# Pradeep Kumar v. State of U.P. & Ors. 138 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 8 ILRA 137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-06-30
- **Case number:** Service Single No. 24958 of 2018
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-v-state-of-u-p-ors-138-indian-law-reports-allahabad-series-47164
- **Pages:** 7

## Headnote

A. Service Law - U.P. Subordinate Police
Officers (Punishment and Appeal) Rules,
1991 - Rule 8(2)(b) - The grounds i.e., (a)
the petitioner not being available and (b)
the
matter
pertains
to
indiscipline,
indicated by the competent authority
while summarily dismissing the petitioner
from service, would not stand the test for
not
holding
a
regular
departmental
inquiry. (Para 14-15)

The petitioner is alleged to have committed
misconduct i.e., having been drunk on duty,
opened the armory, taken out a rifle and
threatened the personnel who were present
there. On medical examination, he was found to
be drunk on duty. (Para 10)

Writ Petition Partly Allowed. (E-8)

List of Cases cited:-

## Text

8 All. Pradeep Kumar Vs. State of U.P. & Ors.
137
retired from service on 30.6.2019 but no
such exercise has been carried out.
Admittedly, the impugned exercise has
been carried out after 15 months from
retirement of the petitioner when the
petitioner approached this Court for getting
post retiral benefits and this Court directed
the competent authority to dispose of the
representation of the petitioner. Therefore,
the concerned opposite parties may not
deduct excess payment from the post retiral
dues of the petitioner who retired from
Class III post in view of the dictum of
Hon'ble Apex Court in the case of Rafiq
Masih (supra). It is also to be noted that
before
passing
impugned
order
no
opportunity of hearing of any kind
whatsoever had been provided to the
petitioner, therefore, on that account too the
impugned order dated 21.9.2020 is patently
illegal,
arbitrary,
discriminatory
and
uncalled for and same is not sustainable in
the eyes of law.

9. Besides, in view of the dictum of
Apex Court in re: Sushil Kumar Singhal
vs. Principal Secretary, Irrigation and
others reported in (2014) 16 Supreme
Court Cases 444 neither the excess
amount, which has been paid w.e.f.
12.7.2002 when the petitioner completed
24 years of service, may be recovered from
the petitioner nor his pension can be
reduced. Para 7 of the aforesaid judgment
is being reproduced herein below :

"Upon perusal of the aforestated
G.O, and the submission made by the
learned
counsel
appearing
for
the
appellant, it is not in dispute that the
appellant had retired on 31-12-2003 and at
the time of his retirement his salary was Rs
11.625 and on the basis of the said salary
his pension had been fixed as Rs 9000
Admittedly, if any mistake had been
committed in pay fixation, the mistake had
been committed in 1986 i.e. much prior to
the retirement of the appellant and
therefore, by virtue of the aforestated G.O.
dated 16-1-2007, neither any salary paid
by mistake to the appellant could have been
recovered nor pension of the appellant
could have been reduced."

10. Accordingly, the writ petition is
allowed.

11. A writ in the nature of certiorari is
issued quashing the order dated 21.9.2020
passed by the Finance Controller, Medical
&
Health
Services,
U.P.,
Lucknow
(Annexure no. 1 to the writ petition).

12. A writ in the nature of mandamus
is issued commanding the opposite parties
not to deduct any amount from the
petitioner in the name of excess amount
paid and release his entire amount already
deducted from the post retiral dues of the
petitioner
with
promptness
preferably
within a period of three months failing
which the petitioner shall be entitled for the
interest @ 8%.

13. No order as to costs.
----------

(2021)08ILR A137
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.08.2021

BEFORE

THE HON'BLE ABDUL MOIN, J.

Service Single No. 24958 of 2018

Pradeep Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
138 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Rajesh Kumar

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Subordinate Police
Officers (Punishment and Appeal) Rules,
1991 - Rule 8(2)(b) - The grounds i.e., (a)
the petitioner not being available and (b)
the
matter
pertains
to
indiscipline,
indicated by the competent authority
while summarily dismissing the petitioner
from service, would not stand the test for
not
holding
a
regular
departmental
inquiry. (Para 14-15)

The petitioner is alleged to have committed
misconduct i.e., having been drunk on duty,
opened the armory, taken out a rifle and
threatened the personnel who were present
there. On medical examination, he was found to
be drunk on duty. (Para 10)

Writ Petition Partly Allowed. (E-8)

List of Cases cited:-

1. U.O.I. Vs Tulsiram Patel (1985) 3 SCC 398
(followed)

2. Risal Singh Vs St. of Hary. & ors. (2014) 13
SCC 244 (followed)

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner
and
Sri
Saharsh,
learned
Standing counsel appearing for the Staterespondents.

2. The present petition has been filed
praying for quashing of the order dated
30.03.2018 passed by the respondent no. 2,
a copy of which is annexure 2 to the writ
petition by which the petitioner has been
dismissed from service as well as the order
dated
25/27.07.2018
passed
by
the
respondent no. 3, a copy of which is
annexure 3 to the writ petition by which the
appeal filed by the petitioner against the
dismissal order has been dismissed. A
further
prayer
is
for
a
mandamus
commanding the respondents to reinstate
the petitioner in service.

3. Bereft of unnecessary details, the
facts set forth by the petitioner is that an
incident took place on 29.03.2018 wherein
the petition is alleged to have gone to the
office in a drunken state, of having
threatened the service personnel working
there and having opened the armoury, taken
out a rifle and having cocked the same and
threatened the personnel. The petitioner
was counselled, caught and taken for
medical examination wherein he was found
to be drunk. The petitioner was placed
under suspension and thereafter through the
impugned order dated 30.03.2018, a copy
of which is annexure 1 to the writ petition,
the petitioner has been dismissed from
service by invoking Rule 8 (2) (b) of the
Uttar Pradesh Subordinate Police Officers
(Punishment and Appeal) Rules, 1991
(hereinafter referred to as "Rules, 1991").
The petitioner had initially approached this
Court by filing Writ Petition No. 22292
(SS) of 2018 Inre; Pradeep Kumar Vs. State
of U.P and Ors which was disposed of with
a direction to the respondent no. 3 to decide
the pending appeal of the petitioner. The
appeal has been rejected vide order dated
25/27.07.2018, a copy of which is annexure
3 to the writ petition and hence the present
petition.

4. Learned counsel for the petitioner
contends
that
though
the
competent
authority has got the power to invoke Rule
8 (2) (b) of the Rules, 1991 and to dismiss
an employee summarily but then the
reasons as to why it is not found reasonably
8 All. Pradeep Kumar Vs. State of U.P. & Ors.
139
practicable to hold an inquiry should form
part of record. He contends that a perusal of
the impugned order dated 30.03.2018
would indicate that only two reasons have
been recorded in the impugned order
namely (a) the petitioner not being
available and (b) the matter pertains to
indiscipline. Learned counsel for the
petitioner contends that both the grounds
reflect patent non application of mind
inasmuch as even in case the petitioner was
not available though the order was being
passed the very next day of the alleged
incident, the respondents could very well
have issued a charge sheet and could have
proceeded
ex-parte
in
case
of
non
availability of petitioner but the same
cannot be a ground for invocation of Rule 8
(2) (b) of the Rules, 1991. So far as it has
been indicated in the impugned order that
as the matter pertains to indiscipline, as
such the said rule is being invoked, learned
counsel for the petitioner contends that
even the said ground is meaningless
inasmuch as disciplinary proceedings after
issue of a charge sheet can always be done
in case the matter pertains to indiscipline
and the same cannot be a ground for
invocation of Rule 8 (2) (b) of the Rules,
1991
for
dismissing
the
petitioner
summarily. He also contends that the
appellate order being also based on the
impugned order dated 30.03.2018 and
having not referred to the two grounds on
which Rule 8 (2) (b) has been invoked also
merits outright quashing as the same
reflects non application of mind.

5. In this regard, learned counsel for
the petitioner has placed reliance on the
Constitution Bench judgment in the case of
Union of India Vs. Tulsiram Patel
reported in (1985) 3 SCC 398 to contend
that where a dismissal order had been
passed by invoking Article 311 (2) proviso
(b) which is pari materia to Rule 8 (2) (b)
of the Rule, 1991, the Apex Court has held
that Article 311 (2) proviso (b) can only be
invoked where it is not reasonably
practicable to hold an inquiry and the
illustrations in this regard have also been
given by the Apex Court. Placing reliance
on the said judgment, it is contended that
none of the principles as have been laid
down by the Apex Court in the case of
Tulsiram Patel (supra) are attracted in the
facts of the present case so as to dispense
with the regular inquiry, as has sought to be
done by the respondents.

6. Reliance has also been placed on
the judgment of the Apex Court in the case
of Risal Singh Vs. State of Harayana and
Ors reported in (2014) 13 SCC 244
wherein, after following the judgment of
Tulsiram Patel (supra), the Apex Court
has set aside an order of dismissal which
had been passed by invoking Article 311
(2) (b).

7. Placing reliance on the aforesaid
judgments, it is contended that once both
the grounds on which the competent
authority has not found it reasonably
practicable to hold an inquiry are patently
frivolous reflecting patent non application
of mind, as such the impugned order merits
to be quashed with the further direction for
reinstatement of the petitioner.

8. On the other hand, Sri Saharsh,
learned Standing counsel submits that the
conduct of the petitioner itself is of a
heinous nature inasmuch as he was firstly
drunk on duty and secondly had opened the
armoury, taken out a rifle and had cocked
the same on the employees present and it is
only after much persuasion that the
petitioner was counselled, caught and taken
to the doctor for medical examination. He
140 INDIAN LAW REPORTS ALLAHABAD SERIES
also submits that in case any untoward
incident would have happened, the same
would have spoiled the discipline of the
armed forces apart from having injured or
killed or seriously maimed the personnel
who were present there and hence by
invoking Rule 8 (2) (b), the impugned
order has correctly been passed by the
authority concerned.

9. Heard learned counsel appearing
for the contesting parties and perused the
records.

10. From a perusal of record it is
apparent that the petitioner is alleged to have
committed misconduct on 29.03.2018 i.e
having been drunk on duty, opened the
armoury, taken out a rifle and threatened the
personnel who were present there. The
petitioner had been caught and after medical
examination, he was found to be drunk on
duty. The respondents, instead of holding a
departmental inquiry, have proceeded to
summarily dismiss the petitioner after
invoking Rule 8 (2) (b) of the Rules, 1991.
The grounds indicated as to why it is not
reasonably practicable to hold the inquiry are
(a) the petitioner not being available and (b)
the matter pertains to indiscipline.

11. So far as both the grounds are
concerned, in case the petitioner was not
found present for the purpose of proceeding
with disciplinary proceedings, it was
always open for the competent authority to
have issued a charge sheet and in case the
petitioner failed to appear in the inquiry,
could have been proceeded ex-parte. So far
as the matter pertaining to indiscipline in
the office is concerned, needless to mention
that once the inquiry proceedings could
have been held, the indiscipline of the
petitioner could also have seen in the said
inquiry proceedings.

12. Though the matter as alleged
pertaining to the conduct of the petitioner is
serious yet both the grounds, as have been
indicated by the competent authority while
summarily dismissing the petitioner from
service, would not stand the test for not
holding a regular departmental inquiry as
has been laid down by the Apex Court in
the case of Tulsiram Patel (supra)
wherein the Apex Court has held as under:-

132. The condition precedent for
the application of Clause (b) is the
satisfaction of the disciplinary authority
that "it is not reasonably practicable to
hold" the inquiry contemplated by Clause
(2) of Article 311. What is pertinent to note
is that the words used are "not reasonably
practicable" and not "impracticable".
According
to
the
Oxford
English
Dictionary "practicable" means "Capable
of being put into practice, carried out in
action, effected, accomplished, or done;
feasible".
Webster's
Third
New
International Dictionary defines the word
"practicable" inter alia as meaning
"possible to practice or perform : capable
of being put into practice, done or
accomplished : feasible". Further, the
words used are not "not practicable" but
"not reasonably practicable". Webster's
Third
New
International
Dictionary
defines the word "reasonably" as "in a
reasonable manner : to a fairly sufficient
extent". Thus, whether it was practicable
to hold the inquiry or not must be judged
in the context of whether it was
reasonably practicable to do so. It is not a
total or absolute impracticability which is
required by Clause (b). What is requisite is
that the holding of the inquiry is not
practicable in the opinion of a reasonable
man taking a reasonable view of the
prevailing situation. It is not possible to
enumerate the cases in which it would not
8 All. Pradeep Kumar Vs. State of U.P. & Ors.
141
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
thretens, 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.

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
concernedand 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 and Ors., MANU/ SC/ 0265/
1984MANU/SC/0265/1984
:
(1984)
IILLJ17SC , 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
been
the
Deputy
Chief
Commercial
Superintendent himself, resulting in the
same person being the main accusor, the
chief witness and also the judge of the
matter.

13. Likewise, the Apex Court in the
case of Risal Singh (supra) has held as
under:-
142 INDIAN LAW REPORTS ALLAHABAD SERIES

In the said case the Constitution
Bench, while dealing with the exercise of
power Under Article 311(2)(b), has ruled
thus:

130. The condition precedent for
the application of Clause (b) is the
satisfaction of the disciplinary authority
that "it is not reasonably practicable to
hold" the inquiry contemplated by Clause
(2) of Article 311. What is pertinent to note
is that the words used are "not reasonably
practicable"
and
not
"impracticable".
According to the Oxford English Dictionary
"practicable" means "Capable of being put
into practice, carried out in action,
effected, accomplished, or done; feasible".
Webster's
Third
New
International
Dictionary defines the word "practicable"
inter alia as meaning "possible to practice
or perform: capable of being put into
practice, done or accomplished: feasible".
Further, the words used are not "not
practicable"
but
"not
reasonably
practicable".
Webster's
Third
New
International Dictionary defines the word
"reasonably" as "in a reasonable manner:
to a fairly sufficient extent". Thus, whether
it was practicable to hold the inquiry or not
must be judged in the context of whether it
was reasonably practicable to do so. It is
not a total or absolute impracticability
which is required by Clause (b). What is
requisite is that the holding of the inquiry is
not practicable in the opinion of a
reasonable man taking a reasonable view
of the prevailing situation.

7. In Jaswant Sing v. State of
Punjab and Ors. (1991) 1 SCC 362 the
Court, while dealing with the exercise of
power as conferred by way of exception
Under Article 311(2)(b) of the Constitution,
opined as follows:

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
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.

8. After so stating, the two-Judge
Bench quashed the order of dismissal and
directed the Appellant to be reinstated in
service
forthwith
with
the
monetary
benefits. Be it noted, it was also observed
therein that it would be open to the
employer, if so advised, notwithstanding the
lapse of time, to proceed with the
disciplinary proceedings.

9. Recently, in Reena Rani v. State
of Haryana (2012) 10 SCC 215, after
referring to the various authorities in the
field, the Court ruled that when reasons are
not ascribed, the order is vitiated and
accordingly set aside the order of dismissal
which had been concurred with by the
Single Judge and directed for reinstatement
in service with all consequential benefits. It
has also been observed therein that the
order passed by this Court would not
preclude the competent authority from
8 All. P.N.O. 052150337 Mohd. Farman Vs. State of U.P. & Ors.
143
taking action against the Appellant in
accordance with law.

14. Once the grounds which have
been taken by the competent authority for
not holding an inquiry are tested on the
touchstone of the law laid down by the
Apex Court in the case of Tulsiram Patel
(supra) & Risal Singh (supra) it comes
out that both the grounds on which the
competent authority has found it not
reasonably practicable to hold an inquiry,
are not such grounds wherein the inquiry
was not possible. It is not contended that
there was any threat by the petitioner along
with his associates to terrorize, threaten or
intimidate witnesses who were going to
depose against him or threaten the
members of the family of the disciplinary
authority or there was any indiscipline or
insubordination
prevailing
in
the
department which could have co-erced or
terrified any individual.

15. Accordingly, considering the law
laid down by the Apex Court in the case of
Tulsiram Patel & Risal Singh (supra) it is
apparent that both the grounds which have
been invoked by the competent authority
for summarily dismissing the petitioner
from service are totally unsustainable in the
eyes of law. As such, the impugned order
dated 30.03.2018 is patently bad in the eyes
of law not standing the tests as laid down
by the Apex Court in the case of Tulsiram
Patel (supra). On the same grounds, the
appellate order dated 25/27.07.2018 is also
bad in the eyes of law.

16. Considering the aforesaid, the writ
petition is partly allowed. The impugned
orders
dated
30.03.2018
and
25/27.07.2018,
copies
of
which
are
annexures 2 and 3 to the writ petition are
quashed.

17. Consequences to follow.

18. However, it would be open to the
respondents
to
proceed
against
the
petitioner for any act of his misconduct in
accordance with law and rules.
----------
(2021)08ILR A143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN , J.

Service Single No. 24979 of 2020
&
Service Single No. 17225 of 2021

P.N.O. 052150337 Mohd. Farman
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Shujauddin Waris

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplined forces - Not
cutting the beard despite being informed
by the Station House Officer when he was
posted as a constable is a violation of
direction/circular, being issued by the
higher officials. This is not only wrong
behavior but the same is misdemeanor,
misdeed
and
delinquency
of
the
petitioner. (Para 22)

The member of the disciplined force must
strictly follow the executive order or circulars or
instructions issued by the department or by the
higher authority of the department as those
orders etc. are as good as service conditions.
Furthermore, police force being a law enforcing
agency have to keep a secular image which
strengthens
the
countenance
of
national
integration. (Para 20)