Binod Kumar Roy, M.P.Singh - (1.) -The petitioner, a Removed Police Constable, has come up with a prayer to quash the order dated 1.12.1989 of removal of his service passed by the Superintendent of Police, Fatehpur (as contained in Annexure-4), the appellate order dated 12.1.1991 dismissing his appeal preferred against the aforementioned order (as contained in Annexure-6A) passed by the D.I.G. of Police, Allahabad Region and the order dated 14.7.1995 passed by the U. P. Public Services Tribunal rejecting his claim petition (as contained in Annexure-6).
(2.) HIS case set up in this writ petition and the supplementary-affidavit dated 11.7.2000 is to this effect : (i) In the year 1973 he was transferred to the Armed Force, of the U. P. Police. (ii) Son of one Anis alias Nawab, resident of village Matinpur, was murdered sometime in February, 1988. Apprehending threat to his life, Anis made an application before the Senior Superintendent of Police, Fatehpur (copy appended as Annexure-S.A. 1) for being provided police security. The S.S.P., Fatehpur acceded to his request and by his order dated 18.3.1988 provided 24 hours security by posting two constables at his residence. Pursuant to this order on 20.4.1988, the petitioner and another Constable Munni Lal were posted at the residence of Anis. (iii) A first information report was lodged with police station, Kotwali, Fatehpur, against eight persons including the aforesaid Anis in respect of an incident which had taken place at about 12.30 p.m. on 24.4.1988 on which Case Crime No. 168 of 1988, State v. Mohd. Abdul Salam and others, under Sections 302/147/148 and 149, I.P.C. was registered. (iv) Since the accused Anis was at his residence at the time of committal of the incident mentioned in the F.I.R. of Case Crime No. 168 of 1988 in presence of the petitioner and aforesaid Munni Lal and as such there was no question of his being present at the place of alleged incident and thus he and the aforesaid Munni Lal filed affidavits in the bail application filed by Anis in the Court of C.J.M., Fatehpur (Copy appended as Annexure-5) certifying that he was present at his residence in presence of the deponents. (v) He was served with a charge-sheet dated 7.3.1989 by the Circle Officer Nagar, Fatehpur to the effect that in the year 1988 when he was deputed in Police Line, Fatehpur and was on duty for maintaining peace in village Matinpur, police station, Hussainganj, Fatehpur, he without taking permission of any higher officer had filed the affidavit in favour of accused Anis in Case Crime No. 168 of 1988. (vi) After detailed enquiry, he was found guilty, his work aforementioned as indicative of dereliction of duty, laxity, carelessness and indiscipline and was ordered to file his explanation as to whether he accepts the aforementioned charges or does not accept within eight days of the receipt of the same. (vii) He filed his reply. He also filed several applications before the inquiry officer with a prayer that he be supplied copies of the documents and the statement of witnesses on which the department intends to rely for his alleged misconduct. He, however, was not supplied any copy of the documents and statements of witnesses which seriously prejudiced him as he failed to file his adequate reply. (viii) The inquiry officer submitted his report dated 23.10.1989 before the Superintendent of Police, Fatehpur, who in his turn issued notice on 27.10.1989 to the petitioner (as contained in Annexure-2) calling upon him to show cause as to why he should not be removed from the police force. (ix) The petitioner submitted his reply dated 3.11.1989 (as contained in Annexure-3). (x) Respondent No. 3, vide his order dated 1.12.1989, removed the petitioner without considering his reply and adherence to the requirement of paragraph 495 of the police Regulations. (xi) The charge was not misconduct under the Police Act or the Regulation framed thereunder or under the provisions of U. P. Govern-ment Servants Conduct Rules, 1956 rather Rule 8 (iii) of which categorically lays down that nothing in the rule shall apply to the evidence given in any judicial enquiry. Since he had admittedly filed his affidavit in course of a judicial enquiry before the C.J.M., Fatehpur, no prior permission or sanction of the Government or of any superior officer was required. (xii) Sessions Trial No. 266 of 1990 against Anis alias Nawab and others, who are accused, is still pending in the Court of 3rd Additional Sessions Judge, Fatehpur and since Sri Anis has not been convicted of committal of alleged offence, it does not mean that the affidavit filed by him in the bail application was false. He had not filed his statement on oath in the sessions trial in favour of Anis. (xiii) Even assuming though without admitting that he was guilty of committal of the alleged misconduct, the same had not called for passing of an order of his removal in view of the fact that his previous service record was excellent, he not having been awarded any adverse entry and thus, the punishment awarded is shockingly disproportionate. The case of the respondents set up in the counter-affidavit and the supplementary counter-affidavit which had been sworn by the Deputy Superintendent of Police, Fatehpur, is to the following effect : (i) The police force is a disciplined one whose employees are to function under discipline. The petitioner has been removed in order to maintain discipline in the police force. (ii) The affidavit was illegally filed by the petitioner in order to give benefit to the accused persons in contravention of Rule 8 (b) of the Government Employees Conduct Rules and the departmental instructions and, therefore, departmental proceedings were initiated under Section 7 of the Police Act and Regulation 490 of the Police Regulations. (iii) He was neither a witness in the murder case nor was he summoned by the Court. No enquiry was pending in Court. (iv) In regard to this allegation that he was not afforded proper opportunity in the departmental enquiry, it is stated that in the departmental proceeding, the petitioner was given sufficient opportunity of hearing and inspection of all the available records, the provisions as contained in para 490 of the police rules were literally followed, and on 7th and 20th March, 1989, copy of entire records were served on him legally. His explanation was considered sympathetically and in accordance with law. Orders have been correctly passed which do not require interference in the interest of justice. (v) Rule 8 (3) of U. P. Government Servants Conduct Rules, 1956 do not apply. (vi) Munni Lal, a similarly charged constable, was also removed from service whose appeal and claim petition were also similarly rejected. (vii) The writ petition is without any merit and baseless and is fit to be dismissed. No Rejoinder was filed by the petitioner to the counter-affidavit and to the supplementary counter-affidavit copies of which were served on the learned counsel for the petitioner on 1.7.1996 and 26.7.2000 respectively. The Submissions made before us :
(3.) MR. Bala Krishna Narayana, learned counsel appearing on behalf of the petitioner, contended as follows : (i) Since the petitioner was posted at the residence of Anis and was personally knowing the fact that at the time of committal of the alleged incident Anis was at his residence, he filed his affidavit before the Chief Judicial Magistrate, Fatehpur in the bail petition of Anis which was in the nature of the judicial inquiry and consequently in terms of Rule 8 (iii) of the conduct rules prior permission of higher police authorities was not required to be taken by him and this legal position has been completely misconceived. (ii) In any view of the matter the order of removal of the petitioner was shockingly disproportionate to his alleged misconduct and a lighter punishment should have been awarded to him. (iii) The orders impugned, thus, are liable to be quashed. Smt. Sarita Singh, learned standing counsel appearing on behalf of the respondents, on the other hand, submitted as follows : (i) From the averments made in the counter-affidavit, supple-mentary counter-affidavit, to which no rejoinder has been filed, and the impugned orders it is crystal clear that the petitioner tried to support the defence of alibi of the accused Anis by filing his affidavit along with his bail application without taking prior permission of the higher police authorities. On investigation accused Anis was found to be involved in the murder incident and a charge-sheet was submitted by the Investigating Officer who was admittedly higher in rank that of the petitioner. Relevant statements made in paragraph 16 of the counter-affidavit have not been rebutted by filing any rejoinder or during submissions made by the learned counsel of the petitioner. There was no judicial inquiry whatsoever pending before the Chief Judicial Magistrate in which he was required to give evidence. The petitioner who was a member of a disciplined police force could not have supported the defence of alibi of the accused Anis, which was false as found in the investigation by the police which submitted charge-sheet against the accused persons. (ii) Proceeding for his dismissal was initiated under Section 7 of the Police Act but he was removed. (iii) His removal is not disproportionate to his guilt. (iv) Thus, the writ petition is liable to be dismissed. ;