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2009 DIGILAW 808 (ALL)

UMESH KUMAR v. STATE OF U P

2009-03-18

BALA KRISHNA NARAYANA

body2009
B. K. NARAYANA, J. 1. Heard Sri Vijay Gautam, learned counsel for the petitioner and the learned Standing Counsel for the respondents. 2. The petitioner through this writ petition has assailed the order dated 7. 7. 2005 passed by the respondent No. 4, order dated 2. 12. 2005 passed by the respondent No. 3 dismissing the petitioners appeal against the order dated 7. 7. 2005 and the order dated 20. 4. 2006 passed by the respondent No. 2 dismissing the petitioners revision against the orders dated 7. 7. 2005 and 2. 12. 2005. 3. While on deputation in U. P. Power Corporation the petitioner, who was initially appointed as constable in civil police, was placed under suspension by an order dated 7. 5. 2005 passed by the Superintendent of Police (Pravartan), U. P. Power Corporation Ltd. , Shakti Bhawan, Lucknow on the ground of his being arrested and sent to jail in a criminal case registered as Case Crime No. 77 of 2005 under Section 364-A, I. P. C. , Police Station Sadar Bazar, District Meerut. Thereafter without holding any enquiry and without issuing any show cause notice, the petitioner was dismissed from service by an order dated 7. 7. 2005 passed by the respondent No. 4 under the provisions of Rule 8 (2) (b) of the U. P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991, hereinafter referred to as the Rules, on the ground of his involvement in Criminal Case No. 77 of 2005 under Section 364-A, I. P. C. 4. Since the petitioner was dismissed from service only on the ground of his involvement in a criminal case and no reason was given in the order of dismissal for proceedings against the petitioner under Rule 8 (2) (b) of the Rules, the petitioner preferred an appeal against the order of dismissal from service under Rule 20 of the Rules, before the respondent No. 3 which was dismissed by him by his order dated 2. 12. 2005. The petitioner challenged the orders dated 7. 7. 2005 and 2. 12. 2005 passed by the respondent Nos. 4 and 3 by filing a revision before the respondent No. 2, which was also dismissed by him by order dated 20. 4. 2006. 5. It has been submitted by the learned counsel for the petitioner that the order of dismissal is wholly arbitrary, illegal and punitive in nature. 7. 2005 and 2. 12. 2005 passed by the respondent Nos. 4 and 3 by filing a revision before the respondent No. 2, which was also dismissed by him by order dated 20. 4. 2006. 5. It has been submitted by the learned counsel for the petitioner that the order of dismissal is wholly arbitrary, illegal and punitive in nature. Since the petitioner has not yet been convicted in the criminal case and the charges levelled against him are yet to be proved, there was no reasons to throw the petitioner out of employment. The respondent No. 4 has not recorded his subjective satisfaction disclosing any reason as to why it was not reasonably practicable to hold a regular departmental enquiry. 6. Learned counsel for the petitioner further submitted that failure of the Appellate Authority as well as the Revisional Authority to examine the illegality committed by the respondent No. 4 in dismissing the petitioners appeal under Rule 8 (2) (b) of the Rules on the ground of his involvement in criminal case and without assigning any reasons and to redeem the same as rendered the orders passed by the respondent Nos. 3 and 4 totally unsustainable. 7. Learned Standing Counsel has strongly opposed the writ petition. According to him, the petitioner was involved in a Criminal Case No. 77 of 2005 under Section 364-A, I. P. C. and the charge-sheet has also been submitted in the Court concerned. No departmental enquiry was initiated against the petitioner as the respondent No. 4 was of the opinion that the involvement of a police personnel in a criminal case had the effect of scandalizing the image of the police force and retention in service of a police constable who was of criminal nature was not at all desirable. 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. Petitioners Appeal has also been rightly dismissed by the Deputy Inspector General of Police. 8. Petitioners Appeal has also been rightly dismissed by the Deputy Inspector General of Police. 8. Learned Standing Counsel has lastly submitted that since the petitioner was found to be a criminal and his criminal activities were likely to lower down the prestige and image of the police department and in view of the subject-matter of accusations made against the petitioner, he was rightly dismissed from service without holding a formal regular departmental enquiry. The respondent No. 4 is empowered to pass such order under the scheme of aforementioned Rules. There is no illegality in the impugned orders. 9. Refuting the submissions made by the learned Standing Counsel, the petitioners learned counsel has 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 (AII) (DB), State of U. P. and others v. Chandrika Prasad; 2007 (10) ADJ 36 , La/too 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 referred to the observations made by the Honble Division Bench and the Honble 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. 10. I have carefully considered the submissions made by the learned counsel for the parties and perused the record. 11. The respondent No. 4 while dismissing the petitioner from service on the ground of his involvement in a criminal case has also excluded from consideration that till the trial in the competent Court of law is conqluded, the petitioner cannot be branded as a criminal as has been done in the present case. 11. The respondent No. 4 while dismissing the petitioner from service on the ground of his involvement in a criminal case has also excluded from consideration that till the trial in the competent Court of law is conqluded, the petitioner cannot be branded as a criminal as has been done in the present case. The recitals contains 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 are baseless. This opinion appears to be wholly unfounded as admittedly the criminal case in which the petitioner is involved has not been decided till date. 12. The Disciplinary Authority, that is, the Senior Superintendent of Police, Saharanpur 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. 13. The failure of the Appellate Authority as well as Revisional Authority to examine the grounds on which the petitioner had challenged the validity of his dismissal order in correct perspective has rendered their orders absolutely illegal. 14. In view of the above, the petitioners 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 petitioners 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. 15. Accordingly, the writ petition succeeds and is allowed. The orders dated 7. 7. 2005, 2. 12. 2005 and 20. 4. 2006 are quashed. The petitioner shall be treated to have remained in continuous service from the date of reinstatement alongwith all consequential benefits. However, it shall be open for the appropriate authority to hold departmental enquiry in accordance with law if he deems it fit and proper. 16. No order as to cost. .