# Court in Ayodhya Rai & others v. State

- **Citation:** (2011) 3 ILRA 1126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-09
- **Case number:** Civil Misc. Writ Petition No. 57580 of 2007
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-ayodhya-rai-others-v-state-42054
- **Pages:** 5

## Headnote

(Punishment and Appeal) Rules 1999-Rule
8 (2) (b)-dismissal from service-dispensing
with formal enquiry-no reasons recorded
of satisfaction for not practicable to held
enquiry-order not sustainable-direction for
reinstatement
with
all
consequential
benefits given.

Held: Para 17

A bare perusal of the impugned order goes
to show that no reason has been recorded
by the authority for invoking the power
conferred by Rule 8 (2) (b) of 1991 Rules
and
to
dispense
with
the
regular
departmental enquiry. Even in the counter
affidavit filed on behalf of the respondents,
no such material has been brought on
record on the basis of which, it could be
said that the authority was satisfied that it
was not reasonably practicable to hold a
regular departmental enquiry.
Case law discussed:
AIR 1985 SC 1416; (1991) 1 SCC 362; (2005) 11
SCC 525; Special Appeal No. 1122 of 2001, State
of U.P. And others Vs. Chandrika Prasad; Special
3 All Santosh Singh V. State of U.P. and another
1127
Appeal No. (647) of 2009, State of U.P. & Ors.
Vs. Santosh Kumar Gupta

## Text

1126 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
employee is not responsible for such
delay. Therefore, I am clearly of the
opinion that a suspension, if prolonged
unreasonably without holding any enquiry
or by prolonging the enquiry itself, is
penal in nature and cannot be sustained.

13. The view I have taken is
supported from another Judgment of this
Court in Ayodhya Rai & others Vs. State
of U.P. & others 2006 (3) ESC 1755."

11. In view of above discussion, writ
petition is allowed. Impugned order dated
27.8.2008 (Annexure 5 to the writ
petition) passed by respondent no. 3 is
hereby quashed.

12. It is, however, made clear that
this
order
shall
not
preclude
the
respondents
from
completing
departmental enquiry, if any, against the
petitioner.

13. Petitioner shall also be entitled
to cost which I quantify to Rs. 20,000/-
against respondent no. 3 which, at the first
instance, shall be paid by the respondent
no. 1 but it would have liberty to recover
the said amount from the official
concerned who is/was responsible for
passing order impugned in this writ
petition at the relevant time; after making
such enquiry as permissible in law.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2011

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 57580 of 2007

Santosh Singh

 ...Petitioner
Versus
State of U.P. and another

 ...Respondents

Counsel for the Petitioner:
Sri Atul Kumar
Sri Vijay Gautam
Sri R.S. Yadav
Sri Ajeet Kumar Yadav

Counsel for the Respondents:
C.S.C.

U.P. Police officers of subordinates Ranks
(Punishment and Appeal) Rules 1999-Rule
8 (2) (b)-dismissal from service-dispensing
with formal enquiry-no reasons recorded
of satisfaction for not practicable to held
enquiry-order not sustainable-direction for
reinstatement
with
all
consequential
benefits given.

Held: Para 17

A bare perusal of the impugned order goes
to show that no reason has been recorded
by the authority for invoking the power
conferred by Rule 8 (2) (b) of 1991 Rules
and
to
dispense
with
the
regular
departmental enquiry. Even in the counter
affidavit filed on behalf of the respondents,
no such material has been brought on
record on the basis of which, it could be
said that the authority was satisfied that it
was not reasonably practicable to hold a
regular departmental enquiry.
Case law discussed:
AIR 1985 SC 1416; (1991) 1 SCC 362; (2005) 11
SCC 525; Special Appeal No. 1122 of 2001, State
of U.P. And others Vs. Chandrika Prasad; Special
3 All Santosh Singh V. State of U.P. and another
1127
Appeal No. (647) of 2009, State of U.P. & Ors.
Vs. Santosh Kumar Gupta

(Delivered by Hon'ble Krishna Murari, J.)

1. Heard Sri Vijay Gautam, learned
counsel for the petitioner and learned
Standing Counsel for the State-respondents.

2. By means of this petition filed
under Article 226 of the Constitution of
India, the petitioner has challenged the order
dated
13.09.2007
passed
by
the
Superintendent of Police, Ballia dismissing
him from service in exercise of powers
conferred by Rule 8 (2) (b) of the U. P.
Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991
(hereinafter referred to as 1991 Rules)
without holding a regular departmental
enquiry on the allegation that has obtained
appointment by making forgery in his date
of birth.

3. Facts, in short, giving rise to the
dispute are as under.

4. Petitioner was selected and
appointment on the post of Constable in
Police Department on 26.6.2005. At the
time of appointment, he submitted his High
School Certificate issued by the U. P. Board
of High School and Intermediate which
recorded his date of birth as 01.06.1986.

5. The Director General of Police, U.
P., Lucknow vide confidential letter dated
26.09.2007 issued directions for reviewing
the entire selection made in the years 2004,
2005
and
2006
on
some
alleged
irregularities being detected in holding the
said selection. In compliance of the
aforesaid direction entire selection with
respect to the recruits appointed in the said
years and physical verification, educational
qualification, date of birth, health certificate
and caste certificate etc. were re-examined
and reverified. On reverification from the
Regional Office, Varanasi of U. P. Board of
High School and Intermediate it was
revealed that actual date of birth of
petitioner was 10.06.1087. This alleged act
of the petitioner was taken as furnishing a
forged certificate at the time of recruitment.
The Superintendent of Police found that in
such a situation, it was not in public interest
to allow the petitioner to continue in
service. He further observed in the order
that the petitioner had filled-in the form in
his own writing and has also undertaken
that any information given in the application
form is incorrect then his selection may be
cancelled and whatever legal action can be
taken would be taken for which he has no
objection. An affidavit was also filed by
him to the effect that if any information was
found incorrect after his selection, the same
may be cancelled.

6. The Superintendent of Police in his
wisdom thought that it was not reasonably
practicable to hold the enquiry and,
therefore, invoking the provisions of Rule 8
(2) (b) of the 1991 Rules dismissed the
petitioner from service without giving him
any opportunity of hearing and without
holding any enquiry.

7. It is submitted by the learned
counsel for the petitioner that the correct
date of birth of the petitioner is 01.01.1986
and was recorded as such in the record of
Dev Saran Purva Madhyamik Vidhyalaya,
Barahara
(Turna),
District
Ghazipur.
Reference has been made to Annexure SA
'1', the transfer certificate issued by the
institution which records his date of birth as
01.01.1986. However, in the High School
Certificate his date of birth was wrongly
recorded as 10.06.1987 and when the fact
1128 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
came to the knowledge of the petitioner in
the year 2004 he applied for its correction
before
the
Additional
Secretary,
Madhyamik Shiksha Parishad, U. P. and
necessary corrections were made in the date
of birth vide order dated 14.06.2004.
Reference by the learned counsel for the
petitioner has also been made to the
corrected copy of the mark-sheet and
certificate issued by the U. P. Board of High
School and Intermediate on 09.07.2004
filed as Annexure SA '2' which records his
date of birth as 01.01.1986.

8. In the counter affidavit, it has only
been stated that on enquiry from the U. P.
Board of High School and Intermediate it
was verified that the date of birth of the
petitioner was 10th June, 1987 and thus, the
appointment was obtained by furnishing a
forged document and the same has rightly
been cancelled.

9. It is to be taken note of that specific
averments made by the petitioner in his
pleadings that after noticing that date of
birth was wrongly mentioned in the High
School Certificate, on an application it was
corrected vide order dated 14.06.2004 have
not been denied by the respondents and
thus, the same are unrebutted. In case, the
petitioner would have been afforded an
opportunity, the fact would have come on
record.

10. The question which arises for
consideration is whether in such a situation
the provisions of Rule 8 (2) (b) of 1991
Rules would have been invoked by the
authorities dismissing the petitioner from
service dispensing the regular departmental
enquiry and whether the impugned order of
dismissal fulfils the conditions precedent
prescribed under the 1991 Rules for
exercise of the said power.

Rule 8 (2) (b) of 1991 Rules reads as
under :

"8. (2) (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."

The language of the aforesaid Rules is
almost similar to 2nd proviso to Article 311
of the Constitution of India. Interpreting the
provision of Article 311 of the Constitution,
Hon'ble Apex Court in the case of Union of
India & Anr. Vs. Tulsiram Patel, AIR
1985 SC 1416 has observed as under :

"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......

".......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 reasonably man taking a
reasonably view of the prevailing situation."

11. It has further been held that 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.
3 All Santosh Singh V. State of U.P. and another
1129

"The second condition necessary for
the valid application of clause (b) of the
second proviso is that the disciplinary
authority should record in writing its reason
for its satisfaction that it was not reasonably
practicable to hold the inquiry contemplated
by Article 311 (2). This is a constitutional
obligation and if such reason is not recorded
in writing, the order dispensing with the
inquiry and the order of penalty following
thereupon would both be void and
unconstitutional.

It is obvious that the recording in
writing of the reason for dispensing with the
inquiry must proceed the order imposting
the penalty."

"If the court finds that the reasons are
irrelevant, then the recording of its
satisfaction by the disciplinary authority
would be an abuse of power conferred upon
it by clause (b) and would take the case out
of the purview of that clause and the
impugned order of penalty would stand
invalidated."

12. In Jaswant Singh V. State of
Punjab & others, (1991) 1 SCC 362, it has
been held 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.
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
enquiry lightly or arbitrarily or out of
ulterior motives or merely in order to avoid
the holding of an enquiry 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 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."

13. In Sudesh Kumar Vs. State of
Haryana & Ors., (2005) 11 SCC 525, the
Hon'ble Apex Court has observed as under :

"It is now establish principle of law
that an enquiry under Article 311 (2) is a
rule and dispensing with the enquiry under
Article 311 (2) (b) must satisfy for reasons
to be recorded that it is not reasonably
practicable to hold an enquiry. A reading of
the termination order by invoking Article
311 (2) (b), as extracted above, would
clearly show that no reasons whatsoever
have been assigned as to why it is not
reasonably practicable to hold an enquiry.
The reasons disclosed in the termination
order are that the complainant refused to
name the accused out of fear of harassment;
the complainant, being a foreign national, is
likely to leave the country and once he left
the country, it may not be reasonably
practicable to bring him to the enquiry. This
is no ground for dispensing with the
enquiry. On the other hand, it is not
disputed that, by order dated 23.12.1999,
the visa of the complainant was extended up
1130 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
to 22.12.2000. Therefore, there was no
difficulty in securing the presence of Mr.
Kenichi Tanaka in the enquiry.

A reasonable opportunity of hearing in
Article 311 (2) of the Constitution would
include an opportunity to defent himself and
establish his innocence by cross-examining
the prosecution witnesses produced against
him and by examining the defence
witnesses in his favour, if any,. This he can
do only if enquiry is held where he has been
informed of the charges leveled against him.
In the instant case, the mandate of Article
311 (2) of the Constitution has been
violated depriving reasonable opportunity
of being heard to the appellant."

14. Same view has been taken by this
Court in Special Appeal No. 1122 of 2001,
State of U. P. and others Vs. Chandrika
Prasad, decided on 19th October, 2005 as
well as in Special Appeal No. (647) of
2009, State of U. P. & Ors. Vs. Santosh
Kumar Gupta.

15. The law, thus, stands settled that it
is only on a subjective satisfaction based on
material on record, the authority after
recording reason why it is not practicable to
hold the disciplinary enquiry, can invoke
the powers conferred by Rule 8 (2) (b) of
the 1991 Rules and dispense with the
regular departmental enquiry.

16. Learned Standing Counsel could
not dispute the settled proposition of law by
the aforesaid pronouncements.

17. A bare perusal of the impugned
order goes to show that no reason has been
recorded by the authority for invoking the
power conferred by Rule 8 (2) (b) of 1991
Rules and to dispense with the regular
departmental enquiry. Even in the counter
affidavit filed on behalf of the respondents,
no such material has been brought on record
on the basis of which, it could be said that
the authority was satisfied that it was not
reasonably practicable to hold a regular
departmental enquiry.

18. The charges leveled in the
impugned order may form the basis for
dispensing the services of the petitioner but
only in case the same are established in a
regular departmental enquiry held in
accordance with the procedure prescribed
under the Rules. A mere charge against the
petitioner that he obtained appointment on
the basis of forged and fabricated date of
birth itself cannot constitute a reason for
dispensing with the regular departmental
enquiry.

19. In view of the aforesaid facts and
the settled legal position, I am of the
considered view that order of dismissal
passed against the petitioner does not fulfill
the requirement of Rule 8 (2) (b) of 1991
Rules and, therefore, cannot be sustained
and is hereby quashed.

20. Writ petition stands allowed. The
petitioner shall be reinstated back in service
with all consequential benefits.

21. However, in the facts and
circumstances, there shall be no order as to
costs.
---------