Subhash Pal Singh vs State of U.P. and Others

Devendra Kumar Arora, J.—Heard Sri Sanjay Kumar Jaiswal, learned Counsel for the petitioner and Sri L.K. Shukla, learned Standing Counsel for the respondents.

By means of the instant writ petition the petitioner seeks a direction in the nature of certiorari for quashing the revisional order dated 06.10.2002 (Annexure-5 to the writ petition) passed by the Inspector General of Police, P.A.C., Western Zone, Moradabad as well as the appellate order dated 24.02.2001 of the Deputy Inspector General of Police, P.A.C., Moradabad Division, Moradabad and the dismissal order dated 19.06.2000 of the Commandant, 9th Bn. P.A.C., Moradabad. Petitioner further seeks a writ of mandamus to reinstate him in service with all arrears of salary and other consequential benefits.

The submission of counsel for the petitioner is that the petitioner was dismissed from service vide order dated 19.06.2000 passed by the respondent No. 4 on the charge of absence from duty for some hours without proper opportunity of hearing. He further submits that by means of charge-sheet dated 10.04.2000, the petitioner was charged to the effect that he was absent from duty between 0630 to 1000 hours and found intoxicated on 14.03.2000, when he was posted at Ram Janam Bhoomi, Ayodhya. It is vehemently argued by the counsel for the petitioner that after giving charge-sheet no opportunity of hearing was afforded to the petitioner and the enquiry proceedings were conducted ex-parte as well as before passing major punishment, the petitioner was not given any opportunity of hearing and the dismissal order has been passed against the principles of natural justice. It was also alleged by the petitioner that neither enquiry report nor any show cause notice was issued to him and he was dismissed from service on the basis of bogus enquiry report. The counsel for the petitioner drawn the attention of this Court toward the pleadings made in paras-11, 12, and 13 of the writ petition and also addressed on the question of quantum of punishment. In support of his contention learned Counsel for the petitioner placed reliance on the judgments reported in Babu Lal Vs. State of U.P. and Others, Zafar Alam Vs. Collector, Jaunpur and Others, H.S. Mishra Vs. Secretary/General Manager, Mau-Aima Sahkari Katai Mills Ltd. and Another, Shobh Nath Gautam Vs. State of U.P. and others, Shobh Nath Gautam v. State of U.P. and the judgment and order dated 26.05.2005 passed in Writ Petition No. 9209 of 2002 Satendra Kumar Sharma v. State of U.P. and Ors.

Learned Standing Counsel submitted that there is no illegality or infirmity in the revisional order dated 06.10.2002 passed by the Inspector General of Police, P.A.C., Western Zone, Moradabad as well as the appellate order dated 24.02.2001 of the Deputy Inspector General of Police, P.A.C., Moradabad Division, Moradabad and the dismissal order dated 19.06.2000 of the Commandant, 9th Bn. P.A.C., Moradabad and the same does not warrant any interference by this Court under Article 226 of the Constitution of India.

Learned Standing Counsel further submitted that petitioner was posted at the Sampark Barrier Picket on 14.03.2000 at Ram Janam Bhoomi, Ayodhya, which is a very sensitive place and he absented from 0630 to 1000 hours and on search he was found intoxicated. The proceedings were drawn against the petitioner under Rule 14(1) of U.P. Police Officers of the Subordinate Ranks (Punishment & Appeal) Rules, 1991 and after issuing charge-sheet, the petitioner was given full opportunity to defend himself and in fact he appeared upto the stage of recording the statement of the departmental witnesses and there after many dates were fixed for statement of petitioner''s witnesses and evidence but neither the petitioner choose to appear before the Enquiry Officer nor produced any witness/evidence.

The learned Standing Counsel specifically drawn attention of the Court towards the pleadings of paras-7 and 8 of the counter affidavit, which indicate the details of the steps taken during the enquiry proceedings by Enquiry Officer. In order to verify the facts mentioned in paras-7 and 8 of the counter affidavit which runs contrary to the averments of the writ petition specifically mentioned in paras-11, 12 and 13. This Court directed the learned Standing Counsel to submit the original record of enquiry while reserving the judgment.

In pursuance of the direction of this Court, the original record was produced by the learned Standing Counsel. From perusal of the record and pleadings of the writ petition following position emerges:

The petitioner was appointed on the post of Constable in 9th Bn. P.A.C., Moradabad and was posted at Ayodhya. The petitioner was absent during 0630 to 1000 hours on 14.03.2000 and found intoxicated, when he was on duty at Ram Janam Bhoomi, Ayodhya and he was immediately medically examined.

After preliminary enquiry, it was decided to proceed against the petitioner under Rule 14(1) of U.P. Police Officers of the Subordinate Ranks (Punishment & Appeal) Rules, 1991 and accordingly after appointing an Enquiry Officer charge-sheet was issued on 10.04.2000 alongwith a certified copy of the preliminary enquiry, statements taken during the preliminary enquiry and list of witnesses etc. In the charge-sheet, it was specifically mentioned that petitioner was required to submit his reply by 17.04.2000 and he was also required to indicate in writing whether he wants personal hearing as well as list of persons to whom he wants to examine/cross-examine. The petitioner in response to the charge-sheet submitted before the Enquiry Officer on 11.04.2000 in writing that he has already given his reply during his statement and he has to say nothing further, the petitioner also assured that he will not repeat such mistake in future.

After the reply of the petitioner, the Enquiry Officer vide letter dated 18.04.2000 fixed a date for 25.04.2000 for statement of the departmental witnesses, which was received by the petitioner on 23.04.2000 and the petitioner participated in the proceedings dated 25.04.2000. In the said proceedings petitioner admitted that in response to the charge-sheet he has given reply on 11.04.2000 and the same is his oral statement regarding the charges.

Apart from the statement of the petitioner the statements of Sri Hira Singh, Company Commander, Sri Kanchan Singh Rana Platoon Commander, Sri Samsuddin Khan, Head Constable and Sri Amresh Singh, Constable were recorded in the presence of the petitioner and the petitioner also put his signature on the statements of the said persons. After conclusion of the proceedings on 14.04.2000 next date was fixed for 27.04.2000, vide separate notice dated 25.04.2000 and copy of the notice was received by the petitioner on 25.04.2000 itself.

On 27.04.2000, the statements of the Constable Sri Anil Kumar and Sanya Sahayak Sri Daya Shanker Joshi were recorded in the presence of the petitioner.

The record shows that after statement of every witnesses the petitioner was asked whether he wants to cross-examine the witness but the petitioner did not choose to cross-examine any of the witnesses and accordingly a note was put to the effect that the delinquent is present and he does not want to cross-examine the witness and below this note petitioner put his signature.

After conclusion of the proceedings on 27.04.2000 the Enquiry Officer gave notice to the petitioner that the statements of the prosecution have been completed, accordingly, if he wants to produce any witness or any other evidence in his defence, he may do so on 01.05.2000, the said notice was received by the petitioner on 27.04.2000. It appears that on 01.05.2000 the petitioner did not choose to appear before the Enquiry Officer, accordingly, on 02.05.2000 a fresh notice was issued fixing 08.05.2000 and copy of the same was received by the petitioner on 06.05.2000. On 08.05.2000 the petitioner did not appear before the Enquiry Officer, therefore, another notice was issued fixing 15.05.2000 and a copy of the same was received by the petitioner on 10.05.2000. On 15.05.2000, the petitioner again did not appear before the Enquiry Officer. Record further shows that on none of these dates i.e. 01.05.2000, 08.05.2000 and 15.05.2000, petitioner requested for adjournment of the proceedings. On 20.05.2000, the Enquiry Officer recorded the statement of the messenger who served the letter dated 02.05.2000 and 08.05.2000. The record shows that the Enquiry Officer submitted his report on 20.05.2000 and the Competent Authority after agreeing with the findings of Enquiry Officer issued show cause notice to the petitioner on 25.05.2000 alongwith enquiry report and the same was served on the petitioner on 31.05.2000 and the petitioner was required to submit his reply/ representation within eight days from the date of service of the notice. The petitioner did not reply to the show cause notice and finally the Competent Authority after examining the record and enquiry report passed the order of dismissal from service on 19.06.2000 and a copy of the same was received by the petitioner on 20.06.2000.

The appeal and the revision against the order dated 19.06.2000 were rejected by the Deputy Inspector General of Police, P.A.C., Moradabad Division, Moradabad and Inspector General of Police, P.A.C., Western Zone, Moradabad vide order dated 24.01.2001 and 10.09.2001 respectively. At this juncture, it is necessary to reproduce the averments of the petitioner made in paras-11 and 12 of the writ petition:

That in this regard the letter dated 02.05.2000 issued by the Enquiry Officer shows that no such proper time has been given to the petitioner for their reply. This letter has been issued to the petitioner on dated 02.05.2000 from Moradabad by the Enquiry Officer for oral reply of the petitioner on dated 08.05.2000. Who resides at Aligarh. How it is possible in such a short time to present himself. It is sufficient to show the malafide of the officers concerned.

That entire enquiry conducted ex-parte in hurriedly manner without giving proper time for opportunity of hearing. Neither enquiry report has been given to the petitioner nor show cause has been issued to him in time and on the basis of bogus enquiry report the dismissal order has been passed by the respondent No. 4 on dated 19.06.2000.

After perusal of the record, I am of the considered view that the averments of the aforesaid paragraphs are contrary to the record, misleading and false and as observed above the petitioner participated in the enquiry proceedings dated 25.04.2000 and 27.04.2000 and in his presence the statements of the departmental witnesses were recorded and he himself did not choose to cross-examine any of the departmental witnesses and in the proceedings of 27.04.2000 the date for 01.05.2000 was fixed in his presence. A separate notice for 01.05.2000 was also issued and the same was received by the petitioner at Moradabad, similarly, subsequent notices dated 02.05.2000, 08.05.2000 were served on the petitioner on 06.05.2000 and 10.05.2000 respectively but the petitioner himself neither choose to appear before the Enquiry Officer on the said dates nor sought any adjournment from the Enquiry Officer. In view of the aforesaid facts, now, it is not open for the petitioner to say that vide letter dated 02.05.2000 no proper time has been given to the petitioner for his reply and the enquiry proceedings were conducted ex-parte hurriedly without giving proper time for opportunity of hearing. The petitioner has gone to the extent of the making statement that neither the enquiry report nor the show cause notice was issued to him and on the basis of bogus enquiry report, the dismissal order has been passed by the respondent No. 4, i.e. Commandant, 9th Bn. P.A.C., Moradabad. This statement is also contrary to the record as the same shows that show cause notice dated 25.05.2000 was sent to the petitioner alongwith the enquiry report through special messenger and the same was received by the petitioner on 31.05.2000. It is very unfortunate that the petitioner in order to make out a case has given wrong and misleading facts without realizing that in the legal proceedings there are always two sides and the said wrong and misleading facts can be rebutted by the other side. In para-7 of the counter affidavit details of the steps taken during the enquiry have been demonstrated, but in order to satisfy and verify the correctness of the same this Court summoned the original record of the enquiry proceedings and found that the petitioner was given full opportunity during the course of enquiry, he did participate in the enquiry to a particular stage and thereafter on is own violation he absented from the rest of the proceedings.

It is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and must make a full and complete disclosure of facts to the Court. Parties are not entitled to choose their own facts to put forward before the Court. The foundational facts are required to be pleaded enabling the Court to scrutinize the nature and content of the right alleged to have been violated by the authority.

The Hon''ble Supreme Court in the case of K.D. Sharma v. Steel Authority of India Ltd. and Ors. reported in (2008) 12 SCC 481 in para-36 observed as under:

A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done". The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.

The same view has been taken by the Hon''ble Supreme Court in several other cases. Reference may be made to Raj Kumar Soni and Another Vs. State of U.P. and Another, and Union of India and Ors. v. Amar Singh reported in ( 2007) 12 SCC 261.

From perusal of the record, this Court is satisfied that the Enquiry Officer conducted enquiry proceedings in a fair and proper manner and also taken all necessary steps in compliance of the principles of natural justice and hence impugned orders do not warrant any interference by this Court. So far as question of quantum of punishment is concerned, since the petitioner has not approached this Court with clean hands and writ petition is hit by doctrine of clean hands, therefore, I declined to go into the question of quantum of punishment.

Further all the judgments cited by the counsel for the petitioner are basically on the point of providing no opportunity for cross-examining the witnesses, ex-parte enquiry proceedings etc. and none of these judgments are applicable in the facts and circumstances of the present case.

In view of the aforesaid facts and circumstances though the present writ petition deserves to be dismissed with costs but considering the fact that petitioner was dismissed from service way back on 19.06.2000 this Court refrain itself from imposing any cost for not approaching the Court with clean hands and simply dismiss the writ petition.

No order as to costs.