# Sadhana Yadav v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 1039
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-27
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sadhana-yadav-v-state-of-u-p-ors-44036
- **Pages:** 7

## Text

7 All. Sadhana Yadav Vs State Of U.P. & Ors.
1039
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2016

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.

Writ A No.- 17534 Of 1998

Sadhana Yadav ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Hariom Khare, A. Khare, S. Khare, V.K. Singh

Counsel for Respondents:
C.S.C

1. U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991 - Rule 8(2)(b) -
Dismissal Without Departmental Inquiry - Conditions Precedent - Recording of Reasons
Mandatory - Absence of Germane Grounds - Order of Dismissal Unsustainable.
Rule 8(2)(b) of the U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991, which is
pari materia with Article 311(2)(b) of the Constitution of India, empowers the disciplinary authority to
dispense with a regular departmental enquiry and impose punishment of dismissal, removal or reduction in
rank only where it is satisfied that it is not reasonably practicable to hold such an inquiry. Two conditions are
essential for the valid invocation of this rule: (i) there must exist a situation which renders the holding of an
inquiry not reasonably practicable; and (ii) the disciplinary authority must record in writing its reasons in
support of such satisfaction. The recording of reasons is mandatory and is not a mere formality - its object is
to prevent arbitrary, capricious and mala fide exercise of power. The satisfaction of the authority must be
based on germane grounds and not on the ipse dixit of the disciplinary authority. In the present case, no
reasons were recorded in the impugned order justifying why the holding of a regular departmental inquiry
was not reasonably practicable, and the authority resorted to Rule 8(2)(b) without any plausible basis. Held:
The invocation of Rule 8(2)(b) was wholly unjustified. The impugned order of dismissal dated 19.02.1998 was
set aside. Relied upon: Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416; Om Prakash Yadav v. State of
U.P. & Others, Writ-A No. 3625 of 2010.

2. Constitution of India - Article 311(2)(b) - Test of Reasonable Practicability - What
Constitutes 'Not Reasonably Practicable' - Illustrative Instances - Dismissal Merely to Avoid
Inquiry or on Account of Weak Departmental Case Impermissible.
The test of 'not reasonably practicable' under Article 311(2)(b) of the Constitution of India does not require
total or absolute impracticability. What is required 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. Instances where it would not
be reasonably practicable to hold an inquiry include: where the government servant, through associates,
terrorises or intimidates witnesses; where the disciplinary authority or members of his family are threatened;
or where a general atmosphere of violence, indiscipline or insubordination prevails. A disciplinary authority is
not expected to dispense with a departmental inquiry lightly, arbitrarily, out of ulterior motives, merely to
1040 INDIAN LAW REPORTS ALLAHABAD SERIES

avoid the holding of an inquiry, or because the department's case is weak. The finality conferred by Article
311(3) upon the disciplinary authority's decision does not oust judicial review; the court will strike down the
order dispensing with inquiry if it is found to be arbitrary or mala fide or made on extraneous considerations.
Relied upon: Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398 (para 130).

3. Service Law - Departmental Proceedings - Reasons must Appear in the Order -
Supplementation through Affidavit Impermissible - Validity of Order Tested only on Grounds
Stated Therein.
When a statutory authority makes an order based on certain reasons or grounds, the validity of that order is
to be tested solely on the reasons or grounds stated therein. It is not open to the authority to supplement or
supply reasons through a counter affidavit filed before the court. The reasons must either appear on the face
of the order itself or must at least be available on record at the time the order is passed. In the present case,
the disciplinary authority failed to disclose in the impugned order any reason or ground for invoking the
extraordinary power under Rule 8(2)(b) and no such reason was forthcoming even from the record; such
deficiency cannot be cured through the averments in the counter affidavit. Relied upon: Mohinder Singh Gill &
Another v. Chief Election Commissioner, New Delhi & Others, AIR 1978 SC 851 (para 8).

4. Service Law - Departmental Proceedings vis-à-vis Criminal Proceedings - Acquittal in Criminal
Trial - Effect - Law of Evidence Not Applicable in Departmental Proceedings - Regular
Departmental Inquiry Permissible Despite Acquittal.
It is well-established in law that the law of evidence applicable in criminal proceedings does not govern
departmental proceedings. The standard of proof in departmental proceedings is the preponderance of
probabilities, whereas in criminal proceedings it is proof beyond reasonable doubt. Accordingly, an acquittal by
a criminal court on the same charge does not per se bar the holding of a regular departmental inquiry in
respect of the same allegations. However, where the U.P. Police Regulations contain specific provisions
governing reinstatement and the conduct of proceedings following judicial acquittal - such as Regulation
493(c) - the disciplinary authority is required to take those provisions into due consideration while deciding
the course of action after acquittal. Held: Although the petitioner's acquittal by the trial court in Criminal Case
No. 586 of 1998 does not automatically entitle her to reinstatement simpliciter, it is open to the respondents
to conduct a regular departmental proceeding, which must be conducted having due regard to the provisions
of Regulation 493(c) of the U.P. Police Regulations.

5. U.P. Police Regulations - Regulation 493(c) - Judicial Acquittal - Obligation to Reinstate -
Limited Exception for Departmental Inquiry for Negligence or Unfitness - Consideration by
Authority Directed.
Regulation 493(c) of the U.P. Police Regulations mandates that where an accused police officer has been
judicially acquitted or discharged, and the period for filing an appeal has elapsed or no appeal has been filed,
the Superintendent of Police must at once reinstate him if he is under suspension. A limited exception exists:
where the findings of the court are not inconsistent with the view that the accused was guilty of negligence
in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the
Superintendent of Police may seek permission from the Deputy Inspector General to try the accused
departmentally for such negligence or unfitness. Held: The implications of Regulation 493(c) must be
examined and given effect to by the authority concerned while taking a decision on the further course of
departmental proceedings following the petitioner's acquittal. The respondents are left at liberty to conduct a
regular departmental proceeding in accordance with law, subject to due compliance with Regulation 493(c).

Result: Writ petition disposed of. The impugned order of dismissal dated 19th February, 1998
passed by the Senior Superintendent of Police, Jhansi under Rule 8(2)(b) of the Rules, 1991 set
aside. The respondents left at liberty to conduct a regular departmental proceeding against the
7 All. Sadhana Yadav Vs State Of U.P. & Ors.
1041
petitioner in accordance with law, with due regard to the provisions of Regulation 493(c) of the
U.P. Police Regulations. No order as to costs.

Cases Referred:

1. Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 / (1985) 3 SCC 398 - Applied.
2. Mohinder Singh Gill & Another v. Chief Election Commissioner, New Delhi & Others, AIR 1978
SC 851 - Applied.
3. Om Prakash Yadav v. State of U.P. & Others, Writ-A No. 3625 of 2010, decided on 23.04.2012
(Allahabad HC) - Followed.
4. State of U.P. & Others v. Chandrika Prasad, 2006(1) ESC 374 - Referred.
5. Pushpendra Singh & Others v. State of U.P. - Referred.
6. Yadunath Singh v. State of U.P. & Others, 2009(9) ADJ 86 - Referred.

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

1. The petitioner was initially recruited as a lady Constable in Civil Police in August, 1986.
She completed her training and was posted as a lady constable in District Jhansi. It is stated that
due to family feud a complaint was made to the Director General of Police, Uttar Pradesh on 13th
August, 1995 to the effect that the petitioner has secured the employment on the basis of fabricated
documents. The allegation made against the petitioner was that the petitioner is Draupadi Yadav
and Sadhna Yadav was her younger sister and the petitioner has secured employment on the basis
of the certificates of her younger sister Sadhna Yadav, who died about 16 years earlier.

2. It is stated that on the aforesaid allegation a first information report was lodged against
the petitioner, which was registered as Case Crime No. 716 of 1996, under Sections 420, 467, 468
and 471 I.P.C., Police Station Nababad, District Jhansi, pursuant to which Criminal Case No. 586
of 1998 was registered before the trial Court.

3. It is further stated that the Senior Superintendent of Police, Jhansi, the second
respondent, on the basis of the aforesaid allegations placed the petitioner under suspension on 10th
September, 1997 and issued a direction for initiating disciplinary proceedings against the petitioner.
However, the said proceeding was not initiated and the second respondent has resorted to Rule
8(2)(b) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment & Appeal) Rules,
1991 (for short, the "Rules, 1991") and by the impugned order dated 19th February, 1998 dismissed
the petitioner from service. Aggrieved by the said order, the petitioner has preferred this writ
petition.

4. A supplementary affidavit has been filed on behalf of the petitioner wherein it is stated
that in the aforesaid criminal trial the petitioner has been acquitted by the judgement and order
dated 10th December, 2004 and the charge against the petitioner about the forgery has not been
found to be true. A copy of the judgement of the trial Court is on the record as annexure-1 to the
supplementary affidavit.
1042 INDIAN LAW REPORTS ALLAHABAD SERIES

5. A counter affidavit has been filed on behalf of the respondents, wherein it is stated that
there was serious allegation of fraud against the petitioner. In fact, the correct name of the
petitioner is Draupadi daughter of Jhagru Prasad Yadav but she has impersonated herself as Sadhna
Yadav, daughter of Banke Lal. Hence, the petitioner has committed a fraud and the authority
concerned has rightly invoked the provisions of Rule 8(2)(b) of the Rules, 1991.

6. I have heard learned counsel for the petitioner and learned Standing Counsel.

7. Learned counsel for the petitioner submits that the petitioner was implicated in the
criminal case due to family dispute. The detailed facts have been averred in the writ petition in this
regard. He has further submitted that now in the trial the petitioner has been acquitted and the
criminal case itself was initiated against the petitioner as Sadhna Yadav and not as Draupadi
Yadav.

8. Learned counsel for the petitioner contends that Regulation 493 (c) of the Uttar Pradesh
Police Regulations enjoins that any finding recorded in the judicial proceedings is final and it
cannot be reopened by the department. Lastly, he submitted that the exercise of power under Rule
8(2)(b) of the Rules, 1991 was completely illegal in the facts of this case and this Court in a catena
of decisions has held that the power of Rule 8(2)(b) can be invoked when the ingredients
mentioned in the said rule are attracted. He further submitted that ingredients of Rule 8(2)(b) do not
attract in the present case and it has wrongly been invoked in the case of the petitioner.

9. Learned Standing Counsel submits that the petitioner has been given benefit of doubt by
the trial Court, therefore, she is not entitled for her reinstatement as there is allegation of fraud
against her.

10. I have heard learned counsel for the parties and perused the record.

11. The services of the petitioner have been dismissed exercising the power under Rule
8(2)(b) of the Rules, 1991 after 12 years of service. The exercise of power under Rule 8(2)(b) of
the Rules, 1991 came to be considered by this Court in a long line of decisions. This Court in the
case of Om Prakash Yadav v. State of U.P. and others, Writ-A No. 3625 of 2010, decided on
23rd April, 2012, has considered three Division Bench decisions of this Court and held as under:

"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
7 All. Sadhana Yadav Vs State Of U.P. & Ors.
1043
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)."

11. The similar view has been taken by the another Division Bench in Yadunath Singh Vs.
State of U.P. and others. In the 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
1044 INDIAN LAW REPORTS ALLAHABAD SERIES

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 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."

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."

12. In view of the above, in my view, the exercise of power under Rule 8(2)(b) cannot be
justified. The petitioner was placed under suspension and the allegations, which have been made
against the petitioner, clearly indicate that the departmental proceedings ought to have been
completed against the petitioner.
7 All. Shiv Kumar & Ors. Vs State Of U.P. & Anr.
1045
13. It is a well-established law that the law of evidence is not applicable in the case of the
departmental proceedings, whereas it is applicable in criminal cases. Thus, even if a person has
been acquitted by the Court on the same charge, regular departmental enquiry can be held.
However, learned counsel for the petitioner has drawn the attention of the Court to the provisions
of Regulation 493(c) of the Police Regulations, which read as under:

"493. (c) If the accused has been judicially acquitted or discharged, and the period
for filing an appeal has elapsed and/or no appeal has been filed the Superintendent of Police must at
once reinstate him if he has been suspended; but should the findings of the Court not be
inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the
discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of
Police may refer the matter to the Deputy Inspector General of Police and ask for permission to try
the accused departmentally for such negligence or unfitness."

14. However, I find that the submission of learned counsel for the petitioner regarding
Regulation 493(c) of the U.P. Police Regulations needs consideration by the authority concerned.

15. For the reasons stated above, the impugned order dated 19th February, 1998 passed by
the second respondent is set aside. It is left open to the respondents to conduct a regular
departmental proceeding. While taking the said decision the authority concerned shall pay regard to
the provisions of Regulation 493 (c) of the U.P. Police Regulations.

16. With the aforesaid observations and directions, the writ petition is disposed of. No
order as to costs.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No.- 17779 Of 2016

Shiv Kumar & Ors. ...Applicants
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Shashank Yadav

Counsel for the Opposite Parties:
G.A.