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Allahabad High Court · body

2010 DIGILAW 2197 (ALL)

HARISH CHANDRA TEWARI v. STATE OF U. P.

2010-07-27

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioner, learned Standing Counsel and perused the Affidavits on record. 2. The petitioner was a constable in the Provincial Armed Constabulary of Uttar Pradesh. He was dismissed from service upon charges of indiscipline levelled against him during a meeting in relation to the running of a Mess of Battalion that was convened where he was posted. The charges were that the petitioner raised his voice and addressed his superiors in a tone that amounted to gross insubordination. On this charge, the petitioner was proceeded against and he was ultimately dismissed from service. The petitioner approached the Public Service Tribunal and his petition was dismissed against which he filed a writ petition before this Court being Writ Petition No. 21133 of 1994. The said writ petition was ultimately allowed partly on 15.12.2003 holding that even if the charges were proved, the punishment awarded to the petitioner was disproportionate. The judgment of the Tribunal was set aside and the matter was remitted back to the Tribunal with a direction to decide the matter in respect of awarding a lesser punishment to the petitioner. The Tribunal on remand passed an order that the disciplinary authority shall reinstate the petitioner and take a decision in respect of awarding a lesser punishment to the petitioner. 3. There is nothing on record to indicate that the respondents have challenged the judgment of this Court dated 15.12.2003 in any higher Court nor is there anything on record to indicate that the order of the Tribunal dated 25.11.2005 issuing the aforesaid direction for the reinstatement of the petitioner and awarding of lesser punishment has been impeached. 4. Consequently, the matter was taken up by the Commandant and a show-cause notice was issued to the petitioner on 7.4.2007 calling upon him to show-cause as to why the punishment of dismissal awarded to him be not converted to removal, a copy of the said show-cause notice is Annexure-8 to the writ petition. A reply was submitted but without taking notice of the aforesaid factors, the order impugned has been passed passing an order of removal against the petitioner. The ground taken is that in view of the proved misconduct of the petitioner, there was no occasion to maintain him in the disciplinary force as the same would affect the moral and discipline of other colleagues in the Force. 5. The ground taken is that in view of the proved misconduct of the petitioner, there was no occasion to maintain him in the disciplinary force as the same would affect the moral and discipline of other colleagues in the Force. 5. Sri Dubey, learned counsel for the petitioner, contends that the impugned order is a clear defiance of the order of the High Court and that of the Tribunal whereby the petitioner was directed to be reinstated and then to be awarded a lesser punishment. He submits that the order was passed much prior to the enforcement of the 1991 Rules and, therefore, the order of removal could not have been passed even afresh. Sri Dubey invited the attention of the Court to Section 7 of the Police Act which is quoted below : “7. Appointment, dismissal, etc. of inferior officers.—Subject to provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this Act, the [Director-General-cum-Inspector General ], Deputy Inspectors-General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think fit remiss or negligent in the discharge of his duty or unfit for the same; or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge therefore namely: (a) fine to any amount not exceeding one month’s pay; (b) confinement to quarters for a term not exceeding fifteen days, with or without punishment—drill, extra guards, fatigue or other duty; (c) deprivation of good conduct pay; (d) removal from any office of distinction or special emolument. (e) withholding of increments or promotion including stoppage at an efficiency bar].” 6. The contention raised is that Section 7 does not indicate the punishment of removal. In such circumstances and there being no such provision, the authority committed an illegality by issuing a show-cause notice for such conversion. He has further relied upon a Division Bench judgment of this Court in the case of Sarfaraz Ahmad Khan v. Election Tribunal and others, 1973 ALJ 420. 7. In such circumstances and there being no such provision, the authority committed an illegality by issuing a show-cause notice for such conversion. He has further relied upon a Division Bench judgment of this Court in the case of Sarfaraz Ahmad Khan v. Election Tribunal and others, 1973 ALJ 420. 7. Learned Standing Counsel, on the other hand, contends that Section 7 of the Police Act has to be read with para 478 of the Regulations framed which are quoted below : “478. All Police Officers appointed under Section 2 of the Police Act are liable to the following departmental punishments :- (a) dismissal or removal from the force, as defined in paragraph 481; (b) reduction as defined in paragraph 482; (ba) withholding of promotion; (bb) withholding of increments including stoppage at an efficiency bar; (bc) misconduct entry in the character roll (U.P. Gazette dated 6th April, 1968); Head constables and constables may also be punished with : (c) confinement to quarters (this term includes confinement to quarter guard) for a term not exceeding fifteen days: (d) punishment drill; (e) extra guard duty; Constables may also be punished with— (f) Fatigue duty which should be restricted to the following tasks— (i) tent-pitching; (ii) drain-digging; (iii) cutting grass, cleaning jungle and picking stones off parade grounds; (iv) repairing huts and butts and similar work in the lines; (v) cleaning arms.” He submits that the punishment of removal could have been granted as a substitute punishment inasmuch as the punishment of removal is a lesser punishment than the punishment of dismissal. 8. Having heard learned counsel for the parties and in view of the submissions raised, a perusal of the Division Bench judgment as relied upon by the learned counsel for the petitioner leave no room for doubt that while interpreting Section 7 of the Police Act, this Court has arrived at a conclusion that in every case of dismissal, Section 7 would include removal as well. The High Court as well as the Tribunal have both directed the award of a lesser punishment and not an equivalent punishment. 9. The punishment of dismissal, which has been substituted by removal, may qualitatively amount to a lesser punishment but quantitatively it remains the same. The appellant has been deprived of his employment which in my opinion is contrary to the direction issued by the High Court and the Tribunal to award a lesser punishment. 9. The punishment of dismissal, which has been substituted by removal, may qualitatively amount to a lesser punishment but quantitatively it remains the same. The appellant has been deprived of his employment which in my opinion is contrary to the direction issued by the High Court and the Tribunal to award a lesser punishment. A punishment lesser than deprivation of an employment was clearly contemplated inasmuch as the order passed by the Tribunal clearly directed reinstatement. It was, therefore, not possible for the authority to comply the aforesaid direction partially by awarding a lesser punishment of removal but at the same time depriving the petitioner of reinstatement. It has been already noticed above that the order of the Tribunal has not been challenged nor has the judgment of this Court been put in appeal before any higher Court. In such circumstances, the order of removal is in teeth of the directions referred to herein above and is a camouflage for reflecting compliance of the directions. 10. In my opinion, the authority has, therefore, erred in passing the order of removal against the petitioner. The very foundation of issuance of the show-cause notice is, therefore, erroneous. The Tribunal had directed reinstatement as well. The authority has, therefore, overlooked the said aspects and has therefore arrived at a wrong conclusion. 11. Accordingly, the writ petition is allowed and the impugned order dated 21.4.2007 (Annexure-10 to the writ petition) and the consequential order dated 21.4.2007 (Annexure-11 to the writ petition) are hereby quashed. The matter is remitted back to the authority to pass a fresh order in the light of the observations made herein above within 3 months from the date of production of a certified copy of this order before him. All consequential orders shall follow thereafter. ————