State of Uttaranchal v. Madan Pal Singh

Sri Anil Kumar Joshi, Advocate, present for respondent no.1. Coram: Hon(cid:146)ble Prafulla C. Pant, J. Hon(cid:146)ble Sudhanshu Dhulia, J. Prafulla C. Pant, J. (Oral)

1. By means of this petition, moved under Article 226 read with Article 227 of the Constitution of India, the writ petitioners have challenged the order dated 29.8.2006, passed by the Public Services Tribunal, Uttarakhand, in Claim Petition No. 246 of 2002, whereby the said court has quashed the order dated

13.12.2000 passed by the Superintendent of Police, Pauri, (respondent no. 3) removing respondent no. 1 from service, and orders dated 3.5.2001 and 11.3.2002 passed by writ petitioner no. 2 and writ petitioner no. 4 respectively, affirming the order of respondent no. 3. The tribunal has further directed to reinstate respondent no. 1 in service, but allowed writ petitioners to initiate fresh enquiry from the stage of chargesheet, served on respondent no. 1. 2

2. Heard learned counsel for the parties, and perused the affidavits filed on behalf of the parties.

3. Brief facts of the case are that respondent no. 1 Madan Pal Singh was posted as a Constable with Armed Police at Police Lines, Pauri, in the year 2000. A show-cause notice was served on him with the allegations that on 14.5.2000, he was found absent from Quarter Guard duty, and on 15.5.2000, he was found using abusive language publicly in a state of intoxication, on Kotdwar Road. A First Information Report was lodged at Police Station, Pauri, which was registered as Case No. 260 of 2000 under Section 34 of the Police Act, 1861, against respondent no. 1, and simultaneously, departmental enquiry was initiated against him. Respondent no. 1 replied the show- cause notice. Writ petitioner no. 3, who was the appointing authority, was not satisfied with the reply, and removed him from service vide order dated 13.12.2000. Respondent no. 1 preferred a departmental appeal before the Deputy Inspector General, Garhwal Mandal, who rejected the same vide his order dated 3.5.2001. On this, respondent no. 1 filed a revision before the Inspector General of Police, which was also rejected vide order dated 11.3.2002. Consequently, respondent no. 1 earlier filed Writ Petition No. 580 (S/B) of 2002, but the same was withdrawn with liberty to file claim petition before the Public Services Tribunal. Respondent no. 1 filed Claim Petition No. 246 of 2002, which was finally decided vide impugned order dated 29.8.2006. Meanwhile, the Criminal Case registered against respondent no. 1, under Section 34 of the Police Act, terminated in his favour from the Court of Judicial Magistrate, and respondent no. 1 was acquitted in said case vide order dated 3.2.2005 (passed by the Judicial Magistrate). The Public 3 Services Tribunal took note of the said development, and allowed the Claim Petition quashing the orders passed by Superintendent of Police, Deputy Inspector General of Police and Inspector General of Police, and directed the reinstatement of respondent no. 1 in service, leaving it open to the writ petitioners to initiate fresh enquiry. Hence, this writ petition on behalf of the State, and the authorities concerned.

4. From the affidavits of the parties, it is clear that respondent no. 1 was posted as Constable at Police Lines, Pauri, in the year 2000. It is also not denied that he was served with the notice, and gave reply. In substance, there were two charges against him, one related to the absence from duty without leave, and other to the misconduct, as he was found hurling abuses at a public place in intoxicated state.

5. Clause (6) of Section 34 of the Police Act, 1861 provides that any person, who is found drunk or riotous or who is incapable of taking care of himself, shall be liable to the punishment of fine not exceeding ‘ 50/-, or imprisonment not exceeding 8 days. From the said charge, respondent no. 1 has been, admittedly, acquitted vide order dated 3.2.2005, passed by the Judicial Magistrate, Pauri. Regulation 492 of the Police Regulations provides that whenever a Police Officer has been judicially tried, the Superintendent of Police, must await the decision of the judicial authority before deciding, whether further department action is necessary or not.

6. In the present case, admittedly the authorities concerned resorted to departmental action as well as judicial action, simultaneously, against respondent no. 1. However, Regulation 492, in the present case, does not protect respondent no. 1 4 completely, for the reason that he was facing another charge also, which related to absence from duty without leave. It appears that considering the nature of the charge, which related to absence from duty, the Tribunal took the view that it is too harsh to remove respondent no. 1 from service on that charge. Considering the nature of said charge, we concur with the Tribunal to that extent that removal from service, merely on the ground of absence for a day, is disproportionate to the charge. However, we are of the opinion that allowing fresh enquiry to be proceeded de novo, particularly when the principles of natural justice were followed in the departmental enquiry is not tenable. Considering all the facts and circumstances of the case, we are of the view that a punishment of stoppage of three annual increments with cumulative effect would have met the ends of justice, after punishment of removal from service is set aside. There should have been no difficulty for the Tribunal in substituting lesser punishment.

7. Shri Rakesh Thapliyal, Additional Advocate General drew our attention to the enquiry report dated 10.10.2000, copy of which is annexed with the writ petition, in which it is mentioned that Constable Madan Pal Singh had been absent from duty for several days in the years 1996, 1997, 1998, and a case was also registered against him in the year 1999 under Section 34 of the Police Act, in which he was earlier awarded minor punishment. Considering the past service record of respondent no. 1, we feel it just and proper to observe that it is open for the concerned authorities to consider the case of respondent no. 1, after his reinstatement, to retire him compulsorily, under Fundamental Rule 56 of the U.P. Fundamental Rules. 5

8. For the reasons, as discussed above, we dispose of this writ petition with the following directions :- (I) The impugned order dated 29.8.2006, passed by the Public Services Tribunal in Claim Petition No. 246 of 2002 is not interfered with, so far as it relates to quashing of order dated 13.12.2000 passed by Superintendent of Police, Pauri, order dated 3.5.2001 passed by Deputy Inspector General, Garhwal Mandal, and order dated

11.3.2002 passed by Inspector General of Police, Uttarakhand, Dehradun. However, we hold that the punishment shall stand reduced to the stoppage of three annual increments with cumulative effect against respondent no. 1. (II) We also decline to interfere with the direction to reinstate respondent no. 1 in service with back wages, but we observe that the authorities concerned may consider, after the reinstatement of respondent no. 1, compulsory retirement Fundamental Rule 56 the U.P. Fundamental Rules, keeping in mind his past service record. (Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.)

30.11.2010 Avneet