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Allahabad High Court · body

2002 DIGILAW 1253 (ALL)

Pratap Singh Tomar v. State Of U. P.

2002-09-11

B.K.ROY, M.P.SINGH

body2002
JUDGMENT : - Binod Kumar Roy, M.P.Singh 1. THE petitioner, a Removed Police Constable, has come up with a prayer to quash the order dated 1.12.1989 of removal of his service passed by the Superintendent of Police, Fatehpur (as contained in Annexure-4), the appellate order dated 12.1.1991 dismissing his appeal preferred against the aforementioned order (as contained in Annexure-6A) passed by the D.I.G. of Police, Allahabad Region and the order dated 14.7.1995 passed by the U. P. Public Services Tribunal rejecting his claim petition (as contained in Annexure-6). 2. HIS case set up in this writ petition and the supplementary-affidavit dated 11.7.2000 is to this effect : (i) In the year 1973 he was transferred to the Armed Force, of the U. P. Police. (ii) Son of one Anis alias Nawab, resident of village Matinpur, was murdered sometime in February, 1988. Apprehending threat to his life, Anis made an application before the Senior Superintendent of Police, Fatehpur (copy appended as Annexure-S.A. 1) for being provided police security. The S.S.P., Fatehpur acceded to his request and by his order dated 18.3.1988 provided 24 hours security by posting two constables at his residence. Pursuant to this order on 20.4.1988, the petitioner and another Constable Munni Lal were posted at the residence of Anis. (iii) A first information report was lodged with police station, Kotwali, Fatehpur, against eight persons including the aforesaid Anis in respect of an incident which had taken place at about 12.30 p.m. on 24.4.1988 on which Case Crime No. 168 of 1988, State v. Mohd. Abdul Salam and others, under Sections 302/147/148 and 149, I.P.C. was registered. (iv) Since the accused Anis was at his residence at the time of committal of the incident mentioned in the F.I.R. of Case Crime No. 168 of 1988 in presence of the petitioner and aforesaid Munni Lal and as such there was no question of his being present at the place of alleged incident and thus he and the aforesaid Munni Lal filed affidavits in the bail application filed by Anis in the Court of C.J.M., Fatehpur (Copy appended as Annexure-5) certifying that he was present at his residence in presence of the deponents. (v) He was served with a charge-sheet dated 7.3.1989 by the Circle Officer Nagar, Fatehpur to the effect that in the year 1988 when he was deputed in Police Line, Fatehpur and was on duty for maintaining peace in village Matinpur, police station, Hussainganj, Fatehpur, he without taking permission of any higher officer had filed the affidavit in favour of accused Anis in Case Crime No. 168 of 1988. (vi) After detailed enquiry, he was found guilty, his work aforementioned as indicative of dereliction of duty, laxity, carelessness and indiscipline and was ordered to file his explanation as to whether he accepts the aforementioned charges or does not accept within eight days of the receipt of the same. (vii) He filed his reply. He also filed several applications before the inquiry officer with a prayer that he be supplied copies of the documents and the statement of witnesses on which the department intends to rely for his alleged misconduct. He, however, was not supplied any copy of the documents and statements of witnesses which seriously prejudiced him as he failed to file his adequate reply. (viii) The inquiry officer submitted his report dated 23.10.1989 before the Superintendent of Police, Fatehpur, who in his turn issued notice on 27.10.1989 to the petitioner (as contained in Annexure-2) calling upon him to show cause as to why he should not be removed from the police force. (ix) The petitioner submitted his reply dated 3.11.1989 (as contained in Annexure-3). (x) Respondent No. 3, vide his order dated 1.12.1989, removed the petitioner without considering his reply and adherence to the requirement of paragraph 495 of the police Regulations. (xi) The charge was not misconduct under the Police Act or the Regulation framed thereunder or under the provisions of U. P. Government Servants Conduct Rules, 1956 rather Rule 8 (iii) of which categorically lays down that nothing in the rule shall apply to the evidence given in any judicial enquiry. Since he had admittedly filed his affidavit in course of a judicial enquiry before the C.J.M., Fatehpur, no prior permission or sanction of the Government or of any superior officer was required. Since he had admittedly filed his affidavit in course of a judicial enquiry before the C.J.M., Fatehpur, no prior permission or sanction of the Government or of any superior officer was required. (xii) Sessions Trial No. 266 of 1990 against Anis alias Nawab and others, who are accused, is still pending in the Court of 3rd Additional Sessions Judge, Fatehpur and since Sri Anis has not been convicted of committal of alleged offence, it does not mean that the affidavit filed by him in the bail application was false. He had not filed his statement on oath in the sessions trial in favour of Anis. (xiii) Even assuming though without admitting that he was guilty of committal of the alleged misconduct, the same had not called for passing of an order of his removal in view of the fact that his previous service record was excellent, he not having been awarded any adverse entry and thus, the punishment awarded is shockingly disproportionate. The case of the respondents set up in the counter-affidavit and the supplementary counter-affidavit which had been sworn by the Deputy Superintendent of Police, Fatehpur, is to the following effect : (i) The police force is a disciplined one whose employees are to function under discipline. The petitioner has been removed in order to maintain discipline in the police force. (ii) The affidavit was illegally filed by the petitioner in order to give benefit to the accused persons in contravention of Rule 8 (b) of the Government Employees Conduct Rules and the departmental instructions and, therefore, departmental proceedings were initiated under Section 7 of the Police Act and Regulation 490 of the Police Regulations. (iii) He was neither a witness in the murder case nor was he summoned by the Court. No enquiry was pending in Court. (iv) In regard to this allegation that he was not afforded proper opportunity in the departmental enquiry, it is stated that in the departmental proceeding, the petitioner was given sufficient opportunity of hearing and inspection of all the available records, the provisions as contained in para 490 of the police rules were literally followed, and on 7th and 20th March, 1989, copy of entire records were served on him legally. His explanation was considered sympathetically and in accordance with law. Orders have been correctly passed which do not require interference in the interest of justice. His explanation was considered sympathetically and in accordance with law. Orders have been correctly passed which do not require interference in the interest of justice. (v) Rule 8 (3) of U. P. Government Servants Conduct Rules, 1956 do not apply. (vi) Munni Lal, a similarly charged constable, was also removed from service whose appeal and claim petition were also similarly rejected. (vii) The writ petition is without any merit and baseless and is fit to be dismissed. 3. NO Rejoinder was filed by the petitioner to the counter-affidavit and to the supplementary counter-affidavit copies of which were served on the learned counsel for the petitioner on 1.7.1996 and 26.7.2000 respectively. The Submissions made before us : 4. MR. Bala Krishna Narayana, learned counsel appearing on behalf of the petitioner, contended as follows : (i) Since the petitioner was posted at the residence of Anis and was personally knowing the fact that at the time of committal of the alleged incident Anis was at his residence, he filed his affidavit before the Chief Judicial Magistrate, Fatehpur in the bail petition of Anis which was in the nature of the judicial inquiry and consequently in terms of Rule 8 (iii) of the conduct rules prior permission of higher police authorities was not required to be taken by him and this legal position has been completely misconceived. (ii) In any view of the matter the order of removal of the petitioner was shockingly disproportionate to his alleged misconduct and a lighter punishment should have been awarded to him. (iii) The orders impugned, thus, are liable to be quashed. Smt. Sarita Singh, learned standing counsel appearing on behalf of the respondents, on the other hand, submitted as follows : (i) From the averments made in the counter-affidavit, supplementary counter-affidavit, to which no rejoinder has been filed, and the impugned orders it is crystal clear that the petitioner tried to support the defence of alibi of the accused Anis by filing his affidavit along with his bail application without taking prior permission of the higher police authorities. On investigation accused Anis was found to be involved in the murder incident and a charge-sheet was submitted by the Investigating Officer who was admittedly higher in rank that of the petitioner. On investigation accused Anis was found to be involved in the murder incident and a charge-sheet was submitted by the Investigating Officer who was admittedly higher in rank that of the petitioner. Relevant statements made in paragraph 16 of the counter-affidavit have not been rebutted by filing any rejoinder or during submissions made by the learned counsel of the petitioner. There was no judicial inquiry whatsoever pending before the Chief Judicial Magistrate in which he was required to give evidence. The petitioner who was a member of a disciplined police force could not have supported the defence of alibi of the accused Anis, which was false as found in the investigation by the police which submitted charge-sheet against the accused persons. (ii) Proceeding for his dismissal was initiated under Section 7 of the Police Act but he was removed. (iii) His removal is not disproportionate to his guilt. (iv) Thus, the writ petition is liable to be dismissed. 5. IN view of the submissions made at the bar following questions crop up for our adjudication : (i) Whether in view of Rule 8 of the U. P. Government Servant Conduct Rules, 1956, the petitioner was not required to take prior permission in filing his affidavit before the Chief Judicial Magistrate, Fatehpur in the bail application of the accused Anis? (ii) Whether the quantum of punishment of the petitioner was disproportionate to his misconduct? 6. SECTION 29 of the Police Act is as follows : "Penalties for neglect of duty, etc.-Every police officer who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given pervious notice for the period of two months, or who, being absent on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of such leave, or who shall engage without authority in any employment other than his police duty, or who shall be guilty of cowardice, or who shall offer any unwarrantable personal violence to any person in his custody shall be liable, on conviction before a Magistrate to a penalty not exceeding three months' pay, or to imprisonment, with or without hard labour, for a period not exceeding three months, or to both." 8.1. SECTION 7 of the Police Act is as follows ; "7. Appointment, dismissal etc. of inferior officers.-Subject to provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this Act, the Inspector-General, Deputy Inspectors-General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think fit remiss or negligent in the discharge of his duty or unfit for the same ; or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely : (a) fine to any amount not exceeding one month's pay ; (b) confinement to quarters for a term not exceeding fifteen days, with or without punishment-drill, extra guards, fatigue or other duty ; (c) deprivation of good conduct pay ; (d) removal from any office of distinction or special emolument. (e) withholding of increments or promotion including stoppage at an efficiency bar." (Emphasis supplied) Let us also have a look at the relevant rules of the U. P. Government Servants' Conduct Rules, 1956. Rules 3, 7 and 8 of the aforesaid rules are as follows : "3. General.-(1) Every Government servant shall at all times maintain absolute integrity and devotion to duty. (2) Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force. (Emphasis supplied) x x x x 7. General.-(1) Every Government servant shall at all times maintain absolute integrity and devotion to duty. (2) Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force. (Emphasis supplied) x x x x 7. Criticism of Government.-No Government servant shall, in any radio broadcast or in any document published anonymously or in his own name, or in the name of any other person, or in any communication to the press or in any public utterance, make any statement of fact or opinion : (i) which has the effect of any adverse criticism of any decision of his superior officers or of any current or recent policy or action of the Uttar Pradesh Government or the Central Government or the Government of any other State or a local authority, or (ii) which is capable of embarrassing the relation between the Central Government or the Government of any foreign State : Provided that nothing in this rule shall apply to any statement made or views expressed by a Government servant in his official capacity or in the due performance of his duties assigned to him. (Emphasis added) 8. Evidence before committee or any other authority.-(1) Save as provided in sub-rule (3) no Government servant shall, except with the previous sanction of the Government, give evidence in connection with any enquiry conducted by any person, committee or authority. (2) Where any sanction has been accorded under sub-rule (1) no Government servant giving such evidence shall criticize the policy of the Uttar Pradesh Government, the Central Government or any other State Government. (3) Nothing in the rule shall apply to : (a) Evidence given at an inquiry before an authority appointed by the Government, by the Central Government, by the Legislature of Uttar Pradesh or by Parliament, or (b) Evidence given in any judicial inquiry." (Emphasis supplied) 7. PARAGRAPH 14 of the writ petition reads as follows : "That in the present case, the petitioner had admittedly filed affidavit in the Court of a judicial enquiry before the Chief Judicial Magistrate, Fatehpur and the present case is squarely covered by the Rule 8 (3) Clause (d) of the 1956 Rules as no prior permission or sanction of the Government of a superior officer was required in such a case." 10.1. Its reply is contained in paragraph 16 of the counter-affidavit which is in Hindi, the English Translation of which reads as follows : "That paragraph 14 is untrue and baseless thus not accepted. Truth is that the petitioner was neither a witness in the case of murder nor was he summoned by the Court. No inquiry was pending in the Court. In this paragraph facts have been presented by twisting them." 10.2. No rejoinder has been filed by the petitioner denying the statements made in paragraph 16 aforesaid. 10.3. Even during submissions before us the facts stated in this paragraph were not replied by the learned counsel for the petitioner. 10.4. Admittedly the petitioner filed his affidavit accompanying the bail application of Anis against whom the allegation was committal of offences under Sections 302 etc. which if proved may result in his conviction and award of life imprisonment and/or even death penalty. In his affidavit, he had tried to support the defence of alibi set up by Anis in his bail petition which was definitely going to influence the investigation which was being conducted by his higher officials who ultimately submitted charge-sheet against Anis and who has been committed to the court of sessions. From the various documents brought in form of Annexures, it also appears that the petitioner filed affidavit even before the Sessions Judge in the bail application of Anis. Thus, there cannot be any doubt in one's mind that he has acted in an indisciplined manner being a member of disciplined police force of the State. 8. UNDER Section 2 (g) of the Code of Criminal Procedure, "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or a Court whereas under Section 2 (i) "judicial proceeding" includes any proceeding in the course of which evidence is or may be taken on oath. Undoubtedly the hearing of a bail application by the Magistrate will be such a judicial proceeding but the question is whether the inquiry had commenced before the Chief Judicial Magistrate when the bail application along with the affidavit of the petitioner was filed. 11.1. Undoubtedly the hearing of a bail application by the Magistrate will be such a judicial proceeding but the question is whether the inquiry had commenced before the Chief Judicial Magistrate when the bail application along with the affidavit of the petitioner was filed. 11.1. We find that in State of U. P. v. Lakshmi Brahman, AIR 1983 SC 439 , it was laid down by the Apex Court to the effect that the proceeding before the Magistrate would be an inquiry as contemplated by Section 2 (g) of the Code of Criminal Procedure since the submission of the police report under Section 170 and till the order of commitment is made under Section 209. (Emphasis supplied) We further find that a Full Bench of the Patna High Court, in Rabindra Rai v. State of Bihar, 1984 Crl LJ 1412, speaking though Nagendra Prasad Singh, J., (who was lateron elevated to the Apex Court), after considering the aforementioned judgment laid down that an inquiry within the meaning of Section 2 (g) of the Code of Criminal Procedure shall be deemed to have commenced since the submission of the police report/charge-sheet. 11.2. The learned counsel for the petitioner could not show us any decision or in fact demonstrate that with the filing of the bail application of Anis, the inquiry had commenced by the Chief Judicial Magistrate . 11.3. Thus, we hold that the day on which the affidavit was filed by the petitioner the inquiry within the meaning of Section 2 (g) of the Code of Criminal Procedure had not yet commenced. The learned counsel for the petitioner had laid emphasis on sub-rule (3) (b) of Rule 8 of the U. P. Government Servants' Conduct Rules, 1956. If Rule 8 is read in its entirely, it is clear that unless a Government servant obtains previous sanction of the Government, he cannot give evidence in any inquiry conducted by any person, committee or authority except if that evidence is to be given in any judicial inquiry. 12.1. We have already held that the inquiry within the meaning of Section 2 (g) of the Code of Criminal Procedure by the Chief Judicial Magistrate concerned had not yet begun since the police report under Section 170 of the Code of Criminal Procedure was not submitted till then. 12.2. 12.1. We have already held that the inquiry within the meaning of Section 2 (g) of the Code of Criminal Procedure by the Chief Judicial Magistrate concerned had not yet begun since the police report under Section 170 of the Code of Criminal Procedure was not submitted till then. 12.2. Thus, there is no force in the first submission made by the learned counsel for the petitioner. 12.3. We clarify that our findings are only for the purposes of this writ petition and shall have no bearing on the defence of alibi, if already taken, or if going to be taken in the pending sessions trial of Anis which has to be decided on the basis of evidence adduced therein. 9. SURPRISINGLY the petitioner has not challenged the findings, recorded by the inquiry officer and the Superintendent of Police as contained in Annexures-S.A. 1 and S.A. 2 that he had filed his affidavit in collusion with the accused Anis to save him. 10. NOW we take up the second submission of the learned counsel of the petitioner. 14.1. The police force has to be a disciplined one. Instead of dismissing the petitioner, he has been removed. There is difference between the 'dismissal' and 'removal'. The difference between 'dismissal' and 'removal' is that 'dismissal' ordinarily disqualifies any future employment whereas 'removal' ordinarily does not. 14.2. We do not find from the order of the appellate authority and the Tribunal that this submission of the petitioner was even pressed before it. 14.3. Be that as it may, we do not find that in the peculiar facts and circumstances, the punishment of removal was disproportionate to the misconduct and we will be justified in reviewing the quantum of punishment. 14.4. We, accordingly, answer both questions in negative. Both submissions of Sri Narayan having been rejected, we dismiss this writ petition. 11. HOWEVER, in the peculiar facts and circumstances, we make no order as to cost. 12. LET a copy of this order be handed over to Smt. Sarita Singh, learned standing counsel within two weeks for its intimation to the authority concerned.