Hon'ble Ritu Raj Awasthi, J.
This special appeal by the State challenges the order passed by the learned Single Judge dated 7.5.2009 by means of which, the writ petition preferred by the private respondents challenging their order of dismissal from service has been allowed and the order of dismissal from service has been quashed and they have been directed to be reinstated into service with all consequential benefits.
The learned Single Judge has passed a very detailed order but the substantial question which requires consideration is, that on a charge which was apparently framed not in accordance with the complaint made and was against the basic facts leading to departmental proceedings, whether the order of punishment could have been passed or any action could have been taken.
In substance, the charge on which the enquiry was conducted against the respondents was regarding the filing of their affidavits, in Writ Petition No. 5045 (MB) of 2002 with a view to save the accused from being arrested, that too without the permission of the Department, which in fact was a charge, not at all made, on the basis of their own case of the appellants.
The respondent no.1 was posted as Head Constable whereas respondent nos. 2, 3 and 4 were posted as Constable in Civil Police. They were assigned security duty at the residence of one Akhilesh Singh, Member of Legislative Assembly, who was charged of committing murder of one Rakesh Pandey, and against whom a criminal case was registered bearing no. 311 of 2002 under Sections 302/395 and 120-B I.P.C.
The incident occurred on 3.7.2002. Akhilesh Singh appears to have absconded for avoiding his arrest, against whom proceedings under Section 82 and 83 Cr.P.C. were taken.
In a bid to save himself from arrest, he filed a writ petition bearing no. 5045 (MB) of 2002 before the High Court at Lucknow, in which it is said that the respondents filed their affidavits in the Court without permission of any superior officer or without departmental sanction with an intention to help and save Akhilesh Singh.
The charge sheet contains only one charge, namely, the respondents with a view to help and save Akhilesh Singh from being arrested, filed affidavits in the Court in Writ Petition No. 5045 (MB) of 2002 without sanction or permission of the department concerned. The writ petition was, however, dismissed on 26.8.2002.
On disciplinary enquiry being held, the charge was found proved and the respondents were dismissed from service. This order was passed on 18.6.2008.
The respondents challenged the aforesaid order in writ petition, where the learned Single Judge dealt with the issue, and being of the view that every person/citizen has a pious and moral duty to bring the truth before the Court and, therefore, filing of affidavits by the respondents in this regard cannot be treated to be a misconduct and also apparently relying on various case laws and authorities, also held that the mere fact that because the respondents have filed affidavits narrating the facts, viz. correct facts, their action do not constitute misconduct under the service rules.
In regard to the observation made by the learned Single Judge on the moral philosophy of every person to come to the Court, this Court has nothing to comment.
Though we are of the view that no occasion had arisen in this case to deal with the role and right of a citizen/person to bring the truth before the Court, but we refrain ourselves from adverting to the said findings, as in fact the respondents never filed any affidavit before the Court. What they did was that they had sworn the affidavits before the Notary and handed over the notarized affidavit to the accused Akhilesh Singh. This notarized affidavit broadly stated that on the date of occurrence, Akhilesh Singh was at his residence at Lucknow and the respondents were on his security duty, therefore, they know it, as a fact. This, of course, was a plea of alibi set up by the accused for proving his innocence.
The charge, therefore, if could at all have been made, could be that in a zeal to support and help the accused Akhilesh Singh from avoiding arrest, they created an evidence by swearing an affidavit before the Notary, and handing it over to the accused Akhilesh Singh for being used wherever he required.
The charge that the respondents filed affidavits, before the Court in the aforesaid writ petition was actually not factually correct. As a matter of fact, the affidavit handed over by the respondents to Akhilesh Singh has been filed by Akhilesh Singh alongwith the writ petition as annexures and not by the respondents.
This important issue, appears to have been missed from being appreciated by the learned Single Judge.
That being so, we accordingly put a straight query to the learned counsel for the appellants Sri J.N. Mathur, learned Additional Advocate General that how the respondents could have been dismissed from service by holding an enquiry on a charge which never existed. Sri J.N. Mathur has candidly replied that, as a matter of fact, the charge ought to have been framed otherwise, as obviously the respondents themselves did not file any affidavit in the Court.
However, we would like to make it clear that the government servants and in particular, those who belong to disciplinary force are supposed to exercise restraint and in case they commit any indiscipline, the law will have to take its own course. If a Police Constable or Head Constable or for that matter, any security personnel is deputed on a security duty of any person and if such a person is charged of committing any crime, namely, a cognizable offence, unless, of course, there is occasion, namely, such security personnel is asked by the Court or by the investigating agency to give his evidence or he is convinced as per his own conviction about the facts, he seeks permission from the concerned authority of the Department to give evidence and if such permission is granted, only then such a security personnel can come before the Court and adduce evidence in favour of one or the other party, but in the absence such permission, the filing of an affidavit in favour of a person who is charged of committing murder or creating evidence, by handing over the notarized affidavits to the accused, for using them in his favour, in Court or otherwise, cannot, prima facie, be taken as bona fide act on the part of the person to assist the Court.
The aforesaid situations are only illustrative, as there may be some more exigencies, where such an evidence is bona fide required.
We, however, refrain ourselves from addressing upon the bona fide and genuineness of the respondents in the present case and their conduct of giving their affidavit to Akhilesh Singh.
We, under the circumstance, have no option but to uphold the order passed by the learned Single Judge in so far it sets aside the order of dismissal from service and directs for reinstatement of respondents into service, but for respondent no.1, who stands retired, though for different reasons.
We, therefore, direct that the appellants may hold a fresh enquiry, as may be permissible, by correctly framing the charge, and if any enquiry is to be initiated, the same shall be initiated within a maximum period of two months from the date of receipt of a certified copy of this order and if such enquiry is initiated within the aforesaid period, then the salary for the period commencing from the date of order of dismissal from service till the date of reinstatement, shall not be paid to the respondents, which shall abide the result of enquiry so held, but if the appellants fail to initiate the enquiry within the aforesaid period, then this bar would not stand applicable.
So far respondent no.1 is concerned, since he has retired on attaining the age of superannuation on 30.6.2009 and no enquiry can now be initiated, the charge being of the year 2002, we provide that he shall not be paid any back wages/salary for the period during which he remained out of employment i.e. from the date of passing of the order of dismissal from service, till he attained the age of retirement, but this entire period shall not be taken as break in service, and shall be counted for determining and paying his post retiral dues, including pension.
We, however, clarify that non-payment of back wages/salary to respondent no.1, under the present order, will not be taken as precedence nor binding upon the disciplinary authority, in the matter of enquiry of other respondents, where any appropriate order can be passed as per his own discretion, in accordance with law.
The special appeal is accordingly disposed of.
Dated: 29.9.2010 Sachin