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Allahabad High Court · body

2019 DIGILAW 1663 (ALL)

Sumit Kumar v. State of U. P.

2019-07-10

SUNITA AGARWAL

body2019
JUDGMENT : 1. The petitioner herein is aggrieved by the order of the dismissal of his service and the orders passed by the appellate and revisional authority for rejection of appeal and revision. 2. The petitioner has been dismissed from the post of Constable in U.P. Police during the period of probation by the order dated 31.05.2012 invoking powers under Rule 20(3) of the U.P. Civil Police Constable and Head Constable Service Rules, 2008 without conducting any disciplinary enquiry. 3. The allegations in the dismissal order are that one Gopal had committed rape of a girl inside the police outpost-Lalpur, Police Station Kotwali, Budaun while both were kept in the lock-up. A first information under Section 376, 347, 323, 120B, 109/34 IPC and 7/13 Prevention of Corruption Act was lodged by the victim naming the petitioner as one of the complicit. The allegations was that the rape was committed by Gopal while petitioner was sitting outside. 4. Vide order dated 28.05.2012, the petitioner was placed under suspension by the Senior Superintendent of Police, Budaun. A preliminary enquiry was conducted on the said allegations and based on the said enquiry, the petitioner was dismissed from service during the probation period, without any notice or opportunity of hearing. 5. It is contended that the appellate authority and revisional authority did not consider the plea taken by the petitioner that the dismissal order was passed in violation of the principles of natural justice. 6. Further, the submission of learned counsel for the petitioner is that the allegation of rape in the first information report are false. The petitioner had been acquitted in the criminal case which was the sole basis of termination from service and it is a clean acquittal. Copy of the acquittal order has been placed before the Court by the learned counsel for the petitioner to point out that the victim herself had admitted before the Court that she gave a false statement under Section 164 Cr.P.C. under the pressure of the local leaders and police. A notice was, thereafter, issued to the victim under Section 344 Cr.P.C. for giving false evidence before the Magistrate. 7. Submission is that after acquittal, the petitioner had approached the respondent for reinstatement but there has been no consideration at all. A notice was, thereafter, issued to the victim under Section 344 Cr.P.C. for giving false evidence before the Magistrate. 7. Submission is that after acquittal, the petitioner had approached the respondent for reinstatement but there has been no consideration at all. Alongwith the supplementary counter affidavit filed on behalf of the respondent no.4, it has been admitted that no Government appeal had been filed against the order of acquittal. 8. It is, thus, contended by learned counsel for the petitioner that the sole basis of order of dismissal of the petitioner itself obliterates. The dismissal during probation period on the allegations of abetting rape of a girl inside the police outpost while being on duty, cast stigma upon the petitioner. 9. There is no other allegations of non performance of duty or dereliction in duty on the part of the petitioner. 10. The learned Standing Counsel submits that the disciplinary authority was well within its jurisdiction to dispense with the service of the petitioner during probation period, in as much as, the work and conduct of the petitioner was not satisfactory. No regular enquiry was required for dismissal under Rule 20(3) of the Rules, 2008. Even otherwise the respondent no.3 had been granted opportunity of hearing to the petitioner in view of the directions issued by this Court in the judgement and order dated 10.05.2013 passed in Writ Petition No.26462 of 2013, filed by the petitioner, before the dismissal of his appeal vide order dated 30.07.2013. Even otherwise, the dismissal order preceded with the preliminary enquiry wherein explanation offered by the petitioner was considered. 11. In the said and circumstances brought before the Court, relevant is to note that the allegations of abetting rape of a girl in the lock up, basis of the dismissal order, were found false in the criminal trial. The Court after appreciation of the evidence found that the allegation of rape of the victim was not proved as there was no evidence. Further, in her statement before the Court, she denied rape having been committed on her rather stated that in her statement recorded under Section 164 Cr.P.C. on 28.05.2012, she made allegations of rape under the pressure and coercion of some local leaders and police. Having recorded the said conduct of the victim, she was put to notice under Section 344 Cr.P.C. for making false statement before the Magistrate. 12. Having recorded the said conduct of the victim, she was put to notice under Section 344 Cr.P.C. for making false statement before the Magistrate. 12. The complicity of the petitioner in abetting act of rape, therefore, is not proved. The basis of dismissal, therefore, itself goes. There was no departmental enquiry. The result being the dismissal order and orders of rejection of appeal and revision cannot be allowed to stand. 13. While setting aside the orders impugned dated 31.05.2012, 30.07.2013 & 30.06.2014 passed by respondent nos.4, 3, & 2, it is provided that the petitioner shall be reinstated with immediate effect on probation to the post of Constable and be allowed to work as such. The period of probation of the petitioner can be extended for sometime, within the discretion of the disciplinary authority so as to assess his working before confirmation on the post in question. 14. It is further provided that the petitioner would be entitled to salary for the period of working and no salary from the date of termination till the date of reinstatement shall be admissible to the petitioner. 15. Subject to the above observations and directions, the writ petition is allowed.