Hon'ble Ran Vijai Singh,J.
Heard learned counsel for the parties and perused the record.
The present special appeal has been filed by the State of U.P. challenging the validity and correctness of the judgment and order dated 2.4.1997 in Civil Misc. Writ Petition No. 45955 of 1992, Sunil Kumar Sharma versus State of U.P. and others on following grounds.
" I. Because the impugned order is against the material on record, as such the same is liable to be set aside.
II. Because the petitioner's services which was under probation was terminated after issuing show cause notice and taking his reply, as such the order of termination dated 23.11.1992 (Annexure-6 to the writ petition) was legal and did not call for any interference from High Court under Article 226 of the Constitution of India.
III. Because the writ petition was not maintainable as the Claim petition lay to the U.P. Public Services Tribunal. By ignoring this material fact of alternative remedy, the learned Single Judge has committed manifest error of law while allowing the writ petition and not dismissing the same on the grounds of alternative remedy."
By order dated 2.4.1997 aforesaid the writ petition was allowed quashing the order dated 23.11.1992 holding the termination of the petitioner in the writ petition illegal and directing the respondents in the writ petition to reinstate the petitioner on the post of Constable with all consequential benefits and pay arrears of salary within a period of 3 months from the date a certified copy of the order is communicated to respondent no.3 in the writ petition.
Brief facts of the case are that the respondent was selected and recruited on the post of Constable in 8th Battalion Provincial Armed Constabulary at Bareilly on 1.9.1990. After completion of training, the respondent joined as probationer for a period of two years. It is during this period of probation that his services were terminated on the ground of certain alleged acts of misconduct which according to the authority was against the desired conduct of a member of disciplined force. Before termination of services of the respondent a notice dated 19.11.92 was served upon him, which has been appended as Annexure-1 to the affidavit filed in support of the stay application.
The notice dated 19.11.1992 served upon the respondent regarding alleged misconduct reads thus"-
^^Li"Vhdj.k dk-eu- 11373 lquhy dqekj 'kekZ Mh dEiuh fnukad [email protected]&11&92 dks jsM psfdax ds nkSjku vkius ,d turk ds O;fDr ds lkFk vHknz O;ogkj djds viuh lsDlu dks NksMdj lfgr vkElZ @ vkequs'ku ysdj Hkkx x;s yxhkx 2 ?kaVs dSEi okil vk;sA bl izdkj fM~;sVh ls vkElZ,equs'ku ysdj Hkkx tkuk vf/kd ?kksj vijk/k gS tks ,d vuq'kkflr QkslZ ds vuq'kklughurk dk |ksrd gSA bl izdkj vkids }kjk ykijokgh cjrus ij dHkh Hkh dksbZ vfiz; ?kVuk ?kV ldrh gSA vr% bl laca/k esa vki viuk Li"Vhdj.k bl dk;kZy; dks 'kh?kz nsaA rkfd vfxze dk;Zokgh dh tk ldsA g0v0 ¼lwcsnkj estj½ vkBoh okfguh ih-,-lh-
cjsyhA** Reply thereto was submitted by the respondent which has been appended as Annexure-2 to the affidavit. After considering the reply the services of the respondent were terminated vide order dated 23.11.1992.
Aggrieved by the aforesaid order dated 23.11.92, Sunil Kumar Sharma, the Constable concerned preferred Civil Misc. Writ Petition No. 45955 of 1992, Sunil Kumar Sharma versus State of U.P. and others in which counter affidavit was filed by the State of U.P. and others.
As stated above, the writ petition was allowed with certain directions to reinstate the respondent in service with all consequential benefits etc. The ground of contention of learned Standing Counsel appearing for the State is that the order of termination in the backdrop of the notice to the respondent dated 19.11.1992 and the reply submitted by him did not call for any interference and the punishment awarded to him was disproportionate to the charge of alleged misconduct against him; that therefore, by allowing the writ petition learned Single Judge has committed an error of law and that His Lordship's judgment reinstating the delinquent employee in service was based on misreading of material on record.
The delay in filing the appeal has already been condoned vide order dated 20.1.2003.
Today the appeal is listed for admission.
In reply to the aforesaid notice, the respondent Constable has submitted that he has complied with the orders of the Superior (Ustad) and has not committed any misconduct which may render him unsuitable for service. He has stated that when the train stopped at Railway Station Bhogipura he was ordered by the officer to purchase something from the Station canteen, he alighted from the train for purchase as ordered. However, the train moved which compelled him to run and catch the train. As he could not enter the compartment, he caught one of the rods of a window of another compartment and requested the passenger sitting inside it to open the door for him to enable him to enter the bogie. It appears from the explanation of the respondent that the person sitting near the window was brother of a B.J.P. MLA. even after the respondent informed him that he is on duty and would fall from the running train he is not taken inside but the brother of the MLA rudely told him that he has no concern at all. On his request another passenger sitting inside the compartment opened the door for him which enable him to enter the compartment safely. It also appears from the reading of the explanation that the brother of the MLA took the request of the respondent for asking him to open the door and feeling insulted threatened him with dire consequences. It further appears that 30-35 persons had come at Railway Station Shaithal at the instance of brother of the MLA who gave a call to teach a lesson to the respondent for allegedly insulting him. Thereupon the officer seeing him in the precarious situation ordered him to run away and save his life as the train had started moving again. Only five persons of the Section could board the train. The petitioner somehow reached the camp with his arms and ammunition issued to him after about one and a half hours along with L.N.K. Sanjeev Kumar and reported for duty. His services had been terminated on the ground that he misbehaved with the members of the public and had reported after two hours at the camp. The explanation given by the petitioner reads thus:-
^^lsok esa] Jheku~ lsukuk;d egksn;] vkBoh okfguh ih-,-lh-
cjsyh egksn;] lfou; fuosnu gS fd izkFkhZ fnukad 14-11-92 dks V`Su fM~;sVh esa vk;k Fkk V~su esa iwjh lsDlu Fkh ijUrq tc Hkksxhiqj LVs'ku ij xkM+h [kMh gqbZ rks mLrkn us eq> dk0 ls dgk fd lquhy rqe tkvks tYnh vkuk eSa uhps V~su ds uhps vkSj flxjsV ysus esa nsj gks xbZ xkMh py nh eSaus ns[kk fd V~su py nh gS rks eSa Hkkx dj mlh dEikVesUV dh fiNyh f[kMdh dks idM+dj yVd x;k f[kM+dh vUnj ls cUn fkh f[kMdh ds ikl cSBs gq, Hkkjrh; turk ikVhZ ds fo/kk;d Jh Hkxou lju ds HkkbZ Fks ijUrq eSa mUgha ugha tkurk Fkk vkSj eSaus muls vkxzg fd;k fd HkkbZ lkgc vki mBdj f[kMdh vUnj ls [kksy nsa eSa ik;nku ij [kM+k gqvk gwa mUgksaus dgk eSa ugha [kksyrk gwa bl fMCcs esa txg ugha gS eSaus muls crk;k fd eSa fM;wVh esa py jgk gwa th-vkj-ih- ds lkFk vki f[kMdh [kksy ns ugha eSa fxj Hkh ldrk gwa rks mUgkaus dgk eq>ls dksbZ eryc ugha gS brus esa mlh fMCcs esa cSBk ,d O;fDr us vkdj f[kMdh [kksyk vkSj eSa vUnj vk;k rks eSaus dgk vki f[kMdh ds dkQh utnhd Fks fQj Hkh vki f[kMdh ugha [kksyh ,slk D;ksa HkkbZ lkgc mlus dgk rw eq>s tkurk ugha tk viuh fM;wVh ij ugha rks le> ysuk eSaus dgk D;k le> ysuk mlus dgk rsjh onhZ Hkh mrjok ldrk gwa eSaus dgk fd vki esjs mLrkn ds ikl pys rks mlus dgk fd tk tk eSa rq>s Hkh ek:axk o rsjs mLrkn dks Hkh eSa ch-ts-ih- ,e-,y-,- dk HkkbZ gwa rks eSaus mLrko ls tkdj dgk rks mLrko us Hkh vkdj ds mlls dgk fd vkf[kj HkkbZ xyrh vki dh gh Fkh [kSj NksM+ks bu ckrksa dks vkSj ge lHkh yksx ,d lkFk vk djds cSB x;s vkSj og jsyos LVs'ku 'kSFky ij mrjk vkSj dqN vknfe;ksa dks uke ysdj iqdkjk vkSj dgk fd iqfyl okyksa us gekjh csbTtrh dh vkSj lHkh vkvks buls fuiV ys brus esa mLrkn us dgk fd lHkh V~su ls Hkkx yks vkSj viuh viuh tku cpkvksa de ls de 30&35 O;fDr vk x;s Fks fQj ge lHkh yksx Hkkx [kM+s gq, Fks yxHkx 200 ehVj vkxs V~su dks vkrk ns[k lsDlu ds 5 O;fDr xkMh dks idM+ dj pys x;s eSa vkSj esjs lkFk ,y-,u-ds- latho dqekj ek= 1 ?kVuk 30 fe0 nsjh ls vk;s vkSj vkdj ny uk;d dks crk;k Jheku~ th viuh lqj{kk ,oa vlygk dh lqj{kk djrs gq, dSEi igaqps vkSj eSa vkElZ ,equs'ku dks lc dq'ky crkrs gq, ny uk;d dks lqpuk nhA vr% Jheku th ;gh esjk tokc gS vr% Jheku th ls fuosnu gS fd izkFkhZ dks ekQ fd;k tk;s ,slh xyrh Hkfo"; esa ugha gksxhA** It appears from the explanation of the respondent that he has acted on the orders of his superior officer to save his life and reported for duty. The respondent was neither an absconder nor any proceedings for misconduct against him appear to have been taken,though we find from paragraph 4 of the affidavit filed in support of the Stay application that his services had been terminated on the foundation of misconduct which read thus:-
" 4. That during the probation period, the petitioner committed such act which was considered against the desired conduct from a member of the disciplined force, as such the petitioner was served with a notice dated 19.11.1992. A true copy of the said notice dated 19.11.1992 is being annexed herewith and marked as Annexure-1 to this affidavit. The said notice had been annexed by the respondent petitioner as Annexure-4 to the writ petition. The respondent petitioner submitted a reply to the appellants. A true copy of the reply to the notice of the appellants submitted by the petitioner respondent is annexed herewith and marked as Annexure-2 to this affidavit (Annexure-5 to the writ petition)."
Thus, from the above it appears that the respondent has only followed the orders of the Superior Officer. In so far as question of misconduct is concerned, there is no evidence on record that the respondent has misbehaved with any person of the public or has committed any misconduct. On the contrary even after being misbehaved by the brother of the MLA and extension of threat that he will get him terminated, the respondent did not do anything rash and only informed his superior travelling in the train. The cause for reaching late in the camp has been sufficiently explained. It appears to be a cogent reason that the respondent has acted in presence and pursuant to orders of his superior officer.
We are aware that the respondent was a probationer. His services could have been terminated at any time if his conduct is not such as required for a member of the disciplined force but we find that the foundation and motive assigned for termination of his services is misdirected. Though the order of termination of the services of the respondent is innocuous but the foundation for terminating his services is the sole allegation of misconduct alleged in the notice and in paragraph 4 of the affidavit quoted above. As stated above, we find that the respondent has neither misbehaved with any member of the public nor has committed any such act which could be considered against the desired conduct of a member of the disciplined force. In case the averment in the notice as well as in paragraph no.4 of the affidavit in support of the stay application and the grounds in the memo of appeal are taken on their face value it is clear that even without lifting of veil of the order of termination, alleged misconduct is the foundation and motive for termination of services of the petitioner. The services of the respondent have been terminated without following the procedure prescribed under Rule 541 of the U.P. Police Regulations and without holding any inquiry.
We, therefore, dismiss the appeal upholding the judgment and order of the learned Single Judge impugned in the present appeal.
No order as to costs.
Dated 7.9.2011 CPP/-