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2012 DIGILAW 253 (UTT)

Mukesh Nigam v. State of Uttarakhand

2012-06-07

TARUN AGARWALA

body2012
JUDGMENT : By means of this writ petition, the petitioner has questioned the correctness of the order dated 1st October, 2008 by which the petitioner was dismissed from service as well as the appellate order dated 12th January, 2009. The facts, leading to the filing of the writ petition is, that the petitioner was a Constable and was escorting a convict from the jail to the district court along with another constable. While on the train, the convict made an attempt to escape and jumped from the moving train. The second constable tried to catch him and in his attempt was dragged out from the train by the convict resulting in injuries to the said constable. The petitioner remained on the train watching the situation as a mute spectator and did nothing to prevent or catch the convict. Instead, the petitioner fainted and was subsequently escorted to the hospital where it was found that he was under the influence of some intoxicating substance. On dereliction of duty and consumption of intoxicant while on duty, the petitioner was charge-sheeted. The reply, having not being found satisfactory, the disciplinary authority appointed an Enquiry Officer. The Enquiry Officer issued a charge sheet and a departmental enquiry was conducted. The petitioner was given full opportunity to defend himself and eventually the Enquiry Officer submitted a report holding that the charges stood proved against the petitioner. On the basis of the charge sheet, a show cause notice was issued to which the petitioner submitted a reply. The disciplinary authority, after considering the circumstances of the case and the findings given by the Enquiry Officer and considering all other aspects, issued an order of dismissal. The petitioner, being aggrieved, filed an appeal, which was also dismissed. The petitioner thereafter has filed the present writ petition. Sri Ajay Veer Pundir, the learned counsel for the petitioner submitted that the petitioner has been persecuted and discriminated. Whereas the second constable was given a lenient punishment, namely, reduction in the minimum of pay scale, the petitioner, on the other hand, was dismissed from service and therefore there was discrimination especially when the role of both the constables was the same. The learned counsel also stressed that the punishment did not commensurate with the misconduct. Whereas the second constable was given a lenient punishment, namely, reduction in the minimum of pay scale, the petitioner, on the other hand, was dismissed from service and therefore there was discrimination especially when the role of both the constables was the same. The learned counsel also stressed that the punishment did not commensurate with the misconduct. The learned counsel further submitted that the charge sheet was not issued by the disciplinary authority but was issued by the Enquiry Officer and that non-issuance of the charge sheet by the disciplinary authority becomes fatal. It was also contended in the end that the reply given by the petitioner to the show cause notice was not considered by the disciplinary authority while passing the impugned order of dismissal and therefore the order of dismissal was violative of the principles of natural justice. In support of his contention, the learned counsel has placed reliance upon a decision in case of Constable Vijay Kumar vs. State of Uttarakhand & Ors. in Writ Petition No.576 (S/S) of 2008, decided on 27.12.2010. Having heard the learned counsel for the petitioner at some length, the Court finds that the petitioner is not entitled for any relief. In the first instance, the Court finds that the charge sheet has been issued by the Enquiry Officer, which has been issued in accordance with the Rule 14(1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal), Rules 1991 (hereinafter referred to as the Rules of 1991). The procedure for conducting the departmental enquiry has been determined in Appendix I of the Rules. Under Appendix I, Form-I indicates that the charge sheet can be issued by the Inquiring Officer for and on behalf of the disciplinary authority. In the present case, the same has been done by the Inquiring Officer on behalf of the disciplinary authority. Consequently, the charge sheet issued by the Inquiring Officer is correct and in accordance with Rule 14(1) of the Rules of 1991. The contention of the learned counsel for the petitioner in this regard is not correct. In so far as the opportunity of hearing is concerned, the Court finds that the disciplinary authority has considered the explanation, the report of the Enquiry Officer and the mitigating circumstances, which led to the escape of the convict, and came to the conclusion that the punishment of dismissal was the appropriate remedy. In so far as the opportunity of hearing is concerned, the Court finds that the disciplinary authority has considered the explanation, the report of the Enquiry Officer and the mitigating circumstances, which led to the escape of the convict, and came to the conclusion that the punishment of dismissal was the appropriate remedy. The Court does not find any error in this regard and also finds that the ample opportunity of hearing was provided to the petitioner in consonance with Article 14 and Article 311 of The Constitution of India. The contention that the petitioner has been discriminated is not correct. No doubt the second constable has been given a lesser punishment and the petitioner has been given the ultimate punishment of dismissal. The difference in the punishment lies with the action of the petitioner vis-à-vis the action conducted by the second constable with regard to the incident in question. The Court finds that when the convict made an attempt to escape and jumped from the train, the second constable tried to catch him and in that process also fell down from the train and sustained injuries. On the other hand, the petitioner remained a mute spectator and thereafter he fainted under the influence of some intoxicant, which he had consumed. The offence remains the same, namely, that the convict had escaped but the action of the two constables was totally different. It was in these circumstances that the disciplinary authority, considering the mitigating circumstances, awarded the punishment of dismissal against the petitioner. The Court does not find any discrimination in the awarding of such punishment and the question of interference by the Court, in such circumstances, does not arise. The Court is also of the opinion that an onerous task was given to the petitioner to escort the convict to the district court and, during duty hours, the petitioner had consumed some intoxicants. There has been a clear case of dereliction of duty and consequently the Court is not inclined to interfere with the order of punishment as it finds that the punishment awarded commensurated with the misconduct. The judgment cited by the learned counsel for the petitioner in my opinion has no application to the facts and circumstances of the case. In the light of the aforesaid, the writ petition fails and is dismissed.