Jitendra Kumar vs State of U.P.and others

V.K.Shukla, J.

Present writ petition has been filed questioning the validity of the decision dated 30.04.1994 passed by Senior Superintendent of Police Ghaziabad, dispensing with the service of the petitioner and order of its affirmance in Appeal and Revision on 30.04.1995 and 24.03.1998 passed by Deputy Inspector General of Police, Meerut Region Meerut and Inspector General Police Moradabad respectively.

Brief background of the case is that petitioner has been member of U.P. Police force. On 23.04.1994 without taking any leave and without taking any permission petitioner absented himself, in this background information was sent and qua unauthorized absence of the petitioner it was resolved to take disciplinary action against the petitioner on the orders passed by Senior Superintendent of Police and thereafter charge sheet dated 01.07.1994 was sought to be served upon petitioner through Head Constable Ismil Khan and same was got received on 04.07.1994 and petitioner was asked to submit his reply. Petitioner did not submit his reply and thereafter vide letter dated 16.07.1994 through special messenger Constable Staya Pal, notice was served on 17.07.1994 and it was informed by means of the same that 22.07.1994 was the date fixed. Petitioner did not turn up on 22.07.1994 and Constable Yatindra of Police Station Loni, Ghazibad was examined and next date was fixed for 29.07.1994 and then again information was sent vide letter dated 23.07.1994 through Constable Bharm Singh, of Police Line Ghazibad, special messenger and same was got served on 26.07.2003 and on the fixed date Constable Ranvir Singh was got examined and thereafter again on 31.07.1994 information was sought to be sent informing that from the side of employee evidence is already over and whatever evidence he intends to lead he should lead. Petitioner was not found present at his place, then notice was pasted at his place and signature of his brother Sanjeev Kumar and Ajeet Singh was also obtained. Again on 16.07.1994 special messenger was sent giving time and then again notice was pasted in front of his wife and brothers Ajit Singh and Sanjeev Kumar, and thereafter petitioner moved application seeking time for producing evidence and time was accorded, but nothing came forward, then again vide letter dated 30.09.1994 information and intimation was sent to the petitioner that it is last opportunity to produce evidence. Even after this on 05.10.1994 neither petitioner appeared nor adduced any evidence, and thereafter enquiry report was submitted holding petitioner guilty of the charges. After receiving said report of the enquiry officer, Disciplinary Authority passed order of termination of the petitioner, and said order has been affirmed. At this juncture present writ petition has been filed.

Counter affidavit has been filed and therein action taken has been justified .

Rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit and reiterating the stand taking in the writ petition, and specially that the father of the petitioner has also sent a letter to the concerned authority, and punishment, which has been accorded is contrary to the provision as contained under Rule 14 of 1991 Rules .

Supplementary rejoinder affidavit has also been filed appending therein copy of order passed by Senior Superintendent of Police Ghaziabad dated 30.12.1994.

After pleadings mentioned above have been exchanged, present writ petition is being taken up, for final hearing and disposal with the consent of the parties.

Shri Hari Om Khare, learned counsel for the petitioner contented with vehemence that in the present case principle of natural justice has been violated with impunity as reasonable opportunity has not been afforded to petitioner and further father of the petitioner has already given reply, which has been filed as annexure no. 2 to the writ petition and all these aspect of the matter has not at all been adverted to, as such writ petition in question deserves to be allowed.

Countering the said submission, learned Standing Counsel contended that in the present case full opportunity has been provided for, and rightful conclusion has been arrived at and as in regular departmental proceeding petitioner has deliberately and will fully not turned up, then it cannot be said any prejudice has been caused to the petitioner and petitioner himself is responsible for such a situation, as such writ petition deserves to be dismissed.

After respective arguments have been advanced, the factual position, which is emerging in the present case and which has been noted by the authority concerned and on the basis of evidence available on record that petitioner was served with a chargesheet dated 1st July, 1994 for absenting himself from duty w.e.f. 23.03.1994. said chargesheet was served upon the petitioner on 4th July, 1994 by the head constable Ismail Khan, and petitioner was asked to submit his reply within a reasonable period. Petitioner did not submit his reply, and then again on 16th July, 1994 by special messenger Satpal copy of the letter was served on 17.06.1994 and by means of the same 22.07.1994, the date fixed for enquiry was also informed. On 22.07.1994 petitioner did not turn up and constable Yatindra was examined and therein he fortified the service of notice and the next date fixed was 29th July, 1994, for which information was also sent through special messenger Brahm Singh, and it was served on 26th July, 1994 and again petitioner did not turn up, and statement of Ran Veer Singh was recorded who clearly proved the fact in respect of the absence of petitioner, and thereafter on 31st July, 1994 information was sent that from the side of the employee evidence was closed and thereafter whatever, evidence petitioner intends to lead he should lead. Notice was pasted at his place, and it has been clearly mentioned that two brothers Sanjeev Kumar and Ajit Singh have also signed the same, but petitioner again did not turn up, and again vide letter dated 16.08.1994 information was sent by special messenger Ismail Khan and notice was pasted at his house, but petitioner again did not turn up and thereafter an application for seeking time to produce evidence was moved on 17th August, 1994 by petitioner and for perusing file and thereafter on 06.09.1994 time was sought for, and same was accorded, but petitioner did not turn up to adduce any evidence, then proceedings were closed and report was submitted. Thus, the facts are speaking for itself that not only reasonable opportunity, but much more opportunity have been provided to petitioner, but petitioner deliberately created such a situation by not appearing before the Enquiry Officer. One cannot by permitted to blow hot and cold together, once you have deliberately chosen not to appear on the dates fixed, then on the other hand you cannot complain that principle of natural justice has been violated. Facts are speaking for itself that all possible endeavour was made that petitioner may participate in disciplinary proceedings but he deliberately and wilfully chosen not to appear, and one occasion he appeared and thereafter again disappeared. Once this is a factual scenario, then it cannot be said that principle of natural justice has been violated.

Much emphasis has been laid on the fact that father of the petitioner has already submitted his reply and said reply ought to have been taken into consideration and also on the fact that the petitioner subsequently appeared at Police Line, Ghaziabad, but no information has been given to him during said period. In the present case petitioner was charged employee and it was the petitioner who was duty bound to appear and answer the charges levelled against him at the date time and place fixed for enquiry. Reply which was submitted by the father of the petitioner was in regard to transfer to different District and in regard to suspension be revoked. Said reply is neither here nor there, for the simple reason that reply was required to be submitted by the petitioner himself to show and substantiate that the charges levelled against him were unsustainable and to lead evidence, but he failed to lead any evidence. In this background reply given by father of the petitioner is neither here nor there, as petitioner has full knowledge of date time, and place fixed by Enquiry Officer but he deliberately chose not to appear in the proceeding. As far as his subsequent appearance is concerned, petitioner pursuant to notice dated 30.09.1994 never appeared and prior to it he had come to police lines on 19.08.1994 and then again disappeared on 16.09.1994. In this background petitioner cannot say that opportunity has not been provided to him. Once this is factual scenario of the case and fact of the matter is that in disciplinary proceeding so under taken evidence has been led substantiating the charges and petitioner has deliberately chosen not to participate in the said proceeding, thereafter based on the same, disciplinary action taken against the petitioner cannot be faulted. Petitioner is a member of disciplined force and the authorities concerned in their wisdom have chosen to take view that said act of the petitioner cannot be condoned. In this background in exercise of authority of judicial review, this court will not act as appellate forum by reappreciating evidence and as such refuses to interfere in the matter.

Consequently, writ petition is dismissed.