IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 6 of 2011 Constable 101 Armed Police Omesh Kumar ….Petitioner. Versus State of Uttarakhand and others …Respondents. Sri Gopal Narain, Advocate present for the petitioner. Sri Bhupesh Kandpal, Brief Holder present for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (oral) Heard Sri Gopal Narain, Advocate present for the petitioner as well as Sri Bhupesh Kandpal, Brief Holder present for the State of Uttarakhand. The petitioner was a constable in the Police Department in the State of Uttarakhand. He has challenged the order dated 15.6.2010 by which his appointing authority i.e. the Senior Superintendent of Police, Dehradun has terminated his services without affording an opportunity of hearing to him taking recourse of Rule 8 (2) (b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (from hereinafter referred to as “the Rules”), whereby in a given contingency, services of a police personnel can be terminated without holding an enquiry. Against the said order, the petitioner filed an appeal before the appellate authority, which was also dismissed vide order dated 13.12.2010, which has also been challenged by the petitioner in this writ petition. The State in its counter affidavit has defended the impugned order stating that the situation was such before 2 the appointing authority and a recourse to departmental proceeding could not be undertaken and as such there is no anomaly in the impugned termination order dated 15.6.2010. The petitioner is, however, protected under Article 14 of the Constitution of India and also by Article 311 of the Constitution of India, whereby the petitioner cannot be dismissed, removed or reduced in rank without an opportunity of hearing being afforded to him. The second proviso to Article 311 (2), namely, proviso 2 (b), however, states that in a given contingency such an inquiry may be dispensed with however the reasons must be assigned by the appointing authority to dispense with such an inquiry. Article 311 of the Constitution of India reads as under :- “311. Dismissal, Removal or reduction in rank of persons employed in civil capacities under the Union or a State. – (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. [Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply – (a) where a person is dismissed or reduced in rank on the ground of 3 conduct which has led to his conviction on a criminal charge; or (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 inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” In pursuance of the said proviso of the Constitution of India, a similar provision i.e. Rule 8 has also been made in the Rules, which reads as under :- “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 a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (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 inquiry; or (c) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. 4 (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 a 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 a person in police custody or judicial custody to escape shall be dismissal unless the punishing authority for reasons to be recorded in writing awards a 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.” The fact of the case are that while the petitioner was escorting an accused in Dehradun who was to be presented before a court, he showed certain dereliction to his duties, consequent to which the accused managed to escape, though he was immediately caught, the same day. The allegation against the petitioner is that because of his negligence, the accused could have escaped and hence his services were terminated. The reasons assigned by the appointing authority for not holding an inquiry are that firstly, it is not practical to hold an inquiry for the reason that there would be no independent witnesses in the matter; secondly, the possibility that any police personnel will be a witness in the department enquiry is also negligent, thirdly, the people in public will not depose against the petitioner. One reason was also assigned by the appointing authority that the departmental proceeding will take a long time to conclude and thereafter the pendency of this matter will have adverse effect on the 5 police force. It is clear that such reasons which have been assigned, though in writing, are no reasons in the eyes of law and therefore recording of the reasons has not been done as visualised in the Rules as well as in the Constitution of India. The recording of reason in such matters would mean recording of plausible and logical reasons. Merely assigning any reasons for the sake of fulfilling the formalities to the proviso is not abiding with the mandatory provision of law. None of these reasons assigned by the appointing authority are reasons in the eyes of law. Therefore, even recording of such reasons would mean that reasons have in fact not been recorded in writing. This Court in a similar case (Writ Petition No. 1937 of 2005 (S/S) Constable 268 A.P. Dharmendra Rathi Vs. State of Uttaranchal and others), which also related to a constable of the Police Department has held such an order as bad. For the reasons discussed above, writ petition is allowed. Order dated 15.6.2010 passed by the Senior Superintendent of Police, Dehradun and order dated 13.12.2010 passed by the appellate authority are hereby set aside. No order as to costs. (Sudhanshu Dhulia, J.) 5.3.2011 Avneet