RAKESH SHARMA,J. - (1.) HEARD Sri D.K. Srivastava, learned counsel for the petitioner and learned Standing Counsel for the respondents.
(2.) UNDER challenge is an order of dismissal passed on 28.5.03 by the Commandant, 39th Battalion, P.A.C., Mirzapur dismissing the petitioner, a PAC constable from service. It emerges from the record that a formal regular enquiry was conducted against the petitioner on account of charge that on 22.1.2003 at about 20.45p.m., the petitioner was found drunk and was causing nuisance in the campus of 39th Battalion P.A.C., Mirzapur. He had also been using abusive language and committed serious misconduct on the same date. A detailed charge sheet was served against the petitioner. The PAC constables who had heard commotion and the duty clerk making entries in the General diary who had recorded the events which had occurred on 22.1.03 were produced as witnesses. The petitioner Hari Lal along with other constable Virendra Nath Rai were involved in the incident. Both were in drunken state using filthy language. Similar charges were levelled against the other constable, i.e., Virendra Nath Rai. As per learned Standing Counsel notices were sent to petitioner to appear on 6.3.03, 20.3.2003, 2.4.03, 5.4.03 and 16.4.03 fixing these dates for holding departmental enquiry. As per learned Standing Counsel, the petitioner could not submit his reply to the charge on account of serious illness. He had submitted medical certificate to demonstrate that he was seriously ill and as such he could not appear before the enquiry officer. It was also found that the petitioner did not cooperate the then enquiry officer and ultimately an order of dismissal was passed against the petitioner on 28.5.03. The petitioner's appeal was rejected by the DIG PAC Range on 23.7.2004 and subsequent revision was also dismissed by the Zonal Inspector General on 12.8.05.
(3.) SRI D.K. Srivastava, learned counsel for the petitioner has drawn attention of the Court that in the present case two constables Virendra Nath Rai and the petitioner constable Hari Lal were charge sheeted for one and the same charge, that is, causing nuisance on the campus of 39th Battalian on 22.1.03 at about 8.45p.m. Constable Virendra Nath Rai was given almost the same charge sheet containing the same charges. Thus the subject matter of accusation against Virendra Nath Rai and the petitioner Hari Lal was one and the same. The DIG PAC Varanasi Range had allowed the appeal of Virendra Nath Rai by recording the following findings: @ Hindi @ Pointing out the above observations and findings recorded by the DIC PAC, Varanasi Range, Varanasi, the Statutory Appellate Authority, Sri D.K. Srivastava, learned counsel for the petitioner submitted that the constable Hari Lal was also entitled for the same treatment. If his past conduct was considered by the Commandant while forming his opinion for dismissing the petitioner from service, the delinquent employee was never confronted by the said authority that his past conduct was to be used against him for dismissing him from service. As far as the subject matter of accusation is concerned, the petitioner could have been awarded a minor penalty, not dismissal from service. The petitioner is now 45 years old and he has four children and a large family to support. The petitioner would immensely suffer if he is dismissed from service in the event which took place on 22.1.2003. Learned counsel for the petitioner has placed reliance on the cases of Hon'ble Supreme Court in the Tata Engineering and Locomotive Co. Ltd. Vs. Jitendra Pd. Singh and another (2001) 10 Supreme Court Cases 530 and of this Court in the cases of Sahdev Singh Vs. U.P. Public Service Tribunal, Lucknow (2001) 1 UPLBEC 865 and others and Ram Pratap Vs. State of U.P. and others 1999 (17) LCD 149 in support of his submission. ;