Prakash Veer vs State Of U.P. And Others
2018 Latest Caselaw 3576 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 7 A.F.R
 

 
Case :- WRIT - A No. - 6104 of 2005
 

 
Petitioner :- Prakash Veer
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- S.N. Pandey,Havaldar Verma,Jaswant Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saumitra Dayal Singh,J.

1. Heard learned counsel for the petitioner and learned Addl. Chief Standing Counsel for the respondents. Rejoinder Affidavit filed today, taken on record.

2. The present petition has been filed seeking quashing of the order dated 9.11.2014 passed by the Deputy Inspector General of Police (respondent no.4), by which the petitioner's services on the post of Sub Inspector (Local Intelligence Unit), District Saharanpur had been terminated.

3. Admittedly, the petitioner obtained appointment on the post of Sub Inspector (Local Intelligence Unit), Saharanpur on 21.9.2001 under dying-in-harness scheme of the State Government. On 25.10.2004, a show cause notice was issued to the petitioner requiring him to show cause within eight days why his services may not be terminated as the petitioner was alleged to have obtained appointment by playing fraud since the father of the petitioner was still alive and he had never been employed with any police force. Reference was also made to certain inquiry that had been conducted against the petitioner in this regard.

4. The petitioner appears to have responded to the aforesaid notice by his reply dated 5.11.2004 wherein he prayed to be supplied copies of the adverse material relied against him as also he prayed for 30 days time to submit his reply.

5. Thereafter, on 9.11.2004 the impugned order was passed whereby the services of the petitioner were terminated.

6. Learned counsel for the petitioner submits that in the first place, the termination order has been passed in hurriedly inasmuch as despite specific application having been filed praying for 30 days time and to be first supplied copy of the adverse material being relied against him, the order of termination was passed without affording any reasonable time to the petitioner to submit his reply in violation of fundamental rules of natural justice.

7. Reliance has been placed on a recent decision of this Court in the case of Lata Verma Vs. State of U.P. and 3 Others in Writ-A No. 37362 of 2013 decided on 6.12.2017. In that case, amongst others, the Court found that the inquiry had been concluded hurriedly without affording adequate opportunity to the delinquent to submit his reply.

8. Then, much emphasis has been led on the fact that dismissal from service is a major punishment and such punishment could not have been awarded except in accordance with law i.e. after initiation and conclusion of a proper/full fledged domestic inquiry. Reliance has been placed on the another decision of the learned Single Judge in the case of Ashok Kumar Constable No. 506 C.P. Vs. State of U.P & Others in Writ-A No. 16148 of 2010 decided on 14.11.2013.

9. Learned Standing Counsel on the other submits that the petitioner had participated in the inquiry that had been conducted in this case. Copy of such inquiry proceedings are claimed annexed to the counter affidavit. It has thus been submitted that the proper inquiry had been conducted before the termination order came to be passed.

10. It has further been submitted that in any case, it is undisputed that the petitioner's father Roop Kishor was alive in the year 2001 and he was never an employee of any civil police. Therefore, the objection being raised by the petitioner is largely academic and no useful purpose may be served even if the petitioner were to be allowed a full-fledged domestic inquiry

11. Third, it has been submitted that in any case remedy, if any available to the petitioner would be to file a statutory appeal under Rule 20 of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal), Rules, 1991. That remedy having not been availed, the present writ petition is liable to be dismissed for that reason also.

12. Having considered the argument so advanced by learned counsel for the parties, it is seen that the writ petition was filed in the year 2005. Thirteen years have passed since then. Therefore, neither it would be of any use to relegate the petitioner to the forum of alternative remedy at this stage nor it would serve any useful purpose to dismiss the writ petition for that reason.

13. Then, as to issuance of a writ of Certiorari, in State of Maharashtra v. Prabhu, (1994) 2 SCC 481, the Supreme Court held as below:

"4. ................................................................................................................... The High Courts exercise control over Government functioning and ensure obedience of rules and law by enforcing proper, fair and just performance of duty. Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction. But one of the principles inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the court may restrain from exercising the power.

5?.......................................................................................................Therefore, even if the order of the Government was vitiated either because it omitted to issue a proper show-cause notice or it could not have proceeded against the respondent for his past activities the High Court should have refused to interfere in exercise of its equity jurisdiction as the facts of the case did not warrant interference. What could be more harmful to society than appointing the respondent as member of the Board, a position of importance and responsibility, who was found responsible for mass copying at the examination centre of which he was a supervisor. It shakes the confidence and faith of the society in the system and is prone to encouraging even the honest and sincere to deviate from their path. It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."

(emphasis supplied)

14. Then, in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, the Supreme Court summarised its conclusions in paragraph 38 of that report. With respect to writ of Certiorari, it held:

"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:

(1) ??????

(2) ??????

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction ? by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction ? by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) ??????

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

(emphasis supplied)

15. In the facts of the present case it may not be disputed that the termination order constituted a major punishment and therefore it cannot also be disputed that it should have been passed after first confronting the delinquent with all the material required by him in a full-fledged domestic inquiry. However, at the same time, the writ court in exercise of its extraordinary discretionary jurisdiction under Article 226 may not issue such writ merely because a jurisdictional error or a manifest error apparent from the face of proceedings is made out or because the rules of natural justice had been broken while passing the impugned order. Issuance of a writ is not an obligation that the writ court bears to correct each and every legal wrong. Such wrong, when established satisfy a pre-condition to consider exercise of the extraordinary discretionary jurisdiction. Unless such pre-condition is first satisfied there may not exist any occasion to consider exercise the discretionary jurisdiction. On the other hand once the pre-condition is found existing the writ court is then to examine whether issuance of a writ of Certiorari would serve the interest of justice.

16. Admittedly, the petitioner gained compassionate appointment claiming death of his father, while in police employment. Also, it is undisputed that the petitioner's father was alive and he was never employed with the civil police. In this regard, it is seen that the show cause notice clearly mentioned that the petitioner's father was still alive had never been an employee of the civil police. Such recital is also contained in the impugned order. Despite the above, a complete silence was maintained by the petitioner both in his reply furnished before the departmental authority and also in this writ petition, on that aspect. A specific fact allegation having been made in the notice issued to the petitioner, it is strange to notice absence of any denial to that allegation in the reply furnished by the petitioner.

17. Merely because more time was not granted or because the relied upon documents were not supplied to the petitioner, did not in any manner prevent the petitioner from making a stout denial of the fact allegation by stating that his father was not alive and that during his life time he had been in the employment of the civil police. The petitioner was not prevented or obstructed, in any way, from taking that stand by the respondents in either refusing more time or by not supplying the documents prayed for. While the writ petition is silent on this aspect, in paragraph 9 of the counter affidavit filed by the State, it had been clearly averred that the father of the petitioner is still alive and he never served in the police department. The rejoinder affidavit filed today, does not contain any denial as to the correctness of those facts. Only a bald denial to the fact allegation has been made.

18. Thus, it stands admitted between the parties that the father of the petitioner is alive and that he was never a police employee. Consequentially, the public employment gained by the petitioner on compassionate basis had been fraudulently obtained. The petitioner who was the sole beneficiary of that fraud was never eligible to be considered for such public employment. Therefore, the interest of justice lies in sustaining the impugned order that seeks to reverse the benefit of fraud or error committed in granting compassionate appointment to the petitioner. Exercise of discretionary jurisdiction and issue of writ of Certiorari, in such admitted facts would be to fail to see the complete picture or to allow the society to be impacted negatively by an act of fraud and to be even seen as protecting those who commit such fraud or gross errors. It may have been another case if the petitioner had denied the basic fact allegation and or had shown to exist any fact or circumstance or material in his favour. It may then have required examination whether a full-fledged domestic inquiry was needed. However, on admitted facts noted above, there survives no reason for this Court to issue a writ of Certiorari, to any extent.

19. The writ petition lacks merits and is accordingly dismissed.

Order Date :- 12.11.2018

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