WPSS/1063/2014 of Naveen Kumar Vs State Of Uttarakhand AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND (Under Article 226 of the Constitution of India)

Writ Petition (S/S) No. 1063 of 2014

Naveen Kumar

……. Petitioner

Versus

State of Uttarakhand & others

...Respondents

Dated 23.06.2017

Mr. Sushil Vashisth, Advocate for the petitioner. Mr. H.M. Raturi, Deputy Advocate General along with Mr. Vikas Pande, Brief Holder for the State/respondents.

Hon’ble Manoj K. Tiwari, J.

By mans of this petition, petitioner seeks

following reliefs:

(i) Issue writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order of dismissal dated 26.09.2013, passed by Inspector General of Police, Head Quarter, Dehradun, Uttarakhand. certiorari calling for the record and quashing the impugned order of dismissal dated 26.09.2013, passed by Inspector General of Police, Head Quarter, Dehradun, Uttarakhand.

(i-a) Issue writ, order or direction in the nature of certiorari quashing the dismissal order dated 28.08.2005 passed by respondent no.3. certiorari quashing the dismissal order dated 28.08.2005 passed by respondent no.3.

(i-b) Issue writ, order or direction in the nature of certiorari quashing the appellate order dated 12.12.2005 passed by respondent no.4. certiorari quashing the appellate order dated 12.12.2005 passed by respondent no.4.

Heard learned counsel for the parties.

2. Learned counsel for the petitioner submits that petitioner was appointed as Constable in Civil Police in the year 1998 and was posted in District Chamoli. Subsequently in the year 2001, he was transferred to Armed Police in District Dehradun.

3. Petitioner is aggrieved by the order dated 28.08.2005 passed by respondent no. 3 (Senior Superintendent of Police, Dehradun), whereby, punishment of removal from service was imposed on him. Petitioner has also challenged the order dated 12.12.2005 passed by the Appellate Authority and the order dated 26.09.2013 passed by Inspector General, Police Headquarter, Uttarakhand.

4. According to learned counsel for the petitioner, grievance of the petitioner is that punishment of removal from service is imposed upon him without holding any disciplinary inquiry. Learned counsel for the petitioner submits that no show cause notice or charge-sheet whatsoever was issued against the petitioner.

5. Learned counsel for the petitioner has referred to Rule 8 of the U.P. Police Officers of the Subordinate Ranks (Punishment And Appeal) Rules, 1991, which is extracted 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 person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on criminal charge; or

(b) Where the authority empowered to dismiss or remove 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 of Police recommends dismissal or removal of 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 person in police custody or judicial custody to escape shall be dismissal unless the punishing authority for reasons to be recorded in writing awards 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.”

6. Learned Deputy Advocate General has relied upon Rule 8 (2) (b) of the aforesaid Rules, which empowers the Competent Authority to dismiss or remove Police Officer without inquiry/disciplinary proceedings, if he is satisfied that it is not reasonably practicable to hold such inquiry. However, Rule 8 (2) (b) does not confer unfettered power upon the Disciplinary Authority and the condition precedent for invoking the said power is that the disciplinary authority must record reasons, why it is not reasonably practicable to hold inquiry.

7. I have perused the punishment order dated 28.08.2005 passed by S.S.P. Dehradun. The charge against the petitioner is of unauthorized absence from duty for short intervals on certain dates. In the entire order passed by the Disciplinary Authority, no reason has

been assigned, why it is not reasonably practicable to hold disciplinary inquiry against the petitioner. It only refers to some documentary evidence regarding petitioner’s absence from duty and thereafter contains recital that in view of the documentary evidence, the Disciplinary Authority is satisfied that there is no need of holding detailed disciplinary inquiry. Thus, the requirement of Rule 8 (2) (b) is not satisfied. Therefore, it was imperative for the Disciplinary Authority to hold disciplinary inquiry, in terms of Rule 8 (2) (b) of the aforesaid Rules.

8. Since, petitioner has been removed from service without holding any inquiry, therefore, order passed by the Disciplinary Authority cannot be sustained. Hon’ble Supreme Court in the case of Tarsem Singh Versus State of Punjab reported in (2006) 13 SCC 581, while dealing with similar controversy with reference to Article 311 (2) (b) observed as under:-

“10. It is now well-settled principle of law that constitutional right conferred upon delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid the holding of an enquiry. The learned counsel appearing on behalf of the appellant has taken us through certain documents for the purpose of showing that ultimately the police on investigation did not find any case against the appellant in respect of the purposed FIR lodged against him under Section 377 IPC. However, it may not be necessary for us to go into the said question.

11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory

authority based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for regular departmental enquiry relying on or on the basis of preliminary enquiry. However, if preliminary enquiry could be conducted, we fail to see any reason as to why formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such preliminary without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice. The appellate authority, as noticed hereinbefore, in its order dated 24.06.1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.

12. Even the Inspector General of Police in passing his order dated 26.11.1999, despite having been asked by the High Court to pass speaking order, did not assign sufficient or cogent reason. He, like the appellate authority, also proceeded on the basis that the appellant was guilty of commission of offences which are grave and heinous in nature and bring bad name to the police force of the State on the whole. None of the authorities mentioned hereinbefore proceeded on the relevant material for the purpose of arriving at the conclusion that in the facts and circumstances of the case sufficient cause existed for dispensing with the formal enquiry. This aspect of the matter has been considered by this Court in Jaswant Singh v. State of Punjab wherein relying upon the judgment of the Constitution Bench of this Court, inter alia, in Union of

India v. Tulsiram Patel, it was held: (Jaswant Singh case, SCC p. 368, para 4)

“Although Clause (3) of that article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous consideration or merely ruse to dispense with the inquiry.”

9. Learned Deputy Advocate General for the State has referred to para 6 of the counter affidavit for justifying invocation of Rule 8 (2) (b), which is analogous to proviso (b) appended to clause 2 of Article 311.

10. Para 6 of the counter affidavit filed on behalf of respondent nos. 2 & 3 is extracted below:-

“That it is further stated that while absenting himself from duty on 25.07.2005, 26.07.2005, 28.07.2005, 30.07.2005, 06.08.2005, 30.08.2005 and 16.08.2005, the petitioner has attended the court cases pending against him under various sections of I.P.C. Petitioner was not taken any permission regarding attend the court below and there was no entry made to this effect in Register nor in the G.D. after intense inquiry of the cases of the petitioner it was found that the petitioner was posted as Security Guard, but he remained absent from the duty, which shows the carelessness of the petitioner towards his duties, therefore, as per the Uttaranchal /UP Subordinate Police Officers of Subordinate Rankers (Punishment and Appeal) Rules, 1991 and order 2002 under Rule 8 Sub Rule (kha), the petitioner was dismissed from his services.”11. In my humble opinion, para 6 of the counter affidavit does not indicate any reason for not holding regular disciplinary proceedings against the petitioner. No other material has been placed by the respondents to satisfy the Court that it was necessary to dispense with

formal inquiry, in terms of Rule 8 (2) (b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment And Appeal), Rules 1991. Therefore, I am of the opinion that the impugned orders cannot be sustained and are liable to be quashed.

12. Accordingly, the writ petition is allowed. Impugned orders dated 28.08.2005, 12.12.2005 and 26.09.2016 are quashed. Petitioner is directed to be reinstated in service, however, it would be open to the respondents to initiate disciplinary inquiry against the petitioner, if they so desire. Payment of backwages shall abide by the result of such inquiry. Such an inquiry, if any, must be concluded within six months from the date of production of certified copy of this order.

13. No order as to costs.

(Manoj K. Tiwari, J.)

Ujjwal