# Ram Sharan Singh v. State Of U.P. & Ors

- **Citation:** (2016) 3 ILRA 760
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-01
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sharan-singh-v-state-of-u-p-ors-43601
- **Pages:** 8

## Text

760 INDIAN LAW REPORTS ALLAHABAD SERIES
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.3.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ - A No. - 1170 Of 1998

Ram Sharan Singh ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner
Ashok Khare, Shashbind K. Srivastava

Counsel for Respondents
C.S.C.

Petitioner, who is a Sub Inspector in U.P. Police, is aggrieved by an order dated 26th December, 1997,
passed under Rule 8 (2)(b) of the Uttar Pradesh Police Officers of the Sub ordinate Ranks (Punishment
and Appeal) Rules, 1991, dismissing him from service, without holding any disciplinary proceedings on
the ground that a chargesheet had been submitted against him by C.B.C.I.D. The short question that
arises for consideration in the facts of the present case is as to whether necessary ingredients existed
on record of the respondents to invoke authority under Rule 8(2)(b) of the Uttar Pradesh Police
Officers of the Sub ordinate Ranks (Punishment and Appeal) Rules, 1991?

The exercise of power under Rule 8(2) (b) of the Rules of 1991 has to be based upon consideration of
valid materials available on record, and such a conclusion cannot be drawn merely on surmises and
conjectures. Court is satisfied that no material existed on record of the respondents to invoke its
authority under Rule 8(2)(b) of the Rules, 1991. Since the action of dismissal has been taken without
conducting any enquiry in the matter, and the petitioner has been deprived of his right to defend
himself in such an enquiry, dispensation whereof has already been found to be arbitrary, the order
impugned cannot be sustained, and is set aside. petitioner's implication since was the chargesheet
against the petitioner, which has vanished with the order of acquittal, as such, no material exists on
record to proceed departmentally against the petitioner. Sufficiency or otherwise to proceed
departmentally against the petitioner is an aspect, which has to be examined by the department, and
this Court is not required to undertake any such exercise, at the first instance, at this stage.

Court held that it shall be open for the respondent State to proceed to conduct disciplinary
proceedings against the petitioner, in case it comes to a conclusion that material exist on record to
proceed departmentally against him.

The writ petition stands allowed.

List of cases cited

1. Pushpendra Singh (C.P. 2187) & Another Vs. State of U.P. & Another [2008 (3) ADJ 689]
2. Om Prakash Yadav Vs. State of U.P. and others [2012 (7) ADJ 74]
3. Union of India Vs. Tulsi Ram Patel [AIR 1985 SC 1416]
3 All. Ram Sharan Singh Vs State Of U.P. & Ors.
761

4. Yadunath Singh Vs. State of U.P. And others [2009 (9) ADJ 86]
5. Kuldeep Kumar Vs. State of U.P. and others [2011 (9) ADJ 23]
6. Dharam Pal Singh Chauhan Vs. State of U.P. and others [2011 (4) ADJ 851]
7. Gulabdhar Vs. State of U.P. and others [2011 (5) ADJ 835]
8. State of Madhya Pradesh Vs. Bani Singh and another [1990 (Supp.) SCC 738]
9. Cantonment Executive Officer and Another Vs. Vijay D. Wani and others [2008 (12) SCC 230]
10. P.V. Mahadevan Vs. MD. T.N. Housing Board [2005 (6) SCC 636]

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioner, who is a Sub Inspector in U.P. Police, is aggrieved by an order dated 26th
December, 1997, passed under Rule 8 (2)(b) of the Uttar Pradesh Police Officers of the Sub
ordinate Ranks (Punishment and Appeal) Rules, 1991, dismissing him from service, without
holding any disciplinary proceedings on the ground that a chargesheet had been submitted
against him by C.B.C.I.D., under Sections 302/34/167/177/218/120-B I.P.C.

2. Facts, relevant for adjudicating the controversy involved, are that petitioner was
posted at the relevant point of time at Police Station Milakh Khanam, District Rampur, as a
Sub Inspector. A First Information Report was lodged at 1.30 a.m. on 28.8.1992, by the
petitioner, stating that police party was attacked by certain militants, in which one of the
members of police party i.e. Constable Yashvir Singh was killed. A request was made by
father of the deceased Constable to the State Government for proper investigation on the
ground that the version recorded in the F.I.R. lodged by the petitioner was not correct, and
complainant sensed foul play. Consequently, the matter was transferred to C.B.C.I.D.
Investigation was carried out, in which it found that the version of petitioner about attack by
terrorists upon the police party was baseless, and consequently, another F.I.R. was registered
by the C.B.C.I.D., in which a chargesheet was filed holding the petitioner guilty of
committing murder of Constable. It seems that petitioner was initially placed under
suspension on 30th August, 1992, but the suspension was subsequently revoked on 18th
December, 1992. However, after a chargesheet was filed on 10th February, 1997 against the
petitioner, the Deputy Inspector General of Police proceeded to invoke his authority under
Rule 8(2)(b) of the Rules of 1991 to pass the order of dismissal.

3. Learned counsel for the petitioner submits that the incident, in respect of which the
order of dismissal has been passed, related to the year 1992, and for a period of nearly five
years, no proceedings were drawn, and without there being any material available on record
to support the finding that disciplinary proceedings were not possible in the matter or that
holding of enquiry was not practicable, the respondents have proceeded to dismiss the
petitioner from service, which is arbitrary. Reliance has been placed upon a Division Bench
Judgment of this Court in Pushpendra Singh (C.P. 2187) & Another Vs. State of U.P. &
Another [2008 (3) ADJ 689], as well as judgment of Hon'ble Single Judge in Om Prakash
Yadav Vs. State of U.P. and others [2012 (7) ADJ 74].

4. Learned Standing Counsel, with reference to the counter affidavit filed in the matter,
submits that as it was found in the investigation conducted by C.B.C.I.D. that petitioner is
762 INDIAN LAW REPORTS ALLAHABAD SERIES
guilty of a heinous offence and was lodged in jail, and that holding of enquiry was not
practicable, as none of the police personnel would give testimony against the petitioner, as
such, the order has been passed, invoking power under Rule 8(2)(b) of the Rules of 1991.

5. Heard learned counsel for the petitioner and learned Standing Counsel for the
respondents, and perused the records.

6. The short question that arises for consideration in the facts of the present case is as to
whether necessary ingredients existed on record of the respondents to invoke authority under
Rule 8(2)(b) of the Uttar Pradesh Police Officers of the Sub ordinate Ranks (Punishment and
Appeal) Rules, 1991?

Rule 8(2)(b) of the Rules of 1991 reads as under:-

"8. Dismissal and removal.-

(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-

(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."

7. The order impugned mentions that pursuant to investigation conducted by C.B.C.I.D.
in the matter, a chargesheet has been submitted against the petitioner under Sections
302/167/177/218 read with Section 120-B I.P.C., and it has been found that petitioner had
murdered Constable Yashvir Singh. It has further been recorded that holding of disciplinary
proceedings, in the facts of the present case, is not practicable, as the police personnels, who
were involved in the matter, would not give statement against him, and as such, the
disciplinary authority has arrived at a conclusion that holding of enquiry in the matter is not
possible.

8. No material has been brought on record of the present writ petition to support such a
conclusion of the disciplinary authority. The recital in the order seems entirely presumptive
in nature, inasmuch as no basis has been shown to infer that the police peronnels involved in
the matter would not give a fair and a correct statement. The exercise of power under Rule
8(2) (b) of the Rules of 1991 has to be based upon consideration of valid materials available
on record, and such a conclusion cannot be drawn merely on surmises and conjectures. A
Division Bench of this Court in Pushpendra Singh (supra) had dealt with the exercise of
power under Rule 8(2)(b), and it was observed that such provision is pari materia with
Aricle 311 of the Constitution of India, which gives constitutional protection to a member of
civil service of the Union or of the State. Reliance had been placed upon the judgment of the
3 All. Ram Sharan Singh Vs State Of U.P. & Ors.
763
Apex Court in the case of Union of India Vs. Tulsi Ram Patel [AIR 1985 SC 1416], in which
following observations were made at page 1479:-

"A disciplinary authority is not expected to dispense with a disciplinary
proceeding 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."

Paragraph nos.8, 9 and 10 of the judgment delivered by the Division Bench is
reproduced:-

"8. 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 v. State of Punjab and Ors. 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."

9. 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 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
764 INDIAN LAW REPORTS ALLAHABAD SERIES
the case (See Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi
and others, AIR 1978 SC 851, para 8).

10. 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."

9. Similar view has been reiterated in Om Prakash Yadav (supra), relying upon
judgment of the Division Bench in Yadunath Singh Vs. State of U.P. And others [2009 (9)
ADJ 86], which has been reiterated and followed in the cases of Kuldeep Kumar Vs. State of
U.P. and others [2011 (9) ADJ 23], Dharam Pal Singh Chauhan Vs. State of U.P. and
others [2011 (4) ADJ 851], and Gulabdhar Vs. State of U.P. and others [2011 (5) ADJ
835].

10. In view of the settled proposition of law and for the discussions and observations,
made above, this Court is satisfied that no material existed on record of the respondents to
invoke its authority under Rule 8(2)(b) of the Rules, 1991. Since the action of dismissal has
been taken without conducting any enquiry in the matter, and the petitioner has been
deprived of his right to defend himself in such an enquiry, dispensation whereof has already
been found to be arbitrary, the order impugned cannot be sustained, and is set aside. Since
the petitioner is already continuing in employment under an interim order granted in the
present writ petition, petitioner shall be entitled to all consequential benefits.

11. At this stage, learned Standing Counsel submits that liberty be granted to the
respondents to initiate and conduct disciplinary proceedings against the petitioner, in
accordance with law. This prayer is opposed by Sri Khare, learned counsel appearing for the
petitioner on the following two grounds:-

(i). Although F.I.R. in the matter was lodged in 1992, but no disciplinary action
was initiated against the petitioner till 1997, and straightway an order of dismissal was
passed against him on 26th December, 1997, and after such long lapse of time, the
respondents ought not to be permitted to initiate fresh proceedings.

(ii). It is also contended that a period of nearly 24 years has expired, and it would
otherwise be inequitable to permit the respondents to conduct fresh proceeding against the
petitioner, particularly as the only material to proceed against him was the chargesheet
where petitioner has ultimately been acquitted.

12. Reliance has been placed upon a decision of the Apex Court in the case of State of
Madhya Pradesh Vs. Bani Singh and another [1990 (Supp.) SCC 738], in which following
proposition of law has been laid down in Paragraph no.4:-
3 All. Ram Sharan Singh Vs State Of U.P. & Ors.
765

"4. The appeal against the order dated December 16, 1987 has been filed on the
ground that the Tribunal should not have quashed the proceedings merely on the ground of
delay and laches and should have allowed the enquiry to go on to decide the matter on
merits. We are unable to agree with this contention of the learned counsel. The
irregularities which were the subject matter of the enquiry is said to have taken place
between the years 1975-77. It is not the case of the department that they were not aware of
the said irregularities, if any, and came to know it only in 1987. According to them even in
April, 1977 there was doubt about the involvement of the officer in the said irregularities
and the investigations were going on since then. If that is so, it is unreasonable to think that
they would have taken more than 12 years to initiate the disciplinary proceedings as stated
by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the
charge memo and we are also of the view that it will be unfair to permit the departmental
enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with
the Tribunal's orders and accordingly we dismiss this appeal."

13. Reliance has also been placed upon paragraph 17 of the judgment of the Apex
Court in the case of Cantonment Executive Officer and Another Vs. Vijay D. Wani and
others [2008 (12) SCC 230], as well as upon the judgment of the Apex Court in the case of
P.V. Mahadevan Vs. MD. T.N. Housing Board [2005 (6) SCC 636], wherein following
observations have been made in paragraph nos.7, 11 and 12:-

"7. The very same ground has been specifically raised in this appeal before this
Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary
proceedings by issuance of charge memo would render the departmental proceedings
vitiated and that in the absence of any explanation for the inordinate delay in initiating such
proceedings of issuance of charge memo would justify the prayer for quashing the
proceedings as made in the writ petition.

11. Under the circumstances, we are of the opinion that allowing the respondent
to proceed further with the departmental proceedings at this distance of time will be very
prejudicial to the appellant. Keeping a higher government official under charges of
corruption and disputed integrity would cause unbearable mental agony and distress to the
officer concerned. The protracted disciplinary enquiry against a government employee
should, therefore, be avoided not only in the interests of the government employee but in
public interest and also in the interests of inspiring confidence in the minds of the
government employees. At this stage, it is necessary to draw the curtain and to put an end to
the enquiry. The appellant had already suffered enough and more on account of the
disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the
appellant due to the protracted disciplinary proceedings would be much more than the
punishment. For the mistakes committed by the department in the procedure for initiating
the disciplinary proceedings, the appellant should not be made to suffer.

12. We, therefore, have no hesitation to quash the charge memo issued against the
appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in
766 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with law. The retiral benefit shall be disbursed within three months from this
date. No costs."

14. In light of the ratio laid down by the Apex Court in the judgments relied upon by
the counsel for the petitioner, facts of this case would have to be viewed. The judgments
relied upon were delivered in the factual scenario, where inordinate delay and laches existed
in holding of disciplinary proceedings. In the facts of the present case, it has been contended
by Sri Khare that a period of five years had lapsed, during which no enquiry was initiated,
although for the same charge, petitioner had been placed under suspension in August, 1992,
and he was subsequently reinstated in December, 1992 itself. On this aspect, it would be
relevant to notice that though the incident had taken place on 28th August, 1992 and
petitioner was initially suspended, but till such time, no material existed on record to
establish complicity of petitioner in the offence. It was only on 10th February, 1997 that
investigation was concluded by C.B.C.I.D., and a chargesheet was filed against the
petitioner. Basis to establish petitioner's complicity in the offence is the chargesheet filed by
C.B.C.I.D., which itself had come into existence in 1997, and in the same year, order of
dismissal has been passed. No delay, in such circumstances, could be attributed to the action
of State in proceeding against the petitioner.

15. So far as the delay of about 24 years is concerned, it may be noticed that in 1997
itself, petitioner was dismissed from service by invoking jurisdiction under Rule 8(2)(b) of
the Rules of 1991. The writ petition has been filed in January, 1998, and the proceedings are
being concluded now. The pendency of writ petition or period spent during its pendency
cannot be a ground to suggest that respondents had not acted within a reasonable period of
time. The action of respondents since has been set aside after holding that authority under
Rule 8(2)(b) of the Rules of 1991 was not open to be exercised, as such, it would not be
appropriate to sustain the objections raised by Sri Khare to the prayer made by learned
Standing Counsel for grant of liberty.

16. It is also submitted that the basis of petitioner's implication since was the
chargesheet against the petitioner, which has vanished with the order of acquittal, as such,
no material exists on record to proceed departmentally against the petitioner. Sufficiency or
otherwise to proceed departmentally against the petitioner is an aspect, which has to be
examined by the department, and this Court is not required to undertake any such exercise,
at the first instance, at this stage. It goes without saying that fresh proceedings would be
initiated against the petitioner only if material exists on record of the employer to proceed
against him. Evaluations of existence or otherwise of material need not be commented upon,
at this stage. Law is otherwise settled that acquittal by criminal court would not
automatically and conclusively impact departmental proceedings, as the standard of proof in
disciplinary proceedings is preponderance of probabilities, while in criminal proceedings, it
has to be beyond reasonable doubt. In such view of the matter, it shall be open for the
respondent State to proceed to conduct disciplinary proceedings against the petitioner, in
case it comes to a conclusion that material exist on record to proceed departmentally against
him.
3 All. Ashish Kumar Pandey & Ors. Vs State Of U.P. & Ors.
767

17. With the aforesaid observations/directions, the writ petition stands allowed. There
shall, however, be no order as to costs.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.03.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. - 37599 of 2015
&
Connected With Other Cases

Ashish Kumar Pandey & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for The Petitioners
Seemant Singh

Counsel for The Respondents
C.S.C.,A. Krishan, A. Trivedi, Manish Goyal, P.N. Shahi, R.P. Srivastava, Rahul Srivastava

An advertisement dated 19 May 2011, issued by the Additional Secretary (Recruitment) U.P. Police
Recruitment and Promotional Board U.P. for filling posts of Sub-Inspector in Civil Police and Platoon
Commanders in Provincial Armed Constabulary for which petitioners have applied. The petitioners are
assailing the final result declared by the Board on 25 June 2015. Further, seeking a direction to the
Board to apply horizontal reservations following the principles laid down in the authoritative
pronouncements rendered by the Supreme Court, and incorporated by the State, in the Act and
government orders.

The questions pressed for determination is:

1. whether, candidates claiming horizontal reservations, irrespective of their category i.e. OBC/SC/ST,
could enmasse be adjusted in the open category;

2. whether the Board, in the event of the candidates falling short of the available vacancy under the
quota for horizontal reservation, could have kept the post/vacancies vacant or in the alternative
whether the vacant posts can be carried forward to subsequent selection.

The questions framed, consequently, is answered as follows:

(i) The candidates claiming horizontal reservation (women, ex-servicemen and dependent of freedom
fighter) cannot be adjusted enmasse in the open category but would have to be adjusted against their
respective social category i.e. OBC, SC and ST;

(ii) the posts remaining vacant due to the shortfall of women candidates cannot be carried forward to
subsequent selection, in view of the specific prohibition in the government order dated 26 February
1999, however, in respect of the other class of candidates i.e. dependent of freedom fighters, ex-