Pramod Kumar vs State of U.P.and Others

Rajiv Sharma, J.—Heard learned counsel for the petitioner and learned Standing Counsel.

By means of the instant writ petition, the petitioner assails the order of dismissal dated 31.1.2009 passed by the opposite party No.2.

Learned counsel for the petitioner contends that the petitioner was appointed as Constable in P.A.C. on 1.4.1992. On the false implication of Smt. Kanti, Shivir Pal has submitted a report against the petitioner on 25.11.2007. Chargesheet under Rule 14(1) of the U.P. Police Officer of the Subordinate Rank (Punishment and Appeals) Rules, 1991 was issued to the petitioner, to which the petitioner tendered his reply. The petitioner also tendered his supplementary reply on 24.7.208. The Enquiry Officer submitted his Enquiry Report on 8.7.2008 and the Disciplinary Authority issued a showcause notice to the petitioner on 3.8.2008, to which the petitioner submitted his reply on 22.9.2008. The order of dismissal was passed on 31.1.2009.

Learned counsel for the petitioner also submits that major punishment cannot be awarded on the basis of the presumption. He does not dispute that the conduct of the petitioner constitutes moral turpitude and in violation of the provisions of the Conduct Rules for which he was properly dealt with in departmental proceedings and suitably punished by the Authority by imposing punishment of his dismissal from service.

A counter affidavit has been filed by the State, wherein it has been stated that the statements were recorded and the Gram Pradhan, Gram Panchayat Gaura Sumerpur, Unnao had testified in writing about the petitioner''s second marriage with Manisha Devi, D/o Ram Pyare in the month of December, 2006 to which learned counsel for the petitioner submits that from perusal of annexures annexed with the counteraffidavit, it is evident that none of the witnesses had proved the second marriage of petitioner and thus, the entire allegations levelled against the petitioner are false. Further, the respondents have also not considered the statements of defence witnesses. According to the petitioner, no enquiry was conducted and without any evidence of second marriage, the petitioner has been awarded major punishment of dismissal.

It is well settled proposition of law that a Court sitting in judicial review against the quantum of punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty is not in dispute. However, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court, then the Court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation, which may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof.

As in the instant case, the department has failed to prove the second marriage with Manisha Devi during the subsistence of his first wife and as such, it is not appropriate to impose the quantum of punishment to harass the petitioner. In identical matter, this Court allowed the petition of Ramendra Kumar Sharma by means of the judgment dated 16.1.2009 passed in writ petition No.6203 (S/S) of 2007.

Accordingly, the writ petition is allowed. The order of dismissal dated 31.1.2009 passed by the opposite party No.2 is hereby set aside. The matter is remanded to the Disciplinary Authority to reconsider the petitioner''s case with regards to the quantum of punishment.

(Petition allowed)