Judgment:
Sunil Ambwani, J.
1. Heard Shri Manish, learned Counsel for the petitioners. Learned standing counsel appears for the respondents,
2. All the four petitioners, namely Subba Rajbhar, Constable Civil Police 1936 ; Pradeep Kumar, Constable Civil Police 273 ; Devendra Rai, Constable Civil Police 341 and Ajai Nigam Constable Civil Police 17, A. P., in Civil Misc. Writ Petition No. 16632 of 2008, were serving as Constable in Civil Police and were posted at Police Station Chaubepur, district Varanasi. They have challenged the order dated 24.3.2008, passed by Senior Superintendent of Police, Varanasi, suspending them under Rule 17(1) (a) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short the Rules of 1991). In Writ Petition No. 20893 of 2008 they have challenged the orders dated 15.4.2008 by which they were transferred by the Deputy Inspector General of Police (Establishment) Police Headquarters, U.P., communicated by the Senior Superintendent of Police, Varanasi on 16.4.2008 to Muzaffarnagar, Fatehgarh, Pilibhit and Etah respectively. In Writ Petition No. 31875 of 2008 they have prayed for setting aside the orders dated 10.6.2008, passed by the Senior Superintendent of Police, Varanasi appointing authority dismissing them from service under Rule 8(2)(b) of the Rules of 1991 on the ground, that it is not reasonably practicable to hold a departmental enquiry against them.
3. Brief facts giving rise to these writ petitions are that when the petitioners were posted at Police Station Chaubepur, a report was submitted on 17.3.2008 by Shri R.D. Chaurasia, Deputy Superintendent of Police/the then Circle Officer Cholapur, Varanasi to Senior Superintendent of Police, Varanasi, that the petitioners had illegally stopped eight trucks laden with cows and buffaloes transported by the cattle traders from cattle market Jubairganj, district Faizabad to Dildarnagar cattle market Ghazipur for sale. The petitioners stopped the trucks and were demanding the money for movement of the trucks. The Circle Officer, took the statements given by the truck drivers alongwith his statement in which all the truck drivers, stated that the petitioners were demanding police expenses (police kharcha) for allowing the movement of the trucks. On the next day on 18.3.2008 Shri R.D. Chaurasia, Deputy Superintendent of Police reported that all the four constables, attached on the same day on 17.3.2008 by the Senior Superintendent of Police to Police Lines, Varanasi, did not obey the attachment orders. Instead they collected the public persons of the area : resorted to sloganeering in the campus of the police station, and threatened to block the roads and thus committed the gross indiscipline for which he recommended that the petitioners be suspended.
4. Shri R.D. Chaurasia, Deputy Superintendent of Police/the then Circle Officer, Cholapur reported that on 17.3.2008 he received information from the Police Station Incharge, Chaubepur on his cell phone that some employees of the Police Station Chaubepur have stopped 7-8 trucks laden with cattle for extracting illegal gratification. He reached the spot at 9.00 a.m. in the morning and found that 7-8 trucks were parked in a line. On checking all the trucks he found that they were laden with cows and buffaloes and on enquiries he found that the cattle was purchased from the cattle market Jubairganj, district Faizabad and were being transported for sale to the cattle market Dildarnagar, district Ghazipur. These trucks were stopped by the four delinquent constables. The truck drivers informed the Circle Officer that all the four constables were forcing the drivers to part with money. He took statements of all the drivers and got a report of the matter from the Incharge Police Station, Chaubepur. On the same day the Senior Superintendent of Police, Varanasi, after receiving the report of the Circle Officer transferred the petitioners to police line. All the four constables were relieved on the same day at 12.30 p.m. to report at police line. They got 15-20 persons collected from the area and brought them to the campus of the Police Station and resorted to sloganeering against their transfer. They have also threatened that if the transfers are not cancelled, they will stop the traffic on the road.
5. On a report made by the Senior Superintendent of Police to the Deputy Inspector General of Police (Establishment) Police Headquarters, Allahabad, exercising delegated powers of the Inspector General of Police, decided to transfer the petitioners to Muzaffarnagar, Fatehgarh, Pilibhit and Etah respectively. The transfer order dated 15.4.2008 was communicated to the petitioners on 16.4.2008.
6. A first information report of the incident was lodged on the same day on 17.3.2008. The Senior Superintendent of Police, Varanasi, by his letter dated 7.4.2008, directed the Superintendent of Police (Rural) Varanasi to conduct a preliminary enquiry in the matter and to submit a report. The Superintendent of Police (Rural) Varanasi conducted a detailed enquiry in which he took statements of Shri R.D. Chaurasia, Deputy Superintendent of Police, Varanasi/the then Circle Officer Cholapur ; the statements of all the drivers namely Ballu Yadav, driver of truck No. U.P. 61B-9439 ; Ram Pravesh Rajbhar, driver of truck No. U.P. 61E-1848 ; Ram Badan Yadav, driver of truck No. 65 AR-3358 ; Ram Pyare Yadav driver of truck No. U.P. 65 AR-2438 ; Santosh Kumar, driver of truck No. U.P. 65 R-7238 ; Guddu Yadav driver of truck No. U.P. 61 H-4288 ; Munna Giri driver of truck No. U.P. 65 AR-2338, and Chaman Yadav driver of truck No. U.P. 65 H-5536. He also took statements of petitioners recorded in the office of Circle Officer, Sadar on 28.3.2008 and the statements of Sub-Inspector Civil Police Rajendra Prasad Singh, P. S. Chaubepur, Varanasi ; Sub-Inspector Civil Police Suryavansh Pandey, Police Station Chaubepur, Varanasi ; Constable Nagrendra Singh, Police Station Chaubepur, Varanasi ; Constable Aftab Alam, Police Station Chaubepur, Varanasi ; Constable Shambhunath, Police Station Chaubepur, Varanasi ; Constable Arvind Bharadwaj, Police Station Chaubepur, Varanasi ; Constable Virendra Pratap Singh, Police Station Chaubepur, Varanasi ; Constable Ram Hind, Police Station Chaubepur ; Smt. Lilawati, Gram Pradhan Chhitagpur ; Smt. Malti Devi, Gram Pradhan Jairam ; Shri Hansraj Rajbhar, Gram Pradhan Sraraiya No. 2 ; Shri Ram Sanehi, Gram Pradhan, Magarhua (Khonpur) and also collected documentary evidence namely Rojnamcham ; Report No. 40 ; and the entries in general diary. From these statements the Superintendent of Police (Rural) found that the petitioners had stopped these trucks for illegal gains. The then Deputy Superintendent of Police reached on the spot and released the trucks to proceed. It was reported by all the truck drivers that the petitioners wanted to extract money from them. The Sub-Inspector V. B. Singh stated that some cows were carrying and that two of them delivered calves in front of the Circle Officer, Smt. Lilawati, Gram Pradhan stated that the trucks were stopped but she did not know as to what was loaded on the trucks. Shri Hanshraj Rajbhar, Gram Pradhan stated that the trucks were laden with cows, calves and bulls.
7. In their statements the petitioners stated that they were on the beat duty. They were informed by some informers that the cows were being transported to Bihar for slaughtering. Constable Subha Rajbhar stated that he informed the Police Station Incharge Shri V.B. Singh and Sub-Inspector Suryavansh Pandey on their mobile phones on which they received orders to stop the trucks until the force arrives and that it will take some time for them to reach. Thereafter Shri V. B. Singh, the Police Station Incharge sent Sub-Inspector Rajendra Prasad Singh ; Constable Ajai Nigam ; Constable Devendra Rai ; Constable Aftab Alam ; Constable Shambhu Nath Yadav ; Constable Virendra Singh and Constable Nagendra Singh to Chhitagpur crossing. All these persons stopped the vehicles. He stated that the drivers gave them their telephone numbers and asked them to talk with their Station Officer and Circle Officer on their mobile. Shri Lallu Yadav told them that everyone knows him and that he is paying' money upto the Circle Officer and was ready to take a fight with us alongwith other drivers. For about one hour Shri V. B. Singh, Incharge did not attend the cell phone on which the Constable Devendra Rai informed the police at Varanasi. By that time the local people had gathered and were agitated over the issue of slaughtering cows. Constable Devendra Rai also informed the Senior Superintendent of Police, Varanasi at his residence the situation. Thereafter Shri V. B. Singh and S.I. Suryabansh Pandey reached on the spot and informed that the Circle Officer was about to arrive. At 9.00 a.m. Shri R.D. Chaurasia, the Circle Officer arrived and started talking to the drivers. He pacified the crowd by stating that all the trucks will be detained but as soon as the trucks reached the railway crossing, he allowed them to leave. Constable Subba Rajbhar denied that constables were demanding the money. Sub-Inspector Rajendra Prasad Singh was present when the trucks were stopped and the Circle Officer allowed the trucks to leave in presence of the Incharge Shri V.B. Singh, S.I. Suryabansh Pandey; Constables and 150 persons of the locality.
8. The other petitioners, Shri Pradeep Kumar ; Shri Devendra Rai and Shri Ajai Nigam also gave similar statements. They said that they were informed by Incharge V.B. Singh and Sub-Inspector Suryabansh Pandey to proceed to the spot and that all the constables had together stopped the trucks. Smt. Lilawati, Gram Pradhan stated in the preliminary enquiry that the trucks were laden with cows and calves and were stopped by some police personnel. She does not know whether any police officer has reached the spot and that she does not know the name of any of the policemen. Shri Hanshraj Rajbhar, Gram Pradhan stated that he had gone to temple for darshan pujan and while returning back to the village he found 5-6 trucks laden with cattle at Chitampur chauraha. After some time the Circle Officer arrived and informed the persons present that he is going to detain the vehicles at P. S. Chaubepur but then he released all the vehicles. Shri Ramsanehi, Gram Pradhan also gave similar statements.
9. The Superintendent of Police (Rural), Varanasi considered these statements and records at the police station and after assessing the evidence he concluded that the trucks were laden with cows, buffaloes and calves. The trucks were stopped by Constables Devendra Rai unauthorisedly alongwith his accomplices Constables Subba Rajbhar ; Ajai Nigam and Pradeep Kumar. Constable Ajai Nigam was not assigned duties at any place on 17.3.2008. He proceeded on the spot without making entry in the ro)namcha-am and stopped the truck alongwith Devendra Rai ; Subba Rajbhar and Pradeep Kumar, the other Constables. Constable Subba Rajbhar and Constable Pradeep Kumar were on beat duty and had taken benefit of the duties to stop the trucks for illegal benefits. The report was submitted by the Circle Officer Cholapur regarding illegal stoppage of the trucks for uantuhorised benefits. All the four constables were transferred by the Senior Superintendent of Police, Varanasi to Police Lines, Varanasi. Instead of joining the constables got the local people assembled at the Police Station Chaubepur and raised slogans inside campus of the police station, thereby committing gross indiscipline and misconduct. The local persons, who had assembled in the police station, had also threatened to stop the traffic. These acts of the constables amount to gross indiscipline, negligence in performance of their duties; disobedience of the orders and lowering the image of the police. The Superintendent of Police recommended that the first information report be lodged after taking the complaint from the truck drivers. He also observed that the complaints were made by the Gram Pradhan and the Constables in registered post envelops of the same kind. The allegations, that these animals were being taken to Bihar for slaughtering, was not established. The trucks were released by the Circle Officer Cholapur, whereas in the enquiry and from the statement it was found that the trucks were laden with cows and buffaloes which were milking animals. There was some calves in the trucks and that two cows had given birth of two calves on the spot as stated by S.I. Shri Vijai Bahadur Singh. The animals were being taken from a cattle market at Faizabad to the cattle market at Ghazipur for sale.
10. The Senior Superintendent of Police, relying upon this report, exercised his powers under Rule 8 (2) (b) of the Rules of 1991 and recorded his opinion that it was not reasonably practicable to hold departmental enquiry into the matter. The acts of the constables have tarnished the image of the police and have lowered its credibility in the society. A careful consideration of the materials on record establishes that the delinquent constables are directly responsible for these acts which have affected the credibility of the disciplined police force. With these findings the Senior Superintendent of Police, Varanasi by his order dated 10.6.2008 dismissed all the petitioners.
11. Learned Counsel for the petitioners would submit that the dismissal orders have been passed by the Senior Superintendent of Police, Varanasi, without any authority vested in him to exercise the powers, on the material on record under Rule 8 (2) (b) of the Rules of 1991. The alternative remedy of filing the appeal and then revision is not a bar to the maintainability of the writ petition. He has relied upon judgments in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., : AIR 1999 SC 22 : 1999 (2) AWC 2.54 (SC) (NOC) ; Pradeep Kumar Singh v. U.P. State Sugar Corporation and Anr. : (2002) 1 UPLBEC 705 : 2001 (4) AWC 3032, for this proposition. He has further relied upon the Judgments in (Smt.) Simaran Jeet Kaur v. State of U.P. and Ors. : 2006 (63) AIR 433 : 2006 (4) AWC 3270 ; Shashi Kant Tiwari v. Senior Superintendent of Police, Gorakhpur : 2006 (64) ALR 815 : 2006 (4) AWC 3800 and Narendra Prasad Rai v. State of U.P. and Ors. : 2006 (65) ALR 847 : 2007 (2) AWC 1265, in support of his submission that the normal rule to be adopted in such cases is to hold a departmental enquiry. The dispensation of the departmental enquiry is an exception for which the reasons must be recorded in writing and that since the mandate of Rule 8 {2} (b) was not carried out and there was no reasons for dispensing with the departmental enquiry, the orders were not legally sustainable.
12. Learned standing counsel, on the other hand, submits that the Senior Superintendent of Police has recorded the reasons in holding that it was not reasonably practicable to hold departmental enquiry. The statements of the complainants, delinquent constables, and the other police officers and constables posted at the police station were recorded. The statements of Gram Pradhan were also recorded and that after considering these statements and the documentary evidence at the police station, it was found that the petitioners are not only guilty of detaining the trucks for extracting illegal gratification from the truck owners, they also resisted the transfer orders and made protest by collecting people from the locality for shouting slogans inside the police station and threatened to block the traffics for the demand of cancelling the transfer orders. He would submit that these acts are act of gross indiscipline which lowered the image and prestige of police in the public. It was therefore, necessary to exercise the powers to dispense with the departmental enquiry. He would submit that Rule 8 (2) (b) requires for recording the reasons, the sufficiency of which is not subject to judicial review, and in any case the Court must be slow in interfering in the exercise of discretion of the appointing authorities. If the disciplinary authority finds after recording reasons that the constables committed gross act of indiscipline for which it was not reasonably practicable to hold enquiry, the Courts should not interfere.
13. A police officer of subordinate rank is a civil servant. The Rules of 1991 regulate his service conditions. Rule 8 (2) serves the protection given to the police officers of subordinate rank in terms of Article 311 of the Constitution of India. Rule 8 of the Rules of 1991 provides as follows:
8. Dismissal and removal.
(1) ....
(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) ....
(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
(c) ....
14. In Chandigarh Administration, Union Territory, Chandigarh and Ors. v. Ajay Manchanda AIR 1996 SC 315, the Supreme Court has clarified the law in the matter of dismissal or removal or reduction in rank of a civil servant on the satisfaction of the disciplinary authority that for some reasons to be recorded by that authority in writing, it is not reasonably practicable to hold the departmental enquiry in paragraphs 2 and 3 as follows:
2. In Union of India v. Tulsiram Patel : (1985) 3 SCC 398 : AIR 1985 SC 1416, it has been held by the Constitution Bench that the second proviso to Article 311 is based on public policy, is conceived in public interest and is to be employed for public good. The Constitution Bench has pointed out that the paramount thing to bear in mind is that the second proviso will apply only where the conduct of the Government servant is such that he deserves the punishment of dismissal or removal or reduction in rank. It was further pointed out that once the above test is satisfied and the conditions specified in the relevant clause in the second proviso are satisfied, the said proviso is attracted and it would not be necessary to comply with the requirements specified in clause (2). That was a case where a large number of railway employees had participated in an illegal All-India strike and the Government had responded by ordering their dismissal e n masse. The action was held to be justified in the circumstances. At the same time, it was held that recording of reasons for forming the requisite satisfaction is mandatory. Though it is not necessary that those reasons must find a place in the order of punishment, it was held, the authority must produce the same when called upon to do by the Court. The desirability of incorporating the said reasons in the order imposing punishment was emphasised. It has been held by this Court in Collector of Monghyr v. Keshav Prasad Goenka, : (1963) 1 SCR 98 : AIR 1962 SC 1694, that where the statute requires the recording of reasons, any action taken without recording the reasons is invalid. Here, of course, the requirement is contained in the constitutional provision itself.
3. It is true that clause (3) of Article 311 declares further that when a question arises whether it is reasonably practicable to hold an inquiry, the decision of the competent authority shall be final on that question. But that does not mean that the scope of judicial review is excluded altogether. In State of Rqjasthan u. Union of India : (1977) 3 SCC 592 : AIR 1977 SC 1361, it was held that clause (5) of Article 356 (introduced by Constitution 38th Amendment Act and deleted by the 44th Amendment Act, which provided that 'notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground') does not preclude the Court from entertaining the challenge to a notification under Article 356(i) on the ground that the requisite satisfaction was formed mala fide or that it was founded on extraneous grounds because it was pointed out, in either of those cases, there is in law no satisfaction as contemplated by clause (1) of Article 356. It has been held by this Court in S.R. Bommai v. Union of India : (1994) 3 SCC 1 : 1994 AIR SCW 2946, that even in the matter of exercise of power under Article 356 of the Constitution, the satisfaction of the President, while undoubtedly subjective, is not beyond the judicial scrutiny of the Courts under Article 32 or Article 226, as the case may be. The parameters of judicial review enunciated in S.R. Bommai, 1994 AIR SCW 2946, have been held applicable in A. K. Kaul v. Union of India : (1995) 4 SCC 73 : 1995 AIR SCW 2075, to a matter arising under proviso (c) to Article 311(2). A reading of clauses (b) and (c) of the second proviso would establish that if at all, the power under clause (b) is more circumscribed than the power under clause (c).
15. It was also held in Union of India v. Tulsiram Patel : AIR 1985 SC 1416, that the mention of relevant clause of Article 311(2) proviso (ii) or the relevant service rules does not invalidate the order. The reasons for dispensing with the departmental enquiry in clause (b) of Article 311(2) must be recorded in writing. Paras 130, 131, 132, 133, 134, 135, 136, 136A and 137 of the judgment clarify the legal position as follows:
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'. According to the Oxford English Dictionary 'practicable' means 'Capable of being put into practice, carried out in action, effected, accomplished, or done ; feasible.' Webster's Third New 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 Third New International Dictionary defines the word 'reasonably' as 'in a reasonable manner : to a fairly sufficient extent'. 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. 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 intimidate 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 insubordination prevails, and it is 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) 3 SCR 302 : AIR 1984 SC 1356. 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.
131. It was submitted that where a delinquent Government servant so terrorizes the disciplinary authority that neither, that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent Government servant either by himself or alongwith or through others makes the holding of an inquiry not reasonably practicable.
132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a Government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the Government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word 'inquiry' in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the Government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the Government servant absconds and cannot, be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the Government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2).
133. The second condition necessary for the valid application of clause (b) of the second proviso 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.
134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing, the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances.
135. It was vehemently contended that if reasons are not recorded in the final order, they must be communicated to the concerned Government servant to enable him to challenge the validity of the reasons in a departmental appeal or before a court of law and that failure to communicate the reasons would invalidate the order. This contention too cannot be accepted. The constitutional requirement in clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the Government servant. At clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would however, be better for the disciplinary authority to communicate to the Government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the Government servant to approach the High Court under Article 226 or in a fit case, this Court under Article 32. If the reasons are not communicated to the Government servant and the matter comes to the Court, the Court can direct the reasons to be produced, and furnished to the Government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons.
136. It was next submitted that though clause (b) of the second proviso excludes an inquiry into the charges made against a Government servant, it does not exclude an inquiry preceding it, namely, an inquiry into whether the disciplinary inquiry should be dispensed with or not, and that in such a preliminary inquiry the Government servant should be given an opportunity of a hearing by issuing to him a notice to show cause why the inquiry should not be dispensed with so as to enable him to satisfy the disciplinary authority that it would be reasonably practicable to hold the inquiry. This argument is illogical and is a contradiction in terms. If an inquiry into the charges against a Government servant is not reasonably practicable, it stands to reason that an inquiry into the question whether the disciplinary inquiry should be dispensed with or not is equally not reasonably practicable.
136A. A Government servant who has been dismissed, removed or reduced in rank by applying to his case clause (b) or an analogous provision of a service rule is not wholly without a remedy. As pointed out earlier while dealing with the various service rules he can claim in a departmental appeal or revision that an inquiry be held with respect to the charges on which the penalty of dismissal, removal or reduction in rank has been imposed upon him unless the same or a similar situation prevails at the time of hearing of the appeal or revision application. If the same situation is continuing or a similar situation arises, it would not then be reasonably practicable to hold an inquiry at the time of the hearing of the appeal or revision. Though in such a case as the Government servant if dismissed or removed from service, is not continuing in service and it reduced in rank, is continuing in service, with such reduced rank, no prejudice could be caused to the Government or the Department if the hearing of an appeal or revision application, as the case may be, is postponed for a reasonable time.
137. Where a Government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. The finality given by clause (3) of Article 311 to the disciplinary' authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the Court. The Court will also examine the charge of mala fides, if any made in the writ petition. In examining the relevancy of the reasons, the Court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. 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 considering the relevancy of the reasons given by the disciplinary authority the Court will not, however, sit in judgment over them like a Court of first appeal. In older to decide whether the reasons are germane to clause (b), the Court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a courtroom, removed in time, from the situation in question. Where two views are possible, the Court will decline to interfere.
16. In the present case, the Senior Superintendent of Police has recorded reasons for dispensing with the departmental enquiry. The reasons include the acts committed by the petitioners in stopping the vehicles for illegal gratification and thereafter committing acts of indiscipline, which have lowered the image and integrity of the police department. The material for recording reasons was the preliminary enquiry report of the Superintendent of Police (Rural), Varanasi. The Senior Superintendent of Police was satisfied that the petitioners not only went out of their way in stopping the trucks for extracting money from the truck owners/driver, and the act was witnessed by the Circle Officer, they tried to defy the transfer orders by bringing the people from the locality purportedly, inciting their passion in a matter in which they led the people to believe that the animals were being transported for slaughter. The people of the locality gathered at the police station raised slogans against the transfer orders by which the petitioners were transferred to police line and were relieved for proceeding to join. These acts in the opinion of the Senior Superintendent of Police the disciplinary authority, in the prevailing situation were sufficient reasons on record to dispense with the departmental enquiry. It cannot be said that these reasons were irrelevant, or that there was no material to form such an opinion. The Constitution Bench has held that for considering the relevance of the reasons given by the disciplinary authority, the Court will not sit in Judgment over them like a Court of first appeal. The matter will have to be judged in the light of the then prevailing situation.
17. The State Government has removed the octroi barriers for easy movement of the transport vehicles acting as life line of trade and commerce of the country. The Trade Tax Department has abolished the check post. The police, however, has now taken over the task of restricting the movement of transport vehicles by checking all the vehicles for finding out whether the movement of goods is valid and legal. Very often the object is to extract money from the truck owners and drivers who are travelling from far away place and do not have time to protest. In the State of Uttar Pradesh almost every person including Judges witness the police men stopping the truck owners and extending their hands to extract bribe for movement of the vehicles. In this case the petitioners stopped a large number of vehicles on the pretext for slaughtering. There was no material to suspect the movement of the animals in the vehicles. The illegal act was witnessed and reported by the Circle Officer and was confirmed by the Superintendent of Police (Rural) in his report. The petitioners serving as Constables in a disciplined force thereafter in order to save themselves from transfer orders collected large number of local people for shouting slogans at the police station. The Senior Superintendent of Police rightly found that the entire incident amounted to such gross indiscipline which called for immediate action.
18. If the constables as members of the disciplined force resort to protest against their transfer by inciting local people, it will not be possible for the police department to function. The gathering of people and shouting of slogans in favour of the constables to resist the transfer order was sufficient reasons disclosed in the enquiry report on which the Senior Superintendent of Police has relied upon to exercise the powers of dispensing with the departmental enquiry. The Court does not find that the Senior Superintendent of Police acted in such a arbitrary fashion in dispensing with the departmental enquiry or that the reasons given by him cannot be justified. The Court would not sit in appeal over the exercise of such discretion and finds that the reasons for dispensation with the departmental enquiry and for exercise of powers under Rule 8 (2) (b) of the Rules of 1991 was valid and justified.
19. The Writ Petition No. 31875 of 2008 against the orders of dismissal of the petitioners under Rule 8 (2) (b) of the Rules of 1991 is dismissed and consequently the Writ Petition No. 16632 of 2008 against the suspension order and Writ Petition No. 20893 of 2008 against the transfer order are rendered infructous and are also dismissed.