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

- **Citation:** (2012) 1 ILRA 395
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-19
- **Bench:** Syed Rafat Alam, C.J. Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-singh-v-state-of-u-p-and-others-42168
- **Pages:** 5

## Headnote

Rank (Punishment and Appeal) Rules
1991-Rule 8 (2) (b)-Dismissal from
service without recording reasons-for
satisfaction regarding impossibility of
holding inquiry-set-a-side but direction
to hold inquiry as fresh-held not proper
where the delequent employee already
retired-as is clear from opening words of
Rule 8- " No Police Officer mean Officer
the member of force-but a retired Police
Officer-is not member of Force-direction
to
held
inquiry
not
proper-petition
allowed with all consequential benefits.

Held: Para 14

Therefore, the first direction in the order
of the learned Single Judge to hold an
enquiry after giving proper opportunity
cannot be given effect to unless the
appellant is allowed to continue on the
strength of the force or in other words to
continue in service, otherwise no enquiry
could be conducted against him under
Rule 8 of the Rules.

## Text

1 All] Rajendra Singh V. State of U.P. and others
395

14. We also find that under Section 54
of the Act there is appeal provided against
the assessment to the Prescribed Authority.

15. On the aforesaid discussion, we
dismiss the writ petition with liberty to the
petitoner to make objections to the Jal
Sansthan, Allahabad, which is now a part of
the Nagar Nigam, and if the petitoner is still
aggrieved file an appeal to the Prescribed
Authority. This order, however, will not be
treated as any restrained order on payment
of water tax, which should be paid regularly
until the petitioner's representation or
appeal, as the case may be, is decided.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2012

BEFORE
THE HON'BLE SYED RAFAT ALAM, C.J.
THE HON'BLE VIKRAM NATH, J.

Special Appeal No. - 680 of 2012

Rajendra Singh

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

Counsel for the Petitioner:
Sri R.K. Pandey
Sri S.P. Sharma

Counsel for the Respondents:
C.S.C.

U.P. Police Officers of the Subordinate
Rank (Punishment and Appeal) Rules
1991-Rule 8 (2) (b)-Dismissal from
service without recording reasons-for
satisfaction regarding impossibility of
holding inquiry-set-a-side but direction
to hold inquiry as fresh-held not proper
where the delequent employee already
retired-as is clear from opening words of
Rule 8- " No Police Officer mean Officer
the member of force-but a retired Police
Officer-is not member of Force-direction
to
held
inquiry
not
proper-petition
allowed with all consequential benefits.

Held: Para 14

Therefore, the first direction in the order
of the learned Single Judge to hold an
enquiry after giving proper opportunity
cannot be given effect to unless the
appellant is allowed to continue on the
strength of the force or in other words to
continue in service, otherwise no enquiry
could be conducted against him under
Rule 8 of the Rules.

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

1. This intra-court appeal arises
from the order of the learned Single Judge
dated 26th March, 2012, passed in Civil
Misc. Writ Petition No.54347 of 1999.
The operative portion of the order of the
learned Single Judge is reproduced
hereunder :-

"Since no reason has been given in
the impugned order as to why it was not
possible to hold an enquiry order under
rule 8(2)(b) is not fully justified.

In the facts and circumstances of the
case, I direct the respondents to hold an
enquiry in the matter and give to the
petitioner
a
proper
opportunity
of
hearing. The respondent authority shall
conclude the enquiry in accordance with
law within three months from the date of
production of a certified copy of this
order being placed by the petitioner
before the respondent authority within ten
days from today. It is made clear that this
order will not amount to an order of
reinstatement or setting aside the order of
termination but this is being passed for
this purpose of giving to the petitioner a
proper opportunity of hearing.
396 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

The writ petition is disposed of as
above. No costs."

2. We have heard learned counsel
for the appellant and Sri M.S. Pipersenia,
learned Standing Counsel for the State -
respondents.

3. The appellant - Rajendra Singh
filed the writ petition praying for
quashing of the dismissal order dated
06.12.1999, passed by the Superintendent
of Police Fatehpur, purported to have
been passed invoking the provisions of
Rule 8(2)(b) of the U.P. Police Officers of
the Subordinate Ranks (Punishment and
Appeal) Rules, 1991 (hereinafter referred
to as the 'Rule').

4. At the outset, we may refer to
Rule 8(2)(b) of the 1991 Rules which
reads as under :

" Dismissal and removal - (1) No
Police officer 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; or

(b) Where the authority empowered
to dismiss or remove a person or to
reduce him in rank is satisfied that for
some reasons 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."

5. According to the above quoted
Rule, the authority is empowered to inflict
punishment in exceptional cases without
holding any enquiry and disciplinary
proceedings, for the reasons to be
recorded by the said authority that it was
not reasonably practicable to hold such
enquiry.

6. The learned Single Judge found
that no reasons had been recorded as to
why it was not reasonably practicable to
hold the enquiry and was therefore of the
view that the impugned order could not be
justified. Further, the learned Single
Judge directed the respondent authority to
hold an enquiry in the matter and to give
the petitioner - appellant a proper
opportunity of hearing and the enquiry be
concluded within three months from the
date of production of certified copy of the
order. Lastly, the order of the learned
Single Judge provided that the said order
would not amount to an order of
reinstatement or setting aside the order of
termination but was being passed for the
purpose of giving the petitioner -
appellant a proper opportunity of hearing.

7. Learned counsel for the appellant
has submitted that once the learned Single
Judge was of the view that no reasons had
been recorded as to why it was not
reasonably
practicable
to
hold
the
enquiry, the only option left was to quash
the order of punishment, thus, the learned
1 All] Rajendra Singh V. State of U.P. and others
397
Single Judge fell in error in not quashing
the order of punishment instead providing
that it would remain in force. The next
submission is that so long as the
employee is not in service whether under
suspension or otherwise, there could be
no occasion to continue an enquiry
against a dismissed employee who has no
lien in the department. According to
learned counsel for the appellant, for this
reason also, the order of the learned
Single Judge directing to hold fresh
enquiry after proper opportunity to the
petitioner - appellant, cannot be sustained.

8. On the other hand, Sri M.S.
Pipersenia, learned Standing Counsel
submitted that pursuant to the order of the
learned Single Judge, the Superintendent
of Police, Fatehpur has already appointed
Deputy Superintendent of Police, Sri
Surya Kant Tripathi to conduct the
enquiry vide order dated 16th April, 2012,
therefore, this Court may not interfere in
this appeal.

9.

Having
considered
the
submissions, we find substance in the
argument
advanced
by
the
learned
counsel for the appellant. Rule 8(2)(b) of
the 1991 Rules is an exception to the
general procedure followed in awarding
punishment to the Government Servants.
It is also an exception to Article-311 (1)
and (2) of the Constitution of India,
therefore, due caution and care is to be
exercised
while
invoking
the
said
provision. The Rule itself mentions that
no Police Officer shall be dismissed or
removed or reduced in rank except after
proper
enquiry
and
disciplinary
proceeding as contemplated in the said
Rules, provided that the said Rule would
not apply under the following three given
circumstances :-

(i) Where the punishment is on the
ground of conduct which has led to the
conviction of the employee on the
criminal charge.

(ii) Where for reasons to be recorded,
it was found to be not reasonably
practicable to hold the enquiry and lastly,

(iii) Where the Government is
satisfied that in the interest of the security
of the State it is not expedient to hold
such enquiry.

10. He who holds the procedural
sword must perish with the sword. Thus
where the procedure prescribed has not
been followed by the authority then the
decision taken in violation of such
prescribed statutory procedure cannot be
sustained.

11. Undisputedly, the punishment
order dated 06.12.1999 did not spell out
the reasons as to why it was not
reasonably
practicable
to
hold
the
enquiry. The learned Single Judge has
also recorded a similar finding. However,
it was specifically clarified by the learned
Single Judge in the last part of the order
that the order would not amount to
reinstatement or setting aside of the
termination order. It is this part of the
order which is offending the appellant.

12. A Division Bench of this Court,
of which one of us (S.R. Alam, C.J.) was
a member, in the case of State of U.P. &
Others Vs. Chandrika Prasad, 2006 (1)
ESC 374 (All.) (DB), while considering
Rule 8 of the Rules, in paragraph 15 of
the judgment, observed as under :-

"15. The words some "reasons to be
recorded in writing that it is not
398 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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 v.
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."

13. Thus, the order of the
Superintendent of Police, Fatehpur dated
06.12.1999, dismissing the appellant from
service, impugned in the writ petition,
cannot sustain and is liable to be quashed.
Besides that, a departmental proceeding
can be pressed into motion only against
an employee who is on the strength and
the roll of the department; one who is in
employment and in service or one who
has lien in the service. A dismissed or a
terminated employee has no lien in
service. He cannot be treated to be an
employee of the department. As such no
enquiry could be conducted against a
person not on the strength and roll of the
force. Rule 8 of the Rules opens with the
words "no police officer shall be
dismissed or removed from service...".
Police officer would mean an officer in
the police department on the strength and
roll of the force.

14. Therefore, the first direction in
the order of the learned Single Judge to
hold an enquiry after giving proper
opportunity cannot be given effect to
unless the appellant is allowed to continue
on the strength of the force or in other
words to continue in service, otherwise no
enquiry could be conducted against him
under Rule 8 of the Rules.

15. Thus, we are of the view that the
order of punishment was liable to be
quashed in view of the finding recorded
by the learned Single Judge that no
reasons have been recorded. Further the
last sentence of the last but one para of
the order of the learned Single Judge is
liable to be set aside. However, the
direction given by the learned Single
Judge to the effect that the enquiry be
conducted
and
after
giving
due
opportunity in accordance with law,
appropriate orders may be passed by the
disciplinary authority, does not warrant
any interference.

16. In view of the above discussion,
we modify the order of the learned Single
Judge to the extent that the last sentence
of the last but one para of the order is set
aside and further the order of dismissal
dated 06.12.1999 is quashed. Necessary
consequences may follow. It would
1 All] Dhirendra Singh and others V. State of U.P. and others
399
however be open to the disciplinary
authority to pass order of suspension
during the enquiry, which may now be
conducted pursuant to the order of the
learned Single Judge.

17. The appeal stands disposed of
with the above modification.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.04.2012

BEFORE
THE HON'BLE D.K. UPADHYAYA, J.

Service Single No. - 730 of 2004

Dhirendra Singh and others ...Petitioner
Versus
State of U.P.Through Secy. Govt. of U.P.
Civil Lko. and 3 others ...Respondents

Counsel for the Petitioner:
Abdul Moin
Sri Abhinav N Trivedi

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Termination of Service-putting stigmabased upon preliminary enquiry-order
impugned
can
not
be
termed
as
simplicitor-but founded on allegation of
misconduct-termination Quashed with
salary apart from Training allowance.

Held: Para 22

The Court on the basis of the finding of
guilt recorded in the preliminary enquiry
dated 30.11.2003 and the indications
given by the letter dated 13.01.2004
comes to the definite conclusion that the
services
of
the
petitioners
were
terminated on account of the finding of
guilt. Thus, impugned orders are not
orders of termination simplicitor, rather
they are "founded" on the allegations of
misconduct
and
the
finding
of
misconduct
and
gross
indiscipline
against the petitioners. The impugned
orders, thus, are clearly casting stigma
on the conduct of the petitioners and
hence, in this situation, the impugned
orders are not sustainable at all.
Case law discussed:
(1999) 3 SCC 60; (2010) 8 SCC 220; Special
Appeal No. 126 (S/B) of 2005, Kailash Bharti
vs. State of U.P and others; (2002) 1 SCC 520;
(1999) 2 SCC 21

(Delivered by Hon'ble D.K.Upadhyaya,J. )

1. Fate of the instant writ petition
hinges on the issue as to whether the
impugned orders terminating the services
of the petitioners, though couched in
innocuously worded language to make
them appear to be order of termination
simplicitor, are, in fact, the result of the
employer accepting the allegations of
some misconduct against the petitioners.

2. Heard Sri Abdul Moin and Sri
Abhinava N. Trivedi, learned counsels
for the petitioners and learned Standing
Counsel appearing for the State and
perused the pleadings and material
available on record.

3. To arrive at a conclusion as to
whether the allegations of misconduct
against the petitioners form "Foundation"
or "Motive" for termination of their
services, the facts of the case as culled
from the pleadings on record need to be
examined.

4. Having participated in a selection
for the post of Constable, the petitioners
were selected and accordingly petitioner
no.1,
by
means
of
order
dated
19.04.2003, was required to report at
15th Battalion of Provincial Armed
Constabulary (in short PAC), Agra.