Deena Nath Shukla vs Inspector General P.A.C., ...
2011 Latest Caselaw 6443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                                                                             A F R
 

 
                                                                                                                                                ''Court No. 01'
 
Civil Misc. Writ Petition No. 22407  of 1995
 
  Deena Nath Shukla
 
Versus
 
Inspector General PAC, Western Zone, 
 
Moradabad and others
 
 
 
Hon'ble Krishna Murari, J.

Heard Sri Adarsh Bhushan, learned counsel for the petitioner and the learned Standing Counsel for the respondents.

The facts in brief are that the petitioner was selected for the post of Constable in the year 1993 and was sent for training at Training Centre, Sitapur. While undergoing training, an order dated 26.12.1993 was passed by the Commandant 8th Battalion, PAC, Bareilly, the respondent no. 3 herein, terminating his services in exercise of powers conferred by U. P. Temporary Government Servants (Termination of Services) Rules, 1975 (herein after referred to as the ''1975 Rules').

Learned counsel for the petitioner has assailed the impugned order on following two grounds:

1.The impugned order having been passed in purported exercise of power under 1975 Rules is illegal and without jurisidction since the said Rules are not applicable to a police constable as the services are governed by the provisions of U. P. P. A. C. Act, 1948 read with the Police Act, 1861 and the Rules and Regulations framed thereunder.

2.The impugned order has been passed in utter violation of para 541 of U. P. Police Regulations which provides the procedure for discharge of a probationer constable and the said procedure has not been followed.

In reply, it has been submitted by the learned Standing Counsel that the petitioner is habitual of misconduct and he was only a probationer hence his services have been terminated as no longer required by giving pay in lieu of one month's notice. Referring to the averments made in the counter affidavit, it has been submitted that while undergoing training, the petitioner absconded from the training centre on 22.10.1993 without any permission or leave and he was called back from his residence on 26.10.1993 through special messenger and in this manner he unauthorizedly abstained from the training for three days and for this lapse he was awarded punishment of of 14 days P. D. Parade Drill and the period of absence was sanctioned as leave without pay. However, he submitted his resignation on 06.11.1993 which was forwarded to the Commandant 8th Battalion P. A. C. Bareilly for acceptance but the same was withdrawn by the petitioner on 14.11.1993 on the ground that he was medically disturbed due to death of his mother. He further submitted that the petitioner again absented himself unauthorizedly since 26.11.1993 and on enquiry his mother was found to be alive. In view of the aforesaid repeated acts of indiscipline, the Commandant 2nd Battalion recommended for suitable action against the petitioner whereupon his services were terminated vide order dated 21.12.1992 exercising powers under 1975 Rules.

Appeal and revision filed by the petitioner against the order of termination have also been rejected.

The first ground urged by the learned counsel for the petitioner that his services could not have been terminated in exercise of power under 1975 Rules is no longer res integra. A Division Bench of this Court in the case of Subhash Chandra Sharma Vs. State of U. P., 2000 AWC (3) 2367 has held as under :

"Thus, there can be no doubt that if the appropriate Legislature has enacted a law regulating the recruitment and conditions of service, the power of the Governor is totally displaced and he cannot make any Rule under proviso to Article 309 of the Constitution. In State of U. P. Vs. Babu Ram Upadhyaya, AIR 1961 SC 751, a decision rendered by a Constitution Bench, the Police Act and the U. P. Police Regulations came up for consideration and it was held as follows in paragraph 12 of the Reports :

"the result is that the Police Act and the Police Regulations made in exercise of power conferred on the Government under that Act, which were preserved under Section 243 of the Government of India Act, 1935, continue to be in force after the Constitution so fas as they are consistent with the provisions of the Constitution."

A Full Bench of this Court in the case of Vijay Singh and others Vs. State of U. P. and others, 2004 (4) ESC (All) has held that Rules framed under proviso to Article 309 of the Constitution do not apply to Police personnel as their services are governed by the Police Act, 1861 and the U. P. Police Regulations. In view thereof, the U. P. Temporary Government Servants (Termination of Service) Rules 1975, may not be applicable. In paragraph 64 of the judgment, the Full Bench has observed as under :

"As herein the field is already occupied by the provisions of Act, 1861 which is in operation by virtue of the provisions of Article 313 of the Constitution, thus, Rules 1972 could not be attracted at all. The Government Orders issued for fixing the maximum age for recruitment on subordinate police posts operate in an entirely different field and are not in conflict with the Rules 1972. The case stands squarely covered by the Apex Court judgment in Chandra Prakash Tewari (supra) and, thus, it is not possible for us to take any other view. The submissions made by Mr. Chaudhary that pre-constitutional law stands abrogated altogether by commencement of the Rules 1972, is devoid of any merit. Therefore, our answer to question no. 1 is that the field stood occupied on account of the provisions of Section 2 of the Act 1861."

This view also stands fortified by large number of judgments of the Hon'ble Apex Court referred to and relied upon in the case of Vijay Singh (supra) and also in Chandra Prakash Shahi Vs. State of U. P. and others, AIR 2000 SC 1706.

Reference may also be made to the decision of the Hon'ble Apex Court in the case of Chandra Prakash Tiwari Vs. Shakuntala Shukla, AIR 2002 SC 2322 wherein the Hon'ble Apex Court while considering the provisions of U. P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994 framed under proviso to Article 309 of the Constitution and the Government Order dated 5.11.1965 issued under Section 2 of the Police Act, 1861 held that Rules framed under proviso to Article 309 would not apply since the field is covered by statutory order under Section 2 of the Police Act, 1861.

In view of the law settled by the decision of the Apex Court and the Full Bench of this Court, the impugned order terminating the services of the petitioner in purported exercise of powers conferred by 1975 Rules is illegal and without jurisdiction as the provisions of the said Act are not applicable in the case of the petitioner.

In so far as the second argument advanced by the learned counsel for the petitioner is concerned the Constables recruited in P. A. C. are governed by the U. P. Provincial Armed Constabulary Act, 1948. Section 5 of the said Act makes the U. P. Police Act 1861 and the Rules and Regulations framed thereunder in the matters not provided in the Act and thus, the Police Regulations are fully applicable in the case of the petitioner. In such view of the matter Regulation 541 providing procedure for termination of probationer constable becomes applicable in the case of the petitioner. Para 541 (2) of the Regulations read as under :

"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 service. 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."

There is no averment in the counter affidavit filed by the respondents to demonstrate that the procedure prescribed by Regulation 541 (2) was followed and any notice was issued setting out the grounds on which it was proposed to discharge him or any opportunity was afforded to the petitioner to show cause before passing the impugned order of termination though the counter affidavit refers to some enquiry in which the statement made by the petitioner that he was mentally disturbed on account of death of his mother was found to be false as his mother was alive but there is nothing on record to show that he was ever given notice or show cause in the manner contemplated in para 541 (2) of the Regulations. Thus, it is clear that the procedure prescribed by Regulation 541 (2) of the Regulations was not followed and the impugned order has been passed in utter violation of the said provision.

In view of the above facts and discussions, the writ petition succeeds and is allowed. The termination order dated 26.12.1993 passed by the respondent no. 3, Commandant 8th Battalion, P. A. C., Bareilly as well as the appellate and revision orders dated 23.9.1994 and 30.1.1995 passed by the respondents no. 2 and 1 respectively are hereby quashed. The petitioner shall be entitled for reinstatement with all consequential benefits as admissible to him under law.

However, in the facts and circumstances, there shall be no order as to costs.

12.12.2011

Dcs.