Dinesh Pratap Singh vs State of U.P. and Others

Rajiv Sharma, J.—Heard Mr. Amit Bose, learned Counsel for the petitioner and Mr. K. D. Shahi, learned Standing Counsel.

By means of this writ petition, the petitioner assails the order dated 2.9.2003 passed by the Senior Superintendent of Police, Lucknow, whereby the petitioner has been removed from service and the order dated 9.3.2007 passed by the Appellate Authority/Deputy Inspector General of Police rejecting the appeal.

The facts giving rise to the instant writ petition are that a charge-sheet was issued by the Additional Superintendent of Police (City), Lucknow, requiring him to submit reply the charges that on 7.6.1997, when the petitioner was posted as Constable at Police Station Krishna Nagar, Lucknow, on 8.6.1997, he proceeded on 14 days casual leave and on expiry of leave, he should have reported for his duties on 24.6.1997, but he did not report for duties and he remained absent for duties for a period of 3 years 19 days and 10 minutes. The petitioner could not submit reply to the aforesaid charge-sheet because it was never served upon him either personally or through registered post as required by Note (I) of Appendix I of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. The Enquiry Officer, however, without considering whether the charge sheet has been served on the petitioner or not, proceeded with the departmental proceedings behind the petitioner on the ground that the petitioner had not submitted reply to the charge sheet and he had also not appeared before the inquiry despite service of notice. After the departmental proceedings, the Enquiry Officer submitted the enquiry report dated 25.4.2003 and he came to the conclusion that the charges levelled against the petitioner stood proved and as such, a recommendation was made that punishment of removal from service be imposed on the petitioner. On the basis of the aforesaid enquiry report, a show cause notice dated 29.5.2003 was issued by the Senior Superintendent of Police, Lucknow. On account of illness, the petitioner could not submit reply to the show cause notice, as a result of which the impugned order has been passed.

Learned Counsel for the petitioner submits that against the impugned order, he filed a Writ Petition No. 2705 (SS) of 2004 and this Court dismissed the said writ petition on the ground of availability of alternative remedy. In pursuance of the order passed by this Court, an appeal was filed, which was rejected by the order dated 9.3.2007. Further, he contends that neither the charge sheet nor the Enquiry Report has been served upon the petitioner.

In the counter-affidavit it has been stated that the petitioner has been dismissed after detailed enquiry as per Rules 1991. The petitioner, while he was posted at P. S. Krishna Nagar in the year 1997, proceeded on 14 days casual leave on 7.6.1997 and as per Leave Rules, he should have reported back on duty after availing leave on 24.6.1997, but the petitioner did not report back and instead remained absent without any sanctioned leave or any application for leave in an unauthorized manner beyond the Rules culminating to misconduct. The petitioner after remaining unauthorized absent for a long period of about 3 years, reported back on duty on 13.10.2000. For this act of misconduct, a preliminary enquiry was ordered against the petitioner. On the basis of the proved charges in the preliminary enquiry, a detailed enquiry under Rule 14 (1) was ordered. The petitioner despite having knowledge of the date and time of recording evidence did not participate in the departmental proceedings. The charge sheet was sent to the petitioner through Special Messenger, which was received on 21.9.2002 by his wife Smt. Nirmala Singh. One of the charge sheet was affixed on the door of the petitioner''s residence in front of witnesses. The petitioner was given several opportunities to participate in the enquiry, but he chose not to participate in the departmental proceedings. The Enquiry Officer, after completing the enquiry, found the charge of unauthorized absence of the petitioner for a period of 3 years 19 days 10 Minutes proved against the petitioner. On this grave charge of misconduct, the competent authority dismissed the petitioner from service after giving him a show cause notice dated 29.5.2003. Therefore, the dismissal order has rightly been passed.

In order to adjudicate the case, provisions of Note (I) of Appendix I of the U.P. Officers of the Subordinate Rules (Punishment and Appeal) Rules, 1991 are as under:

(I) The charge sheet should be given to the person concerned and his signature should be taken on a copy of the charge-sheet. If that is not possible, it should be served by registered post.

As has been mentioned in the counter-affidavit, the charge sheet was sent to the petitioner through Special Messenger, which was received on 21.9.2002 by his wife Smt. Nirmala Singh. One of the charge sheet was affixed on the door of the petitioner''s residence in front of witnesses. A perusal of the aforesaid Note (I), it reveals that the charge sheet should be given to the person concerned, otherwise, it should be sent by the registered post. Here, in this case, neither the charge sheet has been served personally nor it has been sent by the registered post. Admittedly, it has been served upon the petitioner''s wife, namely Smt. Nirmala Singh and the same has been affixed on the door of the petitioner''s residence of the last known address, which has been indicated in the department. Learned Standing Counsel does not dispute the aforesaid proposition. On this point alone, the impugned orders are liable to be quashed.

Accordingly, the writ petition is allowed and the impugned dismissal order dated 2.9.2003 passed by the Senior Superintendent of Police, Lucknow and the order dated 9.3.2007 passed by the Appellate Authority/Deputy Inspector General of Police rejecting the appeal of the petitioner are hereby quashed. However, it will be open for the opposite parties to proceed in accordance with law, if they so desire.