# Ganesh Narain Shukla v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 54
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-05
- **Case number:** Civil Misc. Writ petition No.21191 of 2004
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganesh-narain-shukla-v-state-of-u-p-and-others-40377
- **Pages:** 4

## Headnote

S.C.

U.P.
Officers
of
Subordinate
Rank
(Punishment and Appeal) Rules, 1991R.8-Petitioner appointed as Constable
(Civil
Police)-On
complaint
that
petitioner was acting in collusion with
Criminal, dismissal order passed without
any enquiry or without affording any
opportunity of hearing to petitioner-Writ
against-In present case from perusal of
order of dismissal, it appears that
disciplinary authority-respondent no. 2
did not record any reasons that it is not
possible to hold an enquiry-since said
reason is lacking in order of dismissal
against
petitioner,
petitioner,
held,
entitled to relief-Impugned order of
dismissal quashed.

Held: Para 7

In the present case, from the perusal of
the order of dismissal, it appears the
disciplinary authority respondent no.2
has not recorded any reason that it is not
possible to hold an enquiry. As the said
reason is lacking in the order of dismissal
against the petitioner, the petitioner is
entitled for relief.

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
54
correct assessment and not to make an
excessive assessment merely on the
ground of shortage of time. No doubt the
Department has to assess and collect the
correct tax, but for this purpose it should
devise and set up a rational scheme in
accordance with law. It should certainly
not make assessment hurriedly merely by
saying that there is shortage of time (as
often happens), thus putting the citizens to
great harassment.

40. Applying the principle laid down
in the aforesaid cases to the facts of the
present case, we find that according to the
claim made by the petitioners the amount
in question belonged to Smt. Shyama
Devi who had bequeathed the same to
them. Notwithstanding the fact that the
said amount has been assessed to tax in
the hands of Prem Chandra Jain, he has
taken a stand that the amount does not
belong to him and instead belonged to
Smt. Shyama Devi. Therefore, it is not
clear as to in whose hands the amount in
question has to be assessed. Thus, the
Income Tax Officer was justified in
taking proceedings under Section 147 of
the Act for assessing the aforesaid
amounts at the hands of the petitioners
according to the claim made by the
petitioners.

41. In view of the foregoing
discussions, we do not find any merit in
both the writ petitions which are hereby
dismissed. However, there shall be no
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2004

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ petition No.21191 of 2004

Ganesh Narain Shukla
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri L.M. Singh

Counsel for the Respondents:
S.C.

U.P.
Officers
of
Subordinate
Rank
(Punishment and Appeal) Rules, 1991R.8-Petitioner appointed as Constable
(Civil
Police)-On
complaint
that
petitioner was acting in collusion with
Criminal, dismissal order passed without
any enquiry or without affording any
opportunity of hearing to petitioner-Writ
against-In present case from perusal of
order of dismissal, it appears that
disciplinary authority-respondent no. 2
did not record any reasons that it is not
possible to hold an enquiry-since said
reason is lacking in order of dismissal
against
petitioner,
petitioner,
held,
entitled to relief-Impugned order of
dismissal quashed.

Held: Para 7

In the present case, from the perusal of
the order of dismissal, it appears the
disciplinary authority respondent no.2
has not recorded any reason that it is not
possible to hold an enquiry. As the said
reason is lacking in the order of dismissal
against the petitioner, the petitioner is
entitled for relief.

(Delivered by Hon'ble Shishir Kumar, J.)

1. By means of the present writ
petition, the petitioner has challenged the
order
dated
28.5.2004
passed
by
respondent No.2 by which the services of
the petitioner have been dismissed. The
case of the petitioner is that he was
appointed as Constable (Civil Police) on
http://www.allahabadhighcourt.nic.in
1All] Sunil Kumar Jain V. The Income Tax Officer, Kanpur and others
55
3.12.1987 and since then he has been
working on the said post in the different
police station of District Kanpur Nagar.
There is no complaint whatsoever against
the petitioner and the petitioner's conduct
was found satisfactory. The petitioner is
presently posted as constable at police
station Gwaltoli District Kanpur Nagar. It
appears that some inimical person in the
locality made complaint against the
petitioner in which it has been alleged that
the petitioner is in acting in collusion with
one Dilip Chaurasia who is said to be a
criminal. The respondent no.2 without
any enquiry in the complaint made against
the petitioner, passed an order dismissing
the services of the petitioner without any
notice of show cause or after giving an
opportunity of hearing to the petitioner.
The petitioner has annexed the dismissal
order dated 28.5.2004 as Annexure 1 to
the writ petition. It has been submitted on
behalf of the petitioner that the order of
dismissal dated 28.5.2004 is contrary to
law as the petitioner is a permanent
employee in the police department and the
services of the petitioner cannot be
dismissed without holding any enquiry or
without any show cause and the order can
be
passed
only
after
giving
due
opportunity to the petitioner. It has also
been argued on behalf of the petitioner
that it is well settled principle of law that
an employee who is subjected to a
complaint should be given an opportunity
to show cause to submit his explanation
for the purposes of the complaint. As
before passing the order of dismissal, no
opportunity or hearing has been given,
therefore, the order of dismissal is bad in
law and is in clear violation of principle
of natural justice. It has also been stated
that order of dismissal is absolutely vague
and without any evidence in support
thereof.

2. Learned Standing Counsel was
granted time to file counter affidavit.
Counter and rejoinder affidavit have been
exchange and with the consent of the
parties the writ petition is being disposed
of finally.

3. After hearing counsel for the
parties and after perusal of the record, it
appears before passing the order of
dismissal petitioner has not been issued
any show cause notice. The case of the
petitioner has been controverted by way
of the counter affidavit filed on behalf of
the respondents. The only averment made
in para 8 of the affidavit is that some
enquiry was made against the petitioner
on the basis of the complaint and said
enquiry,
report
has
been
filed
as
Annexure C.A.1 to the counter affidavit.
From the perusal of the counter affidavit,
it is clear that a show cause notice or
opportunity has not been given to the
petitioner. It has been stated on behalf of
the respondents that according to the
provisions of the U.P. Officers of
Subordinate
Rank
(Punishment
and
Appeal), Rules, 1991, Rule 8 provides
that the services of the police personnel
can be dismissed without any enquiry.
Rule 8 is quoted below:-

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-
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
56
(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.

(3) All orders of dismissal and removal
of head Constables or Constables shall be
passed by the Superintendent of Police.
Cases in which the Superintendent of
Police recommends dismissal or removal
of a Sub-Inspector or an Inspector shall
be forwarded to the Deputy InspectorGeneral concerned for orders.
(4) (a) The punishment for intentionally
or negligently allowing a person in police
custody or judicial custody to escane shall
be
dismissal
unless
the
punishing
authority for reasons to be recorded in
writing awards a lesser punishment.
(b) Every officer convicted by the court
for an offence involving moral turpitude
shall be dismissed unless the punishing
authority for reasons to be recorded in
writing considers it otherwise.

4. The petitioner has filed the
rejoinder affidavit and has stated the fact
that there is no dispute to this effect that
there is a rule and under Rule 8 (2) Subclause (C), the respondent No.2 has got
power to dismiss the services of the police
employee but Clause 8 (4) (b) clearly
states that if such order is passed under
the
aforesaid
Rule,
the
punishing
authority has to record a reason in writing
that the holding of such enquiry is not
possible in the security of the State.

5. I have considered the argument of
the parties and perused the record as well
as Rule 8 of the Rules mentioned above.

The aforesaid provision under the
Rules of 1991 is similar to the Article 311
of the Constitution of India. Article 311
is being quoted below:-

311. Dismissal, removal or reduction in
rank of persons employed in civil
capacities under the Union or a State -
(1) No person who is a member of a civil
service of the Union or an all-India
service or civil service of a State or holds
a civil post under the Union or a State
shall be dismissed or removed by an
authority subordinate to that by which he
was appointed.
(2) No such person as aforesaid shall
be dismissed or removed or reduced in
rank except after an inquiry in which he
has been informed of the charges against
him and given a reasonable opportunity
of being heard in respect of those
charges.
(Provided that where it is proposed
after such inquiry, to impose upon him
any such penalty, such penalty may be
imposed on the basis of the evidence
adduced during such inquiry and it shall
not be necessary to give such person any
opportunity of making representation on
the penalty proposed:

Provided further that this clause
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
http://www.allahabadhighcourt.nic.in
1All] Ganesh Narain Shukla V. State of U.P. and others
57
(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; or
(c) where the President or the Governor,
as the case may be, is satisfied that in the
interest of the security of the State it is not
expedient to hold such inquiry.

(3) If, in respect of any such person as
aforesaid, a question arises whether it is
reasonably practicable to hold such
inquiry as is referred to in clause (2), the
decision
thereon
of
the
authority
empowered to dismiss or remove such
person or to reduce him in rank shall be
final.
6. From the perusal of Article 311
(2) (b), of the Constitution of India the
authority has been given power to dismiss
or remove a person or to reduce in rank if
he is satisfied that it is not reasonable and
practicable to hold such enquiry but
reasons are to be recorded.

7. In the present case, from the
perusal of the order of dismissal, it
appears
the
disciplinary
authority
respondent no.2 has not recorded any
reason that it is not possible to hold an
enquiry. As the said reason is lacking in
the order of dismissal against the
petitioner, the petitioner is entitled for
relief.

8. In view of above, the order passed
by the respondent no.2 dated May 20,
2004 Annexure 1 is liable to be quashed.
In the result, the petition is allowed. The
order
dated
20.05.2004
passed
by
respondent no.2 is quashed and the
petitioner will be reinstated in service and
will be paid his salary. It would however
be open to the respondents to hold an
enquiry and pass the appropriate orders
according
to
law
after
giving
an
opportunity of hearing to the petitioner.

No order as to costs.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2004

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Contempt Petition No. 1487 of
2001

Phuleshwar

...Applicant
Versus
Smt. Maya Niranjan and another

...Opposite Party

Counsel for the Applicant:
Sri K.J. Khare
S.C.

Counsel for the Opposite Party:
Sri S.B. Singh
Sri R.P. Tripathi
Sri Ashutosh Tripathi
Sri C.B. Yadav, C.S.C.-II
Sri Sudhir Agrawal, A.G.A.

Contempt of Courts Act, 1971-S. 12Punishment under Order by Writ Court
for
reinstatement
and
payment
of
current salary and arrears of salary for
ten years treating petitioner's date of
birth
as
13.7.1944-Deliberate
disobedience of order by DIOS-II for 4
years-Contempt petition by petitioner, a
permanent employee of aided SchoolHeld, examining conduct of contemnor
DIOS-II in leave no room for doubt that
she deliberately embased upon a course
to create hurdles in execution of order
with reprehensive defiance- Plea that
since order has been complied with now,