# Om Prakash Yadav v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 419
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-23
- **Bench:** P. K. Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-yadav-v-state-of-u-p-and-others-42181
- **Pages:** 6

## Headnote

(Punishment and Appeal Rules 1991)
Section-Rule-2 (2) (b)-petitioner was
engaged as Police Constable-dismissed
by evoking power dispensed with formal
enquiry-without recording any reason for
not practicable to hold formal enquirywithout
recording
any
reason
for
satisfaction-about not practicable to hold
formal
enquiry-pertaining
to
appointment
based
upon
forged
certificate-case
does
not
fall
under
exception
of
Jaswant
Singh
Casedismissal order quashed.

Held: Para 14

What
emerges
from
the
above
mentioned cases is that the recording of
the reason is a condition precedent for
invoking Rule 8(2)(b) of the 1991 Rules
and the reasons must be genuine to the
420 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
facts of the case. In the present case, the
controversy against the petitioner was
that he had used the forged certificate.
To
prove
the
said
allegations,
disciplinary proceedings was necessary.
This case does not fall under the
exception carved out by the Supreme
Court in the cases of Jaswant Singh
(supra) and Satyavir Singh (supra).
Case law discussed:
(1985) 4 SCC 252; (1991) 1 SCC 362; 2006 (1)
ESC 374; 2009(9) ADJ 86; 2011 (3) UPLBEC
2421; 2011 (4) ADJ 851; 2011 (5) ADJ 835;
2010 (4) AWC 3495; 2009 (5) ADJ 405; 2008
(3) UPLBEC 2357

## Text

1 All] Om Prakash Yadav V. State of U.P. and others
419
such as 'whether aided by the State
Government or not'. These words were
subsequently added in the Amendment
Act, 2004, and thereafter the Amendment
Act, 2006.

12. In the present case it is not denied
that in the campus of the church and the
'Knox Hall', the school by the name of
'Holy Trinity School', is being run in a
separate building, which is an annexee of
the Boys High School and College. There
is no denial in the counter affidavit that this
building is being solely used as school.
The petitioner states that the school is not
getting any aid by the State Government.
In view of the exemption given under
Section 177 (c), as amended from time to
time, it is immaterial whether the building,
which is solely used as school is aided by
the State Governmetn or not.

13. There is no other provision in the
U.P. Municipal Corporation Act, 1959, nor
any reliance has been placed upon any
other provisions of law or Government
Order, which takes away the exemption
provided by Section 177 (c) of the Act to
the buildings solely used as school.

14. For the aforesaid reasons, we find
that the building of 'Holy Trinity School',
used solely for the purposes of school,
even if it is not getting any aid from the
State Government is exempt from payment
of house tax. The exemption under Section
177 (c) of the U.P. Municipal Corporation
Act, 1959, is not qualified, or conditional
and thus the school is not liable to pay any
house tax.

15. The writ petition is allowed. The
impugned assessment and the bill of house
tax and the order dated 28.10.2002 passed
by the Tax Superintendent, Nagar Nigam,
Allahabad is set aside. This judgment will
be operative only on the assessment and
demand of house tax, and will not be
applicable for any other tax or charges
levied by Nagar Nigam or any other
statutory body for taxes, fees or service
charges.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2012

BEFORE
THE HON'BLE P. K. SINGH BAGHEL, J.

Civil Misc. Writ Petition no. 3625 of 2010

Om Prakash Yadav

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

Counsel for the Petitioner:
Sri Siddharth Khare
Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

U.P. Police Officer Subordinate Rank
(Punishment and Appeal Rules 1991)
Section-Rule-2 (2) (b)-petitioner was
engaged as Police Constable-dismissed
by evoking power dispensed with formal
enquiry-without recording any reason for
not practicable to hold formal enquirywithout
recording
any
reason
for
satisfaction-about not practicable to hold
formal
enquiry-pertaining
to
appointment
based
upon
forged
certificate-case
does
not
fall
under
exception
of
Jaswant
Singh
Casedismissal order quashed.

Held: Para 14

What
emerges
from
the
above
mentioned cases is that the recording of
the reason is a condition precedent for
invoking Rule 8(2)(b) of the 1991 Rules
and the reasons must be genuine to the
420 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
facts of the case. In the present case, the
controversy against the petitioner was
that he had used the forged certificate.
To
prove
the
said
allegations,
disciplinary proceedings was necessary.
This case does not fall under the
exception carved out by the Supreme
Court in the cases of Jaswant Singh
(supra) and Satyavir Singh (supra).
Case law discussed:
(1985) 4 SCC 252; (1991) 1 SCC 362; 2006 (1)
ESC 374; 2009(9) ADJ 86; 2011 (3) UPLBEC
2421; 2011 (4) ADJ 851; 2011 (5) ADJ 835;
2010 (4) AWC 3495; 2009 (5) ADJ 405; 2008
(3) UPLBEC 2357

(Delivered by Hon'ble P.K. Singh Baghel,J. )

1. By means of the present writ
petition, the petitioner has challenged his
dismissal order dated 25.7.2007 whereby
he has been dismissed from service in
terms of Rule 8 (2)(b) of the Uttar Pradesh
Police Officers of Subordinate Rank
(Punishment & Appeal) Rules, 1991.

2. The brief facts of the case are that
the petitioner was initially appointed in the
year 2004 as a constable in Provincial
Armed Constabulary. He completed his
one year training during the period 200506 and after completion of his training, he
was posted at Fatehpur. While he was
posted in Mirzapur, on 25.7.2007 the
Commandant, 12th Battalion, Provincial
Armed Constabulary, Fatehpur dismissed
him in terms of the proviso (b) of Rule 8(2)
of the Uttar Pradesh Police Officers of
Subordinate Rank (Punishment & Appeal)
Rules, 1991.

3. The respondent nos. 2 and 3 have
filed counter affidavit. In paragraph no. 7
of the counter affidavit, it has been
mentioned that the petitioner was selected
on the post of Constable and he has
submitted a forged certificate in regard to
his three years working in U.P. Home
Guard Department. Thus, on the basis of
the forged certificate, he has got benefit of
relaxation of age. It is the further stand of
the respondents that in the inquiry, it was
found that the petitioner has worked only
one year and he was not entitled for the
maximum age relaxation on the basis of
his working certificate of U.P. Home
Guard Department and as such the Rule
8(2)(b) has been invoked. No other ground
has been mentioned in the counter affidavit
for holding the inquiry.

4. I have heard Sri Siddharth Khare
for the petitioner and learned Standing
Counsel for the respondent.

5. Sri Khare has submitted that no
notice or opportunity has been given to
him before passing the said order and from
the counter affidavit, it is clear that some
inquiry was conducted behind his back and
as such he ought to have been given
opportunity if any inquiry was conducted
against the petitioner. Sri Khare has further
urged that Rule 8(2)(b) enjoins the
Disciplinary Authority to record the reason
in writing that why it was not reasonably
practicable to hold such inquiry.

6. From the perusal of the impugned
order, it is evident that no reason at all has
been recorded in the impugned order. He
further stated that since criminal case was
pending and he expected that the said
criminal case shall be concluded within a
reasonable time and as such there was
some delay in filing the writ petition. Mr.
Khare has further submitted that the order
of the disciplinary authority is without
jurisdiction as he was posted at Mirzapur
and the Commandant, Mirzapur was
competent authority to pass the order.
However, the order has been passed by the
1 All] Om Prakash Yadav V. State of U.P. and others
421
Commandant Fatehpur and as such the
impugned order is without jurisdiction. He
has placed reliance on the Division Bench
Judgements of this Court in State of U.P.
and others Vs. Chandrika Prasad, 2006(1)
ESC 374; Yadunath Singh Vs. State of
U.P. and others, 2009(9)ADJ 1986; and
Single Bench Judgments of this Court in
Writ Petition No. 76110 of 2011, Girijesh
Kumar Singh Vs. State of U.P. and others
and Writ Petition No. 5471 of 2011,
Girijesh Kumar Singh Vs. State of U.P.
through Principal Secretary Transport
Department.

7. Learned Standing Counsel has
submitted that since the petitioner has used
the
forged
certificate
as
such
the
disciplinary authority has rightly invoked
Rule 8(2)(b) in this case. He has invited
attention of the Court towards paragraph 7
of the counter affidavit. He has further
submitted that in this case, there was no
need to comply the principles of natural
justice as he has secured his employment
by furnishing a forged document and if
that document had not been filed by him he
would not have got the age relaxation and
in such a case the disciplinary authority has
rightly dispensed with his services in terms
of Rule 8(2)(b) of the aforesaid Rules,
1991.

8. I have considered the rival
submissions. Rule 8(2)(b) gives power to
the disciplinary authority to dismiss/review
a police officer only on the ground that it is
not reasonably practicable to hold inquiry
against him.
It further enjoins the
disciplinary authority to record the reasons
for reaching to such conclusion. The Rule
8(2)(b) of the Police Rules reads as under:-

"8.
(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. The Rule 8(2)(b) is para materia to
second proviso to Article 311 of the
Constitution of India. The clause (b) of the
second proviso to Article 311 of the
Constitution
of
India
came
to
be
considered in several Judgments of the
Supreme Court. The Supreme Court in the
case of Satyavir Singh Vs. Union of India,
(1985) 4 SCC 252, has considered in detail
the amendment of second clause of Article
311 of the Constitution by the Constitution
(Forty-second Amendment) Act, 1976.
The relevant portion of the Judgment in the
case of Satyavir Singh (supra) at page 280
is as follows:-

"(104) Where a clause of the second
proviso to Article 311(2) or an analogous
service rule is applied on an extraneous
ground or a ground having no relation to
the situation envisaged in such clause or
rule, the action of the disciplinary authority
in applying that clause or rule would be
mala fide and, therefore, bad in law and the
court in exercise of its power of judicial
review would strike down both the order
dispensing with the inquiry and the order
of penalty following thereupon."

10. In the Case of Jaswant Singh Vs.
State of Punjab, (1991) 1SCC 362, the
Supreme Court held that the decision to
dispense the departmental inquiry is an
exceptional case and the concerned
authority must record its reason for its
satisfaction to dispense the disciplinary
proceedings. The relevant part of the
Judgement in the case of Jaswant Singh
(supra) at page 369 is as under:-
422 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"The decision to dispense with the
departmental enquiry cannot, therefore, be
rested solely on the ipse dixit of the
concerned authority. When the satisfaction
of the concerned authority is questioned in
a court of law, it is incumbent on those
who support the order to show that the
satisfaction is based on certain objective
facts and is not the outcome of the whim or
caprice of the concerned officer. In the
counter filed by respondent 3 it is
contended that the appellant, instead of
replying to the show cause notices,
instigated his fellow police officials to
disobey the superiors. It is also said that he
threw threats to beat up the witnesses and
the Inquiry Officer if any departmental
inquiry was held against him."

11. The three Division Benches of
this Court in the Cases of State of U.P. and
others Vs. Chandrika Prasad, 2006(1) ESC
374, Pushpendra Singh and other Vs. State
of U.P. and Yadunath Singh Vs. State of
U.P. and others, 2009(9) ADJ86 have
followed the principles laid down by the
Supreme Court in the aforementioned
cases. In the case of Pushpendra Singh
(supra), this Court held as follows:-

"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. Tutsi 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 considerations
or merely a rule to dispense with the
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 another v. Chief Election
Commissioner, New Delhi and others, AIR
1978 SC 851, para 8)."

12. The similar view has been taken
by the another Division Bench in Yadunath
Singh Vs. State of U.P. and others. In the
1 All] Om Prakash Yadav V. State of U.P. and others
423
said case also the disciplinary proceeding
was dispensed with without any plausible
reason. The only reason mentioned in the
order was that the departmental inquiry
shall consume sufficient time and on the
said ground the Rule 8(2)(b) was invoked.
This Court set aside the order of the
disciplinary authority and held as under:-

"Here in the present case, the
disciplinary authority had recorded its
satisfaction but it is well settled that that
satisfaction has to be based on germane
grounds and not ipse dixit of the
disciplinary authority. Here the only
ground to dispense with the inquiry is that
if the writ petitioner-appellant is allowed
to continue in service, a departmental
inquiry shall consume sufficient time and,
therefore, such continuance will have
bearing on the moral of the other police
personnel. We are of the opinion that the
ground recorded by the disciplinary
authority while dispensing with the inquiry
is not germane nor is it on any material
that may be relevant, as such, the ground
set forth cannot justify dispensing the
inquiry at all.

5. The provisions contained under
Rule 8 (2)(b) have been incorporated
keeping in view the provisions of Article
311 (2)(b) of the Constitution of India. The
power conferred on the authority to
dispense with an inquiry in a given
situation where it is reasonably not
practicable to hold an inquiry, has been
envisaged therein. The Apex Court in the
case of Union of India and another v. Tulsi
Ram Patel, (1985) 3 SCC 398, had the
occasion to consider the scope of the
aforesaid provision and the Apex Court
laid down the test of reasonableness in the
said case to be reflected by the authority
while proposing to dispense with an
inquiry. Paragraph 130 of the said
decision is reproduced below:

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 byway 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 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
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
424 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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 binding upon the Court so far as its
power of judicial review is concerned and
in such a case 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 is an
instance in point."

13. The aforesaid decision of the
Division Bench have been followed in
other cases namely Kuldeep Kumar Vs.
State of U.P. and others, 2011(3) UPLBEC
2421; Dharam Pal Singh Chauhan Vs.
State of U.P. and others, 2011(4) ADJ 851;
Gulabdhar Vs. State of U.P. and others,
2011(5) ADJ 835; Ram Yagya Saroj Vs.
State of U.P. and others, 2010(4) AWC
3495; Umesh Kumar Vs. State of U.P. and
others, 2009(5) ADJ 405; and Bishambher
Singh Bhadoria Vs. State of U.P. and
others, 2008 (3) UPLBEC 2357.

14. What emerges from the above
mentioned cases is that the recording of the
reason is a condition precedent for
invoking Rule 8(2)(b) of the 1991 Rules
and the reasons must be genuine to the
facts of the case. In the present case, the
controversy against the petitioner was that
he had used the forged certificate. To
prove the said allegations, disciplinary
proceedings was necessary. This case does
not fall under the exception carved out by
the Supreme Court in the cases of Jaswant
Singh (supra) and Satyavir Singh (supra).

15. In view of the above, the writ
petition is allowed. The impugned order
dated 25.7.2007 is quashed. However, it
shall be open to the respondent authority to
proceed to hold the inquiry under 1991
Rules. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 3825 of 1976

The State of U.P. Through the Divisional
Forest Officer, Mirzapur
 ...Petitioner
Versus
IVth
Additional
District
Judge
and
others

 ...Respondents

Counsel for the Petitioner:
Sri Lalji Sinha
S.C.

Counsel for the Respondents:
Sri V.K. Singh
Sri Bhagwati Prasad Singh
Sri H.P. Mishra
Sri R.N. Singh
Sri V.K. Singh
Sri B.P. Singh
Sri Vivek Kumar Singh

Indian
Forest
Act
1927-Section
3Deceleration of land -about 746 Bigha 17
Biswa-as
surplus
land-situated
in
revenue village Babua Raghunath Singhobjection by Raja Vishwanath Singhbeing hereditary tenant after abolition of
Zamindari become Sirdar under Section
19 and subsequently Bhumidhar-as such
after deposit of 20 times rent became
Bhumidhar-who
gifted
to
Charitable
Trust DAIYA-hence can not be declared