SANT KUMAR UPADHYAY Vs. STATE OF U P

JUDGEMENT

(1.) R. B. Misra, J. Heard Sri Shailendra, learned Counsel for the petitioner and Sri S. S. Sharma, learned Standing Counsel for the State. In this writ petition the prayer has been made to quash the order dated 21-5-1998 and again order dated 28-11-1998 and the enquiry report enclosed as (Annexure Nos. 9, 11 and 6) respectively. It appears that the petitioner was initially appointed as constable in Provincial Arms Constabulary in 15 Batallian P. A. C. , Agra on 1-1-1986. The petitioner was alleged to have stolen identity card, driving licence and diary of one drawer Amar Singh. Within one day inquiry was completed and petitioner dismissed from service. The petitioner preferred an appeal against the dismissal order which was allowed by D. I. G. P. A. C. , Agra dated 30-6-1996 (Annexure-1 ). Fresh charge-sheet was issued on 27-12- 1996 against the petitioner in reference to incident of 22-1-1996 and in reference to the allegations prior to 22-1-1996 in which enquiry was already been pending and one Kunwar Pal Singh, Assistant Commandant, 45 Bn. PAC, Aligarh, was the enquiry and the statement of Mitra Prakash Tiwari and Ravindra Yadav both constables and Amar Singh whose diary etc. were alleged to have been stolen were recorded. It appears that in all the statements were some contradiction and there is no direct evidence where it could be said that the petitioner has stolen the alleged items. The Enquiry Officer Sri Kunwar Pal Singh was submitted the report on 23-4-1998 (Annexure-6 ). In reference to the show-cause notice the petitioner was allowed 8 days time to give a response. The petitioner on 16-5-1998 wrote a letter seeking some more time on the ground his son is not well letter request is enclosed as (Annexure-8 ). Petitioner was not granted time an ex-parte decision dated 21-5-1998 was taken which is the impugned order of the present writ petition. The petitioner preferred an appeal before the Dy. Inspector General of Police who after considering the same dismissed on 22-7-1998 (Annexure-10) and appeal preferred against the above order 21-5-1998 before the D. I. G. Police which was dismissed on 28-11-1998 which is also an impugned order in the writ petition.

(2.) THE counter and rejoinder-affidavit have been exchanged.

(3.) IN 2001 (2) LBESR 269 (SC) : 2001 (2) AWC 983, Sahdev Singh v. U. P. Public Service Tribunal, Lucknow and others. This Court Hon'ble M. Katju and Onkareshwar Bhatt, JJ. decided on 19th February, 2001 the Writ Petition No. 1722/99 where the petitioner a confirmed Police Constable hand consumed liquor in the night, was charge-sheeted and after inquiry was dismissed from service. His appeal was rejected and his claim petition before U. P. Public Service Tribunal was also dismissed. IN writ petition this Court has observed that before the Tribunal neither the petitioner has said anything in his defence nor produce any witness but prayed for forgiveness and assured that he will not commit such act again in future. IN these circumstances, this Court had indicated that a lenient view should be taken against the petitioner and for awarding some lesser punishment taking view the sense of Shakespeares Merchant of venice, justice should be tempered with mercy. IN these circumstances the Court has found the punishment of dismissal is too harsh and set aside the order of dismissal and directed the petitioner to be reinstated in service with 25% of the backwages from the date of the dismissal to the date of reinstatement.