Allahabad High Court
Gyan Prakash vs State Of U.P. Thru Prin.Secy.Home ... on 24 May, 2017
Bench: Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- SERVICE SINGLE No. - 11210 of 2017
Petitioner :- Gyan Prakash
Respondent :- State Of U.P. Thru Prin.Secy.Home Civil Sectt.Lko. & Ors.
Counsel for Petitioner :- Bhagwati Prasad Nigam
Counsel for Respondent :- C.S.C.
Hon'ble Rajan Roy,J.
Heard.
The petitioner was appointed as a village chaukidar on 24.11.2006 ever since then according to him he had been continuing as such but by the impugned order of the District Magistrate, Lakhimpur Kheri dated 30.3.2017, he has been discharged from the post of village chaukidar in view of a report dated 16.2.2017of the in charge Inspector, Kotwali that he was not performing his duties appropriately.
The said order is said to have been in pursuance to the District Magistrate order dated 28.3.2017, and the contention of the petitioner is that such an order without any notice or opportunity of hearing to the petitioner is not sustainable.
The learned counsel for the petitioner states that there is no complaint against his work and conduct nor any criminal pendency against him.
The learned Standing Counsel on the other hand informs on the basis of instructions that the report of the police station was that small live stock about 35 in number was slaughtered in the village on 10.2.2017, but no information was provided by the village chaukidar had it been done then the aforesaid could have been prevented, criminal case has been lodged against concerned accused (not the petitioner).
The status of village chaukidar, the conditions of service, the manner of his dismissal have all been considered in a judgment dated 30.5.2014 rendered in Writ A No. 36894 of 2004. The question as to whether a full fledged inquiry is required in terms of the U.P. Government Servant Discipline Appeal Rule 1999 has also been considered. Noticing various provisions of the North Western Provinces Village and Road Police Act 1873, the Act no.18 of 1876, U.P. Police Regulations which contains provisions for appointment, dismissal etc. of village chaukidar as also decision of learned Single Judge Bench of this Court dated 30.10.2009 rendered in Civil Misc. Writ Petition No. 4997 of 2007, Hari Dayanand Vs. State of U.P others 2010(78) LR 61 as also a Division Bench Judgment rendered in Special Appeal No. 994(d) of 2010 Ghanshyam V. State of U.P. and Ors., the concention that a full fledged inquiry was required as per the Rule 1999 before dismissing a village chaukidar from service was found to be misconceived and was rejected. It was noted that a village chaukidar is not a whole time employee. His role in the security and safety of the village is such that held in Hari Dayanand case, the nature of the procedures for dismissal has to be such as can be completed in a short time, however, it was also held that no doubt under Section 10 of the Act, 1973 District Magistrate has the power to dismiss the village chaukidar/policeman but said power has to be exercised in a fair and reasonable manner after due and proper application of mind which obviously would include a notice to him and consideration of his reply in respect thereof which is the minimum requirement of the principles of natural justice and fair play in administrative action. The District Magistrate while passing any order under Section 10 is bound by the obligation imposed upon the authorities of the State under article 14 and 21 of the Constitution of India. It was noted that this Court in the case of Hari Dayanand had already held that the village chaukidar/policeman holds civil post, his salary be paid by the State Government and he is controlled by it in the matter of discipline and that after the enforcement of the Constitution of India, the provisions of the Act 1873 have to be read in consonance with the provisions of the Constitution and also with the provision of Article 311 and also that with respect to dismissal of village chaukidar even under Section 10, the provisions Article 311 shall be attracted and if there is violation thereof the dismissal would be illegal. However, what would be the procedure for taking action against a Village or Road Policeman is the moot question. In the absence of any rules framed under Section 14 of the Act, 1873, in order to read the above provisions of Act, 1873 consistent with the various provisions of the Constitution of India, after independence, it has to be held that an action under Section 10 cannot be taken in violation of the principles of natural justice. The procedure of compliance of principles of natural justice in the absence of rules may not be elucidated in detail but suffice it to say that if the concerned Village Chowkidar is given an adequate opportunity to explain his conduct before passing the order of dismissal, in a given case, it may be sufficient compliance of the principles of natural justice for the reason that considering the nature of the duties of the Village Chowkidar, continuance of a crooked and wicked character person even a short time would be extremely injurious to the village under his charge and, therefore, the nature of proceeding has to be such so as to take the minimum possible time.
The decision in Hari Dayanand has been noticed with approval by a Division Bench in the case of Ghanshyam. The manner, in which the impugned order has been passed, is not in consonance with the law declared by this Court in the aforesaid case neither of Deen Bandhu Paswaan nor in the case of Hari Dayanand nor Ghanshyam. The action impugned is not sustainable as per the provisions contained in Article 14, 21 and 311 of the Constitution of India, especially as no notice was given to the petitioner prior to passing of the said order, thereby, denying an opportunity of hearing to the petitioner in this regard.
In view of the above as the validity of the order impugned is to be seen from the reasons mentioned therein, therefore, there is no necessity to call for a counter affidavit as the order apparently suffers from an error as it does not refer to any notice having been issued and the petitioner has categorically raised this plea in para-8 of the writ petition. In these circumstances the order is quashed. The writ petitions stands allowed, however, with liberty to the District Magistrate to proceed a fresh in the light of aforesaid observations and judgments referred hereinabove.
Order Date :- 24.5.2017
Haseen U.
