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2010 DIGILAW 558 (ALL)

SATYA PRAKASH VERMA v. STATE OF U. P.

2010-02-11

K.N.PANDEY, S.P.MEHROTRA

body2010
JUDGMENT By the Court.—The present Writ Petition has been filed by the petitioner, inter-alia, praying for quashing the order of termination dated 19.1.1990. By the said order dated 19.1.1990, the services of the petitioner who was holding the post of Inspector, Work-III, were terminated. 2. The prayer clause of the present Writ Petition is reproduced below : “(a) To issue a writ, order or direction in the nature of certiorari quashing the impugned order of termination dated ‘19.1.1990’ passed by opposite party No. 2. (b) To issue a writ, order or direction in the nature of mandamus direction in the officials concerned to pay suspension allowance/substance amount of 3/4th of the salary of the petitioner after lapse of three months of suspension. (c) To issue such other writ, order or direction in the circumstances of the case which this Hon’ble Court may deem fit and proper to give adequate relief to the petitioner. (d) To allow this Writ Petition with costs to the petitioner.” 3. The Stamp Reporter has submitted his Report dated 8.2.2010 that the Writ Petition was in time up to 19th April, 1990, and is thus beyond time by 19 years 298 days on the date of reporting. 4. The present Writ Petition has been filed on 9th February, 2010. From a perusal of the Writ Petition, we do not find any explanation for the inordinate delay in filing the Writ Petition. The Writ Petition is therefore liable to be dismissed on the ground of laches. 5. There is one more aspect of the matter. In paragraph 2 of the Writ Petition, it has, inter-alia, been stated that the present Writ Petition is second Writ Petition being filed by the petitioner. As the details of the first Writ Petition have not been mentioned in the present Writ Petition, the learned Counsel for the petitioner has supplied the same on query being made by the Court. Learned Counsel for the petitioner has stated that the first Writ Petition filed by the petitioner was Civil Misc. Writ Petition No. 13943 of 1990 decided on 19.1.1998. 6. The record of the said Civil Misc. Writ Petition No. 13943 of 1990 has been summoned from the Registry. 7. A perusal of the said Writ Petition, namely, Civil Misc. Learned Counsel for the petitioner has stated that the first Writ Petition filed by the petitioner was Civil Misc. Writ Petition No. 13943 of 1990 decided on 19.1.1998. 6. The record of the said Civil Misc. Writ Petition No. 13943 of 1990 has been summoned from the Registry. 7. A perusal of the said Writ Petition, namely, Civil Misc. Writ Petition No. 13943 of 1990 shows that the said Writ Petition was based on the same cause of action as is pleaded in the present Writ Petition. Identical prayers were made in the said Writ Petition. Prayer clause of the said Writ Petition, i.e., Civil Misc. Writ Petition No. 13943 of 1990 is reproduced below : “(a) To issue a writ, order or direction in the nature of certiorari quashing the impunged order of termination dated 19.1.1990 passed by opposite party No. 2. (b) To issue a writ, order or direction in the nature of mandamus directing the officials concerned to pay suspension allowance/subsistance amount of 3/4th of the salary of the petitioner after lapse of three months of suspension; (c) To issue such other writ, order or direction in the circumstances of the case which this Hon’ble Court may deem fit and proper to give adequate relief to the petitioner. (d) To allow this writ petition with costs to the petitioner.” 8. By the order dated 19.1.1998, the said Civil Misc. Writ Petition No. 13943 of 1990 was dismissed by this Court. The order dated 19.1.1998 passed by this Court is as under : “Hon’ble S.L.Saraf, J. Heard learned counsel for the parties. I have gone though the petition and find that proper enquiry was held prior to termination of the services of the petitioner, as such, the services of the petitioner was rightly terminated. In that view of the matter, the writ petition stands dismissed. There will be no order as to costs. 19.1.1998" 9. It will thus be noticed that the Writ Petition filed by the petitioner on the same cause of action was dismissed by this Court by the order dated 19.1.1998. In the circumstances, the present Writ Petition being second Writ Petition on the same cause of action is not maintainable and is liable to be dismissed. 10. In view of the above discussion, we are of the opinion that the present Writ Petition is liable to be dismissed. 11. In the circumstances, the present Writ Petition being second Writ Petition on the same cause of action is not maintainable and is liable to be dismissed. 10. In view of the above discussion, we are of the opinion that the present Writ Petition is liable to be dismissed. 11. The Writ Petition is accordingly dismissed. ———— [2010(4) ADJ 706 (LB)] ALLAHABAD HIGH COURT (Lucknow Bench) BEFORE : SHEO KUMAR SINGH, J. PRASHAT KUMAR CHAUDHARY .....Petitioner Versus STATE OF U.P. AND OTHERS .....Respondents (Civil Misc. Writ Petition No. 2093 of 2008, decided on 8th December, 2009) Dismissal—Legality of—Petitioner is a constable in Civil police—Show-cause notice dated 3.8.2007 issued—That why he be not discharged from service—As he was involved in Criminal Case—Before petitioner could show-cause he was dismissed from service on 8.8.2007—No enquiry was held—Further, no reason was recorded in impugned order as to why holding enquiry was not practicable—Dismissal for quashed. [Paras 12, 13, 14 and 15] Result; Petition Allowed. Cases cited : 2009(2) ADJ 41 (LB) : 2009(1) ESC 754 (All)(LB); 2008(8) ADJ 566 -Referred. Counsel : Sarvesh Misra for the Petitioner; C.S.C. for the Respondents. JUDGMENT Hon’ble Sheo Kumar Singh, J.—Heard Sri S.C. Tiwari, learned Advocate who appeared in support of this writ petition and learned Government side. 2. Challenge is to the order of dismissal dated 8.8.2007 passed by the Superintendent of Police, Baharich and the appellate order dated 31.12.2007 passed by the Deputy Inspector General of Police, Devi Patan Region, Gonda as contained in annexure No. 3 to the writ petition. Although a counter affidavit was directed to be filed on 9.9.2009 but no counter affidavit is there. There appears to be no dispute about the facts, it is rightly submitted by the learned counsel that keeping the matter pending will be futile exercise and thus the order which is being proposed to pass may not detain this Court in disposing of the writ petition finally. 3. For disposal of the writ petition, facts in brief will suffice. Petitioner was selected as constable in civil police in the year 2005 and he was allotted district Baharich. A show-cause notice was issued by the respondent No. 3 on 3.8.2007 by which on the charge that against the petitioner there was a case registered vide case Crime No. 1159-A of 1999 under Sections 147, 148, 149, 307, 324, 504, 427, IPC , he is to be discharged from service. A show-cause notice was issued by the respondent No. 3 on 3.8.2007 by which on the charge that against the petitioner there was a case registered vide case Crime No. 1159-A of 1999 under Sections 147, 148, 149, 307, 324, 504, 427, IPC , he is to be discharged from service. No reply appears to have been filed by the petitioner as the impugned order came to be passed within couple of days i.e. 8.8.2007. Appeal was filed by the petitioner but that met with the same fate and thus petitioner challenges both the orders passed by the respondent Nos. 2 and 3. Submission is that the impugned order passed by the respondents, besides being illegal, is also in violation of principles of natural justice. As no adequate opportunity of either filing the reply or enquiry was given the impugned order is totally whimsical and thus is liable to be set aside on this ground alone. 4. It is further submitted that on the facts also the very premises on which the order is passed is factually not acceptable as the case crime No. 1159-A of 1999, resulted into a final decision by order of the competent Court dated 29.7.2005 and petitioner was honourably acquitted/discharged. Submission is that in fact it was a family dispute in respect to which compromise was filed which was also taken note by the competent Court and both these things are brought on record of this Court alongwith the affidavit which has been filed in support of the disposal application. 5. Lastly it is submitted that before the order of dismissal which can be said to be the extreme punishment an opportunity has to be given and thus the shelter which has been taken by the respondent No. 3 of Rule 8 (2) of the U. P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 can be said to be of no application. 6. It is submitted that it has been decided in series of judgments of this Court that enquiry cannot be dispensed with unless the facts and circumstances and the contingencies so mentioned in the aforesaid rule exists. 6. It is submitted that it has been decided in series of judgments of this Court that enquiry cannot be dispensed with unless the facts and circumstances and the contingencies so mentioned in the aforesaid rule exists. Reference has been given to the decision given by this Court in the case of Constable 703 Keshav Nath Rai v. State of U.P., 2009(2) ADJ 41 (LB) : 2009(1) ESC 754 (All)(LB) and also the decision given by this Court in the case of Bishambhar Singh Bhadoria v. State of U.P. and others, 2008(8) ADJ 566 . On a perusal of the rule noted above of which shelter has been taken for passing the impugned order without holding the enquiry it is clear that the authority is empowered to pass the dismissal or removal or reduction in rank only when for the reasons to be recorded in writing the authority found himself to be satisfied that the enquiry is not practicable. 7. Learned Government side rightly submits that as there is no factual dispute about various aspects as has come on the record and on the admitted facts as no enquiry has proceeded, if the concerned authority is asked to get an enquiry conducted for passing appropriate orders within a time bound frame then both sides may get justice. On a perusal of the order of the respondent No. 3 it is cleat that no enquiry was proceeded. A show-cause notice appears to have been given on 3.8.2007 and thereafter on 8.8.2007 the order was passed. Petitioner has brought on record the judgment of the competent Court and copy of the compromise from which it is clear that Criminal Case as referred to in the impugned order ended in favour of the petitioner. Be as it may, neither on the facts, in the light of the material as has been brought on record the order is found to be prima facie justified nor otherwise on a perusal of the rules referred above the order is found to be justified. Accordingly, this petition succeeds and is allowed. Order dated 8.8.2007 and 31.12.2007 passed by the respondents are hereby quashed. Accordingly, this petition succeeds and is allowed. Order dated 8.8.2007 and 31.12.2007 passed by the respondents are hereby quashed. Respondent No. 3 is directed to give an opportunity to the petitioner in respect to charges and after completing enquiry within shortest possible time preferably within a period of three months from the date of receipt of certified copy of this order in accordance with law, he is to pass orders. ————