaid backdrop that
ultimately the respondent No. 2 proceeds
to record that no person would come
forward to give evidence against the
petitioner and in the absence of evidence
being submitted against him he would get
away scot free. The respondent No. 2
thereafter
proceeds
to
impose
the
punishment of dismissal upon him by
exercise of powers under Rule 8(2)(b) of
the Rules, 1991.
5. Learned counsel appearing for the
Petitioner
has
submitted
that
the
impugned
order
is
clearly
illegal
inasmuch as there was no material before
the Respondent Authority which justified
the formation of opinion that it was not
"reasonably practicable" to hold the
enquiry against the Petitioner. He would
submit that the circumstances did not
warrant
the
invocation
of
powers
conferred by Rule 8 (2) (b) of the Rules,
1991. He has further submitted that the
respondent has committed a manifest
illegality inasmuch as on the one hand he
records that there was more than ample
evidence against the Petitioner and on the
other that no one would come forward to
depose against him.
6. Learned counsel appearing for the
contesting respondents and opposing the
writ petition has submitted that the
petitioner's work and conduct was never
satisfactory and that earlier too he had
been suspended from duty in 1994 and
that he was also imposed penalty in the
year 1997. Referring to the material
gathered in the course of inquiry into the
above incident, the learned Standing
Counsel further pointed out that on the
1 All] Afjal Khan Vs. State of U.P. & Ors.
489
date of occurrence of the incident in
question, the petitioner was found to be
present in the Branch premises in a
drunken state and is alleged to have
misbehaved with the customers. Upon
receiving such information, the police of
P.S. Najirabad reached the bank premises
and took him as also his rifle and
ammunition
into
their
custody.
He
submitted that the medical examination
corroborated the fact that the Petitioner
was intoxicated at the relevant time and
the respondent was therefore justified in
terminating the services of the Petitioner.
He submitted that the invocation of
powers under Rule 8(2)(b) of the Rules,
1991 was based upon the subjective
satisfaction of the respondent and the
same did not commend any interference
by this Court under Article 226 of the
Constitution of India.
7. Before proceeding further it
would be apposite to notice the language
of Rule 8 upon which the resolution of the
instant controversy would pivot:-
"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."
8. A bare reading of the aforesaid
provision makes it apparent that the
holding of an inquiry and initiation of
disciplinary proceedings against a police
officer
who
is
liable
to
be
dismissed/removed from service, reduced
in rank is the normal rule. Rule 8(2)(b) is
in the nature of an exception and resorted
thereto is to be had where the authority is
satisfied that it would not be "reasonably
practicable" to hold an inquiry. The
satisfaction must be born out from the
record in light of the fact that the said
provision
itself
mandates
that
the
authority would record reasons in support
of his conclusion that it is not reasonably
practicable to hold such an inquiry.
9. In the opinion of the Court, no
doubt the subjective satisfaction recorded
by the Disciplinary Authority exercising
power under Rule 8 (2)(b) is entitled to
weight and is not be lightly interfered
with. This because he is the man on the
spot and has access to the material on the
basis of which the opinion is formed.
Here, however, a caveat needs to be
inserted.
10. Firstly, when such an order is
questioned in Court, the validity of the
order cannot be upheld on the mere ipse
dixit of the Disciplinary Authority. In
490
 INDIAN LAW REPORTS ALLAHABAD SERIES
other words the satisfaction arrived at by
the Disciplinary Authority cannot be
arbitrary but must be based on objectivity.
Secondly, the Court must be apprised of
the material or the objective facts which
compelled him to form the opinion that it
was not "reasonably practicable" to hold
the enquiry.
11. Considering a case which
involved interpretation of the second
proviso to Article 311 (2) of the
Constitution of India (a provision in pari
materia to Rule 8[2][b]) the Supreme
Court of India in Risal Singh Vs. State of
Haryana & ors. 2014 (13) SCC 244
reiterated the dictum laid down by the
Apex Court in Union of India Vs.
Tulsiram Patel [1985 (3) SCC 398] and
Jaswant Singh Vs. State of Punjab [1991
(1) SCC 362] in the following terms:-
"6. We have already reproduced the
order passed by the competent authority.
On a bare perusal of the same, it is clear
as day that it is bereft of reason. Nonascribing of reason while passing an
order dispensing with enquiry, which
otherwise is a must, definitely invalidates
such an action. In this context, reference
to the authority in Union of India v.
Tulsiram Patel2 is apposite. In the said
case the Constitution Bench, while
dealing with the exercise of power under
Article 311(2)(b), has ruled thus: (SCC p.
503, para 130)
"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."
12. In Jaswant Singh v. State of
Punjab the Court, while dealing with the
exercise of power as conferred by way of
exception under Article 311(2)(b) of the
Constitution, opined as follows: (SCC p.
369, para 5)
"5. ... 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 SCR p. 270
of Tulsiram case: (SCC p. 504, para 130)
A disciplinary authority is not
expected to dispense with a disciplinary
1 All] Afjal Khan Vs. State of U.P. & Ors.
491
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 decision to dispense with the
departmental enquiry cannot, therefore,
be rested solely on the ipse dixit of the
authority
concerned.
When
the
satisfaction of the authority concerned 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
officer concerned."
8. After so stating, the two-Judge
Bench quashed the order of dismissal and
directed the appellant to be reinstated in
service forthwith with the monetary
benefits. Be it noted, it was also observed
therein that it would be open to the
employer, if so advised, notwithstanding
the lapse of time, to proceed with the
disciplinary proceedings.
9. Recently, in Reena Rani v. State of
Haryana, after referring to the various
authorities in the field, the Court ruled
that 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
in
accordance with law.
10. 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, 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."
13. It is in the above background
that the order impugned here is liable to
be judged. A perusal of the order assailed
in this writ petition shows that the
disciplinary authority has taken a selfcontradictory stand. On the one hand, he
records that there is conclusive and
adequate evidence against the petitioner,
and in the same breath, he proceeds to
hold that in the departmental inquiry no
person would come forward to give
evidence against the petitioner.
14. It is not borne out from the
record as to and on what material, this
apprehension was based. Admittedly, the
petitioner is alleged to have been
apprehended at the branch of the Bank by
the police authorities in a state of
intoxication. Even it were assumed, for
the sake of argument, that the members of
the police force who apprehended the
petitioner would not come forward, the
bank officers and employees, who were
witnesses to the incident were always
there. The order of the Disciplinary
Authority does not even whisper that an
attempt
was
made
to
muster
the
statements of the members of the police
party who had apprehended the petitioner
at the bank premises and that they had
refused. More fundamentally it was
492
 INDIAN LAW REPORTS ALLAHABAD SERIES
admitted that the petitioner on being
apprehended at the bank premises was
taken to a hospital, where he underwent a
medical examination. The result of the
said medical examination proved that the
petitioner was in a state of intoxication at
the relevant time. The impugned order
nowhere records as to why it was not
practicable
to
either
examine
the
attending doctors and other persons
involved in the medical examination of
the petitioner. The impugned order also
does not record that it was impracticable
to have the Medical Examination report
proved.
15. More importantly, it must be
borne in mind that when powers under
provisions such as those contained in
Clause (b) of Rule 8(2) are exercised,
there must exists material before the
authority which enables him to form an
opinion
that
it
is
not
reasonably
practicable to hold the departmental
inquiry. No such material appears to have
been in existence at the time when the
impugned order was passed. At least, the
order does not refer to or rely upon any
such material. Nor was any such material
laid before this Court to justify the
passing of the order impugned.
16. In the opinion of the Court, the
circumstances and the nature of the
persons who were likely to be involved in
bringing home the charge against the
petitioner were clearly present and there
was no material on the basis of which a
reasonable person could have come to a
conclusion that it was not reasonably
practicable to hold a regular inquiry
against the petitioner.
17. Accordingly and in view of the
above, this Court has no option but to
record its conclusion that the impugned
order cannot be sustained. In view of the
above conclusions the present writ
petition
deserves
to
be
and
is
consequently allowed.
18. The order dated 9.2.2009 is
hereby quashed. However, in the facts and
circumstances of the case, it is left open to
the respondent to conduct a regular
departmental inquiry against the petitioner
in respect of the incident in question in
accordance with the rules applicable.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2015
BEFORE
THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
Writ-A No. 67791 of 2014
Shiv Sewak Prasad Mishra
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Vijay Gautam
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Denial of
gratuity
and
pension-on
ground
of
pendency of criminal case-admittedly no
pecuniary loss caused to department
based on allegations of criminal caseretirement benefit cannot be withheld.
Held: Para-8
It is also not the case of respondents
that in the criminal case, there is any
allegation of loss to the Government and
there is recovery to be made from the
petitioner, which is the only exception
recognized by this Court in the above
mentioned
authorities
where
final