Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 615 (ALL)

DHARMENDRA SINGH v. STATE OF U. P.

2016-02-22

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT By the Court.—The appellant was posted as Assistant Sub Inspector in the office of the Senior Superintendent of Police, Ghaziabad. A disciplinary enquiry was held against the appellant on the ground that he had contracted a marriage during the subsistence of a previous marriage. An order of dismissal was passed against the appellant on 14 September 2006 which was confirmed in appeal on 10 January 2007 and in revision on 29 December 2011. These proceedings had been initiated against the appellant under the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (Rules). The appellant filed a claim petition before the State Public Services Tribunal (Tribunal). The Tribunal by its judgment dated 22 September 2014 held that the departmental proceedings had not been conducted in accordance with the Rules, since the appellant had not been furnished with relevant documentary material. Consequently, the order of the Tribunal set aside the order of termination as well as the appellate and revisional orders. However, the Tribunal came to the conclusion that it was not necessary to reinstate the appellant. The State was directed to initiate a fresh enquiry from the stage of serving a charge-sheet after furnishing to the appellant all relevant documentary evidence relied upon in support thereof. 2. The appellant filed a writ petition before this Court, Writ-A No. 49180 of 2015, in which his grievance was that once the Tribunal had held that the disciplinary proceeding was vitiated on the ground of a defect, the proper course of action was to remit the matter back for a fresh enquiry from the stage from where the defect was found and, in the meantime, to place the employee under suspension. In this regard, the appellant relied upon a judgment of the Supreme Court in Union of India v. Y.S. Sadhu, Ex-Inspector, (2008) 12 SCC 30 , which, in turn, followed the judgment of a Constitution Bench in Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727 . The learned Single Judge disposed of the writ petition by directing that since the appellant had made a representation, it may be considered expeditiously within six weeks. Following this direction, the Deputy Inspector General of Police passed an order on 29 November 2015 rejecting the representation. The learned Single Judge disposed of the writ petition by directing that since the appellant had made a representation, it may be considered expeditiously within six weeks. Following this direction, the Deputy Inspector General of Police passed an order on 29 November 2015 rejecting the representation. The order rejecting the representation holds that since the Tribunal had specifically not granted the relief of reinstatement to the appellant, there was no occasion for the State to do so. 3. The appellant filed a writ petition (Writ-A No. 69731 of 2015) in order to challenge the order dated 29 November 2015 and sought a direction to the effect that he should be placed under suspension and be paid subsistence allowance. The writ petition was dismissed by the learned Single Judge by an order dated 5 January 2016 on the ground that the order of the Tribunal was not challenged before the High Court and the Tribunal had issued a direction not to reinstate the appellant, which is still subsisting. The appellant, aggrieved by the judgment of the learned Single Judge dated 5 January 2016, is in special appeal. 4. At this stage, it may also be noted that the appellant filed another writ petition (Writ-A No. 2223 of 2016) seeking to challenge the order of the Tribunal by which he had been denied reinstatement. A Division Bench of this Court by a judgment dated 25 January 2016 dismissed the writ petition on the ground that the remedy against the order of the Tribunal was available when the appellant filed the first writ petition (Writ-A No 69731 of 2015) which was dismissed on 5 January 2016. 5. The narration of facts above would indicate that the Tribunal in its judgment dated 22 September 2014 set aside the order of termination dated 14 September 2006 as well as the appellate and revisional orders dated 10 January 2007 and 29 December 2011. The Tribunal was of the view that while a fresh enquiry should be held against the appellant from the stage of serving the charge-sheet, it was not necessary to reinstate the appellant in service. 6. For the purposes of the present proceedings, we would proceed on the basis that the order of the Tribunal continues to subsist and holds the field. 6. For the purposes of the present proceedings, we would proceed on the basis that the order of the Tribunal continues to subsist and holds the field. The learned Single Judge in the impugned order proceeded on that basis and also noted that the order of the Tribunal had not been challenged. When the order of the Tribunal was challenged by the appellant, the writ petition met the fate of dismissal on 25 January 2016 on the ground that such a challenge ought to have been addressed in the earlier writ petition. 7. Be that as it may, the Court, for the purposes of the present special appeal must, in consequence, proceed on the basis that the order of the Tribunal holds the field. The Tribunal has directed that during the pendency of the disciplinary proceedings, the appellant would not have to be reinstated. The Tribunal having set aside the order of termination, the natural consequence would be that the relationship of master and servant stands restored. However, in the facts and circumstances of the case, the Tribunal was of the view that reinstatement was not necessary. That still leaves the question open as to what, in the circumstances, would be the status of the appellant in relation to the State as the employer. If the appellant is not to be reinstated after the order of termination stands set aside, the status of the appellant cannot be left in the limbo, particularly having due regard to the fact that the disciplinary enquiry is required to continue in accordance with law and has to be brought to its logical conclusion. If the appellant is not to be reinstated after the order of termination stands set aside, the status of the appellant cannot be left in the limbo, particularly having due regard to the fact that the disciplinary enquiry is required to continue in accordance with law and has to be brought to its logical conclusion. In this context, it would be necessary to advert to the provisions of Rule 17 (4) of the Rules which provides as follows: “(4) Where a penalty of dismissal or removal from service imposed upon a police officer is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the appointing authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form, are clarified or their particulars better specified or any part there of a minor nature - (a) if he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, be deemed to have continued in force on and from the date of the original order of dismissal or removal; (b) if he was not under suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension on and from the date of the original order of dismissal or removal.” 8. The appellant was not under suspension initially when the disciplinary proceedings were held and until the order of termination was passed. Since the penalty of dismissal has been set aside in consequence of or by a decision of a Court of law, Rule 17 (4) (b) contemplates that the employee, if he was not under suspension, shall, if so directed by the appointing authority, be deemed to have been placed under suspension on and from the date of the original order of dismissal or removal. In these circumstances, the only appropriate course of action would be to direct that the appellant would, with effect from the date of the original order of dismissal dated 14 September 2006, be placed under suspension. The appellant cannot be granted full reinstatement in service as a result of the order of Tribunal. In these circumstances, the only appropriate course of action would be to direct that the appellant would, with effect from the date of the original order of dismissal dated 14 September 2006, be placed under suspension. The appellant cannot be granted full reinstatement in service as a result of the order of Tribunal. However, the order of the Tribunal equally does not stipulate that the appellant will not be placed under suspension. In a situation where the original order of dismissal has been set aside and the enquiry is to continue, the correct course of action is to take recourse to the provisions of Rule 17 (4) (b) by directing that the appellant be placed under suspension from the date of the original order of dismissal. The competent authority shall now take necessary action in accordance with law, consistent with the aforesaid directions. The appellant would be entitled to his subsistence allowance accordingly. 9. The order of the learned Single Judge dated 5 January 2016 is accordingly set aside. The special appeal shall be governed by the aforesaid directions. 10. The special appeal is accordingly disposed of. There shall be no order as to costs. ———————