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Judgment
Lok Pal Singh, J
By means of the present writ petition, petitioner has prayed for the following reliefs:
(i) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the impugned punishment order dated 26.08.2015 passed by the Superintendent of Police, Uttarkashi, whereby the service of the petitioner have been dispensed with invoking provisions of Rule 8(2)(b) of the Discipline and Appeal Rules, 1991.
(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned Appellate Order dated 10th October 2017 passed by the Deputy Inspector General of Police, Garhwal Range, Dehradun, whereby the Department Appeal filed by the petitioner was dismissed affirming the termination order dated 26th August 2015 passed by the Superintendent of Police, Uttarkashi.
(iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to reinstate the petitioner on the post of Constable in Uttarkhand Police along with all consequential service benefits."
This is the second round of litigation. In first round of litigation the petitioner filed writ petition no. 2168 of 2015 (S/S), challenging the punishment order dated 26.08.2015 passed by the Superintendent of Police, Uttarkashi, which was disposed of by this Court on the ground of alternative remedy of Departmental Appeal. The present writ petition is being filed challenging the order passed by the Departmental Appellate Authority.
Brief facts of the case are that petitioner was initially appointed in the Uttarakhand Police on the post of Constable, (Civil Police) on 10.10.2001 after facing the due selection process. After completion of the training period, the petitioner was posted as Constable, Civil Police in Police Station Dalanwala, District Dehradun. Thereafter, in the month of September, 2008, petitioner was transferred and posted as Constable, (Armed Police) in District Uttarkashi. Thereafter, in the month of December, 2012, the petitioner was transferred to Civil Police and was posted as Constable in Police Station Barkot District Uttarkashi.
It is contended that the petitioner is suffering from acute slip disk for last five years and is undergoing treatment at District Hospital, Hardwar and Rishikul Govt. Ayurvedic College and Hospital, Haridwar. During said treatment on 20.01.2015, the said ailment of the petitioner got aggravated as a result of which, the petitioner was referred to higher centre. The petitioner was relieved from Police Line, Uttarkashi for higher center on 20.01.2015.
It is further contended that on 17.08.2015, when the petitioner is undergoing medical treatment at District Hospital, Haridwar, the petitioner received a telephonic call from the office of Senior Superintendent of Police, Uttarkashi, wherein petitioner was asked to submit the medical certificate of medical treatment. Thereafter, on the same day i.e. 17.08.2015, the petitioner received a communication from the Office of Superintendent of Police, Uttarkashi, wherein the petitioner was informed that though the petitioner was been sanctioned the Medical Leave for getting treatment at higher medical centre, however, the petitioner is not periodically submitting his medical report. In pursuance to the said communication petitioner submitted the medical report alongwith the application the office of Superintendent of Police, Uttarkashi through fax as well as through speed post.
It is further contended that on 25.08.2015, the Inspector, LIU, Uttarkashi lodged an FIR No. 54 of 2015 with Police Station Kotwali Uttarkashi under Section 3/4 of the Police Force (Registration of Rights) Act, 1966 and under Section 72 of I.T. Act against the petitioner and some other constable alleging therein that in a social media/facebook, 'Mission Akrosh' was circulating and petitioner has tried to incite the members of the police force in respect of the pay anomaly in the cadre of Constable, payment of arrears. In pursuance of the said F.I.R., the petitioner was arrested on 26.08.2015.
Petitioner is aggrieved by the impugned order dated 26.08.2015, passed by Superintendent of Police, Uttarkashi, whereby the services of the petitioner were terminated in exercise of power under Section 8(2) of the Uttar Pradesh Subordinate Police Officer (Discipline and Appeal) Rules, 1991 (hereinafter referred to as 'the Rules'); as well as the Appellate Order dated 10.10.2017, whereby the order passed by Disciplinary Authority was confirmed.
Learned counsel for the petitioner would submit that now the petitioner has been enlarged on bail, however, the criminal case is pending against him. He would further submit that the impugned termination order has been passed without affording opportunity of hearing to the petitioner, which is against the principle of natural justice. He would further submit that no show cause notice was issued to the petitioner before passing the impugned termination order dated 20.08.2015. He would further submit that the petitioner was in the regular employment, therefore, the respondent could not have exercised its discretion under Section 8(2)(b) of the Rules. It is contended that the termination order has been passed on flimsy ground that he is habitual offender. He would further submit that on the basis of his past conduct, the impugned termination order has been passed. He would further submit that petitioner had approached the Appellate Authority but the appellate authority without having considered the ground raised in the appeal, dismissed the petitioner's appeal in a cryptic and cursory manner. He referred to Rule 8 of the U.P. Police Officer of the Subordinate Police Officers (Punishment and Appeal) Rules, 1991, which is extracted below:
"8. Dismissal and removal - (1) No Police officer shall be dismissed or removed from service by an authority subordinate to the appointing authority.
(2) No Police Officer shall be dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceedings as contemplated by these rules:
Provided that this rule shall not apply-
(a) Where a person in dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonable practicable to hold such enquiry; or
(c) Where the Government is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry.
(d) All orders of dismissal and removal of Head Constables or Constables shall be passed by the Superintendent of Police. Cases in which the Superintendent of Police recommends dismissal or removal of a Sub-Inspector or an Inspector shall be forwarded to the Deputy Inspector General concerned for orders.
(4) (a) The punishment for intentionally or negligently allowing a person in police custody or judicial custody to escape shall be dismissal unless the punishing authority for reason to be recorded in writing awards a lesser punishment.
(b) Every officer convicted by the Court for an offence involving moral turpitude shall be dismissed unless the punishing authority for reasons to be recorded in writing considers it otherwise."
Per contra, learned counsel for the respondent would submit that the petitioner is being regularly punished since 2003 for indiscipline and he is in a habit in not following the orders of his superior authorities and taking into consideration the service background of the petitioner, the petitioner was not found suitable for the police force, therefore, he has rightly been removed from the police force. He would further submit that the police force is a disciplined force and any kind of indiscipline is not permissible. He would further submit that in such type of indiscipline, it is difficult to maintain decorum and discipline in the force, which is the principal condition of the service. He would further submit that Rule 8(2)(b) of the Rules empowers the Competent Authority to dismiss or remove a Police Officer without inquiry/disciplinary proceedings, if he is satisfied that it is not reasonably practicable to hold such inquiry. However, Rule 8 (2)
(b) does not confer unfettered power upon the Disciplinary Authority and the condition precedent for invoking the said power is that the disciplinary authority must record reasons, why it is not reasonably practicable to hold inquiry.
Mr. P.C. Bisht, Standing Counsel would further submit that the Appellate Authority though has not recorded categorical findings but since it is mentioned in the order of Superintendent of Police, Uttarkashi, that petitioner is habitual offender, therefore, the Appellate Authority has rightly rejected the appeal of the petitioner. He would further submit that against the order of dismissal, the statuory remedy to file a revision before Inspector General is available to the petitioner, therefore, the present petition is not maintainable.
Perusal of the impugned termination order dated 26.08.2016 passed by Superintendent of Police, Uttarkashi would reveal that the said order has been passed only on the basis of past conduct of petitioner. The aforesaid order would reveal that in the entire order passed by the Disciplinary Authority, no specific reason has been assigned for terminating his services. The impugned termination order has been passed without taking the recourse of Rule 8(2)(b) of the Rules and without having conducted any department proceedings against the petitioner, thus, the requirement of Rule 8(2)(b) is not satisfied. Perusal of the impugned termination order dated 26.08.2015 and the order of Appellate Authority dated 10.10.2017 would reveal that the order has been passed in violation of principle of natural justice. Since, the petitioner was on regular employment, it was incumbent upon the respondents to initiate the disciplinary enquiry against the petitioner.
The submission of learned Standing Counsel that the statutory remedy of revision is available to the petitioner is not relevant as the revisional authority will not act as a punishing or Appellate Authority, thus, in view of this Court, the statutory remedy of revision would not be an appropriate remedy available to the petitioner, therefore, the contention of learned Standing Counsel is untenable.
In the case S.C. Girotra v. United Commercial Bank reported in (1995) 3 SCC 212, the Hon'ble Apex Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. In another case State of U.P. v. C.S. Sharma reported in AIR 1968 SC 158, the Apex Court has held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry, the witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine those witnesses and to lead evidence in his defence. In the case of Punjab National Bank v. A.I.P.N.B.E. Federation reported in AIR 1960 SC160 , the Apex Court has held that in such enquiries evidence must be recorded in presence of the charge-sheeted employee and he must be given opportunity to rebut such evidence.
In the present case, opportunity of hearing has not been provided to the petitioner at all. The case in hand is on better footing in comparison to the judgments cited above.
A termination/dismissal order has serious consequence and should be passed only after complying with the rules of natural justice, thus, it is clearly evident that the impugned termination order dated 26.08.2015 passed by Superintendent of Police, Uttarkashi has been passed in violation of principle of natural justice as the opportunity of hearing has not been given to the petitioner. No other material has been placed by the respondents to satisfy the Court that it was necessary to dispense with a formal enquiry, in terms of Rule 8(2)(b) of the Rules, therefore, I am of the view that the impugned orders cannot sustain and are liable to be quashed.
Accordingly, the writ petition is allowed. Impugned orders dated 26.08.2015 and 10.10.2017 are quashed. However, it would be open to the respondents to initiate a disciplinary inquiry against the petitioner, if they so desire.
No order as to costs.