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Allahabad High Court · body

2016 DIGILAW 2117 (ALL)

DILEEP KUMAR SINGH v. STATE OF U. P.

2016-05-31

RAJAN ROY

body2016
JUDGMENT Hon’ble Rajan Roy, J.—By means of this writ petition the petitioner who is a Sub Inspector of Civil Police in the State of Uttar Pradesh has challenged the order dated 5.2.2016 passed by the Superintendent of Police, Sultanpur transferring him from the post of Station House Officer, Police Station Kurebhar, District Sultanpur to Police lines Sultanpur. 2. The contention of the petitioner is that the impugned action amounts to punishment under Section 7(d) of Police Act, 1861 (5 of 1861) (hereinafter referred to as ‘the Act, 1861’) as the petitioner was paid Rs. 300/- per month as special emoluments on being posted as Station House Officer at Police Station Kurebhar, District Sultanpur which as a result of impugned order will no longer be admissible, consequently, it has resulted in removal of petitioner from an office of special emoluments as was held by the Supreme Court in the case of State of U.P. v. Jagdev Singh, 1984 (Supp) SCC 413. The other contention is that the action is mala fide, the factual foundation of which has allegedly been laid down by the petitioner in paragraphs 17 to 23 of the writ petition. According to him political influence had been exercised by one Shrawan Kumar Yadav @ Pintu Yadav who was a candidate for the post of Member of Zila Panchayat, Sultanpur on a ticket of ruling Samajwadi Party. During the course of voting on 9.10.2015 an incident of fighting, firing and brawl amongst his supporters and winning candidate, took place. As the petitioner declined to take the side of Sri Yadav therefore, he threatened him with transfer. Ultimately the impugned order was passed on 5.2.2016. He says that an FIR was lodged at his Police Station against Sri Yadav by the Returning Officer of the Polling both concerned. Sri Yadav is said to have lost the election, therefore, out of ill will he got the petitioner transferred. A charge-sheet had already been submitted against Sri Yadav. Earlier also under the influence of one Shakeel Ahmad the petitioner had been transferred vide order dated 15.12.1992 and on a Writ Petition No. 816 (SS) of 2013 being filed by the petitioner this Court had stayed the operation of the said order. A charge-sheet had already been submitted against Sri Yadav. Earlier also under the influence of one Shakeel Ahmad the petitioner had been transferred vide order dated 15.12.1992 and on a Writ Petition No. 816 (SS) of 2013 being filed by the petitioner this Court had stayed the operation of the said order. Learned counsel for petitioner Sri Amit Bose invited the attention of the Court to the documents annexed with the writ petition including the letter dated 4.2.2016 allegedly written by Sri Yadav to the Chief Minister. 3. Learned standing counsel on the other hand contended that an ugly incident took place while the petitioner was posted as Station House Officer during the election to the Zila Panchayat wherein supporters of warring candidates indulged in fighting and firing with fire arms. The Superintendent of Police opined that the petitioner herein who was responsible for maintenance of law and order did not take suitable and prompt action otherwise such an incident could have been avoided. The Superintendent of Police ordered a preliminary enquiry in the matter on 5.2.2016 and on that very day transferred the Officer to the police lines. He also informed that during the pendency of this writ petition he had been posted at Police Station Chanda, District Sultanpur as Sub Inspector. The transfer order had not been passed by way of punishment but on considering the exigency and administrative need. 4. As far as first contention of the learned counsel for petitioner based on the provisions contained in Section 7(d) of the Act, 1861 is concerned a bare perusal of the judgment of the Supreme Court in the case of Jagdev Singh (supra) which has been relied upon by him shows that in the said case the respondent was found negligent in the discharge of his duties, as a consequence, he was reverted from the post of Incharge of the Police Station and a misconduct entry was made in his character roll and it was because of this finding of negligence against the respondent and misconduct entry, he was transferred. Therefore, the Supreme Court in the facts of the case held that the provisions of Section 7(d) of the Act, 1861 were attracted as the respondent before it was drawing special emolument as Station House Officer by which he was deprived of way of punishment, therefore on this limited ground it affirmed the judgment of the Allahabad High Court. However, after arriving at the aforesaid conclusion in the facts of the said case, the Supreme Court observed as under : “We must make it clear that any and every transfer of a police officer from one police station to another will not amount to punishment, even if it involves the loss of a special emolument. If a police officer is transferred from one charge to another in the ordinary course of administrative exigencies, the provisions of Section 7 of the Police Act will not be attracted because a transfer simpliciter is not punishment. It is only when the transfer is made by way punishment, as in instant case, that Section 7 would come into play.” 5. The Superintendent of Police alongwith other officers of the district administration is responsible for maintenance of law and order in the district. He with the approval of the Police Establishment Board is competent to transfer all police personnel. Such posting and transfer is to be undertaken with the sole objective of providing an efficient police administration capable of maintaining the law and order situation in the District. Transfer is permissible in public interest and for administrative reason. Transfer in public interest includes a transfer considering the exigency of administration. The petitioner herein was posted as Station House Officer at Police Station Kurebhar, District Sultanpur. It is not in dispute that an incident took place during his posting when the elections to the Zila Panchayat were in process involving supporters of different candidates who indulged in fighting and firing with fire arms. He as Station House Officer was responsible for maintenance of law and order in his area specially during elections. 6. The original records reveal a letter of Superintendent of Police dated 5.2.2016 addressed to the Additional Superintendent of Police ordering a preliminary enquiry into the incident and referring to the lack of prompt and suitable action by the petitioner in respect thereof and also the observation that had he acted promptly with diligence the incident would not have taken place. The original records reveal a letter of Superintendent of Police dated 5.2.2016 addressed to the Additional Superintendent of Police ordering a preliminary enquiry into the incident and referring to the lack of prompt and suitable action by the petitioner in respect thereof and also the observation that had he acted promptly with diligence the incident would not have taken place. These observations were made in the context of ordering of preliminary enquiry. By a separate order of the same date the petitioner was transferred to Police lines in public interest and Government interest. However, this by itself does not persuade the Court to draw an inference that the transfer order passed on the same day i.e. 5.2.2016, was by way of punishment. The Superintendent of Police considering the needs of the situation and exigency of administration ordered his transfer from the post of Station House Officer. To say that first of all the Superintendent of Police should have got a preliminary enquiry conducted followed by regular enquiry as per Regulation 490 of Chapter XXXIII of the Police Regulations and thereafter the petitioner should have been removed from the said post, as, such removal attracted the provisions of Section 7(d) of the Act, 1860 is not acceptable. To further say that since he did not do so, therefore, the action based on such incident and the opinion of the Superintendent of Police in this regard, was penal is also unacceptable. If such an approach is adopted in the facts of the present case it would be detrimental not only to the needs of local administration in the District but also to the public interest implicit therein and it would not be possible to transfer a Station House Officer even if the situation demands his immediate transfer. Such an approach would be quite impractical as law and order situations require immediate action by the District Police Administration. 7. In the instant case it is not, as If, after holding preliminary enquiry/regular enquiry the petitioner had been inflicted with a punishment and based thereon he has been transferred. Ordering of preliminary enquiry and transfer of the petitioner though simultaneous are separate actions. 7. In the instant case it is not, as If, after holding preliminary enquiry/regular enquiry the petitioner had been inflicted with a punishment and based thereon he has been transferred. Ordering of preliminary enquiry and transfer of the petitioner though simultaneous are separate actions. Considering the facts of the present case the Court is of the view that transfer of petitioner was ordered to meet the administrative exigencies whereas a preliminary enquiry was ordered for the purposes of ascertaining as to whether any regular enquiry for imposing punishment upon the petitioner is required or not. While transfer, being an incidence of service has been ordered in public interest by an action simplicitor, the order for preliminary inquiry was passed separately for the aforesaid purpose. No punishment has yet been imposed upon the petitioner. In fact, as per the opposite parties the petitioner had not cooperated in the preliminary inquiry and only recently got his statement recorded, therefore, the preliminary inquiry report is still awaited. 8. Reference may be made in this regard to the judgment of the Supreme Court in the case of State of Haryana and others v. Kashmir Singh and another, (2010) 13 SCC 306 . In paragraphs 12 and 14 their Lordships while reiterating the legal position with regard to the scope of interference in matters of transfer by the Court observed that “In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation”. It went on to observe that “these are purely administrative matters, and it is well-settled that Courts must not ordinarily interfere in administrative matters and should maintain judicial restraint.” In paragraph 14 it went on to observe that “In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police.” 9. Reference may also be made in this regard to the judgment of the Supreme Court in the case of State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 , wherein their Lordships observed that “A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned.” The district authorities are best placed to assess the situation and needs of local administration and having done so the Superintendent of Police has taken a decision which in view of this Court does not require any interference in exercise of its extra-ordinary discretionary jurisdiction under Article 226 of the Constitution. 10. Though the petitioner herein alleged mala fide against one of the candidates Sri Yadav but he has not impleaded the said person as an opposite party. Instead he has impleaded the then Superintendent of Police by name and two other persons namely Sri Shiv Kumar Singh and Smt Usha Singh. In paragraphs 17 to 23 the allegations of mala fide are in respect of Sri Shrawan Kumar Yadav @ Pintu but he is not a party to these proceedings. The legal position is very well-settled that allegations of personal mala fide cannot be considered unless a person against whom the said allegations are levelled is a party to the writ petition. One need not cite any authority on this issue as the legal position in this regard is very well-settled. Annexure No. 6 to the writ petition is a letter allegedly written by Sri Shrawan Kumar Yadava (Pintu Yadav) to the Chief Minister. It is not known from where the petitioner got this letter. He has not disclosed the source. There is nothing on record to indicate that based on any such letter, assuming it has been written any action had been taken resulting in transfer of the petitioner. The plea of mala fides is thus not established. 11. As far as mala fide against the opposite parties 4 to 6 is concerned, the burden was upon the petitioner to establish the same which he has failed to discharge. 12. The plea of mala fides is thus not established. 11. As far as mala fide against the opposite parties 4 to 6 is concerned, the burden was upon the petitioner to establish the same which he has failed to discharge. 12. The original records have been produced which do not indicate any such political influence having been exercised although this Court finds the manner in which the original record is being maintained by the opposite parties leaves much to be desired but this aspect shall be considered hereinafter. The facts of the case and material on record do not persuade the Court to draw any opinion of mala fide against the opposite parties. 13. Before parting, there is another aspect of the matter which needs to be discussed. The original records of the office of the Superintendent of Police were produced before the Court on 17.5.2016. The said records did not contain any pagination nor any note sheet so as to indicate the movement of file, the process of decision making, views/comments of the officer to whom the file was sent nor the reason which ultimately prevailed in taking the final decision. The records consist of loose papers. Noticing the aforesaid this Court on 17.5.2016 asked the standing counsel to seek instructions from Superintendent of Police as to whether there is any other file relating to transfer of the petitioner, if so, the same be produced on the next date of listing. On 18.5.2016 certain other files were also produced alongwith original file which had been produced on the earlier date. They contained indexing and pagination. However, none of the files contained any note sheet. In the absence of a note sheet the Court is absolutely at sea as to how the file moved and under what circumstances the orders contained therein were passed as also the reasons which prevailed in the taking of final decision as has already been observed hereinabove. Not only for the Courts even for higher authorities also it is big problem in administrative matters. This is not certainly not how the files are maintained. This is an aspect which needs the attention of the Principle Secretary Home and Director General of Police. Not only for the Courts even for higher authorities also it is big problem in administrative matters. This is not certainly not how the files are maintained. This is an aspect which needs the attention of the Principle Secretary Home and Director General of Police. The Court also takes note of the fact that one of the original files produced before the Court is that of the Police Establishment Board at district level which approves the transfer and posting of police personnel, in the light of the judgment of the Supreme Court in the case Prakash Singh, even the said file does not contain any note sheet and this Court has reasons to believe that pagination and indexing has been done only after observations was made by the Court vide its order dated 17.5.2016. This is the state of affairs relating to maintenance of such files. 14. It is, therefore, directed that the aforesaid officers shall look into the matter and issue necessary Government order/circulars, as the case may be, for proper maintenance of files in the office of the Superintendent of Police and other offices as well, in Districts in the State of U.P. in keeping with the rules and norms followed in other departments of the Gswovernment. 15. Let this be done within a period of two months from the date of receipt of a certified copy of this order. 16. For the reasons mentioned in the earlier part of the judgment the writ petition is dismissed.