Jahir Singh Yadav vs State of U.P. and Others

Rakesh Sharma, J.—Heard Sri A.K. Malviya, learned Counsel for the petitioner and learned standing Counsel representing the respondents.

The petitioner, an erstwhile Head Constable in traffic police has assailed the order dated 28.12.2005, passed by S.P., Hamirpur removing the petitioner from service exercising the powers contained under Rule 8(2)(b) of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991. His appeal and subsequent revision were also dismissed by the Deputy Inspector General of Police and Inspector General of Police, Allahabad Zone, Allahabad. These orders have also been challenged by the petitioner. At the relevant time, the petitioner was posted as Head Constable in traffic police in district Hamirpur. In connection with some criminal charges, he was placed under suspension by S.P., Hamirpur on 29.3.2005. A departmental enquiry was initiated against the petitioner. The Circle Officer, Hamirpur was appointed as Enquiry Officer. It has been alleged that the petitioner has fired on one traffic constable Man Singh Yadav on 28.3.2005. He had died on 30.3.2005. A Criminal Case No. 107 of 2005, under Sections 307, 302 and 201, I.P.C. was registered against the petitioner and he was, lodged in Hamirpur Jail. During pendency of the departmental proceedings when the petitioner was under suspension and was lodged in Hamirpur Jail, S.P., Hamirpur got transferred the petitioner to district Pratapgarh vide order dated 29.4.2005. In the meantime, the Enquiry Officer submitted a report on 27.5.2005. Statement of the petitioner, Constable Jitendra and Head Constable Yogendra Singh were recorded by the Enquiry Officer on 25.11.2005. The grievance of the petitioner is that suddenly without taking any action on the enquiry report, the petitioner has been straightway removed from service by invoking the provisions of Rule 8(2)(b) of the Rules of 1991. The petitioner had always cooperated with the Enquiry Officer and the Investigating Officer. The petitioner''s appeal was dismissed by the Deputy Inspector General of Police, Banda Region, Banda by the order dated 14.2.2006 and subsequent revision was dismissed by the Inspector General of Police, Allahabad Range, Allahabad on 23.12.2006. Learned Counsel for the petitioner has submitted that the petitioner was detained in Hamirpur Jail and was also transferred from Hamirpur to Pratapgarh on 29.4.2005. A rawangi entry has already been made in the G.D. He ceased to be under the administrative control of S.P., Hamirpur, rather he must be treated as posted at Pratapgarh. On the date of the issuance of the order dated 28.12.2005, the petitioner was not under the administrative control of S.P., Hamirpur and as such the order of removal is illegal, null and void. As far as criminal case is concerned, the petitioner has been falsely implicated in the case. He has been enlarged on bail by this Court vide order dated 8.5.2006. A copy of the bail order dated 8.5.2006 has been annexed as Annexure-14 to the writ petition. The criminal trial is pending and the petitioner is pursuing the matter. It has been further submitted by the learned Counsel for the petitioner that in the present case after suspending the petitioner a formal regular departmental enquiry was initiated against the petitioner as provided under the aforementioned rules of 1991. Without issuing charge-sheet and completing the departmental enquiry, the petitioner has been removed from service. Neither the criminal trial nor the disciplinary proceedings were completed on 28.12.2005, when the order of removal was passed. In view of this, the order appears to be punitive and is violative of Article 311(2) of the Constitution of India. No opportunity of hearing was afforded to the petitioner before passing the order.

Learned Counsel for the petitioner has laid much stress on the fact that there was no likelihood of the petitioner influencing the witnesses. At the time when the order of removal was passed, he was lodged in jail and had already been transferred to Pratapgarh on 29.4.2005. The trial was pending in district Hamirpur. There was no material to form the opinion that the petitioner would misuse his powers or influence the witnesses.

In support of his submission, learned Counsel for the petitioner has placed reliance on the following cases:

Union of India (UOI) and Others Vs. R. Reddappa and Another,

State of U.P. and Anr. v. Shailendra Kumar Singh 2009 (3) ADJ 339 (DB);

State of U.P. and Ors. v. Chandrika Prasad 2006 (1) ESC 374 (All) (DB);

Gajraj Singh v. State of U.P. and Ors. 2007 (3) ESC 2103 (All);

W.P. No. 6772 of 2008, Dinesh Prasad Mishra v. State of U.P. and Ors., decided on 18.4.2008;

C.M.W.P. No. 21191 of 2004, Ganesh Narain Shukla v. State of U.P. and Ors. decided on 5.11.2004 : 2005 (5) AWC 4150;

C.M.W.P. No. 13650 of 2008 Kewal Singh v. State of U.P. and Ors., decided on 19.3.2008;

Raghunath Singh v. State of U.P. and Ors. 2007 (3) ADJ 143;

Ex. Constable 539, C.P. Kanhaiya Lal v. State of U.P. and Ors. 2005 (6) AWC 6010;

Shiv Kumar v. Managing Direct of U.P. State Financial Corporation, Kanpur 2005 (6) AWC 6012; and

Pushpendra Singh (C.P. 2187) and Hemvir Singh (C.P. No. 1048) Vs. State of U.P. and Senior Superintendent of Police,

Learned standing Counsel has opposed this writ petition on the basis of counter-affidavit filed on 22.9.2007. A Criminal Case No. 107 of 2005, P.S. Kotwali, district Hamirpur u/s 307, I.P.C. was registered against the petitioner. He was arrested and lodged in Hamirpur jail. However, the petitioner was suspended on 29.3.2005 as a formal regular departmental enquiry was initiated against the petitioner. In para 10 of the counter-affidavit it has been admitted that the petitioner was transferred from Hamirpur to Pratapgarh under the order of the Inspector General of Police, Allahabad Zone, Allahabad on administrative ground vide order dated 9.4.2005. The statements of Head Constable, Jitendra and Yogendra were recorded by the Enquiry Officer. The charge-sheet had already been submitted against the petitioner on 24.6.2005. In para 15 it has been submitted that the petitioner was involved in the above said criminal case and on the basis of evidence available on record, S.P., Hamirpur passed the order of removal. The orders passed by the appellate and revisional authority were legally valid and proper. Learned standing Counsel has highlighted various paras, i.e., 5, 8, 9, 15, 21, 24 and 27 of the counter-affidavit in support of his submission. Under the circumstances of the case, S.P., Hamirpur had rightly issued the order of rernoval as the petitioner could have abused his position as Head Constable in traffic police.

Sri A.K. Malviya, learned Counsel for the petitioner has responded to the submissions of the learrled standing Counsel. According to him, the petitioner was innocent and was falsely implicated in the criminal case. The S.P., Hamirpur without perusing any evidence and material and without holding a preliminary enquiry had suspended the petitioner on 29.3.2005. As far as the criminal case is concerned, it is still pending disposal in competent court in district Hamirpur and because of pendency of a criminal case, no officer in subordinate rank can be dismissed or removed from service till he is held guilty of the charges. The petitioner was enlarged on bail by this Court. There is no justification of exercising the powers under Rule 8(2)(b) of the Rules.

I have heard learned Counsel for the parties and perused the record. In the present case, when the order of removal was passed, the petitioner was under suspension and a formal regular departmental enquiry was pending against him. A criminal case was registered against him and the matter was under investigation. The petitioner was lodged in Hamirpur jail and he had already been transferred to Pratapgarh on 9.4.2005. The S.P., Hamirpur has indicated in the order that the holding of regular enquiry was not reasonably practicable as the petitioner could have abused his official position as Head Constable in traffic police. He could have influenced the witnesses. In fact no material has been placed before this Court to show the satisfaction of the competent authority, that is, S.P. that holding of formal enquiry was not reasonably practicable. Merely mentioning of the fact that the delinquent may influence the witnesses was not enough. The S.P. was required to record reasons for forming such opinion. The employee was in jail. In the present case, the employee was lodged in Jail and he had already been transferred to Pratapgarh on 9.4.2005. It could not have been possible for him to influence the witnesses in district Hamirpur. After being enlarged on bail, he was supposed to join under S.P., Pratapgarh. It has been brought to the notice of the Court that rawanagi was recorded in the G.D. Under these circumstances, it cannot be inferred that there was likelihood of petitioner influencing or terrorising the witnesses. A Division Bench of this Court in a case in Chandrlka Prasad''s case (supra) has held as follows:

The mere mention of fact that delinquent person may influence witnesses without there being any material to support the same is nothing but a conjecture surmise and ipse dixit on the part of disciplinary authority to dispense with the enquiry. If the contention of the appellant is accepted, the constitutional protection, available to a Government servant under Article 311 of the Constitution as reflected in Rule 8(2) of the aforesaid Rules would render illusory and artificial. The normal rule of enquiry can always be defeated by the disciplinary authority in an arbitrary manner whenever it intend to get rid of a Government servant for any reason, it did not find conducive to its expectations. Constitutional protection cannot be dispensed with lightly as held by the Apex Court and is to be followed and observed in words and spirit and strict manner.

The action appears to have been taken in a hasty manner as a departmental enquiry and criminal trial were pending against the petitioner at the time of the passing the order of removal. The delinquency of the petitioner was not found proved. This Court has held in several decisions cited above that holding of a departmental enquiry is a rule and dispensing with the enquiry is an exception. Before proceeding to impose any one of the major penalty of removal, dismissal or reduction in rank, a departmental enquiry is a must. The power contained under Rule 8(2)(b) is to be exercised in exceptional circumstance and that too by recording detailed reasons, finding to the effect that it is not reasonably practicable to hold an enquiry. The petitioner''s case is squarely covered by the judgments cited and read in the Court. This Court finds that the petitioner has been straightway removed from service. The powers provided under Rule 8(2)(b) of the Rules, 1991 have been exercised without recording appropriate, adequate reasons. Accordingly, the orders dated 28.12.2005, 14.2.2006 and 23.12.2006, are quashed and set aside. The petitioner shall be reinstated in the service. All other necessary consequences shall follow. However, it is open for the respondents if they are so advised to hold a regular enquiry against the petitioner in accordance with law. Accordingly, the petition succeeds and is allowed.