R.B.Mishra, J. - (1.) Heard Sri Shailendra, learned Counsel for the petitioner and Sri S.S. Sharma, learned Standing Counsel for the State. In this writ petition the prayer has been made to quash the order dated 21.5.1998 and again order dated 28.11.1998 and the Enquiry Report enclosed as (Annexures No. 9, 11 and 6) respectively. It appears that the petitioner was initially appointed as Constable in Provincial Arms Constabulary in 15 Batallian P.A.C., Agra on 1.1.1986. The petitioner was alleged to have stolen identity card, driving licence and diary of one drawer Amar Singh. Within one day inquiry was completed and petitioner was dismissed from service. The petitioner preferred an appeal against the dismissal order which was allowed by D.I.G., P.A.C., Agra dated 30.6.1996 (Annexure-1). Fresh charge-sheet was issued on 27.12.1996 against the petitioner in reference to incident of 22.1.1996 and in reference to the allegations prior to 22.1.1996 in which enquiry was already been pending and one Kunwar Pal Singh, Assistant Commandant, 45 Bn. PAC, Aligarh, was the enquiry officer and the statement of Mitra Prakash Tiwari and Ravindra Yadav, both Constables and Amar Singh whose diary etc. were alleged to have been stolen, were recorded. It appears that in all the statements were some contradiction and there is no direct evidence where it could be said that the petitioner has stolen the alleged items. The enquiry officer Sri Kunwar Pal Singh has submitted the report on 23.4.1998 (Annexure-6). In reference to the show cause notice the petitioner was allowed 8 days time to give a response. The petitioner on 16.5.1998 wrote a letter seeking some more time on the ground his son is not well. Letter of request is enclosed as (Annexure-8). Petitioner was not granted time and an ex-parte decision dated 21.5.1998 was taken which is the impugned order of the present writ petition. The petitioner preferred an appeal before the Dy. Inspector General of Police who after considering the same dismissed on 22.7.1998 (Annexure-10) and appeal preferred against the above order 21.5.1998 before the D.I.G. Police which was dismissed on 28.11.1998 which is also an impugned order in the writ petition.
(2.) The counter and rejoinder-affidavit has been exchange.
(3.) The points/issued raised by the petitioner for consideration before this Court is : (a) As per Rule 13 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991, which provides that in case the enquiry officer has done a preliminary enquiry in a case, he shall not conduct the subsequent or main enquiry under the aforesaid Rule. In the present case, the preliminary enquiry was done by Kunwar Pal Singh, Assistant Commandant, 45 Bn. PAC, Aligarh. The fact can be con- firmed by letter Annexures No. 1, 2 and 3 annexed to the supplementary-affidavit. All these letters were issued by Kunwar Pal Singh who was the enquiry officer in the preliminary enquiry which concluded and the petitioner's services were dismissed on 23.1.1996. Fresh enquiry was initiated by the charge-sheet dated 27.12.1996 in which the enquiry officer submitted the report on 23.4.1998, (Annexxure-6). The name of the enquiry officer mentioned in the concluding page 6, the enquiry officer was Kunwar Pal Singh, Assistant Commandant. Therefore, it is clear that the enquiry officer in the preliminary enquiry as well as in the main enquiry was the same Kunwar Pal Singh, therefore, the enquiry is vitiated in view of the provisions of Rule 13 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeals) Rules, 1991. (b) The main enquiry is also vitiated on the ground that the provisions of Regulations 486(1), (5)and (6) of the Police Regulations were completely violated by the authority concerned including the Appointing Authority as they failed to observe the process contemplated in the said regulation. They also violated the Government Order dated 29.1.1992, Annexure-12 which also reiterates the stand taken by the petitioner. The allegation against the petitioner is that he is guilty of theft. In such circumstances, it is an offence cognizable under the Indian Penal Code, therefore, the authorities are bound to follow the provisions of Regulation 486 and the First Information Report is required to be lodged against the petitioner. No such step was taken by the authority competent, therefore, entire enquiry and the order impugned against the petitioner deserves to be set-aside. It is further necessary to mention here that this question was rejected by the Appellate Authority where they say that since the charge was petty, no First Information Report was lodged and the provisions of Regulations 486(1), (5) and (6) were not required to be followed. This finding is recorded in Para 4 of the Appellate Authority Order, (Annexure No. 11). The finding recorded in Para 4 by the Appellate Authority confirms that the Act was not of such a nature so that even any First Information Report should be registered. If the fact is admitted and taken as such, there was no case, in any manner granting the punishment of dismissal against the petitioner. (c) The order of dismissal passed on 21.5.1998 was ex-parte as show cause notice was issued on 6.5.1998. Deliberately 8 days time was granted. When the petitioner moved the application for 8 days more time on account of his and his son's illness, time was not allowed and within 5 days the petitioner was dismissed from service, therefore, the order impugned of dismissal was passed ex-parte and in utter violation of the principles of natural justice. The issue of no opportunity to the petitioner was also raised in the appeal and the Appellate Authority dealt with the issue in Para 3 of the decision (Annexure No. 11) in which they admitted the moving of the application by the petitioner for 8 days more time but the finding recorded was that the petitioner had not filed any Medical Certificate along with the application, therefore, he was not allowed further time. In view of the fact that the petitioner was not in a position to attend the proceeding, he moved the application. Medical Certificate as required to be submitted after completion of the leave period on medical ground and not prior to that. In such circumstances, it is a clear case of admission of the authorities that they deliberately passed the order for no reason without permitted further time to the petitioner. (d) It is further necessary to mention here that while reading (Annexure-1) this can be found that while allowing the appeal of the petitioner the Appellate Authority recorded the finding that this is a clear case of misuse of legal process. The finding was recorded at internal page 4 in the following manner :" IS PRAKARAN KO MAIN SENANAYAK 45 WAHINI PAC ALIGARH DWARA DAND WA APPEAL NIYAMAWALI, 1991 KE NIYAM 8(2) KHA KA DURPAYOG HI MANTA HOON." English Transaction is as under : I find this case, is a misuse of Rule 8(2) Kha of Punishment and Appeal Rules, 1991 by the Commandant, 45 Bn PAC, Aligarh. (e) Another issue is that the authorities were acting throughout with malafide and the oblique motive. This fact can be confirmed by the reason that the date of incident relating to theft was 22.1.1996 and within one day the enquire enquiry was completed and the petitioner was dismissed from service on 23.1.1996 and when the petitioner filed the appeal, the authorities became prejudiced being the Police establishment, where they cannot expect raising of head by a Constable. Once, the appeal was allowed in favour of the petitioner, the authorities became prejudiced and the same enquiry officer Kunwar Pal Singh, who did the enquiry from 1995 to 1996 in other allegations, was taken together in the fresh charge-sheet and was enquired by the same enquiry officer, deliberately without providing any opportunity as such the petitioner was punished and dismissed from service without dealing with the issue raised by the petitioner. (f) Another issue is that the entire allegations which allegedly found proved against the petitioner, are on the basis of the three statements of Mitra Prakash Tiwari, Ravindra Yadav and Amar Singh (Annexure No. 3). These statements are inter se contrary. According to the statements of Mitra Prakash Tiwari, he found the stolen things on road from which the petitioner returned after the natural call few minutes back while the statement of Ravindra Yadav who was accompanying Mitra Prakash Tiwari was contrary. According to his statement, he has been the petitioner throwing identity card, driving licence and diary in the night i.e., about 8 p.m., from the considerable distance. So far the third statement of Amar Singh is concerned, he was not present there, therefore, he only recorded statement that he got the information that stolen material was found from the possession of the petitioner. In such circumstances, all the three statements are contrary and in any circum- stance, cannot be relied, upon for awarding the punishment of dismissal. (g) The punishment is harsh and disproportionate to the charges made against the petitioner. The allegation against the petitioner as admitted by the Appellate Authority is of petty nature and not of even such a nature that a First Information Report could be registered on its basis. In such circumstances, the petitioner cannot be punished from dismissal of service. Case relied AIR 1994 SC 215 (Para 2), 1991 (2) SCC 213 (Paras 4 and 5). Punishment must commensurate with gravity of misconduct. (h) Remedy of revision/alternate remedy before the Tribunal in the case, where counter-affidavit and rejoinder-affidavit filed, the question of alternative remedy cannot be permitted to be raised. Case referred (2001) 1 UPLBEC 109. In the cases, where legal issue is involved it will not serve any purpose to send the matter to the Tribunal as the matter will come back to the High Court. Since, counter-affidavit and rejoinder-affidavit have been exchanged, this can be decided by the High Court itself. JT 1995 (1) SC 471; (1993) 1 UPLBEC 281. The Uttar Pradesh Police Officers of the Sub-ordinate Ranks (Punishment and Appeal) Rules, 1991 Rule 4 reads as below : Punishment.-(1) The following punishment may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officers, namely : (a) Major Penalties :( i) Dismissal from service; (ii) Removal from service; (iii) Reduction in Rank including reduction to a lower-scale or to a lower 1 stage in a time scale. (b) Minor Penalties :( i) With-holding of promotion; (ii) Fine not exceeding one month's pay; (iii) With-holding of increment, including stoppage at an efficiency bar; and (iv) Cansure. (2) In addition to the punishments mentioned in Sub-rule (1) Head Constable and Constables may also be inflicted with the following punishment:( i) Confinement to quarters (this term includes confinement to Quarter Guard for a term not exceeding fifteen days extra guard or other duty); (ii) Punishment Drill not exceeding fifteen days; (iii) Extra guard duty not exceeding seven days; and (iv) Deprivation of good conduct pay.;