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

Dilip Gupta, J.—The Petitioner, who is a Inspector in the Civil Police, is aggrieved by the order dated 8/9th December, 2010 by which he has been transferred from District Chandauli to Co-operative Cell Lucknow on the basis of the decision taken by the Police Establishment Board on 8th December, 2010.

It transpires from the records of the writ petition that disciplinary proceedings were initiated against the Petitioner in November, 2006 and the enquiry report exonerating the Petitioner was accepted by the Superintendent of Police, Chandauli by the order dated 27th February, 2008. The State Government, however, by the order dated 24th March, 2008 ordered for de novo enquiry against the Petitioner.

These orders were assailed by the Petitioner in Writ Petition No. 14323 of 2008 which was allowed by the judgment and order dated 23rd August, 2010 with certain observations which are follows:

The background of the case is that the Petitioner was posted as an Inspector at Kotwali Mugalsarai, District Chandauli. The Petitioner in an incident that occurred on 28th November, 2006 arrested three persons found to be in possession of fire arms without having any valid license. One of the accused had a political connection as he happened to be the husband of the Block Pramukh of Behraini, District Chandauli and a close associate of the then local M.L.A. Sri Ram Kishun Yadav, who later on is alleged to have become a Member of Parliament. The aforesaid arrest led to the annoyance of the local M.L.A. who called upon the Deputy Inspector General of Police, Varanasi Range, Varanasi to forthwith suspend the Petitioner and as a result whereof, the Petitioner came to be suspended on 1st December, 2006. The grounds for suspension recited in the order were misbehaviour with the local M.L.A., Mugalsarai Sri Ram Kishun Yadav. Aggrieved the Petitioner filed Civil Misc. Writ Petition No. 66493 of 2006 and the suspension order dated 1st December, 2006 was stayed on 08.12.2006. The said writ petition was opposed by the said M.L.A. on its filing and immediately after passing of the interim order, on the very next day, the Petitioner came to be transferred. This transfer order was also challenged in Civil Misc. Writ Petition No. 68231 of 2006, in which an interim order was granted on 14.12.2006.

In spite of the aforesaid interim orders, the compliance was not made. Consequently, a Contempt Application No. 68 of 2007 was filed. On the filing of the contempt application, the Petitioner was given charge of Kotwali Mugalsarai and accordingly the contempt application was dismissed on 09.02.2007.

The Petitioner was again transferred on 20/21.02.2007 from District Chandauli to District Varanasi, which was again challenged by filing Civil Misc. Writ Petition No. 10822 of 2007 but the same was dismissed. Aggrieved, the Petitioner filed Special Appeal No. 374 of 2007, in which the Division Bench as an interim measure stayed the order of transfer calling upon the Respondents to file their counter affidavit, vide order dated 30.04.2007.

The Respondent-Officers arrayed therein, instead of filing a counter affidavit to the affidavit in the special appeal, proceeded to suspend the Petitioner on 22nd June, 2007 for charges of negligence in duty. The said order was challenged in Civil Misc. Writ Petition No. 28818 of 2007, which was disposed of on 02.11.2007 with a direction to the authorities to dispose of the matter and complete the enquiry within three months. Certain observations were made in relation to the trivial and flimsy nature of the charges in the said order....

I have carefully perused the order dated 27.02.2008 and the Superintendent of Police in a one line cryptic order has accepted the report of the Enquiry Officer. The order, if read plainly, reflects that the records were seen by the Superintendent of Police but the opinion making process of the Superintendent of Police is not reflected and he simply concludes that in view of the report of the Enquiry Officer the charge sheet was being quashed. The Superintendent of Police was required to exercise his independent view with recording of reasons, may be in brief, but not so brief so as to reflect no reason at all. The Superintendent of Police was proceeding to quash the charge sheet which in a way obliterated the entire disciplinary proceedings. This termination of the proceedings by quashing of the charge sheet should, therefore, be proceeded by recording of reasons in brief for accepting the report of the Enquiry Officer so that the decision making process may reflect an appropriate application of mind and of exercise of discretion vested in the disciplinary authority.

In my opinion, the order of the Superintendent of Police does not conform to the aforesaid principles and is therefore equally erroneous.

The orders of the State Government and the Superintendent of Police suffer from malice in law. (See para 9 of Vijay Shekhar and Another Vs. Union of India (UOI) and Others, In view of the aforesaid conclusions drawn, both the orders dated 27.02.2008 and 24.03.2008 are unsustainable in law. This Court has ample powers to mould the relief in order to do justice between the parties. In view of the findings as arrived at, it is necessary in the interest of justice to set aside the order dated 27.02.2008 as well.

Accordingly, the orders dated 27.02.2008 passed by the Superintendent of Police and the order dated 24.03.2008 passed by the State Government are quashed.

Quashing of the order of the Superintendent of Police will however not automatically revive the disciplinary proceedings, so long as the Superintendent of Police does not pass an order recording his reasons for either accepting the enquiry report or disagreeing with the same. In the event, the Superintendent of Police chooses to disagree with the enquiry report then in that event, the Petitioner will again be entitled for an opportunity before any orders are passed by him. In the event, the Superintendent of Police agrees with the enquiry report then he shall record his reasons in brief and forward the same to the controlling authority namely the Deputy Inspector General of Police, who shall pass appropriate orders in accordance with Rule 7 of the 1991 Rules.

After, the proceedings if concluded in favour of the Petitioner, the State Government if it finds it necessary to proceed in the matter by exercise of its suo moto powers, then in that event the State government can exercise its powers in the light of the observations made hereinabove and subject to the restrictions contained in Rule 25 of the 1991 Rules.

The Petitioner has already been reinstated in service and, therefore, his status as such shall not be disturbed, inasmuch as, the quashing of the order dated 27.02.2008 will not revive the suspension order dated 20.06.2007 at this stage. Passing of this order shall not be in any way be an impediment to the State Government or authorities in relation to the transfer and posting of the Petitioner in the administrative exigencies of the State. Accordingly, the writ petition is allowed subject to the observations made hereinabove. No order as to costs.

Immediately after the passing of the aforesaid order, the Superintendent of Police, Chandauli passed an order on 27th August, 2010 posting the Petitioner as Incharge Inspector, Police Station Chakia. The Petitioner was thereafter permitted to join at Police Lines Chandauli on 19th October, 2010. The Police Establishment Board, however, on 8th December, 2010 took a decision to transfer the Petitioner from district Chandauli to Co-operative Cell Lucknow and this decision was conveyed by the Inspector General of Police, Establishment/Administration by the order dated 9th December, 2010. This order dated 9th December, 2010 was subsequently stayed by the Inspector General of Police, Establishment on 17th December, 2010 but subsequently the order dated 17th December, 2010 was set aside by the Inspector General of Police, Establishment by the order dated 22nd December, 2010 and the earlier order dated 9th December, 2010 was revived.

The Petitioner has sought the quashing of the orders dated 9th December, 2010 and 22nd December, 2010.

It is the contention of learned Counsel for the Petitioner that the reason assigned in the order dated 22nd December, 2010 for reviving the earlier order dated 9th December, 2010 that the Government Order dated 2nd December, 2010 does not apply in the case of the Petitioner is not correct. It is his submission that once the order dated 27th August, 2010 was passed by the Respondents for posting of the Petitioner as In-charge Inspector Police Station Chakia, the Petitioner, in terms of Clause 3 of the Government Order dated 2nd December, 2010, could not have been transferred before two years except in accordance with paragraph 4 of the said Government Order. He has pointed out that it is for this reason that permission of the State Government was sought since the Petitioner had not completed two years at Chakia but the State Government has given its opinion that the Government Order dated 2nd December, 2010 shall not apply. It is, therefore, his submission that transfer of the Petitioner before two years without the permission of the State Government, even if the Police Establishment Board has taken a decision, is bad in law. It is also his submission that the transfer order has been passed for malafide reasons and in this connection he has placed the averments made in the writ petition as also the judgment delivered by the Court on 23rd August, 2010 passed in Writ Petition No. 14323 of 2008.

Learned Additional Advocate General appearing for the Respondents has pointed out that the Government Order dated 2nd December, 2010 shall not apply to the case of the Petitioner since after the order dated 27th August, 2010 was passed posting the Petitioner as In-charge Inspector, Police Station Chakia, the Petitioner joined at Police Lines, Chandauli with the permission of the Superintendent of Police, Chandauli and, therefore, he cannot claim to be the officer In-charge of a Police Station. It is also his submission that the order dated 2nd December, 2010 has been rescinded by the order dated 22nd December, 2010 and a fresh order dated 26th December, 2010 has been issued.

As noticed hereinabove, the Petitioner has not completed two years as In-charge Inspector, Police Station Chakia. The decision was, however, taken by the Police Establishment Board on 8th December, 2010 to transfer the Petitioner before two years and the transfer order was issued on 9th December, 2010. The Government Order dated 2nd December, 2010 was operating at that point of time and so permission of the State Government should have been taken as disciplinary proceedings were pending against the Petitioner. Prima-facie, mere joining of the Petitioner at the Police Lines will not mean that the Petitioner is not in charge of a Police Station as he could not have been transferred from Police Station Chakia without a decision having been taken by the Competent Authority.

Even the subsequent order dated 26th December, 2010 which has been placed before the Court by the learned Additional Advocate General mentions that the minimum period of posting of a Inspector at Police Station shall be two years, but under Clause 2, this term can be cut short for the reasons mentioned in Clauses 1 to 5 of the said Government Order. Thus, even under this Government Order the Police Establishment Board is required to consider whether the five clauses mentioned in the Government Order dated 26th December, 2010 will apply.

The matter, therefore, requires examination.

Respondents pray for and are granted five days'' time to file the counter affidavit. Rejoinder affidavit, if any, may be filed within two day''s thereafter.

List this petition on 21st January, 2010.

In view of the submissions advanced by learned Counsel for the Petitioner it is ordered that till the next date of listing, the Petitioner shall not be compelled to join at the Co-operative Cell Lucknow pursuant to the order dated 9th December, 2010.