Shishir Kumar - (1.) -The present writ petition has been filed for quashing the order dated 12.7.2004 passed by respondent No. 1 (Annexure No. 1 to the writ petition).
(2.) THE facts arising out of the present writ petition are that the petitioner was initially appointed as Constable on 15.2.1988 and in the year 1995, he was posted as Constable-Driver. In the year 1998, he was posted in G.R.P, Lucknow. In June, 2004, he was transferred to 44th Battalion P.A.C Merrut from 12th Battalion P.A.C Fatehpur. By the impugned order, the petitioner has been dismissed from service without holding any departmental enquiry in exercise of power under Rule 8 (2) (b) of the U. P. Police Officers of Subordinate Ranks (Punishment and Appeals) Rules, 1991 (here-in-after-referred to as Rules). It has been submitted on behalf of the petitioner that from the perusal of the impugned order it clearly goes to show that no enquiry whatsoever has been conducted by the respondent No. 2 and on the basis of some past misconducts the petitioner has been dismissed from service in an arbitrary exercise of discretionary power. It has been submitted that while dismissing the services, the past adverse entries in his character roll and also on the basis of some minor punishments which were awarded to the petitioner in different years at different place of postings have been taken into consideration. It is well settled in law that only on the basis of past entries or punishments a Government servant cannot be dismissed from service. A bare perusal of the aforesaid order does not indicate the immediate reason or any gross misconduct on the part of the petitioner which lead to dismissal of services of petitioner. The impugned order casts a serious stigma upon the petitioner that too has been passed without providing any opportunity of hearing, as such, order is in utter violation of the principle of natural justice. The petitioner has not been issued any charge-sheet or notice neither any enquiry has been conducted by the respondent No. 2 before passing the impugned order of dismissal. There were no fresh serious charges on the basis of which the services of the petitioner cannot be dismissed. Only on the basis of past conduct the services of the petitioner can be dismissed. No enquiry as provided under Rule 14 of the Punishment Rules has been followed. The order of dismissal has been passed in exercise of power under Rule 8 (2) (b) of the aforesaid Rule which clearly provides that though there is a power to the authority to dismiss or remove a person or to reduce him in rank if satisfied that for the reasons to be recorded by the authority in writing, it is not reasonably practicable to hold such enquiry may dismiss or remove the charged police officer. No reason has been recorded by the authority concerned in the impugned order to the effect that it is not reasonably practicable to hold such an enquiry against the petitioner. Only it has been recorded that departmental enquiry is not reasonably practicable against the petitioner because he may threaten the witnesses. The aforesaid observation has been made by the respondents without there being any basis and material before him, only on the basis of presumptions the aforesaid observation has been made. The petitioner being a permanent employee cannot be dismissed from service except after enquiry in which he has to be informed about all the charges against him and has to be given a reasonable opportunity of being heard in respect of those charges. The impugned order has been passed against the petitioner in utter violation of Article 311 of the Constitution of India and as such, cannot be sustained in law. Further submission has been made on behalf of the petitioner that there is absolutely no serious charges against the petitioner in the impugned order and he has been dismissed from service on the basis of past misconducts for which he has already been awarded punishment. Dismissing the petitioner on the basis of these charges without any enquiry amounts to double jeopardy and the petitioner cannot be awarded punishment twice for the same charges, as such, the order passed by the respondents is in clear violation of the natural justice, and is liable to be quashed.
(3.) THE notices were issued by this court on 29.11.2007 and the respondents were granted time to file counter affidavit. Counter and rejoinder affidavits have been filed as such with the consent of the parties the writ petition is being disposed of finally. It has been submitted on behalf of the respondents that the petitioner while posted in 12th Battalion P.A.C after consuming liquor has threatened one M. T. Abbas and has abused one supervisor Sri Jagdev Narain Singh Yadav and has threatened him for dire consequences. The various incidents regarding the conduct of the petitioner were mentioned. It has further been submitted that petitioner being an employee of disciplined force, it was not expected from him to indulge himself in various incidents like threatening various colleagues after consuming liquor he was involved in an accident and abusing the higher authority and colleagues and indulge in mar-peet. Taking into all these incidents and the conduct of the petitioner, the order has been passed exercising the power under Rule 8 (2) (b) of the Rules and there is no illegality in the order and the writ petition is liable to be dismissed.;