# Narendra Prasad Rai v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-22
- **Case number:** Civil Misc. Writ Petition No. 14752 of 2002
- **Bench:** Bharati Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-prasad-rai-v-state-of-u-p-and-others-40827
- **Pages:** 3

## Headnote

Constitution
of
India
Art.
311
(2)
readwith U.P. Police Officers of the
subordinate
Rules
(Punishment
and
appeal) Rules 1991-Section 8 (2)(b)-
Dismissal order-without recording any
reason about impossibility of holding
enquiry-on
the
ground-unauthorised
absence petitioner found with heroin
about
which-declared
indisciplined
employee-held-order passed in violation
of the provisions of section 8 (2) (b) of
Rules without holding enquiry-petitioner
be given proper opportunity complete
the
enquiry
within
six
months-till
conclusion of disciplinary proceedingimpugned order kept in abeyance.

Held: Para 5

Such being the case, the petitioner is
justified in saying that the impugned
order dated 19.6.1993 has been in
violation of the provisions of section 8
(2)(b) of the Rules aforesaid. The
consequent
order
has
been
passed
without holding any enquiry is also
therefore vitiated. The petitioner is
clearly entitled to the protection granted
under Article 311 (2) of the Constitution
of India.
Case law discussed:
2001 (2) UPLBEC-1775 relied on.

## Text

206 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
for the State representing respondents 1,2
and 3. Few minutes thereafter learned
counsel for the respondent No.4 appeared
and stated that respondent No.4 had died
in
May
2000
and
no
substitution
application had been filed. However, as I
am dismissing the writ petition on merit
hence I need not take notice of that.

9. Accordingly there is no merit in
the writ petition hence it is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2006

BEFORE
THE HON'BLE BHARATI SAPRU, J.

Civil Misc. Writ Petition No. 14752 of 2002

Narendra Prasad Rai

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

Counsel for the Petitioner:
Sri M.L. Rai
Sri Babu Lal

Counsel for the Respondents:
S.C.

Constitution
of
India
Art.
311
(2)
readwith U.P. Police Officers of the
subordinate
Rules
(Punishment
and
appeal) Rules 1991-Section 8 (2)(b)-
Dismissal order-without recording any
reason about impossibility of holding
enquiry-on
the
ground-unauthorised
absence petitioner found with heroin
about
which-declared
indisciplined
employee-held-order passed in violation
of the provisions of section 8 (2) (b) of
Rules without holding enquiry-petitioner
be given proper opportunity complete
the
enquiry
within
six
months-till
conclusion of disciplinary proceedingimpugned order kept in abeyance.

Held: Para 5

Such being the case, the petitioner is
justified in saying that the impugned
order dated 19.6.1993 has been in
violation of the provisions of section 8
(2)(b) of the Rules aforesaid. The
consequent
order
has
been
passed
without holding any enquiry is also
therefore vitiated. The petitioner is
clearly entitled to the protection granted
under Article 311 (2) of the Constitution
of India.
Case law discussed:
2001 (2) UPLBEC-1775 relied on.

(Delivered by Hon'ble Bharati Sapru. J.)

1. Heard learned counsel for the
petitioner
and
the
learned
standing
counsel for the respondents.

2. The petitioner has made a prayer
seeking writ of certiorari quashing the
impugned orders dated 19.6.1993 and
2.3.1992 passed by the respondents no. 3
and 2 respectively (Annexures 1 and 2 to
the writ petition). The first the order of
removal
was
passed
by
the
Superintendent of Police and the second is
the order passed in appeal by the D.I.G.
(Police).

3. The contention of the petitioner is
that both the impugned orders are
arbitrary and illegal because the services
of the petitioner have been brought to an
end without giving to the petitioner an
opportunity of hearing and in violation of
the provisions of section 8 (2)(b) of the
U.P. Police Officers of the Subordinate
Ranks (Punishment and Appeal) Rules,
1991. The contention of the petitioner
also is that the provisions of section 8
(2)(b) of the Rules aforesaid can only be
dispensed with certain circumstances and
although if there are good reasons to do so
1 All] Narendra Prasad Rai V. State of U.P. and others
207
and also where the authority who is
empowered to dismiss or remove a person
is satisfied for reasons to be recorded by
the authority in writing that it is
reasonably impracticable to hold such an
enquiry.

4. I have perused the order of
termination dated 19.6.1993. The order
does not record any reason why it is
impracticable to hold an enquiry. The
order simply records that firstly the
petitioner was unauthorizedly absent,
secondly that previously also he had been
absent without leave 164 days; and thirdly
he was found with heroin for which he
has been declared indisciplined employee
but no reason has been given why it is not
possible to hold an enquiry against him.
After all in all cases of misconduct, an
enquiry is held. It is only in very special
circumstances that an enquiry can be
dispensed
with.
Therefore
if
the
provisions of Rule 8 (2) (b) are to be
invoked by the authority, then it must
record clearly the reasons for doing so.
Rule 8 (2)(b) is quoted below:

"(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;"

5. Such being the case, the petitioner
is justified in saying that the impugned
order dated 19.6.1993 has been in
violation of the provisions of section 8
(2)(b) of the Rules aforesaid. The
consequent order has been passed without
holding any enquiry is also therefore
vitiated. The petitioner is clearly entitled
to the protection granted under Article
311 (2) of the Constitution of India.
6. The petitioner, in support of his
contentions, has stated that the decision of
this Court in the case of Ram Das Yadav
versus Sena Nayak, 45th Battalion, P.A.C.
Contingent
Konkrajhar,
reported
in
(2001) 2 UPLBEC 177s5 wherein this
Court came to the conclusion that in
absence of any material being placed
before the Court, the decision to dispense
with the enquiry was not a good one. I am
in respectful agreement with the view
taken by the learned Single Judge in the
said decision and following the same.

7. In view of the above, I am of the
opinion that the petitioner must be given
an opportunity of hearing in an enquiry.
The respondents no. 1, 2 and 3 are
directed to initiate and hold an enquiry
against the petitioner giving him a proper
opportunity of hearing within a period of
ten days from the date of issuance of
certified
copy
of
this
order.
The
respondents will allow the petitioner to
participate freely in the enquiry and they
will conclude it within a period of six
months. The impugned order dated
19.6.1993 will be kept in abeyance for a
period of six months or till the conclusion
of enquiry whichever is earlier. The
petitioner
will
co-operate
with
the
authorities concerned in the enquiry. In
case, after completion of enquiry, the
petitioner is exonerated, it will be open to
the respondents to pass fresh orders in
accordance with law. It is made clear that
this order is being passed for the purposes
of
allowing
to
the
petitioner
an
opportunity of hearing and does not
amount to an order of reinstatement of the
petitioner
in
service.
However
the
petitioner will be allowed whatever
benefits he is entitled to under the law.
208 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
8. The writ petition is disposed of as
above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2006

BEFORE
THE HON'BLE A.N. VERMA, J.

Civil Misc. Writ Petition No. 53099 of 2004

Ram Ishwar @ Rameshwar and others

...Defendants-Petitioners
Versus
Laxmi Narain and another...Respondents

Counsel for the Petitioners:
Sri H.S.N. Tripathi
Sri P.S. Tripathi

Counsel for the Respondents:
Sri Pramod Kumar Jain
S.C.

Code of Civil Procedure-Section 115Revision-against the order of rejection to
issue commission-held-neither any issue
decided
nor
the
right
of
parties
adjudicated-not amount to case decidedrevision not maintainable.

Held: Para 16

Thus what is clearly decipherable from
the aforesaid discussion is that before a
Revision can be entertained in exercise
of power under Section 115 C.P.C., the
order which is said to be assailed under
Revisional jurisdiction has to be a case
decided within the meaning Section 115
of C.P.C. In view of the fact, by rejection
of
the
application
issuance
of
a
Commission, neither any issue is decided
nor any of the rights of the parties are
adjudicated upon, therefore, such an
order does not amount to a case decided
and in the considered opinion of this
Court the Revision against the same is
not maintainable.
Case law discussed:
2000 JT (7) SC-379, 2003 (6) SC-465, 2002
(49) AIR 110, 2003 (3) AWC-2198, 1994 ARC
(2)-204, 1990 ARC (1) 8

(Delivered Hon'ble A. N. Varma. J.)

The opposite party no. 1, i.e. the
Plaintiff before the trial court, instituted a
Suit, being Suit No. 209 of 1986, for
specific performance of contract against
the petitioners, i.e. Defendants. During
the pendency of the proceedings the
petitioners preferred an application for
issuance of a Commission. The trial court
vide its order dated 01.07.2004 rejected
the said application, against which the
petitioners approached the District Judge
in Revision under Section 115 of C.P.C.,
who vide its judgment and order dated
15.10.2004 dismissed the same on the
ground of maintainability. It is against the
said
judgment
and
order
that
the
petitioners have approached this Court
through the instant writ petition.

2. I have heard Sri H.S.N. Tripathi,
learned counsel for the petitioners as well
ash Sri P.K. Jain, learned counsel for the
opposite party no. 1.

3. Sri Tripathi submitted that the
learned
courts
below
committed
a
manifest error in dismissing the Revision
on the ground of maintainability.

As per his submission the application
which was preferred for issuance of
Commission was for the purpose to
ascertain as to whether or not the bricks
which were supplied to the opposite party
no. 1, were from the brick klin of the
petitioner and the money which had been
paid to them pertained to the cost of the
said bricks and not as an advance in
respect of the alleged agreement. In