JUDGMENT Vikram Nath J.
1. This writ petition has been filed for quashing the order dated 8.5.2000 dismissing the petitioner from service and the order dated 3.7.2000 passed by the appellate authority dismissing the appeal of the petitioner.
2. Petitioner was lady police constable in UP. Civil Police since 1980. It is alleged that the petitioner met with a serious accident and had to undergo surgery twice with regard to the fracture in left hand and in the hip Joint. The petitioner was suspended on 30.10.98 against which she preferred writ petition in this Court being Writ Petition No. 36557 of 1998, which was disposed of on 26.11.1998 with the direction to conclude the enquiry within a period of three months failing which the petitioner would be entitled for reinstatement. The respondents did not complete! the enquiry within the time allowed nor considered the request of reinstatement of the petitioner, as such, the petitioner preferred Contempt Petition No. 716 of 1999 which was disposed of. on 11.03.1999 and thereafter she was reinstated. It is alleged that on account of this contempt petition the respondent got annoyed and decided to teach her a lesson. the impugned order of dismissal Is an out come of the annoyance of the respondents. The charge sheet was issued to the petitioner only on 15.6.99 after the order in the contempt petition had been -passed and the petitioner had been reinstated which itself shows the conduct of the respondents that for a period of eight months no enquiry was initiated against the petitioner till the order in contempt petition had been passed and the petitioner had been reinstated.
3. The charge sheet was issued to the petitioner on 15.6.99 with the allegations that the petitioner was assigned the duty to produce the inmates of the jail for remand before the Magistrate and while performing the said duty the petitioner was not wearing the proper uniform and also allowed the inmates to interact with outsiders and as such she was negligent in her duties. It was further alleged that she deliberately flouted the orders of the superior Officer. The charge as framed was vague and did not refer to any specific incident. Further the charge sheet relied upon six witnesses namely (i) Ram Surat Verma Constable Civil Police, (ii) Jamuna Prasad Constable Civil Police, (Hi) Deo Nath Tiwari Head Constable, (iv) Shyam Suridar Singh Constable Civil Police, (v) Sri R.N. Upadhya Senior Superintendent Central Jail, Naini for proving his report/letter dated 30.10.98 and (vi) Sri Vikram Thakur Asstt. Superintendent, Central Jail, Naini to prove the preliminary enquiry report. The petitioner submitted her reply to the charge sheet and requested for cross-examining the witnesses and further to submit her defence after cross-examining the prosecution witnesses. The inquiry was entrusted to Sri Jugal Kishor, Circle Officer (City II) Allahabad.
4. In the inquiry all the witnesses except one were examined. The main witness R.N. Upadhyay on whose report action was taken was not examined, The inquiry officer submitted his report dated 28.2.2000. The Disciplinary Authority thereafter issued show cause notice dated 29.3.2000 proposing to award punishment of dismissal from service. Petitioner submitted a detailed reply to the show cause notice. However, The Disciplinary Authority not being satisfied with the show cause submitted by the petitioner passed the impugned order of dismissal dated 8.5.2000. Aggrieved by the same, the petitioner preferred the departmental appeal to the Deputy Inspector Genera! of Police, Allahabad Region, Allahabad on 10.5.2000, which also did not find favour and was dismissed by the appellate authority vide order dated 30.7.2000. Aggrieved by the same the present writ petition has been filed.
5. I have heard Sri R.B. Singhal, learned counsel for the petitioner and Sri R.K. Tiwari learned Standing Counsel representing the respondents and have perused the record.
6. Learned counsel for the petitioner has raised the following points:
(1)The enquiry conducted by the enquiry officer was contrary to the principles of natural justice and fair play and in violation of the statutory provisions for conducting departmental proceedings in as much as the main witness Sri R.N. Upadhyay mentioned in the charge sheet who was also the complainant to prove his report, was not examined in the inquiry thereby vitiating the same and despite request the petitioner was not afforded opportunity to cross-examine him.
(2) The punishment of dismissal awarded to the petitioner was a malafide action and predetermined on account of petitioner having filed contempt petition; and this ground further finds support from the fact that the inquiry Officer was a lower grade/ subordinate Officer to the Officer who had made the complaint and thus the inquiry was biased and influenced by superior officer.
7. Learned Standing Counsel representing the respondents has contended that this Court under Article 226 of Constitution cannot review the decision taken after full departmental proceeding and findings based upon appreciation of evidence could not be interfered with. The order of dismissal and the appellate order confirming the punishment are legal and valid and do not fall within the scope of judicial review under Article 226 of the Constitution.
8. Departmental proceedings were initiated pursuant to the confidential report dated 30.10.98 of R.N. Upadhyay Senior Superintendent, Central Jail Naini, Allahabad in which It was apparently alleged that the petitioner had not been wearing uniform while on duty and had allowed one of the inmates of the jail while being produced on remand before the Magistrate to interact with outsiders and was therefore, guilty of dereliction of duty and also gross negligence. In the charge sheet dated 15.6.99 in the list of evidences/ witnesses at SI.No. 5 the name of R.N. Upadhyay Senior Superintendent, Central Jail, Naini, Allahabad is mentioned and he had to prove his report dated 30.10.98. In reply to the charge sheet the petitioner in her letter had specifically requested to cross-examine all the witnesses who were to be produced or behalf of the prosecution.
9. It needs to be mentioned that the enquiry report incorporates certain facts which itself establish that the enquiry was not conducted in accordance with law and in fair manner.
10. It has been recorded that after close of the prosecution evidence on 6.1.2000 the delinquent petitioner was asked to submit her defence and also to produce any witness of documentary evidence, which she may prefer In response to the said request the petitioner submitted reply dated 16,1.2000 wherein she specifically requested that R.N. Upadhyay Senior Superintendent, Central Jail, Naini on whose report the entire proceedings were initiated and was also the vital witness has not been produced even though his name is mentioned in the charge sheet as a witness nor the petitioner has been allowed to cross-examine the witness. It was further alleged in the reply that in the absence of the said witness the entire enquiry proceeding stood vitiated and the charge alleged against the petitioner was not proved at all. Having recorded the request of the petitioner, enquiry officer proceeds to mention that Sri R.N. Upadhya the then Senior Superintendent Central Jail Naini on whose report the enquiry had been initiated, was presently posted in the office of Inspector General Lucknow has informed vide letter dated 30.7.99 that his report dated 30.10.98 may be treated to be his statement and therefore, the enquiry officer recorded that the contention of the petitioner that R.N. Upadhya has not been produced is incorrect and on strength of the letter dated 30.7,99 it was held that his statement has been validly recorded. No reasons were given as to why the petitioner was being deprived of cross-examining the said witness Sri R.N. Upadhyay.
11. The inquiry officer without getting the report of R.N. Upadhya proved in the inquiry proceeded not only to rely upon the report and also relied upon the letter which was annexed with the report dated 30.10.98 on the basis of which it was held that petitioner was helping Km. Anju to meet one person Sunil. The said report was not proved and therefore, no reliance could be placed upon the same not only on this ground but also for the reason that the petitioner despite request did not get any opportunity to cross examine the said witness. On the contrary the inquiry officer relying upon the said report held the petitioner guilty of the said charge and recommended for dismissal of the petitioner from service.
12. The Disciplinary Authority issued show cause notice dated 29.03.2000 as to why petitioner may not be dismissed from service. The petitioner submitted a detail reply to the show cause notice, again reiterating her stand that R.N. Upadhyay Senior Superintendent, Central Jail, Naini was not produced nor opportunity was allowed to cross examine him. Further it was alleged that no evidence had been brought in the inquiry to establish that petitioner had ever allowed any inmate of the jail to meet any stranger.
13. The disciplinary authority proceeded on the same lines as the enquiry officer and relying upon the report of the Senior Superintendent, Central Jail, Naini agreed with the finding of guilt, of not only the charge mentioned in the charge sheet but also proceeded and recorded the findings that the petitioner had been guilty of insubordination and disobedience and was also coming on duty under effect of intoxication. It may be noted that the charge sheet did not mention of being present on duty under effect of intoxication.
14. The rules relating to holding of disciplinary inquiry provide for giving opportunity to the petitioner for cross-examining the, witnesses and also to allow the request for producing witnesses. The procedure for holding disciplinary proceedings is provided under Rule 14 and the Appendix I attached to the U.P. Police Officers of the Subordinate Rank (Punishment & Appeal) Rules, 1991 (in short referred to as the Rules) The same are reproduced below for sake of convenience.
"14. Procedure for conducting departmental proceedings.-(1) Subject to the provisions contained in these Rules, the departmental proceedings in the cases referred to in sub-rule (1) of Rule 5 against the Police Officers may be conducted in accordance with the procedure laid down in Appendix 1.
Appendix-1 Procedure relating to the conduct of departmental proceedings against Police Officer.
(See Rule 14(1)]
15. Upon institution of a formal enquiry such Police Officer against whom the inquiry has been instituted shall be informed in writing of the grounds on which was proposed to take action and shall be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be used in the form of a definite change or charges as in Form 1 appended to these Rules which shall be communicated to the charged Police Officer and which shall be so clear and precise as to give sufficient indication to the charged Police Officer of the facts and circumstances against him. He shall be required, within a reasonable time, to put In, in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the inquiry Officer so directs an oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded, as the Inquiry Officer considers necessary. The charged Police Officer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish: provided that the Inquiry Officer may, for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the finding and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Police Officer.
16. Further Article 311(2) of the Constitution also provides for a reasonable opportunity to the employee in any departmental proceedings where major penalty is proposed. The inquiry officer having declined either to produce Sri R.N. Upadhyay or to allow opportunity of cross-examination to the petitioner clearly violated the statutory provisions for holding the disciplinary proceedings thereby vitiating the inquiry.
17. It has however been mentioned in the order of dismissal that the petitioner was given opportunity to cross-examine the other witnesses and therefore, even if Sri R.N. Upadhyay had not been produced and had not been cross-examined the petitioner could not disprove the charge. The observations are totally contrary to the fundamental principles of departmental proceeding, and also contrary to the statutory procedural safe guards in awarding major punishment. The burden is on the department to prove the charge. The petitioner cannot be asked to disprove unless the prosecution discharges its burden of proving the charge.
18. On behalf of the prosecution Constable 323 Shyam Sundar Singh, Head Constable 55 Sri Jamuna Prasad, Constable 1733 Ram Surat Verma, H.C. 215 Deo Mani Tiwari, Asstt. Superintendent Central Jail Nani Sri Vikram Thakur who had made the preliminary investigation and lady constable 710 Smt. Sarita Chaudhari had been produced. The first four witnesses had only deposed to the effect that the petitioner had not been wearing uniform on duty. Sri Vikram Thakur had proved his preliminary enquiry report and lady constable Smt. Sarita Chaudhary had also deposed only about not wearing of proper uniform. At best the only charge for which evidence was available on record was with regard to not wearing the uniform while on duty. The other charge with regard to the jail inmates being allowed to interact with outsider was based on the report of Sri R.N. Upadhyay. The said report had neither been proved nor petitioner was given opportunity to cross-examine Sri R.N. Upadhyay. The said charge therefore could not have been held to be proved as there was no admissible evidence in that regard. In the circumstances, the only evidence available on record was with regard to the charge of not wearing proper uniform while on duty. Such a charge even if found proved could not result into punishment of dismissal from service.
19. The procedure adopted in the inquiry, the observations made by the inquiry officer, the observations and findings recorded in the impugned orders do not inspire confidence that everything was done in a fair and impartial manner. There are clear indications that it was case as if decision had been taken before conducting the inquiry and it was only a show of formalities. The dates referred to in the beginning of this judgment with regard to suspension, stay by the High Court, notices issued in contempt, revocation of suspension, thereafter issue of charge sheet, inquiry by an officer lower in rank to the officer making the complaint, denial of opportunity in the inquiry if taken up together lead to the inescapable conclusion that the inquiry was not fair and impartial. It was not conducted in accordance with the procedure provided under law.
20. Learned counsel for the petitioner has relied upon the decision of the Apex Court in the case of Kuldeep Singh v. Commissioner of Police and Ors. . This case also related to lady police constable and is somewhat similar with the facts of the present case. The main complainant was not produced in departmental enquiry and the evidence with regard to the charge was lacking. In the circumstances Supreme Court set aside the order of punishment holding as follows in paragraphs 32 and 42 of the judgment.
32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent who should thereafter be given an opportunity to cross-examine that witness.
42. The enquiry officer did not sit with an open mind to hold an impartial domestic enquiry, which is an essential component of the principles of natural justice as also that of "reasonable opportunity" contemplated by Article 311(2) of the Constitution. The "bias" in favour of the Department had so badly affected the enquiry officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant, which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devil Khanpur, their presence could have been procured and they could have been produced before the enquiry officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed "fix him up".
21. In view of what have been stated above and also considering the law laid down by Supreme Court in the case of Kuldeep Singh (Supra) the facts of which are similar to the present case, the enquiry proceedings stands vitiated and could not have been made basis for awarding punishment of dismissal.
22. It has also come in the inquiry report that the petitioner who had claimed to be not physically fit on account of an accident in which she had suffered fracture of the hip joint and in the left hand and a rod had also been implanted to support the bones of the left hand and that she had fainted twice while performing her duty of producing the inmates before the Chief Judicial Magistrate as she had difficulty in climbing five stories of building and on account of which, she had been admitted in the Government Civil Hospital.
23. In the circumstances there being no evidence with regard to the charge of allowing inmates of the jail to interact with outsider the punishment on that charge cannot be upheld. In so far as the other charge with regard to not wearing proper uniform while on duty even though the petitioner had tendered explanation that on account of injuries sustained in her body in the accident she could not wear the uniform I am of the view that even though the inquiry has been held to be vitiated but still as the petitioner has not been able to fully justify her misconduct with regard to the said charge the petitioner being member of police force which requires certain standards of discipline to be maintained could not be allowed to dispense with the wearing of proper uniforms unless permitted in writing by competent authority which admittedly she did not possess. Therefore, without prior permission from superior authority she could not flout the general discipline of the department. The petitioner is therefore, held guilty of the said charge.
24. Coming to the next question with regard to quantum of punishment, in view of the peculiar facts and circumstances of the case it would be appropriate that petitioner be saddled with a punishment, which may be proportionate to the charge of not wearing uniform on duty. Punishment of dismissal for the said charge appears to be too harsh and disproportionate. In the circumstances, the respondents may consider awarding any minor punishment to the petitioner as she has been found repeatedly not wearing the uniform despite warning given by the officer during inspection.
25. Accordingly, the writ petition succeeds and is allowed. The impugned order of dismissal dated 8.5.2000 and order of appellate authority dated 30.7.2000 are set aside. It would however be open to the respondents to award any lesser punishment as observed above.