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2003 DIGILAW 2259 (ALL)

Bhaggu Prasad v. State Of U. P.

2003-09-24

I.M.QUDDUSI

body2003
JUDGMENT : I.M. Quddusi, J. Heard learned Counsel for the Petitioner and the learned standing Counsel. 2. By means of this petition the Petitioner has prayed for a writ in the nature of certiorari quashing the order dated 6.10.1997, passed by the Commandant 32 Battalion, Pradeshik Armed Constabulary, Lucknow, whereby the services of the Petitioner were terminated by accepting resignation from the post of constable Pradeshik Armed Constabulary and also for a writ in the nature of mandamus commanding the opposite parties to allow the Petitioner in service from 6.10.1997 and pay his salary according to law. 3. This Court intended to summon the record but the learned standing counsel has stated that the record could not be made available. Therefore, this Court heard the arguments of the Petitioner and the learned standing counsel and the writ petition is decided. The Petitioner was appointed on the post of Constable on 7.7.1989 in 34 Battalion at Bhullanpur, Varanasi bearing Constable No. 42795 and was posted in 32 Battalion G-Company Pradeshik Armed Constabulary, Lucknow. Since then the Petitioner worked with entire satisfaction of his authorities concerned. On 23.9.1997 the Petitioner fell ill. He requested for seven days' leave in his authorities as his condition was becoming deteriorated day by day and he could not find improvement in his condition, he approached opposite party No. 4 and requested him for leave, but the same was not granted. His condition became more serious then he kept himself under the treatment of Dr. J.K. Trivedi, Professor of King George Medical College, Lucknow. Seeing no other way he tendered his resignation on 29.9.1997 to opposite party No. 4 on that ground. The doctor issued fitness certificate on 13.8.1998 mentioning therein that he was fit for duty on that date. 4. In the meantime, the wife of the Petitioner, namely, Phoola Devi submitted several representations dated 20.10.1997, 24.10.1997 and 5.11.1997 before the authorities concerned, but nothing was done. 5. When no reply came on behalf of the opposite parties aggrieved Applicant/Petitioner's wife, namely, Phoola Devi preferred a writ petition before this Court which was registered as Writ Petition No. 6388 (S/S) of 1997, but the same was dismissed vide order dated 16.3.1999 on the ground that the petition at the instance of Smt. Phoola Devi was not maintainable. Thereafter the instant writ petition was filed by the Petitioner, Bhaggu Prasad. 6. Thereafter the instant writ petition was filed by the Petitioner, Bhaggu Prasad. 6. Learned Counsel for the Petitioner has submitted that the provisions of U.P. Police Regulations are applicable in the services of the Petitioner and para 505A thereof provides that a police officer below the rank of Inspector can tender his registration only on giving two months' notice of his intention to resign but he shall not withdraw from doing his duties. 7. In the instant matter no notice was given by the Petitioner hence his resignation was not in accordance with law and the same was not liable to be entertained without notice. The period of notice could be waived off by the authority. 8. The learned standing counsel has submitted that the provisions made under the U.P. Police Act of the U.P. Police Regulations are intended for the benefits of the employer, i.e., the appointing authority and he has every jurisdiction to waive off the period of notice and accepted the resignation. 9. Learned Counsel for the Petitioner has placed reliance on the case law laid down by this Court in the case of Dinesh Kumar Vs. Commandent, 15th Battalion, P.A.C., Agra, (1999) 4 AWC 3163 in which it has been held that "a person proposing to resign often wavers in his decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out immediately. One may resign in a fit of anger or depression. The purpose of giving two months notice by the employee is two folds. One it gives the employer an opportunity to make some alternative arrangement before relieving the employee and the other it gives an opportunity to the employee to re-think as to whether he may continue with the resignation. It is true that there is no specific provision either in the Act or in the Regulation permitting the employee to withdraw resignation. However, no such specific rules are needed. Until the employer accepts the resignation the employee could withdraw his resignation. The Respondent could waive period of two month's notice mentioned in the Act and the Regulation but there is nothing on the record to show that the notice was waived by the Respondent. However, no such specific rules are needed. Until the employer accepts the resignation the employee could withdraw his resignation. The Respondent could waive period of two month's notice mentioned in the Act and the Regulation but there is nothing on the record to show that the notice was waived by the Respondent. In absence of any material on record and in absence of any reason the Respondent in law could have accepted resignation of the Petitioner after the expiry of two months. Even if the Respondent accepted the resignation dated 6.3.1993 on 11.3.1993 the acceptance of resignation remained mute and could be operative only on or after 6.5.1993. The Petitioner withdrew his resignation on 14.3.1993, therefore, the resignation letter and its acceptance became a dead letter and ineffective. The result was that the Petitioner continued to be in service of the Respondent and was illegally deprived by the Respondent to discharge his duties." In paragraph 7 of that judgment it has been held that the resignation was contrary to the Rules, hence in view of the Section 9 of the U.P. Pradeshik Armed Constabulary Act and para 505 of the U.P. Police Regulations an officer is at liberty to relinquish his office by giving two month's notice and these provisions apply to U.P. Pradeshik Armed Constabulary as well. 10. Since the Petitioner was enrolled in the Provincial Armed Constabulary and was constable, Provincial Armed Constabulary Act, 1948, was fully applicable in his service. 11. Therefore, it is necessary to peruse the provision of para 505 of the U.P. Police Regulations and relevant provisions of Sections 2(2), 4 and 9 of the U.P. Pradeshik Armed Constabulary Act, 1948, which are reproduced as under: Para 505. 11. Therefore, it is necessary to peruse the provision of para 505 of the U.P. Police Regulations and relevant provisions of Sections 2(2), 4 and 9 of the U.P. Pradeshik Armed Constabulary Act, 1948, which are reproduced as under: Para 505. A police officer of the rank of Inspector or below can resign his office on giving in writing two month's notice of his intention to resign but he shall not withdraw from the duties of his office until such time his resignation has been formally accepted by the appropriate authority and he has fully discharged any debt due by him and such police officer to Government or to any police fund: Provided that such a resignation may be accepted by the authority with effect from date prior to the date of expiring of notice: Provided further that the resignation of police officer whose conduct is under enquiry or who is being proceeded against departmentally u/s 7 of the Police Act, 1861 (Act No. V of 1861) or tried in a Court of law for any offence may, in the discretion of such authority, not be accepted until such time the final orders are passed as a result of such enquiry, proceedings or trial as the case may be. 2. (2) Definitions.-In this Act, unless there is anything repugnant in the subject or context: (2) "Officer of the Pradeshik Armed Constabulary" means a person appointed to the Pradeshik Armed Constabulary under this Act, who has, in accordance with the provisions of this Act, signed a statement in the form given in the Schedule. 4. Enrolment and discharge of officers of the Pradeshik Armed Constabulary (Act V of 1861).-Before any person, whether already enrolled in Uttar Pradesh Police Force under Police Act, 1861, or not so enrolled, is appointed to be an officer of the Pradeshik Armed Constabulary, the statement in the Schedule shall be read and if necessary explained to him by a Magistrate, Commandant or Assistant Commandant, shall be signed by him in acknowledgment of its having been so read and explained to him and shall be attested by the Magistrate Commandant or Assistant Commandant as the case may be. 9. Discharge from Pradeshik Armed Constabulary. - Notwith-standing anything contained in the Police Act, 1861, or in any other law, no officer of the Pradeshik Armed Constabulary shall be entitled to be discharged from the Pradeshik Armed Constabulary. 12. 9. Discharge from Pradeshik Armed Constabulary. - Notwith-standing anything contained in the Police Act, 1861, or in any other law, no officer of the Pradeshik Armed Constabulary shall be entitled to be discharged from the Pradeshik Armed Constabulary. 12. The language of the schedule is reproduced as under: At no time during the period of your service in the Pradeshik Armed Constabulary you will be entitled to obtain your discharge at your own request. On the liquidation of the force or of the company in which you may, for the time being, be posted you will be discharged from the Pradeshik Armed Constabulary and unless you were already a confirmed member of Uttar Pradesh Police Force before joining the Pradeshik Armed Constabulary from Uttar Pradesh Police also, you will, however, be eligible for re-enlistment in Uttar Pradesh Police in the event of your continuing in Uttar Pradesh Police for your re-enlistment therein, your services in the Uttar Pradesh Pradeshik Armed Constabulary will count for promotion and pension in Uttar Pradesh Police. 13. Perusal of the above quoted provisions shows that the officer of the Pradeshik Armed Constabulary (P.A.C.) is not permitted to be discharged voluntarily and, therefore, for this particular purpose, an undertaking is taken by every officer of the Pradeshik Armed Constabulary in the set language given in the schedule of the Act which is quoted above. The same is not only binding upon the officer of the Pradeshik Armed Constabulary but is also binding upon the appointing authority. In regard to giving of notice, the period is to be looked into as if it is treated to be correct that the appointing authority has every jurisdiction to waive off the notice period, it cannot mean that there would be no effect of notice by the officer of the Pradeshik Armed Constabulary who intends to tender resignation or to get discharge voluntarily. The officer has to give notice of two months, which is mandatory requirement under the law and during the period of notice, he cannot neglect his duty or remain absent from the duty. Therefore, it was mandatory requirement under the law that without giving two months' notice the resignation of the Petitioner was not even to be entertained in view of para 505 of the U.P. Police Regulations. Therefore, it was mandatory requirement under the law that without giving two months' notice the resignation of the Petitioner was not even to be entertained in view of para 505 of the U.P. Police Regulations. Although the Petitioner could have applied for waiver of notice period, but in that case too two months notice was liable to be given under that para of the U.P. Police Regulations. It appears that the attention of the Court in the case of Dinesh Kumar (supra) was not drawn towards Section 9 of the U.P. Pradeshik Armed Constabulary Act, 1948, which prohibits the voluntarily discharge from Pradeshik Armed Constabulary 14. Besides the above, there is a separate Pradeshik Armed Constabulary Manual for the officer of the Pradeshik Armed Constabulary In para 1, thereof the strength of Pradeshik Armed Constabulary has been mentioned. There are other provisions also in the Pradeshik Armed Constabulary Manual. Therefore, the provisions of U.P. Police Regulations would be applicable only where the Pradeshik Armed Constabulary Manual or the Pradeshik Armed Constabulary Act is silent and not contrary to the same. 15. As there was already a specific provision was existing in the U.P. Pradeshik Armed Constabulary Act, 1948, in respect of the officer working in the Pradeshik Armed Constabulary, i.e., Section 9 which specifically provides that notwithstanding anything contained in the Police Act, 1861, or in any other law, no officer of the Pradeshik Armed Constabulary shall be entitled to be discharged from the Padeshik Armed Constabulary. The Police Act in that case would not be applicable. Section 9 of the U.P. Pradeshik Armed Constabulary Act, 1948, is a mandatory provision from which it is clear that there is a complete bar for a police officer to be discharged from the Pradeshik Armed Constabulary Hence the opposite parties have illegally and wrongly entertained the resignation of the Petitioner and accepted the same and such act of the opposite parties was beyond their jurisdiction in view of the Section 9 of the U.P. Pradeshik Armed Constabulary Act, 1948. Therefore, the act which has been done illegally cannot be sustained in the eye of law. The whole process of entertaining and accepting the resignation and discharging the Petitioner from Pradeshik Armed Constabulary is contrary to Section 9 of the U.P. P.A.C. Act and is, therefore, liable to be ignored. 16. Therefore, the act which has been done illegally cannot be sustained in the eye of law. The whole process of entertaining and accepting the resignation and discharging the Petitioner from Pradeshik Armed Constabulary is contrary to Section 9 of the U.P. P.A.C. Act and is, therefore, liable to be ignored. 16. In view of what has been discussed above, since the resignation of the Petitioner, i.e., discharge from Pradeshik Armed Constabulary at his own request was not permissible according to the U.P. Pradeshik Armed Constabulary Act, the action of the opposite parties in accepting resignation directly and discharging the Petitioner at his own request is not sustainable in the eye of law. 17. Therefore, for the reasons mentioned above, the writ petition is allowed. The impugned order dated 6.10.1997, accepting resignation of the Petitioner, which has been passed by the opposite party No. 4 is hereby quashed being contrary to Section 9 of the U.P. Pradeshik Armed Constabulary Act, 1948. The Petitioner shall be reinstated in service. However, he shall not be entitled for the back wages but shall be entitled to get continuity of service, which will also be counted towards seniority, fixation of salary and pensionary benefits etc.