Allahabad High Court
Om Prakash Singh vs State Of U.P. Through Prin. Secy. ... on 7 February, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- WRIT - A No. - 455 of 2015
Petitioner :- Om Prakash Singh
Respondent :- State Of U.P. Through Prin. Secy. Home Deptt. Lko. And Another
Counsel for Petitioner :- Sushil Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Brij Raj Singh,J.
Heard Sri Sushil Kumar Singh learned counsel for the petitioner and Sri Piyush Kumar Singh learned counsel for the respondent State
By the present petition, the petitioner has prayed for the following reliefs:-
"(i) issue a writ, order or direction in th enature of 'Certiorari' quashing the impugned dismissal order, dated 14-05-2013, passed by the Respondent No.2, (As contained in Annexure No.1 to this writ petition).
(ii) issue a writ, order or direction in the nature of 'Mandamus' commanding the respondents not to give effect the impugned order of dismissal, dated 14-05-2013, passed by the Respondent No.2, (As contained in Annexure No.1 to this writ petition)."
Brief facts of the case are that the petitioner challenged the impugned order dated 14.5.2013 by the present petition which was dismissed on 11.6.2018. The petitioner filed Special Appeal Defective No.224 of 2019 and the same was allowed n 30.5.2019 and the liberty was granted to the petitioner to file review application. The petitioner filed Review Application No.105743 of 2019 and the same was allowed vide order dated 19.1.2023 and the present petition has been restored to its original number. That is how, the matter has come up before this Court for final disposal.
Learned counsel for the petitioner has submitted that the petitioner was convicted in case crime No.288 of 2001 under Section 376, 504, 506 IPC and Section 3 (2) v) of SC/ST Act, PS Nagar, distt. Basti, by the judgment and order dated 18.2.2013. Against the judgment of the Trial Court, the petitioner filed Criminal Appeal No.974 of 2013 this Court at Allahabad. The petitioner has been granted bail in the said appeal vide order dated 23.10.2013. The said appeal is pending for disposal.
It has been submitted by the learned counsel for the petitioner that in view of Regulation 492 of U.P. Police Regulations, 1861, the impugned order cannot sustain in the eyes of law.
He has placed reliance in the case of Vijay Prasad Pandey. Vs. State of U.P. and others, (1998) 2 UPLBEC 1043, at Allahabad, as well as the judgment in Writ Petition No.3554 (S/S) of 2004 (Girdhari Lal. Vs. State of U.P. and others.), decided by judgment and order dated 12.5.2005. Learned counsel for the petitioner has submitted that the Senior Superintendent of Police could have waited the outcome of the decision of the criminal appeal in view of Regulation 492 of the U.P. Police Regulations but without applying the statutory provisions, he has passed the impugned order which is against the law. Paragraph-8 and 9 of the judgment in the case of Vijay Prasad Pandey (supra) are quoted below:-
"8. The learned standing counsel contended that the petitioner having been convicted with a rigorous imprisonment, the impugned order passed under Regulation 493 is valid and proper and no proceeding was required for the purpose of passing the impugned order in view of the provisions of regulation 492, it is also stated that any decision to continue the suspension at any earlier stage did not debar the authority concerned from passing appropriate order under Regulation 492.
9. After considering the respective contentions of the parties, it appears that in the present case the petitioner had been judicially tried and, therefore, applying the law as contained in Regulation 492, the concerned authority should have waited till the decision in the judicial appeal was passed. Admittedly the petitioner has preferred an appeal which has been admitted and the same is pending. Therefore, before deciding whether departmental action was necessary, the authorities should have waited till the decision of the said appeal. A perusal of the Regulations 492 and 493 of the said Regulations indicates that in the present case the provision of sub-clause (a) of Regulation 493 had been applied in passing the impugned order of dismissal and, therefore, no enquiry was held. Therefore, while exercising the said power, the restraint contained in the provisions of Regulation 492 ought to have been applied and authorities should have waited till the decision of the appeal which admittedly is pending."
Another judgment in the case of Girdhari Lal (supra) is also related to the same ratio and the Single Judge has considered the Regulation 492 and the impugned order of dismissal has been quashed.
Learned standing counsel has taken a plea that in view of Regulation 493 (a), the order has been passed and there is no infirmity in the order impugned.
Heard learned counsel for the parties counsel.
The Regulation 492 is statutory provision that has been discussed in paragraph-8 and 9 and the Court has opined that admittedly, the petitioner has preferred appeal which is admitted and the same is pending. Therefore, before deciding as to whether the departmental action was necessary, the authority should have waited till the decision of the said appeal. A perusal of the Regulation 492 and 493 indicates that the restraint contained in Regulation 492 ought to have been applied.
Other judgment relied on by the learned counsel for the petitioner is also relevant in the case of Kedar Nath Yadav. Vs. State of U.P. and others, [2005 (23) LCD 1181]. Para-50 of the said judgment also indicates that Regulation 492 and 493 have been considered.
The other argument advanced by the learned standing counsel that the order has been passed in consonance with the Article 311 (2) (a) and Rules 8 (2) (a) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 is also overruled because once the appeal is pending before the criminal court and without waiting result of the appeal, the Superintendent of Police could not have passed the order impugned in view of the clear bar of Regulation 492, thus, in my opinion, the impugned order cannot survive in the eyes of law.
Accordingly, the petition is allowed. The impugned order dated 14.5.2013 contained in Annexure No.1 to the petition is quashed.
Legal consequences to follow.
Order Date :- 7.2.2023
Rajneesh JR-PS)
