Prempal Singh v. State of Uttarakhand

Brief facts of the case are as hereunder:- That the petitioner was appointed as Constable in Civil Police of the State (Uttar Pradesh) in the year 1977; respondent no. 4 passed an order dated

10.12.1997, whereby, the petitioner was placed under suspension. The grounds, on which the petitioner was put under suspension, was that when petitioner along with other Policemen, was taking under-trial prisoners from Sub-Jail, Haldwani for producing them before the Court of Kashipur, petitioner gave sufficient opportunity to one of the prisoners namely Manoj @ Ghantoori so that he may telephonically threaten the Former M.L.A. of Kashipur Rajeev Agarwal. Besides this, he provided liquor to prisoners Jaswinder Singh @ Jassa and Shamim. That only eleven days after the order of suspension, respondent no. 4 passed an order dated

21.12.1997, whereby, the services of the petitioner were dismissed by invoking the provisions of Rule 8(2) Proviso (b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rule, 1991 (hereinafter referred to as ‘the Rules of 1991’).

3. Heard learned counsel for the parties and perused the record.

4. The main ground canvassed by the petitioner in the Writ Petition was that the dismissal order has been passed by respondent no. 4 without following the principles of natural justice and without holding any departmental inquiry, as contemplated under Rule 14 and 16 of the Rules of 1991. After reorganization of the State of U.P., the Writ Petition was transferred to this Hon’ble Court and by the impugned judgment and order dated 12.12.2018, the Writ Petition was dismissed. The learned Single Judge has held Disciplinary Authority has recorded reasons for not holding regular inquiry and has found no error in the order.

5. Mr. C.D. Bahuguna, learned Senior Counsel has submitted that Rule 4(1)(a) of the Rules of 1991 defines major penalty namely (i) dismissal from service; (ii) Removal from service; (iii) Reduction in rank including reduction to a lower- scale or to a lower stage in a time scale.

6. Rule 5 of the Rules of 1991 lays down the procedure for award of punishment, which is quoted as hereunder:- “5. Procedure for award of punishment.- (1) The cases in which major punishments enumerated in clause (a) of sub- rule (1) of Rule 4 may be awarded, shall be dealt with in accordance with the procedure laid down in sub-rule (1) of Rule 14. (2) The cases in which minor punishments enumerated in clause (b) of sub-rule (1) of Rule 4 may be awarded, shall be dealt with in accordance with the procedure laid down in sub-rule (2) of Rule 14. (3) The cases in which minor penalties mentioned in sub- rules (2) and (3) of Rule 4 may be awarded shall be dealt with in accordance with the procedure laid down in Rule

15.”

7. Rule 14 of the Rules of 1991 lays down the procedure for conducting departmental proceedings, which is quoted as hereunder:- “14. Procedure conducting departmental proceedings.- (1) Subject to the provisions contained in these Rules, the departmental proceedings in the cases referred to in sub-rule (1) of Rule 5 against the police officers may be conducted in accordance with the procedure laid down in Appendix-I. (2) Notwithstanding anything contained in sub-rule (1) punishments in cases referred to in sub-rule (2) of Rule 5 may be imposed after informing the police officer in writing of the action proposed to be taken against him and of the imputations of act or omission on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal. (3) The charged police officer shall not be represented by Counsel in any proceedings instituted under these Rules.”

8. On this basis, learned Senior Counsel for the appellant has submitted that since the appellant was dismissed from service, therefore, respondent no. 4 was bound to follow the procedure, as prescribed under Rule 14(1) and (2). Learned Senior Counsel has submitted that it is an admitted case of the appellant that even no chargesheet was issued. Learned Senior Counsel has further argued that even if the allegations leveled against the appellant in the impugned dismissal order are taken on the face value that he is avoiding the departmental inquiry by absenting himself, then also, provisions of Rule 16 would have been invoked, which provides for proceedings in absentia.

9. Rule 16 of the Rules of 1991 is quoted as hereunder:- “16. Proceedings absentia.-(1) Departmental proceedings against delinquent police officers may be taken in absentia by the authorities competent departmental proceedings if, the police officer, against whom departmental proceedings are pending or against whom it is proposed to start such proceedings or to whom it is impossible for the inquiry officer to contact, deliberately absents himself from the place of his posting or from the proceedings when in progress.”

10. Learned Senior Counsel has further submitted that since no chargesheet was issued, therefore, the allegations leveled against the appellant in the impugned order that he was hand in gloves with some of the prisoners, was not a reasonable and practicable ground not to hold regular disciplinary proceedings against him. In support of his contention, learned Senior Counsel has relied upon the Constitutional Bench judgment of the Hon’ble Apex Court passed in the case of Union of India (UOI) and Others Vs. Tulsi Ram Patel and Others, reported in (1985) 3 SCC 398, wherein, he has made a reference to paragraph 130 of the judgment, which is extracted hereinbelow:- According “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”. English Dictionary “practicable” means “Capable of being put into practice, carried out in action, effected, accomplished, or done; 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 International Third Dictionary defines the word “reasonably” as “in a reasonable manner: to a fairly sufficient extent”. Thus, whether it was feasible”. Webster's Third New the Oxford New insubordination prevails, and 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 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 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.”

11. It is further submitted by learned Senior Counsel for the appellant that interim order was granted to the appellant against his dismissal and he continued his service till his superannuation i.e. 31.01.2018.

12. Per contra, respondents have submitted that Disciplinary Authority recorded reasons for invoking the provisions of Rule 8(2) of the Rules of 1991 and have further submitted that the judgment passed by the learned Single Judge is reasoned and speaking order and need no interference.

13. Heard learned counsel for the parties and perused the record.

14. It is an admitted case that no regular departmental proceedings were initiated against the appellant, as prescribed under the Rules. Only on the basis of his past service record and on the basis of the fact finding inquiry, his services have been dismissed by invoking the provisions of Rule 8(2) of the Rules of 1991. The reasons recorded by the respondent no. 4 for not holding regular inquiry and invoking the provisions of Rule 8(2) of the Rules of 1991 was that the appellant in order to avoid the departmental inquiry had absented himself and delay in departmental proceedings would lower the morale of the Police force.

15. In such view of the matter, this Court is of the considered opinion that this could not be a reason to dispense with the procedure to hold regular inquiry as Rule 16 provides holding of departmental inquiry in absentia of the delinquent officer.

16. The reasons recorded in the impugned order are not such on the basis of which it can be said that holding of inquiry was not reasonably practicable inasmuch as the petitioner was suspended on 10.12.1997 and dismissal order was passed on 21.12.1997 i.e. within a period of 11 days, therefore, the reason that petitioner has absented himself in order to delay the departmental proceedings cannot be sustained for the simple reason that the departmental proceedings were not even initiated before passing the dismissal order and even the chargesheet was not issued to the appellant. Further Article 311(2)(b) of the Constitution of India postulates for extending reasonable opportunity to a civil servant before subjecting him to dismissal or removal from service or in the event of reduction in rank.

17. In view of the forgoing observation, this Court is of the view that the order impugned is contrary to the provisions of Rule 8(2)(b) of the Rules of 1991 as well as Article 311(2)(b) of the Constitution of India and the same is not sustainable in the eye of law.

18. For reasons recorded hereinabove, impugned order dated 12.12.2018 passed by learned Single Judge in Writ Petition (S/S) No. 2438 of 2018 is hereby set- aside. Accordingly, the Writ Petition is allowed. The impugned dismissal order dated 21.12.1997 is hereby quashed.

19. Since, petitioner had already superannuated on

31.01.2018 and he has served till his superannuation in pursuance of the interim order, therefore, this Court thinks that it would not be reasonable and fair to the appellant that the department be directed to initiate disciplinary proceedings against him as per the provisions of the Rules of 1991, i.e. after more than almost eight years of his attaining the age of superannuation.

20. With the above observation, the present Special Appeal is allowed. (Ravindra Maithani, J.) Dated: 26.09.2025 Ujjwal (Alok Mahra, J.)