Mukesh Nigam v. State of Uttarakhand & Ors.

Sri Ajay Veer Pundir, the learned counsel for the petitioner submitted that the petitioner has been persecuted and discriminated. Whereas the second constable was given a lenient punishment, 3 namely, reduction in the minimum of pay scale, the petitioner, on the other hand, was dismissed from service and therefore there was discrimination especially when the role of both the constables was the same. The learned counsel also stressed that the punishment did not commensurate with the misconduct. The learned counsel further submitted that the charge sheet was not issued by the disciplinary authority but was issued by the Enquiry Officer and that non-issuance of the charge sheet by the disciplinary authority becomes fatal. It was also contended in the end that the reply given by the petitioner to the show cause notice was not considered by the disciplinary authority while passing the impugned order of dismissal and therefore the order of dismissal was violative of the principles of natural justice. In support of his contention, the learned counsel has placed reliance upon a decision in case of Constable Vijay Kumar vs. State of Uttarakhand & Ors. in Writ Petition No.576 (S/S) of 2008, decided on 27.12.2010. Having heard the learned counsel for the petitioner at some length, the Court finds that the petitioner is not entitled for any relief. In the first instance, the Court finds that the charge sheet has been issued by the Enquiry Officer, which has been issued in accordance with the Rule 14(1) of the Uttar Pradesh Police Officers of the Subordinate 4 Ranks (Punishment and Appeal), Rules 1991 (hereinafter referred to as the Rules of 1991). The procedure for conducting the departmental enquiry has been determined in Appendix I of the Rules. Under Appendix I, Form-I indicates that the charge sheet can be issued by the Inquiring Officer for and on behalf of the disciplinary authority. In the present case, the same has been done by the Inquiring Officer on behalf of the disciplinary authority. Consequently, the charge sheet issued Inquiring Officer is correct and accordance with Rule 14(1) of the Rules of 1991. The contention of the learned counsel for the petitioner in this regard is not correct. In so far as the opportunity of hearing is concerned, the Court finds that the disciplinary authority has considered the explanation, the report of the Enquiry Officer and the mitigating circumstances, which led to the escape of the convict, and came to the conclusion that the punishment of dismissal was the appropriate remedy. The Court does not find any error in this regard and also finds that the ample opportunity of hearing was provided the petitioner consonance with Article 14 and Article 311 of The Constitution of India. The contention that the petitioner has been discriminated is not correct. No doubt the second constable has been given a lesser punishment and 5 the petitioner has been given the ultimate punishment of dismissal. The difference in the punishment lies with the action of the petitioner vis-(cid:224)-vis the action conducted by the second constable with regard to the incident in question. The Court finds that when the convict made an attempt to escape and jumped from the train, the second constable tried to catch him and in that process also fell down from the train and sustained injuries. On the other hand, the petitioner remained a mute spectator and thereafter he fainted under the influence of some intoxicant, which he had consumed. The offence remains the same, namely, that the convict had escaped but the action of the two constables was totally different. It was in these circumstances that the disciplinary authority, considering mitigating circumstances, awarded the punishment of dismissal against the petitioner. The Court does not find any discrimination in the awarding of such punishment and the question of interference by the Court, in such circumstances, does not arise. The Court is also of the opinion that an onerous task was given to the petitioner to escort the convict to the district court and, during duty hours, the petitioner had consumed some intoxicants. There has been a clear case of dereliction of duty and consequently the Court is inclined interfere with the order of punishment as finds that the punishment 6 awarded commensurated with the misconduct. The judgment cited by the learned counsel for the petitioner in my opinion has no application to the facts and circumstances of the case. In the light of the aforesaid, the writ petition fails and is dismissed. (Tarun Agarwala, J.) 07.06.2012 Rajni