Ram Niwas vs State Of U.P. And 3 Ors.
2022 Latest Caselaw 6644 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 25449 of 2017
 

 
Petitioner :- Ram Niwas
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Vijay Gautam,Mohammad Fahad,Sunil Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

This petition has been filed challenging the order dated 8.7.2015 passed by Superintendent of Police, Pilibhit dismissing the petitioner from service and the order dated 11.1.2016 passed by the D.I.G., Bareilly Range, Bareilly rejecting the appeal of the petitioner and the order dated 2.1.1991 passed by the Inspector General of Police, Bareilly Zone, Bareilly rejecting the revision of the petitioner.

It is the case of the petitioner, Constable Ram Niwas that he was transferred on 31.3.2011 and relieved on the same day but he could not join at his transferred place of posting and remained absent because of his illness. He tried to join on 20.3.2013 but he was not allowed to join as a preliminary enquiry was instituted on his unauthorized absence. On the basis of preliminary enquiry report dated 16.1.2014, a regular departmental proceeding was initiated against him under Rule 14(1) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the 'Rules, 1991'). In the enquiry report, Enquiry officer also recommended punishment of dismissal from service on the ground of unauthorized absence. The findings recorded by the Enquiry Officer are absolutely incorrect as the petitioner was suffering from illness and had undergone treatment in a private hospital. The petitioner had submitted medical prescriptions but they were not considered. The respondent no. 4 had issued show cause notice to the petitioner with regard to proposed punishment of dismissal but the petitioner was not served with the show cause notice, therefore, he could not file reply. He did not get any opportunity of hearing and the dismissal order was passed. The petitioner thereafter filed an appeal and also a revision which have been rejected without looking into the reasons for absence of the petitioner from duty.

It has been argued by learned counsel for the petitioner that under Rule 14(1) of the Rules, 1991, the Enquiry Officer can make a recommendation regarding punishment but it has to be on a separate piece of paper and should not be made part of enquiry report. Since the recommendation of dismissal was made by the Enquiry Officer in the enquiry report itself, it prejudiced the mind of the Appointing Authority and he did not exercise his own discretion and dismissed the petitioner straight away. Learned counsel for the petitioner has placed reliance upon the judgment rendered by the coordinate Bench of this Court in Writ-A No. 2681 of 2010 (Ram Milan Dubey Vs. Yash Pal Singh and others) where the Court had considered the fact that the Enquiry Officer had made recommendation of punishment in the enquiry report itself, had not set aside the enquiry report but had only set aside the punishment order leaving it open for the Appointing Authority to pass a fresh order ignoring recommendations of the Enquiry Officer and using his own discretion.

It has also been argued by the learned counsel for the petitioner that the entire enquiry report was ex parte and the petitioner was not heard at all.

This Court had considered the judgment rendered by coordinate Bench in Writ-A No. 23402 of 2014 (Yash Pal Singh Vs. State of U.P. and others) decided on 23.04.2014, the relevant extract of the judgment is being quoted hereinbelow :

"Learned Standing Counsel, on the other hand, did not dispute the legal position arising out of appendix (1) of the Rules, 1991 but he submitted that it was the matter in which the enquiry report itself cannot be said to be vitiated and no doubt the recommendation of punishment should not have been mentioned in the enquiry report but the enquiry report so far as the findings are concerned, cannot be said to be vitiated on that ground alone.

I have considered the rival submissions of the learned counsel for the parties. No doubt the Enquiry Officer in his enquiry report has proposed the punishment of dismissal from service itself which is contrary to the provision of Appendix (1) but at the most it may be because of the deficiency of knowledge of the Assistant Commandant 47 Battalion PAC, Task Force, Ghaziabad, who has conducted the enquiry and therefore the Senior Officers of the respondents may bring the same to her knowledge regarding the procedure and the irregularity committed by her.

However, I am in agreement with the submission of the learned counsel for the petitioner but that the irregularity in the impugned order does not vitiate the enquiry report therefore, a direction can be issued to disciplinary authority to reconsider the matter applying his own mind to the facts of the case.

This writ petition is therefore, allowed. The impugned order dated 3.3.2014 is quashed.

The matter is remitted to the disciplinary authority to reconsider the matter on the basis of the findings of the enquiry report and then pass a fresh order without being influenced by any recommendation made by the Enquiry Officer in the enquiry report dated 10.1.2014. This exercise shall be completed by the disciplinary authority within one month from the date a certified copy of this order is received in his office."

From the perusal of the judgment of the coordinate Bench, it is evident that the writ petitioner, Yash Pal Singh had approached this Court against his dismissal order dated 5.3.2014 passed by Superintendent of Police under Rule 14(1) of the Rules, 1991 without filing any Appeal or Revision and this Court had set aside the order of dismissal passed by Superintendent of Police directing fresh consideration by application of independent discretion on the findings of the enquiry report without being influenced by the recommendation made by the Enquiry Officer in such report, passing a fresh order within a month from the date the order of the Court was received in his office.

In the case of the petitioner, not only the petitioner has challenged the order passed by Superintendent of Police dismissing him from service but his appeal has been rejected as well as his revision by detailed orders passed by Appellate authority and the Revisional authority. Such detailed orders passed by Appellate authority and the Revisional authority have taken into account not only the enquiry report but also the ground taken by the petitioner that he had been relieved from police line, Shahjahanpur on 31.03.2011 but actually he went home from P.S. Jaitipur on 27.04.2011. He had fallen ill and had received treatment at Moradabad from a private doctor. The Appellate authority had referred to paragraph 381 to 382 of Police Regulations where it was incumbent upon the petitioner to have informed of his illness to the Superintendent of Police in the district in which he had fallen ill and to report to the police hospital. Paragraph 381 to 382 of Police Regulations were not followed and the petitioner continued to remain absent for 692 days w.e.f. 28.4.2011 to 20.3.2013 and for 423 days w.e.f. 2.8.2013 to 29.9.2014. The medical prescriptions that were provided by the petitioner in his appeal to the Appellate authority were got verified from C.M.O., Pilibhit and the C.M.O., Pilibhit had verified the medical prescriptions/certificates w.e.f. 5.5.2011 to 24.5.2011 and w.e.f. 31.5.2011 to 17.6.2011 only.

Looking into the facts of the case, the Appellate authority as well as Revisional authority had found that the petitioner had given no explanation for his unauthorized absence for prolonged periods from his duty and had affirmed the order of dismissal passed by Superintendent of Police, Pilibhit.

This Court finds that the petitioner was working as a Constable in a disciplined force where the Supreme Court has observed that the punishment of dismissal is warranted in case of unauthorized absence which stands proved from the record.

Only because the Enquiry Officer had made a recommendation for dismissal in the Inquiry Report itself instead of giving it separately, it could not be said that the punishment order or even the Inquiry Report becomes vitiated, as has been observed in the coordinate Bench in the case of Yash Pal Singh (Supra), the recommendation of the Enquiry Officer being made part of his finding in the Inquiry Report itself may be due to lack of knowledge and procedure by the Inquiry Officer.

This Court finds no good ground to show interference in the order impugned.

Writ petition stands dismissed.

No order as to costs.

Order Date :- 13.7.2022

SA