Lav Kumar Tiwari vs The State of U.P. and Others

Devendra Kumar Arora, J.—Heard Sri Vinay Bhushan, Advocate for the petitioner and the learned Standing Counsel for the opposite parties.

By means of present writ petition, the petitioner has sought a writ of certiorari for quashing the impugned order dated 31.03.2010 passed by the Superintendent of Police, Hardoi. The petitioner further prayed for a writ of mandamus commanding the respondents to reinstate the petitioner in service and pay his salary regularly continuously as and when the same falls due.

The sole question involved in the present petition is:

As to whether the impugned order has been passed by the Superintendent of Police, Hardoi in utter violation of principles of natural justice or not?

Since the legal question is involved, the writ petition is being heard finally at the admission stage.

The brief facts of the case as culled out from the pleadings of the writ petition are as under.

The father of the petitioner late Jagannath Tiwari was working as Sub-Inspector in U.P. Police, who died in harness on 17.07.2003 while serving at district Hardoi. The petitioner being dependent and eligible for appointment approached the respondents for compassionate appointment and after completing all the formalities the Superintendent of Police Hardoi appointed the petitioner vide order dated 12.07.2007. The petitioner was sent for training at P.T.S. Gorakhpur. The petitioner alongwith several others jointed for training on 01.01.2008 as Constable (Arakshi). The first examination was held in the month of March, 2008. The petitioner successfully passed the said examination. The petitioner during his training fell seriously ill and consequently he left the training centre on 19.05.2008 and sent a letter to the Principal, P.T.S. Gorakhpur on 21.05.2008 for information about his illness and inability to attend the training. The petitioner subsequently from time to time kept on informing through letters dated 07.06.2008, 03.07.2008, 04.08.2008, 05.09.2008 10.10.2008, 12.11.2008, 03.12.2008 and 07.01.2009, the copies of the same have been annexed collectively as Annexures-4 and 5 to the writ petition.

The petitioner was served with a letter of Superintendent of Police, Hardoi dated 21.01.2009 directing him to report at P.T.S., Gorakhpur within 24 hours of the receipt of the letter, failing which it shall be deemed that petitioner is no longer interested in serving the police department and departmental action shall be taken against the petitioner. Subsequently, Superintendent of Police, Hardoi, vide letter dated 04.03.2009 requested the D.I.G., Police/ Principal, P.T.S., Gorakhpur to inform him about the joining of the petitioner and in the said letter the petitioner was also directed to report at Police Lines, Hardoi immediately. The petitioner in response to the letter dated 04.03.2009 submitted his joining in the office of the Superintendent of Police, Hardoi on 07.03.2009 and the petitioner was attached to the Police Line, Hardoi. The attachment of the petitioner was continued upto 07.11.2009 and the petitioner was paid his stipend regularly from the month of March, 2009 to November, 2009. The Additional Director General of Police (Training), Directorate of Police Training U.P., Lucknow sent message on 06.11.2009 whereby the petitioner was allotted R.T.C. Lucknow for training and directions were also issued to relieve the petitioner from district Hardoi. The petitioner in response to the direction of Additional Director General of Police, (Training), Directorate of Police Training U.P., Lucknow was relieved by the Superintendent of Police, Hardoi on 07.01.2009 and reported at R.T.C. Lucknow on 08.11.2009. The petitioner appeared in the training examination in the month of March, 2010 and cleared the same successfully.

The Superintendent of Police, Hardoi by means of order dated 31.03.2010 dismissed the petitioner from service and the same was served on 01.04.2010 to the petitioner. Unfortunately, the petitioner fell ill and after recovery from illness sent all the medical certificates including fitness certificate dated 05.03.2009 issued by P.H.C. Jagatpur, district Pratapgarh, but all the documents of the petitioner were sent back with the remarks that the petitioner''s services have already been dispensed with.

The submission of learned Counsel for the petitioner is that the impugned order dated 31.03.2010 has been passed without affording any opportunity or show cause and the same has been passed simply on the basis of preliminary inquiry report submitted by the Circle Officer, Harpalpur, district Hardoi in purported exercise of Clause (16) of syllabus and the general directions regarding the recruit civil police and P.A.C.

It is also submitted by learned Counsel for the petitioner that it is settled principles of law that a preliminary enquiry is only for a limited purpose to enable the disciplinary authority to form an opinion regarding desirability of holding regular enquiry and the preliminary enquiry cannot be a substitute of a full fledged enquiry. Even otherwise in the preliminary inquiry the Circle Officer, Harpalpur, Hardoi has not afforded any opportunity of hearing to the petitioner and the report has been submitted ex-parte. The copy of the preliminary enquiry report has not been supplied to the petitioner, on the basis of which the impugned order dated 31.03.2010 has been passed. It is also submitted that perusal of impugned order clearly reveals that the same is not a simplicitor order and is a punitive in nature casting stigma upon the petitioner.

Learned Counsel for the petitioner also submitted that the opposite party No. 5 while passing the impugned order has ignored the fact that in pursuance of the directions of opposite party No. 3 dated 04.03.2009 the petitioner submitted his joining on 07.03.2009 and was attached with the Police Lines, Hardoi and the said attachment was continued upto 07.11.2009. Thereafter, in pursuance of the directions of Additional Director General of Police (Training), Directorate of Police Training U.P., Lucknow the petitioner was relieved on 07.11.2009 by the opposite party No. 5 for completion of his training at R.T.C. Lucknow. The petitioner after completing his training appeared in the training examination conducted by the R.T.C., Lucknow in the month of March, 2010 and successfully cleared. The opposite party No. 5 has only mentioned about the petitioner''s absence and by placing reliance of Clause (16) of Syllabus and the General Directions Regarding the Recruit Civil Police and P.A.C., which has no statutory force as the field is occupied by the provisions of U.P. Police Regulations and passed the impugned order. Learned Counsel for the petitioner placed reliance on Regulation 541(2) of U.P. Police Regulations, which provides the procedure for removal of a trainee after affording an opportunity.

Learned Counsel for the petitioner also relied upon the judgment of Hon''ble Supreme Court reported in 2000 (5) SCC 252 Chandra Prakash Shahi v. State of U.P. and Ors.

Learned Standing Counsel while opposing the writ petition submitted that the petitioner was absent from training from 19.05.2008 and he was repeatedly informed by the Principal, P.T.S., Gorakhpur to report at the training centre immediately, failing which action will be taken against the petitioner. The petitioner remained absent upto 07.03.2009. The action taken against the petitioner is well reasoned and in accordance with law. The writ petition deserved to be dismissed.

Learned Counsel for the petitioner in his reply submitted that the petitioner has not received any letter from the Principal, P.T.S., Gorakhpur and the same appears to have been sent at the petitioner''s address of district Sultanpur, whereas the petitioner in his letters clearly mentioned his present address of district Pratapgarh.

I have considered the submissions of learned Counsel for the parties and gone through the record.

It is admitted position that the petitioner while undergoing training as constable at P.T.S. Gorakhpur absented from training centre w.e.f. 19.05.2008 and in pursuance of the letter of Superintendent of Police Hardoi dated 04.03.2009 the petitioner submitted his joining in the office of respondent No. 5 on 07.03.200 and was attached to the Police Lines Hardoi where his attachment continued upto 07.11.2009. The petitioner was also paid his stipend from the month of March, 2009 to November, 2009. Thereafter, in pursuance to the directions of Additional Director General of Police (Training) Directorate of Police Training U.P., Lucknow the petitioner was relieved on 07.11.2009 by the Superintendent of Police Hardoi to join at R.T.C. Lucknow on 08.11.2009. The petitioner in pursuance to his relieving reported at R.T.C. Lucknow on 08.11.2009 and also appeared in the training examination conducted by the R.T.C. Lucknow in the month of March, 2010 and cleared the same successfully.

The impugned order only talks about the absence of the petitioner from P.T.S. Gorakhur and even in the preliminary inquiry conducted by the Circle Officer, it appears that no opportunity was afforded to the petitioner and ex-parte inquiry report was submitted by Sri Ram Lal Rai, Circle Officer, Harpalpur, Hardoi. The Superintendent of Police, Hardoi has totally ignored the subsequent fact of the petitioner''s joining in his office in pursuance of direction dated 04.03.2009 and the attachment of the petitioner at the Police Lines Hardoi upto 07.11.2009, as well as petitioner''s relieving by the Superintendent of Police Hardoi to join at R.T.C. Lucknow pursuant to the directions issued by the Additional Director General of Police (Training), Directorate of Police Training U.P., Lucknow dated 06.11.2009. The impugned order appears to have been passed without considering the entire facts and material and lacks proper application of mind. Apart from this, the para-541 of Police Regulations provides for affording an opportunity before discharging a recruit, which reads as under:

(1) A recruit will be on probation from the date he begins to officiate in a clear vacancy. The period of probation will be two years except that in the following cases :

(a) those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for three years, and

(b) those transferred to the Mounted Police will be governed by the directions in para 84 of the Police Regulations.

If at the end of the period of probation conduct and work have been satisfactory and the recruit has been approved by the Deputy Inspector General of Police for service in the force, the Superintendent of Police will confirm him in his appointment.

(2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his services. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.

(3) Every order passed by a Superintendent under sub-para (2) above shall, subject to the control of the Deputy Inspector General, be final.

The Hon''ble Supreme Court in the case of AIR 2000 1706 (SC) held that the probationer constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The paras-33, 34 and 39 are relevant for the present controversy, which read as under:

Where, therefore, the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. The probationer Constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his services.

If this procedure is followed and the services are terminated thereafter, it would not amount to a punitive action. The being mandatory in nature, compliance therewith would not alter the nature of the order passed against the probationer. This aspect was considered by this Court in two decisions, namely, State of Orissa v. Ram Narayan Das and Ranendra Chandra Banerjee v. Union of India in terms of Rule 55-B of the Civil Services (Classification, Control & Appeal) Rules, which, in all respects, is akin to para 541 of the U.P. Police Regulations quoted above. The relevant portion of Rule 55-B which was extracted in the case of State of Orissa v. Ram Narayan Das is quoted below:

Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment.

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As we have already seen above, there has been total non-compliance with the provisions of para 541 of the U.P. Police Regulations and services of the appellant were terminated without ever issuing him any notice intimating the grounds on which his services were proposed to be terminated nor was his explanation ever obtained. The services were terminated because he was found involved in a quarrel between two other Police Constables.

On analyzing the facts of case in hand, this Court comes to the conclusion that the impugned order dated 31.03.2009 has been passed without taking into consideration the entire facts and record, only relying on the ex-parte preliminary enquiry report in utter violation of principles of natural justice. The order has also been passed in violation of para-541 of the Police Regulation and lacks proper application of mind of the authority concerned. Thus, the impugned order dated 31.03.2009 deserves to be quashed and the same is hereby quashed with the direction to the Superintendent of Police, Hardoi to reinstate the petitioner on the post of Constable. However, it is open for the Superintendent of Police Hardoi to proceed with the matter as per law and before taking any action, it is expected that the petitioner will be afforded due opportunity to present his case.

Accordingly, the writ petition is allowed. No order as to costs.