ANIL KUMAR YADAV Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned Counsel for the petitioner and the Standing Counsel appearing for the respondents. Put it briefly, the essential facts are that the petitioner was posted as Sub Inspector at PS Gomti Nagar, Lucknow, at the relevant time. On 5.6.2005, a dispute arose between one Ramesh and Ram Nachhatra and his relative Anil Kumar relating to land recorded at Khasra No. 113 situated at village Khargapur, PS Gomti Nagar, Lucknow. One Sanjeev Sonkar was badly beaten by R.Nachchatra, Anil Kumar and certain other persons. An FIR of the incident was lodged by one Ramesh and a case on crime no. under 447/323/442/504/506 IPC was registered at PS Gomti Nagar against Anil Kumar, Ram Nachchhtra, Girish Chandra Joshi, Ashok Awasthi and certain police personnel. The investigation of the said case, which was registered as crime no. 297 of 2005, was entrusted to the petitioner. During the course of investigation, all the accused persons were arrested by the petitioner and they were sent to jail by the competent Court. From the record it emerges out that another FIR dated 15.6.2006 was lodged at PS Gomti Nagar by one Bal Govind Singh, a builder against Girish Chand Joshi and his two sons in respect of an incident said to have took place on 15.6.2005. It may be pointed out that one of the accused named in this incident, was main accused in case crime No. 297 of 2005. On 24.6.2005, accused Ram Nachhatra, after being released on bail, made a complaint to the Director General of Police and Inspector General of Police. Later on, the investigation of Case Crime No. 297 of 2005 and 311 of 2005 was transferred to Anti- Corruption Department. The Anti-Corruption Department was also required to investigate the alleged behaviour of SHO, Gomti Nagar and the petitioner. The Anti-Corruption Department, after investigation, recommended that final report be filed in both the cases. Surprisingly, the Anti-Corruption Department also recommended for withholding of integrity of the petitioner and for initiating disciplinary proceedings. Consequently, on the basis of the recommendation of the Anti-Corruption Department, a charge sheet dated 13.7.2006 was served upon the petitioner and the disciplinary proceedings under Section 14 (1) of the Service Rules were initiated. During the pendency of the writ petition, an order dated 6.10.2006 was passed, withholding the integrity of the petitioner. Thereafter, an other punishment order dated 22.8.2007 was passed by the Senior Superintendent of Police, Lucknow. Both these orders have been assailed by the petitioner on the ground that the order dated 6.10.2006 was passed with a pre-determined mind as was recommended by the Anti-Corruption Department. The Senior Superintendent of Police did not apply its own independent mind. The order dated 22.8.2007, awarding punishment of fine equivalent to ten days salary was passed in respect of the same charges for which he was already punished. Learned counsel for the petitioner has contended that while transferring the investigation to the Anti- Corruption Department, there was no occasion to investigate the behaviour of the SHO, Gomti Nagar and the petitioner. The said direction was nonest and beyond the power and objectives of the Anti- Corruption Department. Further, there was also no occasion for the Anti-Corruption Department to suggest the punishment to be awarded and for initiation of disciplinary proceedings. The proper course available to the Anti-Corruption Department was to record finding with regards to the behaviour of S.O. and the petitioner and thus, the authorities of the Anti-Corruption Department travelled beyond their jurisdiction. According to him, the entire disciplinary proceedings were nothing but a sham as the authorities have already made up their mind to punish the petitioner. Counsel for the petitioner next submitted that recommendation of the final report and initiation of the disciplinary proceedings against the petitioner were mala fide and ulterior motives, which would be established from the fact that accused Ram Nachhatra, who is in police force, works with the Additional Director General, CBCID. The department of CBCID and Anti-Corruption are situated in one and the same building. In paragraph-26 of the writ petition, it has been averred that Superintendent of Police, Anti- Corruption is easily susceptible to the pressure of the Additional Director of CBCID. Had there been a fair investigation, there was no occasion to recommend submission of final report when the informant of case crime No. 297 of 2005, namely, Ramesh received injuries on his body and was medically examined at District Hospital, Balrampur. Lastly, it has been contended that the impugned order dated 22.8.2007 has been passed in utter disregard of the principle of natural justice apart from being barred by the principle of double jeopardy. In support of his aforesaid submission, counsel for the petitioner has placed reliance upon para-4 of the report rendered by the Apex Court in the case of Lt. Governor, Delhi and others Versus HC Narinder Singh [(2004) 13 SCC 342]. On behalf of the respondents, it has been argued by the Standing Counsel that the punishment orders have been passed by the Senior Superintendent of Police, Lucknow, who is the competent authority and the Anti Corruption, department had only recommended for withholding of integrity. Further, the Anti- Corruption department had recommended for departmental proceedings under section 14(1) of the U.P. Subordinate Police Officers (Punishment and Appeal) Rules, 1991. It has also been stated that the petitioner did not comply the order of higher authorities and continued the investigation though the same was transferred to the Anti-corruption Department. Thus, the act and omissions of the petitioner were against the service conditions and as such, the punishment order has rightly been passed. From the perusal of the record, it comes out that the Senior Superintendent of Police, Lucknow wrote to the Station Officer, Gomti Nagar on 26.8.2005 requiring him to stop the investigation of the aforesaid case and to transmit the record to the Anti-corruption Department. An endorsement dated 30.8.2005 has been made by the Station Officer to the petitioner. The petitioner on the same letter made the endorsement on 1.9.2005. Thus, the order transferring the investigation came to the knowledge of the petitioner only on 1.9.2005. Therefore, it is incorrect to say that the petitioner continued with the investigation even thereafter. In the counter-affidavit, there is no averment that the order transferring the investigation was brought to the knowledge of the petitioner before 1.9.2005 and he did not obey the orders of the higher authorities. Had the petitioner continued the investigation after 1.9.2005, the things would have been different. The respondents have failed to show any document to prove that the petitioner continued with the investigation after 1.9.2005. It is an undisputed fact that the Anti-corruption Department recommended for withholding the integrity of the petitioner and the order to this effect was passed by the Senior Superintendent of Police on 20.6.2006. In the order dated 20.6.2006, it is mentioned that the petitioner continued with the investigation even after transfer of the investigation to the Anti-corruption Department. There is no specific date on which the order was served upon the petitioner and upto what date he continued with the investigation. There must be concrete evidence to hold one guilty of the charge levelled against him. It may be added that the authorities should be fair just and proper without being influenced by the vested interest. The petitioner has asserted that he was punished because of the influence exerted by Ram Nachhatra, who is a Driver of Director General CBCID. In the short counter affidavit filed on behalf of opposite party No.2, it has been admitted that Ram Nachhatra is a Driver and he had orally requested the DIG, CBCID for fair investigation. Later on, DG, CBCID wrote a letter to IG, Lucknow Zone in this context. Therefore, it appears that there was something fishy in the matter and the correct facts have not been ascertained. Counsel for the petitioner has vehemently argued that the punishment which was suggested by the Anti-corruption Department was enforced and the enquiry proceeding initiated under Rule 42 was nothing but an eyewash and was conducted with a pre-determined mind just to harm the petitioner. I am satisfied with the submission made by the learned Counsel for the petitioner that the authorities had already decided to punish the petitioner and the issuance of show-cause notice was mere formality. In the case of K.I. Sephered Vs.Union of India, 1987(4) SCC 431 which has been relied by the petitioner in support of his contention that the authorities have taken decision before passing of the impugned order, the Hon'ble Supreme Court has held that once a decision has been taken, there is a tendency to uphold it and representation may not yield any fruitful purpose. Fundamental requirement of law is that the doctrine of natural justice should be complied with and has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. Observance of natural justice and due opportunity has been held to be an essential ingredient in disciplinary proceedings. Counsel for the petitioner has asserted that the disciplinary proceedings initiated under Rule 14 (2) had concluded at the back of the petitioner and while issuing show cause notice, the copy of the inquiry report was never furnished to the petitioner. In the counter affidavit to the amendment application or any other affidavit, respondents has not indicated that the copy of the inquiry report was supplied to the petitioner before passing the punishment order. Thus, it is established that the punishment order was passed in violation of the principles of natural justice. In para-30-B of the affidavit filed in support of the application for amendment, the petitioner has mentioned that the departmental proceedings were merely a formality and the authorities proceeded with a pre-determined mind to punish the petitioner. There is no specific denial of the allegation in the reply filed by the respondents and only this much has been said that the order has been passed on the basis of the material and in this respect, Senior Superintendent of Police, Lucknow can give proper reply. No better affidavit has been filed by the respondents, indicating the supply of the enquiry report and due observance of the principles of natural justice by the disciplinary authority. As regard the passing of two punishment orders in respect of the same charge, it may be mentioned that by the order dated 6.10.2006, the petitioner's integrity was withheld. By another order dated 20.8.2007, the petitioner has been inflicted with a punishment of fine equivalent to ten days' salary. It is settled law that a delinquent cannot be punished twice for the same set of charges. In Lt. Governor Delhi and others (supra) on which emphasis has also been laid by the counsel for the petitioner, the Apex Court held in paragraph 4 of the report as under:- "Reading of the show-cause notice suggests as if it is in continuation of the departmental proceedings. Lack of devotion to duty is mentioned as the reason for the proposed action which was the subject- matter of the earlier proceedings as well. The second proposed action based on the same cause of action proposing to deny promotion or reversion is contemplated under the impugned show-cause notice. Second penalty based on the same cause of action would amount to double jeopardy. The Tribunal was, therefore, right in law in annulling such an action. We are not expressing any opinion on the ambit or scope of any rule." The aforesaid decision is applicable in the present case and the Senior Superintendent of Police, Lucknow committed an error in awarding two punishments for the same charges, which undoubtedly is not permissible under law. In view of the above detailed discussions, the writ petition is allowed. The orders dated 6.10.2006 and 20.8.2007 passed by the Senior Superintendent of Police, Lucknow, contained in Annexure 6 and 7, respectively, to the writ petition, are hereby quashed. The Senior Superintendent of Police shall pass necessary order for certifying the integrity. However, it will be open for the competent authority to take fresh steps, strictly in accordance with law, if he so desires. 13.5.2009 HM/lakshman Hon'ble Rajiv Sharma, J. HEARD. Cause shown in the affidavit in support of the recall application is sufficient. It appears that due to mistake, order of some other writ petition has been transcribed and as such, the order dated 6.4.2009 is hereby recalled. The application is allowed. The correct order shall be transcribed. 15.5.2009 HM/lakshman/- c.m.appl.no.40219 (w) of 2009 in re: w.p.no. 6108 (SS) of 2006 Hon'ble Rajiv Sharma, J. The writ petition is restored to its original number vide my order of date passed on C.M. Application No. 40219 (w) of 2009. 15.5.2009 HM/lakshman The writ petition is allowed vide my order of date passed on separate sheets.