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2012 DIGILAW 159 (ALL)

RAJ RANI v. STATE OF U. P.

2012-01-18

DINESH GUPTA, RAKESH TIWARI

body2012
JUDGMENT By the Court.—Heard learned counsel for the parties and perused the record. 2. This writ petition has been filed by Smt. Raj Rani praying for issuance of a writ in the nature of certiorari for quashing the order dated 11.5.1997 passed by the Deputy Inspector General of Police, Agra Range, Agra, order dated 28.2.91 passed by the Director General of Police, U.P. Lucknow and the order dated 30.10.1996 passed by State Public Services Tribunal, Lucknow. 3. Smt. Raj Rani is widow of Muneshwar Singh Rathore. He was working as Sub-Inspector of Police in the year 1978-79 at the relevant time. 4. Brief facts of the case are that late Muneshwar Singh Rathore was assigned escort duty on 2.2.1985 for escorting Sri Virendra Pratap Shahi, a NSA detenue from Agra to Gorakhpur alongwith Sub-Inspector Bharat Singh, a Head Constable and a Constable. He was served with a charge-sheet alleging that on 2.2.1985 at about 23.15 hrs escort proceeded from Central Jail, Agra but did not take the NSA detenue to Gorakhpur instead he was taken at his residence at Mohaddipur, P.S. Cantt where escort team stayed in the residence of the detenue till 3.2.1985 and took dinner at his residence aforesaid. It was also alleged that in the morning of 4.2.1985 the escort team headed by the husband of the petitioner also allowed the NSA detenue to meet his supporters allowing him to move freely. 5. On the aforesaid allegations departmental enquiry proceedings were initiated by the Senior Superintendent of Police, Agra against Muneshwar Singh Rathore, the husband of the petitioner under Section 7 of the Police Act, who issued charge-sheet dated 11.2.1986 (Annexure-1 to the writ petition) by the Circle Officer, Chhatta, District Agra alongwith a list of the names of the witnesses who may be produced by the department against him. Reply to the charge-sheet was submitted by Sri Muneshwar Singh Rathore, who denied the charges levelled against him. The Senior Superintendent of Police, Agra thereafter vide his order dated 13.2.1987 placed him under suspension for committing alleged misconduct in the night of 3/4.2.1985 as stated above. A departmental enquiry as well as CID enquiry were conducted in the matter separately. However, it is alleged that copy of the report of the investigation by the Crime Branch of the CID was not supplied to the husband of the petitioner which has vitiated the departmental enquiry. 6. A departmental enquiry as well as CID enquiry were conducted in the matter separately. However, it is alleged that copy of the report of the investigation by the Crime Branch of the CID was not supplied to the husband of the petitioner which has vitiated the departmental enquiry. 6. After conclusion of the departmental enquiry, the Enquiry Officer submitted his report to the Senior Superintendent of Police, Agra. The Deputy Inspector General of Police, Agra Range, Agra thereafter vide his order dated 17.4.1987 issued a show-cause notice to the delinquent employee as to why he may not be dismissed from service. The Deputy Director of General of Police, Agra also informed the delinquent employee to appear before him on 1.5.1987 at 10.00 a.m. for personal hearing. 7. A detailed reply was submitted by the delinquent employee to the aforesaid show-cause notice assailing the findings recorded by the Enquiry Officer and requesting that proposed punishment of dismissal from service may not be awarded to him. 8. It appears from record that the Deputy Inspector General of Police, Agra vide his letter dated 11.5.1987 dismissed Muneshwar Singh Rathore from service, which is impugned in the present writ petition. The appeal preferred by the delinquent employee on 8.8.87 against order of dismissal was also dismissed vide order and judgment dated 28.2.1991 by the Inspector General of Police, U.P. Lucknow. The orders impugned are assailed on the ground which have been pressed are that the order of dismissal of the delinquent employee is illegal and against the principles of natural justice because the order of dismissal of the petitioner’s husband was in violation of the principles of natural justice as Sri Muneshwar Singh Rathore was not given full reasonable opportunity of defence at any stage of the enquiry not allowing him to produce his defence witnesses even though he made a request to the Enquiry Officer for summoning them. 9. It is stated that the order of dismissal is arbitrary, mala fide, discriminatory, illegal and is liable to be quashed being bad in law also because the enquiry proceedings and order of dismissal against the provisions of Article 311(2) of the Constitution; that order of dismissal has been passed due to strained relationship between the then Chief Minister Sri Bir Bahadur Singh and the NSA detenue Sri Virendra Pratap Shahi. 10. 10. It is lastly stated that the husband of the petitioner died on account of this false case due to which the petitioner and her sons are facing irreparable loss, difficulties and the act of the husband of the petitioner cannot be said to be so grave which may warrant his termination of service. 11. Learned Standing counsel for the State of U.P. has submitted that the delinquent employee was given full opportunity of hearing into the misconduct for which charge-sheet was issued, the witnesses were produced by the department and he was also allowed to cross-examine those witnesses as is apparent from the record appended to the writ petition and that the delinquent employee was also supplied copies of the documents upon which the department relied upon in the enquiry proceedings. In so far as moving an application for summoning, the counsel for the respondent has relied upon paragraph 4 of the judgment and submits that it has been found by the Tribunal that departmental proceedings and enquiry by CID are two separate and independent proceedings; that there was no mention in the charge-sheet of departmental enquiry being based upon report of CID and in any case relevant extract of all documents were given to him. 12. The case of the department was considered by the Tribunal in paragraphs 4 and 5 of the judgment. It is reproduced below. (4) “In the counter-affidavit it has been submitted that the allegation levelled against the petitioner was that the detenue was provided such facility as should not have ordinarily been extended to him. In the CID investigation report, the petitioner stated before the CID that they had taken rest for eight hours. But he did not inform about the place where they took rest for so many hours. This fact was concealed. It is also wrong for petitioner to say that he had given any application to obtain records. It is also informed that relevant portions of all the statements of witnesses were made available to petitioner. In relation to application of petitioner on 21.3.1986, it was replied that answer would be furnished when petitioner hands it over to police. The investigation officer found that there is no need to punish constable Ulfat Khan and constable Radhakrishna. The order to dismiss from the service was given after considering all points which petitioner had submitted. In relation to application of petitioner on 21.3.1986, it was replied that answer would be furnished when petitioner hands it over to police. The investigation officer found that there is no need to punish constable Ulfat Khan and constable Radhakrishna. The order to dismiss from the service was given after considering all points which petitioner had submitted. The petition of petitioner was presented before the DGP to decide the matter at the earliest. The statement of the petitioner that action against him were taken because of political pressure is not true. It is said that the charge-sheet does not contain any detail of CID report. Therefore, there is no need for giving its copy to petitioner. Since all witnesses in the charge-sheet are not required to be produced, therefore, all these witnesses were not produced. Deputy Superintendent of Police, Rathi conducted probe on the spot and cross-examination in relation to his statement being wrong was not carried out. In the para -28, it has been submitted that it is not necessary to obtain concurrence of District Magistrate, nor was the Deputy Inspector General of Police was influenced on this basis. No detail has been given in relation to superfluous matters. The petitioner has not so far ceased to seek departmental relief. Therefore, this petition is still premature.” (5) The main charge against the petitioner is that he was escort in-charge and he was escorting detenue who was provided with some facilities which should not have been given to him under National Security Act. The detenue was deprived of some liberties under the aforesaid Act. Giving these facilities to detenue was against the rules. The statement of petitioner that two witnesses whose testimonies indirectly support his stand (the petitioner complained against them, hence they were against him) were not considered at all and he was not given the opportunity to cross-examine them. This point has been considered in the departmental process and it has been made clear that the witnesses were produced in support of the stand taken by constable Ulfat Khan and constable Radhakrishna and they had nothing to do with the stand adopted by Muneshwar Singh Rathore. This fact cannot be believed that the petitioner could not get opportunity to present his stand as he did not get any opportunity to cross-examine the witness. This fact cannot be believed that the petitioner could not get opportunity to present his stand as he did not get any opportunity to cross-examine the witness. Until it is clarified how the statements of other persons are in favour of the said petitioner, it cannot be deemed as unclear position. It has been contended that Regulation 490(9) of the Police Regulations has not been complied with at the time of investigation. There is a provision in this Regulation that in case Superintendent of Police proposes for the dismissal of In-charge from the service, then, he will have to send such proposal to Deputy Inspector General of Police for the final order through District Magistrate. In the present case, this provision has been followed strictly and proposal has been forwarded by the District Magistrate, who has concurred with the punishment. Therefore, this provision of the Regulation has been complied. In the para-28 of the petition, it is averred that it was not necessary for the District Magistrate to have concurred with the Senior Superintendent of Police and also for this fact to have been recorded. It is a matter of common knowledge that District Magistrate alone is the highest authority responsible for the maintenance of law and order. Therefore, merely forwarding the case has no importance. If District Magistrate has expressed his concurrence with the proposal, then, it has not harmed the petitioner in any manner. Ultimately final order has to be given by Deputy Inspector General of Police. The petitioner stated that he had not been given the copies of some statements whereas the opposite party said that the petitioner had seen the copies of CID report.” 13. Learned counsel for the petitioner has not been able to inform us as to how political rivalry between Sri Virendra Pratap Shahi and the then Chief Minister in any manner related to the misconduct committed by the husband of the petitioner. If he would have taken the NSA detenue directly to jail, he would not have been proceeded against in departmental enquiry. His death after a lapse of time after enquiry and dismissal from service as well as question of victimization due to political rivalry as stated above appears to have been raised to give colour to this petition. If he would have taken the NSA detenue directly to jail, he would not have been proceeded against in departmental enquiry. His death after a lapse of time after enquiry and dismissal from service as well as question of victimization due to political rivalry as stated above appears to have been raised to give colour to this petition. The husband of the petitioner had not only appeared before the CID and had given his statement there, but had also participated in the domestic enquiry. Since both the enquiries were different and report of CID was neither with the department nor was it a basis of the charges could not have been provided by the department. 14. The Tribunal has found as a matter of fact that petitioner had not moved application for being provided with CID report. Since he was a witness before the enquiry by CID, he could have moved application there for copy of the same or any other document which might be provided by the CID and in any way he had seen the report of CID as found by the Tribunal. 15. As regards departmental proceedings, suffice is to say that relevant extracts of all the documents relied by the department in the enquiry were provided to him, hence there has been neither any violation of principles of natural justice nor any prejudice is caused to the petitioner in any manner. 16. It appears from the show-cause notice dated 17.4.1987 issued by the Deputy Director General of Police, Agra Range, Agra that the husband of the petitioner was given personal hearing by directing him to appear before the authority on 1.5.1987 at 10.00 a.m. for recording of his written or oral explanation. It was also made clear in the aforesaid show-cause notice that final decision in the matter shall be taken only after consideration of his aforesaid explanation. He was also given copies of all the documents etc. which is apparent from the enquiry report dated 28.1.1987 conducted by the Deputy Superintendent of Police, Agra. He has also replied to the charge-sheet as well as he was also afforded an opportunity of personal hearing. He was also given copies of all the documents etc. which is apparent from the enquiry report dated 28.1.1987 conducted by the Deputy Superintendent of Police, Agra. He has also replied to the charge-sheet as well as he was also afforded an opportunity of personal hearing. Not only this, it is also apparent from the perusal of the record that the delinquent employee has also participated in the enquiry proceedings and cross-examined some of the witnesses of the department and did not cross-examine some of the witnesses of the department which is apparent from perusal of Annexure-3 to the writ petition. 17. The dismissal of the husband of the petitioner from service was challenged before the State Public Services Tribunal, Lucknow wherein similar points which have been raised in this writ petition were raised. The Tribunal after considering the record, fact and circumstances of the case dealt with the question of violation of principles of natural justice. 18. In so far as supply of copies of the documents etc. is concerned, the Tribunal has dealt this aspect of the matter in paragraph 2 of the judgment in the following manner. “.........The petitioner said, CID also conducted probe in this relation and petitioner had given detailed replies to CID. The petitioner submits that after that the petitioner was again placed under suspension vide Annexure-7. As per statement of petitioner, “ he had demanded for the copies of probe conducted by CID. But petitioner was not provided with the copies of witnesses’ statement. He was provided the copies of summaries of witnesses’ statement. The petitioner was informed through letter that he was suspended on the basis of report of Shri Kamlendra Prasad. He was also informed that he was suspended on the basis of CID report. It is clear from the Annexure-7 and he was not furnished with copy of this. The action against the petitioner was taken under Section 7 of Police Act and it was recommended that petitioner should be dismissed. It also proposed different quantum of punishment to other personnel of the escort. The petitioner stated that Deputy Director General of Police issued show-cause notice on 17.4.1987 for his dismissal from service. The notice is attached hereto as ‘Annexure-8’. The petitioner in response to the notice gave detailed report by the Annexure-9. It also proposed different quantum of punishment to other personnel of the escort. The petitioner stated that Deputy Director General of Police issued show-cause notice on 17.4.1987 for his dismissal from service. The notice is attached hereto as ‘Annexure-8’. The petitioner in response to the notice gave detailed report by the Annexure-9. The petitioner stated that he had been dismissed from the service without giving due regard to the replies he had submitted. The order for his dismissal was issued on 11.5.1987, which is marked as ‘Annexure-10.’ The petitioner stated that he had appealed against these allegations which is still pending that is clear from the ‘Annexures 10 and 11’. The petitioner said that he was given neither the copies of statements of witnesses nor the copy of report of CID probe. The petitioner stated that the witnesses whose presence he had prayed for, were not summoned. The petitioner was also not given the opportunity to cross-examine the witnesses. The petitioner stated that in case Senior Superintendent of Police decides to dismiss anyone, he sends file through District Magistrate. But approval of the District Magistrate is not necessary. The petitioner has also said that investigation officer took some matters into consideration which were superfluous.” 19. From perusal of the record we find that the husband of the petitioner, who died on 12.1.1995, was given full opportunity of hearing in the enquiry which was held in accordance with rules. Some witnesses have been cross-examined by the delinquent employee and some of them have not been cross-examined by him. The enquiry report cannot be said to be illegal because some witnesses were cross-examined and some of them were not cross-examined by the delinquent employee in the enquiry proceedings. The husband of the petitioner was afforded full opportunity to cross-examine those witnesses but he did not do so. Therefore, the principles of natural justice were not violated in any manner. The husband of the petitioner has been dismissed from service after proper enquiry. Learned counsel for the petitioner has neither been able to show any illegality or infirmity in the order of the State Public Services Tribunal, Lucknow nor has argued anything apart from what has been stated above. 20. For all the reasons stated above, the writ petition is dismissed. No order as to costs.