Rakesh Sharma - (1.) HEARD Sri A. K. Malviya, learned counsel for the petitioner and learned standing counsel representing the respondents.
(2.) THE petitioner, an erstwhile Head Constable in traffic police has assailed the order dated 28.12.2005, passed by S. P., Hamirpur removing the petitioner from service exercising the powers contained under Rule 8 (2) (b) of the U. P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991. His appeal and subsequent revision were also dismissed by the Deputy Inspector General of Police and Inspector General of Police, Allahabd Zone, Allahabad. THEse orders have also been challenged by the petitioner. At the relevant time, the petitioner was posted as Head Constable in traffic police in district Hamirpur. In connection with some criminal charges, he was placed under suspension by S. P., Hamirpur on 29.3.2005. A departmental enquiry was initiated against the petitioner. THE Circle Officer, Hamirpur was appointed as Enquiry Officer. It has been alleged that the petitioner has fired on one traffic constable Man Singh Yadav on 28.3.2005. He had died on 30.3.2005. A Criminal Case No. 107 of 2005, under Sections 307, 302 and 201, I.P.C. was registered against the petitioner and he was lodged in Hamirpur Jail. During pendency of the departmental proceedings when the petitioner was under suspension and was lodged in Hamirpur Jail, S.P., Hamirpur got transferred the petitioner to district Pratapgarh vide order dated 29.4.2005. In the meantime, the Enquiry Officer submitted a report on 27.5.2005. Statement of the petitioner, Constable Jitendra and Head Constable Yogendra Singh were recorded by the Enquiry Officer on 25.11.2005. THE grievance of the petitioner is that suddenly without taking any action on the enquiry report, the petitioner has been straightway removed from service by invoking the provisions of Rule 8 (2) (b) of the Rules of 1991. THE petitioner had always cooperated with the Enquiry Officer and the Investigating Officer. THE petitioner's appeal was dismissed by the Deputy Inspector General of Police, Banda Region, Banda by the order dated 14.2.2006 and subsequent revision was dismissed by the Inspector General of Police, Allahabad Range, Allahabad on 23.12.2006. Learned counsel for the petitioner has submitted that the petitioner was detained in Hamirpur Jail and was also transferred from Hamirpur to Pratapgarh on 29.4.2005. A rawangi entry has already been made in the G. D. He ceased to be under the administrative control of S. P., Hamirpur, rather he must be treated as posted at Pratapgarh. On the date of the issuance of the order dated 28.12.2005, the petitioner was not under the administrative control of S.P., Hamirpur and as such the order of removal is illegal, null and void. As far as criminal case is concerned, the petitioner has been falsely implicated in the case. He has been enlarged on bail by this Court vide order dated 8.5.2006. A copy of the bail order dated 8.5.2006 has been annexed as Annexure-14 to the writ petition. THE criminal trial is pending and the petitioner is pursuing the matter. It has been further submitted by the learned counsel for the petitioner that in the present case after suspending the petitioner a formal regular departmental enquiry was initiated against the petitioner as provided under the aforementioned rules of 1991. Without issuing charge-sheet and completing the departmental enquiry, the petitioner has been removed from service. Neither the criminal trial nor the disciplinary proceedings were completed on 28.12.2005, when the order of removal was passed. In view of this, the order appears to be punitive and is violative of Article 311 (2) of the Constitution of India. No opportunity of hearing was afforded to the petitioner before passing the order. Learned counsel for the petitioner has laid much stress on the fact that there was no likelihood of the petitioner influencing the witnesses. At the time when the order of removal was passed, he was lodged in jail and had already been transferred to Pratapgarh on 29.4.2005. The trial was pending in district Hamirpur. There was no material to form the opinion that the petitioner would misuse his powers or influence the witnesses. In support of his submission, learned counsel for the petitioner has placed reliance on the following cases : 1. Union of India and others v. Reddappa and another, (1993) 4 SCC 269 ; 2. State of U. P. and another v. Shailendra Kumar Singh, 2009 (3) ADJ 339 (DB) ; 3. State of U. P. and others v. Chandrika Prasad, 2006 (1) ESC 374 (All) (DB) ; 4. Gajraj Singh v. State of U. P. and others, 2007 (3) ESC 2103 (All) ; 5. W. P. No. 6772 of 2008, Dinesh Prasad Mishra v. State of U. P. and others, decided on 18.4.2008 ; 6. C.M.W.P. No. 21191 of 2004, Ganesh Narain Shukla v. State of U. P. and others, decided on 5.11.2004 : 2005 (5) AWC 4150 ; 7. C.M.W.P. No. 13650 of 2008, Kewal Singh v. State of U. P. and others, decided on 19.3.2008 ; 8. Raghunath Singh v. State of U. P. and others, 2007 (3) ADJ 143 ; 9. Ex. Constable 539, C. P. Kanhaiya Lal v. State of U. P. and others, 2005 (6) AWC 6010 ; 10. Shiv Kumar v. Managing Director, U. P. State Financial Corporation, Kanpur, 2005 (6) AWC 6012 ; and 11. Pushpendra Singh and another v. State of U. P. and another, 2008 (3) ADJ 689 : 2008 (2) AWC 1572 (DB).
(3.) LEARNED standing counsel has opposed this writ petition on the basis of counter-affidavit filed on 22.9.2007. A Criminal Case No. 107 of 2005, P. S. Kotwali, district Hamirpur under Section 307, I.P.C. was registered against the petitioner. He was arrested and lodged in Hamirpur jail. However, the petitioner was suspended on 29.3.2005 as a formal regular departmental enquiry was initiated against the petitioner. In para 10 of the counter-affidavit it has been admitted that the petitioner was transferred from Hamirpur to Pratapgarh under the order of the Inspector General of Police, Allahabad Zone, Allahabad on administrative ground vide order dated 9.4.2005. The statements of Head Constable, Jitendra and Yogendra were recorded by the Enquiry Officer. The charge-sheet had already been submitted against the petitioner on 24.6.2005. In para 15 it has been submitted that the petitioner was involved in the above said criminal case and on the basis of evidence available on record, S. P., Hamirpur passed the order of removal. The orders passed by the appellate and revisional authority were legally valid and proper. LEARNED standing counsel has highlighted various paras, i.e., 5, 8, 9, 15, 21, 24 and 27 of the counter-affidavit in support of his submission. Under the circumstances of the case, S. P., Hamirpur had rightly issued the order of removal as the petitioner could have abused his position as Head Constable in traffic police. Sri A. K. Malviya, learned counsel for the petitioner has responded to the submissions of the learned standing counsel. According to him, the petitioner was innocent and was falsely implicated in the criminal case. The S. P., Hamirpur without perusing any evidence and material and without holding a preliminary enquiry had suspended the petitioner on 29.3.2005. As far as the criminal case is concerned, it is still pending disposal in competent court in district Hamirpur and because of pendency of a criminal case, no officer in subordinate rank can be dismissed or removed from service till he is held guilty of the charges. The petitioner was enlarged on bail by this Court. There is no justification of exercising the powers under Rule 8 (2) (b) of the Rules.;