WPSS/68/2014 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. 68 of 2014

Naveen Kumar

……. Petitioner

Versus

State of Uttarakhand & others

...Respondents

Mr. M.S. Pal, Senior Advocate assisted by Mr. Amir Malik, Advocate for the petitioner. Mr. Vikas Pande, Brief Holder for the State/respondents.

Hon’ble Manoj K. Tiwari, J.

By means of this petition, petitioner seeks following

reliefs:

(i) Issue writ, order or direction in the nature of certiorari quashing the impugned dismissal order dated 18.11.2004 passed by respondent no.4 affirmed by the Deputy Inspector General of Police Garhwal Division on 07.03.2005 (annexure no.2) and then reaffirmed by the Second Appellate Authority vide its order dated 08.06.2005 passed by Upper Police Mahanirikshak, Police Head Quarters, Dehradun. quashing the impugned dismissal order dated 18.11.2004 passed by respondent no.4 affirmed by the Deputy Inspector General of Police Garhwal Division on 07.03.2005 (annexure no.2) and then reaffirmed by the Second Appellate Authority vide its order dated 08.06.2005 passed by Upper Police Mahanirikshak, Police Head Quarters, Dehradun.

(ii) Issue writ, order or direction in the nature of mandamus directing the respondents to reinstate the petitioner in service. directing the respondents to reinstate the petitioner in service.

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 1986 and was posted in District Pauri till 18.11.2004. 3. Petitioner is aggrieved by the order dated 18.11.2004 passed by respondent no. 4 (Superintendent of Police, Pauri Garhwal), whereby, punishment of removal from service was imposed on him. Petitioner has also challenged the order dated 07.03.2005 passed by the Deputy Inspector General of Police, Garhwal Division and the order dated 08.06.2005 passed by Upper Police Mahanirikshak, Police Head Quarters, Dehradun.

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. Perusal of the order dated 18.11.2004 passed by the Disciplinary Authority reveals that power available under Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment And Appeal) Rules, 1991 was invoked for imposing penalty of removal from service. Rule 8(2)(b) of the aforesaid Rules enables the Disciplinary Authority to dispense with the disciplinary inquiry once he is satisfied that it is not reasonably practicable to hold such inquiry. However, this power is not unfettered and while exercising this power, Disciplinary Authority is required to record reasons in writing, why holding of regular disciplinary inquiry is not reasonably practicable. For ready reference Rule 8 of aforesaid Rule 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.”

Counter affidavit has been filed on behalf of respondent

no.4, in which it is stated that petitioner alongwith another Constable were detailed forGuard duty with under trial prisoner, who was sent for treatment to Medical College, Meerut and the said under trial prisoner has absconded on 09.11.2014 from the custody of petitioner and other Constable, namely, Omveer Singh. It is further stated that petitioner informed about this fact to the Higher Authorities only on 17.11.2014. Paragraph no.12 of the counter affidavit is extracted below:

“12- That the contents of Para No-11 of the writ petition are wrong hence denied. The dismissal order passed by respondent no-4 in exercise of Rule-8(2) of U.P. Subordinate Police Officers (Punishment & Appeal) Rule 1991 which provides where the authority empowered to dismiss or remove person or reduce him in rank is satisfied that for some reason to be recorded by that authority in writing is not reasonable practicable to hold such enquiry or Rule-8(2) and where the Govt. is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry. As such Rule-8(2) empowers the authority concern to dispense with the enquiry in case where his is satisfied for some reason to be recorded in writing that is not reasonably practicable in holding such enquiry and where Officer/Govt. is satisfied that in the interest of Security of the state it is expedient to hold such enquiry. The said rules has not been challenged to its validity and legality in writ petition by the petitioner. Therefore, in view of the said rule and in exercise of it and keeping in view of the past conduct of the petitioner as stated in foregoing pares he was dismissed from the service, which is just and proper.”

6. I have perused the punishment order dated 18.11.2004

passed by respondent no.4-Superintendent of Police, Pauri Garhwal. The disciplinary authority has discussed about the past conduct of the petitioner and has expressed opinion that there is no possibility for improvement in work and conduct of the petitioner. The disciplinary authority has also held petitioner guilty on various counts, however, no reason has been recorded as to how he is satisfied that it is not reasonably practicable to hold disciplinary inquiry against the petitioner. Past misconduct, if any, cannot be sufficient ground for dispensing with the requirement of holding regular disciplinary inquiry.

8. 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. In the absence of any reason in the order passed by Disciplinary Authority for dispensing with disciplinary inquiry, the punishment of removal from service imposed upon petitioner by invoking Rule 8(2)(b) of the aforesaid Rules cannot be sustained in the eyes of law. No other material has been placed by the respondents to justify dispensing of formal inquiry in terms of Rule 8(2)(b) of the aforesaid Rules.

10. Accordingly, the writ petition is allowed. Impugned orders dated 18.11.2004 (annexure no.1 to the writ petition), 07.03.2005 (annexure no.2 to the writ petition) & 08.06.2005 (annexure no.3 to the writ petition) are quashed. Petitioner is directed to be reinstated in service. However, it will not preclude the respondents from holding regular disciplinary inquiry against the petitioner.

12. No order as to costs.