Hcp 164 C.P. Ram Pal Singh vs State Of U.P. And Others
2022 Latest Caselaw 22676 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 38
 

 
Case :- WRIT - A No. - 36115 of 2011
 

 
Petitioner :- Hcp 164 C.P. Ram Pal Singh
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Sanjay Kumar Tiwari,Arvind Sen Gupta,Vijay Gautam
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajiv Joshi,J.

Heard Sri Vinod Kumar Mishra, Advocate holding brief of Sri Vijay Gautam, leanred Senior Advocate appearing on behalf of the petitioner, Ms. Shivi Mishra, learned Standing Counsel for the State respondents and perused the record.

Present writ petition has been filed for following reliefs:

"(i) Issue a writ, order or direction in the nature of certiorari to quash the order dated 12.2.2011 passed by respondent no. 3 i.e. Deputy Inspector General, Aligarh and order dated 7.9.2010 passed by Senior Superintendent of Police, Aligarh.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to reinstate the service of the petitioner and pay the arrear of salary of the petitioner since 7.9.2010 and also pay the salary month by month as fallen due."

Brief facts of the case are that the petitioner was head constable, while he was posted at police station Jawan, District Aligarh, his wife Smt. Kiran Devi made a complaint on 6.8.2009 against him regarding illicit relationship with one lady constable. Against the said complaint, Senior Superintendent of Police, Aligarh initiated an inquiry against the petitioner. Subsequently, on 31.01.2020, the complainant-wife withdraw her complaint and requested the Senior Superintendent of Police, Aligarh not to take any coercive action against the petitioner. Thereafter, Senior Superintendent of Police, Aligarh issued a show cause notice dated 16.7.2010 to the petitioner and the petitioner filed his reply to the same on 31.7.2010.

Against the said show cause notice, the petitioner approached this Court by filing Writ Petition No. 47108 of 2010, which was dismissed vide order dated 12.8.2010 as premature. Thereafter, the petitioner filed a representation before respondent no.4-Senior Superintendent of Police, Aligarh, on which the order dated 7.9.2010 terminating the services of the petitioner, was passed. Being aggrieved, the petitioner preferred a departmental appeal before respondent no.3-Deputy Inspector General, Aligarh on 22.11.2010, which was also dismissed vide order dated 12.2.2011. Both the orders i.e. order dated 12.2.2011 passed by respondent no. 3 i.e. Deputy Inspector General, Aligarh and order dated 7.9.2010 passed by Senior Superintendent of Police, Aligarh are impugned in the present writ petition.

Learned counsel for the petitioner submits that the inquiry officer has recorded a finding that there was illicit relationship between the petitioner and lady constable, but there is no proof of any marriage between them. He further submitted that in the inquiry report, it is also stated that the petitioner has committed misconduct on part of his duties and the inquiry officer recommended the punishment of dismissal upon the petitioner under Rule 4(1)(a)(i) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal), Rule 1991 (hereinafter referred to as the Rules, 1991).

Learned counsel for the petitioner has next submitted that in terms of appendix-1 to the Rules, 1991, the inquiry Officer cannot and should not refer to the proposed punishment in the inquiry report itself, he may at the most submit his recommendation on a separate paper to the disciplinary authority. He next submitted that in view of the provisions as contemplated in Rule 29 of the U.P. Govt. Servant Conduct Rules, 1956 (hereinafter referred to as the Rules, 1956), only minor punishment like stopping the increment or other minor punishment can only be awarded. The major punishment of dismissal cannot be awarded in spite of the fact that it has been proved beyond doubt regarding the performing of plural marriage.

Rule 29 of the Rules of 1956, is quoted as under:

"29(1): No Govt. Servant who has a wife living shall contract another marriage without fresh obtaining the permission of the Govt. notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him.

(2) No female Govt. Servant shall marry any person who has a wife living without first obtaining permission of the Govt.

(3) A minor punishment to be imposed in contravention of Sub Rule(1) or Sub Rule (2) shall be withholding of increments for three years."

In support of his contention, learned counsel for the petitioner placed reliance upon judgment of this Court passed in Service Single No. 2681 of 2010 (Ram Milan Dubey Vs. State of U.P. and others) as well as in case of Shravan Kumar Pandey Vs. State of U.P. and others, 2010 (8) ADJ 243.

Another judgment relied upon by the learned counsel for the petitioner is 2009 (2) LBESR 949 (Allahabad) Smt. Raj Bala Sharma Vs. Sate of U.P. and others and reliance has been placed upon paragraphs 13,15 and 20 which are quoted as under:

"13.As far as petitioner's statement is concerned, she has demonstrated that she had no knowledge about the first marriage of Sri Ajeet Singh. As far as the offence of remarriage (as per Section 494, IPC) is concerned, in the present case the petitioner Smt. Raj Bala Sharma had married after the death of her first husband. Section 494, I.P.C. deals with a person who had a husband or wife living. This charge cannot be fastened on Smt. Ra Bala Sharma, petitioner. There is substance in the submission of the learned counsel for the petitioner that according to Section 17 of Hindu Marriage Act, no marriage between two Hindus could be solemnised if one of them has a husband or wife living. If such marriage is solemnised after the commencement of this Act it would be null and void. The provisions of Sections 494 and 495, I.P.C. shall apply in such cases. Applying this law, the marriage of the petitioner with Sri Ajeet Singh was null and void under law and no punishment could be awarded against her under Section 29 of the U.P. Government Servant Conduct Rules, 1956. As per Section 11 read with Section 5 of the Hindu Marriage Act, 1955, the marriage may be held as void. The petitioner's case cannot be dealt with under Rule 29 of the U.P. Government Servant Conduct Rules, 1956. Sri Ajeet Singh had given in writing to the Enquiry Officer that he had not informed the petitioner regarding her earlier marriage. The petitioner appears to be innocent in the present case.

15. This Court has read the provisions contained in Rule 29 of the U.P. Government Servant Conduct Rules, 1956. It has been provided in these rules that whoever contravenes the provisions contained in Rule 29 (1) and (2) shall be awarded with a minor penalty. In the present case, the awarding of punishment of dismissal is certainty against the letter and spirit of Rule 29 itself. The major penalty ought not to have been awarded against the petitioner applying the Rule 29(1)(2)(3) of the U.P. Govt. Servant Conduct Rules, 1956.

20. In view of the above discussion, the petition succeeds and is allowed. The order of impugned dismissal of the petitioner of the petitioner dated 13.1.2006 and the orders passed in the appeal and revision dated 19.3.2006 and 12.4.2007 respectively are quashed. Since the order of dismissal has been quashed by this Court, the petitioner is entitled for reinstatement. The respondents are directed to reinstate the petitioner in service within one month from the date of filing of a copy of this order by the petitioner before the authority concerned. It is further observed that it shall be open to the appropriate authority to award only other minor penalty against the petitioner as provided in sub-rule (3) of Rule 29 of the UP. Government Servant Conduct Rues, 1956, if the charges are proved. All the consequences shall follow. The petitioner shall be treated to have remained in service with all the consequential benefits of such service."

Learned counsel for the petitioner has further submitted that as this Court has already taken a view regarding the fact as well as the law interpreting the Rule 29 of the Rules of 1956 that in such circumstances, no major punishment can be awarded, therefore, the order of dismissal is liable to be quashed and if necessary, some minor punishment may be awarded.

Learned Standing Counsel, on the other hand, did not dispute the judgments relied upon by counsel for the petitioner as well as Rule 29 of the Rules of 1956 and submitted that merely mentioning of the recommendation in the inquiry report about the punishment, the report cannot be said to be vitiated on that ground.

I have considered the submissions of the parties and perused the record as well as the rule, which clearly gives an indication that whoever contravenes the provisions contained in Rule 29 (3) of the Rules, 1956 shall be awarded with minor penalty. In the present case, awarding a punishment of dismissal that is admittedly a major punishment is certainly against the letter and spirit of Rule 29, which does not provide major punishment.

In view of the aforesaid fact and submissions as well as the decisions, I am of view that the impugned orders of dismissal dated 7.9.2010 as well as 12.2.2011, cannot be sustained and are liable to be quashed.

The writ petition is allowed. The order dated 7.9.2010 passed by respondent no.4-Senior Superintendent of Police, Aligarh as well as order dated 12.2.2011 passed by respondent no.3-Deputy Inspector General, Aligarh are hereby quashed and the petitioner be reinstated in the service forthwith with all consequential benefit. However, it will be open to the respondents to award any minor punishment against the petitioner as per Rule 29 (3) of the Rules, 1956, if they think proper in the facts and circumstances of the case and that too after affording full opportunity to the petitioner.

Order Date :- 23.12.2022

Noman