Chhotey Lal Dubey vs State of U.P. and Others

Heard learned counsel for the parties and perused the record. This writ petition has been filed challenging the validity and correctness of the impugned order dated 7.3.2002 passed by the Member, U.P. State Public Services Tribunal, Lucknow, appended as Annexure-2 to the writ petition as well as the order dated 27.4.1995 passed by the Deputy Inspector General of Police, Railways, Allahabad, appended as Annexure-4 to the writ petition. The petitioner also challenges the order of punishment dated 18.5.1994 by which his integrity has been withheld.

Brief facts of the case as appears from the record are that the petitioner is serving as constable in civil police. He alongwith six members of the Police Escort was charged for permitting two persons to travel in Train No. 2418 Down Prayagraj Express while they were on duty as GRP Escort on the train. After preliminary enquiry a show-cause notice dated 18.5.1994 was issued to all the six persons in the escort including a Sub-Inspector and a Head Constable. They were found guilty and awarded punishment of withholding integrity certificate for one year. It appears from the charges levelled against all the six persons that there was no specific allegation against any one of them.

It also appears from the record that Sri Shyamdev, Sub-Inspector and Sri Chandrika Prasad, Head Constable preferred a representation against the order dated 18.5.1994 challenging the findings of the preliminary enquiry by pleading not guilty. The representation was decided by the Deputy Inspector General of Police, Railways, Allahabad in which two aforesaid persons were exonerated from the charge vide order dated 20.5.1995. The petitioner also preferred a representation against the order withholding of integrity which was rejected vide order dated 27.4.1995 by the Deputy Inspector General of Police, Railways, Allahabad holding the petitioner guilty while on the same facts the other two persons namely, Sri Shyamdev and Chandrika Prasad were exonerated. The petitioner, who was constable in the aforesaid escort also moved the U.P. State Public Services Tribunal, Lucknow against the order dated 18.5.1994 by preferring Claim Petition No. 1290 of 1996. It was rejected vide impugned order dated 7.3.2002 passed by the Member (Administrative), State Public Services Tribunal, Lucknow.

The impugned orders are assailed on the ground that the Tribunal has failed to consider the submissions made on behalf of the petitioner and the orders passed by respondent Nos. 2, 3 and 4 are wholly illegal, arbitrary, contrary to record and are liable to be quashed by this Court.

According to the learned counsel for the petitioner, it is settled law that there can be no discrimination in punishing the persons who have been charged for the same offence arising from same incident and found guilty for it, therefore, the petitioner could not have been discriminated by withholding of his integrity with Sri Shyamdev and Sri Chandrika Prasad, the Sub-Inspector and Head Constable who had been exonerated by the same authority particularly in view of the fact that none of the six persons in the escort had been mentioned by the Checking Staff of having taken any bribe or committing any illegality.

It is submitted by the learned counsel for the petitioner that once it is found that all the six persons were involved in the same commission of offence then discrimination in the matter of awarding punishment cannot be sustained. It is stated that after the punishment was awarded the petitioner moved an application before the Superintendent of Police, Railways, Allahabad regarding payment of his bonus for the years 1993-94 and 1994-95 which was not given till date on the ground of punishment having been awarded to him.

Learned Standing counsel has supported the judgment of the Tribunal by stating that the Tribunal has rightly held that the show-cause notice regarding awarding the punishment of misconduct and other show-cause notice regarding withholding of integrity certificate are separate, hence mere withdrawal of show-cause notice regarding awarding the punishment of misconduct will not be enough to withdraw the other show-cause notice, though the aforesaid two show-cause notices are based on same facts.

After hearing learned counsel for the parties and on perusal of the record we find that in the order dated 20.5.1995, appended as Annexure-1 to the writ petition, certifying the integrity and exonerating Sri Shyamdev and Sri Chandrika Prasad it has been specifically stated that no berth was allotted for the GRP escort in the Coach B-1 in which the Escort was travelling and wherein two unauthorized persons had been found travelling, hence when no berth was allotted by the Railways to the GRP escort in the said Coach. The order dated 20th May, 1995 reads thus:

In the circumstances above, there was no occasion for them to allow any other person to sleep on the said berth alleged to have been allotted to them. Consequently, the question of payment for the berth also does not arise and the finding in this regard in the impugned order is illegal and against the record. Annexure-1 to the writ petition shows that when Train No. 2418 Down Prayagraj Express was checked by the Checking Staff it was found that in Coach No. S-6 one Rajendra Kumar was sleeping on berth No. 68 who was having ticket of second class. Another person Sri Vishwanath was found to be travelling without ticket. Sri Rajendra Kumar has stated before the Checking Staff that he has been allowed to sleep on a berth by some GRP constables by paying Rs. 40/- whereas Sri Vishwanath has stated that he was alongwith the GRP Escort. On the complaint aforesaid two persons who were found to be travelling unauthorizedly in the coach a preliminary enquiry appears to have been held by the Deputy Superintendent of Police, Railways, Allahabad in which he found all the persons to be guilty of charge.

A further perusal of Annexure-1 to the writ petition shows that no berth was allotted to the GRP Escort. Therefore, the contention of learned counsel for the petitioner is that in the aforesaid circumstances it cannot be said that the petitioner or any other member of the Escort team had allowed him to sleep on a berth by taking bribe of Rs. 40/-. Moreover, it appears that the Superintendent of Police, Railways, Allahabad has given credence and weightage to the statements of two aforesaid persons who were unauthorizedly travelling in the train which was not just and proper as they have made this statement to save their own skin and in any case statement of such culprit/offender of law ought not to have been given credence unless and until there existed incorrigible evidence against the accused. Even the person who has been given berth was neither named nor recognized by them.

It further appears from the record that during departmental proceedings the petitioner was neither permitted to cross-examine the complainant nor he was afforded any opportunity to submit documents in his favour as punishment has been awarded to the petitioner on basis of a preliminary enquiry and not a departmental enquiry, therefore, the punishment imposed upon the petitioner suffers from arbitrariness in a very arbitrary manner. The contention of learned counsel for the petitioner that if any complaint has been made and preliminary enquiry was conducted then a copy of said enquiry report ought to have been supplied to the petitioner has force, hence the enquiry on the basis of which the petitioner has been punished cannot be said to have been conducted in a proper manner.

The record speaks that Sub-Inspector and Head Constable of the GRP Escort were let off on their representation and there was neither any differentiating circumstances mentioned in the charge against all the six persons for different treatment nor any one of them named was identified by the complainant of having committed the alleged misconduct for which they were charged. The order of punishment to the petitioner in the aforesaid circumstances appears to be discriminated.

In paragraph Nos. 9 and 10 of the judgment the Tribunal has not given any reason as to why it was not unable to agree with the contention of the petitioner for not following the procedure and giving of opportunity of hearing to the petitioner in defence and why withholding of integrity certificate did not amount to punishment particularly when bonus and other benefits were not given to the petitioner till date on the ground that his integrity had been withheld pursuant to a preliminary enquiry conducted against all cannons of the principles of natural justice. Paragraph Nos. 9 and 10 of the judgment read thus:

It was also argued that the impugned order contained in Annexure-1 is a non speaking order. I have gone through the impugned order and I Find that the Punishing Authority has given cogent reason for coming to the conclusion that the integrity of the petitioner is doubtful. In my opinion, this is a speaking order and no interference is required in this order.

It was further argued on behalf of the petitioner that integrity certificate has been withheld by way of punishment and as such the procedure prescribed for giving punishment order should have been followed. I am unable to agree with the contention of the learned counsel for the petitioner. I am of the opinion that withholding of integrity certificate is not a punishment and there appears to be no irregularity or illegality in this case in passing the impugned order. It is apparent from the perusal of the record that the show-cause notice was issued before withholding the integrity certificate of the petitioner and his explanation was duly considered by the Punishing authority.

Sri H.P. Mishra, Deputy Inspector General of Police, Railways, Allahabad, who has rejected the representation of the petitioner appended as Annexure-4 to the writ petition (which was Annexure-1 in the claim petition before the Tribunal) and had allowed the representation of Sub-Inspector and Head Constable on the same facts arising out of the same incident, has also not given any facts which may be different in the case set up in the two representations one by the Sub-Inspector and Head Constable and the other by the petitioner. The reasons given while rejecting the representation of the petitioner are thus:

A perusal of the rejection of the representation of the petitioner also shows that nobody has been named as to who has returned the money. Merely because some persons have been found by the Checking Staff to be unauthorizedly travelling in the coach who claimed that they have been given berth allotted to GRP Escort on payment of money would not give any benefit to the department as it is apparent from record that no berth will be reserved/allotted to GRP Staff on escort duty. The benefit in the circumstances, ought to have been given to the members of the GRP Escort who were neither named nor there was any evidence that they were paid money or they had permitted any unauthorized person to travel in the coach. In fact it is the duty of the Checking staff to check the tickets and not the GRP Escort, therefore, variance in the statement was to the benefit of the petitioner and other members of the Escort.

In view of the fact that two persons namely, Sri Shyamdev and Sri Chandrika Prasad, Sub-Inspector and Head Constable have been exonerated from the charge and their integrity has been directed to be certified by the Deputy Inspector General of Police, Railways, Allahabad and that no differentiating circumstances had brought on record by the respondents for giving a different treatment in punishment on basis of an illegal and arbitrary preliminary enquiry conducted in unfair manner against the principles of natural justice to the petitioner, we quash the impugned order dated 7.3.2002 passed by respondent No. 2 and the orders dated 27.4.1995 and 18.5.1994 passed by the respondents. For the reasons stated above, the writ petition is allowed. We accordingly, direct the authorities concerned to make payment of bonus with interest as well as to certify the integrity of the petitioner which has been withheld. No order as to costs.