# Jitendra Kumar v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-07
- **Case number:** Writ A No. 17751 of 2019
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-v-state-of-u-p-ors-52017
- **Pages:** 6

## Headnote

A. Service Law - UP Police Officers of
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 - Rule 8(2)(b) -
Dismissal - Charge of submitting fake
Caste Certificate - No enquiry was held
saying that it is not reasonably practicable
- Permissibility - Held, no reasons emerge
as to why the competent authority has not
found it reasonably practicable to hold an
inquiry against the petitioner - The
reasons for denial of inquiry must be
supported by document and other related
material - High Court quashed the
5 All. Jitendra Kumar Vs. State of U.P. & Ors.
175
impugned order leaving it open for the
respondents
to
proceed
against
the
petitioner in accordance with law. (Para 9,
10, 15 and 17)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES
Government cannot, in our opinion, be
regarded as bound by what was stated in the
file. ?

10. ? Thus it is of the essence that
the order has to be communicated to the
person who would be affected by that order
before the State and that person can be
bound by that order. For, until the order is
communicated to the person affected by it, it
would be open to the Council of Ministers to
consider the matter over and over again
and, therefore, till its communication the
order cannot be regarded as anything more
than provisional in character."

27. Hon'ble Supreme Court, in very
clear words, has held that merely writing
something on the file does not amount to
an order. In fact, in the present matter, on
the basis of the noting dated 29-07-2021,
the Enquiry Officer had come to the
conclusion that since the noting says that
the
work
of
the
petitioner
is
unsatisfactory and therefore, he found
that the charge no. 1 is partly proved,
though the noting dated 29-07-2021, is
not an order and even the same has never
been served upon the petitioner and
therefore, that cannot be treated as
documentary proof against the petitioner
and thus, the Enquiry Officer as well as
the Disciplinary Authority are not only
mistaken, but, they have ignored the
settled proposition of law.

28. In view of the abovenoted
submissions and discussions, the writ
petition, is hereby allowed.

29. Consequently, the impugned
punishment order dated 24-08-2023 is
hereby quashed.

30. With all respect at my command
to the settled law, there seems to be no
substance in the charge no. 1, as the same
is based only on the show cause notice
and a noting on the file thereof, which
cannot
be
treated
as
documentary
evidence as such, the same is of no
consequence, therefore, for saving the
petitioner from further humiliation and
harassment, the charge no. 1 of the
chargesheet dated 28-12-2021, is also
hereby quashed.

31. Consequences shall follow.
----------
(2024) 5 ILRA 174
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 17751 of 2019

Jitendra Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amrendra Nath Tripathi, Deepak Dwivedi,
Sheshnath Bhardwaj

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Police Officers of
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 - Rule 8(2)(b) -
Dismissal - Charge of submitting fake
Caste Certificate - No enquiry was held
saying that it is not reasonably practicable
- Permissibility - Held, no reasons emerge
as to why the competent authority has not
found it reasonably practicable to hold an
inquiry against the petitioner - The
reasons for denial of inquiry must be
supported by document and other related
material - High Court quashed the
5 All. Jitendra Kumar Vs. State of U.P. & Ors.
175
impugned order leaving it open for the
respondents
to
proceed
against
the
petitioner in accordance with law. (Para 9,
10, 15 and 17)

Writ petition allowed. (E-1)

List of Cases cited:

1. Tarsem Singh Vs St. of Punj. & ors.; 2008 (2)
SCC (L&S) 140

2. Jaswant Singh Vs St. of Punj. & ors.; 1991 (1)
SCC 362

3. Chief Security Officer Vs Singasan Rabi Das,
1991 (1) SCC 729

4. Prithi Pal Singh Vs St. of Punj.; 2008 (2) SCC
(L & S) 135

5. Moti Lal Vs St. of U.P. & ors.; 2008 (26) LCD
93

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the respondents no. 1 to 3.

2. Under challenge is the dismissal
order dated 24.05.2019, a copy of which is
annexure 1 to the writ petition.

3. The short argument as raised by
learned counsel for the petitioner is that a
perusal of the impugned dismissal order
would indicate that it is alleged that the
petitioner secured appointment in the
department on the post of Constable by
submitting
a
fake
caste
certificate
consequently by following the provisions of
Rule 8(2)(b) of U.P. Police Officers of
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 (hereinafter referred to
as the Rules, 1991) as it is not reasonably
practicable to hold an inquiry, hence,
without holding an inquiry, the petitioner
has been dismissed.

4. The argument of learned counsel or
the petitioner is that though Rule 8(2)(b) of
the Rules 1991 clearly empowers the
authority empowered to dismiss or remove a
person for some reasons to be recorded by
the authority in writing that it is not
reasonably practicable to hold an inquiry,
yet the reasons should emerge from the
order impugned.

5. The contention of learned counsel
for the petitioner is that a perusal of the order
impugned would indicate that the only
reason that has been recorded by the
competent authority for dismissing the
petitioner from service without holding of
an inquiry by exercising power as conferred
under Rule 8(2)(b) of the Rules 1991 is that
as the petitioner has secured appointment on
the
basis
of
fake
caste
certificate
consequently it is not reasonably practicable
to hold an inquiry.

6. The aforesaid reasoning on the part
of the competent authority is not understood
in as much as no reasons emerge from the
order impugned as to why simply because
the petitioner has secured an appointment on
the basis of a fake caste certificate as to why
a regular departmental inquiry cannot be
held. Once Rule 8(2)(b) of the Rules 1991
casts a duty upon the competent authority to
record reasons as to why it is not reasonably
practicable to hold an inquiry as such some
practical reasons should emerge from the
order impugned but the reasons as have been
recorded by the competent authority while
dismissing the petitioner from service by not
holding any inquiry do not inspire any
confidence and also cannot be said to be
such a reason whereby the competent
176 INDIAN LAW REPORTS ALLAHABAD SERIES
authority was precluded from holding an
inquiry.

7. Learned Standing Counsel has also
not been able to indicate as to how the
aforesaid reason as has been recorded by the
competent authority appeals to reason and as
to what precluded the competent authority
from holding a regular departmental inquiry
against the petitioner neither are the reasons
contained in the counter affidavit.

8. Having heard learned counsels for
the parties and having perused the record it
emerges that the petitioner was working on
the post of Constable and has been
dismissed under provisions of Rule 8(2)(b)
of the Rules, 1991 by recording that it is not
reasonably practicable to hold an inquiry.

9. From perusal of the order impugned
no reasons emerge as to why the competent
authority has not found it reasonably
practicable to hold an inquiry against the
petitioner. A regular employee like the
petitioner has been dismissed without
holding regular inquiry and even the reasons
as emerge from the perusal of the order
impugned do not inspire confidence of there
being some reason whereby it was not
reasonable practicable to hold an inquiry. No
reasons also emerge from a perusal of the
counter affidavit as to why regular inquiry
was not found practicable to be held against
the petitioner.

10. This aspect of the matter has been
considered by Hon'ble Supreme Court in the
case of Tarsem Singh vs State of Punjab
and others, 2008 (2) SCC (L&S) 140
wherein Hon'ble Apex Court has held that
inquiry may be dispensed with only on the
ground that it is reasonably not practicable
and that subjective satisfaction of the
authority while recording finding with
regard to reasonable practicability of inquiry
proceedings based on objective criteria is
must. The reasons for denial of inquiry must
be supported by document and other related
material.

11. Hon'ble Supreme Court in the case
of Jaswant Singh vs State of Punjab and
others, 1991 (1) SCC 362 has held as under:

"5. The impugned order of April 7,
1981 itself contains the reasons for
dispensing with the inquiry contemplated by
Article 311 (2) of the Constitution.
Paragraph 3 of the said order, which we
have extracted earlier, gives two reasons in
support of the satisfaction that it was not
reasonably
practicable
to
hold
a
departmental enquiry against the appellant.
There are (i) the appellant has thrown
threats that he with the help of other police
employees will not allow holding of any
departmental enquiry against him and (ii)
he and his associates will not hesitate to
cause physical injury to the witnesses as
well as the enquiry officer. Now as stated
earlier after the two revision applications
were allowed on October 13, 1980, the
appellant had rejoined service as Head
Constable on March 5, 1981 but he was
immediately placed under suspension.
Thereafter, two show cause notices dated
April 4, 1981 were issued against him
calling upon him to reply thereto within 10
days after the receipt thereof. Before the
service of these notices the incident of
alleged attempt to commit suicide took place
on the morning of April 6, 1981 at about
11.00 a.m. In that incident the appellant
sustained an injury on his right arm with a
knife. He was, therefore, hospitalised and
while he was in hospital the two show cause
notices were served on him at about 10.00
p.m., on April 6, 1981. Before the appellant
could reply to the said show cause notices
5 All. Jitendra Kumar Vs. State of U.P. & Ors.
177
respondent 3 passed the impugned order on
the very next date i.e. April 7, 1981. Now the
earlier departmental enquiries were duly
conducted against the appellant and there is
no allegation that the department had found
any difficulty in examining witnesses I n the
said
inquiries.
After
the
revision
applications were allowed the show cause
notices were issued and 10 days time was
given to the appellant to put in his replies
thereto. We, therefore, enquired from the
learned counsel for the respondents to point
out what impelled respondent 3 to take a
decision that it was necessary to forthwith
terminate the services of the appellant
without holding an inquiry as required by
Article 311 (2). The learned counsel for the
respondents could only point out clause (iv)
(a) of sub-para 29 (A) of the counter which
reads as under:

"The order dated April 7, 1981
was passed as the petitioner's activities were
objectionable. He was instigating his fellow
police officials to cause-indiscipline, show
insubordination and exhibit disloyalty,
spreading discontentment and hatred, etc.
and his retention in service was adjudged
harmful."

This is no more than a mere
reproduction of para 3 of the impugned
order. Our attention was not drawn to any
material existing on the date of the
impugned order in support of the allegation
contained in paragraph 3 thereof that the
appellant had thrown threats that he and his
companions will not allow holding of any
departmental enquiry against him and they
would not hesitate to cause physical injury
to the witnesses as well as the enquiry
officer if any such attempt was made. 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 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
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."

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. In the
counter filed by respondent 3 it is contended
that the appellant, instead of replying to the
show cause notices, instigated his fellow
police officials to disobey the superiors. It is
also said that he threw threats to beat up the
witnesses and the Inquiry Officer if any
departmental inquiry was held against him.
No particulars are given. Besides it is
difficult to understand how he could have
given threats etc. when he was in hospital. It
is not shown on what material respondent 3
came to the conclusion that the appellant
had thrown threats as alleged in para 3 of
the impugned order. On a close scrutiny of
the impugned order it seems the satisfaction
was based on the ground that he was
instigating his colleagues and was holding
meetings with other police officials with a
view to spreading hatred and dissatisfaction
towards his superiors. This allegation is
178 INDIAN LAW REPORTS ALLAHABAD SERIES
based on his alleged activities at Jullundur
on April 3, 1981 reported by SHO/GRP,
Jullundur.
That
report
is
not
forthcoming. It is no one's contention
that the said SHO was threatened.
Respondent 3's counter also does not
reveal if he had verified the correctness
of the information. To put it tersely the
subjective
satisfaction
recorded
in
paragraph 3 of the impugned order is not
fortified by any independent material to
justify the dispensing with of the inquiry
envisaged by Article 311 (2) of the
Constitution. We are, therefore, of the
opinion that on this short ground alone
the
impugned
order
cannot
be
sustained."
(emphasis by the Court)

12. Likewise Hon'ble Apex Court in
the case of Chief Security Officer vs
Singasan Rabi Das, 1991 (1) SCC 729
while
considering
the
aforesaid
proposition of law and considering an
identical rule with regard to employee of
the Railway Protection Force has held
that in the absence of sufficient material
or good ground for dispensing with
inquiry, the recourse of Article 311 (2)
proviso (b) cannot be adopted by the
authorities.

13. Likewise Hon'ble Apex Court in
the case of Prithi Pal Singh vs State of
Punjab, 2008 (2) SCC (L & S) 135 has
held
that
holding
of departmental
inquiry is the rule and the second proviso
to Article 311(2) of the Constitution of
India provides for exception and that it
is trite law that existence of such
exceptional situation must be shown to
exist on the basis of relevant materials.

14. Likewise a division bench of
this Court in the case of Moti Lal vs
State of U.P. and others, 2008 (26)
LCD 93 while considering the provision
of Rule 8(2)(b) of the Rules, 1991 has
held as under:

"12. It has been settled by the
catena of decisions of judgments of
Hon'ble Supreme Court that denial of
opportunity provided by the statute or
non-compliance of statutory provisions
falls in the category of exception.
Ordinarily, the authority should adopt
the
recourse
of
departmental
proceedings in accordance with Rules
before awarding major penalty. The
order for dismissal from service which
takes away the right of livelihood of an
employee should be passed only with due
compliance of principles of natural
justice and the service rules. The
provisions contained in rule 8 (2) (b) of
the rules, is an exception to the general
rule which requires compliance of
principles of natural justice. The
recourse of Rule 8 (2) (b) of the Rules,
should be adopted only in exceptional
cases and justified grounds where the
departmental
inquiry
against
the
delinquent is not possible or in case
departmental inquiry his held, it shall
affect the national integrity, security or
alike matters."
(emphasis by the Court)

15. Keeping in view the aforesaid
discussion, the writ petition is allowed.
The order impugned dated 24.05.2019, a
copy of which is annexure 1 to the
petition, is quashed.

16. Consequences to follow.

17. However, it would be open for
the respondents to proceed against the
petitioner in accordance with law.
----------
5 All. Subhash Chandra Srivastava (In person) Vs. State of U.P. & Anr.
179
(2024) 5 ILRA 179
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 189 of 2022

Subhash Chandra Srivastava (In person)
 ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Subhash Chandra Srivsastava

Counsel for the Respondents:
G.A., Jai Prakash Prasad, Rakesh Yadav,
Sanjay Kumar Mishra

Criminal Law-Indian Penal Code-1860Sections-323, 504, 352 & 427-The
Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989Section 3(1)(r) 14-A (2) 15A (3), (5)-
Criminal appeal with the prayer to cancel /
quash the bail granted to the respondentSection 15A (3), (5) of the S.C./S.T. (P.A.)
Act mandates that prior to the hearing of the
bail application under the provisions of
S.C./S.T. (P.A.) Act, notice must be sent to
the informant of the case-prior to the
hearing of the bail application, the initial
step after the filing of the application for bail
to be taken by the Court was to pass an
effective order to issue notice to the
informant / victim or his dependent. Only
after due notice, an order on such bail
application in either way should had been
passed, but the learned Special Judge did not
bother to comply with the mandatory
provisions under the S.C./S.T. (P.A.) ActResult-Impugned
order
allowing
bail
application of the respondent set aside.

Appeal allowed. (E-15)

List of Cases referred-;
1. Jagjeet Singh & ors. Vs Ashish Mishra @
Monu, (2022) 9 SCC 321

2. Criminal Appeal No.293 of 2023 (Raees Hanif
Sayyed Vs The St. of Mah. & anr. dated
10.4.2023

3. Criminal Appeal No.1278 of 2021 (Hariram
Bhambhi Vs Satyanarayan & anr. decided on
29.10.2021

4. Sunita Gandharva Vs St. of M.P. & anr., 2020
SCC OnLine MP 2193

5. Criminal Petition No.200315 / 2020 C/W
Criminal Petition No.200318 / 2020 (Marenna @
Mareppa Vs The St.)

6. (Sahebreddy @ Sabreddy Vs The St. of Karn.)
dated 21.7.2020

7. n R/Special Civil Application No. 6369 of 2020
(Hemal Ashwin Jain (Sheth) Vs U.O.I.) dated
6.8.2020

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard the appellant in person,
learned A.G.A. for the State as well as
learned counsel for the respondent no.2 and
perused the material available on record.

2. This criminal appeal under Section
14-A (2) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act has
been preferred by the appellant - Subash
Chandra Srivastava (In person) with the
prayer to cancel / quash the bail granted to
the respondent no.2 vide order dated
1.1.2020 passed by the Special Judge,
S.C./S.T. (P.A.) Act, Padrauna, Kushinagar
in Special Trial No.492 of 2019 (State Vs.
Raju @ Sunil Kumar Srivastava) arising out
of case crime no.436 of 2019 under sections
323, 504, 352, 427 IPC and 3 (1) (r)
S.C./S.T. (P.A.) Act, Police Station Kotwali
Padrauna, District Kushinagar.