Ram Kishore Singh (D.) through L. Rs. vs State of U.P. and Others

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

By means of this writ petition, the Petitioner has challenged the validity and correctness of impugned order dated 19.1.1993 (Annexure-13 to the writ petition) dismissing him from service.

The delinquent employee was a constable in Armed Police Force against whom departmental enquiry was being conducted u/s 7 of the Police Act on the following charges : other language

One Jitendra Pratap Singh, S.H.O. Kotwali was appointed as Enquiry Officer. The Petitioner was served with the charge-sheet and was given opportunity to submit his explanation and defend himself. It is alleged that the Petitioner neither appeared before the Enquiry Officer nor submitted any explanation to the charge-sheet. He also did not give any information and also did not produce any witness or submitted arguments. The Enquiry Officer found all the charges proved against the Petitioner. After noting the fact that the Petitioner was not participating in the enquiry, he concluded that the Petitioner was unfit for service in the armed police as his conduct was not conducive to discipline and could bring adverse/ wrong influence on other employees which would not be proper for the State. He submitted enquiry report dated 29.12.1992 recommending dismissal from service. Leave without wages for the period 8.4.1991 to 28.6.1991 (total 80 days), 12.7.1991 to 26.11.1991 (total 137 days) and from 29.11.1991 up to the date of dismissal was also recommended.

The Petitioner was thereafter dismissed from service vide order dated 19.1.1993 passed by the Senior Superintendent of Police, Gorakhpur.

During the pendency of the writ petition, the sole Petitioner expired on 16.5.1999. His legal heirs and representatives were allowed to be substituted by order dated 16.8.2001. The amendment application claiming following two additional relief was also allowed by order of even date 16.8.2001 which is as under :

"8. Issue a writ, order or direction in the nature of mandamus directing the Respondents to provide the employment in the Dying-in-Harness Rules, 1974, to the proposed Petitioner.

Issue a writ, order or direction in the nature of mandamus directing the Respondents to pay all retiral benefits to the proposed Petitioners which is due after setting aside the order of dismissal of the Petitioner dated 19.1.1993."

No counter-affidavit has been filed by the State inspite of stop order dated 2.5.2002. The Petitioner has alleged mala fide on the ground that the Respondents had been harassing him in respect of an incident said to have taken place in the night of 25/26.5.1985. The incident which is alleged to have happened in the night of 25/26.5.1985 was that the Petitioner was sitting in the corner of a berth on which a lady was sleeping. It is alleged by her in the F.I.R. that she felt something creeping on her leg. She woke up and saw the Petitioner sitting on her berth. An F.I.R. was lodged against the Petitioner. The lady and her husband gave contradictory statements and thereafter they also did not appear in the domestic enquiry proceedings. On the basis of the F.I.R., a Case Crime No. 372 of 1985 u/s 354 of the Indian Penal Code was registered against the Petitioner and he was put under suspension but later on he was acquitted of the charges. In this regard, the Petitioner filed Writ Petition No. 28453 of 1991. The aforesaid Writ Petition No. 28453 of 1991 was dismissed as having become infructuous by efflux of time vide order dated 13.9.2001 which reads as under :

"List revised.

Advocates are abstaining from work on the issue of creation of a Bench of High Court in Western U.P.

Perused the record. Considering the nature of the case and controversy raised, this petition appears to have been rendered infructuous by passage of time.

It is, accordingly, dismissed. Interim order, if any, shall stand vacated."

The averments made in the present writ petition are copy of the earlier writ petition except the facts mentioned in para Nos. 1 to 5.

In para 34, it has been averred by the Petitioner (since deceased) that copy of the notice was given to his mother in presence of two witnesses and he had also received a copy of the said notice by registered post. He, however, states that he had personally gone to the office of Respondent No. 2 on 16.1.1993 with the reply of the aforesaid notice but he was abused by him and as such, the reply was submitted by him in the office of Respondent No. 2 to Shri Shitla Prasad Pandey and a copy of the same was also sent through registered post to Respondent No. 2 on 18.1.1993. Copy of the registry has been annexed as Annexure-15 to the writ petition.

The only ground taken by the Petitioner is that he had submitted the reply to the show cause within the time prescribed and the same has not been considered and on the contrary, enquiry proceedings were proceeded ex parte without considering the correct facts. He has also stated that Respondent Nos. 2 and 4 were not vested with any power and he was dismissed from his service under Rule 4 (1) (ka) of the U.P. Subordinate Police Officers (Punishment and Appeal) Rules, 1991, on the basis of concocted story. It is contended that the impugned order has been passed by Respondent No. 2 in violation of Articles 14, 15, 16, 21 and 311 of the Constitution of India.

The photostat copy of the envelope and the registry receipt filed with the petition is a proof that the Petitioner has submitted his reply by registered post. According to the averments in the writ petition, the Petitioner has sent the reply by registered post on 18.1.1993 and before it could have been received the enquiry report was submitted on 19th January, 1993.

From the record, it is evident that the Petitioner submitted his reply within time. There is no reason to disbelieve that he had not personally gone to submit the reply before the S.S.P., Respondent No. 2. It appears that the Respondents have deliberately not considered the reply submitted by the Petitioner and have concluded the enquiry with deliberately noting that he had not submitted his reply and was not participating in the enquiry. From the record, it appears that Respondents were deliberately harassing the Petitioner and injustice is writ large on the face of the record.

The writ petition succeeds and is allowed.

Since the Petitioner cannot be reinstated as he has expired. It would be appropriate having regard to the facts of the case and in the interest of justice, compassion and humanism to mould the relief by issuing a direction to the Respondents to pay all the retiremental benefits to his family. It is accordingly ordered that the Respondents shall pay all the retirement benefits to Smt. Chanmati Devi wife of the deceased-Petitioner calculated on the basis of his salary with increments and all other benefits up to the date of death of her husband. The Respondents shall also consider for appointing one of the legal heirs of the Petitioner who has expired untimely in service under Dying-in-Harness Rules to do complete justice to the family of the bereaved.