# Mahendra Singh v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 445
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-06-12
- **Case number:** Criminal Misc. Writ Petition No. 54329 of 2008
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-v-state-of-u-p-and-others-41535
- **Pages:** 10

## Headnote

(Punishment and Appeal) Rules 1991Rule-8(2)(b)-Dismissal
by
exercising
power under Rule 8 of without necessary
446 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
reasons of satisfaction-conclusion drawn
on basis of presumption-on allegation,
the petitioner allowed the juvenile to
escave from medical examination-not
supported by any evidence, material or
fact finding enquiry-held not justified.

Held: Para 13

The Supreme Court and this Court have
repeatedly held that whenever power
under Rule 8(2)(b) of the Rules of 1991
is to be exercised, the disciplinary
authority must be very cautious and
must record satisfaction on the material
collected by him in writing and give
reasons, which may be subject to judicial
review about the necessity in public
interest to dispense with the enquiry and
to dismiss the delinquent employee. In
the
present
case
the
Senior
Superintendent of Police, Kanpur Nagar
has committed patent error in recording
such
satisfaction.
The
facts
and
circumstances do not justify the reasons
and the conclusions drawn by him.
Case law discussed:
1985 SC 1416

## Text

2 All] Mahendra Singh V. State of U.P. and others
445
title in regard to the plots in question were
evidently beyond the purview of the
proceedings for sanction of the map
before the authorities constituted under
the Act . The Prescribed Authority as well
as the Appellate Authority acted beyond
jurisdiction in going into the question of
title to the plots in question and in holding
the plots in question to be the Waqf
property.

55. As noted earlier, the respondent
no. 1 by the order dated 9.8.2005 allowed
the Revision filed by the respondent nos.
4 to 7 and set-aside the orders of the
Prescribed Authority and the Appellate
Authority. Further, the respondent no. 1
also went into the question of title and
held that the plots in question were not
proved to be the Waqf property or part of
the Waqf property. It was not open to the
respondent no.1 to go into the said
question.

56. In view of the above, I am of the
opinion that the order dated 9.8.2005
passed by the respondent no. 1 allowing
the Revision under Section 15 -A of the
Act , and setting-aside the order dated
16.3.2001 passed by the Prescribed
Authority and the order dated 26.3.2002
passed by the Appellate Authority, is
correct and legal, but the said order dated
9.8.2005 to the extent ,it went into the
question of title to the plots in question, is
not legal.

57. In fact, the order passed by the
Prescribed Authority as well as the
Appellate Authority were liable to be setaside /quashed on the ground that the said
orders decided the question of title to the
plots
in
question
which
the
said
authorities had no jurisdiction to decide.
As the order dated 9.8.2005 passed by the
respondent no.1 set- aside the orders
passed by the Prescribed Authority and
the Appellate Authority, though for
different reasons, the said order dated
9.8.2005 deserves to be upheld to the
extent it set-aside the orders passed by the
Prescribed Authority and the Appellate
Authority. In the circumstances, the Writ
Petition filed by the petitioner is liable to
be dismissed.

The Writ Petition filed by the
petitioner
is
accordingly,
dismissed.
However, on the facts and in the
circumstances of the case, there will be no
order as to costs.

58. It is made clear that this order
will not come in the way of the petitioner
in seeking proper reliefs before the
appropriate forum.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.06.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Criminal Misc. Writ Petition No. 54329 of
2008

Mahendra Singh, Constable No. 444 A.P.

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

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Opposite Parties:
S.C.

U.P. Police Officers Subordinate Ranks
(Punishment and Appeal) Rules 1991Rule-8(2)(b)-Dismissal
by
exercising
power under Rule 8 of without necessary
446 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
reasons of satisfaction-conclusion drawn
on basis of presumption-on allegation,
the petitioner allowed the juvenile to
escave from medical examination-not
supported by any evidence, material or
fact finding enquiry-held not justified.

Held: Para 13

The Supreme Court and this Court have
repeatedly held that whenever power
under Rule 8(2)(b) of the Rules of 1991
is to be exercised, the disciplinary
authority must be very cautious and
must record satisfaction on the material
collected by him in writing and give
reasons, which may be subject to judicial
review about the necessity in public
interest to dispense with the enquiry and
to dismiss the delinquent employee. In
the
present
case
the
Senior
Superintendent of Police, Kanpur Nagar
has committed patent error in recording
such
satisfaction.
The
facts
and
circumstances do not justify the reasons
and the conclusions drawn by him.
Case law discussed:
1985 SC 1416

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Shri Vijay Gautam, learned
counsel
for
the
petitioner.
Learned
Standing
Counsel
appears
for
the
respondents.

2. The petitioner-Constable No. 444,
Civil Police Mahendra Singh has filed this
writ petition for a writ of certiorari to
quash the orders dated 21.11.2007 passed
by the Senior Superintendent of Police,
Kanpur Nagar under Rule 8(2)(b) of the
U.P. Police Officers of Subordinate Ranks
(Punishment and Appeal) Rules, 1991 (in
short the Rules of 1991); the order of the
Deputy Inspector General of Police,
Kanpur Range, Kanpur dated 30.06.2008
and the order dated 25.09.2008 passed by
the Inspector Genera of Police, Kanpur
Zone, Kanpur dismissing the revision.
The petitioner has also prayed for writ of
mandamus for direction to reinstate him
in service with regular salary and all
consequential benefit and has also prayed
for arrears of salary.

3. The order by which the Senior
Superintendent of Police, Kanpur Nagar,
as a competent authority under the Rules
of 1991 has dismissed the petitioner,
dispensing with department enquiry on
the ground that it is not reasonably
practicable to hold the enquiry. It states in
the order, that on 20.11.2007 the
petitioner along with Constable 1039
Civil Police Umesh Prasad Gupta were
relieved in pursuance of the order of the
Juvenile Justice Board, Kanpur Nagar
dated 16.11.2007 by G.D. Entry No. 19 at
9.00 a.m. On 20.11.2007 from the
juvenile Home, Kidwai Nagar, Kanpur
with juvenile accused Raju son of Somaia
for medical examination to ascertain his
age. They were responsible to produce the
child before the Chief Medical Officer,
UHM Hospital, Kanpur for examination,
and thereafter to take him back to the
Government
Home,
Kidvai
Nagar,
Kanpur. The constables committed gross
negligence and impropriety in allowing an
opportunity to the child accused to
escape. They were physically more
stronger than the child and were given
handcuffs and rope to keep him under
control. The Senior Superintendent of
Police has observed that the negligence
has not only tarnished the image of the
police department but has also affected
the credibility of the department in the
estimation of the general public. He has
thereafter observed that the child accused
to escape from police custody, and thus he
find it justifiable to adopt the procedure
prescribed under Rule 8(2)(b) of the Rules
2 All] Mahendra Singh V. State of U.P. and others
447
of 1991 to punish him. In his opinion
recorded in the order passed under Rule
8(2)(b) of the Rules of 1991, he states that
if competent authority is satisfied for the
reason recorded in the order that it is not
reasonably practicable to hold an enquiry
before dismissal, removal or reversion of
rank of the office, the competent authority
can exercise the powers. In the present
case after deeply examining the matter he
has arrived at a conclusion that the serious
irregularity committed by the petitioner in
which he had intentionally helped the
child accused to escape does not make it
reasonably
practicable
to
hold
a
departmental enquiry.

4. The Deputy Inspector General of
Police as appellate authority and the
Inspector General of Police as revisionary
authority have upheld the orders and the
exercise of powers by the Senior
Superintendent of Police under Rules
8(2)(b) of the Rules of 1991.
----------------------------------------------
Clause (2) of Article 311 of the
Constitution of India provides that no
person who holds a civil post under the
Union or the State "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." The second
proviso to clause (2), however, specifies
three situations in which the requirement
in Clause (2) do not apply. Clause (b) of
the second proviso states that "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 an
inquiry." the enquiry and the opportunity
provided by clause (2) can be dispensed
with
and
punishment
imposed
straightaway. Clause (3) of Article 311 is
a continuation of clause (b) or the second
proviso. Clause (3) says, "if, in respect of
any such person as aforesaid, a question
arises whether it is reasonably practicable
to hold such an inquiry as is referred to in
clause (2), the decision thereon on the
authority empowered to dismiss or
remove such person or to reduce him in
rank shall be final"

5. In Union of India v. Tulsiram
Patel,
AIR
1985
SC
1416,
the
Constitution Bench of the Supreme Court
held in paragraphs 130, 131, 132, 133,
134, 135, 136, 136-A and 137 as follows:

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 Oxfore
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
448 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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
practicablein 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 instance 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 witness who are
going to give 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
others
threatens,
intimidates
and
terrorizes
the
officer
who
is
the
disciplinary authority or members 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
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. The finality given to the
decision of the disciplinary authority by
Article 311(3) is not finding upon the
court so fas as its power of judicial review
is concerned and in such a se the court
will strike down the order dispensing with
the inquiry as also the order imposing
penalty. The case of Arjun Chaubey v.
Union of India (1984) 3 SCR 302:(AIR
1984 SC 1356) is an instance in point. In
that case, the appellant was working as a
senior clerk in the office of the Chief
Commercial
Superintendent,
Northern
Railway,
Varanasi.
The
Senior
Commercial Officer wrote a letter to the
appellant calling upon him to submit his
explanation with regard to twelve charges
of gross indiscipline mostly relating to the
Deputy
Chief
Commercial
Superintendent. The appellant submitted
his explanation and on the very next day
the
Deputy
Chief
Commercial
Superintendent served a second notice on
the appellant saying that his explanation
was not convincing and that another
chance was being given to him to offer his
explanation with respect to those charges.
The appellant submitted his further
explanation but on the very next day the
Deputy Chief Commercial Superintendent
passed an order dismissing him on the
ground that he was not fit to be retained
in service. This Court struck down the
order holding that seven out of twelve
charges related to the conduct of the
appellant
with
the
Deputy
Chief
Commercial Superintendent who was the
disciplinary authority and that if an
inquiry were to be held, the principal
witness for the Department would have
2 All] Mahendra Singh V. State of U.P. and others
449
been the Deputy Chief Commercial
Superintendent himself, resulting in the
same person being the main accuser, the
chief witness and also the judge of the
matter.
131. It was submitted that where a
delinquent
government
servant
so
terrorizes the disciplinary authority that
neither that officer nor any other officer
stationed at that place is willing to hold
the inquiry, some senior officer can be
sent from outside to hold the inquiry. This
submission itself shows that in such a
case the holding of an inquiry is not
reasonably practicable. It would be
illogical to hold that the administration
work carried out by senior officers should
be paralysed because a delinquent
servant either by himself or along with or
through others makes the holding of an
inquiry not reasonably practicable.
132. It is not necessary that a situation
which makes the holding of an inquiry not
reasonably
practicable
should
exist
before the disciplinary inquiry is initiated
against a government servant. Such a
situation can also come into existence
subsequently during the course of an
inquiry, for instance, after the service of a
charge-sheet
upon
the
government
servant or after he has filed his written
statement thereto or even after evidence
has been led in part. In such a case also
the disciplinary authority would be
entitled to apply to apply clause (b) of the
second
proviso
because
the
word
"inquiry" in that clause includes part of
an inquiry. It would also not be
reasonably practicable to afford to the
government servant an opportunity of
hearing or further hearing, as the case
may be, when at the commencement of the
inquiry or pending it the government
servant absconds and cannot be served or
will not participate in the inquiry. In such
cases, the mater must proceed ex parte
and
on
the
material
before
the
disciplinary authority. Therefore, even
where a part of an inquiry has been held
and the rest is dispensed with under
clause (b) or a provision in the service
rules analogous thereto, the exclusionary
words of the second proviso operate in
their full vigour and the government
servant cannot complain that he has been
dismissed, removed or reduced in rank in
violation of the safeguards provided by
Article 311(2).
133. The second condition necessary for
the valid application of clause (b) of the
second proviso is that the disciplinary
authority should record in writing its
reason for its satisfaction that it was not
reasonably practicable to hold the inquiry
contemplated by Article 311(2). This is a
Constitutional obligation and if such
reason is not recorded in writing, the
order dispensing with the inquiry and
order of penalty following thereupon
would both be void and unconstitutional.
134. It is obvious that the recording in
writing of the reason for dispensing with
the inquiry must precede the order
imposing the penalty. The reason for
dispensing with the inquiry need not,
therefore find a place in the final order. It
would be usual, to record the reason
separately and then consider the question
of the penalty to be imposed and pass the
order
imposing
penalty.
It
would
however, be better to record the reason in
the final order in order to avoid the
allegation that the reason was not
recorded in writing before passing the
final
order
but
was
subsequently
fabricated. The reason for dispensing
with the inquiry need not contain
detailed particulars, but the reason must
not be vague or just a repetition of the
language of clause (b) of the second
450 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
proviso. For instance, it would be no
compliance with the requirement of
clause (b) for the disciplinary authority
simply to state that he was satisfied that
it was not reasonably practicable to hold
any inquiry. Sometimes a situation may
be such that it is not reasonably
practicable to give detailed reason for
dispensing with the inquiry. This case
must be judged on its own merit and in
the
light
of
its
own
facts
and
circumstances.
135. It was vehemently contended that if
reasons are not recorded in the final
order, they must be communicated to the
concerned government servant to enable
him to challenge the validity of the reason
in a departmental appeal or before a
court of law and that failure to
communicate
the
reasons
would
invalidate the order. This contention too
cannot be accepted. The constitutional
requirement in clause (b) is that the
reason for dispensing with the inquiry
should be recorded in writing. There is no
obligation to communicate the reason to
the government servant. At clause (3) of
Article 311 makes the decision of the
disciplinary authority on this point final,
the question cannot be agitated in a
departmental appeal, revision or review.
The obligation to record the reason in
writing is provided in clause (b) so that
the superiors of the disciplinary authority
may be able to judge whether such
authority had exercised its power under
clause (b) properly or not with a view to
judge the performance and capacity of
that officer for the purposes of promotion
etc. it would however, to better for the
disciplinary authority to communicate to
the government servant its reason for
dispensing with the inquiry because such
communication
would
eliminate
the
possibility of an allegation being made
that the reasons have been subsequently
fabricated. It would also enable the
government servant to approach the High
Court under Article 226 or, in a fit case,
this Court under Article 32. If the reasons
are not communicated to the government
servant and the matter comes to the court,
the court can direct the reasons to be
produced,and famished to the government
servant and if still not produced a
presumption should be drawn that the
reasons were not recorded in writing and
impugned
order
would
then
stand
invalidated.
Such
presumption
can,
however, be rebutted by a satisfactory
explanation for the non-production of the
written reasons.
136. It was next submitted that though
clause (b) of the second proviso excludes
an inquiry into the charges made against
a government, it does not exclude an
inquiry preceding it,namely an inquiry
into whether the disciplinary inquiry
should be dispensed with or not, and that
in such a preliminary inquiry the
government servant should be given an
opportunity of a hearing by issuing to him
a notice to show cause why the inquiry
should not be dispensed with so as to
enable him to satisfy the disciplinary
authority that it would be reasonably
practicable to hold the inquiry. This
argument
is
illogical
and
is
a
contradiction in terms. If an inquiry into
the question whether the disciplinary
inquiry inquiry should be dispensed with
or
not
is
equally
not
reasonably
practicable.
136A. A government servant who has
been dismissed, removed or reduced in
rank by applying to his case clause (b) or
an-analogous provision of a service rule
is not wholly without a remedy. As
pointed out earlier while dealing with the
various service rules. He can claim in a
2 All] Mahendra Singh V. State of U.P. and others
451
departmental appeal or revision that an
inquiry be held with respect to the
charges on which the penalty of dismissal,
removal or reduction in rank has been
imposed upon him unless the same or a
similar situation prevails at the time of
hearing of the appeal or revision
application. If the same situation is
continuing or a similar situation arises, it
would not then be reasonably practicable
to hold an inquiry at the time of the
hearing of the appeal or revision. Though
in such a ease as the government servant
if dismissed or removed from service, is
not continuing in service and it reduced in
rank, is continuing in service, with such
reduced rank, no prejudice could be
caused
to
the
government
or
the
Department if the hearing of an appeal or
revision application, as the case may be,
is postponed for a reasonable time.
137. Where a government servant is
dismissed, removed or reduced in rank by
applying clause (b) or an analogous
provision of the service rules and he
approaches either the High Court under
Article 226 or this Court under Article 32,
the court will interfere on grounds well
established in law for the exercise or
power of judicial review in matters where
administrative discretion is exercised. It
will consider whether clause (b) or an
analogous provision in the service rules
was property applied or not. The finality
given by clause (3) of Article 311 to the
disciplinary authority's decision that it
was not reasonably practicable to hold
the inquiry not binding upon the court.
The court will also examine the charge
of malafides, if any made in the writ
petition. In examining the relevancy of
the reasons, the court will consider the
situation
which
according
to
the
disciplinary authority made it come to
the conclusion that it was not reasonably
practicable to hold the inquiry. If the
court
finds
that
the
reasons
are
irrelevant. Then the recording of its
satisfaction by the disciplinary authority
would be an abuse of power conferred
upon it by clause (b) and would take the
case out the purview of that clause and
the impugned order of penalty would
stand invalidated. In considering the
relevancy of the reasons given by the
disciplinary authority the court will not,
however, sit in judgment over them like a
court of first appeal. In order to decide
whether the reasons are germane to
clause(b) the court must put itself in the
place of the disciplinary authority and
consider what in the then prevailing
situation a reasonable man acting in a
reasonable way would have done. The
matter will have to be judged in the light
of the then prevailing situation and not
as if the disciplinary authority was
deciding the question whether the
inquiry should be dispensed with or not
in the cool and detached atmosphere of a
courtroom, removed in time, from the
situation in question. Where two view
are possible, the court will decline to
interfere.

6. Rule 8 of the U.P. Police Officers
of Subordinate Rank (Punishment &
Appeal) Rules 1991 ( in short the Rules of
1991) provides for dismissal and removal
of police officers in the State of U.P.
Rules 8 is quoted as below:-

"8. Dismissal and removal-(1) No
police office 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
452 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
disciplinary proceeding 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
or 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-InspectorGeneral 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."

7. Rule 8 is paramateria of Art.
311(1) and (2) of the Constitution of
India. The normal rule is that no punitive
action
entailing
consequences
of
dismissal, removal or reduction of rank
would be taken without holding a
disciplinary enquiry against a member of
civil service unless and until he has been
informed or the charges and given a
reasonable opportunity of being heard in
respect of those charges. The exceptions
given in Art. 311(2) of the Constitution of
India embodied in Rule 8(2) are in respect
of certain case, where holding of
departmental enquiry has been dispensed
with on the conduct, which is led to
conviction of the person on a criminal
charge, where authority empowered is
satisfied that for some reasons to be
recorded by that authority in writing, it is
not reasonably practicable to hold such
enquiries; or where the government is
satisfied that in the interest of the security
of the State, is not expedient to hold such
enquiry. In Chandigarh Administration,
Union Territory, Chandigarh Vs. Ajay
Manchanda AIR1996 SC 3152 the
Supreme Court held that though it is not
necessary that reasons must find in place
in the order of punishment, the authority
must produce the same, when called upon
to do by the Court.

8. The Division Bench of this Court
have followed the aforesaid principles of
law laid down by the Supreme Court in
State of U.P. Vs. Chandrika Prasad
2006(1)
ESC
374
(ALLD.)(DB);
Pushpendra (Cp) 2187 & Anr. Vs. State
of U.P. & Anr., 2008(3)ADJ 689 (DB)
and Awadhesh Kumar Vs. State of U.P.,
Special Appeal No.217 of 2008 decided
on 16.7.2008.
-----------------------

In this case the reasons given in the
order, in finding, that it is not reasonably
practicable to hold an enquiry are based
only upon gravity of the incident. The
Senior Superintendent of Police has come
to a conclusion that the petitioner had
2 All] Mahendra Singh V. State of U.P. and others
453
deliberately and intentionally given an
opportunity to the child accused to
escape. He did not exercise the reasonable
care and used the hand cuff and rope
provided to them. He was physically
powerful than the child in their custody
and that he could have used force, raised
alarm and could have made efforts to
catch them. These acts on its own were
treated as sufficient to dispense with
departmental enquiry. The order also
mentions that in 26 years of his service
the petitioner has been punished seven of
times minor penalties and has been
awarded a censure entry although the
service record of the petitioner has not
been found to be a reason to dispense with
the departmental enquiry, the recital of
the facts in the order demonstrates that
authority took into account the service
records of the petitioner in awarding him
punishment of dismissal from service.

9. Shri Vijay Gautam, learned
counsel for the petitioner submits that the
Senior Superintendent of Police has
drawn conclusions about the guilt of the
petitioner without making any preliminary
enquiry, or allowing the petitioner an
opportunity to explain the circumstances
in which the child had escaped. The
matter called for framing of charges and
to allow opportunity to the petitioner to
explain the circumstances in which the
delinquent
child
escaped.
On
the
principles of law laid down by Supreme
Court, the departmental enquiry in the
present case could not be dispensed with.
Shri Gautam submits that the neither the
charge not the circumstances were such
against the petitioner was not such on
which it could be said that it was
reasonably practicable to hold an enquiry.

10. Learned Standing Counsel
submits that the petitioner along with
another constable was under duty to keep
the child in their custody and to take him
back to the protection home. The fact that
the petitioner having physical superiority
and authority with handcuff and rope
could not prevent escape was sufficient to
draw conclusions and to record reasons
that it was not reasonably practicable to
hold a departmental enquiry.

11. I find substance in the contention
of learned counsel for the petitioner that
the
required
to
produce
him
for
examination in the hospital, would not by
itself be a ground to dispense with the
departmental enquiry. The charge of
negligence in performance of duties in
which a delinquent child prisoner escaped
from the custody of the constables could
not be a reason unless the facts and
circumstances were such, which may had
lead the disciplinary authority to draw
such presumption. It is not a case, where a
hardened criminal, terrorists or a known
dacoit has escaped from the custody of
the police. The circumstances in which
the child escaped from the custody of the
constables could be many, and may have
been explained by the petitioner. The
presumption
drawn
by
the
Senior
Superintendent
of
Police
that
the
petitioner deliberately and intentionally
allowed the child to escape, are not
supported by any evidence, material or
fact finding enquiry. He has drawn the
conclusion of the complicity of the
petitioner only on the ground that the
petitioner and his fellow constable were
physically stronger that the child in their
custody and that they were provided with
handcuff and rope to tie him down.
454 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

12. The observation in the order of
the disciplinary authority, that Rule 4(a)
fo the Rules of 1991 provides for major
penalty on the misconduct and allowing a
prisoner to escape, is wholly misplaced.
Such punishment can be awarded only
after the police officer is found guilty of
negligence in allowing the prisoner to
escape. The finding in this regard can be
given only after a departmental enquiry.

13. The Supreme Court and this
Court have repeatedly held that whenever
power under Rule 8(2)(b) of the Rules of
1991 is to be exercised, the disciplinary
authority must be very cautious and must
record
satisfaction
on
the
material
collected by him in writing and give
reasons, which may be subject to judicial
review about the necessity in public
interest to dispense with the enquiry and
to dismiss the delinquent employee. In the
present case the Senior Superintendent of
Police, Kanpur Nagar has committed
patent error in recording such satisfaction.
The facts and circumstances do not justify
the reasons and the conclusions drawn by
him.

14. The writ petition is allowed. The
order dated 21.11.2007, 30.6.2008 and
25.9.2008 are set aside. The respondents
are directed to reinstate the petitioner with
all consequential benefits, and with liberty
to initiate departmental enquiry against
him in accordance with Rules of 1991.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.06.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 44867 Of
2008

Subodh Kumar

...Petitioner

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

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
Sri Niraj Upadhyay
S.C.

U.P. Police Officers of Subordinate Rank
(Punishment of Appeal) Rules, 1991Rule 8 (2) (6)-Dismissal from Servicewithout holding enquiry-challenged on
ground
no
reasons
recorded
for
satisfaction
of
disperse
with
departmental enquiry-petitioner Police
Constable-working
as
member
of
Security squad-in North East Expressinstead of providing help-indulged in
beating the passenger, robbed them,
behaved indecently with women and
fired with Government rifle-on protest of
passenger at the interference of District
Magistrate and other Higher District
Authority-the situation normalized-No
denial of allegations-finding about no
possibility to hold enquiry and dismissal
do not suffer from any error of law.

Held: Para 13

The
reasons
recorded
by
the
Superintendent of Police, Railway, Agra
as
disciplinary
authority,
in
the
prevailing situation, finding that it was
not
reasonably
practicable
to
hold
disciplinary enquiry, do not suffer from
any error of law. He has applied his mind
to the relevant facts and has recorded