Sanjay Misra, J. - (1.) The petitoner seeks quashing of the judgment and order of U.P. State Public Services Tribunal Lucknow, the order dated 28.2.1996 passed by the Inspector General of P.A.C. Kanpur Sector Kanpur and the order dated 6.9.1995 passed by the Commandant 42nd Bn. P.A.C. Naini Allahabad. The petitioner was dismissed from service. His appeal was rejected and his claim petition before the tribunal was also dismissed.
(2.) Before the tribunal the petitioner had raised various grounds while assailing the order of dismissal and rejection of his appeal. The Tribunal while considering the submission of the petitioner, to the effect, that all departmental proceedings which have been taken against the petitioner without complying with the provision of para 1 of Regulation 486 of the U.P. Police Regulations are vitiated and the consequent punishment order is illegal and without jurisdiction, has held that the provisions of para 1 of Regulation 486 were not attracted to the present case and the proceedings taken against the petitioner by virtue of para III of Regulation 486 were rightly taken and therefore, the enquiry was conducted under the provisions of U.P. Subordinate Police Officers (Punishment and Appeal) Rules, 1991. The finding of the Tribunal on this ground has been assailed by learned Counsel for the petitioner in this writ petition. Para 1 of Regulation 486 of the Regulation is quoted here under: 486 (I), Every information received by the police relating the commission of a cognizable offence by a police officer shall be dealt with in the first place under Chapter XIV (now chapter XII), Criminal Procedure Code, according to law, a case under the appropriate section being registered in the police station concerned provided that (1) if the information is received, in the first instance, by a Magistrate and forwarded by the District Magistrate to the police, no case will be registered by the police; (2) if the information is received, in the first instance by the police, the report required by Section 157, Criminal Procedure Code, shall be forwarded to the District Magistrate, and when forwarding it the Superintendent of Police shall note on it with his own hand what steps are being taken as regards investigation or the reasons for refraining from investigation. (3) Unless investigation is refused by the Superintendent of Police under Section 157(1) (b) , Criminal Procedure Code and not ordered by the District Magistrate under Section 159 or unless the District Magistrate orders a magisterial inquiry under Section 159 investigation under Section 159 Criminal Procedure Code shall be made by a police officer selected by the Superintendent of Police and higher in rank than the officer charged; (4) On the conclusion of the investigation and before the report required by Section 173, Criminal Procedure code, is prepared the question whether the officer charged should or should not be sent for trial shall be decided by the Superintendent of Police. Provided that before an officer whose dismissal would require the concurrence of the Deputy Inspector General under paragraph 479 is sent for trial by the Superintendent of Police , the concurrence of the Deputy Inspector General must be obtained; (5) The charge sheet or final report under Section 173, or Section 169, Criminal Procedure Code, as the case may be, shall be sent to the District Magistrate; if the Superintendent of Police or the Deputy Inspector General had decided against a prosecution, a note by the Superintendent of Police giving the reasons for this decision shall be endorsed on, or attached to the final report; (6) When the reason for not instituting a prosecution is that the charge is believed to be baseless, no further action will be necessary; if the charge is believed to be true and a prosecution is not undertaken owing to the evidence being considered insufficient or for any other reasons the Superintendent may, when the final report under Section 173, Criminal Procedure Code, has been accepted by the District Magistrate; take departmental action as held down in paragraph 490.
(3.) From a perusal of above it is seen that para 1 (6) contemplates that departmental action can be taken only after final report under Section 173 Cr.P.C. has been accepted by the District Magistrate. It is contended that mandatory provision of para 1 has to be complied with otherwise any departmental enquiry or order of dismissal would become illegal. It is stated that upon the allegations made against the petitioner, an offence under Section 7 (c) of the U.P. P.A.C. Act, 1948 has been prima facie made out since the essential ingredients that there was gross insubordination or insolence during execution of official duties is alleged. It is therefore, stated that if an offence under Section 7 (c) of the U.P.P.A.C. Act is prima facie made out, then mandatory procedure prescribed under para 1 of Regulation 486 of the Police Regulations has to be followed. Learned Counsel for the petitioner submits that such procedure was not followed in the present case and therefore, entire proceedings are liable to be held illegal and set aside. The Tribunal while considering the aforesaid submission has concluded that the charge against the petitioner did not relate to any offence during discharge of his official duties or execution of his official duty in as much as the charge relates to the petitioner's conduct in the officer's mess after duty hours when the petitoner had gone to have his night meal. It has concluded that the procedure under para 1 of Regulation 486 of the Police Regulation would not be applicable.;