Court No. - 30
Case :- WRIT - A No. - 21695 of 2015 Petitioner :- Narsingh Pratap Singh Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Vijay Gautam Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard Sri Vijay Gautam, learned counsel appearing for the petitioner and Mrs. Shivi Mishra, learned Standing Counsel appearing for the respondents.
Vide order dated 18.4.2015 learned Standing Counsel was granted time to file counter affidavit. Till date no counter affidavit has been filed.
In view of the nature of the order under challenge and the ground taken and in view of the law settled, this Court is not inclined to grant further time for filing counter affidavit.
Present writ petition has been filed seeking quashing of the impugned order dated 16.1.2015 passed by the respondent no. 3 and treat the petitioner to be in continuous service. A further prayer in the nature of mandamus directing the respondents to restore the position of the petitioner prior to the passing of the impugned order dated 16.1.2015 during the pendency of the present writ petition.
At the very outset learned counsel for the petitioner has produced a copy of the judgment passed in Writ A No. 2934 of 2014, Ram Bahori, Constable 58 A.P. Vs. State of U.P. and 3 others, which is quoted 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."
In the present case also no specific reason has been assigned for not conducting any departmental enquiry.
Learned Standing Counsel sought to defend the impugned order on the same grounds that have already been considered in the abovenoted judgment.
In such view of the matter, the order impugned dated 16.1.2015 is not sustainable in the eye of law and is hereby quashed.
Present writ petition stands allowed in terms of the aforesaid judgment. No order as to costs.
Order Date :- 28.2.2018 Lalit Shukla