# Virendra Kumar Premi v. State of U.P. and another

- **Citation:** (2008) 3 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-07
- **Case number:** Civil Misc. Writ Petition No. 33057 of 2006
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-premi-v-state-of-u-p-and-another-41221
- **Pages:** 4

## Headnote

(Punishment & Appeal) Rule 1991-Rule8
(2)(b)-dismissal
without
enquirywithout
recording
any
reason
for
804 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
dispension of formal enquiry-petitioner a
Constable
brought
the
accused
for
appearance
before
the
Court-while
accused
requested
to
ease
himself
snatched the rope and escaped on-heldcharges so leveled can be easily seen in
disciplinary enquiry-order of dismissalillegal with liberty to fresh full fledged
enquiry-during suspension period no
subsistence allowance payable.

Held: Para 6

In view of the aforesaid, I am of the
opinion that the impugned order of
termination does not contain sufficient
reasons for dispensing with the inquiry.
The charges so levelled are such, that it
can
easily
be
enquired
through
a
departmental enquiry. It is not a case
where it could be said that it was not
reasonably
practicable
to
hold
an
inquiry. In my opinion, the decision of
the disciplinary authority was wholly
arbitrary.
The
reasons
given
for
dispensing with the enquiry was wholly
irrelevant. I am of the view that the
disciplinary authority has misused its
powers. Similar view was taken by me in
Dharam Pal Singh vs. State of U.P. and
others, 2005 ALJ 819 = 2005(1)ESC 566.
Case law discussed:
1991(1)SCC 729, (1991)1 SCC 362, 2005 ALJ
819 = 2005(1)ESC 566

## Text

3 All] Virendra Kumar Premi V. State of U.P. and another
803
appointment on such post had been
withdrawn. The writ petitioners who had
been validly selected for appointment on
such post would thus be entitled for
appointment
immediately
on
the
withdrawal of such stay/ban on the
appointments. Hence the writ petitioners
would be entitled for appointment in
pursuance of the selection held on the
basis of Advertisement No. 17701.
However, although they shall be entitled
to the seniority and other consequential
benefits but they shall be entitled for
payment of salary only from the date of
their appointment pursuant to this order.
The appellants shall give appointment to
the writ petitioners within a period of
three months and in case if such
appointment is not given, they shell be
entitled
for
payment
of
salary
immediately after expiry of three months
from today."

8. In Manoj Kumar & Ors. Vs.
State of U.P. & Ors., 2007 (7) ADJ 355,
pursuant to the select list, some of the
selected
candidates
were
issued
appointment letters, and based on that,
some
were
allowed
to
join,
but
subsequently, on the basis of the ban
order, the appointments were cancelled.
The Court held that once the ban order
was lifted and the selection procedure was
not found to be invalid, the cancellation of
the selection process and refusal to give
appointment to the selected candidates
was not justified. The Court directed the
respondents to issue appointment letters
on the basis of the selection held by them.

9. In view of the aforesaid, it is clear
that the appointments of the petitioners
were cancelled in consequence of the ban
order. Since no irregularity in the
selection process was found by the
respondents, and since the ban order has
now been lifted, the petitioner, who was
earlier given the appointment letter, is
now
liable
to
be
issued
a
fresh
appointment on the basis of the selection
held in the year 1997.

10. Consequently, the impugned
orders dated 12.11.1997, 16.09.2003 and
23.06.2005 passed by the respondents are
all quashed. The writ petition is allowed.
The advertisement dated 9th August,
2007, issued by the respondents will not
be given effect to, and the Court directs
the respondents to issue an appointment
letter to the petitioner pursuant to the
selection held by them in the year 1997
within four weeks from the date of the
production of a certified copy of this
order.
The
relief
for
consequential
benefits of service and salary from
12.11.1997 cannot be granted on the
principle of 'no work no pay'.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 33057 of 2006

Virendra Kumar Premi
...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri A.D. Saunders

Counsel for the Respondents:
S.C.

U.P. Police Officers subordinate Ranks
(Punishment & Appeal) Rule 1991-Rule8
(2)(b)-dismissal
without
enquirywithout
recording
any
reason
for
804 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
dispension of formal enquiry-petitioner a
Constable
brought
the
accused
for
appearance
before
the
Court-while
accused
requested
to
ease
himself
snatched the rope and escaped on-heldcharges so leveled can be easily seen in
disciplinary enquiry-order of dismissalillegal with liberty to fresh full fledged
enquiry-during suspension period no
subsistence allowance payable.

Held: Para 6

In view of the aforesaid, I am of the
opinion that the impugned order of
termination does not contain sufficient
reasons for dispensing with the inquiry.
The charges so levelled are such, that it
can
easily
be
enquired
through
a
departmental enquiry. It is not a case
where it could be said that it was not
reasonably
practicable
to
hold
an
inquiry. In my opinion, the decision of
the disciplinary authority was wholly
arbitrary.
The
reasons
given
for
dispensing with the enquiry was wholly
irrelevant. I am of the view that the
disciplinary authority has misused its
powers. Similar view was taken by me in
Dharam Pal Singh vs. State of U.P. and
others, 2005 ALJ 819 = 2005(1)ESC 566.
Case law discussed:
1991(1)SCC 729, (1991)1 SCC 362, 2005 ALJ
819 = 2005(1)ESC 566

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri A. D. Saunders, the
learned counsel for the petitioner and the
learned
standing
counsel
for
the
respondents.

2. The petitioner is a constable and
his services was dispensed with, without
holding a fulfledged inquiry, by using the
provisions of Rule 8(2)(b) of the U.P.
Police Officers of the Subordinate Ranks
(Punishment and Appeal) Rules 1991 on
the ground that it was not reasonably
practicable
to
hold
an
inquiry.
It
transpires that the petitioner had brought
the accused to the Civil Court for his
appearance in the Court and during the
course of the day, the accused made a
request that he wanted to ease himself
and, at that moment of time, it is alleged
that the accused snatched the rope and
escaped on a motorcycle which was
waiting for him. The petitioner's services
has been dispensed with by an order dated
16.5.2006 by invoking the provision of
Rule 8(2)(b) of the Rules of 1991 on the
ground that it was not reasonably
practicable to hold such an inquiry
because the petitioner could influence the
witnesses. In my opinion, this is an escape
route adopted by the authorities by taking
an easy way out from not holding an
enquiry.
The
petitioner
is
only
a
Constable and is not holding such a
powerful
position
where
he
could
influence the witnesses.

3. The services of the petitioner had
been terminated under Rule 8(2)(b) of the
Uttar Pradesh Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991. Rule 8(2)(b) reads
as under:-

"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 inquiry."

4. The language of the aforesaid rule
is similar to the second proviso to Article
311(2) of the Constitution of India. In
Union of India and another's vs.
Tulsiram Patel, AIR 1985 SC 1416, the
Supreme Court held:
3 All] Virendra Kumar Premi V. State of U.P. and another
805
"The condition precedent for the
application of clause(b) the satisfaction of
the disciplinary authority that "it is not
reasonably practicable to hold" the
inquiry contemplated by clause (2) of
Article 311....

"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."

".....The reasonable practicability of
holding an inquiry is a matter of
assessment to be made by the disciplinary
authority."

".....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."

In Tulsiram Patel's case (supra) the
Supreme Court further held:

"The second condition necessary for
the valid application of clause (b) of the
second provision is that the disciplinary
authority should record in writing its
reason for its satisfaction that it was not
reasonably practicable to hold the inquiry
contemplated by Article 311(2). This is a
Constitutional obligation and if such
reason is not recorded in writing, the
order dispensing with the inquiry and the
order of penalty following thereupon
would both be void and unconstitutional.
It is obvious that the recording in
writing of the reason for dispensing with
the inquiry must precede the order
imposing the penalty."

The Supreme Court further went on to
say:

"If the Court finds that the reasons
are irrelevant, then the recording of its
satisfaction by the disciplinary authority
would be an abuse of power conferred
upon it by clause (b) and would take the
case out of the purview of that clause and
the impugned order of penalty would
stand invalidated."

In Chief Security Officer and others vs.
Singasan Rabi Das, 1991(1)SCC 729,
the Supreme Court held that there was a
total absence of sufficient material or
good ground for dispensing with the
inquiry and accordingly held that the
order of termination dispensing with the
inquiry was illegal.

5. In Jaswant Singh vs. State of
Punjab and others, (1991)1 SCC 362,
the Supreme Court held:

"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
inquiry."
806 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
The Supreme Court further held:

"The decision to dispense with the
departmental inquiry cannot, therefore,
be rested solely on the ispe dixit of the
concerned
authority.
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 of caprice of the
concerned officer."

6. In view of the aforesaid, I am of
the opinion that the impugned order of
termination does not contain sufficient
reasons for dispensing with the inquiry.
The charges so levelled are such, that it
can
easily
be
enquired
through
a
departmental enquiry. It is not a case
where it could be said that it was not
reasonably practicable to hold an inquiry.
In my opinion, the decision of the
disciplinary
authority
was
wholly
arbitrary.
The
reasons
given
for
dispensing with the enquiry was wholly
irrelevant. I am of the view that the
disciplinary authority has misused its
powers. Similar view was taken by me in
Dharam Pal Singh vs. State of U.P. and
others, 2005 ALJ 819 = 2005(1)ESC
566.

7. In my opinion, the charge against
the petitioner is such which can be
decided if a full fledged inquiry is held
against him under the Rules of 1991.
Consequently the invocation of the
provisions of Rule 8(2)(b) by the
authority was totally arbitrary. In view of
the aforesaid decisions, the exercise by
the authority of this provision was totally
arbitrary. Consequently, the impugned
order terminating the services of the
petitioner cannot be sustained and is
quashed. The writ petition is allowed and
the matter is remitted to the authority to
proceed from the stage prior to the
passing of the impugned order and
conclude the inquiry within a period of
six months from the date of the
production of a certified copy of this
order.

8. It has been stated at the Bar that
prior to the order of dismissal the
petitioner
was
under
suspension.
Consequently,
the
petitioner
would
remain under suspension till the disposal
of the inquiry proceedings but for the
period from the date of suspension till
today, the petitioner will neither be paid
the suspension allowance nor any arrears
for this period. Final orders on this aspect
would also be passed by the authority
after the conclusion of the inquiry and
upon passing the order of the penalty, if
any.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 23571 of 2008

Godenath Singh

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

Counsel for the Petitioner:
Sri Satyendra Singh

Counsel for the Respondents:
Sri B.K. Pandey
Sri Satish Chaturvedi
S.C.