# Lokendra Pal Singh v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1940
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-30
- **Case number:** Writ A No. 25018 of 2018
- **Bench:** Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lokendra-pal-singh-v-state-of-u-p-ors-44687
- **Pages:** 11

## Headnote

A. Service Law - Departmental Proceedings
- Uttar Pradesh Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991; Rule 8(2) (b) - parimateria
to
Article
311(2)
of
the
Constitution
of
India
-
petitioner
suspended because of ongoing criminal
proceedings - preliminary enquiry initiated
- ex-parte enquiry report - dispensed with
departmental enquiry without providing
any reasons

The Court observed that decision to dispense with
the departmental enquiry was based on the
preliminary enquiry report which was though
supplied to the petitioner but no opportunity was
given to rebut the same. It is a clear violation of
principles of natural justice. (Para 31)
In aforementioned provision of the Rule shows
that an exception has been carved out from
the normal rule of holding a departmental
enquiry, before imposing a major punishment
upon the delinquent officer. In order to
exercise such exception the authority has to
record reasons for dispensing with the
departmental enquiry. (Para 12 and 13)

Writ Petition allowed (E-10)

Cases cited:-

## Text

1940 INDIAN LAW REPORTS ALLAHABAD SERIES
bringing the institution on the grant-in-aid
list. He is further required to make
surprise inspection of the institution from
time to time so as to satisfy as to the
number of students registered and actually
studying therein. He would also be
required to determine the strength of the
teachers in the ratio of students as per the
fixed standard.

23. It is, thus, clear that the District
Inspector of Schools could not have
unilaterally accepted the claim of the
committee of management for creation of
additional sections and increase of the
strength of teachers. Such decision could
have been taken only by the State
Government
after
a
report/recommendation in this regard
would have been submitted by the District
Inspector of School.

24. In the said scenario, the decision
of the District Inspector of School not to
grant
financial
approval
to
the
appointments of the petitioners cannot be
said to be illegal.

25. This apart, the District Inspector
of School has categorically asserted that
the committee of management of the
institution did not provide necessary
documents pertaining to the selection and
further that the advertisement was not
made in two daily newspapers of wide
circulation. No exception could be taken
to the said reasons of denial of approval
by the District Inspector of Schools in its
stand taken in the counter affidavit.

26. For the aforesaid, no mandamus
can be issued. However, it is left open for
the committee of management to request
the District Inspector of Schools, Deoria
to make a fresh inspection of the
institution-in-question and to submit his
recommendations
to
the
State
Government strictly in accordance with
the
conditions
provided
in
the
Government order dated 25.05.2012 by
determining the sanctioned strength of the
attached primary sections in the standard
teacher-students ratio. In case, the District
Inspector of Schools finds that the number
of students studying in the institution are
much more and the students-teachers ratio
is not in accordance with the fixed
standard, he shall submit a comprehensive
report for consideration before the State
Government.

27. On presentation of the said
report, the State Government would be
under obligation to take an expeditious
decision in accordance with law.

28. Subject to the above, the writ
petition is disposed of.
----------

(2019)10ILR A 1940

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE

THE HON'BLE VIVEK VARMA, J.

Writ A No. 25018 of 2018

Lokendra Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Saxena, Sri Pankaj Kumar Tiwari,
Sri Ashish Pandey.

Counsel for the Respondents:
C.S.C.
2 All. Lokendra Pal Singh Vs State of U.P. & Ors.
1941
A. Service Law - Departmental Proceedings
- Uttar Pradesh Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991; Rule 8(2) (b) - parimateria
to
Article
311(2)
of
the
Constitution
of
India
-
petitioner
suspended because of ongoing criminal
proceedings - preliminary enquiry initiated
- ex-parte enquiry report - dispensed with
departmental enquiry without providing
any reasons

The Court observed that decision to dispense with
the departmental enquiry was based on the
preliminary enquiry report which was though
supplied to the petitioner but no opportunity was
given to rebut the same. It is a clear violation of
principles of natural justice. (Para 31)
In aforementioned provision of the Rule shows
that an exception has been carved out from
the normal rule of holding a departmental
enquiry, before imposing a major punishment
upon the delinquent officer. In order to
exercise such exception the authority has to
record reasons for dispensing with the
departmental enquiry. (Para 12 and 13)

Writ Petition allowed (E-10)

Cases cited:-
1. U.O.I. & anr Vs Tulsi Ram Patel AIR (1985)
SC 1416
2. Jaswant Singh Vs St of Pun & ors (1991) 1
SCC 362
3. Reena Rani Vs St of Haryana (2012) 10 SCC
215
4. Risal Singh Vs St of Haryana & ors (2014)
13 SCC 244
5. Pushpendra Singh & anr Vs St of U.P. & anr
(2008) 3 ADJ 689 (D.B.)
6. Dayashankar Tiwari & ors Vs St of U.P. &
anr (2010) 10 ADJ 574 (D.B.)

7.Rajendra Prasad Singh Vs St of U.P. &
ors (2014) 3 WC 2616

8. Umesh Chandra Vs St of U.P. thu Secy
Special Appeal No. 350 of 2017
(Delivered by Hon'ble Vivek Varma, J.)

1. By means of this petition under
Article 226 of the Constitution, the
petitioner has assailed the order dated
09.03.2018 passed by respondent no.4Inspector General of Police, Moradabad
Region, Moradabad and order dated
11.08.2018 passed by respondent no.3Additional Director General of Police,
Bareilly
Region, Bareilly
(Annexure
Nos.5 and 9 to the writ petition).

2. Briefly, the facts of the case are that
the petitioner was sub-inspector in civil police.
When he was posted as Station House Officer
in District Bulandshahar, he was approached
by a lady, namely, Ms. Ruma Chaudhary in
connection with a land dispute with her uncle.
Upon intervention of the petitioner, the
aforesaid dispute was resolved. Thereafter,
Ms. Ruma Chaudhary became familiar with
the family of the petitioner and won their trust.
She took a loan and financial help from the
petitioner to continue her studies. According
to the petitioner, in the year 2011, Ms. Ruma
Chaudhary
successfully
qualified
the
examination of constable in U.P. Police. But
she still continued to take financial help from
the family of the petitioner. Even after 4 to 5
years of service, she refused to repay the loan.
It is stated that in October, 2017, the wife of
the petitioner filed a complaint case being
Case No. 23786 of 2017 (Smt. Geeta vs.
Ruma Chaudhary), under Sections 406, 506
I.P.C. against Ms. Ruma Chaudhary. On
23.01.2018, Ms. Ruma Chaudhary, it is
submitted as a counter blast, lodged an FIR
against the petitioner under Sections 376, 377
and 506 I.P.C. alleging that said offences have
been committed from June, 2010 onwards.
Again on 09.02.2019, in order to pressurize
1942 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner, Ms. Ruma Chaudhary lodged
another FIR under Sections 364, 511, 507,
504 and 506 I.P.C. Due to the aforesaid FIR
and complaint of Ms. Ruma Chaudhary, the
petitioner was placed under suspension vide
order
14.02.2018
passed
by
S.S.P,
Moradabad. On 27.03.2018, a charge-sheet
was submitted against the petitioner in the FIR
dated 23.01.2018. Thereafter, the petitioner is
stated to have challenged the charge-sheet by
filing Criminal Misc. Application U/S 482
Cr.P.C. No.21454 of 2018 and this Court vide
order dated 20.06.2018 stayed the further
proceedings. It is also stated that in the FIR
dated 09.02.2018, a final report was submitted
and no protest petition has been filed as yet.

3. It is submitted that while those
proceedings
were
continuing,
a
departmental preliminary enquiry was
initiated against the petitioner by the S.P.
City, District Moradabad. The statements
of
Ms. Ruma
Chaudhary
and
the
Investigating Officers of the two cases
instituted against the petitioner, were
recorded by the enquiry officer. The
preliminary enquiry report recorded that,
prima facie, the allegations made by Ms.
Ruma Chaudhary were correct.

4. On the basis of said ex-parte enquiry
report, the petitioner was dismissed from
service vide order dated 09.03.2018 by the
Inspector General of Police, Moradabad
Region, Moradabad under Rule 8 (2) (b) of
the Uttar Pradesh Police Officers of the
Subordinate Ranks (Punishment and Appeal)
Rules, 1991 (hereinafter referred to as the
"Rules, 1991").

5. Aggrieved by the aforesaid order,
the petitioner preferred a departmental
appeal and the same was rejected by the
Additional Director General of Police,
Bareilly Region, Bareilly vide order dated
11.08.2018. The orders dated 09.03.2018
and 11.08.2018 are under challenge
before this Court by means of present writ
petition.

6. Heard Sri Amit Saxena, learned
Senior Advocate, assisted by Sri Ashish
Pandey, learned counsel for the petitioner
and Mr D. K. Tiwari, learned Standing
Counsel for the State.

7. Submission of Sri Amit Saxena,
learned counsel for the petitioner is that the
dismissal order passed against the petitioner
without holding a departmental enquiry is
entirely arbitrary, discriminatory and the
same has been passed in violation of the
principles of nature justice. There is no
material before the disciplinary authority for
arriving at any subjective satisfaction to
dispense with the enquiry. There was no
occasion to hold that enquiry into the matter
is neither reasonable nor practicably
possible.

8. Further submission is that reasons
recorded for dispensing with the enquiry
was irrelevant and was arbitrary and,
therefore, the impugned termination was
invalid and that the petitioner was liable
to be reinstated in service.

9. Per contra, learned Standing
Counsel for the State, in support of orders
impugned, has submitted that Rule 8 (2) (b)
of the Rules, 1991 has rightly been invoked
in the matter as it was not possible to hold a
departmental enquiry. He has further stated
that the enquiry officer has clearly stated in
his enquiry report that the petitioner
indulged in criminal acts.

10. I have considered the rival
submission advanced by learned counsel
for the parties.
2 All. Lokendra Pal Singh Vs State of U.P. & Ors.
1943

11. The services of the petitioner
had been dismissed after invoking, the
proviso to Rule 8 (2) of the Uttar Pradesh
Police Officers of the Subordinate Ranks
(Punishment and Appeal ) Rules, 1991.
To appreciate the contention made by
learned counsel for the parties, it is
necessary first to have a look at the
provisions contained in Rule 8 of the
Rules, 1991. It reads as under:

"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 -

(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 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 Inspector-General concerned for
orders.

(4) (a) The punishment for
intentionally or negligently allowing a
person in police custody or judicial
custody to escape shall be dismissal
unless the punishing authority for reasons
to be recorded in writing awards a lessor
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.''

12. Bare perusal of the aforesaid
Rule would go to show that holding of
inquiry is a rule and dispensing with the
enquiry
is
an
exception.
Before
proceedings to impose any one of the
major penalty of dismissal, removal or
reduction in rank the departmental inquiry
is must. However in certain contingency
said rule can be dispensed with. One such
contingency provided for is that, it is not
reasonably practicable to hold an inquiry
for reasons recorded in writing. The said
authority is to be exercised in exceptional
circumstances and that too by recording
finding to the effect as to why it is not
reasonably practical to hold an inquiry.
The sine quo non for exercise of power
under the proviso (b) to Rule 8 (2) of U.P.
Police Officers of the Subordinate Rank
(Punishment and Appeal) Rules, 1991, is
the requirement to record reasons that it is
not reasonably practicable to hold such
inquiry.

13. The proviso to Article 311 (2) of
the Constitution of India, which is
analogous to Rule 8 (2) (b) of Rules, 1991
provides for the mandatory requisites to
dispense with the enquiry. In the aforesaid
1944 INDIAN LAW REPORTS ALLAHABAD SERIES
provision also, an exception is carved out
to
the
normal
rule
of
holding
a
departmental enquiry, before imposing a
major punishment upon the delinquent
officer.

14. The condition precedent for
exercise of powers to dispense with the
departmental
enquiry
arose
for
consideration before the Hon'ble Supreme
Court in the case of Union of India and
another vs. Tulsi Ram Patel1. The
Hon'ble Court held as under:

"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 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
2 All. Lokendra Pal Singh Vs State of U.P. & Ors.
1945
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
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."

15. The Hon'ble Apex Court in the
case of Jaswant Singh vs. State of
Punjab and others2, the 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."

16 In Reena Rani vs. State of
Haryana3, after referring to the various
authorities holding 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
1946 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

17. Recently, in the case of Risal
Singh vs. State of Haryana and others4,
while construing a similar provision, 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"

18. The provisions of Rule 8 (2) (b)
of the Rules, 1991 and Article 311 (2) of
the Constitution of India are almost in
pari-materia and the legislative intent
behind the provisions are the same.

19. In view of the law laid down by
the Hon'ble Apex Court noticed above,
before exercising special powers to
dispense with the enquiry, the disciplinary
authority must be satisfied on the basis of
objective material that it is not practicable
to hold such enquiry.

20. At this stage, it would be
appropriate to notice some authorities in
point rendered by this Court, while
interpreting proviso (b) to Rule 8 (2) of
the Rules, 1991.

21. In Pushpendra Singh and
another vs. State of U.P. and another5,
the Court in paragraphs 7, 8, 9 and 10
held as follows:

"7. ........ Thus, in order to
dispense with the regular departmental
proceeding for inflicting punishment of
dismissal, removal or reduction in rank,
recording reasons is condition precedent.
The idea or object of recording reasons is
obviously to prevent arbitrary, capricious
and
mala
fide
exercise
of
power.
Therefore,
recording
of
reason
is
mandatory and in its absence the order
becomes laconic and cannot sustain.
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. The Hon'ble Apex Court in the
case of Union of India v. Tulsi Ram Patel,
AIR 1985 SC 1416 while considering
Articles 310 and 311 of the Constitution
of India held that two conditions must be
satisfied to uphold action taken under
Article 311 (2) of the Constitution of
India, viz., (i) there must exist a situation
which renders holding of any enquiry not
reasonably
practicable,
(ii)
the
disciplinary authority must record in
writing its reasons in support of its
satisfaction. The Hon'ble Apex Court
further observed that though Clause (3) of
Article 311 makes the decision of the
disciplinary authority in this behalf final,
yet such finality can certainly be tested in
the Court of law and interfered with if the
action is found to be arbitrary or mala
fide
or
motivated
by
extraneous
2 All. Lokendra Pal Singh Vs State of U.P. & Ors.
1947
considerations or merely a rule to
dispense with the enquiry. The Hon'ble
Apex Court at page 1479 in Tulsi Ram
Patel (supra) held as follows :

''A disciplinary authority is not
expected to dispense with a disciplinary
authority lightly or arbitrary 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.''

8. The words some "reason to
be recorded in writing that it is not
reasonably practicable to hold enquiry"
means that there must be some material
for
satisfaction
of
the
disciplinary
authority that it is not reasonably
practicable. The decision to dispense with
the
departmental
enquiry
cannot,
therefore, be rested solely on the ipse dixit
of the concerned authority. The Apex
Court in the case of Jaswant Singh v.
State of Punjab and Ors. has observed 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."

"...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."

9. Therefore, in view of the
exposition of law such satisfaction has to
be recorded either in the impugned order
or in any case it must be available on
record. In the case in hand, the impugned
order is enclosed as Annexure 5 to the
writ petition. From a perusal thereof it is
evident that the Senior Superintendent of
Police merely reproduced the provisions
contained in Rule 8(2)(b) against the
above police personnel, stating that it is
not reasonably practicable to hold such
enquiry. It does not contain any reason
showing as to why it is not reasonably
practicable to hold regular enquiry. The
satisfaction that it is not reasonably
practicable to hold such enquiry has to be
spelled out either in the order itself or at
least it has to be available on record.
Learned Standing Counsel also during his
submission could not show us any such
reason
recorded
by
the
competent
authority in the record to show any
ground or reason for invoking the
provisions contained in Rule 8(2)(b) of
the Rules. It is well settled legal position
that when a statutory functionary makes
an order based on some reasons or
grounds, its validity is to be tested on the
ground or reasons mentioned therein and
cannot be supplemented by giving reasons
through affidavit filed in the case (See
Mohinder Singh Gill and Anr. v. The
Chief Election Commissioner, New Delhi
and Ors. ).

9. It is also an admitted position
that the appellants have been dismissed
from service without holding any enquiry.
They have not been informed of the
charges against them nor been afforded
opportunity of being heard in respect of
charges before inflicting punishment of
dismissal from service. Thus, in the
absence of reasons for dispensing with the
regular enquiry the impugned order of
1948 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissal is patently illegal and it is
difficult to uphold the same."

22. In Dayashankar Tiwari and
another vs. State of U.P. and others6, the
Court in paragraphs 9, 10 and 11 held as
follows:

"9. In the present case, it is
admitted that the petitioners were caught
red handed while on duty, and no
preliminary enquiry was held nor the
petitioners were given opportunity to
explain
their
conduct.
The
Senior
Superintendent of Police has found that it
was not reasonably practicable to hold a
departmental enquiry against them only
on the ground that the act of police
personnel will cause serious damage to
the police department, and general public
will loose confidence in the police
department.

10. In all the aforesaid cases, it
was held that unless the reasons given by
the disciplinary authority that it was not
reasonably
practicable
to
hold
departmental enquiry, relevant for the
exercise of power, the courts will not
exercise power of judicial review.

11.
In
the
present
case,
acceptance of bribe and being caught red
handed in the act, may lower the image of
the police department, and the confidence
of general public, but that by itself cannot
be said to relevant grounds to dispense
with the preliminary and thereafter
departmental enquiry. The exercise of
powers under Section 8 (2) (b) will
require
the
act
of
indiscipline
or
misconduct to be such, and not its
consequences, which may be relevant to
record findings that it is not reasonably
practicable to hold departmental enquiry.
Every allegation of corrupt practice by
police officers results into possibility of
indiscipline, lowering of image and loss
of public faith. These consequences
cannot be taken to be sufficient not to
cause departmental enquiry to enquire
into the truth of allegations after affording
an
opportunity
of
hearing
to
the
delinquent employee."

23. In Rajendra Prasad Singh vs.
State of U.P. and others7, the Court in
paragraphs 9 & 10 held as follows:

"9. Thus, the consistent view is
that holding an enquiry is a rule and it's
dispensation, an exception. The test is that
in
a
prevailing
situation,
what
a
reasonable man, taking a reasonable
view, would have done. Further, the
decision
to
dispense
with
the
departmental enquiry is not based on the
ipse dixit of the authority concerned but
should be based on objective assessment
of the relevant facts. If the subjective
satisfaction is challenged before the
Court of law, it has to pass the test laid
down above and for which, it is the
burden of the disciplinary authority to
place the relevant facts and material
before the Court to justify it's action in
dispensing with the disciplinary enquiry.

10. Applying these principles to
the facts of the present case, this Court
finds that the decision to dispense with the
enquiry
is
not
based
on
relevant
considerations and cannot be sustained in
law. Perusal of the impugned order will
demonstrate that the decision to dispense
with the disciplinary enquiry is primarily
based on two grounds: (1) that the
delinquent continues to be absent and
there is no possibility of his co-operation
in the enquiry; and (2) the deeds of the
delinquent were widely reported in
various newspapers and media and,
2 All. Lokendra Pal Singh Vs State of U.P. & Ors.
1949
therefore, it would be inexpedient and
impracticable to hold the enquiry."

24. Recently, a Division Bench of
this Court in the case of Umesh Chandra
vs. State of U.P. through Secretary,
Special Appeal No.350 of 2017, decided
on 06.08.2019, (of which I was a
member),
the
Court
construed
the
provisions of Rule 8 (2) (b) of the Rules,
1991.
The
relevant
extract
of
the
judgments is quoted below:

"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."

25. The authorities in point are long,
but the position of law has been consistent
on the point.

26. In the case in hand, the Inspector
General of Police vide his order dated
09.03.2018, dismissed the services of the
petitioner relying upon a confidential/exparte preliminary enquiry report dated
15.02.2018
conducted
by
Deputy
Inspector of Police, Moradabad by stating
that since the petitioner had been posted
as Inspector in police department, a cloud
of fear exists, no witness came forward to
depose against him, as such, further
enquiry is not possible.

27. The said order also records that the
petitioner is a married person and being a
senior member of a disciplined force, has
committed misconduct within the meaning
of Rule 3 of The U.P. Government Servant
Conduct Rules, 1956. He has tarnished the
image of the police force. The continuance of
such undisciplined and criminal minded
person will cause serious damage to the
police department and general public will
loose faith. For this reason the disciplinary
authority thought it fit to dispense with the
enquiry.

28. The recital in the impugned
dismissal order dated 09.03.2018 that no
witness came forward to depose against
the petitioner in the preliminary enquiry
as such further enquiry is not possible,
needs consideration. It does not stand to
reason how witnesses were aware about
the enquiry when even the petitioner was
not informed. The said reasoning by no
stretch of imagination could be a ground
for dispensing with the disciplinary
enquiry. It is a wholly subjective opinion
not arising from any objective material.

29. It is also relevant to be noted that
if a preliminary enquiry can be held then
there is no reason as to why a regular
departmental enquiry cannot be held, in
1950 INDIAN LAW REPORTS ALLAHABAD SERIES
such facts. Admittedly, there are cross
cases registered between petitioner and
Ms. Ruma Chaudhary and also the fact
that Ms. Ruma Chaudhary had duly
appeared and deposed before the ex-parte
preliminary enquiry.

30. It is trite law that the satisfaction
of the authority has to be based upon
objective material on record. There is no
material
on
record
to
justify
the
conclusion that it was not possible to hold
a departmental enquiry.

31. Also, the order has been passed on
the basis of preliminary enquiry. The
preliminary enquiry report was never
supplied to the petitioner. The petitioner did
not have an opportunity to refute the
preliminary enquiry report. The report was
adverse to the petitioner. The authority by
failing to provide preliminary enquiry report
to the petitioner and omitting to call for
objections from the petitioner, has acted in
violation of principles of natural justice. The
procedure adopted by the authority while
passing the impugned order is arbitrary and
illegal. Even the appellate authority failed to
appreciate the aforesaid issues and dismissed
the appeal. The reasoning assigned in the
impugned orders cannot be said to be
relevant grounds to dispense with the
departmental inquiry.

32. In view of the admitted facts and
the legal position referred to above, the
impugned
dismissal
order
dated
09.03.2018 and appellate order dated
11.08.2018 cannot be sustained and are
hereby set aside.

33. The writ petition is allowed.

34. The matter is remanded back to
the disciplinary authority to proceed from
the stage prior to the passing of the
impugned order dated 09.03.2018 and
conclude the enquiry within a period of
six months from the date of production of
a certified copy of this Court.
----------

(2019)10ILR A 1950

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2019

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ A No. 39169 of 2012

Harlal Saini ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri
V.K.
Srivastava,
Sri
Santosh
Kesarwani, Sri O.P. Agrawal, Ms. Pooja
Srivastava, Sri Yogendra Kumar.

Counsel for the Respondents:
A.S.G.I., Sri A.S. Azami, Ms. Himkanya
Srivastava.

A. Administrative Law: Principles of
Natural Justice - A different conclusion
can
be
drawn
by
the
disciplinary
authority only after inviting objections of
the
delinquent
employee-The
disciplinary
authority
proceeded
to
record its own finding and disagreed
with the findings of the enquiry report-
No opportunity of hearing was given to
the petitioner- Allowing this petition, the
High Court held -It is not permitted for
the disciplinary authority to arrive at a
conclusion
on
mere
surmises
and
conjectures
to
hold
the
delinquent
employee guilty. (Para 8 & 23)

B. When the disciplinary authority differs
with the view of the inquiry officer and