Mukesh Kumar S/O Mahabeer Prasad vs State Of U.P. Thru Secretary Home & ...
2015 Latest Caselaw 2758 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 8
 

 
Case :- SERVICE SINGLE No. - 5164 of 2010
 

 
Petitioner :- Mukesh Kumar S/O Mahabeer Prasad
 
Respondent :- State Of U.P. Thru Secretary Home & Ors.
 
Counsel for Petitioner :- D.P.S. Chauhan,R P Singh,S P Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Attau Rahman Masoodi,J.

Heard Sri S.P. Singh, learned counsel for the petitioner and Sri Mahendra Nath Yadav, learned Standing Counsel for the respondents.

This writ petition is directed against the orders dated 16.12.2009 whereby the petitioner has been dismissed from services as well as the order dated 1.5.2010 by which the appellate authority has rejected the petitioner's appeal filed against the order of punishment. The impugned orders are contained in Annexure-1 and 2 to the writ petition.

The facts stated in brief are that the petitioner was appointed on the post of Constable in Provincial Armed Constabulary (PAC) and at the relevant point of time, he was posted in U.P. Civil Police. The petitioner while being posted in civil police was proceeded against with the issuance of a charge sheet on 3.7.2009 wherein two charges were specifically levelled. The first charge against the petitioner was to the effect that on 10.6.2008 while being deputed on duty between 9 p.m. to 9 a.m. at Crossroad, Kaiserbagh towards Gymkhana, on being contacted on Radio Transmission Set by the then Incharge, namely, Digvijay Singh, he was suspected to have consumed liquor. The Incharge immediately messaged the police station to call the petitioner back. The petitioner after reaching the police station apprehended of being subjected to medical test, it is alleged, therefore, he fled away from the police station. The second charge levelled against the petitioner is with respect to his unauthorised absence on the respective dates mentioned in the charge sheet. The petitioner after receipt of the charge sheet filed his reply wherein both the charges were specifically denied. The petitioner denied to have consumed liquor during duty hours and the charge of unauthorised absence was also replied by the petitioner by explaining his ailment on the respective dates due to head injury. The charge sheet, for the purposes of establishing the alleged charges against the petitioner, relied upon the oral evidence of Thana Incharge, namely, Digvijay Singh and one Constable Nirankar Swaroop Misra who were posted at the police station. That apart, one Sri Shalabh Mathur, who had submitted preliminary enquiry report was also mentioned as a witness in support of the charges levelled against the petitioner. An enquiry officer was appointed who is said to have held the enquiry and submitted the enquiry report on 22.8.09. The enquiry officer appears to have held the oral enquiry between 30.7.09 to 7.8.09. The statements of Shalabh Mathur who had drawn the preliminary enquiry report and Digvijay Singh, Station Incharge, were recorded on 30.7.09 when the petitioner did not participate for any cross-examination, whereas, on 1.8.09 when the statement of third witness Nirankar Swaroop Misra was recorded, the petitioner appears to have participated in the enquiry and cross-examined the third witness. The statement of three witnesses and cross-examination of one witness was the sole material available before the enquiry officer for appreciating the charges so far as the findings recorded in the enquiry report contrary to the stand taken by the petitioner in his reply are concerned.

It is relevant to note that there was no medical report either relied upon or attempted to have been drawn by the disciplinary authority at the relevant point of time. The medical examination of the petitioner was evaded simply on the ground of petitioner's disappearance from the police station when he was called back from duty on 10.6.08 at about 23:30 p.m.

Interestingly, two show cause notices were issued to the petitioner on the basis of alleged charges and enquiry report submitted on 22.8.09. The show cause notice issued on 7.9.09 proposed a punishment of dismissal from service on the basis of both the charges, whereas the show cause notice dated 8.9.09 was exclusively based on the second charge of unauthorised absence and this charge, at that point of time, had also been enquired by the enquiry officer on the basis of charge sheet dated 3.7.09. The petitioner, however, failed to submit his reply to any of the two show cause notices. Consequently, the petitioner, by an order dated 16.12.09 was dismissed from service by the disciplinary authority on the basis of aforementioned enquiry report and simultaneously by another order issued on the same very date, his salary for the period of unauthorised absence was forfeited.

The petitioner preferred two separate appeals against the orders passed by the disciplinary authority which were also rejected. The appellate authority rejected the appeal filed against the order of dismissal from service as well as the appeal filed against the order of forfeiture of salary by separate orders of the same date i.e. 1.5.2010.

The present writ petition is filed against the order of dismissal from service as upheld by the appellate authority by means of order dated 1.5.2010 whereas the order passed by the disciplinary authority with respect to forfeiture of petitioner's salary on the ground of unauthorised absence, as upheld by the appellate authority by order dated 1.5.2010, has not been challenged by the petitioner.

At the stage when the punishment was proposed by the disciplinary authority, there appears to be a sense of doubt in his mind as to the proportionality of the punishment that could be awarded in the facts and circumstances of the case where the charges levelled though being serious had not been established on the basis of any conclusive evidence against the petitioner. It appears that for this reason alone, the disciplinary authority may have chosen to issue a show cause notice on 8.9.08, the intention whereof is imposition of a minor penalty.

Learned counsel for the petitioner has urged that at the time when reply against the show cause notice was invited, the petitioner applied for leave before the competent authority and a document to this effect has been placed on record as Annexure-8 to the writ petition. The leave application sent by the petitioner mentions the receipt of show cause notice on 16.9.09 but according to the petitioner's stand leave was not granted to him, therefore, he could not submit his reply.

Contrary to the averments made in the writ petition, the respondents in reply thereto have averred in the counter affidavit that the petitioner failed to file a reply to the show cause notice even up to the date of passing of the impugned order on 16.12.09 which sufficiently goes to show that he willingly chose not to put up any defence against the findings recorded in the enquiry report or for that matter against the show cause notice issued on 8.9.09 for imposition of minor penalty.

Dereliction on the part of the petitioner in fling his reply against the show cause notices hardly leaves any doubt about the findings recorded by the enquiry officer being acceptable and binding on him but the fact remains that leave applied for by the petitioner was also not granted by the concerned authority before whom the application was filed.

In the matters of major punishment principles of natural justice have to be strictly adhered to and even a minor doubt as regards non-observance of principles of natural justice, would tilt the balance in favour of the aggrieved person. Such a situation appears to be visible in the present case, particularly in view of two relevant considerations; firstly that the charge of being in a drunken state was not pressed on the basis of any medical evidence but was restricted to be based on no independent witness and secondly the period of unauthorised absence gave rise to a show cause notice for minor penalty simultaneous to the ongoing proceedings.

As far as the charge of consumption of liquor during duty hours is concerned, the medical report would be a conclusive evidence but such an evidence was not attempted nor does it appear to have been seriously looked at so as to prove the alleged guilt. At this stage when there are no traces of such a charge, the same cannot be opened for fresh enquiry. The second charge of habitual absence simultaneous to regular enquiry has nevertheless led the disciplinary authority to take a mild view of the guilt but in absence of a reply being submitted b y the petitioner, the proceedings culminated into two separate orders. Once two punishments on the same very charge are inflicted upon, the one which is to the advantage of the petitioner will have to be treated to be in the real intention of the disciplinary authority otherwise the principle of double jeopardy will vitiate the impugned action as a whole.

In the totality of circumstances, the impugned orders call for interference under Article 226 of the Constitution of India and are hereby set aside without any benefit of past salary to the petitioner who shall be reinstated in service in the corresponding pay and shall be allowed the benefit of continuity only for pensionary benefits and no other service benefit.

The writ petition thus, succeeds in part. No order as to cost.

Dated: Sept. 29, 2015

MFA

Case :- SERVICE SINGLE No. - 5164 of 2010

Hon'ble Attau Rahman Masoodi,J.

The writ petition is allowed in part vide orders of date on separate sheets.

Dated: Sept. 29, 2015

MFA