Court No. - 6
RESERVED ON 07.09.2021 DELIVERED ON 07.10.2021
1. Case :- WRIT - A No. - 13845 of 2020 Petitioner :- Kaushal Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sanjay Maurya, Manish Kumar Pandey Counsel for Respondent :- C.S.C.
2. Case :- WRIT - A No. - 14058 of 2020 Petitioner :- Rajesh Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Manish Kumar Pandey,Sanjay Maurya Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and Sri Jitendra Kumar Singh, learned Standing Counsel for the State-respondents.
These two cases being similar in nature in respect of the facts, the charge-sheets, the defence, the enquiry reports and the orders are being decided by means of the present common judgement.
The facts in Writ-A No. 13845 of 2020 (Kaushal vs. State of U.P. and 4 others) are as under:
The present writ petition has been filed alleging that the petitioner was appointed as a Constable on 12.1.2011 and was transferred subsequently to various places. It is alleged that an enquiry was made with regard to allotment of government quarters to certain constables when it was discovered that certain constables were unauhorisedly residing in the government quarters at Agra. Based upon which an FIR was lodged on 13.2.2019 by the R.I. against the petitioner which was registered as Case Crime No.
0051 of 2019. In the said FIR, it was alleged against the petitioner that the petitioner had created forged and fabricated documents of allotment of House No. B-5, House No. A-159 and House No. C-21, on which the forged signatures of Senior Superintendent of Police have been made and based upon the forged allotment orders, three persons were residing. It was alleged that the petitioner had done the said forgery and in pursuance thereof the case was registered against the petitioner.
In view of the FIR against the petitioner, the respondent no. 4 directed holding of a preliminary enquiry to be held by Additional superintendent of Police (Protocol), Agra, who, in turn, submitted a report dated 04.04.2019 (Annexure No. 3 to this writ petition). In the said enquiry, he considered the allotment order made in favour of Kaptan Singh, Vijay Kumar, Pravesh Kumar Sharma and Ashish Kumar. He further considered the house allotment register, and found the petitioner to be prima facie guilty of allegation levelled against him.
In pursuance of the said preliminary enquiry, the petitioner was placed under suspension vide order dated 04.04.2019 during which he was entitled to subsistence allowance. The petitioner was also arrested in the Case Crime No. 0051 of 2019 under sections 420, 467, 468 and 471 IPC, Police Station Rakabganj, District Agra, however, he was released on bail on 01.6.2019. The suspension order passed against the petitioner was revoked on 09.09.2019 and the petitioner continued to work thereafter.
Based upon the preliminary enquiry dated 04.04.2019, departmental proceedings were initiated against the petitioner under U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules 1991 (hereinafter called as ‘the Rules 1991’) and the petitioner was served with a charge sheet on 29.6.2019 calling upon the petitioner to submit his explanation (Annexure No. 6 to the writ petition). In the charge-sheet, only one charge was levelled against the petitioner to the effect that when the applicant was posted as in the office of Circle Officer Lines Agra, he forged signatures of SSP and by inscribing the letter no. created forged and fabricated house allotment orders for which an FIR has also been lodged as Case Crime No. 0051 of 2019 under sections 420, 467, 468 and 471 IPC, Police Station Rakabganj, District Agra. It was alleged that the said act has portrayed the police in poor light and the acts were gross acts of indiscipline. In the said charge-sheet, as many as nine witnesses were mentioned, who were to depose orally against the petitioner for driving home charges against the petitioner. The petitioner submitted his reply to the said charges on 17.7.2019 denying the charge levelled against him and pleaded that the acts, alleged against the petitioner, had not been committed by him and further pleaded that the departmental enquiry cannot continue in view of the pendency of the criminal prosecution as they both relate to the same allegations. The petitioner participated in the enquiry and also cross examined the witnesses.
The Enquiry Officer submitted his enquiry report on 14.1.2020 finding the petitioner guilty of the charges levelled in the charge sheet. Based upon the said enquiry report, the disciplinary authority called upon the petitioner to give his reply as to why he may not be dismissed from service in exercise of powers under section 4(1)(ka)(i) of the 1991 Rules, the petitioner submitted his reply to the said show cause notice and requested that the proceedings may be dropped, however, the disciplinary authority, vide order dated 30.6.2020, passed an order dismissing the services of the petitioner under Section 7 of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 (Annexure 13 to the writ petition). The petitioner preferred an appeal against the said order before the Inspector General of Police, Agra Region, Agra (respondent no. 3) under Section 20 of 1991 Rules taking various grounds, however, the said appeal was dismissed vide order dated 19.8.2020.
Aggrieved against the appellate order dated 19.8.2020, the petitioner preferred a revision before the Additional Director General of Police, Agra Zone, Agra (respondent no. 2) under section 23 of 1991 Rules which too was dismissed vide order dated 30.9.2020. The said three orders are under challenge in the present writ petition.
(Facts of Rajesh Kumar in Writ-A No. 14058 of 2020) The petitioner was appointed as a Constable and was transferred to District Agra in the year 2011. On 18.2.2019, an FIR was lodged against the petitioner in Case Crime No. 0058 of 2019, Police Station Rakabganj, District Agra under sections 420, 467, 468 and 471 IPC with the allegation that while posted in the office of C.O. Kotwali, Agra handed over an allotment of House No. A- 246 on 10.1.2019 and demanded Rs. 20,000/- and when the informant denied the payment of the amount as demanded, the informant was directed to vacate the house and not to inform anyone. The FIR is marked as Annexure-4 to the writ petition. In the complaint filed by the complainant, the house allotment order dated 10.1.2019 was also submitted by the claimant while lodging the FIR (Annexure-5 to the writ petition).
In view of the said FIR, a preliminary enquiry was got conducted by the Additional Superintendent of Police, who submitted a report on 04.04.2019 and in terms of the said report, the petitioner was placed under suspension vide order dated 04.04.2019, it was recorded in the suspension order that the petitioner would be entitled for subsistence allowance. In a writ petition filed by him being Writ Petition No. 13643 of 2019, this court stayed the arrest of the petitioner.
Based upon the preliminary enquiry report, departmental proceedings were initiated against the petitioner under the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules 1991 and charge sheet was served upon the petitioner on 26.6.2019 (Annexure-9 to the writ petition). In the charge-sheet the only charge against the petitioner was that by scanning the signature of SSP Agra and inscribing the letter no. the allotment orders were issued to police officers in respect of whereof an FIR has been registered against the petitioner as Case Crime No. 0058 of 2019 under sections 420, 467, 468, 471 IPC and, on account of the said conduct, the police has been portraited in bad light in the society and the said act reflected the indiscipline against the petitioner. In the charge-sheet, to support the charges levelled five persons were mentioned as oral witnesses to establish the charge, the petitioner was called upon to file his reply. No allotment order was relied upon in the charge sheet.
The petitioner submitted his reply to the charge- sheet on 12.7.2019 (Annexure 10 to the writ petition) denying all the charges and requested for dropping the departmental proceedings. In pursuance of the said reply, the Enquiry Officer conducted the enquiry and submitted his report on 14.1.2020 (Annexure 12 to the writ petition). It is stated that the disciplinary authority without supplying a copy of the enquiry report concluded that the petitioner was guilty in terms of the enquiry report proceeded to issue a show cause notice dated 26.1.2020 calling upon the petitioner to show cause as to why he may not be dismissed from services under section 4(1) (a) (i) of the Rules of 1991. The petitioner submitted his reply which resulted in passing of the order dated 30.6.2020 dismissing the services of the petitioner under Rule 7 of the Rules 1991 (Annexure 15 to the writ petition).
The petitioner preferred an appeal under section 20 of the Rules against the dismissal order dated 30.6.2020 which too was dismissed on 19.8.2010 against which the petitioner preferred a revision under Rule 23 of the Rules which too was dismissed vide order dated 10.10.2020.
The petitioner argues that the preliminary enquiry is arbitrary and illegal as petitioner was undergoing treatment at the hospital at Farrukhabad where he was posted and despite sending medical reports, the enquiry was concluded ex-parte against the petitioner.
Counsel for the petitioner argues that the orders passed against both the petitioners are wholly arbitrary and illegal on the following grounds:
(1) The petitioners were not paid the subsistence allowance for the period of their suspension and thus the petitioners could not defend themselves. He argues that non-payment of subsistence allowance has rendered the entire disciplinary action bad in law and places reliance upon the judgement of the Supreme Court in the case of O.P. Gupta vs. Union of India and others, (1987) 4 SCC 328 as followed in the case of Capt. M. Paul Anthony vs. Bharat Goldmines Ltd. and another, 1999 (3) SCC 679.
(2) He argues that the charge-sheets as supplied to the petitioners were totally vague not even containing any allegations as to whom the allegedly forged and fabricated house allotment order was served.
(3) He argues that the alleged forged and fabricated allotment orders have never seen the light of day and were not even part of the documents mentioned in the charge-sheets in which only reliance was placed on oral evidence.
He thus submits that no alleged forged and fabricated house allotment orders had ever seen the light of the day, the entire disciplinary proceedings are liable to be quashed. In this regard, he places reliance upon the judgement of the Supreme Court in the case of State of U.P. and others. vs. Saroj Kumar Sinha, 2010 (2) SCC 772 and the judgement of the Hon’ble Supreme Court in the case of Moni Shankar vs. Union of India, 2008 (3) SCC 484.
(4) He argues that the petitioners were never in- charge of house allotment in the office of Circle Officer Line, Agra.
(5) He argues that the disciplinary proceedings and the criminal proceedings based upon the same charge cannot go simultaneously in the light of the judgement of Supreme Court in the case of Capt.
M. Paul Anthony (supra).
(6) He argues in case of Kaushal that even in the decision making process, from the deposition and the cross-examination, nothing can be established against the petitioner as alleged. He further argues that the Enquiry Officer has only relied upon the preliminary enquiry report instead of recording any finding of his own.
With regard to case of the Rajesh Kumar, he argues that the enquiry was concluded ex-parte ignoring the medical certificates submitted by the petitioner showing his inability to appear on account of his ill health.
(7) He argues that the punishment of dismissal is disproportionate to the offence alleged.
(8) Lastly, he argues that prior to issuance of show cause notice for imposing the penalty, the disciplinary authority should have supplied the enquiry report to the petitioner before coming to the conclusion that the charges framed against the petitioner have been proved which was not done. He places reliance upon the judgement of the Supreme Court in the case of Managing Director, ECIL Hyderablad vs. B. Karunakar, 1993 (4) SCC 727 Counsel for the petitioner has also placed reliance upon the judgement of the Supreme Court in the case of State of Rajasthan & others vs. Heem Singh, Civil Appeal No. 3340 of 2020 (arising out of SLP (C) No. 30763 of 2019), decided on 29.10.2020 to argue that the law with regard to judicial review is well settled.
The law laid down in the case of State of Rajasthan & others vs. Heem Singh (supra) summarises the law with regard to judicial review. It is well settled that the judicial review has to be confined to decision making process, infractions of law and the appreciation of evidence only to the extent that the same is perverse and the conclusions drawn from the said evidence are perverse and of such a nature that no reasonable person can draw the inference that has been drawn by the Enquiry Officer.
Needless to say that the judicial review is also available for judging the order on the touchstone of Article 14 of the Constitution of India.
In the present case, the FIR was lodged alleging that the petitioner (kaushal) had supplied forged allotment orders to the employees in respect of house nos. which were forged and did not bear the signatures of Senior Superintendent of Police, Agra.
A perusal of the FIR reveals that the allegation was with regard to the forgery of a document. In the charge- sheet as given to the petitioner (Annexure-6 to the writ petition) only one charge was levelled with regard to committing of forgery of an allotment order. In case of Kaushal, reliance was proposed to be placed upon ten oral testimonies and, in that context, the enquiry proceeded against the petitioner. Copy of the alleged forged allotment order in respect of the houses was neither made a part of the evidence relied upon nor was admittedly filed during the course of proceedings. In case of Rajesh, five oral witnesses were proposed to be relied upon. Copy of the house allotment order was not even relied upon despite the same being available.
During the course of the enquiry, the Enquiry Officer concluded that in view of the evidence it was established that the copy of the orders and also the applications for allotment of house by the three beneficiaries of allotment were not available in the records. During the course of enquiry, after receiving the defence, the main evidence against the petitioner Kaushal was that of Komal Singh of Police Station Loha Mandi, District Agra, who stated that the petitioner had taken a copy of the register on the pretext that the same has to be used for comparing. In the cross-examination, the said witness stated that he had handed over the copy of the register by hand.
The next major evidence against the petitioner Kaushal was that of Vijay Kumar who stated that he had taken the files pertaining to the application by hand to the office of Circle Officer Lines and had handed over the same to the petitioner. In the cross-examination, a question was asked to him as to whether any receiving was obtained to which he replied in negative.
The next evidence against Kaushal was that of Kaptan Singh for whom it was alleged that the petitioner had handed over a house allotment order and, in pursuance whereof, he was staying unauthorisedly in the Government accommodation. He stated that he had given an application to the petitioner and the house allotment order in respect of C-21 was given by the petitioner to him, in pursuance whereof, he was residing in the said house. In the cross-examination, the said Kaptan Singh answered that the house allotment order was given by hand for which no receiving was given.
After recording the oral evidence, the Enquiry Officer assessed the evidence and found that on the basis of the unauthorised allotment orders, an FIR was registered which has resulted in lowering the image of the police and in view of the oral evidence to the effect that house allotment orders were given to the recipient by hand , the defence taken by the respondents was not worthy of reliance, it was concluded that the charge was established against the petitioner.
Based upon the said enquiry report, the show cause notice was issued calling upon the petitioner to show cause as to why he may not be dismissed in exercise of powers under Rule 4.
It is argued that prior to issuing the show cause notice the disciplinary authority did not supply a copy of the enquiry report and did not call any explanation from the petitioner which was contrary to the law laid down by Hon’ble Apex Court in the case of Managing Director, ECIL Hyderablad vs. B. Karunakar, 1993 (4) SCC 727.
Specific pleading in this regard is made in paragraph no. 39 of writ petition filed by Kaushal and paragraph no.
34 of the writ petition filed by Rajesh Kumar. In the counter affidavit filed giving reply to both the paragraphs there is no denial of the averment made in the said paragraph nos. 39 and 34 respectively.
Considering the submissions made at the bar what emerges is that the sole charge framed against the petitioner,Kaushal was that he supplied forged allotment orders to persons and pursuant to the said forged allotment orders, the persons were in unauthorised occupation of the premises. It is worthy to notice that the forgery was alleged to have been committed in the allotment orders that is a ‘document’, which was given to the allottees who resided in the said houses pursuant to the said orders in case of Kaushal. There were no charge that the petitioner had siphoned off or committed theft of the register in the office of the Senior Superintendent of Police or had stolen the forged allotment order from the said persons, thus, without there being any charge against the petitioner, in respect of, siphoning off or tempering with the allotment orders/registers, it was incumbent upon the respondents to have placed the said allotment orders as an evidence to carry home the charge against the petitioner which was admittedly not done. To establish forgery of a document, it is essential that the document should be in existence, which in the present case has not seen the light of the day. Assuming the findings that the register pertaining to the application for allotment and the register pertaining to house allotment orders was destroyed by the petitioner, there should have been specific charge to that effect which admittedly is not a charge levelled against the petitioner.
I have also gone through the oral testimonies which do not categorically state that there was any tempering or forgery in the allotment orders given to the three persons. The only statement of the said persons is that the allotment order was given by the petitioner. The issuance of a forged allotment order or otherwise could have been proved only in the presence of allotment order being on record and after recording the evidence or testimonies of the author of the said document which has not been done in the present case, as admittedly the officer whose signatures were alleged to have been forged or the Stenographer or Personal Assistant of the Senior Superintendent of Police, Agra were not even summoned as witness.
On perusal of the evidence, it is clear that none of the witnesses supported the charge, as such, there is no evidence to establish that the petitioner could be held guilty of issuing forged allotment orders in favour of the three persons as alleged. The conclusion of the Enquiry Officer, on the reading of the evidence, is clearly perverse to that extent .
The enquiry otherwise also suffers from the vice of non- payment of subsistence allowance after the suspension of the petitioner which is clearly in violation of Article 21, rights of the petitioner.
Although it is true that the nature of evidence as applicable in criminal cases is not to be applied in the case of disciplinary proceedings, however, it is essential that the charge levied should be established on preponderance of probabilities which has not been done in the present case as none of the witnesses has even stated that there was any forgery in the allotment order issued to them which was said to be done by the petitioner.
The proceedings against the petitioners are further bad in law in view of the judgement of the Supreme Court in the case of Managing Director, ECIL Hyderabad vs.
B. Karunakar (supra) had admittedly no show cause notice was served after the enquiry report, thus the proceedings are contrary to the law laid down by the Supreme Court in the case of M.D. ECIL (supra).
In view thereof, I am of the clear view that the order of punishment is clearly arbitrary and based upon perverse material and thus is not sustainable and is liable to be set aside.
The appellate orders in both the cases are even more perverse as it does not even consider any of the grounds as argued by the petitioner in appeal, similarly the revisional orders not finding anything worth interference in the dismissal as well as the appellate order, are clearly non-speaking orders and does not even consider the grounds taken in the revision by the petitioners.
Accordingly, the writ petitions are allowed and the order dated 30.6.2020, passed by Senior Superintendent of Police, Agra (Respondent No. 4), order dated 19.8.2020, passed by Inspector General of Police, Agra Region, Agra (Respondent No. 3) and order dated 10.10.2020, passed by Additional Director General of Police, Agra Zone, Agra (Respondent no. 2) are set aside In case of Kaushal.
The orders dated 30.6.2020 passed by Senior Superintendent of Police, Agra under section 7(3) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules 1991, the order dated 19.8.2020 and the order dated 10.10.2020 are set aside in case of Rajesh .
In both cases directions are issued to the respondents to reinstate the petitioners. The petitioners shall also be entitled to subsistence allowance during the period of suspension as well as half salary from the date of his dismissal i.e. 30.6.2020 till date of the passing of the judgement.
The writ petitions are allowed in terms of the said order.
Copy of the order downloaded from the website of Allahabad High Court shall be accepted/treated as certified copy of the order.
Order Date :- 07.10.10.2021 Puspendra