Amar Pal Singh vs State Of U.P. And Others
2015 Latest Caselaw 20 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 59
 
Case :- WRIT - A No. - 30688 of 2011
 
Petitioner :- Amar Pal Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Siddharth Khare, Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

This is a writ petition under Article 226 of the Constitution by a Sub-Inspector (Special Grade) against the order dated 29th January, 2009, whereby he has been dismissed from service on the ground of negligence in his duty as two prisoners escaped from the police custody, and orders dated 03rd February, 2010 and 27th November, 2010 whereby his statutory appeal and revision respectively have also been dismissed.

A brief reference to the factual aspect would suffice. The petitioner was initially appointed as a Constable in Civil Police in the year 1977. He earned his promotion on the post of Head Constable in 1992. On the basis of his satisfactory service, he was further promoted as Sub-Inspector (Special Grade) in 2007. In the year 2008 he was posted in District Firozabad. On 11th April, 2008 the petitioner along with Head Constable Horam Singh; Constables Khajan Singh, Jaiveer Singh, Gazendra Singh and Lal Singh; and Constable Driver Dashrath Singh were deputed for producing six prisoners, namely, Lala, Rakesh alias Lohare, Parveen, Mangal Singh, B.D.O. alias Rajan Singh and Anil Sharma in the Court. Out of six prisoners, two prisoners, namely, Rakesh alias Lohare and Lala escaped from the police van while it was stationed in the Court premises. With regard to the said incident a first information report was lodged on the same day i.e. 11th April, 2008 at Police Station New Agra. The petitioner was placed under suspension by the Superintendent of Police, Firozabad, the fourth respondent, on the same day on the allegation that the aforesaid two prisoners escaped from the policy custody. On the basis of a preliminary enquiry report dated 30th June, 2008 a charge-sheet was served upon the petitioner on 21st July, 2008. The only allegation in the charge-sheet was that due to negligence of the petitioner two prisoners successfully escaped from the custody of the police. The petitioner submitted a detailed reply to the charge-sheet. The reply filed by the petitioner is on the record as annexure-6 to the writ petition. In the enquiry, the department produced nine witnesses, who were cross-examined by the petitioner.

On 11th December, 2008 a communication was issued by the Enquiry Officer to the petitioner to the effect that he may submit the names of the witnesses and his explanation within a week. In response to the said letter, the petitioner submitted a detailed explanation/reply on 18th December, 2008. In the said reply he has also mentioned the names of his defence witnesses and seven documentary evidences to indicate that he was not guilty of the charges levelled against him. He submitted an application for providing him copy of the statements of some of the witnesses and also submitted an application for extension of time to submit the reply. On 19th December, 2008, just after one day, the Enquiry Officer directed the petitioner to appear before him on 22nd December, 2008 i.e. three days' time was granted to the petitioner.

The petitioner has averred that he could not produce his witnesses as a very short time of three days was granted to him to produce the witnesses. In view of the short time, the petitioner had also obtained the affidavits of some of his witnesses and he made a request that Beeresh Kumar and Ramvir Singh, who were posted as Court Moharrir in the District Court, be summoned for recording their evidence. In this regard, the petitioner had moved an application dated 24th December, 2008, which is on the record as Annexure-10 to the writ petition.

The grievance of the petitioner is that the Enquiry Officer ignored his request and did not summon the witnesses, who, according to the petitioner, were important witnesses. The Enquiry Officer thereafter proceeded exparte and submitted an enquiry report dated 26th December, 2008 holding that the charge levelled against the petitioner has been proved and he is guilty of negligence of duty. A copy of the enquiry report has been brought on record as Annexure-11 to the writ petition.

Thereafter a show cause notice was issued to the petitioner on 29th December, 2008, which he had replied on 15th January, 2009. A copy of the reply submitted by the petitioner dated 15th January, 2009 is on the record as annexure-13 to the writ petition. The disciplinary authority found the petitioner guilty and dismissed him from service vide order dated 29th January, 2009.

Dissatisfied with the order of dismissal, the petitioner preferred an appeal before the appellate authority i.e. Inspector General of Police, Agra Region, Agra, who dismissed the appeal on 03rd February, 2010. Aggrieved by the said order, the petitioner preferred a revision before the Additional Director of Police/ Director (Traffic), U.P., Lucknow which has also been dismissed on 27th November, 2010.

A counter affidavit has been filed on behalf of the fourth respondent wherein it is stated that as per the procedure laid down under Rule 14(1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 19911 a disciplinary proceeding was initiated against the petitioner and after giving him opportunity, the charge levelled against him about his negligence has been proved and thus, there is no error in the dismissal of the petitioner. No other fact has been mentioned in the counter affidavit. Only charge and the findings recorded by the Enquiry Officer have been referred.

I have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, learned counsel for the petitioner, and learned Standing Counsel.

It is contended on behalf of the petitioner that the disciplinary proceeding has been conducted in violation of the principles of natural justice as only three days' time was granted to the petitioner vide notice dated 19th December, 2008, whereby the petitioner was asked to appear on 22nd December, 2008 at 11.00 A.M.. Although very short time was granted to the petitioner, when he reached at the office where he was called, the Enquiry Officer had already left the place. Thus, the petitioner could not produce his witnesses, however, he submitted the affidavits of the witnesses in the office of the Enquiry Officer. It is submitted that no fresh date was fixed by the Enquiry Officer and he proceeded exparte and submitted the report. Sri Khare further urged that the petitioner's reply and the affidavits of his witnesses, which have been extracted in the enquiry report, have not been adverted to by the Enquiry Officer and he has simply recorded his conclusion without any reason. Sri Khare has placed the enquiry report before the Court to demonstrate that the Enquiry Officer has not adverted to any evidence adduced by the petitioner and even the documentary evidences which the petitioner had produced have not been considered by the Enquiry Officer. Lastly, he urged that along with the petitioner there were five other police officials who were deputed to produce the prisoners in the Court but only the petitioner has been picked out for the punishment and no disciplinary proceeding has been initiated against other police officials, in whose custody the prisoners were sent.

Learned Standing Counsel submits that the disciplinary proceeding has been initiated under the provisions of the Rules, 1991 and the procedure laid down under the said Rules have been followed. He further submits that the petitioner was given full opportunity to produce his witnesses and cross-examine the witnesses of the department and the prisoners, who have escaped, were in his custody.

I have considered the rival submissions advanced by the learned counsel for the parties and perused the record.

On 11th April, 2008 six prisoners were to be produced before the concerned Courts in criminal cases and along with the petitioner five other police officials including Head Constable and Constables were accompanying the said prisoners. In the charge-sheet the allegation against the petitioner is that two prisoners asked water from the petitioner and when the petitioner opened the window to provide them water, one of the prisoners threw the powder of red chilli in his eyes and taking advantage of the said fact, they escaped from the police van. The departmental witnesses, who were produced against the petitioner, have made a statement that they had gone to the respective Courts to produce other prisoners in different Courts. Only the petitioner was there with two prisoners, namely, Lala and Rakesh alias Lohare, therefore, it was his responsibility to guard the said prisoners but after throwing the powder of red chilli in his eyes, they escaped from his custody. Thus, they supported the charge against the petitioner. On 19th December, 2008 the Enquiry Officer directed the petitioner to produce his defence on 22nd December, 2008 at 11.00 A.M. The Enquiry Officer has found that he waited the petitioner till 2.00 P.M. in the afternoon but when the petitioner did not turn up, he proceeded to attend his other duty and left the place. However, it has been referred in the enquiry report that on the same day the petitioner had submitted some of the affidavits, which have been extracted by the Enquiry Officer in his report. It is also clear that if the petitioner could not reach within time on the date fixed i.e. 22nd December, 2008, the Enquiry Officer in all fairness ought to have fixed another date for the petitioner. From the record it is manifest that the petitioner has cooperated in the departmental proceeding and he has promptly submitted his reply to the charge-sheet and also replied to the show cause notice. Thus, there was no allegation against the petitioner that he was adopting delaying tactics in the departmental proceeding. In view of the above, I find sufficient force in the submission of Sri Khare that the enquiry has vitiated on the ground of violation of principles of natural justice as the petitioner was not granted sufficient time to produce his witnesses.

Insofar as the submission of Sri Khare that the reply and various documents filed by the petitioner and the affidavits filed by his witnesses have not been adverted to by the Enquiry Officer is concerned, it is also correct. A perusal of the enquiry report would demonstrate that the Enquiry Officer in his elaborate enquiry report has simply extracted the charge-sheet, reply submitted by the petitioner, statements of departmental witnesses, cross-examination and the affidavits filed by the petitioner's witnesses in defence. The Enquiry Officer has totally failed to advert to the affidavits and other reply of the petitioner before recording a finding that the petitioner is guilty of the charge. In fact, the Enquiry Officer has only recorded his conclusion, which is not supported by any reason. The affidavits of the witnesses of the petitioner and his reply indicate that the petitioner alone was not present near the police van but another Constable, namely, Lal Singh, in whose custody one of the prisoners was given, was standing there near the vehicle and it was his duty to produce the prisoner Lala, who also escaped, but no disciplinary action has been taken against the said constable by believing his version that he had gone to collect the warrant in the Court. The affidavits of the petitioner's witnesses, which indicate that the said constable was standing near the police van, have been disbelieved without adverting to those facts.

It is a trite law that the disciplinary proceeding is a quasi-judicial proceeding and the evidence led ought to have been considered in a fair manner. Ignoring the material evidence vitiates the enquiry. The disciplinary authority should arrive at its conclusions on the basis of the evidence on record and the matter should not be left in a suspicious state. The Supreme Court in the case of Kuldeep Singh v. Commissioner of Police and others2 held as under:

"7. In Nand Kishore Prasad v. State of Bihar3 it was held that the disciplinary proceedings before a domestic tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the enquiry officer would be perverse.

8. The findings recorded in a domestic enquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of A.P. v. Rama Rao4 in which the question was whether the High Court under Article 226 could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India Ltd. v. Prakash Chand Jain5 and Bharat Iron Works v. Bhagubhai Balubhai Patel6. In Rajinder Kumar Kindra v. Delhi Admn.7 it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated."

In Anil Kumar v. Presiding Officer and others8 the Supreme Court observed as under:

"5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the enquiry officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. The enquiry officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the enquiry officer. It has to be speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India9, this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad Santosh Kumar v. State of U.P.10, this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a more gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.

6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no corelation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable."

In respect of nature of disciplinary proceedings the Supreme Court in M.V. Bijlani v. Union of India and others11 has observed as under:

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

I have perused the orders of the appellate authority and the revisional authority also. The petitioner has taken the aforesaid grounds in his memo of appeal and revision but his appeal and revision have also been dismissed without adverting to the said facts.

After careful consideration of the matter, I am of the view that the enquiry has vitiated on the ground of violation of principles of natural justice and non-application of mind. Accordingly, the dismissal order, appellate order and revisional order dated 29th January, 2009, 03rd February, 2010 and 27th November, 2010, as are impugned in this writ petition, passed by the fourth, third and second respondents respectively, are quashed. The disciplinary authority is directed to conduct a fresh enquiry from the stage when the petitioner was denied the opportunity. The fresh enquiry may be concluded expeditiously.

The writ petition is, accordingly, allowed.

No order as to costs.

Order Date :- 20.4.2015

SKT/-

Hon'ble Pradeep Kumar Singh Baghel, J.

The writ petition is allowed.

For order, see my order of the date passed on the separate sheets (nine pages).

Date: 20.04.2015.

SKT/-