State Of U.P. Thru. Secy. Home Lko. ... vs Girish Kumar Tewari
2021 Latest Caselaw 9347 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 257 of 2021
 

 
Appellant :- State Of U.P. Thru. Secy. Home Lko. & Ors.
 
Respondent :- Girish Kumar Tewari
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Rajesh Kumar Awasthi
 

 
Hon'ble Ritu Raj Awasthi,J.

Hon'ble Dinesh Kumar Singh,J.

C.M. Application No.90291 of 2021.

1. This application has been filed to condone reported delay of 165 days as on the date of filing i.e. 30.07.2021 of this intra-Court appeal, challenging judgment and order dated 11.01.2021 passed in Writ Petition No.22690 (S/S) of 2018 whereby the learned Single Judge has allowed the writ petition and quashed the punishment order of dismissal and directed appellants-respondents to reinstate the respondent-petitioner in service with all consequential benefits.

2. It is accompanied with an affidavit. Cause shown in the affidavit is sufficient. Even otherwise, considering the order dated 27.04.2021 passed by the Supreme Court in Misc. Application No.665 of 2021 in SMW (C) No.3 of 2020; Cognizance for Extension of Limitation Vs. XXXX', we feel it appropriate to condone the delay.

3. Accordingly, application for condonation of delay is allowed, and the delay in filing the appeal is condoned.

4. Office is directed to give regular number to the appeal.

On Memo

1. Respondent-petitioner is represented by Mr. Rajesh Kumar Awasthi.

2. Heard.

3. Learned Standing Counsel, appearing for the appellants, submits that by means of judgment and order dated 11.01.2021, which is under challenge in the special appeal, punishment order of dismissal from service dated 09.03.2005 passed by the Superintendent of Police, Pratapgarh, the order dated 10.06.2005 passed by the appellate Authority and the order dated 21.05.2018 passed by the Deputy Inspector General of Police, Allahabad Zone (Now Prayagraj) have been quashed by the leaned Single Judge and direction has been issued to reinstate the respondent-petitioner in service with all consequential benefits.

4. It is submitted that the learned Single Judge has allowed the appellant-respondents to proceed with the inquiry against the respondent-petitioner in accordance with the provisions of The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "The Rules, 1991"); the respondent-petitioner was dismissed from service, invoking provisions of Rule 8(2)(b) of The Rules, 1991 wherein the inquiry was dispensed with and the punishment order was passed; due to conduct of the respondent-petitioner, involving himself in two criminal cases for which FIRs were lodged against him, image of the Department got tarnished and, therefore, it was felt proper to dispense with inquiry and, invoke the provisions of Rule 8(2)(b) of The Rules, 1991 in awarding punishment to him.

5. The learned Single Judge has not found proper invocation of Rule 8(2)(b) of the Rules, 1991 and held that the respondent-petitioner was entitled to right of defence in the inquiry and, as such, a full-fledged disciplinary proceedings should have been drawn under Rule 14 of The Rules, 1991. Learned Single Judge has held that the order of punishment has been passed in violation of provisions of The Rules, 1991. The appellate Authority and the revisional Authority have not properly considered the issue involved in the case of the respondent-petitioner. It is also submitted that the learned Single Judge has erred in allowing the writ petition with all consequential benefits. The respondent-petitioner has not worked after award of punishment on 09.03.2005 and, as such, there is no question of payment of salary to the respondent-petitioner for the period he has not worked. When the appellant-respondents have been permitted to hold full-fledged inquiry, then there is no question of reinstating the respondent-petitioner with all consequential benefits.

6. On the other hand, Mr. Rajesh Kumar Awasthi, learned counsel for the respondent-petitioner, submits that there is no infirmity or illegality in the impugned judgment and order passed by the learned Single Judge. Learned Single Judge has rightly held that the order of punishment is in violation of provisions of The Rules, 1991. Conduct of the respondent-petitioner was not as such which might warrant dispensation of inquiry and, it was not the case where inquiry could not be held. In case of threat to safety and security of the country, the inquiry can be dispensed with, invoking Rule 8(2)(b) of The Rules, 1991. However, the present is not such case where Rule 8(2)(b) of The Rules, 1991 could have been invoked. The learned counsel further submits that once the learned Single Judge has come to conclusion that invocation of Rule 8(2)(b) of The Rules, 1991 was bad in law and the punishment order is not sustainable as the respondent-petitioner was not provided opportunity of defence in holding full-fledged inquiry, then the respondent-petitioner was entitled to be reinstated in service with full salary.

7. We have considered the submissions made by the learned counsel for the parties and gone through the record.

8. It is admitted facts of the case that two criminal cases i.e. Case Crime No. 0669 of 2004 under Section 379 IPC read with Section 4/10 Forest Act and Case Crime No. 0115 of 2005 under Sections 323, 504 and 506 IPC read with Sections 3(I)(X) SC/ST Act were lodged at Police Station Kotwali Pratapgarh against the respondent-petitioner. The competent Authority was of the view that it would not be in the interest of the Department to retain the respondent-petitioner in service as it would tarnish the image of the Department and, therefore, punishment of dismissal from service by invoking provisions of Rule 8(2)(b) of The Rules, 1991 was awarded. The learned Single Judge has rightly come to the conclusion that the dismissal of respondent-petitioner by invoking the provisions of Rule 8(2)(b) of The Rules, 1991 was not proper. In case any major punishment was required to be awarded then the appellant-respondents should have held a disciplinary proceedings by giving opportunity of defence to the respondent-petitioner as the same is necessary under the relevant rules.

9. We are of the considered view that it is not a fit case in which the Rule 8(2)(b) of The Rules, 1991 could have been invoked in awarding punishment of dismissal to the respondent-petitioner. So far as the direction of the learned Single Judge for reinstating the petitioner-respondent in service with all consequential benefits is concerned, we are of the considered view that since the respondent-petitioner has not worked after the award of punishment of dismissal on 09.03.2005, as such, in view of principle of 'no work, no pay' the petitioner is not entitled to the salary for the period he has not worked. The appellants shall not be liable to pay salary for the period with effect from 10.03.2005 till the date of reinstatement of the respondent-petitioner in service. The order of the learned Single Judge shall stand modified to that extent. However, the respondent-petitioner shall be entitled to get benefit of continuity in service for the purpose of seniority, fixation of salary etc. With these observations, the appeal stands disposed of at this stage itself.

[D.K. Singh, J.] [R.R. Awasthi, J.]

Order Date :- 3.8.2021

MVS/-