# Pushpendra Singh & another v. State of U.P. and another

- **Citation:** (2008) 1 ILRA 206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-21
- **Case number:** Special Appeal No. 1614 of 2007
- **Bench:** S. Rafat Alam, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpendra-singh-another-v-state-of-u-p-and-another-41014
- **Pages:** 6

## Headnote

Constitution of India, Art. 226-readwith
U.P. Police Officers of the Subordinate
Rank (Punishment & Appeal) Rules
1991-Rule 8 (2)(b)-dismissal alternative
remedy-dismissal
order-without
recording reasons of satisfaction for not
holding
regular
enquiry-without
affording opportunity of hearing-order
passed
contrary
to
the
mandatory
provision
of
the
regulation-heldalternative remedy no absolute bar.

Held: Para 9 and 11

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 dismissal is patently illegal and it is
difficult to uphold the same.

Since, in the case in hand, admittedly,
the order has been passed without
1 All] Pushpendra Singh and another V. State of U.P. and another
207
following the mandatory provision of the
Act and also in violation of principles of
natural justice thus, the writ petition
cannot be thrown only on the ground of
availability of alternative remedy when
there is blatant error in the order.
Case law discussed:
AIR 1985 SC 1416, AIR 1991 SC 385, AIR
1978 SC 851, AIR 1999 SC 22

## Text

206 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
is disposed of finally either granting or
refusing to grant interim order, it can be
said that the said proceedings are finally
terminated. Under section 333 of the Act,
the Court is empowered to call for record
of any suit or-proceeding. The order
under section 229-D is not specially
excluded from the purview of section 333
of the Act. It is relevant to note that by
U.P. Act No. 11 of 2002, an amendment
has
been
inserted
excluding
one
proceeding
from
the
revisional
jurisdiction that is proceedings under subsection (4-A) of section 198. Had the
legislature intended to have excluded the
proceeding under section 229-D, there
was no reason of not indicating or
mentioning the same in section 333. The
amendment made in 2002 as noted above,
clearly shows the intendment of the
Legislature that no other proceeding has
been excluded except the proceeding
under sub-section (4-A) of section 198
from the purview of section 333 of the
Act.

10. In view of the provisions of
section 333, it is to be held, that an order
passed under section 229-D is not
excluded from the revisional jurisdiction
provided under section 333 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950. The view taken by the
revisional Court that revision is not
maintainable cannot be sustained and is
hereby set aside. The writ petition is
partly allowed. The order 5.11.2007 is set
aside and the matter is remanded to the
revisional Court to decide the the same
afresh in accordance with law.

Petition partly allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE VINEET SARAN, J.

Special Appeal No. 1614 of 2007

Pushpendra Singh & another...Petitioners
Versus
State of U.P. and another...Respondents

Counsel for the Petitioners:
Sri Gulab Chandra

Counsel for the Respondents:
Sri Y.K. Srivastava
Sri G.C. Upadhyaya
S.C.

Constitution of India, Art. 226-readwith
U.P. Police Officers of the Subordinate
Rank (Punishment & Appeal) Rules
1991-Rule 8 (2)(b)-dismissal alternative
remedy-dismissal
order-without
recording reasons of satisfaction for not
holding
regular
enquiry-without
affording opportunity of hearing-order
passed
contrary
to
the
mandatory
provision
of
the
regulation-heldalternative remedy no absolute bar.

Held: Para 9 and 11

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 dismissal is patently illegal and it is
difficult to uphold the same.

Since, in the case in hand, admittedly,
the order has been passed without
1 All] Pushpendra Singh and another V. State of U.P. and another
207
following the mandatory provision of the
Act and also in violation of principles of
natural justice thus, the writ petition
cannot be thrown only on the ground of
availability of alternative remedy when
there is blatant error in the order.
Case law discussed:
AIR 1985 SC 1416, AIR 1991 SC 385, AIR
1978 SC 851, AIR 1999 SC 22

(Delivered by Hon'ble S. Rafat Alam, J.)

1. This appeal under the Rules of the
Court arises from the judgment of the
Hon'ble Single Judge of this Court dated
1.10.2007 in Civil Misc. Writ Petition No.
47241 of 2007.

2. We have heard Sri Gulab
Chandra,
learned
counsel
for
the
appellants and the learned Standing
Counsel
appearing
for
the
Staterespondents.

3. It appears that the petitionerappellants, being aggrieved by the order
of the Senior Superintendent of Police,
Agra
dated
12th
September,
2007,
dismissing them from service, preferred
the aforesaid writ petition on the ground,
inter alia, that the impugned order is bad,
illegal and arbitrary because it has been
passed under Rule 8 (2) (b) of the Uttar
Pradesh
Police
Officers
of
the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991, (in short the Rules),
without recording any reason to dispense
with regular departmental proceeding and,
therefore, it cannot sustain. The Hon'ble
Single Judge, however, having heard the
learned counsel for the parties, dismissed
the writ petition on the ground that the
appellants
have
efficacious
statutory
alternative remedy under the Rules itself
and thus they can avail the same.
Appellants are constables in U.P. Police
and at the relevant time were posted in
Police outpost Balkeshwar, Police Station
New Agra, District Agra. However, on
10.9.2007 at 11.30 pm Shri Anil Kumar,
Incharge Police Out Post while patrolling
along with the appellants arrested a
suspect Raju @ Rakesh from cremation
ground
and
some
objectionable
incriminating articles were recovered
from his possession and was produced
before the Magistrate. Thereafter, his
mother-in-law made a complaint on
12.9.2007
alleging
therein
that
the
petitioner
along
with
other
police
personnel took Rs.5000/-- as illegal
gratification yet he was arrested and
challaned in a false case and was
subsequently released by the Magistrate.
Consequently, an FIR was lodged and on
the same day i.e. 12.9.2007, they were
dismissed from service by the impugned
order.

4. Learned counsel for the appellants
vehemently contended that since the
impugned order of dismissal did not
contain any reason to dispense with the
regular departmental proceeding and thus,
the same being in violation of the
statutory provisions, the writ petition
could not have been thrown only on the
ground of availability of alternative
remedy. He further submits that under
Rule 8 (2) (b) of the Rules, the
punishment of dismissal from service
without holding regular proceeding, can
only be inflicted where the authority
empowered, records reasons indicating
the difficulty on account of which it is not
practicable to hold such enquiry. It is
contended that in the instant case, the
Senior Superintendent of Police, without
recording any reason for not holding
regular departmental proceeding, inflicted
the punishment of dismissal from service.
208 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
It is submitted that the Hon'ble Single
Judge fell in error in dismissing the writ
petition only on the ground of availability
of alternative remedy when the order
apparently is in violation of the statutory
provisions whereunder recording reasons
is mandatory. On the other hand, learned
Standing Counsel appearing on behalf of
the state respondents opposed the writ
petition. However, he could not show us
any reason in the impugned order to
dispense with the regular departmental
proceeding before giving punishment of
dismissal to the appellants under Clause-
(b) of Rule 8(2) of the Rules.

We have considered the submissions
made on both sides and also perused the
record.

5.

The
core
question
for
consideration in this appeal is as to
whether the impugned order of the Senior
Superintendent of Police (respondent
no.2) dated 12.9.2007 is in accordance
with law or is in disregard of the
prescription of law. To appreciate the
contention made before us, it is necessary
first to have a look of the provisions
contained in Rule 8, which provides as
under:

"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
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:
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,"

6. The above provision is pari
materia 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 such delinquent. However, second
proviso to Article 311 (2) has carved out
certain exception where even without
holding regular proceeding punishment of
dismissal, removal or reduction in rank
can be inflicted. Similarly, Rule 8 (2) (b)
like Article 311 (2) (b) provides that
where the authorities empowered to
dismiss or remove a person or to reduce
him in rank is satisfied that it is not
reasonably practicable to hold such
enquiry then in that event he has to record
reasons as to why it is not reasonably
practicable to hold the enquiry. 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
1 All] Pushpendra Singh and another V. State of U.P. and another
209
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 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."

7. 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 Vs.
State of Punjab and others, AIR 1991 SC
385 in para 5 at page 390 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."

8. 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
210 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
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. The
Chief
Election
Commissioner,
New
Delhi and others, AIR 1978 SC 851, para
8).

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
dismissal is patently illegal and it is
difficult to uphold the same.

10. The Hon'ble Single Judge,
however, did not address on this core
question and dismissed the petition only
on the ground of availability of alternative
remedy. It is true that normally this Court
declines to entertain the writ petition
where
the
aggrieved
person
has
efficacious alternative statutory remedy.
The doctrine of exhaustion of other
remedy is a self-imposed restriction by
the Court so that a person, who has
statutory remedy for redressal of his
grievance before another forum, may not
be allowed to bye-pass such remedy.
However, the existence of statutory
remedy is not an absolute bar in
entertaining the petition under Article 226
of the Constitution where there is
apparent and gross violation of mandatory
statutory provision of an Act or the
Constitution. The Hon'ble Apex Court in
the case of Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai and
others, AIR 1999 SC 22 held that the
power to issue prerogative writs under
Article 226 of the Constitution is plenary
in nature and is not limited by any other
provision of the Constitution. This power
can be exercised by the High Court not
only for issuing writs in the nature of
Habeas Corpus, Mandamus, Prohibition,
Quo Warranto and Certiorari for the
enforcement of any of the Fundamental
Rights contained in Part III of the
Constitution but also for "any other
purpose". However, their Lordships have
carved out three contingencies, where
alternative remedy will not stand in the
way in entertaining the writ petition under
Article 226 of the Constitution of India,
viz. (1) where the writ petition has been
filed for the enforcement of any of the
Fundamental Rights; (2) where there has
been a violation of the principle of natural
justice; and (3) where the order or
proceedings
are
wholly
without
jurisdiction or where the vires of an Act is
challenged.

11. Since, in the case in hand,
admittedly, the order has been passed
without
following
the
mandatory
provision of the Act and also in violation
of principles of natural justice thus, the
writ petition cannot be thrown only on the
1 All] Mohd. Zeeshan V. State of U.P. and others
211
ground of availability of alternative
remedy when there is blatant error in the
order.

12. For the foregoing reasons, this
appeal succeeds on this point alone. In the
result, this appeal is allowed. The
impugned order dated 12.9.2007 passed
by the Senior Superintendent of Police,
Agra dismissing the appellant from
service and the judgment of the Hon'ble
Single Judge dated 1.10.2007 are hereby
set aside. However, it would be open to
the respondents to proceed against the
appellant in accordance with law, either
by initiating proceedings after regular
enquiry or dispensing with the regular
proceedings by recording reasons under
Section 8 (2) (b) of the Rules. There shall
be no order as to costs. Appeal allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2008

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 7825 of 2008

Mohd. Zeeshan

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

Counsel for the Petitioner:
Sri Umesh Narain Sharma
Sri Sunnet Kumar

Counsel for the Respondents:
Sri S.F.A. Naqvi
S.C.

Constitution of India, Art. 226-Service
Law-Transfer
Order-passed
by
Chief
Secretary of the Department-on the
complaint of Ex. M.P. of affiliation ruling
party-having no concern with the affairsnon
representing
the
people-heldarbitrary, malafiedy-total non application
of mind-unsustainable.

Held: Para 13

A former M.P., on whose request the
transfer is made is not a person who
represents the public in general. He is
only a political person and therefore his
letter if being acted upon would result in
giving political mileage to such a person
and would not be an action in public
interest or administrative exigency. I am
therefore of the view that the power of
transferring
an
officer
can
not
be
wielded arbitrarily, malafidly or at the
instance of politicians who no longer
represent the public. If it is for the better
administration
that
the
employee
concerned must have freedom from fear
of being harassed by repeated transfer
or transfer orders at the instance of
someone who has nothing to do with the
administration
of
the
department
concerned. Thus, in the above facts and
circumstances the impugned order is
unsustainable and suffers from total non
application of mind which has been
passed only to please a leader affiliated
to the Ruling party. The impugned order
dated 31.1.2008 (Annexure-1 to the writ
petition) is therefore quashed.
Case law discussed:
2007 (8) SCC 150, 2003 (11) SCC 740, 2005
(3) SCC 153, 1998 (1) AWC 27, 2000(2) AWC
1515, 2004 (1) AWC 940

(Delivered by Hon'ble Pankaj Mithal, J.)

1. The petitioner is an Assistant Tax
Superintendent
(Tax
and
Revenue
Inspector) which is a class III post
governed by the U.P. Palika Centralized
Services, Rules, 1966. Rule 25 of the
aforesaid Rules empowers the State
Government to transfer any officer of the
Centralized Service from one Palika to
another.