This is a writ petition by a class IV employee challenging an order dated 6-11-2015 passed by the Superintendent of Police, Unnao dismissing the petitioner from service.
The petitioner claims to have been appointed as a ''Follower' in the State of U.P. on 27-1-1995 by an order of the Senior Superintendent of Police, Lucknow after due selection as per the then existing UP Government Servant Employees Service Rules 1985 (hereinafter referred as ''Rules 1985'), a fact which is admitted to the opposite parties in para 4 of their counter affidavit.
On account of his absence from duty a chargesheet dated 1-10-2014 was issued to him under Rule 14(1) of the Rules known as U P Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 (hereinafter referred as ''Rules 1991'), to which he claims to have submitted a reply on 27-1-2014 denying the charges though a copy of the same has not been annexed with the writ petition. Thereafter enquiry was held and the enquiry report dated 14-7-2015 was submitted by the enquiry officer to the Disciplinary Authority whereupon a show-cause notice was issued to the petitioner on 23-7-2015 to which he submitted his reply on 22-9-2015. Thereafter the impugned order of dismissal of the petitioner from service was passed under Rule 4(1)(a) of the Rules 1991.
The contention of the learned counsel appearing for the petitioner was as under :
1.) The entire proceedings having taken place under the Rules 1991 which were not applicable to the petitioner, instead, the U.P. Government Servant (Discipline and Appeal) Rules 1999 (hereinafter referred as ''Rules 1999') being applicable by virtue of Rule 29 of the U P Police Group ''D' Employees Service Rules 2009 (hereinafter referred as ''Rules 2009'), the same are not sustainable, in view of the settled legal position in this regard vide a judgement dated 10-4-2012 passed by a Division Bench of this Court in Special Appeal No.169 of 2012, Krishna Murari v. State, which has been followed in several other judgements and the S.L.P. against the aforesaid judgement has also been dismissed. The petitioner and other Group ''D' employees are not appointed under the Police Act, therefore, the Rules 2009 should in fact be treated as having been made under the proviso to Article 309 and not the Act 1861, as the said Act does not contain any provision for their appointment.
2.) The petitioner was not afforded any opportunity to examine or cross-examine the witnesses during enquiry nor the relevant documents demanded by him vide his letter dated 13-11-2014 were provided to him thereby denying him a reasonable opportunity to defend himself.
3.) The punishment imposed was excessive as it is not commensurate with the gravity of the charges.
4.) The impugned action amounted to double jeopardy as the entire character roll of the petitioner including adverse entry and punishment orders passed earlier have been taken into consideration in the charge sheet and during enquiry.
The learned Standing Counsel, on the other hand urged that the Rules 2009 having been made in exercise of the powers vested under sections 2 and 46 of the Police Act 1861 (hereinafter referred as ''Act 1861'), the petitioner by virtue of the said rules was part of the Police Force and hence the Rules 1991 regulating departmental proceedings, punishment and Appeals of police officers of the subordinate ranks of the Uttar Pradesh Force, which have been framed under section 46 read with section 2 and 7 of the Police Act 1861, are fully applicable, therefore, reliance placed by the petitioner upon the Rules 1999 is misplaced and misconceived.
The disciplinary proceedings were held against the petitioner considering his absence of 26 days which was the charge leveled against him and after giving due opportunity to him by way of submission of reply, examination and cross examination of witnesses, making of oral statements during enquiry, the enquiry officer after concluding the enquiry submitted his report, whereupon, as, the disciplinary authority did not differ from the same, issued a show-cause notice to the petitioner giving him a further opportunity to challenge the findings of the enquiry officer and after receipt of his reply the final order of punishment was passed, which, considering the past conduct of the petitioner as also the findings regarding the charge leveled against him was justified and not excessive, therefore, there was no valid ground for interference by this court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
The U P Police Force has been constituted under the Police Act 1861. Section 2 of the said Act reads as under :
"2. Constitution of the force.--The entire police- establishment under a State Government shall for the purposes of this Act, be deemed to be one police force, and shall be formally enrolled, and shall consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government.
Subject to the provisions of this Act the pay and all other condition of service of members of the subordinate ranks of any police force shall be such as may be determined by the State Government."
A perusal thereof shows that the Police Force shall be formally enrolled and shall consist of such number of officers and men and shall be constituted in such manner, as shall from time to time be ordered by the State Government. The pay and other concessions of service of members of the subordinate ranks of the Police Force shall be such as may be determined by the State Government, subject to the provisions of the Act 1861.
Section 7 of the Act of 1861 reads as under:
"7. Appointment, dismissal1, etc., of inferior officers.-- Subject to the provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this Act, the [Director-General-cum-Inspector-General], Deputy Inspectors-General, Assistant Inspectors-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks whom they shall think fit remiss or negligent in the discharge of his duty, or unfit for the same;
or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely :
(a) fine to any amount not exceeding one month's pay;
(b) confinement to quarters for a term not exceeding fifteen days, with or without punishment-drill, extra guards, fatigue or other duty;
(c) deprivation of good-conduct pay; (d) removal from any office of distinction or special emolument.
(e) withholding of increments or promotion including stoppage at an efficiency bar."
The aforesaid provision is subject to the provisions of Article 311 of the Constitution of India and to such rules as the State Government may from time to time make under the Act 1861. Section 7 empowers the officers mentioned therein to dismiss, suspend or reduce any police officer of the subordinate ranks or to award any or more punishment mentioned therein. Thus, while section 2 of the Act 1861 refers to "officers and men", section 7 is applicable to "any police officer of the subordinate ranks".
Section 12 empowers the Director General-cum-Inspector General, subject to the approval of the State Government, to frame such orders and rules as he shall deem expedient relating to the organization, classification and distribution of the Police Force including a particular service to be performed by them etc. Section 46 of the Act 1861 reads as under:
"46. Scope of Act.--(1) This Act shall not by its own operation take effect in any presidency, State or place. But, the State Government by an order to be published in the Official Gazette may extend the whole or any part of this Act to any presidency, State or place; and the whole or such portion of this Act as shall be specified in such order shall thereupon take effect in such presidency, State or place.
(2) When the whole or any part of this Act shall have been so extended, the State Government may, from time to time, by notification in the Official Gazette, make rules consistent with this Act:
(a) to regulate the procedure to be followed by Magistrates and police-officers in the discharge of any duty imposed upon them by or under this Act;
(b) to prescribe the time, manner and conditions within and under which claims for compensation under section 15-A are to be made, the particulars to be stated in such claims, the manner in which the same are to be verified, and the proceedings (including local enquiries, if necessary) which are to be taken consequent thereon; and
(c) generally, for giving effect to the provisions of this Act.
(3) All rules made under this Act may from time to time be amended, added to or cancelled by the State Government."
This provision empowers the State Government to make rules consistent with the aforesaid Act in respect of the subject matters specifically mentioned in Clause (a) and clause (b) of sub-section (2) thereof as also vide Clause (c) generally, for giving effect to the provisions of the said Act as also to amend or cancel such rules.
The terms and conditions of service of Group ''D' employees in the Police Force of UP were earlier regulated by the rules known as the Group ''D' Employees Service Rules 1985 which were made under the proviso to Article 309 of the Constitution of India, a fact which is asserted in para 4 of the writ petition and not denied in para 4 of the counter affidavit, though the nomenclature of above the rule is incorrectly mentioned at both places. The said rules were applicable to all the officers under the control of the government with some exclusions which did not include the Police department [Rule 4(b) read with Rule 6(ii)].
As the Act 1861 and rules made thereunder did not prescribe the conditions of service of such employees, therefore, considering Rule 4(h) read with rule 6 of 1985 Rules the appointments appear to have been made under the said Rules. The legal position in this regard was clarified only subsequently by the Full Bench decision in writ petition No. 726 (SBO) of 1997, State of U P vs Rajender Singh and another, and connected matters on 11.5.2015 wherein it was held that Rules regulating the conditions of service of those appointed under the Act 1861 have to be framed under the said Act and the Rules made under the proviso to Article 309 of the Constitution are not ipso facto applicable. It is in these circumstances the petitioner was appointed under these Rules of 1985.
Subsequently the Rules 2009 have been made under section 2 read with section 6 of the Act 1861 superseding all the rules and orders on the subject. As the Rules 1985 were general rules made under the proviso to Article 309 of the Constitution, and not under the Act 1861, they do not stand superseded but their application to Group ''D' employees of the Police Force stands superseded by the Rules 2009 which are now applicable to such employees. These rules have been made for regulating the recruitment to certain categories of Group ''D' posts and the conditions of service of the persons appointed to such posts in Uttar Pradesh Police. The Group ''D' posts to which these Rules apply are referred in Rule 5 thereof and it includes the post of ''Follower'. These rules refer to the conditions of recruitment and service, but do not specifically contain any provision detailing the punishments and procedure to be followed for the imposition of the same, however, Rule 29 thereof reads as under:
"29. Regulation of other subjects.--In regard to the matters not specifically covered by these rules or by special orders, person appointed to a post in the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State."
By reference to the rules and orders applicable to government servants serving in connection with the affairs of the State, the same have been made applicable to the U P Police Group ''D'' Employees in regard to matters not specifically covered by these rules or by special orders.
The question which falls for consideration herein is as to whether disciplinary proceeding against a U P Police Group ''D'' Employee is to be undertaken under the provisions of the Rules 1991 or the Rules 1999 as applicable to government servants. The Rules 1991 have been framed under section 46 read with sections 2 and 7 of the Police Act 1861 in supercession of all existing rules with a view to regulate departmental proceedings, punishment and appeal of "police officers of the subordinates ranks of the Uttar Pradesh Police Force". Rule 3(g) of the Rules 1991 defines "police officer" to mean "police officer of the subordinate ranks, below the rank of Deputy Superintendent of Police". The question is whether a ''Follower' appointed in the Police Force under the Rules 1985 or the Rules 2009 is a police officer of a subordinate rank of the Uttar Pradesh Police or not?
The definition contained in rule 3(g) of the Rules 1991 by itself does not help us much in this regard, specially as these rules do not specifically mention the posts of police officers of subordinate ranks to which they are applicable, therefore, the provisions contained in the police regulations need to be looked into. Though all the provisions of the Police Regulations do not have statutory force, but this is not very relevant, as, nevertheless, the provisions contained therein will be helpful in ascertaining as to who are the police officers to which the police regulations refer as the said provisions were also made at the same time or at least in near proximity to the promulgation of the Act 1861. The Act 1861 also does not define the term "police officer" and as noticed, under section 2 it refers to the composition of the Police Force as consisting of "officers and men". The term ''men' has not been defined, but on a perusal of Regulation 427 of the U.P. Police Regulations it is revealed that even Constables are referred as ''men' thus the word has been used generally and not necessarily in contradiction to officers though it shall include others also who are not officers, such as Chaukidar, Orderly, Orderly Peon etc. who are engaged to assist the Police Force and are a necessary ancillary component thereof which is also evident from Regulation 421 which speaks of ''detailed instructions regarding the uniform to be worn by officers and men of all ranks including Physical Training Instructors, Traffic Police, Orderlies and Orderly Peons, Hospital Orderlies, Village Police etc." The question still remains as to whether a "follower" referred hereinabove is an ''officer' or not ?, as, the Rules 1991 are applicable only to an ''officer'. Part III of the Police Regulations contains the heading "Internal Administration of the Police Force". Chapter 29 therein contains the heading "appointment". Regulation 396 under the said chapter mentions that the Police force consists of the following bodies:
(1) Provincial Police, Civil, Appointed and enrolled under Armed and Mounted. Act V of 1861 (2) Government Railway Police (3) Village Chaukidars Appointed in Agra under Act XVI of 1873 and in Oudh under Act XVIII of 1876. Not enrolled under Act V of 1861."
At first blust it appears that Group ''D' employees are not mentioned specifically in any category of the Police Force, but such a narrow view of the structure of the Police Force is neither justified nor correct as there are personnel who are ancillary and supporting staff of the Police Force which is also evident from use of the words ''officers' and ''men' in Section 2 of the Act 1861 read with Regulation 421 of the U.P. Police Regulations. Regulation 397 mentions that the gazetted officers of the Force are (1) Inspector General, (2) Deputy Inspectors-General, (3) Superintendents, (4) Assistant Superintendents, (5) Deputy Superintendent. Regulation 398 mentions that the "non-gazetted officers of the Force are (1) Inspectors, (2) Sub-Inspectors, (3) Head Constables, (4) Constables. Thus, there is no mention of Group ''D'' employees or their posts as mentioned in Rules 1985 or the Rules 2009, therefore, the conclusion is irresistible that though the Police Force consists of "officers and men" the Group ''D'' employees are not officers and therefore they fall in the category of "men" as referred under section 2, and as has been discussed hereinabove with reference to Regulation 421, and that is why Group D employees Rules of 2009 have been made under Section 2 read with Section 46 of the Act 1861. Officers are those mentioned in regulation 397 (gazetted officers) and 398 (non-gazetted officers.).
In view of the above, the reference to Police Officers of the subordinate ranks in the Rules 1991, specially Rule 3(g) thereof, has to be understood as a reference to the Inspectors, Sub Inspectors, Head Constables and Constables i.e. those below the rank of Deputy Superintendent of Police [Rule 3(g)] and none else. In this context it is also relevant to refer to the Rules 2009 once again which have been made to "regulate the recruitment to certain categories of Group ''D' posts and the conditions of service of the persons appointed to such posts in Uttar Pradesh Police". Thus they are not applicable to officers nor to police officers of subordinate ranks as the term has been used in the Rules 1991.
In view of the scheme of the various rules and regulations discussed hereinabove it is clearly evident that the Group ''D'' employees referred in the rules 2009 are not officers to whom the rules of 1991 are applicable, though they fall in the category of "men" referred in section 2 of the Act 1861 and that is why the Rules 2009 have also been made in exercise of powers vested under the said provision read with section 46 of the Act 1861, but, without reference to Section 7 of the said Act which is applicable only to police officers of the subordinate ranks. It being so, the contention of the learned counsel for the petitioner that the Rules 1991 were not applicable in his case is well founded and also in consonance with the Division Bench judgement of this Court in Krishna Murari case (supra), but, the contention that appointment of Group ''D' employees is not under the Act 1861, consequently Rules of 2009 should not be treated as made under Act 1861, is misconceived, therefore rejected.
On the same analogy as aforesaid in view of Regulation 477, the disciplinary provisions contained in Chapter XXXII of the U.P. Police Regulations are applicable only to ''officers' appointed under Section 2 of Act 1861, therefore, not applicable to Group ''D' employees.
Now the next question to be considered is if the Rules of 1991 and Chapter XXXII of the U.P. Police Regulations are not applicable, which are the rules applicable to disciplinary matters of such Group ''D'' employees such as the petitioner and whether the Rules of 1999 as applicable to government servants, apply in their case?
As noticed earlier, the Rules of 2009 do not specifically deal with matters of discipline and appeal etc. pertaining to group D employees as has been dealt with in respect of the police officers of the subordinate ranks in the Rules of 1991, therefore, Rule 29 thereof comes into play which is a residuary rule and by reference to the rules and orders applicable to government servants in respect of matters not particularly covered by the provisions contained in the Rules of 2009, such Rules and orders of the Government apply to UP Police Group ''D'' Employees also. Therefore, the petitioner is right in contending that it is the Rules 1999 which are applicable to him. This is so, irrespective of the Full Bench decision of this court in the case of State of U.P. v. Rajendra Singh & Anr. [W.P. No.726(SB) of 1997], wherein, it was held that the rules applicable to the government servants are not applicable to the members of the Police Force appointed under section 2 of the Act 1861 and any regulation of their conditions of service had to be by means of Rules framed under the Act 1861, as, in this case the regulation of such conditions of service, is, by means of the rules framed under the said Act 1861, i.e. the Rules 2009, which contains a residuary provision applying the rules of the government, by reference to them in Section 29 thereof. This issue is decided accordingly.
Having held as above it is required to be considered as to what is the effect of the aforesaid on the validity of the action impugned herein; whether by mere reference to the Rules of 1991 the dismissal of the petitioner from service is required to be set aside even if no prejudice has been caused to him and for all practical purposes the safeguards available to him under the Rules of 1999 have been adhered?
It is true that the chargesheet was issued to the petitioner under Rule 14 (1) of the Rules 1991, however, as it is no different from a chargesheet which would have been issued under the Rules of 1999, therefore, mere reference to a wrong rule would not invalidate it. While issuing the chargesheet the petitioner was asked to furnish his reply and also as to whether he wanted an opportunity of personal hearing and whether he wanted to examine or cross-examine any witness, if so, to give the name of such witnesses and a gist of what is expected of them, with the stipulation that in the event of non-submission of reply or the details, as aforesaid, it would be presumed that he had nothing to say in the matter and appropriate decision shall be taken accordingly.
The petitioner appeared before the enquiry officer on 13.10.2014 and the chargesheet was served upon him requiring him to submit his reply on or before 10.11.2014. On 13.11.2014 the petitioner submitted an application demanding certain documents, the photostat copies of which were provided to him on the same date with permission in writing to inspect the records. He again demanded certain documents vide letter dated 3.12.2014, whereupon, the documents were provided vide letter dated 18.12.2014 with a request for submission of his reply within 2 days. Inspite of sufficient opportunity, the petitioner did not submit his reply, though, he had sought time for the same on at least two occasions. In this scenario the date was fixed for examination of the departmental witnesses as 29.12.2014 with intimation to the chargesheeted employee i.e. the petitioner, so that he may cross-examine the said witnesses as and when the occasion arises, but, the petitioner did not appear on the said date, nor did the witnesses, whereupon, 7.1.2015 was fixed as the next date with intimation to the petitioner through the Reserve Inspector, who informed, that the petitioner was absent since 23.11.2014. Witnesses could not be examined on 7.1.2015 on account of their non-availability and 13.1.2015 was fixed as the next date in the enquiry for the said purpose. In the meantime an application dated 27.4.2014 was received from the petitioner written in English wherein he raised an objection to the holding of the enquiry under the provisions of Rule 1991 and asserted that it is the Rules 1999 which are applicable. It is this reply which has been mentioned in paragraph 8 of the writ petition as containing a denial of the allegations leveled against him. A copy of this reply is not on record, but, the same has been quoted in the enquiry report and on a careful perusal of the same the court does not find any denial of the charges on merits, but, only a challenge to the proceedings on the ground already noticed hereinabove.
Be that as it may on 8.1.2015 a letter was issued to the petitioner by the enquiry officer for his appearance so that his oral statement might be recorded and the matter be proceeded further, which was served upon him on 27.1.2015, but, the petitioner did not appear on the date fixed, whereupon, another letter dated 31.1.2015 was issued to him for the same purpose, which was served upon him on 2.2.2015. In response the petitioner appeared in the office of the enquiry officer on 3.2.2015, but, on account of his engagement elsewhere the enquiry did not take place. On 4.2.2015 another letter was sent to him for his appearance for the aforesaid purpose which was received by him on 16.2.2015, but he did not appear on the date fixed. He was informed by a Special Messenger for appearance, but, he did not do so and as he was absent from the place of his posting, 4.3.2015 was fixed as the date for appearance of the departmental witnesses with intimation to the petitioner that he may cross-examine them. The said letter was served upon the petitioner on 2.3.2015. On 4.3.2015 the petitioner and the witnesses appeared. The oral statement of the petitioner was recorded. The oral statement of the petitioner as recorded is mentioned in the enquiry report. The statement of witnesses was also recorded. The petitioner was granted the opportunity to cross-examine the witnesses. The petitioner expressed the desire to cross-examine only one witness i.e. the Reserve Inspector and was allowed to do so.
From the aforesaid it is evident that adequate and reasonable opportunity was granted to the petitioner to defend himself which was in consonance with the provisions of Article 311 of the Constitution of India, therefore, at least upto this stage it cannot be said that any prejudice was caused to the petitioner merely because of reference to the Rules 1991 in the chargesheet, as, for all practical purposes the enquiry which was held by the enquiry officer and the manner in which it was held, was in consonance with the letter and spirit of Rule 7 of the Rules 1999 and it cannot be said that there was any deviation therefrom by the enquiry officer. For convenience Rule 7 of the Rules 1999 as applicable to government servants is quoted hereinbelow:
"7. Procedure for imposing major penalties.- Before imposing any major penalty on a Government Servant, an inquiry shall he held in the following manner:
(i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii) The facts constituting the misconduct on which it is proposed to lake action shall he reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority.
Provided that where the Appointing Authority is Governor, the charge-sheet may he approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidence and the name of witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex parte.
(v) The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not he served in aforesaid manner, the charge-sheet shall he served by publication in a daily news paper having wide circulation:
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall he permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence.
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance wit the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents), Act 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case, the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi) The Disciplinary Authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstances of the case so permits:
Provided that this rule shall not apply in following cases :
(i) Where any major penalty is imposed on a person on the ground of conduct which had led to his conviction on a criminal charge; or
(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules."
As already noticed hereinabove the procedure prescribed in Rule 7 of Rules 1999 was duly followed by the enquiry officer while holding the enquiry against the petitioner.
It is not out of place to mention that the learned counsel for the petitioner laid great emphasis on the observation of the Division Bench in Krishna Murari case wherein the Division Bench had observed "on a joint reading of Rule 7 of the Rules 1999 and the corresponding provision contained in the Rules 1991 that the former contained a comprehensive procedure and looked to be more reasonable in comparison with the provisions as contained in the 1991 Rules", to contend that in view of this the enquiry held under the Rules 1991 was vitiated. As far as the observation of the Division Bench is concerned, even if it is assumed for a moment that Rule 7 of the Rule 1999 contains a more comprehensive and reasonable provision for holding the enquiry viz.-a-viz. Rules 1991, learned counsel for the petitioner was not able to show as to how the enquiry held in the case of the petitioner was not in consonance with Rule 7 of the Rules 1999.
This Court after having gone through the enquiry report finds that the procedure followed by the enquiry officer was the one mentioned in Rule 7 of the Rules 1999, even though, the said rules may not have been referred in the chargesheet etc. Sufficient opportunity was given to the petitioner, his oral statement was recorded, he was allowed opportunity to present his witnesses but he did not produce any such witness, he was allowed to cross-examine the witnesses but he chose to cross-examine only one witness which was allowed to him as is evident from the enquiry report, therefore, in these circumstances there has been substantial compliance of the letter and spirit of Rule 7 of the Rules 1999 and no benefit can be given to the petitioner of the aforesaid dictum as far as the validity of the enquiry against him is concerned, as, in practical terms there has been no violation of the law nor any prejudice has been caused to the petitioner by mere reference to the Rules 1991 in the chargesheet etc. After holding the enquiry as per law the enquiry officer submitted his enquiry report on 4.7.2015, on a perusal whereof this court finds that it contains an analysis of the charges leveled against the petitioner, the alleged reply submitted by him, the evidence adduced in support of the charges, including the examination of witnesses and cross-examination by the petitioner and based thereon the enquiry officer has recorded his findings giving cogent reasons in support thereof based on evidence, therefore, the enquiry report also satisfies the requirement of law including Rule 8 of the Rules 1999. The only violation, if at all, which can be pointed out is that the enquiry officer recommended the dismissal of the petitioner from service which was impermissible in view of Rule 8 of the Rules 1999 and the same was agreed prima facie by the departmental authority before issuing notice on it, but this at best is an irregularity, and not such an error as would render the enquiry report liable to be quashed, specially as the disciplinary authority has applied his mind independently while passing the impugned order while imposing the punishment of dismissal and specially as on a perusal of the charges against the petitioner and the enquiry report the court is of the view that the dismissal of the petitioner from service is quite justified. Not only he absented himself for 26 days, but his past conduct in absenting himself for a long period of 270 days w.e.f. 25.1.2009, being on leave without pay on 35 occasions, 5 censure entries and 1 fine including 3 suspensions which are relevant factors to be taken into consideration in determining the quantum of punishment, justify the impugned order. Any and every error, be it of fact or law, cannot form the basis for interference by this court under Article 226 of the Constitution of India, unless, extraordinary circumstances are shown resulting in grave miscarriage of justice and flagrant violation of law, which is not the case here. For the aforesaid reasons mere reference to the Rules 1991 and recommending a punishment by itself does not vitiate the enquiry report nor does it persuade the court to quash the punishment order. In fact, no such ground has been taken in the pleadings nor was it argued during the course of hearing.
After submission of the enquiry report the disciplinary authority applied its mind to the same which is referable to Rule 9 of the Rules 1999 and the note made by him on the enquiry report that ''as he agreed with it, issue show cause notice', has to be understood in the light of the provisions contained in Rule 9 and the said observation is merely a prima facie observation as he could also have disagreed with the findings and in such an eventuality he would have differed therefrom, instead, as he agreed prima facie, therefore, he ordered for issuance of a show-cause notice to the petitioner which is in consonance with the letter and spirit of Rule 9 of the Rules 1999, therefore, mere reference to the Rules 1991 in the show-cause notice does not in any manner vitiate the proceedings nor cause any prejudice to the petitioner.
After submission of reply dated 22.9.2015 the same was considered and the impugned order was passed wherein the disciplinary authority considered all the relevant aspects and dismissed the petitioner from service, even though, referring to Rule 4 of the Rules 1991. On a careful perusal of the reply of the petitioner to the show-cause notice the Court finds that there is no denial of his absence for 26 days with which he was charged. It is also not out of place to mention that the charge against the petitioner in the chargesheet was only to this effect and the other narration contained therein is in the nature of statement of facts preceding the charge relating to his past conduct, but his past conduct was not the basis for a separate charge relating to the earlier period, though, on a reading of the chargesheet at first blush it gives an impression of being so. The past conduct has only been referred to impress upon the severity of the charge of absence for 26 days, therefore, the plea of double jeopardy is misconceived, therefore, rejected. As already stated earlier, the reply dated 27.12.2014 is not on record and the contents thereof as narrated in the enquiry report do not indicate any denial of the charge by the petitioner therein. Even if it did, the fact is that during enquiry the charge was found to be proved. In the reply to the show cause the petitioner has primarily raised a challenge on the ground of applicability of the Rules 1999 instead of the Rules of 1991, which has already been dealt with hereinabove.
The contention that the relevant documents were not supplied, is also misconceived as his application dated 13.11.2014 was duly considered and rejected vide order dated 12.12.2014 which is on record as Annexure-4 to the writ petition. Relevant documents was furnished to him with due opportunity to defend himself.
On a perusal of the impugned order the court finds that it is a well reasoned order. As far as the contention that the punishment imposed is excessive, this court does not find it to be acceptable, specially, considering his past conduct, as already noticed hereinabove. The petitioner is a member of the Police Force, even though he may not be a police officer, he was required to act in a disciplined manner. Absenting himself for 26 days when considered in the background of his service wherein he is said to have earlier absented himself for 270 days, was on leave 35 times which was treated as ''leave without pay', was visited with punishment of censure on 5 occasions and 1 fine and was also suspended thrice and in view of the material on record, wherein, various officers have recorded their statement that he is an indisciplined and irresponsible employee who does not take interest in his work and forments trouble for the force by instigating others, claiming himself to be the General Secretary of Class IV Employees Association, the court is of the view that the punishment of dismissal from service is justified, not excessive and no lenient view is required to be taken in this regard.
For the reasons aforesaid the impugned order (Annexure-1 to the writ petition) is sustained.
Subject to the above, the writ petition is dismissed.
Order Date :- 27.10.2016 A.Nigam (Rajan Roy, J.)