Sudhir Agarwal, J.@mdashHeard Sri Vijay Gautam, learned Counsel for the petitioner and learned standing Counsel for the respondents.
2. Since counter and rejoinder-affidavits have already been exchanged between the parties, as requested and agreed by the learned Counsel for the parties, the matter is heard finally under the Rules of the Court and is being decided at this stage.
Aggrieved by the order dated 26.5.2004, passed by Inspector General of Police, Allahabad Zone, Allahabad modifying punishment imposed upon the petitioner by converting dismissal from service to reduction in the pay scale at the minimum for a period of three years and denying arrears of salary for the period petitioner was under suspension and out of employment pursuant to dismissal order dated 2.5.1994, this writ petition has been filed seeking writ of certiorari quashing the same and also a writ of mandamus directing respondents to pay all the benefits to the petitioners as he was never suspended.
3. The learned Counsel for the petitioner submitted that the impugned order of punishment has been passed without considering the fact that the enquiry proceedings were conducted ex parte, the petitioner was not deliberately absent since he was ill and has submitted various medical certificates, therefore, it was not a case of unauthorized absence and, as such, there was no misconduct on the part of the petitioner inviting any punishment. He further contended that the impugned order, to the extent the petitioner has been denied arrears of salary during the period he was under suspension and out of employment, is vitiated for noncompliance of Fundamental Rule 54 since no notice was issued to the petitioner under the aforesaid provision.
4. Learned standing Counsel, on the other contrary, placed reliance on the stand taken in the counter-affidavit and submitted that entire proceedings were conducted in accordance with law and, therefore, no interference is warranted in this writ petition.
5. From the submissions advanced by the learned Counsel for the petitioner, I find that basically he has assailed the impugned order on the following grounds:
(1) The enquiry report submitted by the enquiry officer is pursuant to an ex parte enquiry without giving any opportunity of hearing to the petitioner, therefore, is vitiated in law.
(2) The procedure laid down in Rule 14(1) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as ''1991 Rules'') has not been followed rendering the entire proceedings void ab-initio.
(3) Before passing order of dismissal, the disciplinary authority, i.e., respondent No. 4 has not afforded any opportunity to the petitioner and, therefore, it is bad in law.
(4) While deciding the appeal of the petitioner, various grounds raised by him have not been considered and, therefore, the appellate order is non-speaking.
(5) The punishment imposed upon the petitioner is excessive, arbitrary and does not commensurate to the alleged misconduct.
(6) The proceedings are result of mala fide of the then Superintendent of Police, Banda, whose wife contested election from Etawah and the petitioner''s Geep which is owned by the wife of petitioner was used in the said election, but no rent was paid and when the petitioner demanded, he was misbehaved, abused and a false report was also lodged against him on 9.7.1993.
(7) The revisional authority though modified the punishment by reduction in the pay scale, but even that punishment does not commensurate to the alleged misconduct.
(8) The order for denying salary during the period the petitioner was under suspension and out of employment pursuant to the dismissal order, which was modified by the revisional order, has not been passed in accordance with the procedure prescribed under Fundamental Rule 54.
6. Coming to the three submissions that the enquiry was conducted without affording opportunity to the petitioner, it is evident from the own pleadings and the record available before this Court that a charge-sheet dated 19.8.1993 was served upon the petitioner making an allegation that he was found absent from duty from the night of 9.5.1993 to 13.7.1993 unauthorizedly and, therefore, was guilty of negligence, dereliction of duty and indiscipline. He was supplied with the copy of the documents relied upon in the charge-sheet as well as preliminary enquiry report and the statements etc. recorded therein. Petitioner submitted his reply to the charge-sheet on 28.8.1993 and made a statement before the enquiry officer that besides his written reply, he does not want to show anything further in the matter and signed proceedings before the enquiry officer.
7. The enquiry officer, thereafter, proceeded to hold oral enquiry and recorded statements of Head Constable Sri Om Prakash, Sub-Inspector Armed Police Sri Saligram Misra and gave opportunity to the petitioner to cross-examine them but he refused to do so. The aforesaid statements of the witnesses were recorded on 13.9.1993 and next date of recording statements of witnesses was fixed as 28.9.1993. Information was sent by Special Messenger but petitioner was not present at his permanent residence. Therefore, the notice was served upon his brother, Babloo Awasthi, in presence of two witnesses besides the Gram Pradhan of the village.
8. The petitioner instead of attending proceedings, on 27.9.1993 sent letter to the enquiry officer stating that he is ill and would appear in the proceedings after becoming fit and till then enquiry should be suspended. This shows his knowledge of the next date, i.e., 28.9.1993. Thereafter, the enquiry officer vide his letter dated 22.10.1993 requested Chief Medical Officer, Banda for constituting a Medical Board and examine the genuinity of alleged sickness of the petitioner. But despite information, the petitioner did not appear for the said examination. The enquiry officer, vide letter dated 4.11.1993, required the petitioner either to participate in the enquiry on 19.11.1993 otherwise he shall proceed ex parte, yet the petitioner did not appear though the said letter was served upon him by Special Messenger, which was received at the petitioner''s residence by his wife Smt. Nirmala Awasthi.
9. Even thereafter, the petitioner failed to appear and in these circumstances, the enquiry officer proceeded with further oral enquiry and after recording statements of rest of the prosecution witnesses etc., communicated the petitioner again to cross-examine these witnesses and he was also given opportunity for producing his defence on various dates, but it appears that the petitioner was not inclined to participate in the enquiry, thus, absented himself from participating therein. In these circumstances, enquiry officer submitted his report on 26.3.2004 holding the petitioner guilty of the charges levelled in the charge-sheet recommending punishment of dismissal from service.
10. The disciplinary authority sent a copy of the conclusion of the enquiry report alongwith a show cause notice dated 3.4.1994 giving an opportunity to the petitioner to submit his reply, but despite repeated opportunity, he did not submit any reply. The disciplinary authority, thus, passed the dismissal order on 2.5.1994. In the appeal submitted by the petitioner, general allegations have been made but it has not been said that when he was communicated on certain dates, why he did not appear in the enquiry proceedings.
11. Considering the entire facts and circumstances, I do not find it correct that the proceedings have been conducted against the petitioner without affording opportunity to him. The principles of natural justice, if not availed by the person concerned, it is not open subsequently to him to challenge an order adverse to him on the ground that he was not afforded opportunity when he himself failed to avail such opportunity.
So far as the validity of the revtsional order is concerned, from a bare perusal thereof it is evident that every aspect has been considered by the revtsional authority in detail and it has also considered the question of quantum of punishment imposed upon the petitioner and taking a lenient view in the matter, he has modified punishment by revoking the order of dismissal and reducing the punishment to reduction at the minimum of pay scale, that too, only for a period of three years.
12. Therefore, even the contention of the petitioner that the punishment is disproportionate to the misconduct levelled against him is not acceptable. Petitioner is member of a disciplined force and, therefore, has to show a more sincere and disciplined conduct since any negligence on his part may result in serious consequences. Absence of petitioner for a long time without informing the authorities and unauthorizedly cannot be said to be a technical or non-serious misconduct, which does not warrant a strict punishment.
13. In the matter of members of disciplined force, in order to maintain strict discipline, the nature of punishment would be stern comparing to other civil services.
So far as the argument of mala fide is concerned, learned Counsel for the petitioner could not substantiate the said argument. Moreover, the person concerned against whom the mala fide is alleged has not been impleaded in the writ petition. It is well-settled that a plea of mala fide shall not be entertained unless the person against whom mala fide is alleged is impleaded eo nomine as held In the case of
14. Thus, the contention that the impugned order of punishment was passed pursuant to mala fide of the then Superintendent of Police, Banda has no substance and is rejected.
Now coming to the question as to whether the order passed by the revisional authority denying arrears of pay to the petitioner for the period he was under suspension as well as the period he was out of employment pursuant to the dismissal order dated 2.5.1994 is correct or not, I find that such an order can be passed by the competent authority only after issuing a show cause notice to the employee concerned as contemplated under Fundamental Rule 54, which reads as under:
F.R. 54.-(1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order.
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of Sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him, and after considering the representations, if any, submitted by him. direct for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of Sub-rule (7), be paid for the period of such delay, only such amount not being the whole of such pay and allowance as it may determine.
(3) In a case falling under Sub-rule (2) the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.
(4) In cases other than those covered by Sub-rule (2), including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellant or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held the Government servant shall, subject to the provisions of Sub-rules (5) and (7), be paid such amount not being the whole of the pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served as may be specified in the notice.
(5) In a case falling under Sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be treated so for any specified purpose:
Provided that if the Government servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Government servant.
(6) The payment of allowances under Sub-rule (2) or Sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.
(7) The amount determined under the proviso to Sub-rule (2) or under Sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.
(8) Any payment made under this rule to Government servant on his retirement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Government servant.
15. A bare perusal of the aforesaid provision makes it clear that before passing an order depriving the Government servant of full salary for the period of suspension or when he was out of employment, a show-cause notice has to be issued to the concerned Government servant and only thereafter, the competent authority may pass appropriate order considering various aspects.
16. Admittedly, no such procedure has been followed, therefore, the impugned order, to the extent the petitioner has been denied arrears of salary for the period of suspension as well as during the period he was out of employment pursuant to the dismissal order, which was modified by the revisional order, is set aside. The writ petition is, accordingly, allowed partly.
17. However, it is open to the respondents to pass a fresh order in respect of arrears of salary of the petitioner for the period of hts suspension as well as the period when he was out of employment pursuant to the dismissal order, which was modified by the revisional order dated 26.5.2004, complying the procedure prescribed under Fundamental Rule 54 and in accordance with law.
There shall be no order as to costs.
