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2011 DIGILAW 1220 (ALL)

RAM LAKHAN TIWARI v. SUPERINTENDENT OF POLICE

2011-05-13

DILIP GUPTA, SUNIL AMBWANI

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JUDGMENT By the Court.—We have heard Sri Ajay Kumar Srivastava, learned counsel for the petitioner. Learned standing counsel appears for the respondents. 2. This writ petition was filed in the year 1986 against the order of the State Public Services Tribunal, dismissing the claim petition No. 66 (F)/V/1980 dated 20.10.1984, against an order passed by the Senior Superintendent of Police, Kanpur Nagar dated 23.11.1977, terminating petitioner from service. 3. The petitioner joined the civil police in U.P. as Constable on 1.2.1976. The Senior Superintendent of Police, Kanpur vide his order dated 23.11.1977, terminated his services with entitlement of one month salary in lieu of notice under the U.P. Temporary Governments (Termination of Service) Rules 1975. The petitioner challenged the order in the Tribunal, on the ground that he was a permanent employee and that there was nothing on record, which could be treated as a ground for forming an opinion that his services were not satisfactory. In fact an FIR was lodged against him alleging that he has filed a forged Transfer Certificate of a Junior High School. The FIR was the basis of terminating the services of the petitioner. The order was stigmatic and punitive in nature. 4. The Tribunal in its judgment dated 20.10.1984 recorded the findings as follows: 4. It was then argued on behalf of the petitioner that in the impugned order the reason for terminating the services was not given. It is the case of O.Ps that the petitioner was unsuitable for the post and that he had filed a forged certificate. Now it is not necessary to mention the reason in the termination order. In case the reason is given the termination order becomes stigmatic. The opposite parties have to give reasons in the written statement as to why the services of the petitioner were terminated. They have given the reasons that the petitioner was unsuitable. He alleged to have filed a forged certificate. Under the circumstances, we think that the termination order was perfectly valid. There is always some reason for terminating the services of a temporary employee. In the present case the appointing authority thought the petitioner to be unsuitable for the post of Police Constable for certain reasons. We do not think we can go into the validity of these reasons. The petitioner was also found to have submitted a forged certificate to seek employment. In the present case the appointing authority thought the petitioner to be unsuitable for the post of Police Constable for certain reasons. We do not think we can go into the validity of these reasons. The petitioner was also found to have submitted a forged certificate to seek employment. We think these were the motive for terminating the services of the petitioner and not the foundation. This reference shall be rejected. 5. This writ petition was initially allowed by this Court, on the ground that the petitioner’s services were not temporary in nature under the Police Act, and he could not be governed by the Rules of 1975, applicable to the temporary employees. The members of the force are formally enrolled and after they are enrolled they become members of the force and their enrollment is permanent, it cannot be temporary. No member of the force is liable to be removed without following procedure prescribed by law in this regard. The petitioner could be punished under Section 7 of the Act, as inferior officer can be removed from service or given punishment on the ground of negligence in discharge of duty or for being unfit for rendering the duty but such punishment is to be given subject to the provisions of Article 311 of the Constitution of India. Under para 477 of the U.P. Police Regulations, no police officer appointed under Section 2 of the Act shall be punished by executive order, other than in the manner provided in Chapter XXXII of the Regulations. 6. The State of U.P. filed Civil Appeal No. 8279 of 1996. By judgment dated 13.4.2007, the Supreme Court set aside the judgment of the learned Single Judge of the Court, with findings that Full Bench of the High Court in Nanak Chand v. State of U.P., in writ petition No. 2808 of 1970 decided on 21.5.1971, considered the question as to whether the Police Act and the Police Regulations contemplates any temporary employment of police officers, and came to the conclusion that temporary post can be created in the police force. The Full Bench was of the view that Section 2 of the Police Act is wide enough to permit such posts to be created. The Full Bench was of the view that Section 2 of the Police Act is wide enough to permit such posts to be created. The Supreme Court held as follows : “The Full Bench was also of the view that it is a general rule in the State for all new recruits to be employed first in a temporary capacity. Accordingly, the full Bench held in Nanak Chand (Supra) that all the petitioners were recruited on temporary basis and throughout their service they remained temporary employees whose services were liable to be terminated on one month’s notice. Undisguisedly, the decision of the full Bench was not brought to the notice of the learned Single Judge. In view thereof, counsel on both sides submit that the order of the Single Judge impugned in this appeal may be set aside and the matter may be remitted to the Single Judge of the High Court of Allahabad to consider afresh after considering the judgment in Nanak Chand (supra) rendered by the full Bench of the High Court” 7. After the order of the Supreme Court dated 13.11.2007, was received, the matter was listed on 6.4.2009. The counsel for the petitioner prayed for time. He did not address the Court on merits. The Division Bench observed that the matter is very old and since the Supreme Court had, while remitting the matter back requested the High Court to dispose of the writ petition as expeditiously as possible, there was no ground to adjourn the case. 8. Sri Swaraj Prakash, learned counsel representing the petitioner had since expired. In the recall/restoration filed by the petitioner through Sri Swaraj Prakash, he had stated that Sri Swaraj Prakash was facing serious eye problem on 6.4.2009, and asked his Junior Sri Ravi Prakash Bhutt to be present in Court and request the Court to pass over the case for the day. The deponent -petitioner was present in the Court and the case was dismissed on account of absence of the counsel for the petitioenr. The junior counsel informed the Court that Sri Swaraj Prakash had gone to attend the Doctor. The doctor’s prescription has also been annexed to the recall application. 9. Dr. R.N. Mishra, is a renowned eye specialist and Ex-Professor, Head and Director of the State Institute of Ophthalmology, MLN Medical College, Allahabad. The junior counsel informed the Court that Sri Swaraj Prakash had gone to attend the Doctor. The doctor’s prescription has also been annexed to the recall application. 9. Dr. R.N. Mishra, is a renowned eye specialist and Ex-Professor, Head and Director of the State Institute of Ophthalmology, MLN Medical College, Allahabad. We do find any reason to disbelieve the explanation given by the petitioner for non arguing the matter by Sri Swraj Prakash, when the matter was taken up. 10. In the circumstances, we find it appropriate to recall the order dated 6.4.2009, and heard the matter. 11. The Supreme Court referred to the Full bench decision of this Court in Nanak Chand (Supra) that temporary employment is also given in the police force. There is no general rule that all the police constables are permanent employees. The petitioner was recruited in the year 1973. There was nothing to show that he was placed under probation. The petitioner had to be treated as a temporary employee on the date when his services were terminated by the Senior Superintendent of Police, Kanpur. 12. In the written statement filed by the Department in the Tribunal, it is stated in para 2 that there was no necessity for recording reasons in the case of a simple termination, as was the petitioner’s case. The petitioner was not found suitable and efficient, and thus his services were terminated while he was still a temporary employee. In para 3, it is further stated that petitioner’s school leaving certificate was found to be forged. The petitioner’s services were terminated in pursuance of the U.P. Temporary Government Servants (Termination of Services), Rules 1975. 13. The police had submitted a charge-sheet in the criminal case instituted against the petitioner that in the application form, submitted at the time of recruitment. He had mentioned that he had passed Class VIII and also enclosed a Transfer Certificate from a Junior High School, Khohi Chitrakoot of Banda District, U.P. 14. The petitioner was tried in Criminal Case No. 3320 of 1980 under Sections 420/467/468/471 IPC. The Additional Chief Metropolitan Magistrate, Kanpur allowed several opportunities to the police to produce evidence against the petitioner. He had mentioned that he had passed Class VIII and also enclosed a Transfer Certificate from a Junior High School, Khohi Chitrakoot of Banda District, U.P. 14. The petitioner was tried in Criminal Case No. 3320 of 1980 under Sections 420/467/468/471 IPC. The Additional Chief Metropolitan Magistrate, Kanpur allowed several opportunities to the police to produce evidence against the petitioner. He was not found guilty of the offences and and was acquitted on 30.5.1985, with the findings as follows : “This Court after analyzing the evidence on record and after hearing the arguments of both the parties noted - That (1) the certificate alleged to be forged is not on record and hence is not proved. All P.W. 1, 2, 3 and 4 also depose to the effect that no such certificate is on record. (2) Also sufficient reason is given for its disappearance nor it is proved to be seen by the witnesses. P.W. 4 to whom it was alleged to be given stated that he could not disclose as to which certificate had been given to him when Ex. Kha-5 was shown to him, he did not deny its existence at the time of filing. (3) FIR is not proved (contents) nor the G.D. Kaiymi Muqadma. Only the order of P.W. 2 for lodging FIR is proved as Ka-7 (4) Charge-sheet, site plan and other police documents have also not proved. After discussing the evidence at length this Court. for the reasons given above holds that the prosecution has miserably failed to prove the case under Sections 420/467/468/471 IPC against the accused. It could not establish forgery at the hands of the accused nor could it attribute to him any cheating by filing a forged certificate. The certificate alleged to be forged could not be proved for, it is not on record. In the absence of such a material evidence, the liability cannot be fixed upon the part of the accused. Even the circumstances of the case are such that that there was no occasion to file any such false certificate by the accused on the other hand has behaved more responsibility by getting a certificate proved to be genuine by a competent authority from the institution he was a student. Even the circumstances of the case are such that that there was no occasion to file any such false certificate by the accused on the other hand has behaved more responsibility by getting a certificate proved to be genuine by a competent authority from the institution he was a student. The irony is that not a single ward is uttered by the prosecution to challenge this certificate to rather some witnesses have shown all possibilities for the genuine certificate to be there. The case is such that this Court finds itself absolutely unable to convict the accused. The accused has establish his defence crystal clear and without an iota of doubt. It is as spontaneous as possible. It really commands respectability. This Court therefore finds the accused not guilty under Sections 420/467/468/471 IPC and release him under these sections. Order. The accused Ram Kakhan Tiwari is not found guilty under Sections 420/467/468/471 IPC. He needs not surrender. His bail bonds are cancelled and sureties are discharged. Sd/- Sushma Kumari Solanki 30.5.1985" 15. In this writ petition, the department was required to satisfy the Court by producing service record that the petitioner’s were not satisfactory. The State has not referred to any of the record nor produced the records. It has given an explanation that the record was not available. The State had not filed any material on record to find out the correctness on the written statement filed in the Tribunal and the counter-affidavit in the High Court that the petitioner’s service was not satisfactory. 16. There was a complaint against the petitioner and an FIR was lodged against the petitioner. Immediately thereafter, the department issued the termination order. In the written statement filed by the department in the Tribunal, and in the counter-affidavit filed in this writ petition, it is nowhere clearly stated that the petitioner had filed false transfer certificate. The termination order does not mention this fact. Incidentally the termination order also does not mention the fact that the petitioner’s services were not satisfactory. We are therefore of the opinion that facts and circumstances available on the record clearly establish that the petitioner’s services were terminated on the ground of complaint that he had filed a forged transfer certificate of Class VIII. 17. Incidentally the termination order also does not mention the fact that the petitioner’s services were not satisfactory. We are therefore of the opinion that facts and circumstances available on the record clearly establish that the petitioner’s services were terminated on the ground of complaint that he had filed a forged transfer certificate of Class VIII. 17. Even if the petitioner was engaged as a temporary employee, the foundation of the order was the allegation of submitting false certificate, and thus the order was not an order simplictor of termination. It was punitive and stigmatic in nature. 18. Learned standing counsel submits that the petitioner’s services were not satisfactory and that there is no indication in the impugned order that it was founded upon any allegation against him. Where the Senior Superintendent of Police found that the services of the petitioner were not satisfactory, it is open to the Court to question the motive behind it. 19. We do not agree that the order of the Senior Superintendent of Police was an order simplicitor terminating the services of the petitioner, without any foundation of any guilt associated with it. The sequence of which the FIR was lodged and the petitioner services were terminated clearly reflect that the Senior Superintendent of Police found him guilty of misconduct. 20. In para 28 of the writ petition, the petitioner has quoted the statement of Senior Superintendent of Police when he was examined personally by the prosecution in the criminal trial as P.W. - 2 on 22.2.1983. He had clearly stated in his deposition that the transfer certificate was not sent for verification but since the petitioner was found guilty in the preliminary enquiry, he was discharged. He further deposed that if the facts (filing of the forged document) was not brought to his notice, he would not have discharged the accused 21. The statements of Senior Superintendent of Police, making the order of termination clearly establish that the order was founded upon the filing of forged certificate, of which the FIR was lodged against him. 22. The writ petition is allowed. The order of the State U.P. Public Services Tribunal - V, Lucknow dated 22.10.1984 and the order of termination of the petitioner dated 23.11.1977 passed by the Senior Superintendent of Police, Kanpur Nagar are set aside. The petitioner shall be reinstated in service with all consequential benefits except full back wages. 22. The writ petition is allowed. The order of the State U.P. Public Services Tribunal - V, Lucknow dated 22.10.1984 and the order of termination of the petitioner dated 23.11.1977 passed by the Senior Superintendent of Police, Kanpur Nagar are set aside. The petitioner shall be reinstated in service with all consequential benefits except full back wages. Since the petitioner has not worked on the post of Constable, he will be entitled to receive only 50 % of the back wages, which shall be paid to him within three months from the date a certified copy of this order is presented in the office of the Senior Superintendent of Police, Kanpur Nagar. —————