# Constable 491 C.P. Gabbar Singh v. State of U.P. & Ors

- **Citation:** (2013) 2 ILRA 870
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-23
- **Case number:** Civil Misc. Writ Petition No. 35696 of 2008
- **Bench:** Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/constable-491-c-p-gabbar-singh-v-state-of-u-p-ors-42634
- **Pages:** 4

## Headnote

C.S.C.

U.P.
Police
Officers
of
Subordinate
Ranks(Punishment & Appeal) Rules 1991-
Rule 8(2)(b)-petitioner working as Police
Constable-placed
under
suspension
on
involvement in criminal case-even on fair
acquittal
by
appellate
Court-neither
disciplinary authority not appellate authority
taken into consideration thereof-based their
consideration
on
three
grounds-beyond
scope
of
statutory
provisions-power
exercised under Rule 8(2)(b)-contrary to
requirement-held-dismissal order set-a-side
with all consequential benefits.

Held: Para-14 & 15
14-After
considering
all
the
oral
and
documentary
evidences
petitioner
was
acquitted
which
will
be
termed
as
honourable
acquittal.
Surprisingly
the
appellate authority in its order dated
27.3.2008 did not consider the acquittal
order dated 20.7.2007 rather rejected the
plea taken by the petitioner on the ground
that there was report of Circle Officer,
Pilibhit
dated
22.1.2007
against
the
petitioner and charge sheet has been filed.
The said approach of the appellate authority
is illegal.

## Text

870 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
entire gamut of facts and applying the law
as laid down by the Apex Court and as
observed hereinabove after giving an
opportunity of hearing to the petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2013

BEFORE
THE HON'BLE SUNITA AGARWAL, J.

Civil Misc. Writ Petition No. 35696 of 2008

Constable No. 491 C.P. Gabbar Singh

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

Counsel for the Petitioner:
Sri P.K. Kashyap, Sri Anoop Mishra

Counsel for the Respondents:
C.S.C.

U.P.
Police
Officers
of
Subordinate
Ranks(Punishment & Appeal) Rules 1991-
Rule 8(2)(b)-petitioner working as Police
Constable-placed
under
suspension
on
involvement in criminal case-even on fair
acquittal
by
appellate
Court-neither
disciplinary authority not appellate authority
taken into consideration thereof-based their
consideration
on
three
grounds-beyond
scope
of
statutory
provisions-power
exercised under Rule 8(2)(b)-contrary to
requirement-held-dismissal order set-a-side
with all consequential benefits.

Held: Para-14 & 15
14-After
considering
all
the
oral
and
documentary
evidences
petitioner
was
acquitted
which
will
be
termed
as
honourable
acquittal.
Surprisingly
the
appellate authority in its order dated
27.3.2008 did not consider the acquittal
order dated 20.7.2007 rather rejected the
plea taken by the petitioner on the ground
that there was report of Circle Officer,
Pilibhit
dated
22.1.2007
against
the
petitioner and charge sheet has been filed.
The said approach of the appellate authority
is illegal.

15. Moreover in view of the above
discussion it is clear that power exercised
by the Superintendent of Police, Pilibhit
under Rule 8(2) (b) of the Rules is contrary
to the requirement as laid down in the said
Rules. The order of dismissal does not fulfil
the requirement of the aforesaid Rule and,
therefore,
cannot
be
sustained.
The
appellate order also cannot survive. Both
the orders dated 26.6.2007 and 27.3.2008
are hereby quashed.

Case Law discussed:
2006(8) ADJ 570; 2006(4) ESC 2303 (All.) ;2005
(2) ESC (All.)1229; 2006(1) ESC 374; (1991) 1
SCC 362

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Sri Anoop Mishra, learned
counsel for the petitioner and learned standing
counsel.

2. Challenge in the present writ
petition is the dismissal order dated
26.6.2007 and the appellate order dated
27.3.2008 dismissing the services of the
petitioner under the U.P. Police Officers
of Subordinate Ranks(Punishment and
Appeal) Rules, 1991(hereinafter referred
to as the "Rules, 1991").

3. The facts of the case in brief are
that petitioner while working as constable
in Pilibhit was dismissed by order dated
26.6.2007 passed by the Superintendent
of Police, Pilibhit invoking power under
Rule 8(2)(b) of the Rules. It was indicated
in the order of dismissal that case crime
no. 668 of 2006 under sections 364, 302,
201 I.P.C. has been registered by the
petitioner's son against him and three
other persons. Petitioner was arrested and
sent to district jail , Pilibhit. The charge
sheet no. 201/2006 dated 19.10.2006 was
2 All] Constable 491 C.P. Gabbar Singh Vs. State of U.P. & Ors.
871
filed in the court. On the basis of these
criminal charges initially petitioner was
suspended vide order dated 3.9.2006 and
later on after submission of charge sheet
and arrest he was dismissed by order
dated 26.6.2007. The charge against the
petitioner was that he murdered his own
daughter with the help of three other
persons.

4. Petitioner filed appeal dated
19.9.2007 against the dismissal order
dated 26.6.2007 before the Deputy
Inspector General of Police, which was
dismissed on 27.3.2008. In the meantime,
the trial court i.e. Upper Sessions Judge,
Court No.1, Pilibhit by judgement and
order dated 20.7.2007 acquitted the
petitioner on the ground that prosecution
had miserably failed to prove the charges
levelled against all the accused including
the petitioner. It has further been brought
on record that by communication dated
13.11.2007sent by the Special Secretary
to the District Magistrate, Pilibhit,it was
informed that State Government had
decided not to file Government Appeal
against the acquittal of the petitioner by
order dated 20.7.2007.The order passed
by the Sessions Court dated 20.7.2007 in
S.T. No. 564 of 2006 was brought before
the
appellate
authority.
However,
appellate authority did not consider the
same and dismissed the appeal.

5. Learned counsel for the petitioner
challenging the order contended that
invocation of power under Rule 8(2)(b) of
the Rules by the disciplinary authority is
unjustified in as much as no reasons have
been recorded for dispensing/holding
inquiry under Rule 8(2) (b) of the Rules.

6. Learned counsel for the petitioner
placed reliance on judgement of this court
in 2006(8) ADJ 570(Narendra Prasad
Rai Vs. State of U.P. and others);
2006(4) ESC, 2303 (All.) (Bhupat Singh
Yadav Vs. State of U.P. and others);
Ravindra Raghav Vs. State of U.P. and
others reported in 2005 (2) ESC (All.),
1229 and Division Bench judgement
reported in 2006 (1) ESC 374 (All.)
(State of U.P. and others Vs. Chandrika
Prasad).

7. Learned counsel for the petitioner
further submits that Division Bench of this
court while considering the scope of powers
under Rule 8(2) (b) of the Rules observed
that Rule 8 is Pari materia with Article
311(1) and (2) of the Constitution of India.
The normal rule is that no punitive action
entailing consequence of dismissal, removal
or reduction in rank would be taken without
holding a disciplinary enquiry in order to
deprive
a
person
of
the
aforesaid
Constitutional protection and in order to
bring the same within the ambit of exception
provided in the Constitution. Heavy burden
lies upon the State to show that the order has
been passed strictly within the four corners
of the Statute and all the relevant ingredients
have been taken into account.

8. Learned Standing Counsel on the
other hand defending the order passed by
the disciplinary authority submits that
petitioner was found involved in criminal
proceedings and was arrested, it was,
therefore, not reasonably practicable to
hold inquiry. In view thereof the order
dated 26.6.2007 invoking provision of
Rule 8(2) (b) of the Rules was rightly
passed. The reasons have been recorded
in
the
order
by
the
disciplinary
authorities, in view thereof order cannot
be said to be bad.

9. A perusal of the dismissal order
dated 26.6.2007 shows that disciplinary
872 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
authority has nowhere mentioned that
holding of disciplinary inquiry is not
reasonably practicable. On the other hand
it appears that order has been passed
treating the petitioner guilty of offence
alleged to have been committed by him.
The disciplinary authority has stated in
the order that on the basis of report of
Circle Officer, Pilibhit dated 19.10.2006,
the heinous act of the petitioner would
impair the image of entire police force.
The question mark is raised on the
integrity of entire police force, in case, the
petitioner is not penalised and there is
every
likelihood
of
occurrence
of
indiscipline amongst other members of
police force. It has further been recorded
that petitioner has been found guilty of
heinous and inhumane conduct and
person of such criminal mentality is not a
fit person to be retained in police force.
Police force is a disciplined force and
keeping the petitioner in the department
will also be against the public interest and
discipline of the force. While recording
all these findings Superintendent of
Police, Pilibhit in one paragraph of
dismissal order had stated that It is
empowered to remove the petitioner in
exercise of powers conferred under Rule
8(2) (b) of the Rules, if it is found not
practicable to hold disciplinary inquiry
against the
delinquent
and
in
the
concluding
part
of
the
order
Superintendent of Police,Pilibhit observed
that in exercise of power under Rule 8(2)
(b) of the Rules having found petitioner
guilty of charges and unsuitable for police
force, he is liable to be dismissed.

10. Before proceeding further in the
matter it would be appropriate to
reproduce the Rule 8(2) (b) of the Rules
which provides for dismissal and removal

"8(2)
(b)
Where
the
authority
empowered to dismiss or removal 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."

11. The words "some reasons 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 not to hold enquiry. The
subjective satisfaction of the authorities is
to be based on certain objective facts so as
to justify dispensation of the inquiry.

12. The reasons as indicated in the
order for not keeping the petitioner in
service any more, are (1) First ground was
that he was held guilty of the criminal
offence in which only charge sheet was
submitted at that stage that too on the
report of the Circle Officer, Pilibhit, (2)
Second ground was that in view of the act
which was described as heinous and
inhumane act of the petitioner, it would
not be appropriate to allow him to retain
in
service
as
it
would
inculcate
indiscipline amongst other police officer
and (3) third ground was that it would
affect discipline of police force and would
be against the public interest.

13. The reasons assigned by the
disciplinary authority for not holding
disciplinary
proceedings
against
the
petitioner in the order dated 26.6.2007
cannot be sustained for the reasons that
none of them would satisfy subjective
satisfaction which was required to be
recorded for dispensing with the inquiry.
Petitioner was already suspended from
service on 3.9.2006 and disciplinary
2 All] Tajammul Hussain Vs. State of U.P. & Ors.
873
authority treated him guilty of criminal
charges levelled against him of which trial
was undergone. This approach of the
disciplinary authority is against the
principles as laid down by the Apex Court
in case of Jaswant Singh Vs. State of
Punjab and others (1991) 1 SCC 362 and
therefore, order passed by the disciplinary
authority cannot be sustained.

14. Before concluding the matter it
may be relevant to state that criminal case
filed against the petitioner was decided by
the Sessions Judge by judgment and order
dated 20.7.2007,the petitioner and other
accused were honourably acquitted. As
the
petitioner
was
acquitted
after
consideration of prosecution evidences
and prosecution had miserably failed to
prove the charges levelled against him.
Even complaint, which was alleged to
have been made by his son, had clearly
stated that he had never lodged any
complaint. The sessions court in its
judgment and order dated 20.7.2007
recorded the finding that language of the
complaint clearly shows that it could not
have been written by son of the petitioner,
who was 17 years old at the relevant point
of time, it appears that it was written on
the dictation of some policeman. All other
prosecution
witnesses were
declared
hostile as they refused to accept the
prosecution case that recovery of dead
body and other materials were recovered
in their presence and hence no reliance on
the prosecution story of recovery can be
placed.
There
was
no
independent
witness. The case set up by the police that
petitioner had admitted the offence was
found not proved. The trial court recorded
finding that no disclosure statement was
recorded by the police and from their own
records, it is apparent that there were
various discrepancies in the case set up by
the prosecution. After considering all the
oral and documentary evidences petitioner
was acquitted which will be termed as
honourable acquittal. Surprisingly the
appellate authority in its order dated
27.3.2008 did not consider the acquittal
order dated 20.7.2007 rather rejected the
plea taken by the petitioner on the ground
that there was report of Circle Officer,
Pilibhit dated 22.1.2007 against the
petitioner and charge sheet has been filed.
The said approach of the appellate
authority is illegal.

15. Moreover in view of the above
discussion it is clear that power exercised
by the Superintendent of Police, Pilibhit
under Rule 8(2) (b) of the Rules is
contrary to the requirement as laid down
in the said Rules. The order of dismissal
does not fulfil the requirement of the
aforesaid Rule and, therefore, cannot be
sustained. The appellate order also cannot
survive. Both the orders dated 26.6.2007
and 27.3.2008 are hereby quashed.

16. As suspension order dated
3.9.2006 merged in the order of dismissal
order dated 26.6.2007, the dismissal order is
set aside. The petitioner shall be reinstated in
the service forthwith with all consequential
benefits. It is, however, open to the
respondent to hold disciplinary enquiry
against the petitioner in accordance with law.

17. The writ petition succeeds and is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 36788 of 2008