Court No. - 18
Case :- WRIT - A No. - 28673 of 2015
Petitioner :- Chandra Shekhar
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Sanjay Kumar,Vijay Gautam
Counsel for Respondent :- C.S.C.
Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Vinod Kumar Mishra, Advocate holding brief of Sri Vijay Gautam, learned counsel for the petitioner and learned Standing Counsel for the State functionaries.
This writ petition has been filed by the petitioner assailing the orders dated 20.02.2015, 20.11.2014 and 10.07.2014 passed by respondent nos. 2, 3 and 4, whereby petitioner has been dismissed from service and the statutory appeal and revision has also been dismissed.
It is contended by learned counsel for petitioner that petitioner was appointed as a constable on 11.01.2011. While discharging duty, petitioner was assigned duty of a gunner security with one local MLA. During his duty with the concerned MLA, petitioner was asked to do certain work which was not within the purview of his official duty.
According to petitioner, a conspiracy was hatched against him and a FIR was lodged as Case Crime No. 34 of 2014, under Sections 392 I.P.C. at P.S. Iglas, District- Aligarh and Case Crime No. 8 of 2014, under Sections 395, 397, 412 I.P.C., P.S. Chhata, District- Mathura.
It appears that on the basis of the said two First Information Reports, proceedings under National Security Act was also undertaken against petitioner which was challenged by him and the same was set aside by State Government for want of evidence.
On the basis of the two criminal cases lodged against petitioner, S.S.P. Agra put the petitioner under suspension on 30.01.2014. From the perusal of the counter affidavit, it appears that Circle Officer had submitted a preliminary enquiry report, acting on the said report, S.S.P. Agara dismissed the petitioner from service in view of Rule 8(2)(b) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991, without affording any opportunity of hearing or issuing any show-cause notice to the petitioner.
Aggrieved by the said order, statutory appeal and revision was also preferred by petitioner and the same were rejected by respondent nos. 2 and 3.
At the very outset, learned counsel for petitioner invited the attention of the Court to the judgment passed in case of Ram Bahori vs. State of U.P. and others passed in Writ Petition No. 2934 of 2014, wherein this Court held as under:
"Heard learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.
Present petition has been filed challenging the order dated 14.7.2004, whereby the petitioner, who was working as Constable, was terminated from service in exercise of powers under Rule 8 (2) (b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the the Rules), which provides that where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry can dismiss or remove a person from service. It is not in dispute that in exercising powers under this clause the services of the petitioner was terminated without conducting any departmental enquiry. The impugned order was upheld in appeal, which was filed by the petitioner.
Learned counsel for the petitioner has placed reliance on a judgment of this Court passed in Writ Petition No. 24638 of 2008 (Omprakash Kanaujiya, Constable 61, AP Vs. State of U.P. and others) dated 21.8.2015 to contend that the aforesaid issue is squarely covered by that judgment and the impugned order is liable to be set aside and it is not in dispute that no departmental enquiry was conducted.
Learned Standing Counsel has raised a preliminary objection that the petitioner has an alternative remedy to file revision under Rule 23 of the aforesaid Rules. He further submitted that in any case the power is vested under the competent authority and that has been diligently applied in the present case. He, however, could not dispute the aforesaid legal position that all such aspects have been considered in the abovenoted judgment and could not dispute the proposition of law as considered in the aforesaid case. I have considered the rival submissions and have perused the record.
Operative portion of the aforesaid judgment is quoted as under:-
"I find force in the submissions of the learned counsel for the petitioner.
In view of the aforesaid legal position the impugned order dated 2nd May, 2008 passed by the respondent no. 5, the Superintendent of Police, Shahjahanpur, district Shahjahanpur is hereby quashed. The disciplinary authority is directed to initiate departmental proceedings against the petitioner within six weeks, which shall be concluded within a further period of three months.
Learned counsel for the petitioner submits that the petitioner is entitled for all consequential benefits.
The facts in the present case are that the petitioner alongwith another person has allowed to escape an accused person and the Hon'ble Division Bench in Yadunath Singh (supra) has not granted any such relief to the petitioner, as such, it is provided that payment of backwages and other consequential benefits shall be subject to outcome of the disciplinary proceedings.
This writ petition stands allowed to the extent indicated as above. There shall be no order as to costs."
In such view of the matter, in the light of the judgment made in Omprakash (supra) the impugned order dated 14.7.2004 (Annexure-1 to the writ petition) is not legally sustainable and is hereby quashed. The disciplinary authority is directed to initiate departmental enquiry against the petitioner within six weeks from the date of communication of this order and shall make all efforts to conclude the enquiry within a further period of three months provided the petitioner cooperates in the enquiry proceedings. Any other consequential benefit shall be subject to outcome of the disciplinary proceedings as provided in the aforesaid judgment.
Present petition stands allowed to the extent as indicated above."
Learned counsel has also placed reliance upon decision in Writ-A No. 39127 of 2014 (Rakesh Kumar vs. State of U.P. and three others). In case of Gopal Ji Dwivedi vs. State of U.P. passed in Civil Misc. Writ Petition No. 21217 of 2010, this Court after considering the issue on depth held hereasunder:
"At the point of time when authority has chosen to exercise and invoke extraordinary power conferred upon him under Rule 8 (2)(b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 then he has to record satisfaction that it is not reasonably practicable possible to hold inquiry. Rule 8 (2)(b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 requires recording of reason in writing that it is not reasonably practicable possible to hold inquiry and this recording of reason certainly has to be before passing the order of dismissal and not after the authority stood exercised. In the present case as power under Rule 8 (2)(b) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 has been exercised, by mentioning that it is not reasonably practicable possible to hold inquiry, but there is no material on record to substantiate the same as nothing has been brought on record to show and substantiate that attempt and endeavour has been made to summon the victim and the witness and contact victim and the witnesses but same failed, consequently order of dismissal is liable to to set aside."
However, learned Standing Counsel could not dispute the aforesaid legal position. Keeping in view of the fact that disciplinary authority failed to record any satisfaction as contemplated in Rule 8(2)(b) the order passed by respondent nos. 2, 3 and 4 are unsustainable and are, hereby, quashed and set aside.
However, passing of this order will not prevent the respondents from proceeding to exercise and invoke the authority vested under U.P. Police Officers of Subordinate Ranks (Punishment and Appeal), Rules 1991 in accordance with law.
With the above observation, the present petition stands allowed.
Order Date :- 19.12.2019 V.S.Singh