- (1.) SUDHIR Agarwal, J. Heard Shri Pankaj Shukla, learned Counsel for the petitioner and learned standing Counsel for the respondents.
(2.) THE pleadings are complete and therefore, with the consent of learned Counsel for the parties, this writ petition has been heard and is being decided finally under the Rules of the Court. The petitioner has filed this writ petition under Article 226 of the Constitution of India against the removal order dated 7- 12-1988 (Annexure 4 to the writ petition) passed by the Senior Superintendent of Police, Jalaun, and the order dated 5-12-2003 passed by the Appellate Authority rejecting his appeal. The brief facts, which gave rise to this petition, are that a charge-sheet dated 15-7-1988 was served upon the petitioner, which contained two charges. The first charge is that while posted as Head Constable at Thana Kotwali Hamirpur he sought to appear before Inspector General of Police who visited Hamirpur in connection with inauguration of a building. The aforesaid act on the part of the petitioner was unauthorised and without prior permission from the higher authorities, showed indiscipline and being a member of Police force constituted misconduct. The second charge is that on 12-5-1988, in the evening at about 7. 00 or 7. 30 p. m. when Inspector General of Police was going to leave Kotwali Hamirpur premises the petitioner lie down on the road near Kotwali wherefrom the Inspector General of Police was to pass and despite persuasion by higher officials who were present at the site, created a scene in presence of Senior Police Officials and respectable persons of the Society causing loss to the image of the Police and this act of the petitioner amount to gross indiscipline unexpected from a Police Official. The aforesaid charge-sheet was issued by S. S. P. , Jalaun himself and he himself conducted disciplinary enquiry. The petitioner submitted reply to the charge-sheet on 25-7-1998 stating that before making any enquiry against the petitioner's conduct it would be appropriate for the authorities to make an enquiry into the reasons, which compelled the petitioner to resort to such activity. He further stated that he could not tolerate injustice caused to him and in such mental disturbance showed conduct as alleged in the charge- sheet but his aforesaid conduct cannot be inquired without the orders of Inspector General of Police. He also demanded copies of the documents sought to be relied in support of the charges. He further stated that he may submit further reply after receiving the aforesaid documents. The Senior Superintendent of Police, Jalaun conducted enquiry and thereafter passed punishment order dated 7-12-1988 imposing punishment of removal upon the petitioner. Appeal preferred under Rule 20 of the U. P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1999, was rejected by Deputy Inspector General of Police by order dated 5-12-2003.
(3.) COUNTER-affidavit has been filed on behalf of the respondents wherein it has been stated that the petitioner was given adequate opportunity to defend himself in the departmental enquiry but despite repeated information he did not attend oral enquiry before the Enquiry Officer/disciplinary authority and therefore, oral enquiry was completed in his absence where after order of punishment was passed since charges found proved are grave. It is also contended that there is no error in decision making process and therefore, writ petition is liable to be dismissed. It is also contended that the petitioner has a statutory alternative remedy by filing claim petition under Section 4 of the U. P. Service (Tribunal) Act, 1976, which has not been availed by him, therefore, this writ petition is liable to be dismissed on the ground of alternative remedy. Learned Counsel for the petitioner vehemently contended that before passing the impugned order a preliminary enquiry was conducted by one Shri Vijay Kumar Dikshit, Circle Officer against whom the petitioner was making complaint and in the said preliminary enquiry he was not afforded any opportunity, therefore, the entire proceedings are vitiated in law. He further contended that the petitioner was not given any information regarding date of oral enquiry which is said to have been fixed on 7-8-1988 and 10-8-1988, therefore, he could not participate in the oral enquiry. The ex-parte proceeding they conducted by the Enquiry Officer/disciplinary authority is wholly illegal and liable to be set aside.;