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2017 DIGILAW 319 (ALL)

RAM JANAM YADAV v. STATE OF U. P.

2017-01-24

DEVENDRA KUMAR ARORA

body2017
JUDGMENT Hon’ble Dr. Devendra Kumar Arora, J.—Heard Mr. Shikhar Anand, learned Counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner has approached this Court under Article 226 of the Constitution of India inter alia challenging the order of dismissal dated 15.12.2006 passed by the Deputy Inspector General of Police, Faizabad Range, Faizabad. 3. Shorn off unnecessary details, the facts of the case are as under : 4. Sri Ram Janam Yadav-petitioner, while working as Sub-Inspector in Civil Police, was transferred from P.S. Jai Singhpur to P.S. Kotwali Amethi, District Sultanpur by the Superintendent of Police, Sultanpur vide order dated 21.3.2002. In pursuance of the transfer order dated 21.3.2002, the petitioner recorded his departure for joining at the transferred place after entering his departure in General Diary No. 21 at 14:30 hours dated 24.3.2002 at Police Station Jai Singhpur, Sultanpur, but the petitioner did not join at the transferred place i.e. P.S. Kotwali Amethi, District Sultanpur and absented himself from duty without any sanctioned leave or permission. During the period of his absence from duty, the Inspector General of Police, Lucknow Zone, Lucknow, passed an order dated 6.5.2002 for transferring him from Sultanpur to Sitapur. 5. According to the petitioner, the transfer order dated 6.5.2002 has not been communicated to the petitioner. In the meantime, the petitioner applied for his voluntary retirement by means of application dated 1.8.2002 addressed to DIG, Faizabad Range, Faizabad, stating therein that on account of ill-health, he is not desirous to serve the police department any more, therefore, he may be permitted to retire voluntarily w.e.f. 30.11.2002 upon expiry of three months period from the date of application for voluntary retirement. During the pendency of the aforesaid application for voluntary retirement, vide order dated 9.6.2004, the Superintendent of Police, Sultanpur relieved the petitioner for transfer from Sultanpur to Sitapur in pursuance of the transfer order dated 6.5.2002 passed by the Inspector General of Police, Lucknow Zone, Lucknow. 6. On account of unauthorized absence for a period of 811 days i.e. w.e.f. 24.3.2002 to 9.6.20004, a preliminary inquiry was conducted on 13.4.2004 and the Circle Officer, Lambhua was appointed as Inquiry Officer. The Inquiry Officer submitted its report dated 20.7.2004 and the charges against the petitioner were found to be correct. 6. On account of unauthorized absence for a period of 811 days i.e. w.e.f. 24.3.2002 to 9.6.20004, a preliminary inquiry was conducted on 13.4.2004 and the Circle Officer, Lambhua was appointed as Inquiry Officer. The Inquiry Officer submitted its report dated 20.7.2004 and the charges against the petitioner were found to be correct. On receipt of the preliminary inquiry report, a charge-sheet dated 24.7.2004 under Rule 14 (1) of U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991 was issued against the petitioner. The Inquiry Officer after following due procedure of law, submitted its inquiry report dated 27.5.2005. On receipt of inquiry report, the Deputy Inspector General of Police, Faizabad Range, Faizabad/competent authority issued a show-cause notice dated 31.8.2005 to the petitioner but the petitioner refused to receive the same and as such the same was pasted at the residence of the petitioner on 17.11.2005 in presence of witnesses. To the reasons best known to the petitioner, the petitioner tendered reply to the said show-cause notice on 19.11.2006 i.e. after one year wherein he had stated that he had already submitted an application dated 1.8.2002 for seeking voluntary retirement on the ground of ill-health and distress and as such he stood voluntarily retired w.e.f. 30.11.2002. The application for voluntary retirement alleged to be made by the petitioner was traced in the office but the same was not found on the record and as such the Deputy Inspector General of Police, Faizabad Range, Faizabad concluded the disciplinary proceedings by passing the order of dismissal. 7. It would be relevant to point out that the aforesaid show-cause notice dated 31.8.2005 issued by the Dy. Inspector General of Police, Faizabad Range, Faizabad as also the inquiry report dated 27.5.2005 submitted by the Circle Officer, Lambhua, Sultanpur, was assailed by the petitioner in Writ Petition No. 9152 (SS) of 2006. In the said writ petition, the assertion of the petitioner that he had already offered for his voluntary retirement on 1.8.2002 to be effective w.e.f. 1.12.2002 and as the petitioner was never communicated about non-acceptance of his offer, he will be deemed to have retire w.e.f. 1.12.2002. Therefore, the entire disciplinary proceedings initiated against him are erroneous and illegal. The said plea as raised by the petitioner was not accepted and the writ petition was dismissed vide judgment and order dated 3.11.2006. 8. Therefore, the entire disciplinary proceedings initiated against him are erroneous and illegal. The said plea as raised by the petitioner was not accepted and the writ petition was dismissed vide judgment and order dated 3.11.2006. 8. Feeling aggrieved by the aforesaid judgment and order dated 3.11.2006, petitioner preferred a Special Appeal No. 45 of 2007, which was dismissed as infructous in view of the petitioner having already been dismissed from service. In these circumstances, the Division Bench provided that it would be open to the petitioner to approach the appropriate forum as may be available in law against the order of dismissal. 9. In the backdrop of the aforesaid facts, the petitioner has preferred the instant writ petition assailing the order of dismissal dated 15.12.2006 primarily on the ground that the petitioner stood retired with effect from 1.12.2002, the departmental proceedings conducted against him ex parte from 13.4.2004 were completely illegal and arbitrary. 10. Thus the main controversy hinges as to whether the petitioner had ever moved any application for voluntary retirement dated 1.8.2002 to the competent authority or not. It is the definite stand of the respondents all along that neither any application for voluntary retirement is available in the office of opposite party No. 2 nor the said application has ever been received in the office of opposite party No. 2. Moreover, no record pertaining to the petitioner’s ailment is also available in the office. The averments so made by the respondents in reply as also in the Supplementary-affidavit dated 5.1.2017 have not been rebutted by the petitioner in any manner. 11. In the said affidavit it has also been stated that Special Secretary to the Hon’ble Chief Minister through FAX Message No. 202374/CM-2-2004 dated 22.7.2004 directed the Deputy Inspector General of Police, Faizabad Range to dispose of the service matter of the petitioner. In furtherance of the FAX message dated 22.7.2004, the opposite party No. 2 constituted a committee for taking decision in the matter. The Committee so constituted after going through the records came to the conclusion that the request of voluntary retirement of the petitioner is not liable to be accepted as in respect of the unauthorized absence, disciplinary proceedings had already been initiated and further Crime Case No. 50/94 under Section 323/504/506/304 IPC [under heinous offences] was pending before the Trial Court. The Committee so constituted after going through the records came to the conclusion that the request of voluntary retirement of the petitioner is not liable to be accepted as in respect of the unauthorized absence, disciplinary proceedings had already been initiated and further Crime Case No. 50/94 under Section 323/504/506/304 IPC [under heinous offences] was pending before the Trial Court. The Committee further opined that since the inquiry against the petitioner for unauthorized absence was under process and as such the salary for the period of absence between 24.3.2002 to 10.6.2004 shall be subject to final out come of the disciplinary proceedings under Rule 14(1) of the U.P. Police Officer of Subordinate Ranks (Punishment & Appeal) Rules, 1991 instituted on 24.7.2004. 12. In my considered opinion, the answer to the question whether the petitioner stood voluntary retired from service before the order of dismissal was passed by the State Government will depend mainly on the precise language of Clauses (c) and (d) of FR 56 and the provisos thereto, which are quoted hereinbelow: “(c) Notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty-five years. (d) The period of such notice shall be three months: Provided that- (i) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement; (ii) it shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice: Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted: Provided also that the notice once given by a Government servant under Clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority”. (emphasis supplied) 13. A reading of clause (c) of FR 56 quoted above would show that when a Government servant attains the age of 45 years, the appointing authority as well as the Government servant have the option to initiate voluntary retirement and when the Government servant chooses to initiate his voluntary retirement, he has to serve a notice to the appointing authority. Clause (d) of FR 56 further provides that the period of such notice shall be three months. 14. There are, however, two provisos to Clause (d): proviso (i) and proviso (ii). These are not relevant for deciding this case. Clause (d) of FR 56 further provides that the period of such notice shall be three months. 14. There are, however, two provisos to Clause (d): proviso (i) and proviso (ii). These are not relevant for deciding this case. What is relevant is the proviso after proviso (i) and (ii) to Clause (d), which states that notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be “effective only if it is accepted by the appointing authority.” In this proviso, however, it is clarified that in the case of a “contemplated disciplinary proceeding” the Government servant shall be informed before the expiry of his notice period that it has not been accepted. 15. In the facts of the present case, the preliminary inquiry for unauthorized absence of the petitioner was instituted on 13.4.2004 and thereafter charge-sheet dated 24.7.2004 was issued against the petitioner. The petitioner has alleged that he had given an application for voluntary retirement on 1.8.2002 but no such application, as averred above, was found on the record of opposite party No. 2. Moreover, the petitioner has failed to establish by any document to establish the fact of giving application for voluntary retirement. On the contrary, the appointing authority being not satisfied with the reply dated 19.11.2006 of the petitioner to the show-cause notice, passed the impugned order of dismissal dated 15.12.2006. Therefore, the assertion and pleas as raised by the petitioner cannot be accepted. 16. It may be pointed out that decision rendered in the case of Dr (Smt.) Sudha Singh v. State of U.P. and others, 2013(8) ADJ 580 (DB)(LB) is of no help to the petitioner as the facts of the said case are quite distinct from the case of the instant case. In Sudha Singh’s case [supra] the employee, after lapse of statutory period of three months, under Fundamental Rule 56 of Financial Handbook, relinquished her office and informed the authorities concerned. The stand of the respondents/State was that a disciplinary proceeding is pending against the petitioner, hence no decision could have been taken under FR 56 of Financial Hand Book with regard to petitioner’s voluntary retirement. The disciplinary proceedings culminated in punishment of Dr Sudha Singh with stoppage of two annual increments temporarily for a period of two years. The U.P. Public Service Commission granted its approval vide its letter dated 26.7.2010. The disciplinary proceedings culminated in punishment of Dr Sudha Singh with stoppage of two annual increments temporarily for a period of two years. The U.P. Public Service Commission granted its approval vide its letter dated 26.7.2010. However, the State Government vide office memo dated 3.5.2010, dismissed the petitioner’s service without disciplinary inquiry in view of the power conferred under Article 311(2)(3) of the Constitution. In the instant case, the order of dismissal was passed after full-fledged inquiry and reply tendered by the petitioner to the show-cause notice issued by the appointing authority. 17. For the reasons aforesaid, I do not find any infirmity in the impugned order of dismissal dated 15.12.2006 and the petitioner is not entitled for the reliefs as claimed by him. It may be added that acquittal of the petitioner in the criminal case under Section 323/504/506/304 IPC would not alter the position or affect the result of the disciplinary proceedings which were independent proceedings and were initiated for unauthorized absence for more than eight hundred days. 18. Before parting, I would like to observe that the order of dismissal was passed on 15.12.2006. Surprisingly, the petitioner remained idle for considerable long time as the Stamp Reporter at the time of filing of the writ petition has made an endorsement that there is delay of four years and two months. No explanation has been offered by the petitioner in the writ petition for filing the writ petition with such long inordinate delay. The said fact reflects the non-seriousness of the petitioner towards his responsibilities and duties. 19. For the reasons aforesaid writ petition lacks merit and is hereby dismissed. Costs easy.