Devi Prasad Singh, J. - (1.) WHILE admitting the present writ petition the following questions were framed for adjudication: (i) Whether filing of affidavit by a person in a Court of law shall constitute a case of misconduct and the Government employee concerned can be charged for misconduct under Service Rules? (ii) Whether the State Government or district authority has got right to take disciplinary action relating to conduct of filing of affidavit in this Court by the Government employee more so, when no proceeding has been initiated by this Court in pursuance of provisions contained under Section 195, IPC, 340 and 341, Cr.P.C. or any other law for the time being in force? (iii) Whether in the present case, where a different view was taken by the punishing authority with regard to the incident than what was taken by the inquiry officer without serving show cause notice or recording reasons therefore, is sustainable under Law? (iv) Whether citizen including Government employees or the members of Police Force have right to file affidavit in a Court under judicial proceedings and in case filed then whether only because of such action, such person can be permitted to face disciplinary action or may be punished for that action under any law for the time being in force? Brief facts
(2.) PETITIONERS, who are Head Constables and Constables of U.P. Police Department were deputed for guard duties in the year 2002 at the residence of one Shri Akhilesh Singh Member of Legislative Assembly. On 3.7.2002 an incident of murder of one Shri Rakesh Pandey in district Raebareli took place. In consequence thereto a case crime No. 311/02 under Section 302/395/120-B, I.P.C. was lodged in Police Station Kotwali, District Raebareli. Shri Akhilesh Singh was named as an accused. Shri Akhilesh Singh in the year 2002 had filed a Writ Petition No. 5045 (MB) of 2002 in the Lucknow Bench of High Court for quashing of FIR and staying of arrest. The writ petition was dismissed almost after lapse of five years on 26.8.2007. In the aforesaid writ petition affidavits (Annexure-5,6,7 and 8 to the writ petition) were filed by the petitioners with the statement of fact that on the alleged date of incident of murder of Shri Rakesh Pandey, Shri Akhilesh Singh was available at his Lucknow Residence. The petitioners had filed the affidavits with regard to availability of Shri Akhilesh Singh at his residence keeping in view the fact that they were posted as guard at the Lucknow residence of the accused. Feeling aggrieved with the affidavit filed by the petitioner Shri Anurag Kumar Pandey brother of deceased Rakesh Pandey had submitted a complaint (Annexure-9) in November, 2007 to the Senior Superintendent of Police Lucknow with the prayer that the petitioners have filed false affidavit in the writ petition decided by the High Court with intention to save Shri Akhilesh Singh, hence, necessary action may be taken against the petitioners by holding appropriate enquiry. After receipt of complaint of Shri Anurag Pandey, Senior Superintendent of Police Lucknow had appointed Shri S.C. Pandey, Assistant Superintendent of Police Lucknow to hold a preliminary enquiry. Shri Subhash Chand Pandey Assistant Superintendent of Police had submitted his report on 1.1.2008 (Annexure-10) holding the petitioners prima facie guilty of misconduct. On the basis of preliminary report submitted by the Assistant Superintendent of Police, a charge- sheet dated 3.3.2008 was served on the petitioners inviting their reply. Copy of one of such charge- sheet with regard to petitioner No. 1 is annexed asAnnexure-11 to the writ petition. The petitioner No. 1 had submitted a reply to the charge-sheet with submission that he has not committed any misconduct. A copy of the reply submitted by the petitioner No. 1 has been filed as Annexure-12 to the writ petition. Identical reply was submitted by the other petitioners. The enquiry officer filed his report dated 6.5.2008 and exonerated the petitioners with regard to allegation of misconduct in filing of affidavit in the High Court for personal gain but held that because of filing of affidavit the reputation of police force in public eye has been tarnished, hence, recommended for reduction to lowest stage of time scale for the period of one year. A copy of enquiry report has been filed as Annexure-13 to the writ petition.
(3.) AFTER receipt of enquiry report the disciplinary authority i.e. Senior Superintendent of Police Lucknow had served the show cause notice dated 26.5.2008 (Annexure-14 to the writ petition) on the petitioners. In response to which the petitioners had submitted their reply (Annexure-15). After receipt of reply submitted by the petitioners, the Senior Superintendent of Police Lucknow, whife disagreeing with the report of enquiry officer, recorded a finding that affidavit filed by the petitioners in the High Court was for personal gain and it tarnishes the image of police department, hence, deserves major penalty. The Senior Superintendent of Police observed that it was incumbent upon the petitioners to ensure the arrest of the accused who absconded after murder but instead of arresting, affidavit was filed in the High Court for personal gain. The disciplinary authority while passing the impugned order of punishment dated 18.6.2008 had awarded major penalty of dismissal from service.;