JUDGMENT Honble Sunil Ambwani, J.—Heard Shri Vijay Gautam, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents. 2. In the year, 2006, the petitioner a Constable No. 218 civil police was posted at P.S. Kotwali, Distt. Ghazipur. It is alleged that on 22/23.7.2006 he was assigned duties with Circle Officer, Saidpur, he left his duties, stopped Truck No. UP61-C-5237 and was demanding money, when the Superintendent of Police, Ghazipur reached on the spot. The petitioner and one other person ran away leaving the motor-cycle, on which they were riding, on the spot. The truck driver and the trader sitting in the truck made a complaint about illegal demand made by the petitioner and his accomplice. A preliminary enquiry was conducted, after which a regular departmental enquiry was held by Shri Dilip Kumar, Addl. Superintendent of Police (Rural), Distt. Ghazipur. The enquiry officer submitted his findings and recommended to punish the petitioner with dismissal of service under Rule 14 (1) of the U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991. 3. The petitioner was given a show cause notice with the enquiry report to give a reply. His reply was considered by the Superintendent of Police and was not found satisfactory. The Superintendent of Police Ghazipur found that the charges against the petitioner were established and ordered to dismiss him from service. The appeal filed by the petitioner was dismissed by the Deputy Inspector General of Police on 31.12.2007, and the revision filed was dismissed by the Inspector General of Police on 21.4.2008 giving rise to this writ petition for quashing the order and for reinstatement with full back wages and consequential benefits. 4. The enquiry officer had found that the petitioner had stopped the truck in the night of 22/23.7.2006, laden with cows within the jurisdiction of P.S. Saidpur along with constable Civil Police Harish Chand and had demanded money from the truck driver. He was placed under suspension on 2.8.2006 and was charged for demanding illegal gratification from the driver of the truck and thereby committing gross indiscipline and misconduct. The petitioner denied the charges on which Constable Harish Chandra, Constable Raja Ram, Head Constable Shambhu Nath, Driver Babloo Gaur son of Rajnath Gaur and the trader Ramman son of Ramdhari and Angad were examined. The charged constable took a defence that he was on beat duty in the night of 22/23.7.2006. The petitioner denied the charges on which Constable Harish Chandra, Constable Raja Ram, Head Constable Shambhu Nath, Driver Babloo Gaur son of Rajnath Gaur and the trader Ramman son of Ramdhari and Angad were examined. The charged constable took a defence that he was on beat duty in the night of 22/23.7.2006. At about 1.30 a.m. he did not feel well and requested fellow constable for his permission to leave the spot for taking medicines. Shri Shambhu Nath, his fellow constable allowed him to go to the doctor on which the petitioner left for police station with his rifle and cartridges. On reaching the police station he left reeling sensation, on which he left his rifle and cartridges on his bed and took rest. When he did not find any improvement in his condition, he went to a doctor and was admitted to the hospital. At about 6.00 in the evening on 24.7.2006 he returned back to the police station and found that after he had left the place of his duty, the Addl. Superintendent of Police had visited and found him to be absent. The petitioner produced the medical certificate in proof of his explanation. 5. The constable Sambhu Nath Ram did not support his statement and stated that at 1.30 p.m. he was alone on the picket, when the Addl. Superintendent of Police made surprise checking. The petitioner had left without informing him half an hour before the inspector. He had informed this fact to the Addl. Superintendent of Police, after which he has reported the matter to the police station at about 2.30 a.m. in rojnamcha aam and deposited his rifle and cartridges. The witness in reply to the specific questions put to him told the enquiry officer that when the petitioner was leaving the duty, he had not given any reason to him and had not left the place without informing him. The witness also denied that the constable Raja Ram had met him during beat or at picket. 6. The truck driver did not recognise the petitioner and stated that when his truck moved from Saidpur town to Nand Ganj, a motor-cycle with two persons out of which one was in uniform stopped his vehicle. The witness also denied that the constable Raja Ram had met him during beat or at picket. 6. The truck driver did not recognise the petitioner and stated that when his truck moved from Saidpur town to Nand Ganj, a motor-cycle with two persons out of which one was in uniform stopped his vehicle. He did not recognise the petitioner and stated that one of the persons wearing the uniform was a constable, but that he is not certain about the department of the constable. Shri Angad Yadav, the trader had given Rs. 500/- but that he had not seen him giving the money and had lodged a report at the incident of the police officer. Shri Angad Yadav, the trader accompanying the truck stated that he was transporting his cows for sale to Chochak Pur Mela. When the truck moved from Saidpur Kasba to Nand Ganj, two persons out of which one was in uniform and the other was in plain clothes on a motor-cycle approached them and stopped the truck. They demanded Rs. 600/- but that he did not give money to them. He was not in a position to say whether the person wearing uniform was constable and his department. He may not be able to identify him as he had not seen them earlier. 7. Shri Ramman son of Ramdhari accompanying Angad Yadav also did not recognise the petitioner. Shri Sadaphal Yadav, the Circle Officer Saidpur in his written statement informed the enquiry officer that the constable Raja Ram was on duty with him on the night of 22/23.7.2006. At about 1.30 or 2.00 a.m. in the night, when he returned back for rest, he received information that the Addl. Superintendent of Police, Ghazipur has seen two persons talking to the driver of a vehicle and that on his arrival both the persons left their motor-cycle and had run away. The constable on duty on the picket informed that Shri Harish Chandra was on duty with him but has left the place about an hour ago. The Addl. Superintendent of Police recorded his reference. His motor cycle was recovered from the spot. 8. The enquiry officer verified the report of the Addl. Superintendent of Police by talking to him on phone. The Addl. Superintendent of Police recorded his reference. His motor cycle was recovered from the spot. 8. The enquiry officer verified the report of the Addl. Superintendent of Police by talking to him on phone. The Incharge Inspector Saidpur Shri Surendra Tiwari stated in the enquiry that he was posted at P.S. Saidpur since 16.9.2005 and was informed about the checking by the Addl. Superintendent of Police in the night of 22/23.7.2006. 9. The enquiry officer in his report dated 19.12.2006 has concluded that the statement of the petitioner was far from truth. He was absent from duties without informing the Head Constable Shri Sambhu Nath Ram and was riding a motor-cycle, owned by Constable Dharmendra. The petitioner had taken the motor-cycle from Shri Dharmendra without informing him. The statement of the Incharge Inspector Saidpur that Constable Raja Ram Yadav had accompanied Constable Harish Chandra, appears to be misleading statement and that the defence of Constable Raja Ram and Harish Chandra was not supported by any other material or the statement of witnesses. The Senior Superintendent of Police in his order dated 31.10.2007 considered the explanation given by the petitioner to the show cause notice accompanied with the enquiry report, and found that the explanation did not have any force as it depended on only the statement of Constable Harish Chandra. 10. The enquiry officer after reiterating the charge both against the petitioner and constable Harish Chandra recorded the findings that when they were posted at P.S. Saidpur, Raja Ram was to accompany C.O. Saidpur alongwith constable Harish Chandra on beat duty. They left their duties and stopped Truck No. UP 61C 5237 and demanded money from the driver and trader. They acted negligently and committed gross acts of indiscipline and misconduct punishable for major penalty under Rule 14 (1) of the Rules of 1991. The petitioner did not accept the charges and requested for making statement on 19.1.2007. The statements of Head Constable Sambhu Nath, truck driver Babloo Gaur, trader Ramman and Addl. Superintendent of Police; A.P. Singh Circle Officer, Shri Surendra Tiwari Inspector Police Line, Ghazipur, Shri Sadaphal Yadav, C.O. Saidpur, Ghazipur were recorded. The driver and the trader stated that two persons had stopped their truck but that they cannot identify them as of now as they had never seen them before. One of them was wearing uniform and other was in plain clothes. The driver and the trader stated that two persons had stopped their truck but that they cannot identify them as of now as they had never seen them before. One of them was wearing uniform and other was in plain clothes. They do not know whether they belonged to police department or to any other department. Shri A.P. Singh, Circle Officer had conducted preliminary enquiry in which he had recommended for major penalty. Shri Surendra Tiwari and Shri Sadaphal Yadav supported the statement of the Addl. Superintendent of Police. Shri Sureshwar, Addl. Superintendent of Police gave a statement that on 23.7.2007 he had made a report to the Superintendent of Police, Ghazipur against the constable Harish Chandra and Raja Ram for holding up the truck and illegally realising the money and then running away from the spot. 11. Constable Raja Ram, the petitioner was alleged to be on a duty along with C.O. Saidpur. Shri Sadaphal Yadav, Circle Officer, Saidpur stated that he returned back in night of 22/23.7.2006 along with Raja Ram Yadav at about 1.30 – 2.00 a.m. from beat duty and left his driver and the accompanying constable to rest with instructions to be ready to respond to any call. On the same night Addl. Superintendent of Police found two persons stopping the truck and talking to driver of the truck at a place, which is at about 2 kms. from Saidpur. One of them was wearing police uniform. The constable Shambhu Nath did not say that any other person had accompanied constable Harish Chandra, when he had left duty. The motor-cycle of Shri Dharmendra Yadav, pairokar at P.S. Saidpur was recovered from the spot. 12. The Superintendent of Police considered petitioner’s reply to the show cause notice accompanying the enquiry report and did not believed his explanation. Constable Harish Chandra had himself informed the Incharge Inspector Saidpur Shri Surendra Tiwari that the petitioner was with him. He found that charges were established and that since the petitioner alongwith Constable Harish Chandra had made an attempt to demand money from the truck owner and had run away from the spot, he had committed gross act of indiscipline and misconduct, which is punishable for major punishment and ordered the petitioner to be dismissed from service. 13. He found that charges were established and that since the petitioner alongwith Constable Harish Chandra had made an attempt to demand money from the truck owner and had run away from the spot, he had committed gross act of indiscipline and misconduct, which is punishable for major punishment and ordered the petitioner to be dismissed from service. 13. Shri Vijay Gautam, learned counsel for the petitioner submits that there was no evidence against the petitioner for leaving the duties and reaching the spot along with Shri Harish Chandra. Shri Sadaphal Yadav, Circle Officer, Saidpur had given his statement before the enquiry officer that the petitioner was accompanying him and had returned back to the police station at about 1.30-2.00 a.m. The circumstances in which Shri Harish Chandra accompanying the petitioner had left the police station on the motor-cycle of Dharmendra Yadav and reached the spot, which was 2 kms. away, have not been explained either by direct or indirect evidence. The presence of the petitioner with Shri Harish Chandra was conjectured by the enquiry officer only on the basis of the statement of the Incharge Inspector Shri Surendra Tiwari that constable Harish Chandra and the petitioner were caught at chowki Saidpur in an attempt to extract money from the DCM truck. There was no other evidence to show that the petitioner had accompanied Constable Harish Chandra. In the enquiry the driver of the truck Babloo Gaur and the trader had not identified the petitioner. Shri Sureshwar, Addl. Superintendent of Police, who reported the matter, had not apprehended the petitioner on the spot. The motor-cycle belonged to one Shri Dharmendra and had no concern with the petitioner. It is submitted that there was no evidence at all to connect the petitioner with the incident except the statement of Shri Surendra Tiwari, Incharge police station, who had not seen the incident and had casually stated that the constable Harish Chandra accompanied petitioner and was caught at chowki Saidpur. Infact no one was caught intercepting the truck or demanding the money. 14. Shri Vijay Gautam further states that revision filed by constable Harish Chandra the other constable facing same charges in the same incident against the appellate order confirming the dismissal dated 31.10.2007 has been allowed by Shri Praveen Singh, Inspector General of Police, Varanasi Zone on 27.8.2008. The order is annexed to the rejoinder affidavit. 14. Shri Vijay Gautam further states that revision filed by constable Harish Chandra the other constable facing same charges in the same incident against the appellate order confirming the dismissal dated 31.10.2007 has been allowed by Shri Praveen Singh, Inspector General of Police, Varanasi Zone on 27.8.2008. The order is annexed to the rejoinder affidavit. The revision was allowed on the ground that during departmental enquiry the truck driver Babloo Gaur and the trader Shri Ramman did not identify the revisionist and that if the revisionist has demanded money, a criminal case should have been registered against him under the relevant laws. The revisionist did not have direct concern with the demand of money and has been implicated only on suspicion, which is not sufficient ground to award punishment of dismissal from service. 15. Learned Standing Counsel would submit that the petitioner’s presence was established by statement of Incharge of P.S. Saidpur. The petitioner’s presence after 1.30 a.m., when he returned back with Circle Officer to the P.S. was quite possible. He could have easily covered a distance of 2 kms. as a motor-cycle in a few minutes. The Inspector General of Police has decided the case of Shri Harish Chandra on its own merits. 16. I have heard the submissions. There is no direct evidence or material produced by the department from which it can be said that the petitioner was present on the spot at about 1.30-2.00 p.m. in the night of 22/23.7.2006, about 2 kms. from Chowki Saidpur demanding money from the persons sitting in the truck. The petitioner was deputed on his duties along with the Circle Officer, who deposed in the disciplinary enquiry that he had returned from beat duty at about 1.30-2.00 a.m. and had allowed the petitioner and other constables and the driver to rest. The truck driver and the trader did not identified the petitioner. Constable Harish Chandra and the petitioner were deputed on duties at different places. The Addl. Superintendent of Police did not identify the constables. Constable Dharmendra was not examined. Constable Harish Chandra did not admit that the petitioner was accompanying him. The petitioner’s presence could not be inferred only on the statement of Shri Surendra Tiwari, Incharge Inspector, Saidpur, who had very casually stated in his short statement that the petitioner along with constable Harish Chandra were caught by Shri Sureshwar, Addl. Constable Dharmendra was not examined. Constable Harish Chandra did not admit that the petitioner was accompanying him. The petitioner’s presence could not be inferred only on the statement of Shri Surendra Tiwari, Incharge Inspector, Saidpur, who had very casually stated in his short statement that the petitioner along with constable Harish Chandra were caught by Shri Sureshwar, Addl. Superintendent of Police, Ghazipur in the night of 22/23.7.2006, demanding money from DCM truck laden with cows. His statement is not supported by the complaint of Shri Sureshwar, Addl. Superintendent of Police or any other persons. The petitioner was not apprehended or caught by the Additional Superintendent of Police. The statement was too casual to be believed and was based on information received by him at the police station, and is a hearsay. Infact the department did not charge the petitioner for being caught demanding money on the spot. The entire case was based on the fact that two persons on a motor-cycle, out of which one was wearing police uniform were demanding the money and that as soon as Addl. Superintendent of Police arrived, they ran away leaving the motor-cycle on the spot. 17. There was no direct evidence establishing the charges against the petitioner. The statement of Incharge Police Station was contradictory to the charge framed by the department. The enquiry officer had talked to the complainant only on phone and did not allow petitioner to cross-examine him. 18. The Inspector General of Police, Varanasi Zone, Varanasi has allowed the revision of constable Harish Chandra on same charge in the same incident on the ground that there was no direct evidence involving him in the matter of demanding money. There is no difference in between the two cases. There was no direct evidence against petitioner either. The same Inspector General of Police by his order dated 21.4.2008 has dismissed the revision filed by the petitioner on the same charges and evidence. 19. The writ petition is allowed. The punishment order dated 31.10.2007; the appellate order dated 31.12.2007 and the revisional order dated 21.4.2008 are set aside. The petitioner shall be reinstated in service with entire back wages and all consequential benefits excluding seniority. In the facts and circumstances of the case, I do not find that any liberty be given to the department to initiate proceedings to hold fresh departmental enquiry against the petitioner. ————