Sabhajeet Yadav, J. - (1.) HEARD Learned Counsel for the Petitioner and learned Standing Counsel.
(2.) BY this petition, the Petitioner has challenged the order dated 12.9.2006 passed by the Commandant, 37th Battalion P.A.C. Kanpur, whereby the Petitioner's representation has been disposed of by him purported to be in compliance of the order dated 4.7.2006 passed by this Court in Writ Petition No. 6351 of 2000 - Ramesh Bahadur Singh v. State of Uttar Pradesh and Ors. earlier filed by the Petitioner. By the aforesaid order dated 4.7.2006, while allowing the writ petition, this Court has been pleased to observe as under: In view of the aforesaid, the Court has examined the matter. On a perusal of the entire record, there appears to be No. dispute about the fact that Virendra Kumar Mishra happened to be the main accused in the criminal case and on his pointing out the Petitioner's name has been included in the proceeding. Statement of Prithvi Pal who is said to be the injured as has been noted by the Chief Metropolitan Magistrate, Kanpur Nagar, in its order dated 17.11.2003 clearly states that Prithivi Pal, main prosecution witness has stated that he dictated the report on the asking of one Jang Bahadur and he has just signed the same. He has further stated that on the asking of somebody, he has named Ramesh Bahadur( Petitioner). He has further stated that he is seeing Ramesh Bahadur for the first time and it has been further clarified that on the date of incident he was neither present on the spot nor was involved in the fight nor he has fired. Be as it may, so far Virendra Kumar Mishra is concerned, admittedly, he was arrested on the spot and it is said that Petitioner ran away from the scene. Absence of the Petitioner from the spot as has been stated by the informant as noticed above, can be taken note of for the time being that even if for the sake of argument the involvement of the Petitioner was there but Virendra Kumar Mishra has certainly main role. In the order of the appellate authority dated 3.9.1999( annexure No. 10 of the writ petition) it has been clearly stated that he was absent from duty without any lawful justification and he was arrested on the spot also. So far the Petitioner is concerned, he was admittedly on leave and he was not found/arrested on the spot. It is in this back drop the order of the appellate authority dated 3.9.1999( annexure No. 10 to the writ petition) can be safely taken in favour of the Petitioner, at least to that extent to which Virendra Kumar Mishra has been favoured by the competent authority. The Respondent No. 2 can be said to have acted in a whimsical and discriminatory manner as for the same charge and that for more serious allegation against one of the follow employee, the order of dismissal from service was substituted by the order of lesser punishment but in the case of the Petitioner order of removal from service was maintained. On a perusal of various other documents and evidence as has been placed, this Court is convinced that the claim/case of the Petitioner stands on a much better footing than of Virendra Kumar Mishra and, therefore, on these facts Petitioner is also entitled to get same treatment according to submission of Learned Counsel for the Petitioner also. After making aforesaid observations, this Court has concluded its opinion in operative part of the judgment as under: Accordingly, for the reasons given above, this petition succeeds in part and is allowed. The impugned order of the Respondents No. 3, 2 and 1 dated 13.12.1999, 1.10.1999 and 24.6.1999 (annexure Nos. 3, 2 and 1 respectively) are hereby quashed. The punishment so awarded to the Petitioner by the order dated 24.6.1999 is hereby modified to the extent as has been given to Virendra Kumar Mishra ( annexure No. 10 to the writ petition). It is for the competent authority to issue same order accordingly permitted the Petitioner to be dealt in the same manner as Virendra Kumar Mishra has been dealt. Petitioner is to move application before the competent authority along with certified copy of this order upon which the Respondent No. 3 shall pass appropriate order preferably within a period of two months from the date of receipt of the same. Writ petition is accordingly allowed/disposed of. DT: 4.7.2006 Sd/ -Hon. S.K. Singh,J.
(3.) LEARNED Counsel for the Petitioner has submitted that from the perusal of the observations made by this Court indicated hereinbefore, it is clear that while deciding writ petition earlier filed by the Petitioner the punishment of removal from service of Petitioner was modified by this Court to a lesser punishment as authorities have substituted the punishment of removal from the service of Sri Virendra Kumar Misra to lesser punishment vide order dated 22.9.1999 but the actual order was directed to be passed by the competent authority in pursuant thereto, the impugned order dated 12.9.2006 was passed by the Commandant, 37th Battalion, P.A.C. Kanpur, which apparently appears to be identical as in case of Virendra Kumar Mishra but in fact, in effect, the order cannot be said to be identical for the reason that reinstatement of Shri Virendra Kumar Mishra was done by the competent authority w.e.f. 22.9.1999 with certain terms and condition whereas the Petitioner's reinstatement has been done with immediate effect i.e. from the date of impugned order dated 12.9.2006, thus the Petitioner has been denied from the benefit of reinstatement in service for the period intervening w.e.f. 22.9.1999 till the date of his reinstatement in service i.e. 12.9.2006 and thereby discriminated from Shri Virendra Kumar Mishra despite order of this Court.;