Judgment:
C.K. Prasad, C.J. and A.P. Sahi, J.
1. Writ petitioner-appellant aggrieved by order dated 3.8.2009, passed by a learned single Judge in Civil Misc. Writ Petition No. 39360 of 2009 has preferred this appeal under Rule 5, Chapter VIII of the High Court Rules.
2. Short facts giving rise to the present appeal are that the writ petitioner-appellant is a constable and by order dated 15.5.2008, passed by Superintendent of Police (Railways), Agra, he has been dismissed from service. Before dismissal of the writ petitioner-appellant, no inquiry was held as in the opinion of the disciplinary authority the holding of the departmental inquiry was not just and practicable. For coming to the aforesaid conclusion, the disciplinary authority has held that if a detailed departmental inquiry is conducted, writ petitioner-appellant has to be continued in service which will have an adverse effect on the morale of the other police personnel. The learned single Judge had dismissed the writ petition on the ground that the writ petitioner-appellant had an alternative remedy.
3. Normally we would not have entertained this appeal, but as the order impugned before the learned single Judge suffers from patent illegality, no useful purpose shall be served by relegating the writ petitioner-appellant to the remedy of appeal.
4. It is common ground that the service of the writ petitioner-appellant is governed by the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'the Rules'). Rule 8 of the aforesaid Rules provides for dismissal and removal of police officers of the subordinate rank only after proper inquiry. However, proviso (b) to Rule 8 (2) contemplates that where the Government is satisfied, that in the interest of the security of the State, it is not expedient to hold such inquiry, it can be dispensed with. It further provides that 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 an inquiry, it may dispense with the inquiry. Here in the present case, the disciplinary authority had recorded its satisfaction but it is well-settled that that satisfaction has to be based on germane grounds and not ipse dixit of the disciplinary authority. Here the only ground to dispense with the inquiry is that if the writ petitioner-appellant is allowed to continue in service, a departmental inquiry shall consume sufficient time and, therefore, such continuance will have bearing on the morale of the other police personnel. We are of the opinion that the ground recorded by the disciplinary authority while dispensing with the inquiry is not germane nor is it on any material that may be relevant, as such, the ground set forth cannot justify dispensing the inquiry at all.
5. The provisions contained under Rule 8 (2)(b) have been incorporated keeping in view the provisions of Article 311 (2)(b) of the Constitution of India. The power conferred on the authority to dispense with an inquiry in a given situation where it is reasonably not practicable to hold an inquiry, has been envisaged therein. The Apex Court in the case of Union of India and Anr. v. Tutsi Ram Patel : (1985) 3 SCC 398, had the occasion to consider the scope of the aforesaid provision and the Apex Court laid down the test of reasonableness in the said case to be reflected by the authority while proposing to dispense with an inquiry. Paragraph No. 130 of the said decision is reproduced below:
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 a s 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 other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member 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 is an instance in point.
6. The ratio of the decision in Tulsiram Patel's case (supra) has been further explained in paragraph Nos. 128 to 132, 133, 135, 138 and 141. Applying the aforesaid test, in the present case, the question is as to whether the loss of rifle carried by the petitioner makes out a situation for not holding an enquiry. The reason given in the impugned order that the continuance of the petitioner in service would have an adverse moral effect has absolutely no rational connection with the subject-matter of inquiry. Whether rifle was lost in transit by the petitioner or not could have been enquired into and it is not the case of the respondent that there was any threat to security or anything otherwise which may obstruct the smooth holding of an inquiry. The reason given in the impugned order, therefore, proceeds on an assumption which cannot be accepted as reasonable. It cannot stand the scrutiny as indicated by the Apex Court in the decision of Tulsi Ram Patel (supra) and we are, therefore, unable to approve the same.
7. The question as to whether the petitioner has an alternative remedy or not is not to be gone into the present case when on the facts on record, the reason given in the impugned order does not appear to be germane to the inquiry. The satisfaction recorded by the authority does not proceed on a reasonable ground and, therefore, it is not necessary for us to relegate the petitioner to the alternative remedy of filing an appeal. We are satisfied that the competent authority has not applied its mind in correct perspective and the order being contrary to law, the direction of the learned single Judge to avail the alternative remedy does not commend to us.
8. In the result, the appeal is allowed as also the writ petition and the order dated 15.5.2008, impugned in the writ petition as also the impugned order of the learned single Judge are set aside with the direction aforesaid.
9. In view of the nature of allegations made against the appellant, we direct the disciplinary authority to initiate the departmental proceeding against the writ petitioner-appellant within 6 weeks from today and conclude the same within 3 months thereafter. No order as to costs.