Devendra Kumar Arora, J. - (1.) BY means of present writ petition, the Petitioners (State) have challenged the impugned judgment & order dated 08.4.2010, passed by State Public Service Tribunal, Lucknow, in Claim Petition No. 869 of 2008, Harendra Kumar v. State of U. P. and Ors., as contained in Annexure No. 1 to the writ petition by which claim petition of opposite party No. 2 was allowed with liberty to the Petitioners to proceed against the opposite party No. 2 afresh in accordance with law.
(2.) FACTS of the case, in nutshell, are that the opposite party No. 2 was appointed as Sub Inspector of U. P. Police in the year 1990. He was transferred from time to time to various places and in the year 2001 opposite party No. 2 was sent on deputation in Vigilance Department of U. P. Power Corporation Ltd. at its Headquarter Shakti Bhawan, Lucknow and remained there w.e.f. 20th April, 2001 to 22nd November, 2004. During his posting at Enforcement Cell, U. P. Power Corporation Ltd., Allahabad, an F.I.R. was lodged on 19.8.2001 by one Sri Manoj Dubey against the S.H.O. Of Mahila Thana, Civil Lines, Allahabad and one Harendra Singh son of Sri Ram Dhari Singh resident of Gobraiya, Police Station Gagha, district Gorakhpur In the said criminal case charge sheet was also filed before the competent court on 17.4.2003 against two persons namely the Sub Inspector Mrs. Vijay Laxmi wife of Sri Ghasita Lal and S.I. Harendra Singh son of Ram Dhari Singh. Further submission of learned Counsel for the Petitioners is that the opposite party No. 2 has deliberately given his fake identity during the investigation and for this his name was written in the charge sheet as S.I. Harendra Singh son of Ramdhari Singh instead of Harendra Kumar son of Ram Dahni. The address of Harendra Kumar was correctly mentioned in the F.I.R. as well as in the charge sheet as village Gobraiya, Police Station Gagha, district Gorakhpur. The said address has also been mentioned in the Service Book of opposite party No. 2. The opposite party No. 2 was evading service of the notice and summons on him and when he was not arrested , the proceedings under Sections 82 & 83 Code of Criminal Procedure were initiated against him and thereafter charge sheet was filed. As the opposite party No. 2 was involved in the above criminal case and was absconding, the Senior Superintendent of Police, Jhansi informed the Superintendent of Police, Vigilance Department, U. P. Power Corporation Ltd regarding the involvement of opposite party No. 2 in the said criminal case. The Superintendent of Police of Vigilance Department of U. P. Power Corporation Ltd. suspended the opposite party No. 2 on 17.2.2003. Since the opposite party No. 2 was evading the service of notice and summons, he was declared absconder by the Inspector General of Police, Lucknow Zone, Lucknow vide Office Memo dated 6.8.2003 and further declared a reward of Rs,. 20,000/ - to the person who will give the whereabouts/ information of the opposite party No. 2. The Senior Superintendent of Police, Lucknow was not having the details and whereabouts of opposite party No. 2 in the said criminal case No. 252 of 2001 and because of this reason, the opposite party No. 2 was posted at Aminabad Police Station, Lucknow. On 06.4.2006, the opposite party No. 2 was sent in Police Line for C.I.U.R. and thereafter on 5.5.2006 he applied for five days' casual leave which was sanctioned by the competent authority. Thereafter since 10.5.2006 the opposite party No. 2 was unauthorisedly absented from duty. On 21st May, 2006, the Senior Superintendent of Police, Allahabad informed the Senior Superintendent of Police, Lucknow that the opposite party No. 2 was named accused in case crime No. 252 of 2001 and has been absconding for the last five years. The Senior Superintendent of Police, Lucknow suspended the opposite party No. 2 on 26.7.2006 as he was continuously unauthorisedly remained absent from duty. As opposite party No. 2 was unauthorisedly absent from duty and was also absconding in the criminal case for the last five years, it was not practicably possible for the competent authority to hold any departmental inquiry against him and, thus, by invoking the provisions of sub rule (b) of Rule 8(2) of U. P. Police Officers of Subordinate Rank (Punishment & Appeal) Rules, 1991 (hereinafter referred to as "Rules, 1991") read with Article 311(2)(b) of the Constitution of India, the Senior Superintendent of Police, Lucknow dismissed the opposite party No. 2 from service by means of order dated 30th October, 2006. The opposite party No. 2 preferred a statutory appeal before the Inspector General of Police, Lucknow Zone, Lucknow and the same was rejected by means of speaking order dated 26.4.2007. The opposite party No. 2 thereafter challenged the punishment order as well as the appellate order before the State Public Service tribunal by way of filing Claim Petition No. 869 of 2008, Harendra Kumar v. State of U. P. and Ors. The same was allowed by means of Judgment & Order dated 8.4.2010.
(3.) SUBMISSION of learned Counsel for the Petitioners is that the learned Tribunal has not appreciated the facts and the submissions made by the present Petitioners/opposite parties and quashed the dismissal order on the ground that the same is based on the recommendations of the Senior Superintendent of Police dated 26.10.2006 and is not an outcome of the independent application of mind by the present Petitioner No. 4. Learned Counsel for the Petitioners also submitted that the dismissal order dated 30.12.2006 was passed by the D.I.G., Lucknow Range, Lucknow after taking into consideration the entire material available on record and also considered the fact that the opposite party No. 2 was declared absconder in Criminal Case No. 252 of 2001 and was also unauthorizedly remained absent from duty w.e.f. 10th May, 2006 and was placed under suspension on 26.7.2006 for his unauthorized absence and it was not practicably possible to hold departmental inquiry against him. The order of dismissal was passed by the competent authority after being satisfied that it was not reasonably practicable to hold the inquiry against the opposite party No. 2. The decision taken by the authority was perfectly legal and justified and in accordance with the provisions of Rules, 1991 read with Article 311(2)(b) of the Constitution of India. The learned Tribunal exceeded its jurisdiction while quashing the dismissal order by means of impugned judgment & order dated 8.4.2010.;