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2016 DIGILAW 2893 (ALL)

Bani Singh v. State of U. P.

2016-08-22

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya, J. 1. By means of this writ petition the petitioner has challenged the order of dismissal, after inquiry, dated 5.9.2009 and appellate order dated 14.2.2010 by which the appeal of the petitioner has been dismissed as well as revisional order dated 21.2.2011, by which the revision of the petitioner has also been dismissed. 2. A disciplinary proceeding was drawn against the petitioner pursuant to his unauthorized absence from service. The petitioner had taken three days casual leave on 14.6.2008 and was to report back for duty on 17.6.2008 which he did not and during this period the allegation was that the petitioner fired at his wife and son on 16.6.2008 and a criminal case was registered being Case Crime No. 362/2008 under Sections 307 and 326 of I.P.C. The petitioner was served with a show cause notice after preliminary inquiry on 31.5.2009. After considering the explanation submitted by the petitioner, which was not found favourable by the authorities, he was dismissed from service on 5.9.2009 against which the petitioner filed an appeal which was dismissed, then the petitioner filed a revision which was also dismissed. Hence this writ petition. 3. In the show cause notice dated 31.5.2009, after preliminary inquiry, the petitioner has been charged as to why he should not be dismissed from service for being unauthorizedly absent after 16.6.2008 and using his licensed revolver shot and injured his wife and son on 16.6.2008. The petitioner submitted his explanation stating therein that pursuant to the incident dated 16.6.2008 the petitioner has been acquitted in Sessions Trial No. 391/2008 under Sections 307, 326 I.P.C. by judgment and verdict dated 5.2.2009 in which it has categorically been held that in the said incident it could not be proved by the prosecution that petitioner fired from his licensed arm. The statement of the wife and son of the petitioner was also recorded which had categorically denied that the petitioner fired at them. The statement of the wife and son of the petitioner was also recorded which had categorically denied that the petitioner fired at them. However, in the disciplinary proceeding the statement of wife and son was recorded and it was stated that in order to save her marriage and upon the petitioner apologizing to them as well as after intervention of the elders and seniors of the village, the wife and son did not give the correct statement so that the petitioner cannot be arrested and the wife have a healthy matrimonial life ahead, but after acquittal the petitioner has returned back to his old ways and keeps threatening them with his licensed arm of dire consequences. The authorities seems to have been swayed by the fact with regard to the statement of wife and son which was contrary to the statement made before the court of law, which was open to cross-examination etc. and also on affidavit. 4. So far as the incident of unauthorized absence is concerned, it is to be noted that the petitioner did apply for leave from 14.6.2008 to 17.6.2008 and the charge is that on 16.6.2008 and thereafter the petitioner did not join the duty whereas the own case of the departmental authorities was that the petitioner was arrested on 16.6.2008. It is further to be noted that a clear cut stand taken by the petitioner in the appeal was that the petitioner is being punished by the department exactly on the same charge for which he has already been acquitted by the court of law and, therefore, relying upon the decision in the case of Kundan Lal Vs. Delhi Administration and others reported in 1976 (1) SLR 133 the petitioner cannot be put into the disciplinary test on the same charges. The entire departmental proceeding has been proceeded with upon the statement of the wife and the son with regard to the incident that occurred on 16.6.2008 whereas the trial was done with regard to the same incident in criminal court where the statement of the wife and son was contrary to what has been made before the authorities and the petitioner was acquitted from the charges. Therefore, it does appear that the finding arrived at in departmental proceeding is perverse and contrary to the finding given by the trial court. Therefore, it does appear that the finding arrived at in departmental proceeding is perverse and contrary to the finding given by the trial court. Since the petitioner has already been acquitted from the charges by a court of competent jurisdiction and his arm license which was cancelled upon lodging of the F.I.R. has also now been restored by order dated 31.7.2009, it would not be justified for the department to punish the petitioner for the same charges upon which he has been acquitted by a court of law in a trial. 5. On the other hand learned Standing Counsel Shri H.C. Pathak has relied upon a decision of the Hon'ble Supreme Court in the case of Union of India and others Vs. P. Gunasekaran reported in AIR 2015 SC 545 wherein it has categorically been held that the High Court should normally not interfere in the finding of fact unless it is perverse and further the High Court cannot go into the reliability and adequacy of evidence unless the punishment given does not shock the conscience of the court. Shri Pathak submits that the finding recorded by the disciplinary authority, by no stretch of imagination, can be said to be perverse finding and this Court should refrain from interfering with the disciplinary proceeding of the department. 6. I have considered the submissions of Shri Pathak. 7. Considering the facts and circumstances of the case, the aforesaid judgment is not applicable in the facts of the present case as the finding recorded by the disciplinary authority does appear to be perverse in view of the finding recorded by the trial court with regard to the statement of the wife and the son of the petitioner, whereas before the trial court the statement was that the petitioner did not fire at them by his licensed revolver, but in the disciplinary proceeding the Inquiry Officer has solely relied upon the statement of wife and son which is contrary to what was stated before a court of law with regard to the same incident. Therefore, the finding relying upon the statement of wife and son by the disciplinary authority does appear to be perverse. 8. Considering the aforesaid facts and circumstances, the dismissal order dated 5.9.2009, appellate order dated 14.2.2010 and revisonal order dated 21.2.2011 cannot be sustained and are hereby quashed. 9. The writ petition is allowed.