# Kushal Pal Singh v. State of U.P. & Anr

- **Citation:** (2021) 1 ILRA 876
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-16
- **Case number:** Writ-A No. 16247 of 2019
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kushal-pal-singh-v-state-of-u-p-anr-46134
- **Pages:** 7

## Headnote

A. Constitution of India - Article 311 (1)
and (2) - Ambit and Scope - Disciplinary
proceeding - Major punishment - Article
311 gives constitutional protection to a
1 All. Kushal Pal Singh Vs. State of U.P. & Anr.
877
Member of civil service of the Union or of
the State - Normal rule is that no major
punishment, such as, dismissal, removal
or reduction in rank should be inflicted
without
taking
recourse
of
regular
disciplinary enquiry - It postulates for
extending reasonable opportunity to a
civil servant before subjecting him to
major punishment. (Para 10 and 15)
B. Civil Law - U.P. Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 - Rule 8(2)(b) -
Disciplinary proceeding
- Termination
without holding inquiry - Validity - Rule 8
(2) (b) has carved out certain exceptions
where
even
without
holding
regular
proceeding
punishment
of
dismissal,
removal or reduction in rank can be
inflicted - Power under Rule 8(2)(b) could
have been invoked only on being satisfied
that holding of enquiry is not 'reasonably
practicable' and that too after recording
the reasons - The reasons have to be
recorded by authority in writing as to why
inquiry is not reasonably practicable while
exercising the power under Rule 8(2)(b).
(Para 10, 11 and 15)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

876 INDIAN LAW REPORTS ALLAHABAD SERIES
an independent adjudicator. He is not
supposed to be a representative of the
department/disciplinary
authority/Government. His function is to
examine the evidence presented by the
Department, even in the absence of the
delinquent official to see as to whether the
unrebutted evidence is sufficient to hold
that the charges are proved. In the present
case the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been
proved, and could not have been taken into
consideration to conclude that the charges
have been proved against the respondents."
 (Emphasis by Court)

22. Bearing in mind the aforesaid
position of law, this Court is of opinion that
this petition deserves to succeed with
liberty to the respondents to proceed afresh
in the matter, after issuing a charge sheet
drawn up in accordance with Rule 7 of the
Rules,
and
further
adhering
to
the
principles of holding an inquiry, where
there is likelihood of imposition of a major
penalty.

23. In the result, this writ petition
succeeds and is allowed. The impugned
order of dismissal from service dated
03.02.2017,
passed
by
the
District
Magistrate, Chitrakoot, Annexure No.1 to
the writ petition, is hereby quashed. The
petitioner shall be reinstated in service
forthwith. It will be open to the respondents
to hold a fresh enquiry, after issuing a fresh
charge sheet, drawn up in accordance with
Rule 7 of the Rules. The charge sheet shall
be served upon the petitioner by Speed Post
and Registered Post at the correct postal
address, to be communicated by the
petitioner
to
the
District
Magistrate,
Chitrakoot by 15th January, 2021. The
District Magistrate, Chitrakoot shall retain
a postal track of any dispatch made by him
to the petitioner. It will be open to the
respondents
to
conclude
the
inquiry
expeditiously, in accordance with law, after
granting due opportunity to the petitioner,
and bearing in mind the guidance in this
judgment.

24. The petitioner shall be entitled to
receive his current salary from the date of
reinstatement in service. The entitlement to
receive the arrears will remain dependent
on the final outcome of the disciplinary
proceedings and the orders made there.
During the period of the disciplinary
proceedings, if the respondents choose to
pursue them, it will be open to the
respondents to post the petitioner, wherever
they find it convenient. The petitioner will
cooperate with the inquiry.

25. There shall be no order as to costs.
----------
(2021)01ILR A876
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ-A No. 16247 of 2019

Kushal Pal Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Nisheeth Yadav

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Article 311 (1)
and (2) - Ambit and Scope - Disciplinary
proceeding - Major punishment - Article
311 gives constitutional protection to a
1 All. Kushal Pal Singh Vs. State of U.P. & Anr.
877
Member of civil service of the Union or of
the State - Normal rule is that no major
punishment, such as, dismissal, removal
or reduction in rank should be inflicted
without
taking
recourse
of
regular
disciplinary enquiry - It postulates for
extending reasonable opportunity to a
civil servant before subjecting him to
major punishment. (Para 10 and 15)
B. Civil Law - U.P. Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 - Rule 8(2)(b) -
Disciplinary proceeding
- Termination
without holding inquiry - Validity - Rule 8
(2) (b) has carved out certain exceptions
where
even
without
holding
regular
proceeding
punishment
of
dismissal,
removal or reduction in rank can be
inflicted - Power under Rule 8(2)(b) could
have been invoked only on being satisfied
that holding of enquiry is not 'reasonably
practicable' and that too after recording
the reasons - The reasons have to be
recorded by authority in writing as to why
inquiry is not reasonably practicable while
exercising the power under Rule 8(2)(b).
(Para 10, 11 and 15)
Writ Petition allowed. (E-1)
Cases relied on :-
1. U.O.I. & anr.Vs Tulsiram Patel, AIR 1985 SC
1416,
2. Jaswant Singh Vs St. of Punj. & ors. (1991)
SCC 362
3. Special Appeal Defecctive no. 565 of 2020,
St. of U.P. & anr. Vs Satya Prakash Rai decided
on 29.09.2020
4. Reena Rani Vs St. of Har. , (2012) 10 SCC 215
5. Risal Singh Vs St. of Har. & ors., (2014) 13
SCC 244

(Delivered by Hon'ble Shekhar Kumar Yadav, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the respondents.

2. By means of present petition,
petitioner has sought following reliefs:-

I. A writ, order or direction in the
nature of certiorari quashing the impugned
order dated 07.08.2019 passed by the
respondent no. 2

II. A writ, order or direction, in the
nature
of
mandamus
directing
the
respondents to reinstate the petitioner on
his post with all emoluments payable to
him.

III. Any other suitable order or
direction as this Hon'ble Court may deem
fit and proper under the facts and
circumstances of the present case.

3. Facts in narrow compass are that
petitioner was appointed on the post of
Constable in Uttar Pradesh Police Services
on 25.06.2005. The petitioner was on
security duty at Sadar Jail situated in the
periphery of Ghaziabad Kutchery. Usually,
it was not his duty to produce the prisoners
before the court. On 7.8.2019, he was
assigned the duty of search at gate of
Prison Room but he accompanied one
Naushad, who was accused in Case Crime
No. 438 of 2016 under Sections 302, 201
I.P.C. Police
Station
Kheda,
District
Ghaziabad, to produce before Court Room
No.1 at about 1.45 p.m. and came back at
about 4.00 p.m. without the said prisoner.
On enquiry, respondent no.2 came to know
that after producing the said accused before
the said court room, he illegally helped him
in fleeing away from the court campus and,
thus, he terminated the petitioner from
service holding that he played an active
role in getting the accused fled away.

4. Learned counsel for the petitioner
submitted
that
on
07.08.2019
approximately 350 criminals including said
accused Naushad were brought from Dasna
878 INDIAN LAW REPORTS ALLAHABAD SERIES
Jail and were kept in the lock-up room
situated in the court campus of Ghaziabad.
As accused persons were more, who had to
be produced before the Court concerned
and the constables were less in number, the
Head Constable, namely, Satish Kumar,
who was supervisor of the said lock-up had
ordered him to produce said accused
Naushad before the Court of Additional
District Judge, First Court, Ghaziabad.
Therefore, the petitioner escorted him to
the said Court where he came to know that
his case was transferred to the Additional
District Judge 7th . When he reached there
and waited for his turn to be produced
before the Court, the accused, taking
advantage of the rush, jacked off his hands
of the petitioner and rushed away. It is
submitted that the petitioner had only
obeyed the order of his higher officer,
namely, Satish Kumar, Head Constable and
there was no control over the circumstances
in which the accused fled away as there
was huge rush in the surrounding area.
Without looking to the fact and getting the
matter inquired by way of holding enquiry,
the respondent No. 2 terminated his
services invoking the power conferred
under Rule 8(2)(b) of the U.P. Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991
(hereinafter referred to as the ''Rules 1991')
as well as Article 311(2)(b) of the
Constitution of India without even giving
opportunity of hearing to him. It is further
submitted
that
in
case
of
termination/dismissal order passed under
Rule 8(2)(b), it is required on the part of
the Disciplinary Authority to record reasons
in writing that reasonably it was not
practicable to hold enquiry. Rule 8(2)(b) of
the Rules 1991 is pari-materia to Article
311(2)(b) of the Constitution of India. It is
lastly submitted that as the order of
termination has been passed without
recording reasons in writing for not holding
the enquiry in the matter and even without
providing opportunity of hearing to the
petitioner, the same is bad and liable to be
set aside.

5. In support of his submissions, the
learned counsel for the petitioner placed
reliance on the judgment of Apex Court as
well as this Court rendered in the cases of
Union of India and another vs. Tulsiram
Patel, AIR 1985 SC 1416; Jaswant Singh
vs. State of Punjab and others (1991) SCC
362 and State of U.P. and another vs.
Satya
Prakash
Rai,
Special
Appeal
Defecctive
no.
565
of
2020
dated
29.09.2020.

6. Per contra, learned Standing
Counsel for the respondents urged that
there is no need to conduct enquiry and
order has rightly been passed by exercising
power under Rule 8(2)(b) of Rules 1991. It
is further contended that the impugned
order clearly gives reasons for dispensing
with the service of the petitioner as such
no interference is required in the matter.
There is no illegality in the order, as such,
the order impugned requires no interference
by this Court under Article 226 of the
Constitution of India.

7. I have considered the submissions
advanced on behalf of both the parties and
perused the judgments relied upon by the
learned counsel for the parties.

8. The facts of the case are not
disputed. Rule 8(2)(b) of Rules 1991 as
well as Article 311(2)(b) of Constitution of
India reads as under:

Rule 8(2)(b) of Rules, 1991

"8(2)(b)
where
the
authority
empowered to dismiss or remove a person
1 All. Kushal Pal Singh Vs. State of U.P. & Anr.
879
or to reduce him in rank is satisfied for
some reason to be recorded by that
authority in writing, it is not reasonably
practicable to hold such inquiry."

Article 311(2)(b) of Constitution of
India

"311(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."

9. Perusal of aforesaid, clearly
mandates that no police officer shall be
dismissed, removed or reduced in rank
except after proper enquiry and disciplinary
proceedings as contemplated under the
Rules. Further proviso (b) stipulates that
this rule shall not apply 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. Thus, as a
general rule, no police officer shall be
dismissed, removed or reduced in rank
except after proper enquiry and disciplinary
proceedings as contemplated by the Rules.
Clause (b) is in the form of a proviso
permits the authority concerned to dismiss
or remove a person or to reduce him in
rank, if he is satisfied that for some reason
to be recorded by that authority in writing,
it is not reasonably practicable to hold such
enquiry.

10. The above provision is parimateria with Article 311 (1) and (2) of the
Constitution, which gives constitutional
protection to a Member of civil service of
the Union or of the State. The normal rule
is that no major punishment, such as,
dismissal, removal or reduction in rank
should be inflicted without taking recourse
of regular disciplinary enquiry against any
delinquent. However, Rule 8 (2) (b) of the
Rules, 1991 has carved out certain
exceptions where even without holding
regular
proceeding
punishment
of
dismissal, removal or reduction in rank can
be inflicted. In order to dispense with the
regular
departmental
proceeding
for
inflicting major punishment recording
reasons is a condition precedent to prevent
arbitrary, capricious and mala fide exercise
of power. Absence of reasons vitiates the
order and renders it unsustainable in law.
Secondly, the authority has to record its
satisfaction based on credible material in
the record, to dispense with the enquiry.
Onus is on the State or its authorities to
show that the order of dismissal has been
passed strictly as per prescription of the
statutes.

11. The power under Rule 8(2)(b) of
the Rules, 1991, could have been invoked
only on being satisfied that holding of
enquiry is not "reasonably practicable" and
that too after recording the reasons. The
circumstances in which it cannot be
"reasonably practicable" to hold enquriy
were considered by Hon'ble the Supreme
Court in the case of Union of India Vs
Tulsi Ram Patel, AIR 1985 SC 1416 held
as follows:

"60. The Second Proviso to Article
311(2) Clause (2) of Article 311 gives a
constitutional mandate to the principles of
natural justice and audi alteram partem
rule by providing that a person employed in
a civil capacity under the Union or a State
shall not be dismissed or removed from
service or reduced in rank until after an
inquiry in which he has been informed of
the charges against him and has been given
a reasonable opportunity of being heard in
respect of those charges. To this extent, the
880 INDIAN LAW REPORTS ALLAHABAD SERIES
pleasure doctrine enacted in Article 310 (1)
is abridged because Article 311 (2) is a
express provision of the Constitution. This
safeguard provided for a government
servant by clause (2) of Article 311,
however, taken away when the second
proviso to that clause becomes applicable.
The safeguard provided by clause(1) of
Article 311, however, remains intact and
continues to be available to the government
servant. The second proviso to Article 311
(2) becomes applicable in the three cases
mentioned in clauses (a) to (c) of that
proviso. These cases are :

(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 inquiry; and

(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.

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.
What is pertinent to note is that the words
used are "not reasonably practicable" and
not "impracticable". According to the
Oxford English Dictionary "practicable"
means "Capable of being put into practice,
carried
out
in
action,
effected,
accomplished, or done; feasible". Webster's
Third New International Dictionary defines
the word "practicable" inter alia as
meaning "possible to practice or perform :
capable of being put into practice, done or
accomplished : feasible". Further, the
words used are not "not practicable" but
"not reasonably practicable". Webster's
Third New International Dictionary defines
the word "reasonably" as "in a reasonable
manner : to a fairly sufficient extent". 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. It is not
possible to enumerate the cases in which it
would not be reasonably practicable to
hold the inquiry, but some instances by way
of illustration may, however, be given. It
would not be reasonably practicable to
hold an inquiry where the government
servant, particularly through or together
with his associates, so terrorizes, threatens
or intimidate witnesses who are going to
given evidence against him with fear of
reprisal as to prevent them from doing so
or where the government servant by himself
or together with or through other threatens,
intimidates and terrorizes the officer who is
the disciplinary authority or member of his
family so that he is afraid to hold the
inquiry or direct it to be held. It would also
not be reasonably practicable to hold the
inquiry where an atmosphere of violence or
of general indiscipline and insubordination
prevails, and it is immaterial whether the
concerned government servant is or is not a
party
to
bringing
about
such
an
atmosphere. In this connection, we must
bear in mind that numbers coerce and
terrify while an individual may not. The
reasonable practicability of holding an
inquiry is a matter of assessment to be
1 All. Kushal Pal Singh Vs. State of U.P. & Anr.
881
made by the disciplinary authority. Such
authority is generally on the spot and
knows what is happening. It is because the
disciplinary authority is the best judge of
this that clause(3) of Article 311 makes the
decision of the disciplinary authority on
this question final. 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."

12. In the case of Jaswant Singh vs.
State of Punjab and others, AIR (1991) 1
SCC 362, the Apex Court while dealing
with the exercise of power as conferred by
way of exception under Article 311 (2) (b)
of the Constitution of India, opined as
under:

"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
sanctification 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 Reena Rani vs. State of
Haryana, (2012) 10 SCC 215, after
referring to the various authorities in the
field, the Hon'ble Apex Court ruled out
when reasons are not ascribed, the order is
vitiated and accordingly set aside the order
of dismissal which had been concurred
with by the Single Judge and directed for
reinstatement
in
service
with
all
consequential benefits. It has also been
observed therein that the order passed by
this
Court
would
not
preclude
the
competent authority from taking action
against
the
appellant/petitioner
in
accordance with law.

14. In the case of Risal Singh vs.
State of Haryana and others, (2014) 13
SCC 244 the Hon'ble Apex Court Court
observed as follows:

"Non-ascribing
of
reason
while
passing the order dispensing with enquiry,
which otherwise was must, definitely
invalidates such action......

Tested on the touchstone of the
aforesaid
authorities,
the
irresistible
conclusion is that the order passed by the
Superintendent of Police dispensing with
the inquiry is totally unsustainable and is
hereby
annulled.
As
the
foundation
founders, the order of the High Court
giving the stamp of approval to the ultimate
order without addressing the lis from a
proper perspective is also indefensible and
resultantly, the order of dismissal passed by
the disciplinary authority has to pave the
path of extinction"

15. From the perusal of judgements
referred hereinabove, it is clear that order
882 INDIAN LAW REPORTS ALLAHABAD SERIES
of termination cannot be passed without
providing opportunity of hearing and
further reasons have to be recorded by
authority in writing as to why inquiry is not
reasonably practicable while exercising the
power under Rule 8(2)(b) of Rules 1991. In
the case at hand, reasons recorded in the
impugned order are not such on the basis of
which it can be said that holding of inquiry
was not reasonably practicable. Further
Article 311(2)(b) of the Constitution of
India postulates for extending reasonable
opportunity to a civil servant before
subjecting him to dismissal or removal
from service or in the event of reduction in
rank.

16. In view of the forgoing
observations, this Court is of the view that
the order impugned is contrary to the
provisions of Rule 8(2)(b) of the Rules
1991 as well as Article 311(2)(b) of the
Constitution of India and the same is not
sustainable in the eye of law.

17.
 For
the
reasons
recorded
hereinabove the impugned order dated
07.08.2019 is hereby quashed. However, it
would be open to the respondents to initiate
disciplinary
proceedings
against
the
petitioner, if they so desire in accordance
with the rules.

18. With aforesaid observation, the
writ petition is allowed. No costs.
----------
(2021)01ILR A882
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

Service Single No. 18375 of 2020
P.P. Pandey (Parmatma Prasad Pandey)
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Prashant Kumar Singh, Alok Mehrotra

Counsel for the Respondents:
C.S.C., Ratnesh Chandra

A. Fundamental Rules - Rule 9(21), 9(31)
- Civil Service Regulation - Regulation 14,
18, 151 - Compulsory Retirement -
Superannuation Pension - Increment -
Determination
-
Employee
becomes
entitled for increment upon completion of
six months or more of service in the past
year
i.e.
naturally,
services
already
rendered - Cutoff date of first July of any
year indicated in the Government Order is
only for the purposes of payment of the
increment which has already fallen due -
It is only recognition of a right which has
already vested in an employee - Held, it is
merely a fortuitous circumstance that the
Government Servant has superannuated
on the date when the increment, earned
earlier, is to be actually paid - An
employee
becomes
entitled
for
an
increment upon completion of six months
or more of service rendered in the past
year. (Para 29, 35 and 41)
B. Service law - Increment - Ambit and
Object - Increment is earned by a
Government Servant for services rendered
in the past year and the Government
Servant becomes entitled to it on the
concluding day of the year but it would
actually become payable only from the
next
day
-
Actual
payment
of
an
increment earned during service is merely
consequential to the actual act of earning
the increment while in service. (Para 35)
Writ Petition allowed. (E-1)
Cases relied on :-
1.
Writ
Petition
No.8440
of
2011,
M
Balasubramaniam Vs St. of Tamil Nadu & ors.)