# Barkhu Ram v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-14
- **Case number:** Civil Misc. Writ Petition No. 4831 of 2009
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/barkhu-ram-v-state-of-u-p-and-others-41412
- **Pages:** 4

## Headnote

(Punishment & Appeal) Rules, 1991-Rule
8 (a)(b)-Dismissal Order-dispensing with
holding
enquiry-without
recording
reason of satisfaction-do not satisfy the
test to exercise such power-order not
sustainable.

Held: Para 10

The mere mention of fact that the
petitioner would prove to be danger to
fellow policemen and public life and
property without there being reference
of any material in the order for recording
such
satisfaction
and
there
being
nothing in the counter affidavit to
demonstrate that the petitioner had
become dangerous or caused damage to
the property or indulged into any offence
against any person or the State, the
satisfaction
recorded
by
the
Superintendent of Police, Azamgarh for
invoking Rule 8(2)(b) of Rules of 1991
and dispensing with the disciplinary
inquiry do not satisfy the test of exercise
of such power. The order, therefore,
suffers from gross error of law and
deserves to be set aside.
Case law discussed:
AIR 1985 SC 1416, 2006(1) ESC 374(All) (DB),
2008(3) ADJ 689 (DB), AIR 1991(1) SC 385.

## Text

3 All] Barkhu Ram V. State of U.P. and others
1151
9. In Kumari Mamta Jauhari Vs.
State of U.P. 1999 (1) UPLBEC 54, a
Full Bench of the Court in para 38 of the
judgment held:

"A Government servant appointed to
hold a post, temporary or substantive, on
temporary basis, acquires no right to or
lien upon the post."

10. It is thus evident that Rule 1 (3)
makes 1975 Rules applicable in the case
of the petitioners which is also covered by
the terms "temporary service" as defined
in Rule 2 of 1975 Rules. I, therefore, find
no reason to interfere with the order
impugned in the writ petition, which is an
order of termination simplicitor showing
ex facie no reason to treat the same to be
penal and hence there was no requirement
of any opportunity or show cause notice
before passing the same. I, therefore, do
not find any merit in this writ petition.
Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2009

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 4831 of 2009

Barkhu Ram

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
S.C.

U.P. Police offers of Subordinate Ranks
(Punishment & Appeal) Rules, 1991-Rule
8 (a)(b)-Dismissal Order-dispensing with
holding
enquiry-without
recording
reason of satisfaction-do not satisfy the
test to exercise such power-order not
sustainable.

Held: Para 10

The mere mention of fact that the
petitioner would prove to be danger to
fellow policemen and public life and
property without there being reference
of any material in the order for recording
such
satisfaction
and
there
being
nothing in the counter affidavit to
demonstrate that the petitioner had
become dangerous or caused damage to
the property or indulged into any offence
against any person or the State, the
satisfaction
recorded
by
the
Superintendent of Police, Azamgarh for
invoking Rule 8(2)(b) of Rules of 1991
and dispensing with the disciplinary
inquiry do not satisfy the test of exercise
of such power. The order, therefore,
suffers from gross error of law and
deserves to be set aside.
Case law discussed:
AIR 1985 SC 1416, 2006(1) ESC 374(All) (DB),
2008(3) ADJ 689 (DB), AIR 1991(1) SC 385.
(Delivered by Hon'ble 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
1152 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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.

3. 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.

4.

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
3 All] Barkhu Ram V. State of U.P. and others
1153
(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.

5. The aforesaid Rule (8) is pari
materia with Article 311(1) & (2) of the
Constitution of India which confers
constitutional protection upon a person
who is a member of civil service of the
Union or the State.

The normal rule is that no punitive
action
entailing
consequences
of
dismissal, removal or reduction of rank
would be taken without holding a
disciplinary enquiry against an incumbent
unless and until he has been informed of
the charges and provided a reasonable
opportunity of being heard in respect of
those charges. However, the second
proviso to the Article 311(2) carves
exception in respect of certain cases
where holding of departmental inquiry
would not be possible may be either due
to not being reasonably practicable or
holding any disciplinary inquiry is not in
the interest of the security of the State.

6. The Hon'ble Apex Court in the
case of Union of India vs. Tulsiram
Patel,
AIR
1985
SC
1416
while
considering the provision of Article
311(2) of the Constitution of India has
held that two conditions must be satisfied
to sustain any action taken thereunder.
These are (1) there must exist a situation
which renders holding of an inquiry not
reasonably
practicable;
(2)
the
disciplinary authority must record in
writing the reason in support of its
satisfaction. The Hon'ble Apex Court also
held that although clause (3) of Article
311 makes the decision of the disciplinary
authority final but the same can be tested
in a court of law and interfered with if the
action is found to be arbitrary, malafide,
motivated by extraneous consideration or
merely ruse to dispense with the regular
departmental inquiry.

7. The exception carved out by
proviso
to
Article
311(2)
of
the
Constitution are embodied in Rule 8(2) of
the Rules of 1991 and both are pari
materia. Various Division Benches of this
Court
have
followed
the
aforesaid
principle of law laid down by the Hon'ble
Apex Court while considering the validity
of the orders passed in exercise of powers
conferred by Rule 8(2) of Rules of 1991.
Reference may be made to the case of
State of U.P. & others vs. Chandrika
Prasad, 2006(1) ESC 374(All) (DB),
Pushpendra Singh (CP 2187) and
another vs. State of U.P. & others,
2008(3) ADJ 689 (DB).

8. In the case in hand, after referring
various acts and omissions on the part of
the petitioner only reason assigned for
dispensing with the inquiry is that in case
the inquiry is held there may be danger to
fellow policemen and public life and
property.

9. The words 'reasons to be recorded
in writing that it is not reasonably
practicable to hold inquiry' implies that
there
must
be
some
material
for
satisfaction of the authority that it is not
reasonably practicable to hold the inquiry.
The decision to dispense with the
departmental
inquiry
not
based
on
1154 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
material and solely on the ipse dixit of the
concerned authority cannot be sustained.
The material on which the subjective
satisfaction of the authority is based
should either be reflected from the order
or be brought on record when such
satisfaction of the concerned authority is
questioned in a court of law. The Hon'ble
Apex Court in the case of Jaswant Singh
v. State of Punjab, AIR 1991(1) SC 385
has observed as under:

"It
was
incumbent
on
the
respondents to disclose to the court the
material in existence at the date of
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
authorities is satisfied from the material
placed before him that it is not reasonably
practicable to hold a departmental
inquiry".

10. The mere mention of fact that
the petitioner would prove to be danger to
fellow policemen and public life and
property without there being reference of
any material in the order for recording
such satisfaction and there being nothing
in the counter affidavit to demonstrate
that the petitioner had become dangerous
or caused damage to the property or
indulged into any offence against any
person or the State, the satisfaction
recorded by the Superintendent of Police,
Azamgarh for invoking Rule 8(2)(b) of
Rules of 1991 and dispensing with the
disciplinary inquiry do not satisfy the test
of exercise of such power. The order,
therefore, suffers from gross error of law
and deserves to be set aside.

11. The writ petition is allowed. The
order dated 20.8.2008 passed by the
Superintendent of Police, Azamgarh is set
aside.

12. However, liberty is given to the
respondent authorities, if they so desire, to
hold a departmental inquiry against the
petitioner in accordance with the law and
the procedure prescribed under the Rules
of 1991.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 5512 of 1992

Krishna Chand

...Petitioner
Versus
District Magistrate, Maharajganj and
others

 ...Respondent

Counsel for the Petitioner:
Sri J.P. Pandey

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Termination
order-passed
without
holding enquiry without notice in utter
violation of principle of Natural justiceinitial appointment itself made against
the provision of section 19 of Group "D"
Employees
Service
Rules,
1985-No
question of granting any indulgence once
the very basis of right goes-validity of
subsequent order can not be adjudgedas fraud vitiates every thing.

Held: Para 13

In my view once it is evident that the
appointment of petitioner was illegal and