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Badri Prasad Mishra v. State Of U.P.& Others - WRIT - A No. 17333 of 2000  RD-AH 2775 (7 February 2006)
Civil Misc. Writ Petition No.17333 of 2000
Badri Prasad Mishra Vs. State of U.P. and others
Hon'ble V.C. Misra, J.
Heard learned counsel for the parties at length and perused the record.
The present writ petition has been filed by the petitioner seeking relief for issuance of a writ in the nature of certiorari quashing the order of show cause notices dated 8.3.2000 issued by respondent no.5 (annexures-20 and 21 respectively to the writ petition).
The facts of the case in brief are that the petitioner is a sub inspector in the police department appointed in the year 1973-74. In 1998 when the petitioner was posted as sub inspector-in charge, district Balrampur, he applied for casual leave which was sanctioned and granted by respondent no.3 for three days vide order dated 6.6.1998. The petitioner having fallen ill sent an application along with medical certificate for extension of leave to the respondents on 7.9.1998 which was duly received on 11.12.1998 followed by letter/certificate issued by the medical board. On 27.3.1999 the respondent no.3 issued a letter to the respondent no.2 for conducting preliminary inquiry, Shri Hari Nath Singh Deputy Police Superintendent Head Quarter, (Nepal Border Police) was assigned the job of conducting the inquiry vide letter dated 4.4.1999 issued by respondent no.2. The inquiry was conducted by respondent no.4, and vide the inquiry report dated 29.4.1999 it was reported that the petitioner was continuously ill and had duly informed the authorities about his illness, he recommended that as the petitioner had utilized the 60 days of medical leave and further medical leave of 275 days may also be sanctioned. A categorical finding was given that the petitioner had remained absent for a period of 275 days and during the said period he was under continuous medical treatment and had been informing his concerned authorities from time to time and had complied with the provisions of para-381of Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. It was thus recommended that the period of his absence may be sanctioned as on medical leave.
After the submission of this report a letter dated 25.5.1999 was issued by one Shri Prem Dutta Ratooli, Additional Director General Police, U.P. (Nepal Border Police) to the Deputy Inspector General wherein a reference to the letter dated 27.3.1999 (annexure-17 to the writ petition) was made by which directions were issued to take punitive action against absent inspectors. After receiving this letter a second inquiry report dated 4.6.1999 was submitted by Shri Hari Nath Singh who had furnished the earlier report, by this report a contradictory finding was submitted against the petitioner on the same charge and on the basis of the same facts and evidence on record. In this report the inquiry officer came to the conclusion that the petitioner had deliberately not informed his concerned authorities and had not followed the provisions of para-382 of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 and had declined to accept the registered letters sent by the Deputy Superintendent of Police and even medical certificates which was found to be true and correct in the first report were found to be not valid. The inquiry officer recommended that since the petitioner had committed gross negligence and indiscipline etc. and had been unauthorizedly absent for a period of 275 days, action was liable to be taken against him under the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991.
The Superintendent of Police, Ghazipur on receiving the two contradictory inquiry reports by the inquiry officer forwarded the same along with his comments dated 21.10.1999 to the Assistant Director General of Police referring therein that due to the said two contradictory inquiry reports no suitable action was possible to be taken in the matter and requested for necessary directions. However, on the basis of second inquiry report a show cause notice dated 8.3.2000 was issued to the petitioner signed by Shri Chandra Prakash Superintendent of Police, Ghazipur as to why action be not taken against him for the long unauthorized absence without informing the concerned authorities, providing the petitioner clear 8 days' notice to furnish his reply to the same from the date of receipt of the same. An other show cause notice dated 8.3.2000 was also issued to the petitioner to show cause as to why censor entry be not made in the character roll of the petitioner for being absent unauthorizedly without informing the authorities in contravention of the provisions of para-382 of the U.P. Police Regulations and Rule 14 (2) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 within a period of eight days from the date of receipt of the notice. However, at the end of this show cause notice, the said Superintendent of Police Shri Chandra Prakash concluded by saying 'thus for his such action/conduct a censor entry is being given (vr buds ,sls dk;ksZ ds fy;s ifjfuUnk izfof"V iznku dh tkrh gSA'
The petitioner being aggrieved, filed the writ petition. Vide order dated 11.4.2000 this Court granted time to the learned standing counsel to file the counter affidavit and mean while till further orders of the Court stayed the operation of both the show cause notices dated 8.3.2000 (annexures-20 and 21 respectively to the writ petition) issued by the Superintendent of Police, Ghazipur.
Counter and rejoinder affidavits have been exchanged. In paragraphs 16 and 18 of the counter affidavit, it has been submitted that the second inquiry report was called for since important documents were not available at the time of first inquiry report and as the charges leveled against the petitioner were found proved in the second inquiry further action was taken by issuing the show cause notice. These averments have been denied in para-14 of the rejoinder affidavit stating that the second inquiry report was only instituted on the basis of the letter of respondent no.1 wherein reference had been made for taking punitive action against the erring officials.
Learned counsel for the petitioner has submitted that the second inquiry report on the basis of which the petitioner has been held guilty of charges leveled against him is illegal and could not be relied upon since the petitioner had already been found innocent in the first inquiry report. In support of his contention he has relied upon the decisions in the cases of Chandra Dutt Pasbola Vs. State of U.P. and others reported in 1992 (65) F.L.R. page-133 and Suryabhan Baburao Patil Vs. State of Maharashtra and others reported in 1989 (58) F.L.R. page-727.
I have looked into the record of the case and the authorities cited by the petitioner and find that the petitioner's case is fully covered by the above said decisions. In the present case, the petitioner having been found not guilty of latches by the inquiry officer and a recommendation was made in favour of the petitioner then no fresh cause of action and no valid ground for ordering a fresh inquiry arose. The second inquiry report dated 4.6.1999 (annexure-18 to the writ petition) is wholly arbitrary and seems to have been passed on the whims of the concerned authority as is apparent from the letter dated 25.5.1999 (annexure-17 to the writ petition) issued by the Additional Director General of Police and letter dated 21.10.1999 sent by Superintendent of Police to the Additional Director General of Police.
It is always open for the disciplinary authority either to accept the report or not and even arrive at a contrary finding since the inquiry report is merely recommendatory and is not binding upon. It in the present case instead of arriving at a contrary conclusion, the disciplinary authority directed the inquiry to be held de-novo. In the present circumstances it is clearly not permissible. The disciplinary authority could not order for a fresh inquiry report to be submitted for the purpose of filling up the lacunas by obtaining contrary report to the earlier one with the purpose of imposing some punishment on its basis. The direction of such fresh inquiry is arbitrary, illegal and unjust. Hence, the second inquiry report dated 4.6.1999 (annexure-18 to the writ petition) is liable to be quashed.
Accordingly, the writ petition succeeds and the second inquiry report dated 4.6.1999 (annexure-18 to the writ petition) is hereby quashed and the show cause notices dated 8.3.2000 (annexures-20 & 21 respectively to the writ petition) which are based on the second inquiry report are also quashed. The writ petition is allowed. No order as to costs.
February 7, 2006
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