Nirmal Kumar Singh v. State of Uttaranchal & Ors.

Sri Shobhit Saharia, learned Counsel for the petitioner. Sri Paresh Tripathi, Adv., learned Standing Counsel for the respondents. … Respondents. Coram: Hon’ble P.C.Verma, J. Hon’ble B.S.Verma, J. Dated July 14, 2006. (Restoration Application No. 8660 of 2006) Heard learned counsel for the rival parties and perused the material on record. This application for restoration of the writ petition has been moved by the learned counsel for the petitioner on the ground that on 3-7-2006, due to illness, the counsel for the petitioner could not attend the case, when it was called out, therefore, the case was dismissed in default. The application is supported by an affidavit. Sufficient cause has been shown to recall the order dated 3-7-2006. The application is allowed. The dismissal order dated 3-7-2006 is hereby recalled and the writ petition is restored to its original number. 2 This writ petition has been filed by the petitioner for a writ, order or direction in the nature of certiorari quashing the order dated 1-10-1996 passed by the learned Public Service Tribunal, Lucknow (for short the Tribunal) (Annexure No. 4 to the writ petition) and well as for quashing the order dated 19-2-2002 passed by it (Annexure No. 10), by which the review petition preferred by the petitioner was dismissed. By the order dated 1-10-2006, the learned Tribunal dismissed the claim petition of the petitioner to quash the punishment order dated 20-11-1992. Public Service Tribunal has upheld the dismissal order holding that full and adequate opportunity of hearing was given to the petitioner and the charges were fully established, which were serious in nature in so far as the discipline of police force is concerned. Learned counsel for the petitioner while challenging the judgment and order of the learned Tribunal submitted on the ground that Rule 14 and the procedure prescribed in Appendix 1 has not been followed inasmuch as the name of the doctor was not shown as a witness in the charge-sheet, whose statement is the basis of the enquiry report. It was said that the doctor had stated that the petitioner was in intoxicated state, while he was on duty. The Enquiry Officer required the doctor to appear and the doctor was examined to prove the charge, but there is no statement of fact in the writ petition that the petitioner ever desired or requested or made an application to the Enquiry Officer to cross-examine the doctor. It is the procedure prescribed in the Appendix, which, no doubt, required the evidence to be mentioned in support of the charge. The charge-sheet is on record at page 93 of the Paper Book and the memo of evidence is contained at page 94, wherein the names of the witnesses are mentioned to be examined in support of the charge. In the memo of evidence names of eight witnesses are shown, who were examined in the preliminary enquiry held by the Circle Officer Mukteshwar. The petitioner was taken by S.I. J.K. Gangwar along with order police personnel for medical examination and the medical examination was conducted by Dr. 3 Gauri Shankar Joshi on the date of occurrence, i.e. on 1-3-1991. A perusal of the enquiry report shows that the Enquiry Officer has dealt with the examination of Sri J.K.Gangwar, Sub Inspector, who had taken the petitioner for medical examined along with S.I. R.K.Gupta and Constable Bhishma Kumar. The medical certificate was issued by the doctor to the effect that the petitioner had consumed alcohol and he was found in an intoxicated state. The doctor was examined on 17-8-1992. On that day, the petitioner did not appear before the Enquiry Officer, as is evident from the Enquiry Report. Dr. Gauri Shankar Joshi had stated in his statement that the medical certificate, on record, relating to Constable Yogesh Narain and Constable Nirmal Kumar Singh, was issued by him. He had examined Yogesh Narain and Constable Nirmal Kumar and had found them to have consumed alcohol, while they were on duty. There is nothing on record to show that the petitioner ever made any application or any effort to cross-examine the doctor. Therefore, it cannot be said that the petitioner was not given opportunity of cross-examination. Learned counsel for the petitioner has relied upon the judgment of the Apex Court in Civil Appeal No. 2630 of 1987 “Ranjit Thakur Vs Union of India and Others”. In paragraph 11, the Hon’ble Apex Court has observed as under:- “The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the court-martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wide the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. The oft-quoted words of Frankfurther, J. in Vitarelli 4 v. Seaton (359 US 535, 546-47 : 3 L ed 2d 1012, 1021) are again worth recalling: ….if dismissal from employment is based on a defined procedure, even though generous beyond the requirement that bind such agency, that procedure must be scrupulously observed… This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.” As in the preceding paragraph of this judgment we have stated that the procedure was followed as the names of the witnesses were mentioned in the memo of evidence and it was in accordance with the provisions contained in Appendix appended to the Rules, framed, as is evident from the charge-sheet, therefore, there is full compliance of the Rules contained in the Appendix. Thus, the aforesaid judgment is of no help to the petitioner. In the result, we do not find any infirmity or illegality in the judgment and order under challenge passed by the Public Service Tribunal. Accordingly, the writ petition is devoid of merit. The writ petition is hereby dismissed. No order as to costs. (B.S.Verma, J.) (P.C.Verma, J.)