Vijai Bahadur Singh vs State of U.P.and Others

S. R. Singh, J.—Petitioner was enlisted into set vice as a constable to U. P. Provlncial Armed Constabulary at Kanpur on 22111966. While posted at: 36th P. A. C. Battalion stationed at Ram Nagar, Varanasi, the petitioner, it seems, reported for Sick Parade on 741975 without depositing his Kit. The Day Havaldar directed him to deposit his Kit in abidance of which, the petitioner deposited his Kit and reported back to Sick Parade in plain attire. This act of the petitioner was taken to be an act of indiscipline and he was served with a showcause notice dated 741975, calling upon him to submit his explanation as a step in the direction of taking appropriate action against him and by order dated 1651975, the petitioner was awarded 14 days'' Punishment Drillan orderly room punishmentin retribution for his delinquency of participating in the Sick Parade in plain attire. It may be observed that petty breaches of discipline and triffling cases of misconduct by police officer not above the rank of Head Constable, are enquired into and disposed of in orderly room and punishment in such cases is awarded in summary manner informing the delinquent verbally of the act or omission on which it is proposed to punish him vide order dated 2151975, the petitioner was discharged from service on payment of one mouth''s pay in lieu of notice. Subsequently, however, the order dated 2151975 was recalled and the petitioner was restituted to service with effect from 2151975 vide order dated 9th September 1975 and by a subsequent order dated 21101975, the petitioner was directed to suffer the 14 days'' Punishment Drill awarded to him by order dated 1651975. It is said that the petitioner refused to undergo the Drill Punishment notwithstanding the order, dated 21101975, which snowballed into his being suspended from service with effect from 4219 6. Subsequently, he was chargesheeted initially vide chargesheet dated j21976 (Arinexure3 to the petition) issued by Sri Azhar Ali Khan, Senior Asstt. Commandant and later on, an identical chargesheet was served to the petitioner on 2151976 by Sri Ashok Kumar, Commandant of 36th Battalion, P. A. C. Ram Nagar, Varanasi under Section 7 of the Police Act. In expiation of the charges as contained in the chargesheet dated 2151976, the petitioner submitted his reply and one of the pleas raised by him, was that the disciplinary preceding be postponed till the disposal of the revision, which the petitioner had preferred on 641976 in the meantime against the orders dated 1651975 under Paragraph 511 (b) of the Police Regulations. The Disciplinary Authority, however, proceeded with the enquiry and dismissed the petitioner from service by means of the order dated 1821977. The revision preferred by the petitioner against the order dated 1651975, was, in the meantime, dismissed by order dated 21101976 as timebarred as also on the premise that it had no force. The order of dismissal dated 182 S 977 was taken in challenge before the Services Tribunal which climaxed its judgment by dismissing the claim petition vide judgment and order dated 231 11979. It would be useful to quip here that against the order of discharge dated 2151975, the petitioner went up in writ petition being writ petition No. 7235 of 1975 and the disciplinary proceedings subsequent to the order of discharge were embarked upon during the pendency of the said writ petition. The Disciplinary Authority vide order dated 1871977, dismissed the petitioner from service. The claim petition preferred by the petitioner, having been dismissed by order dated 23111979, the instant petition came to be filed challeging the dismissal of the petitioner from service as also impugning the judgment and order of the Service Tribunal dismissing the claim petition. The order dated 21101976 rejecting the revision preferred against the order dated 1651975 awarding punishment Drill of 14 days is also sought to be quashed.

Heard Sri R. N. Singh, appearing for the petitioner and the Standing Counsel appearing for the State Authorities.

The argument of Sri R. N. Singh is that the punishment drill inflicted upon the petitioner by order dated 1651975 reeked of arbitrariness besides being violative of the principles of natural justice and the subsequent disciplinary proceedings initiated against the petitioner being upshot of the order dated 1651975 were also vitiated. The learned Counsel urged that the petitioner reported in the Sick Parade in plain attire owing to the fact that he was earlier directed by the Havaldar to deposit his Kit and in observance of the said direction, the petitioner had in fact, deposited the entire Kit. It is further urged by the learned Counsel that there was no requirement of any rule mandating the Sick Members of the Force to participate in the Sick Parade clad in Khaki and by this reckoning, the participation of the petitioner in sick parade in plain attire, would not escalate into rendering the petitioner liable for punishment and therefore, urged the learned counsel, Drill Punishment of 14 days inflicted by order � dated 1651975, was without jurisdiction. The Standing Counsel on the other hand, canvassed that ^though the members of the Force are not statutorily presupposed to participate in Sick Parade clad in Khaki, the long practice obtaining since long, has ossified into a rule. According to the respondent, attendance in Sick Parade clad in Khaki, was, therefore, mandatory. The stand taken in vindication on this point in para 61 of the written statement filed before the Services Tribunal, may be abstracted as under :

Having heard the learned counsel for the parties and having bestowed my thoughtful considerations to the submissions made by the learned Counsel appearing for the parties, I am of the view that the petition on merits to be allowed. The petitioner was first required to deposit the Uniform before appearing in the Sick Parade and therefore, his participation in the Sick Parade in plain attire cannot be reckoned as an act of indiscipline. The revision preferred by the petitioner against the order dated 1651975, was, in my opinion, illegally rejected by order dated 211019/6. Regulation 511 of the Police Regulations as substituted by Notification No. 3114/VUIAl 1365, dated 29319.58 being germane to the points involved in the case is quoted below :

�511, (a) The power of revision, may in the case of all orders an appeal would lie under paragraph $08(1) be exercised suo motu by any authority to whom the appeal would lie.

(b) Without prejudice to the provisions of clause (a), the Inspector General of Policed may revise an order of a subordinate authority in nonappealable cases and also in cases of acquittal.

(c) No record of a case decided by a subordinate authority shall ordinarily be called for after six months from the date of the order sought to be revised.

(d) No order adversely affecting to Government servant shall be passed in, exercise of reversionary powers, ordinarily after six months from the date of receipt of records except for very Special reasons to be recorded in writing.

(e) No authority shall suo motu exercise the power of revision in any case more than once.�

A perusal of the Regulation 511 (b) of the Police Regulations would signify that the Inspector General of Police may revise an order of a subordinate authority in nonappealable cases and also in cases of acquittal. The language employed in clause (b) of the Regulation 511 is no doubt prohibitory in nature but the word ''ordinarily'' used in clause (c) of the aforestated Regulation lends ample discretion to the Inspector, General of Police to call for and examine the record of a case! even after six months from the date of the order sought to be revised. In record was admittedly sent for and the record having it was not open to the Inspector General of Police revision as barred by time. It brooks no dispute that the Inspector General of Police has, observed that the revision had no force, but the Revisional order, dated 21101976 bears eloquent testimony to the fact that the Inspector General of Police did not reckon with the pleas raised by the petitioner in his revision. It was specifically stated, in para 2 of the memo of revision, that the petitioner was ordered to deposit the kit before reporting in the Sick Parade. The Inspector General of Police rejected the revision without adverting himself to the effect and verity of deposit of the kit as per directions of the Day Havaldar and participation in the sick parade in plain attire was its sequitor but the Inspector General of Police eschewed it from consideration. The order dated 21101976 having been passed Without proper selfdirection to relevant factors gets vitiated by error of law and in my opinion, the order rejecting the revision on merits is nothing short of an arbitrary order and has to be demolished. The charge on which the petitioner has been dismissed from service is that he disobeyed the order to undergo punishment drill as directed by the order, dated 1651975 and 21101975. In my opinion, since the petitioner hard challenged the basic order dated 1651975 in revision under Regulation 511(b) the execution of the sentence awarded by order dated 1651975 ought to have been stayed but the departmental authorities, in my opinion, acting under an impulse directed execution of sentence vide order dated 21101975 without affording reasonable time to the petitioner, to seek expeditious decision of the revision. In the spectrum of the fact and circumstances of the case, therefore, the order of dismissal from service the instant case the I once been called for, to have dismissed the cannot but be branded as arbitrary and disproportionate to the alleged misconduct. It cannot be allowed to stand also because the very basis on which it was passed stands demolished.

The next question that emerges is as to what punishment should be inflicted. It is true that this Court while exercising power under Article 226 of the Constitution, acts only in supervisory capacity and normally, it is not excepted (sic) of this court to substitute a penalty imposed by the departmental authorities but as held by the Apex Court in B. S. Chaturvedi v, Union of India, JT 1975 (8) SC 65, the High Court would be within its jurisdiction to modify the punishment/penality by moulding the relief in an appropriate case and taking into consideration the fact and circumstances of the present case, the learned counsel for the petitioner, has in my opinion, legitimately suggested that the petitioner may be ordered to be restituted to this service with the rider that for the antecedent period he may be deemed to be under suspension from 461975 unto this date and further that the period of suspension may be treated as spent on duty with the further rider that for the suspension period, the petitioner would not be entitled to salary over and above the subsistence allowance which may be admissible to him according to rules

Accordingly, the petition succeeds and is allowed, in part. The impugned orders dated 1651975, 21101975, 1821977 and 23111979 are hereby quashed. The petitioner shall be treated as under suspension from 421976 upto the date of this judgment and for this period, he shall be entitled only to subsistence allowance as may be admissible to him in accordance with the relevant rules. Needless to say, the petitioner shall be reinstated in service.