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2008 DIGILAW 2242 (ALL)

SATYA PRAKASH v. STATE OF U. P.

2008-11-07

RAKESH SHARMA

body2008
JUDGMENT Hon’ble Rakesh Sharma, J.—Heard Sri Anoop Trivedi, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner, through this writ petition, has assailed the order dated 13.12.2005 and the subsequent order dated 13.2.2006 by which he was removed from service by the Superintendent of Police, Baghpat as per the provisions contained in sub-rule (2)(b) of Rule 8 of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. At the relevant time, the petitioner was posted as a Constable in Police Station-Kasna, District Gautam Buddh Nagar. A First Information Report was lodged at Police Station-Kasna, District Gautam Buddh Nagar on 1.10.2004 regarding an event of missing of three boys, namely, Arshad, Asif and Meharban from their native place. The said boys could not be traced out. However, the petitioner and seven other Constables including a Head Constable were suspended by the Superintendent of Police vide order dated 6.3.2005 and a First Information Report was also lodged against the petitioner and seven other Police Personnel in Criminal Case No. 65 of 2005, under Sections 342/364/330/201/120-B and 34, I.P.C. The petitioner alongwith others approached this Hon’ble Court challenging the criminal proceedings and this Hon’ble Court has been pleased to stay the arrest of all the Police Personnel vide order dated 26.6.2005. Subsequently, vide order dated 9.11.2005, this Hon’ble Court had stayed the proceedings of Case No. 6761 of 2005 initiated on the strength of the charge-sheet pending in the Court of the Chief Judicial Magistrate, Gautam Buddh Nagar. On 22.11.2005, the petitioner was transferred from Police Line, Gautam Buddh Nagar to Baghpat and thus he came under the control of the Superintendent of Police, Baghpat. He was reinstated in service vide order dated 13.12.2005 and in the said reinstatement order it was clearly indicated that the regular departmental enquiry in contemplation of which the petitioner was put under suspension on 6.3.2005 shall continue to remain pending. 3. The grievance of the petitioner is that on the same day, immediately after re-instating the petitioner vide order dated 13.12.2005 and indicating herein that the departmental enquiry shall continue to be held, the petitioner has been dismissed from services. 3. The grievance of the petitioner is that on the same day, immediately after re-instating the petitioner vide order dated 13.12.2005 and indicating herein that the departmental enquiry shall continue to be held, the petitioner has been dismissed from services. The order of removal or dismissal from service was also passed on the same date, that is, on 13.12.2005 by the Superintendent of Police, Baghpat under the purported exercise of powers conferred on him under Rule 8(2)(b) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. 4. According to learned counsel for the petitioner, the order of dismissal is wholly arbitrary, unreasonable and punitive in nature as the order was passed during pendency of a departmental enquiry which was neither closed nor withdrawn. Since the criminal case was not proceeding, as the proceedings were stayed by this Hon’ble Court, there was no reason to throw the petitioner out of employment without the accusation levelled against the petitioner were found to be proved. The Superintendent of Police has not recorded his subjective satisfaction disclosing any reason as to why it was not reasonably practicable to hold a regular departmental enquiry. 5. Learned Standing Counsel has strongly opposed the writ petition. According to him the petitioner was involved in a Criminal Case No. 65 of 2005, under Sections 342/364/330/201/120-B and 34, I.P.C. In which investigation was conducted by the C.I.D., Meerut and a charge-sheet was also submitted in the Court concerned on 22.9.2005. However, a departmental enquiry was initiated against the petitioner, but lateron considering the charges levelled against the petitioner, which were of criminal nature, it was found necessary to terminate the services of the petitioner and as such he was not found fit to be further retained in the service. The image and prestige of the Police Department was lowered down because of the conduct of the petitioner and as such the Superintendent of Police had rightly exercised his powers under Rule 8(2)(b) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 while dismissing the petitioner from service. Petitioner’s Appeal has also been dismissed by the Deputy Inspector General of Police. Petitioner’s Appeal has also been dismissed by the Deputy Inspector General of Police. In Paragraph 10 of the counter affidavit, it has been indicated that the petitioner was found to be a criminal and his criminal activities would have lowered down the prestige and image of the Police Department and in view of the subject-matter of accusations made against the petitioner, he was dismissed from service without holding a formal regular departmental enquiry. The Superintendent of Police is empowered to pass such an order under the scheme of aforementioned Rules. There is no illegality in the order. 6. In the rejoinder affidavit, the petitioner has reiterated the submissions and placed reliance on various judgments of this Court reported in 2008(3) ADJ 689 (DB), Pushpendra Singh (C.P. 2187) and another v. State of U.P. and another; 2006(1) ESC 374 (All) (DB), State of U.P. and others v. Chandrika Prasad; 2007(10) ADJ 36 , Lallo Singh v. State of U.P. and others and 2007(3) ESC 2103 (All), Gajraj Singh v. State of U.P. and others and the judgment rendered in Writ Petition No. 45840 of 2006, Rajesh Verma v. State of U.P. and others, decided on 12.2.2007 in support of his submission that the impugned order of dismissal does not contain any reason to dispense with regular departmental enquiry and as such it is violative of statutory provisions. He has also read the observations made by the Hon’ble Division Bench and the Hon’ble Single Judge of this Court while allowing similar writ petitions filed by the Police Personnel who were dismissed from service without holding a departmental enquiry. According to him, the petitioners case is similarly circumstanced and in similar situation, this writ petition deserves to be allowed. 7. Considered the arguments of learned counsel for the parties and perused the record. 8. The Superintendent of Police, Baghpat while dismissing the petitioner from service after invoking powers under Rule 8(2)(b) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 has not indicated any reason as to why it was not reasonably practicable to hold a departmental enquiry. He has excluded from consideration that on 13.12.2005 only after reinstatement of the petitioner in the service, he has recorded an opinion that the departmental enquiry shall continue against the petitioner. He has excluded from consideration that on 13.12.2005 only after reinstatement of the petitioner in the service, he has recorded an opinion that the departmental enquiry shall continue against the petitioner. The departmental enquiry which was initiated against the petitioner on 6.3.2005, after suspending him from service was not closed or revoked and without passing any order in this regard, the Superintendent of Police has chosen to dismiss the petitioner from service invoking the powers conferred on him under the aforesaid Rules. Moreover, it has also been excluded from consideration that till the trial in the competent Court of law is concluded, the petitioner cannot be branded as a criminal as has been done in the present case, vide averments made in Paragraph-10 of the counter affidavit, that the petitioner was found to be a criminal and his criminal activities would have lowered down the prestige and image of the Police Department. This opinion appears to be wholly unfounded as this Hon’ble Court has already stayed the proceedings in the criminal case pending in the Court and the trial is yet to be concluded. 9. The Disciplinary Authority, that is, the Superintendent of Police, Baghpat was not expected to dispense with the departmental enquiry. The principles of natural justice have also been violated as the petitioner was not afforded any opportunity of hearing to put-forth his version. No reason has been recorded in the order as to why it was not reasonably practicable to hold the departmental enquiry against the petitioner, when as per the materials on record, petitioner had been cooperating with the Enquiry Officer and was available for trial. 10. In view of the above, the petitioner’s case is squarely covered by the aforesaid pronouncements of this Court and there is no reason to take another view in the matter. In the facts and circumstances of the case, the petitioner’s case is similarly circumstanced and this Court is bound to follow the decisions of the Division Bench of this Court and that of the learned Single Judge while dealing with such matters in similar situation. 11. Accordingly, the writ petition succeeds and is allowed. The orders dated 13.12.2005 and 13.2.2006 are quashed. The petitioner shall be treated to have remained in continuous service from the date of removal order and all the consequences to follow. 11. Accordingly, the writ petition succeeds and is allowed. The orders dated 13.12.2005 and 13.2.2006 are quashed. The petitioner shall be treated to have remained in continuous service from the date of removal order and all the consequences to follow. However, it shall be open for the appropriate authority to hold departmental enquiry in accordance with law if he deems it fit and proper. 12. No order as to cost. ————