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2009 DIGILAW 2872 (ALL)

Constable 3461 Baliram Singh v. State of U. P.

2009-08-18

RAKESH SHARMA

body2009
JUDGMENT Rakesh Sharma, J.—Since similar and common controversy is involved in these two writ petitions, both the writ petitions are being decided by this one and common judgment. 2. Heard Sarvasri G. K. Singh and V. K. Singh, learned counsel for the petitioners as well as learned standing counsel and perused the record. 3. Under challenge in these two petitions is an order of dismissal passed on 31st July, 2004 dismissing the petitioners from service and the other subsequent orders passed on 30th May, 2005 dismissing the appeal of the petitioner and the order dated 28.12.2005 by which the petitioner's revision was dismissed. 4. It emerges from the record that the petitioners, who were working as Constables in 35 Battalion in Provincial Armed Constabulary (hereinafter referred to as the P.A.C.), were posted on security duty of Ram Janam Bhumi, Ayodhya, Faizabad with other P.A.C. personnel. On 9th April, 2003, they were on the duty of the Watch Towers to keep a watch on the disputed premises. One Sri Rajesh Kumar Tiwari and other P.A.C. personnel were also posted on the duty at Watch Tower No. 12. Accidentally, he fell from the Watch Tower and died on the spot. When the news of accident and sudden death of a colleague Constable Rajesh Kumar Tiwari spread, the other Constables assembled at the spot. The P.A.C. Constables, who were present on the spot, were shocked by the accident and on the death of their colleague. They became emotionally surcharged and wanted to talk to their Circle Officer before sending the dead body to mortuary. According to the P.A.C. Constables present on duty, the superior Officers did not take proper care of the Watch Tower and the area surrounding it and adequate safety arrangements were not made on the Watch Tower. There was lack of safety measures as a result of which the P.A.C. Constable had fallen from the Watch Tower and died. 5. Since a mob was gathered at the spot of accident, some Constables might have reacted and uttered improper words for the superior officers in the emotionally charged atmosphere. A preliminary enquiry was ordered and some of the officers were transferred immediately. On account of charges, a departmental enquiry was initiated against the petitioners also and they were put under suspension vide an order dated 11.4.2003. A preliminary enquiry was ordered and some of the officers were transferred immediately. On account of charges, a departmental enquiry was initiated against the petitioners also and they were put under suspension vide an order dated 11.4.2003. Charge-sheets were also served on them on 11.7.2003 and 14.7.2003 to which they had submitted detailed replies on 28.7.2003 and 21.7.2003. The Enquiry Officer has submitted his report on 6.5.2004. After conclusion of the enquiry, show-cause notices were issued against the petitioners on 15.5.2004, which was replied by the petitioner by submitting his explanation on 10.6.2004. 6. As per learned counsel for the petitioners, without considering detailed reply of the petitioners to the charge-sheet, the petitioners were dismissed from service vide an order dated 31.7.2004. Their appeals and revision were also dismissed by the appropriate authority without application of mind and without dealing with the defence taken by the petitioners. 7. Learned counsel for the petitioners has further submitted that four other Constables, who had been dismissed from service alongwith the petitioners, had approached the U. P. Public Services Tribunal challenging the order of dismissal, appellate and revisional order by filing Claim Petition Nos. 357/2005, 736/2005, 729/2005 and 653/2005. These claim petitions were decided by a common judgment of the U. P. Public Services Tribunal, rendered on 20.12.2007. The Tribunal had quashed the order of dismissal and directed the respondents to reinstate the four dismissed Constables. It is relevant to mention here that 13 Constables belonging to P.A.C. establishment were dismissed from service in pursuance of a common proceeding out of which four similarly placed Constables have been reinstated pursuant to the judgment of the Tribunal. The petitioners may also be dealt with accordingly, taking into account the aforesaid judgment rendered by the U. P. Public Services Tribunal and the submissions put-forth in these writ petitions. 8. Learned counsel for the petitioners has assailed the orders of dismissal passed against the petitioners on the ground that a very harsh view has been taken in the matter and the orders of dismissal and punishment do not commensurate with the gravity of charges levelled against them. 8. Learned counsel for the petitioners has assailed the orders of dismissal passed against the petitioners on the ground that a very harsh view has been taken in the matter and the orders of dismissal and punishment do not commensurate with the gravity of charges levelled against them. It is natural that due to death of a colleague, the atmosphere was highly surcharged with emotions and if any act was done by the petitioners in that atmosphere after seeing the dead body of their colleague, it could not be defined as misconduct and such act could have been pardoned taking into account past work, conduct and performance of the petitioners, which always remained satisfactory. The petitioners have not created any disturbance on the spot nor they had indulged in any such act of indiscipline, which may result in removal or dismissal from service. 9. It has been submitted by Sri G. K. Singh, learned counsel for the petitioners that the charges levelled against the petitioners were not at all proved from the materials on record. They were awarded with the punishment of dismissal from service only on the sole testimony of Vikas Srivastava, Company Commander. Vikas Srivastava's statement could not be believed as he himself was an accused in a criminal case relating to the same incident. It appears that in order to save himself, he named the petitioners and other Constables showing their involvement in the incident. The U. P. Public Services Tribunal has also taken note of these facts in its judgment rendered on 20.12.2007, a copy of which has been annexed as Annexure-13 to the writ petition, and directed for reinstatement of four Constables in service. 10. The departmental enquiry, was not conducted in accordance with the relevant Service Rules and the principles of natural justice were completely violated. A criminal case, under Sections 147, 148, 149, 323, 427, 452 and 336 of the Indian Penal Code read with 7th Criminal Law Amendment Act and Section 6 of the U.P.P.A.C. Act and 3/4, Prevention of Damage to the Public Property Act was registered at Police Station Ram Janma Bhumi, Faizabad against the petitioners and other Constables. In the said criminal case, a final report was submitted on 10.8.2004 before the court of Additional Chief Judicial Magistrate, Faizabad. In the said criminal case, a final report was submitted on 10.8.2004 before the court of Additional Chief Judicial Magistrate, Faizabad. It was clearly mentioned in the final report that no concrete evidence was available against the petitioners and other Constables to prove the charges levelled against them in the charge-sheet, but on the same charges, the petitioners have been dismissed from service. On this count also, the orders of dismissal passed against the petitioners are liable to be set aside. The appellate and the revisional authority did not deal with the submissions put forth by the petitioners and passed the orders with pre-determined mind dismissing the appeal and revision of the petitioners. 11. Learned standing counsel, appearing for the respondents, has resisted the motion. He has submitted that the petitioners, while being posted in the security duty at Ram Janma Bhoomi, Ayodhya, Faizabad had committed serious misconduct. They were involved in creating law and order problem at Ram Janma Bhoomi complex, alongwith their other colleagues when the dead body of late Constable Rajesh Kumar Tiwari was being taken to mortuary for post mortem. The petitioners and the other P.A.C. personnel surrounded the vehicle and obstructed the movement of the vehicle which was carrying the dead body of the dead Constable to Faizabad mortuary for post mortem. Several P.A.C. personnel alongwith the petitioners were involved in this incident and as such a departmental enquiry was ordered against them. A detailed charge-sheet was issued against the petitioners to enable them to meet out the allegations levelled against them. The petitioners had submitted their reply, but failed to prove themselves to be innocent of the charges levelled against them. A show cause notice was issued to them and after conducting a detailed departmental enquiry in accordance with the relevant Rules of 1999, services of the petitioners were dismissed on 31.7.2004. The petitioners were members of a disciplined armed force, that is, the Provincial Armed Constabulary, but serious misconduct was committed by them at a sensitive place like Ram Janma Bhoomi, Ayodhya. The petitioners were afforded ample opportunity of hearing and were also permitted to lead their cases at all the stages in the departmental trial. There were documentary and oral evidence against them on the basis of which they were found guilty of the charges levelled against them. The petitioners were afforded ample opportunity of hearing and were also permitted to lead their cases at all the stages in the departmental trial. There were documentary and oral evidence against them on the basis of which they were found guilty of the charges levelled against them. The appeals and the revisions of the petitioner were appropriately dealt with by the competent authorities and the same were rightly rejected in accordance with law by passing reasoned and speaking orders. 12. In rejoinder, Sri G. K. Singh, learned counsel for the petitioners, has submitted that the extreme punishments of dismissal from service have been awarded to the petitioners, which was disproportionate to the level of misconduct on the part of the petitioners. Similarly placed Constables, who had approached U. P. Public Services Tribunal, their claim petitions have been allowed as a result of which they have been reinstated in the services. Learned counsel for the petitioners has placed reliance on following judgments of the Hon'ble Apex Court in Vishwanath v. Union of India and others, 2007 SCCL COM 1235 ; Bharat Ram v. State of Himachal Pradesh and others, AIR 1983 SC 454 ; Ex-Naik Sardar Singh v. Union of India and others, AIR 1992 SC 417 ; Hardwari Lal v. State of U. P., (1999) 8 SCC 582 : 2000 (1) AWC 96 (SC) ; Ram Avatar Singh v. State Public Services Tribunal, (1998) 9 SCC 666 and of this Court in Atul Kumar v. U. P. Export Corporation Ltd., Lucknow and others, (2005) 1 UPLBEC 276 , in support of his case. 13. Learned counsel for the petitioners has reiterated that when the similarly placed persons have been reinstated, the petitioners' case also deserves to be reconsidered and be also given a fresh look. Further, only on the testimony of Vikas Srivastava, Company Commander, the services of the petitioners ought not to have been dismissed in such a way. 14. I have heard learned counsel for the parties and perused the record. 15. In the present case, it appears that a serious accident took place at Ram Janma Bhoomi Complex, Ayodhya, Faizabad on 9.4.2003 where the petitioners alongwith their other colleagues of P.A.C. personnel had been deputed in the security duty on Watch Towers. One of the colleague of the petitioners, Constable Rajesh Kumar Tiwari, had fallen down from the Watch Tower and died on the spot. One of the colleague of the petitioners, Constable Rajesh Kumar Tiwari, had fallen down from the Watch Tower and died on the spot. This incident has shocked the petitioners as well as other P.A.C. personnel, who had gathered on the spot. It further appears that the petitioners and other P.A.C. personnel/constables were shocked due to sudden death of their colleague. On seeing the dead body of their colleague, they became surcharged with emotions and anguished due to which the Constables must have reacted. The reaction, like stopping the dead body from immediately being taken away to mortuary and other actions might have happened, which have been defined as misconduct. Undoubtedly, they had acted in a very irresponsible manner, not expected of members of a disciplined armed force, but as has been observed by the Hon'ble Apex Court in the case of Vishwanath v. Union of India (supra), the conduct of the delinquent Police personnel must be seen in the background of the entire episode. In the instant case, the authorities have acted without looking into the entire background, the entire episode. As a result of the departmental enquiry, the petitioners (P.A.C. Constables) were held guilty and were dismissed from service. The matter has not been seen in its entirety. 16. This Court has also perused the record. Statement of 16 witnesses were recorded in the departmental trial, but out of this lot, 14 witnesses had not adduced any evidence against the petitioners. Only on the basis of the statement of Vikas Srivastava, Company Commander, who had recorded his statement before the Enquiry Officer naming the petitioners and other Constables to be involved in demonstrations and gherao of the vehicle carrying the dead body of late Constable Rajesh Kumar Tiwari, which action of the petitioners according to him created law and order problem on the spot, the petitioners were held guilty. The petitioners' case was that Vikas Srivastava, Company Commander, has wrongly implicated the petitioners and other P.A.C. personnel (who were claimant-petitioners before the U. P. Public Services Tribunal in Claim Petition Nos. 357/2005, 736/2005, 729/ 2005 and 653/2005) in order to save himself from the criminal liability, as he was an accused in the criminal case registered by the Police in respect of the incident of death of Constable late Rajesh Kumar Tiwari. 357/2005, 736/2005, 729/ 2005 and 653/2005) in order to save himself from the criminal liability, as he was an accused in the criminal case registered by the Police in respect of the incident of death of Constable late Rajesh Kumar Tiwari. The petitioners and other P.A.C. personnel have demanded cross-examination of Vikas Srivastava, Company Commander, the complainant and main witness, but this opportunity was not provided to the petitioners. On the basis of sole evidence of Vikas Srivastava, Company Commander, alone, the enquiry officer held the petitioners guilty of the charges levelled against them. While holding the petitioners guilty of the charges levelled against them, the statements of the petitioners and their defence witnesses were excluded from consideration. 17. In view of the above, it is amply clear that the departmental enquiry was not conducted fairly and only on the basis of evidence of Vikas Srivastava, Company Commander, who was also facing a criminal case relating to the same incident, the petitioners have been held guilty without any corroboration. The Enquiry Officer and the Punishing authority ought to have considered this aspect of the matter, which it did not. 18. It is noteworthy that the Tribunal in its judgment has also taken note of this fact and has also recorded the opinion that the Deputy Inspector General of Police, Faizabad, and the Senior Superintendent of Police, Faizabad had made statements that the P.A.C. personnel posted at the Ram Janma Bhoomi site at Ayodhya, Faizabad were disciplined and did not create any law and order problem in the town. This Court has also taken note of the fact that a large number of emotionally charged P.A.C. personnel were present on the spot of incident. In a large crowd, having so many Constables and members of the Police force of different wings and the local people, it was difficult to establish the identity of an erring Police personnel. It appears that the most of the members of the P.A.C. were held guilty of the alleged charges. The appropriate authority could have waited for the outcome of the criminal investigation in order to satisfy itself whether any law and order problem was, in fact, created by these P.A.C. personnel or not. It appears that the most of the members of the P.A.C. were held guilty of the alleged charges. The appropriate authority could have waited for the outcome of the criminal investigation in order to satisfy itself whether any law and order problem was, in fact, created by these P.A.C. personnel or not. The veracity of statement of only Vikas Srivastava, Company Commander, cannot be believed as he himself was an accused in the criminal case and as such he tried to fasten the responsibility on the petitioners and other similarly placed Constables. 19. This Court has also taken note of the fact that extreme punishment of dismissal from service imposed on the petitioners seems to be shockingly disproportionate to the charges levelled against them. The Court has also taken note of the fact that the other P.A.C. personnel, who were involved in the same incident have been reinstated in furtherance of the judgment and order passed by the U. P. Public Services Tribunal. The Tribunal had given a well considered, reasoned and speaking judgment in their favour taking note of the events, which took place on 9.4.2003 and the conduct of the P.A.C. personnel. 20. Undoubtedly, the petitioners, being members of a disciplined force, have acted in an irresponsible manner, however, considering the totality of the circumstances, it would be appropriate that they may be awarded a minor penalty and not a major penalty, that is, removal or dismissal from service or reduction in rank. The petitioners' cases are covered by the judgments of the Hon'ble Apex Court cited above. 21. In view of the discussions made above, the writ petitions succeed and are allowed. The orders of dismissal dated 31.7.2004 and the orders dated 30.5.2005 and 28.12.2005, are quashed. The petitioners shall be immediately reinstated in the service and shall be entitled to all the consequential benefits. However, it is open to the disciplinary authority to pass fresh orders after initiating de novo disciplinary proceedings in accordance with law, if the Department deems it proper, but the petitioners shall not be awarded any major penalty of removal or dismissal from service or reduction in rank. No order as to costs.