# Ex.Constable 539 C.P. Kanhaiya Lal v. State of U.P. and others

- **Citation:** (2005) 4 ILRA 1148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-09
- **Case number:** Civil Misc. Writ Petition No. 1107 of 2002
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ex-constable-539-c-p-kanhaiya-lal-v-state-of-u-p-and-others-40567
- **Pages:** 4

## Headnote

Rank (Punishment & Appeal) Rules
1991-Rule
8
(26)-
Punishment
by
dispensing with disciplinary-enquiry-on
the ground enquiry, impossibility-No
reason recorded why enquiring not
possible-repeated
punishment
for
unauthorised absence from duty-in 20
years of service life-absent for 576 daysenquiring can be easily made-so the
decision of dispersing with enquiry-heldarbitrary.
Held: Para 9

In the present case, I find that the
petitioner absented himself on several
occasions for which he was penalised.
The disciplinary authority found that in
20 years he was absent for 576 days and
that he was also involved in a criminal
case, and on this basis, the disciplinary
authority had passed the order removing
the petitioner from the service. The
impugned
order
indicates
that
the
authority had not given any reason for
dispensing
with
the
inquiry.
Consequently, the impugned order is the
violation of the provisions of Rule
8(2)(b) of the Rules of 1991. Further, the
4 All] Ex.Constable 539 C.P. Kanhaiya Lal V. State of U.P. and others
1149
charges so levelled against the petitioner
are such which can be easily enquired
through a departmental inquiry and it is
not a case where an oral inquiry cannot
be held. Consequently, in my opinion, the
decision of the disciplinary authority in
taking recourse to the provisions of
Section 2(8)(b) of the 1991 Rules was
wholly arbitrary.
Case law discussed:
AIR 1985 SC-1416
AIR 1986 SC-1416
AIR 1991 SC-1043
AIR 1991 SC-385
1981 ALR 317
1999 (3) ALR 812
2002 (47) ALJ 570
2005 ALJ 819

## Text

1148 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
years of age had become 87 years of age
when the matter was decided by the
Supreme Court hence he was not in a
position to do any business. This fact of
old age of the landlord was taken into
consideration
as
relevant
subsequent
event by the Supreme Court.

14. In the instant case landlord has
asserted that house in dispute which
contains two rooms, varandah and other
amenities can be let out for Rs. 1500/- to
Rs.2000/- per month. Tenant has asserted
that it can not be let out for more than
Rs.500/- per month. Taking an average of
these two figures, reasonable rent appears
to be Rs.800/- per month.

15. Accordingly, it is directed that
with effect from 1.1.1989 till 31.12.1995,
tenant petitioner shall pay the rent at the
rate of Rs.400/- per month. With effect
from 1.1.1996 till 31.12.2005, he shall
pay rent at the rate of Rs.600/- per month.
With effect from 1.1.2006 onward, rent
shall be paid at the rate of Rs.800/- per
month. Entire arrears of rent at the above
rates due till 31.12.2005 after adjusting
the rent already paid on the old rate shall
be cleared in 18 (eighteen) equal monthly
installments starting from 1.1.2006. If by
June 2007, entire arrears of rent as
aforesaid are not cleared then this writ
petition shall be treated to have been
dismissed and tenant petitioner shall be
evicted in proceedings under section 23 of
the Act after June 2007. This order is
being passed in the light of the judgment
of the aforesaid authority of Supreme
Court of A.K. Bhatt. In the said authority
also, it was directed in the last but one
sentence that if tenant committed default
he should be liable to ejectment.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 1107 of 2002

Ex. Constable 539 CP Kanhaiya Lal.

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

Counsel for the Petitioner:
Sri Sarvajeet Singh
Sri S.N. Pandey
Sri S.B. Singh

Counsel for the Respondents:
S.C.

U.P.Police Officers of the Subordinate
Rank (Punishment & Appeal) Rules
1991-Rule
8
(26)-
Punishment
by
dispensing with disciplinary-enquiry-on
the ground enquiry, impossibility-No
reason recorded why enquiring not
possible-repeated
punishment
for
unauthorised absence from duty-in 20
years of service life-absent for 576 daysenquiring can be easily made-so the
decision of dispersing with enquiry-heldarbitrary.
Held: Para 9

In the present case, I find that the
petitioner absented himself on several
occasions for which he was penalised.
The disciplinary authority found that in
20 years he was absent for 576 days and
that he was also involved in a criminal
case, and on this basis, the disciplinary
authority had passed the order removing
the petitioner from the service. The
impugned
order
indicates
that
the
authority had not given any reason for
dispensing
with
the
inquiry.
Consequently, the impugned order is the
violation of the provisions of Rule
8(2)(b) of the Rules of 1991. Further, the
4 All] Ex.Constable 539 C.P. Kanhaiya Lal V. State of U.P. and others
1149
charges so levelled against the petitioner
are such which can be easily enquired
through a departmental inquiry and it is
not a case where an oral inquiry cannot
be held. Consequently, in my opinion, the
decision of the disciplinary authority in
taking recourse to the provisions of
Section 2(8)(b) of the 1991 Rules was
wholly arbitrary.
Case law discussed:
AIR 1985 SC-1416
AIR 1986 SC-1416
AIR 1991 SC-1043
AIR 1991 SC-385
1981 ALR 317
1999 (3) ALR 812
2002 (47) ALJ 570
2005 ALJ 819

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner was working as a
Constable. He was removed from the
service by an order dated 9.7.2001 under
Sub Rule (2) of Rule 8 of the U.P.
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991.
The petitioner preferred an appeal which
was also rejected by an order dated
9.11.2001. Consequently, the present writ
petition has been filed. The learned
counsel for the petitioner submitted that
under sub-clause (b) of clause (2) of Rule
8, the services of the petitioner could be
dispensed with provided the disciplinary
authority was satisfied that it was not
reasonably practicable to hold an inquiry
and that the satisfaction of the authority
was recorded in writing. The learned
counsel for the petitioner submitted that
the
disciplinary
authority
had
not
recorded any reasons in the impugned
order while dispensing with the inquiry
and, since no reasons had been recorded,
the impugned order could not be sustained
and was liable to be quashed.

2. Admittedly, the services of the
petitioner had been terminated under Rule
8(2)(b) of The Uttar Pradesh Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991.
Rule 8(2)(b) 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."

3. The language of the aforesaid rule
is similar to the second proviso to Article
311(2) of the Constitution of India. In
Union of India vs. Tulsiram Patel,
A.I.R. 1985 SC 1416, the Supreme Court
held (para 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....

"....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.

".....The reasonable practicability of
holing an inquiry is a matter of
assessment to be made by the disciplinary
authority."
1150 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
"......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".

4. In Tulsiram Patel's case (AIR
1986 SC 1416) (supra) the Supreme Court
further held- (paras 133 and 134)

"The second condition necessary of
the valid application of clause (b) of the
second proviso is that the disciplinary
authority should record in writing its
reasons 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 precede the order
imposing the penalty."

The Supreme Court further went on to say
that-

"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."

5. In Chief Security Officer v.
Singasan Rabi Das, AIR 1991 SC 1043,
the Supreme Court held that there was a
total absence of sufficient material or
good ground for dispensing with the
inquiry and accordingly held that the
order of termination dispensing with the
inquiry was illegal.

In Jaswant Singh vs. State of
Punjab, (1991) 1 SCC 362: (AIR 1991
SC 385), the Supreme Court held (para
5)-

"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
inquiry".

The Supreme Court further held-

"The decision to dispense with the
departmental inquiry 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."

6. In Maksudan Pathak and others
vs. Security Officer, Eastern Railway
and others, 1981 A.L.R. 317, a Full
Bench of this Court held:
4 All] Ganga Ram Singh V. State of U.P. and others
1151
"We are, therefore, of the opinion
that the words 'reasonably practicable'
would apply in the case where the
authority cannot, in a reasonable manner,
put into practice the clauses in relation to
an enquiry, namely, because of certain
facts and circumstances peculiar to each
case, the authority cannot, in a reasonable
manner, hold an enquiry. There may be a
case where the charged person may have
absconded, or a case where in spite of the
best efforts, the disciplinary authority may
not have been above to serve the notice of
the enquiry on the person charged or it
may be a case where it is not possible for
the person against whom the charge had
been made to come and join, at the
enquiry or there may be similar other
valid reasons depending on the facts and
circumstances of each case."

7. Similar view has been held by this
Court in Tej Bahadur Singh vs. The
Senior
Superintendent
of
Police,
Moradabad and others, 1999(3) ALR
812 and in Achal singh vs. State of U.P.
and others, (2002) 47 ALJ 510.

8. In Dharam Pal Singh vs. State
of U.P. and others, 2005 ALJ 819, the
impugned order of termination passed
under Rule 8(2)(b) of the Rules of 1991
was set aside by this Court as it did not
contain the reasons for dispensing with
the inquiry.

9. In the present case, I find that the
petitioner absented himself on several
occasions for which he was penalised.
The disciplinary authority found that in 20
years he was absent for 576 days and that
he was also involved in a criminal case,
and on this basis, the disciplinary
authority had passed the order removing
the petitioner from the service. The
impugned
order
indicates
that
the
authority had not given any reason for
dispensing
with
the
inquiry.
Consequently, the impugned order is the
violation of the provisions of Rule 8(2)(b)
of the Rules of 1991. Further, the charges
so levelled against the petitioner are such
which can be easily enquired through a
departmental inquiry and it is not a case
where an oral inquiry cannot be held.
Consequently, in my opinion, the decision
of the disciplinary authority in taking
recourse to the provisions of Section
2(8)(b) of the 1991 Rules was wholly
arbitrary.

10. In the result, the writ petition
succeeds and is allowed. The impugned
orders dated 9.7.2001 and 9.11.2001,
passed by the respondents are quashed. It
is open to the disciplinary authority to
initiate a departmental inquiry against the
petitioner, if they are so advised and
provide an opportunity of hearing to the
petitioner as contemplated under The
Uttar Pradesh Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No. 8049 of
1997

Ganga Ram Singh

...Applicant
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Applicant:
Sri Dev Raj