# Sandeep Kumar v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-02
- **Case number:** Service Single No. 15506 of 2019
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-kumar-v-state-of-u-p-ors-46910
- **Pages:** 11

## Headnote

A. Constitution of India - Article 311 (2)
(b) - UP Police Officers of the Subordinate
Ranks (Punishment and Appeal) Rules,
1991 - Rules 8 (2) (b) and 17 - Post of
Constable - Dismissal order - Criminal
proceeding
u/s
302
IPC
-
No
departmental inquiry - Absence of record
of reason of inquiry being impracticable -
Effect - Before proceedings to impose any
major penalty, the departmental inquiry is
a must and is a condition precedent -
However, in certain contingency said
3 All. Constable 2199 (PNO 162806090) Sandeep Kumar Vs. State of U.P. & Ors.
179
rigour of the rule can be dispensed with
and one such contingency provided for is
that
in
case
it
is
not
reasonably
practicable to hold inquiry and for this
reasons will have to be recorded in writing
- Held, there must be some material for
satisfaction of the disciplinary authority
that
departmental
inquiry
is
not
reasonably practicable. The decision to
dispense with the departmental enquiry
cannot be rested solely on the ipse dixit of
the concerned authority - Not recording
the finding that it is not reasonably
practicable to hold inquiry is contrary to
the requirement of the provisions of Rule
8 (2) (b) of Rules, 1991. (Para 13, 14, 15
and 19)

Writ Petition allowed. (E-1)

Cases relied on :-

## Text

178 INDIAN LAW REPORTS ALLAHABAD SERIES
Shiksha Mitras, who are not functioning as
Shiksha Mitra at particular point of time
when such weightage was to be awarded,
how can it be presumed that such person is
willing to take benefit of the direction of
the Hon'ble Apex Court in re; Anand
Kumar Yadav (supra).

11. He has further submitted that had
it been a short period, it could have been
understood
but
the
petitioner
was
absconding from duties of Shiksha Mitra
from 11.8.2017 and weightage of past
services was to be awarded in the month of
May, 2020 when the petitioner was not
Shiksha Mitra for the last about three years.
Therefore, the present petitioner may not be
given any relief as prayed in the writ
petition and the writ petition may be
dismissed with costs.

12. Having heard learned counsel for
the parties and having perused the material
available on record and the dictum of the
Hon'ble Apex Court in re; Vijay S. Sathaye
(supra), I am of the considered opinion that
the definition of Shiksha Mitra under
Clause 2 (V) of the Rules, 1981 (as
amended) is very clear and purpose thereof
is laudable as only those Shiksha Mitras
can be given weightage of past services,
who are working as Shiksha Mitra after
being reverted as Shiksha Mitra from the
post of Assistant Teacher in compliance of
the dictum of Hon'ble Apex Court in re;
Anand Kumar Yadav (supra). Such
benefit cannot be provided to those Shiksha
Mitras, who are not Shiksha Mitra for
substantial period at the time when such
benefit was to be provided. In the present
case, it is admission on the part of the
petitioner that she has not discharged the
duties of Shiksha Mitra since 11.8.2017.
She was not on valid leave. Shiksha Mitras
are paid honourarium. No provision of law
has been cited or shown by the learned
counsel for the petitioner to the effect that
Shiksha Mitras can be granted leave
without pay for substantially long period.

13. Therefore, I do not find any
infirmity or illegality in not providing
weightage of past services to the petitioner
in terms of Clause 2 (V) of the Rules, 1981,
which has been amended in compliance of
the dictum of Hon'ble Apex Court in re;
Anand
Kumar
Yadav
(supra).
Accordingly, the writ petition is dismissed
being devoid of merits.
----------
(2021)03ILR A178
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.03.2021

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 15506 of 2019

Constable
2199
(PNO
162806090)
Sandeep Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Meenakshi Singh Parihar, A.P. Singh

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Article 311 (2)
(b) - UP Police Officers of the Subordinate
Ranks (Punishment and Appeal) Rules,
1991 - Rules 8 (2) (b) and 17 - Post of
Constable - Dismissal order - Criminal
proceeding
u/s
302
IPC
-
No
departmental inquiry - Absence of record
of reason of inquiry being impracticable -
Effect - Before proceedings to impose any
major penalty, the departmental inquiry is
a must and is a condition precedent -
However, in certain contingency said
3 All. Constable 2199 (PNO 162806090) Sandeep Kumar Vs. State of U.P. & Ors.
179
rigour of the rule can be dispensed with
and one such contingency provided for is
that
in
case
it
is
not
reasonably
practicable to hold inquiry and for this
reasons will have to be recorded in writing
- Held, there must be some material for
satisfaction of the disciplinary authority
that
departmental
inquiry
is
not
reasonably practicable. The decision to
dispense with the departmental enquiry
cannot be rested solely on the ipse dixit of
the concerned authority - Not recording
the finding that it is not reasonably
practicable to hold inquiry is contrary to
the requirement of the provisions of Rule
8 (2) (b) of Rules, 1991. (Para 13, 14, 15
and 19)

Writ Petition allowed. (E-1)

Cases relied on :-

1. Jaswant Singh Vs St. of Punj. & ors.; AIR
1991 SC 385

2. U.O.I. & anr. Vs Tulsiram Patel; (1985) 3 SCC
398

3. Sudesh Kumar Vs St. of Har. & ors.; (2005)
11 SCC 525

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. The petitioner has approached this
Court challenging the impugned order
dated 29.09.2018 by which the Senior
Superintendent of Police, Lucknow has
dismissed the petitioner from service and
the order dated 20.05.2019 by which the
representation/ appeal of the petitioner has
also been dismissed by the Inspector
General
of
Police
(Establishment),
Lucknow.

2. Brief facts of the case are that the
petitioner was appointed on 02.11.2016 as
Constable. When the petitioner was posted
as Constable at Police Station Gomti Nagar,
Lucknow, an FIR with Case Crime
No.1132 of 2018, under Section 302 IPC
was lodged on 29.09.2018 at 4:57 hours by
one Ms. Sana alleging therein that when
she was going to her home along with her
colleague Vivek Tiwari in the night, their
car was parked near City Montessori
School, Gomti Nagar Extension. Two
policemen came in front of the car. They
tried to go away from there, the police
personnel tried to stop the car and
thereafter, one shot was fired. However,
Vivek Tiwari drove the car but after
sometime, it collided with the wall at
underpass
and
then
the
complainant
witnessed that Vivek Tiwari was profusely
bleeding from his head. Police came there
and Vivek Tiwari was taken to the hospital
where he died. On the date of occurrence,
the petitioner was arrested and sent to jail
and vide Office Order dated 29.09.2018,
the petitioner was placed under suspension.
The inquiry was assigned to the Circle
Officer, Alambagh, Lucknow and on the
basis of his report dated 29.09.2018, the
petitioner has been dismissed from service
on the same day exercising powers
conferred under Rule 8(2)(b) of the U.P.
Police Officers of the Subordinate Ranks
(Punishment and Appeal) Rules, 1991 read
with Article 311 (2)(b) of the Constitution
of India. Against the order of suspension,
the
petitioner
filed
a
Writ
Petition
No.12911 (SS) of 2019, which was
dismissed as not pressed vide order dated
22.05.2019. Vide order dated 03.01.2019,
the petitioner was released on bail.

3. On 30.09.2019 at about 18:57
hours another FIR in Case Crime No.1140
of 2018, under Section 302 IPC was lodged
at Police Station Gomti Nagar, Lucknow by
Smt. Kalpana Tiwari wife of late Vivek
Tiwari against the petitioner and coaccused
Prashant
Chaudhary
alleging
therein
that
the
co-accused
Prashant
180 INDIAN LAW REPORTS ALLAHABAD SERIES
Chaudhary has murdered her husband
Vivek Tiwari who was working as Area
Sales Manager in Apple Company. The said
FIR of Case Crime No.1140 of 2018 was
clubbed with Case Crime No.1132 of 2018.

4. After conducting the investigation,
the Investigating Officer has submitted
charge-sheet against the petitioner under
Section 323 IPC in Case Crime No.1132 of
2018. Vide order dated 24.12.2018, the
learned Chief Judicial Magistrate has taken
cognizance under Section 323 IPC against
the petitioner and under Section 302 IPC
against the co-accused Prashant Chaudhary.
Vide order dated 07.03.2019 passed in ST
No.49
of
2019,
the
petitioner
was
summoned for framing charges under
Section 323 IPC and on 22.03.2019, the
learned
Additional
Sessions
Judge-I,
Lucknow had
framed
charges
under
Sections 323 and 302 IPC read with
Section 114 IPC. The petitioner was taken
into custody and sent to jail. Vide order
dated 16.04.2019 passed in Criminal Misc.
Case No.3881 (B) of 2019, the petitioner
was released on bail by this Court.
Thereafter, the petitioner filed a Criminal
Misc. Case No.2068 of 2019 under Section
482 of Cr.P.C. challenging the charges
framed by the court below, which is still
pending.

5. Learned Counsel for the petitioner
has
submitted
that
vide
order
dated
29.09.2018, the petitioner was placed under
suspension and the Circle Officer, Alambagh
was appointed as Enquiry Officer to inquire
the incident which was taken on 29.09.2018.
Thereafter, on the basis of the report
submitted on the same day, the petitioner was
dismissed from service vide impugned order
dated 29.09.2018 which is in contravention of
the provisions of Rule 17 of the U.P. Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991 (in
short '1991 Rules'). The impugned order itself
shows that before passing the order of
dismissal, no inquiry was at all conducted
against the petitioner nor any opportunity of
hearing has been provided to him which is in
violation of Articles 14 and 16 of the
Constitution of India. In the order of
suspension
dated
29.09.2018,
it
was
categorically mentioned that the petitioner is
being
suspended
in
contemplation
of
disciplinary inquiry as such it was incumbent
upon the departmental authorities to have
conducted proper inquiry in accordance with
the Rules but without conducting any inquiry
in a very illegal manner, the petitioner has
been dismissed from service on the same day
i.e.
29.09.2018
which
is
against
the
provisions of Rule 8(2)(b) of 1991 Rules read
with Article 311 (2)(b) of the Constitution of
India.

6.

Learned
Counsel
for
the
petitioner has further submitted that while
passing
the
impugned
order,
the
disciplinary
authority
has
also
not
recorded any reason for not holding
proper inquiry against the petitioner,
which is against the provisions of subrule (b) of Rule 17 of 1991 Rules. While
passing the dismissal order, it has been
recorded that the impugned order has
been passed in public as well as State
interest and also in the interest of police
department. The aforesaid reasons arrived
at against the provisions of 1991 Rules as
there is no such provisions which confers
such power to the disciplinary authority
to punish a police officer without
conducting proper inquiry in accordance
with the Rules. In these circumstances,
the impugned order is liable to be set
aside as the same has been passed
illegally, arbitrarily and unreasonably
without proper application of mind.
3 All. Constable 2199 (PNO 162806090) Sandeep Kumar Vs. State of U.P. & Ors.
181

7. Per contra, learned Counsel
appearing on behalf of the State has
vehemently opposed the submissions of
learned Counsel for the petitioner and
submitted that the disciplinary authority
after examining the findings recorded by
the Enquiry Officer and on the basis of the
evidences available on record, and also on
finding that it is not practicable to conduct
a detailed inquiry and that the offence
committed by the petitioner is a grave
misconduct and heinous in nature has
passed the impugned order exercising
powers conferred under Rule 8(2)(b) of
1991 Rules.

8. Learned Counsel appearing on
behalf of the State has further submitted
that against the dismissal order dated
29.09.2018, the petitioner filed an appeal
before the appellant authority which has
also been duly considered and rejected the
same in accordance with law. Against the
dismissal order, the petitioner has an
alternative remedy for filing a revision
under Rule 23 of 1991 Rules and thereafter,
before the learned State Public Service
Tribunal
but
instead
of
avail
such
alternatives remedies, the petitioner has
filed the instant writ petition and, therefore,
the same is liable to be dismissed on the
ground of availability of alternate remedy.

9. I have considered the submissions
of learned Counsel for the parties and
perused the record.

10. Before adjudicating the grievance
of the petitioner on merit, it would be
appropriate to reproduce the relevant
portion of the impugned dismissal order
dated 29.09.2018 and the order dated
20.05.2019
passed
by
the Appellate
Authority dismissing the appeal of the
petitioner
which
reads
as
under
respectively:

"29-09-2018

vr% eSa dykfuf/k uSFkkuh] vkbZ0ih0,l0]
ofj"B iqfyl v/kh{kd] y[kuÅ dk mDrkafdr
dkj.kksa ds vk/kkj ij ;g lek/kku gks x;k gS fd
fuyfEcr
vkj{kh
2199
uk0iq0
@
ih,uvks&162806090 lanhi dqekj iq= Jh lRksUnz
flag] fuoklh&dkyksuh U;w jkeuxj cM+kSr] Fkkuk
cMk+Sr] tuin ckxir ,oa fuyfEcr vkj{kh 5948
uk0iq0@ih,uvks&162153936 iz'kkUr dqekj iq=
Jh jfoUnz flag] fuoklh&xzke tViqjk] Fkkuk vgkj]
tuin cqyUn'kgj dks lsok esa cuk;s j[kuk iqfyl
foHkkx ds vuq'kklu ,oa dk;Z {kerk dh n`f"V ls
yksdfgr@jkT;fgr@iqfyl foHkkx ds fgr esa ugha
gSA vr,o l{ke fu;qfDr izkf/kdkjh gksus ds dkj.k
m0iz0 v/khuLFk Js.kh ds iqfyl vf/kdkfj;ksa dh
1⁄4n.M
,oa
vihy1⁄2
fu;ekoyh&1991
ds
izLrj&81⁄421⁄21⁄4[k1⁄2 lifBr Hkkjr ds lafo/kku ds
vuqPNsn 3111⁄421⁄21⁄4B1⁄2 esa] iznRr vf/kdkjksa ds vUrxZr
vius vUrZfufgr 'kfDr;ksa dk iz;ksx djrs gq,
fuyfEcr
vkj{kh
2199
uk0iq0@ih,uvks&162806090 lanhi dqekj iq= Jh
lrsUnz flag] fuoklh&dkyksuh U;w jkeuxj cM+kSr]
Fkkuk cM+kSr] tuin ckxir ,oa fuyfEcr vkj{kh
5948 uk0iq0@ih,uvks&162153936 iz'kkUr dqekj
iq= Jh jfoUnz flag] fuoklh&xzke tViqjk] Fkkuk
vgkj] tuin cqyUn'kgj dks iqfyl foHkkx dh
lsok ls inP;qr fd;s tkus dk vkns'k ikfjr djrk
gw¡A"

"20.05.2019

vihydrkZ }kjk izLrqr vihy ds
vkyksd esa i=koyh ij miyC/k lk{;ksa dk
ifj'khyu fd;k x;k] ftlls ;g Li"V gS fd
fnukad 28-09-2018 dks vkj{kh 2199 uk0iq0
ih,uvks&162806090 lanhi dqekj ,oa ,d vU;
vkj{kh 5984 uk0iq0@162153936 iz'kkar dqekj
Fkkuk xkserhuxjjTkV la[;k&79 le; 21-28 cts
jkf= 9-00 cts ls fnukad 29-09-2018 dh izkr% 900 cts rd phrk eksckby x'r {ks= ednweiqj
gsrq jokuk'kqnk M~;wVhjr FksA e`rd foosd frokjh
viuh lgdehZ luk ds lkFk viuh dkj esa ekStwn
FkkA M~;wVhjr mDr nksuksa vkjf{k;ksa }kjk e`rd
182 INDIAN LAW REPORTS ALLAHABAD SERIES
foosd frokjh o mldh lgdehZ ls iwNrkN fd;s
tkus ds nkSjku dgk&lquh gksus ij foosd frokjh
dh xksyh ekjdj gR;k dj nh x;h] ftlls foosd
frokjh dh e`R;q gks x;hA okfnuh luk dh rjQ ls
Fkkuk xkserhuxj ij eq0v0la0&1132@2018 /kkjk
302 iathd`r fd;k x;kA foospuk ds nkSjku
vkj{kh 2199 uk0iq0 ih,uvks&162806090 lanhi
dqekj ,oa vkj{kh 5984 uk0iq@162153936 iz'kkar
dqekj] Fkkuk xkserhuxj] y[kuÅ izdk'k esa vk;s]
ftUgs fxj¶rkj dj tsy Hkstk x;kA izdj.k dh
tkapksijkURk bUgsa nks"kh ik;k x;k gSA vihykFkhZ us
vius vihy esa mfYyf[kr rF;ksa esa dksbZ ,slk
fof'k"V rF; vafdr ugha fd;k gS] ftlds vk/kkj
ij iz'uxr n.Mkns'k fujLr fd;k tkuk fof/kiw.kZ
gksA iz'uxr n.Mkns'k esa fdlh izdkj dh
izfdz;kRed =qfV vFkok vlaoS/kkfudrk izrhr ugha
gks jgh gSA bl izdkj izdj.k esa ikfjr vkns'k
vkSfpR;iw.kZ ,oa fof/k lEer gSA

mijksDr fo'ys"k.k ls eSa bl fu"d"kZ ij
igqWpk gwW fd izR;kosnd dk vihyh; izR;kosnu
cyghu o fujk/kkj gS] tks fujLr fd;s tkus ;ksX;
gSA

vr% mijksDr izdj.k esa ofj"B iqfyl
v/kh{kd]
y[kuÅ
ds
vkns'k
la[;k&l&1132@2018
fnuk¡d
29&9&2018]
ftlds ek/;e ls m0iz0 v/khuLFk Js.kh ds iqfyl
vf/kdkfj;ksa dh 1⁄4n.M ,oa vihy1⁄2 fu;ekoyh&1991
ds fu;e&81⁄421⁄2 1⁄4[k1⁄2 ds vUrxZr inP;qfr ds n.M
ls nf.Mr fd;s tkus dk vkns'k ikfjr fd;k x;k
gS] tks fu;ekdwy gS] rFkk ftlesa fdlh izdkj ds
gLr{ksi dh vko';drk ugha gSA ,rn~}kjk
vihydrkZ
vkj{kh
2199
uk0iq0
ih,uvks&162806090 lanhi dqekj dh vihy
vLohdkj dh tkrh gSA"

11. It is not disputed that the
Competent
Authority
can
very
well
exercise the powers as have been provided
under Rule 8(2)(b) of 1991 Rules while
dispensing with the service of a subordinate
officials and record the reasons as to why
the power is being exercised under Rule
8(2)(b) of 1991 Rules. The argument of the
petitioner is that the impugned order dated
29.09.2018 does not indicate any reason as
to why it is not reasonably practicable to
hold inquiry against the petitioner. The said
order was under challenged in the appeal
but the Appellate Authority dismissed the
appeal on the ground that the appeal has no
force and there are no illegality in the order
dated 29.09.2018 passed by the Senior
Superintendent of Police, Lucknow.

12. In order to appreciate the
respective arguments which has been
advanced relevant Rule 8 of U.P. Police
Officers
of
the
Subordinate
Rank
(Punishment and Appeal) Rules 1991 is
being quoted below:

"8. 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 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.

(3) All orders of dismissal and
removal of Head Constables or Constables
shall be passed by the Superintendent of
Police. Cases in which the Superintendent
3 All. Constable 2199 (PNO 162806090) Sandeep Kumar Vs. State of U.P. & Ors.
183
of Police recommends dismissal or removal
of a Sub-Inspector or an Inspector shall be
forwarded to the Deputy Inspector General
concerned for orders.

(4) (a) The punishment for
intentionally or negligently allowing a
person in police custody or judicial custody
to escane shall be dismissal unless the
punishing authority for reasons to be
recorded in writing awards a lessor
punishment.

(b) Every officer convicted by the
Court for an offence involving moral
turpitude shall be dismissed unless the
punishing authority for reasons to be
recorded in writing considers it otherwise."

13. Bare perusal of the aforesaid rules
would go to show that holding of inquiry is
a rule and dispensing with the enquiry is an
exception. Before proceedings to impose
any one of the major penalty of dismissal,
removal
or
reduction
in
rank
the
departmental inquiry is a must and is a
condition precedent. However in certain
contingency said rigour of the rule can be
dispensed with and one such contingency
provided for is that in case it is not
reasonably practicable to hold inquiry and
for this reasons will have to be recorded in
writing. The said authority is to be
exercised in exceptional circumstances and
that to by recording finding to the effect as
to why it is not reasonably practical to hold
an inquiry. Thus, recording of finding that
it is not reasonably practicable to hold
inquiry before proceeding to exercise
aforesaid authority of dispensation of
service under Rule 8 (2)(b) of 1991 Rules
is sine quo non.

14. The words "reasons 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 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 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."

15. Clause (b) of the second proviso
to clause (2) of Article 311 provides that
where an authority empowered to dismiss
or remove a person or to reduce him in
rank, is satisfied that for some reason to be
recorded by the authority in writing, it is
not reasonably practicable to give to that
person an opportunity of showing cause
against the proposed punishment, the
provisions of clause (2) of Article 311 of
the Constitution shall not apply. Article
311(2) of the Constitution of India is
quoted below for ready reference:

"311. Dismissal, removal or
reduction in rank of persons employed in
184 INDIAN LAW REPORTS ALLAHABAD SERIES
civil capacities under the Union or a State.
- (1) No person who is a member of a civil
service of the Union or an all-India service
or a civil service of a State or holds a civil
post under the Union or a State shall be
dismissed or removed by an authority
subordinate to that by which he was
appointed.

[(2) No such person as aforesaid
shall be dismissed or removed or reduced
in rank except after an inquiry in which he
has been informed of the charges against
him and given a reasonable opportunity of
being heard in respect of those charges

[Provided
that
where
it
is
proposed after such inquiry, to impose
upon him any such penalty, such penalty
may be imposed on the basis of the
evidence adduced during such inquiry and
it shall not be necessary to give such
person
any
opportunity
of
making
representation on the penalty proposed:
Provided further that this clause 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 reason, to be recorded by that
authority in writing, it is not reasonably
practicable to hold such inquiry; or

(c) where the President or the
Governor, as the case may be, is satisfied
that in the interest of the security of the
State it is not expedient to hold such
inquiry.

[(3) If, in respect of any such
person as aforesaid, a question arises
whether it is reasonably practicable to hold
such inquiry as is referred to in clause (2),
the decision thereon of the authority
empowered to dismiss or remove such
person or to reduce him in rank shall be
final.]"

16. A disciplinary authority is not
expected to dispense with the disciplinary
inquiry in exercise of the power under
clause (b) of Article 311 lightly or
arbitrarily or out of ulterior motives or
merely in order to avoid holding of a
disciplinary
inquiry
or
because
the
department's case against the government
servant is weak and likely to fail. The
finality given to the decision of the
disciplinary authority by Article 311(3)
does not preclude judicial review. In such
cases the court will strike down the order
dispensing with the inquiry as also the
order-imposing penalty. If the court finds
that the dispensing with the inquiry has
been done without any basis, without
recording reasons or recording reasons,
which have no nexus to the dispensing of
the inquiry or if the decision is made on
collateral basis, the order is liable to be set
aside by the court. The scope of Clause (b)
of the second proviso to Article 311(2) and
of Article 311 (3) came up for consideration
before a Constitution Bench of Hon'ble
Supreme Court in the case of Union of
India and another vs. Tulsiram Patel;
(1985) 3 SCC 398. In para 130, Hon'ble
Supreme Court has held as under:

"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".
3 All. Constable 2199 (PNO 162806090) Sandeep Kumar Vs. State of U.P. & Ors.
185
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 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 intimidates 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 others
threatens, intimidates and terrorizes the
officer who is the disciplinary authority or
members 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 [(1984) 2 SCC
578 : 1984 SCC (L&S) 290 : (1984) 3 SCR
302] 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
186 INDIAN LAW REPORTS ALLAHABAD SERIES
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
accuser, the chief witness and also the
judge of the matter."

17. In Sudesh Kumar vs. State of
Haryana and others; (2005) 11 SCC 525,
the Supreme Court observed as follows:

"5. It is now established principle
of law that an inquiry under Article 311(2)
is a rule and dispensing with the inquiry is
an exception. The authority dispensing with
the inquiry under Article 311(2)(b) must
satisfy for reasons to be recorded that it is
not reasonably practicable to hold an
inquiry. A reading of the termination order
by invoking Article 311(2)(b), as extracted
above, would clearly show that no reasons
whatsoever have been assigned as to why it
is not reasonably practicable to hold an
inquiry. The reasons disclosed in the
termination order are that the complainant
refused to name the accused out of fear of
harassment; the complainant, being a
foreign national, is likely to leave the
country and once he left the country, it may
not be reasonably practicable to bring him
to the inquiry. This is no ground for
dispensing with the inquiry. On the other
hand, it is not disputed that, by order dated
23-12-1999, the visa of the complainant
was extended up to 22-12-2000. Therefore,
there was no difficulty in securing the
presence of Mr Kenichi Tanaka in the
inquiry.

6. A reasonable opportunity of
hearing enshrined in Article 311(2) of the
Constitution would include an opportunity
to defend himself and establish his
innocence
by
cross-examining
the
prosecution witnesses produced against
him and by
examining
the
defence
witnesses in his favour, if any. This he can
do only if inquiry is held where he has been
informed of the charges levelled against
him. In the instant case, the mandate of
Article 311(2) of the Constitution has been
violated depriving reasonable opportunity
of being heard to the appellant."

18. On the parameter of the aforesaid
provisions and law laid down by Hon'ble
Supreme Court, I have examine the instant
case. In the present case, it is accepted
position that first information report was
lodged as Case Crime No.1132 of 2018,
under Section 302 IPC and second first
information report was as Case Crime
No.1140 of 2018, under Section 302 IPC.
Later on, second FIR was clubbed with
Case Crime No.1132 of 2018. The learned
Additional Sessions Judge-I, Lucknow had
framed charges under Sections 323 and 302
IPC read with Section 114 IPC against the
petitioner, vide order dated 22.03.2019. The
authority concerned in his wisdom has
proceeded to pass order of dismissal on
account of the fact that it is not reasonably
practicable to hold inquiry.

19. In the impugned order, it has been
stated that looking into the nature of
alleged offence and seriousness of the
charges, it is not feasible to hold
departmental inquiry against the petitioner
but fact of the matter is that nothing has
been disclosed, as to why it is not
reasonably practicable to hold inquiry. It is
3 All. Constable 2199 (PNO 162806090) Sandeep Kumar Vs. State of U.P. & Ors.
187
true that petitioner has been implicated in a
murder case during the course of duty and
it is not specified that in what way and
manner seriousness of alleged offence has
got connected with not reasonable and
practicable to hold inquiry. Thus, non
recording of finding that it is not
reasonably practicable to hold inquiry is
contrary
to
the
requirement
of
the
provisions of Rule 8(2)(b) of 1991 Rules.

20. It is emerging from the factual
scenario that no regular departmental
inquiry has been held and no exercise has
been undertaken which would substantiate
that said inquiry was not reasonably
practicable then in this background order of
dismissal on this score is liable to be set
aside. While dismissing the appeal by the
Appellate Authority has also not taken into
consideration that the disciplinary authority
has not recorded any reason as to why it is
not reasonable practicable to hold inquiry.
The dismissal order nowhere discloses that
disciplinary authority has ever arrived at a
conclusion that holding of an inquiry as per
Rule 8(2)(b) of 1991 Rules was not
reasonably
practicable.
The
reasons
assigned in the impugned order are not at
all sustainable in the eyes of law.

21. So far as the argument of learned
Counsel appearing on behalf of the State
that the petitioner has an alternative remedy
of filing revision under Rule 23 of 1991
Rules before the revisional authority is
concerned, the issue of said alternative
remedy has already been settled by the coordinate
Bench
vide
order
dated
29.05.2019. The relevant portion of the
order dated 29.05.2019 passed in this case
is quoted below:

"6. The words of Rule 23 of the
aforesaid Rule 1991 clearly indicate an
entitlement upon the officer whose appeal
has been rejected to prefer a Revision to the
superior
authority.
The
Revision
in
entertainable only upon specific conditions
being met. The revising authority has also
been granted discretion to call for and
examine the records of any order passed in
appeal against which no Revision has been
preferred.

7. The aforesaid words of Rule 23
of the Rules of 1991 clearly indicate that
the
provisions
of
Revision
are
not
mandatory in nature and are clearly at the
discretion of the Officer whose appeal has
been rejected. In view of the aforesaid, the
preliminary objection raised against the
maintainability of the writ petition is
rejection."

22. In view of the aforesaid, I am of
the view that the order of dismissal passed
against the petitioner does not fulfill the
requirements of Rule 8(2)(b) of 1991 Rules
read with Article-311(2) Proviso Clause (b)
of the Constitution of India and therefore,
cannot be sustained.

23. Accordingly, the order dated
29.09.2018
passed
by
the
Senior
Superintendent of Police, Lucknow and the
order dated 20.05.2019 passed by the
Inspector
General
of
Police
(Establishment), Lucknow are set aside.
The writ petition is allowed.

24. The ts are directed to reinstate the
petitioner in service with all consequential
benefits, if there is no other legal
impediment
leaving
it
open
to
the
respondents
to
proceed
with
the
departmental inquiry, in accordance with
law, if they so advised. It is also made clear
that the reinstatement of the petitioner is
subject to outcome of the trial proceedings.
----------
188 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)03ILR A188
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.03.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 18754 of 2019

Prof. Devi Singh ...Petitioner
Versus
I.I.M. Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Shireesh Kumar

Counsel for the Respondents:
A.S.G., C.S.C.

A. Constitution of India - Article 14 -
Pension - Payment stopped - Principle
of natural justice - Applicability -
Request of retirement approved with
payment of regular pension - After three
years, payment of pension provisionally
stopped - No opportunity of hearing
afforded - Effect - Held, staying the
pension provisionally after more than
three years since the petitioner was
getting regular pension, without having
any colour of authority to that effect and
even without affording an opportunity of
hearing to the petitioner is patently
illegal, arbitrary and uncalled for. (Para
41 and 43)

B. Civil Law - Central Civil Services
(Pension) Rules, 1972 - Rule 27 and 28
- Worked both on post of Professor and
Director at IIM - Counting of service
tenure for pension - Pre-interrupted
service - Interruption between the two
spells of civil service - Its counting as
qualifying service - Held, in the absence
of indication to the contrary in the
service record, interruption between the
two spells of service shall be treated as
automatically
condoned
and
preinterrupted services to be treated as
qualifying service - Two spells of service
of the petitioner shall be counted for the
pension
-
Madhukar's
case
of
the
Supreme Court followed. (Para 46)

C. Interpretation of Statute - Beneficial
legislation - Liberal interpretation -
Since
the
pension
Rules
are
the
beneficial
legislation,
therefore,
the
interpretation of such rules should be
made liberally, if two interpretations of
said rules are possible. (Para 47)

Writ Petition allowed. (E-1)

Cases relied on :-

1. Madhukar Vs St. of Mah., (2014) 15 SCC
565

2. DTC Vs Balvan Singh, AIR 2017, SC 396

3. U.O.I. & ors. Vs Vijay Kumar No. 3989606
P.Ex. Naik reported in (2015) 10 SCC 460

4. P. Venugopal Vs U.O.I. (2008) 5 SCC 1

5. Frome United Breweries Company Ltd. &
anr. Vs Keepers of the Peace and Justice for
Country Borough to Bath; 1926 AC 586

6. St. of Orissa Vs Dr. (Miss) Binapani Dei &
ors. reported in AIR 1967 SC 1269

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Shireesh Kumar, learned
counsel for the petitioner, Sri J.N. Mathur,
learned Senior Advocate assisted by Sri
Anant Tewari, learned counsel for the Indian
Institute
of
Management,
Lucknow
(hereinafter referred to as IIM, Lucknow) and
Sri Sudhanshu Chauhan, learned counsel for
the Union of India.

2. Under challenge is order dated
25.6.2019 passed by the Board of Governors
of IIM, Lucknow as contained in Annexure
no. 19 to this writ petition whereby the
payment of pension of the petitioner has been