SHIV SAGAR DWIVEDI Vs. STATE OF U P

JUDGEMENT

(1.) By means of the present writ petition, has approached this Court for issuing a writ of certiorari quashing the order of termination dated 16.6.1992 passed by the Senior Superintendent of Police, respondent No. 2 (Annexure 4 to the writ petition) and the appellate order dated 2.4.1993 (Annexure 7 to the writ petition) passed by respondent No. 3 and issue a writ of mandamus directing the respondents to reinstate the petitoner with retrospective effect and give all consequential benefits.

(2.) The fact arising out of the present writ petition are that the petitioner entered into police service as Constable on 1.1.1978 and since then performing his duties with utmost sincerity and to the entire satisfaction of his superior authorities. In the year 1989, while the petitioner was posted at Fatehpur, his service was dismissed by order dated 1.7.1989 on the ground of misconduct, as it has been alleged that the petitioner has misbehaved with R.I. Sri Shyam Bir Singh on 6.4.1989. Against the order 1.7.1989 the petitoner has filed a Writ Petition before this Court as Writ Petition No. 19745 of 1989 and this Court vide order dated 11.12.1989 was pleased to stay the operation of the order dated 1.7.1989. That while the petitioner was posted at Kanpur at Phoolganj Police Chouki, P.S. Pilkhana, the petitioner was suspended by the Senior Superintendent of Police, Kanpur Nagar vide order dated 8.8.1990 on false charges. Against the order of suspension the petitioner filed another Writ petition No. 30524 of 1990 and this Court was pleased to stay the said order of suspension vide order dated 20.11.1990. The petitioner received a charge sheet dated 22.6.1991 with regard to the incident, which has taken place on 6.4.1989 while the petitioner was posted at Fatehpur. A copy of the charge sheet has been filed as Annexure 2 to the writ petition. The petitioner submitted a reply to the charge sheet on 10th July, 1991. Thereafter the petitioner could not receive any information from the side of the Enquiry Officer. In fact no enquiry proceedings were conducted nor the petitioner was given opportunity to appear in the alleged proceedings. Even the petitioner has not been given an opportunity to cross-examine the witnesses alleged to have been produced on behalf of the department, nor he was allowed to produce his witness. However, the Enquiry Officer submitted an ex-parte report on 2.12.1991. A copy of the enquiry report has been filed as Annexure 3 to the writ petition. On the basis of the aforesaid enquiry report, the petitioner was dismissed from service by order dated 16.6.1992. A copy of the order of dismissal has been filed as Annexure 4 to the writ petition. Aggrieved by the order passed by the disciplinary authority, the petitioner filed an appeal under Rule 20 of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 before the Deputy Inspector General of Police, Kanpur Range, Kanpur. The petitoner submits that the petitioner sent various reminders to the authority concerned for deciding the appeal of the petitioner but the petitioner's appeal was not decided and thereafter the petitioner filed a writ petition before this Court and this Court had passed an order directing the respondents to decide the appeal of the petitioner by order dated 16.2.1993. The appeal of the petitioner had been decided by the respondent No. 3 vide order dated 2.4.1993. A copy of the same has been filed as Annexure 7 to the writ petition.

(3.) It has been submitted on behalf of the petitoner that the order dated 2.4.1993 is ex-facie bad, illegal, arbitrary and without jurisdiction. Rule 4 of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991, deals with the punishment and dismissal from service comes under the major penalty. Rule 8 provides that no police officer shall be dismissed except after proper enquiry and disciplinary proceedings as contemplated by these rules. Rule 14 of the Rules 1991 deals with procedure for conducting departmental proceedings, which lays down that the departmental proceedings in the cases referred under Rule (1) of Rule 5 may be conducted in accordance with the procedure laid down in Appendix-1. The further contention of the petitioner is that Para 478 of the Police Regulation deals with the punishment of dismissal or removal from the force is a major punishment. It provides that punishment may be awarded only after departmental proceeding. In the present case mandatory provisions of law not been complied with. The petitoner has not been given an opportunity to defend his case and on the basis of the ex-parte enquiry the decision has been taken and the petitioner has been dismissed from service on the basis of irrelevant considerations of false charge sheet. The petitioner has not been given an opportunity to cross-examine Shyam Bir Singh with whom it has been alleged that the petitioner had misbehaved. The order of dismissal and the appellate orders are contrary to the principle of natural justice and it is also contrary to U.P. Police Regulations of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. The charge, which has been levelled against the petitoner is of 1989, which alleges that when the petitioner was posted at district Fatehpur in 1989, he had damaged the government fan, which was placed at Barrack No. 3 on 6.4.1989 and the said act of the petitioner is loss to the government property and has also misbehaved with the officer. The further allegation against the petitioner is that when on the day of inspection i.e. 7.4.1989, he was standing below to the damaged fan in the same barrack only to show the broken fan for the purposes of making complaint to the Inspector concerned. The petitioner submits that the charges levelled against the petitioner has not been proved, as such, the services of the petitioner cannot be terminated. It has further been submitted that the witnesses, who has been examined has not supported the case of the petitioner. The statements of Angad Singh and Shyam Bir Singh do not support the case of the respondents that the petitioner has broken the said fan. The statement of Sri Shyam Bir Singh Company Commander, under whom the petitioner was working on the day of the incident has stated that the petitioner has misbehaved but he has not made any complaint to any authority regarding the misconduct of the petitioner, clearly goes to show that the petitioner has falsely been implicated. The statement to this effect that there is a reason to believe that the fan has been damaged or broken by the petitioner cannot be treated to be misconduct and only on this basis the services of the petitioner cannot be dispensed with. The finding of the Enquiry Officer to this effect that the charges levelled against the petitioner has been proved beyond any doubt and such type of indisciplined person should not be retained in service is based on no evidence.