# Shashi Kant Tiwari v. Senior Superintendent of Police, Gorakhpur

- **Citation:** (2006) 2 ILRA 902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-12
- **Case number:** Civil Misc. Writ Petition No. 44799 of 2000
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-kant-tiwari-v-senior-superintendent-of-police-gorakhpur-40679
- **Pages:** 5

## Headnote

Ranks (Punishment and Appeal Rules,
1991-rule-8
(2)(b)-Petitioner
being
posted as Police constable-on picket
duty-by giving wrong information about
his ailment got leave on 28.8.98-caught
traveling on India Nepal border with
some foreign cell phone-on the basis of
preliminary inquiry-charge sheet served
on
13.5.2000-based
upon
which
straightway order of dismissal passed
dispense of enquiry procedure without
recording
any
reason-can
not
said
bonafide-order can not sustained.

Held: Para 11

So far the case in hand is concerned it is
not a case covered under Rule 8(2) ( c )
of the Rules and admittedly according to
own submission of the learned State
Counsel the matter is covered under Rule
8 (2)(b) of the Rules and thus this Court
is to be satisfied that the disciplinary
authority has recorded reasons in writing
to the effect that proceeding with the
normal procedure is not reasonably
practicable. On examination of the facts
as has come on record and averments as
contained in the counter affidavit this
Court is not satisfied that any reasons
has been recorded by the disciplinary
authority that holding of the normal
enquiry procedure as prescribed III law
is not reasonably practicable. To the
contrary the facts reveal that at all
stages petitioner co-operated with the
enquiry i.e. in respect to the preliminary
enquiry and even thereafter when the
charge sheet was given to him and thus
this Court is convinced that only in view
of nature of charge as submitted by Sri
Alam that it appears to be of some grave
nature the dispensation of the enquiry
can not be said to be justified. The power
to
dispense
the
normal
enquiry
procedure is not to depend on the whims
of the disciplinary authority. There is a
purpose behind conferring of the power
to dispense with the enquiry procedure
and thus that is to be exercised III a
bonafide manner. The reasons in writing
are to recorded and the reasons which
are to be indicated has to be in
consonance
with
the
grounds
so
mentioned in the Rule. Even if the
reasons have been recorded by the
concerned authority and if that cannot
be substantiated/justified from the facts
and circumstances and record then the
reasons even if is recorded can be safely
termed to be arbitrary and whimsical. As
indicated above, so far the case in hand
is concerned, in view of the fact that
evidence of several witnesses have been
collected during the preliminary enquiry
and
petitioner
promptly
moved
in
response
to
the
charge
sheet
by
submitting his reply, this Court has
already observed that dispensation of
the normal procedure of enquiry cannot
be said to be just and proper. To support
the aforesaid view, reliance as has been
placed by the learned counsel for the
petitioner on the decision as has been
given in the case of Simarjeet Kaur
(Supra) can be safely referred. In the
decided case by this Court as referred
above on this short ground the impugned
action of the respondent was quashed
with the liberty to take fresh decision in
2 All] Shashi Kant Tiwari V. Senior Superintendent of Police, Gorakhpur
903
the matter in accordance with law with
the further r direction that as petitioner
was placed under suspension prior to
passing of the impugned order that
suspension was permitted to continue till
the respondent takes fresh decision as
directed. This Court has clearly ruled in
the decision in the case of Simarjeet
Kaur (Supra) that decision if is taken to
hold departmental enquiry against the
petitioner then is to be completed within
a reasonable time and if the respondents
feel that the departmental proceeding in
the facts and circumstances of the case
is not practicable a clear reason has to
be recorded.
Case law discussed:
2006 ALR 433

## Text

902 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.7.2006

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 44799 of 2000

Shashi Kant Tiwari

...Petitioner
Versus
Senior
Superintendent
of
Police,
Gorakhpur

...Respondent

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Sanjiv Kumar

Counsel for the Respondent:
Sri Wasim Alam
Sri J.P. Singh
S.C.

U.P. Police Officer of the Subordinate
Ranks (Punishment and Appeal Rules,
1991-rule-8
(2)(b)-Petitioner
being
posted as Police constable-on picket
duty-by giving wrong information about
his ailment got leave on 28.8.98-caught
traveling on India Nepal border with
some foreign cell phone-on the basis of
preliminary inquiry-charge sheet served
on
13.5.2000-based
upon
which
straightway order of dismissal passed
dispense of enquiry procedure without
recording
any
reason-can
not
said
bonafide-order can not sustained.

Held: Para 11

So far the case in hand is concerned it is
not a case covered under Rule 8(2) ( c )
of the Rules and admittedly according to
own submission of the learned State
Counsel the matter is covered under Rule
8 (2)(b) of the Rules and thus this Court
is to be satisfied that the disciplinary
authority has recorded reasons in writing
to the effect that proceeding with the
normal procedure is not reasonably
practicable. On examination of the facts
as has come on record and averments as
contained in the counter affidavit this
Court is not satisfied that any reasons
has been recorded by the disciplinary
authority that holding of the normal
enquiry procedure as prescribed III law
is not reasonably practicable. To the
contrary the facts reveal that at all
stages petitioner co-operated with the
enquiry i.e. in respect to the preliminary
enquiry and even thereafter when the
charge sheet was given to him and thus
this Court is convinced that only in view
of nature of charge as submitted by Sri
Alam that it appears to be of some grave
nature the dispensation of the enquiry
can not be said to be justified. The power
to
dispense
the
normal
enquiry
procedure is not to depend on the whims
of the disciplinary authority. There is a
purpose behind conferring of the power
to dispense with the enquiry procedure
and thus that is to be exercised III a
bonafide manner. The reasons in writing
are to recorded and the reasons which
are to be indicated has to be in
consonance
with
the
grounds
so
mentioned in the Rule. Even if the
reasons have been recorded by the
concerned authority and if that cannot
be substantiated/justified from the facts
and circumstances and record then the
reasons even if is recorded can be safely
termed to be arbitrary and whimsical. As
indicated above, so far the case in hand
is concerned, in view of the fact that
evidence of several witnesses have been
collected during the preliminary enquiry
and
petitioner
promptly
moved
in
response
to
the
charge
sheet
by
submitting his reply, this Court has
already observed that dispensation of
the normal procedure of enquiry cannot
be said to be just and proper. To support
the aforesaid view, reliance as has been
placed by the learned counsel for the
petitioner on the decision as has been
given in the case of Simarjeet Kaur
(Supra) can be safely referred. In the
decided case by this Court as referred
above on this short ground the impugned
action of the respondent was quashed
with the liberty to take fresh decision in
2 All] Shashi Kant Tiwari V. Senior Superintendent of Police, Gorakhpur
903
the matter in accordance with law with
the further r direction that as petitioner
was placed under suspension prior to
passing of the impugned order that
suspension was permitted to continue till
the respondent takes fresh decision as
directed. This Court has clearly ruled in
the decision in the case of Simarjeet
Kaur (Supra) that decision if is taken to
hold departmental enquiry against the
petitioner then is to be completed within
a reasonable time and if the respondents
feel that the departmental proceeding in
the facts and circumstances of the case
is not practicable a clear reason has to
be recorded.
Case law discussed:
2006 ALR 433

(Delivered by Hon'ble S.K. Singh, J.)

1. Heard Sr:i Shashi Nandan, Senior
Advocate in support of this petition and
Sri Wasim Alam, Standing Counsel in
opposition thereof.

2. By means of this writ petition,
petitioner has challenged the order of
dismissal from service dated 25.9.2000
(annexure no. 1 to the writ petition)
passed by the S. S. P., Gorakhpur.

3. There appears to be no dispute
about certain facts and, therefore, by
giving brief summary the writ petition can
be conveniently disposed of.

4. Petitioner was working as
Constable in U. P. Police and he was
posted at Police Station Tiwaripur, district
Gorakhpur. On the ground that on
27.8.1998, petitioner was posted on a
picket duty but by giving a wrong
information about his ailment he got leave
and on 28.8.1998 he was caught travelling
with another man at India Nepal Border
along with some foreign cell phones
having its value about Rs. 14.75 lakhs, he
was placed under suspension by order
dated
3.9.1998
and
thereafter
a
preliminary enquiry report was submitted
on 17.2.2000 and a charge sheet was
served on the petitioner on 13.5.2000 and
thereafter straightway the impugned order
of dismissal from service dated 25.9.2000
came to be passed by the respondent
which is under challenge in this petition.

5. Learned counsel for the petitioner
submits that the charges leveled against
the petitioner, as replied by him pursuant
to the charge sheet are totally wrong,
baseless and on some misconception of
the facts petitioner has been proceeded
and In any view of the matter the
submission is that petitioner was entitled
to get an opportunity to participate in the
regular enquiry and the impugned order
could
have
been
passed
by
the
disciplinary au thority only after resorting
to the fu 11- fledged procedure of the
enquiry
so
provided
in
the
rules.
Submission is that petitioner has not been
afforded any opportunity in the enquiry
proceedings which can be said to have
taken place After issuance of the charge
sheet and after getting the reply no
enquiry proceeded and straigh taway the
order has been passed. Submission is that
the shelter as has been taken by the
respondent to the provisions as contained
in Rule 8(2)(b) of the U.P. Police Officers
Of the Subordinate Ranks (Punishment
and Appeal) Rules, 1991 (hereinafter
referred to as the Rules) have absolutely
no application to the facts of the present
case and, therefore, dispensation of the
enquiry as provided under the Rule
8(2)(b) of the Rules cannot be said to be
justified. Submission is that neither any
proper reasons has been recorded for
dispensing the enquiry nor otherwise on
the facts its dispensation can be said to be
904 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
justified and, therefore, on this short
ground the impugned action is liable to be
quashed. In support of the aforesaid,
learned counsel placed reliance on a
judgment given by this Court in the case
of Smt. Simarjeet Kaur Vs. State of U. P.
reported in 2006 A.L.R. 433.

6. In response to the aforesaid Sri
Alam, learned Standing, Counsel submits
that the reasons have been given in the
impugned
order
for
dispensing
the
enquiry which is to the effect that as the
petitioner
is
involved
in
a
major
crime/offence
and
there
is
every
apprehension that on account of his fear
the witnesses will not give any evidence,
resorting to the regular enquiry may not
be possible and, therefore, the impugned
order has been passed by the disciplinary
authority on the basis of preliminary
enquiry report. Sri Alam on the basis of
various details as has been given in para 4
and 6 of the counter affidavit submits that
as the past conduct of the petitioner has
also not been good, as at present he was
found to be involved in grave offence
keeping the petitioner in force was found
to be not sati factory, the disciplinary
authority has rightly, on a consideration
of these facts dismissed the petitioner
from service by dispensing the regular
procedure of enquiry to which no
exception can be taken.

7. In view of the aforesaid, the court
has examined the'matter.

8. There is no dispute about the fact
that the charge on which the petitioner
was placed under suspension is dated
28.8.1998 and thereafter quite long time
passed and the department has been able
to collect the statement of several
witnesses on the basis of which a
preliminary report was submitted on
17.2.2000. Preliminary enquiry report
contains the statements of five witnesses
namely S/Sri Mohd. Asjad, Akshybar
Yadav, Mahatam and Jhinak besides that
of the petitioner. It is on the basis of the
statements
and
other
evidence
so
collected
by
the
Enquiry
Officer
preliminary enquiry report was submitted
on 17.2.2000 and charge sheet was given
to the petitioner on 13.5.2000. There is no
allegation whatsoever in the counter
affidavit that at any point of time either at
the stage when the occurrence/arrest is
said to have taken place on 28.8.1998 or
even thereafter at the time of collecting
the evidence for the purpose of submitting
the preliminary enquiry i.e. while getting
the statement of the witnesses, any threat
was given by the petitioner to any of the
witnesses or he ever prevented any
official
from
getting
any
evidence
collected rather the facts as has come on
record clearly reveals that statement of
large number of witnesses have been
recorded by the enquiry officer in which
the statement of the petitioner was also
recorded and thus on the facts this Court
is not convinced that it was a case of there
being any threat/prevention from the side
of the petitioner in collection of any
evidence if the enquiry officer so desired.
On the basis of the preliminary. enquiry
report, a charge sheet was given to the
petitioner on 13.5.2000 to which he
promptly replied on 22.5.2000 i.e. within
a couple of days which also clearly
indicates bonafides on the part of the
petitioner to co-operate in the enquiry
proceedings.

9. Needless to say that provisions as
contained in Rule 8(2)(b) of the Rules
clearly
mandates
the
disciplinary
authority that before dismissal, removal or
2 All] Shashi Kant Tiwari V. Senior Superintendent of Police, Gorakhpur
905
reduction of rank of a police officer
proper
enquiry
and
disciplinary
proceeding as contemplated by Rules is to
be undertakel}, The dispensation of the
enquiry is just by way of exception and
that is permitted only if the disciplinary
authority records reasons in writing to the
effect that it is not reasonable to hold such
enquiry or where authority is satisfied that
holding of enquiry is not in the interest of
the security of the State and thus is not
expedient to hold such enquiry.

10. For convenIence relevant
provISIOn as contained In Rule 8 (2)(b)
(c) of the Rules can be quoted at this
place:

"8(2)(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
8(2) ( c ) Where the Government is
satisfied that in the interest of the
security of the State it is not expedient
to hold such enquiry"

11. So far the case in hand is
concerned it is not a case covered under
Rule 8(2) ( c ) of the Rules and admittedly
according to own submission of the
learned State Counsel the matter is
covered under Rule 8 (2)(b) of the Rules
and thus this Court is to be satisfied that
the disciplinary authority has recorded
reasons in writing to the effect that
proceeding with the normal procedure is
not
reasonably
practicable.
On
examination of the facts as has come on
record and averments as contained in the
counter affidavit this Court is not satisfied
that any reasons has been recorded by the
disciplinary authority that holding of the
normal enquiry procedure as prescribed
III law is not reasonably practicable. To
the contrary the facts reveal that at all
stages petitioner co-operated with the
enquiry i.e. in respect to the preliminary
enquiry and even thereafter when the
charge sheet was given to him and thus
this Court is convinced that only in view
of nature of charge as submitted by Sri
Alam that it appears to be of some grave
nature the dispensation of the enquiry can
not be said to be justified. The power to
dispense the normal enquiry procedure is
not to depend on the whims of the
disciplinary authority. There is a purpose
behind conferring of the power to
dispense with the enquiry procedure and
thus that is to be exercised III a bonafide
manner. The reasons in writing are to
recorded and the reasons which are to be
indicated has to be in consonance with the
grounds so mentioned in the Rule. Even if
the reasons have been recorded by the
concerned authority and if that cannot be
substantiated/justified from the facts and
circumstances and record then the reasons
even if is recorded can be safely termed to
be arbitrary and whimsical. As indicated
above, so far the case in hand is
concerned, in view of the fact that
evidence of several witnesses have been
collected during the preliminary enquiry
and
petitioner
promptly
moved
in
response to the charge sheet by submitting
his reply, this Court has already observed
that dispensation of the normal procedure
of enquiry cannot be said to be just and
proper. To support the aforesaid view,
reliance as has been placed by the learned
counsel for the petitioner on the decision
as has been given in the case of Simarjeet
Kaur (Supra) can be safely referred. In the
decided case by this Court as referred
above on this short ground the impugned
906 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
action of the respondent was quashed with
the liberty to take fresh decision in the
matter in accordance with law with the
further r direction that as petitioner was
placed under suspension prior to passing
of the impugned order that suspension
was permitted to continue till the
respondent
takes
fresh
decision
as
directed. This Court has clearly ruled in
the decision in the case of Simarjeet Kaur
(Supra) that decision if is taken to hold
departmental
enquiry
against
the
petitioner then is to be completed within a
reasonable time and if the respondents
feel that the departmental proceeding in
the facts and circumstances of the case is
not practicable a clear reason has to be
recorded.

12. Be as it may, on the facts and
discussion as made above, this court
being convinced that the impugned order
as on today cannot be sustained proposes
to quash the same. Writ petition is hereby
allowed. The impugned order passed by
the respondent dated 25.9.2000 (annexure
no. 1) is hereby quashed with the liberty
to the respondents to proceed in the
matter in terms of the judgment of this
Court as contained in para 9 in the case of
Simranjeet Kaur (Supra).

Accordingly the writ petition is
allowed/ disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 19746 of 2001

Ram Briksha Singh

...Petitioner
Versus
Deputy
Director
Consolidation,
Gorakhpur and others ...Respondents

Counsel for the Petitioner:
Sri Ram Prakash Rai
Sri Satyendra Narayn Singh

Counsel for the Respondents:
Sri L.K. Tripathi
S.C.

Constitution of India, Art. 226-Practice &
Procedure-necessity to recording the
reasons-No
reasons
recorded-while
setting a side the order passed by the
S.O.C.-impugned order passed by D.D.C.
not supported by any reason-held-liable
to be quashed.

Held: Para 8

Reverting to the decision impugned
herein, from a careful consideration of
the
judgment
rendered
by
Deputy
Director Consolidation, it is amply clear
that no reasons have been recorded by
the authority while accepting the case of
the revisionist. It is also clear that the
authority concerned h as not reckoned
into
consideration
the case of the
petitioner while allowing the revision
and setting aside the order of Settlement
Officer
Consolidation.
In
the
circumstances, I have no hesitation to
hold that the judgment impugned herein
is not supported by any reason and
therefore, the same is bad in law on
account of non-consideration of the
grievances of both the parties and by