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BHOLA NATH DEO BANSHI versus D.I.G. KANPUR RANGE KANPUR & ANOTHER

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Bhola Nath Deo Banshi v. D.I.G. Kanpur Range Kanpur & Another - WRIT - A No. 1361 of 2002 [2002] RD-AH 35 (11 September 2002)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                               Judgment Reserved on 21.8.2002

                                                               Judgment Delivered on 11.9.2002

Civil Misc. Writ Petition No. 1361 of 2002.

Bhola Nath Deo Banshi                         ...                          Petitioner

                                                      Versus

Deputy Inspector General of Police,

Kanpur Range, Kanpur and others        ...                          Respondents.

                                      CONNECTED WITH

Civil Misc. Writ Petition No. 36172 of 2001

Pahup Singh                                           ...                          Petitioner

                                                       Versus

Deputy Inspector General of Police ,

Kanpur Range, Kanpur and others          ...                        Respondents.

                                      CONNECTED WITH

Civil Misc. Writ Petition No. 36170 of  2001.

Satya Prakash  Yadav                           ...                          Petitioner

                                                       Versus

Deputy Inspector General of Police ,

Kanpur Range, Kanpur and others          ...                        Respondents.                                                                                              

                                       CONNECTED WITH

Civil Misc. Writ Petition No. 36178 of 2001.

Jai Singh Parihar                                       ...                          Petitioner

                                                       Versus

Deputy Inspector General of Police ,

Kanpur Range, Kanpur and others          ...                        Respondents.                                                                                              

                                      CONNECTED WITH

Civil Misc. Writ Petition No. 37111 of 2001

Virendra Singh                                       ...                          Petitioner

                                                       Versus

State of U.P. & others                             ...                        Respondents.                                                                                              

                                        CONNECTED WITH

Civil Misc. Writ Petition No. 36198 of 2001

Satya Prakash Pandey                          ...                          Petitioner

                                                       Versus

Deputy Inspector General of Police ,

Kanpur Range, Kanpur and others          ...                        Respondents.

               

2

                                     CONNECTED WITH

Civil Misc. Writ Petition No. 36958 of 2001.

Rakesh Kumar                                     ...                          Petitioner

                                                       Versus

Superintendent of Police, Kanpur Dehat

and others                                            ...                        Respondents.                                                                                              

                                    CONNECTED WITH

Civil Misc. Petition No. 36174 of 2001.

Suresh Babu Yadav                              ...                          Petitioner

                                                       Versus

Deputy Inspector General of Police ,

Kanpur Range, Kanpur and others          ...                        Respondents.                                                                                              

                                     CONNECTED WITH

Civil Misc. Writ Petition No. 44476 of 2001

Ram Krishna Dubey                            ...                          Petitioner

                                                       Versus

State of U.P. and others                       ...                        Respondents.                                                                                              

                                      CONNECTED WITH

Civil  Misc Writ Petition No. 36966 of 2001.

Virpal Singh                                            ...                          Petitioner

                                                       Versus

Superintendent of Police, Kanpur Dehat

And another.                                           ...                        Respondents.

HON'BLE SUNIL AMBWANI,J.

By these connected writ petitions, petitioners, serving as Sub Inspectors, Head Constables, and Constables at Police Station 'Shivali' District Kanpur Dehat  have challenged orders dated 15.10.2001,  by which the Deputy Inspector General of Police, Kanpur Zone, Kanpur, and orders dated 22.10.2001 by which Superintendent of Police, Kanpur Dehat have dismissed them from service in exercise of powers under Rule 8(2)(b) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991,( SIC Rules, 1991) read with Rule 311(2) of the Constitution of India, after recording  that it is not reasonably practicable to hold a

3

departmental  inquiry.  Initially all petitioners were placed under suspension on 12.10.2001, on the date when an unfortunate incident took place within the premises of police station. On a report submitted by the Superintendent of Police, Kanpur Dehat dated October 14, 2001,   Sri Bhola Nath Deo Banshi, Incharge, Sub Inspector, PoliceStation- Shivali (petitioner in writ petition No. 1361 of 2001) Sub Inspector, Civil Police, Suresh Babu Yadav (petitioner in writ petition No. 36174 of 2001), Constable 636, Ram Krishna Dubey ( petitioner in writ petition No. 44476 of 2001) and Constable 671, Civil Police, Veerpal Singh ( petitioner in writ petition No. 36966 of 2001) were dismissed from service on 15.10.2001 whereas the rest of the petitioners namely, Sun Inspector, Civil Police, Pahup Singh ( petitioner in writ petition No. 36172 of 2001), Sub Inspector, Civil Police, Satya Prakash Yadav ( petitioner in writ petition No. 36170 of 2001), Sub Inspector, Civil Police, Jai Singh Parihar( petitioner in writ petition No. 36178 of 2001), Virendra Singh ( petitioner in writ petition No. 37111 of 2001), Head Constable, Civil Police, Satya Prakash Pandey (petitioner in writ petition No. 36198 of 2001) and  Constable 523, Civil Police, Rakesh Kumar ( petitioner in writ petition No. 36958 of 2001)  were dismissed on 22.10.2001.  The orders of dismissal in respect of Sub Inspectors have been passed by the Deputy Inspector General of Police, Kanpur Zone, Kanpur  authorised to dismiss them under Rule 8(3) of Rules, 1991, and the orders in respect of Head Constables and Constables have been passed by Superintendent of Police, Kanpur Dehat authorised under the same position in  the Rules, 1991.

The incident as narrated in the dismissal orders  is  as below:  On 12.10.2001, the Incharge Inspector of Police- Shivali was at Agra on official duty.  Sub Inspector Sri Bhola Nath Deo Banshi was incharge of the police station.  On that  day, accused Vikas Dubey resident of village- Bikaroo, P.S.- Shivali came to police station and made a complaint of an  attack upon him by bombs and bullets hurled  on his vehicle.  On this complaint Incharge  Sub Inspector Deobanshi proceeded to arrest opposite party Sri Lallan Bajpei, Ex-Chairman, along with an accomplice of  complainant without registering an F.I.R.  At the same time the supporter of Vikas Dubey had assembled in large numbers in the town, and were causing agitation

4

after blocking traffic.   Instead of deploying police force to maintain peace, Sub Inspector Deobanshi tried to arrest the Chairman,  but did not succeed in bringing him to the police station.  In  the meantime upon receiving information about the traffic jam created by agitating crowds in the town of Shivali, the Chairman, 'Shram Samvida Board', U.P.  reached police station where accused Sri Vikas Dubey, present at the police station, and who was inimical with Sri Santosh Shukla, committed ghastly crime of killing Sri Santhosh Shukla by shooting him along with his accomplice in presence of police station incharge, Sub Inspector, Bhola Nath Deobanshi, and seriously injured  driver of the deceased and also caused serious injuries to one Sri Ajay Mishra resident of Saket Nagar who later on  died.  Due to  police inaction, accused Vikas Dubey managed to escape along with accomplice after the incident.  The matter was reported at police station-Shivali on 12.10.2001 in case crime no. 143 of 2001 under sections 147,148,149,323,427,506,I.P.C. and 7th  Criminal Law Amendment Act.  On the same day i.e. 12.10.2001 all  the petitioners were suspended.  On 14.10.2001, the Superintendent of Police, Kanpur Dehat, submited a confidential report No. ST-C-2/2001 to Deputy Inspector General of Police, Kanpur Zone, Kanpur; reporting the  incident.  After narrating the incident as above, it was reported that Sub Inspector, Bhola Nath Deobanshi was arrested on 14.10.2001 and has been sent to jail.  The report, which was placed before the Court, after it was summoned by order dated 8.8.2001, further states that accused Vikas Dubey is a notorious  person and that  three dozens crimes have been registered against him at Kanpur Nagar and Dehat.   In case opposite  party , Lallan Vajpai had come to police station along with Sub Inspector Bhola Nath Deobanshi he would have definitely been killed.   On 12.10.2001 the supporters of Vikas Dubey were engaged in breaking  law and order by resorting to violence and had blocked the traffic.  It was his duty  as police station incharge to normalize law and order situation.  Apart from this, the fact that in his presence, a person of the status of  Minister of State was killed by accused Vikas Dubey, in the premises of police station, and thereafter succeeded in escaping without any action taken by the police, for which sufficient opportunity was available , is a proof of the fact that this Sub Inspector is

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intimate with  and is in collusion with him and that this fact is also borne out from the report of Additional Superintendent of Police, Kanpur dated 14.10.2001.

The report further proceeded to conclude that this act of Sub Inspector, Bhola Nath Deobanshi has tarnished the  image of police department, and  has also taken away public  confidence  in police establishment, because if the police personal entered into intimacy and is conspiracy with criminals, the public interest and the interest of the nation will be at threat, and  will have  serious repercussions  on the department and society.  Since accused Vikas Dubey is a notorious person and has created terror in the region, it will not be  possible to obtain any concrete evidence in the departmental proceedings, on account  of his  intimacy with Sub Inspector, Bhola Nath Deobanshi and thus the proceedings under Rule 8(2)(b) of the Rules, 1991 were recommended against him.

The Additional Superintendent of Police, Kanpur Dehat submitted almost the similar report against the other police personals.  He added that at the time when Vikas Dubey and his accomplice succeeded in running away from the police station, the police personals mentioned in the report namely Sub Inspector, Pahup Singh, Satya Prakash Yadav, Jai Singh Parihar, Virendra Singh, Head Constable Satya Prakash Pandey, Constable Rakesh Kumar and Suresh Babu Yadav,  were present and did not take any action for maintaining peace and to apprehend the criminals.  This act proves negligence and cowardice in performance of duties and that their  inaction  and negligence prima facie proves, and that this act has tarnished the image of police department and that general public has lost confidence in police.  He also recommended action against the aforesaid police personals under Rule 8(2)(b) of Rules, 1991.  

Rule 8 of the Rules, 1991 is quoted as below:

"8. Dismissal and removal.-

(1) No Police Officer shall be dismissed or removed from service by an authority subordinate to the appointing authority.

(2) No Police Officer shall be dismissed, removed or reduced in rank except after proper inquiry and disciplinary proceedings as contemplated by these rules:

Provided that this rule shall not apply-

6

(a) Where a person is dismissed or removed or reduced in rank on the ground  of conduct which has led to his conviction on a criminal charge; or

(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority, in writing, it is not reasonably practicable to hold such inquiry; or

(c) Where the Government is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

(3) All orders of dismissal and removal of Head Constables or Constables shall be passed by the Superintendent of Police.  Cases in which the Superintendent of Police recommend, dismissal or removal of a Sub Inspector or any Inspector shall be forwarded to the Deputy Inspector General of Police concerned for orders.

(4) (a) The punishment for intentionally or negligently allowing a person in police custody or judicial custody  to escape shall be dismissal unless the punishing authority for reasons to  be recorded in writing awards a  lessor punishment.

(b) Every officer convicted by the court for an offence involving moral turpitude shall be dismissed unless the punishing authority for reasons to be recorded in writing considers it otherwise."

I have heard Sri Ashok Khare, Senior Advocate for petitioners and Sri Hanuman Upadhyay, learned standing counsel for respondents.

On behalf of petitioners it is submitted that a group of 500-600 persons along with one Vikas Dubey, a Member of Zila Panchayat, Kanpur Dehat and belonging to Bahujan Samaj Party gheraoed police station with immediate provocation  of a bomb attack on the car of Vikas Dubey.  A serious law and order situation came into the existence in the town at which time majority of police personals were posted  on police stations and deployed on several chaukies for taking measures to  maintain law and order situation in the town.  While the aforesaid situation was under way Sri Santosh Shukla Chairman of 'Shram Samvida Board', belonging to Bhartiya Janta Party, came to police station  Shivali along with another group of persons and that the entire police station and its precincts were surrounded by crowd of more than 1500 persons. The situation  deteriorated  with two groups, in which Santosh Shukla was shot and killed by Vikas Dubey.  Upon the aforesaid incident two F.I.Rs. were lodged at the police station against Vikas Dubey and several other persons in case crime No. 143 of 2001 under Sections 147,148,149,323,427 and 506, I.P.C. and in case crime No. 144 of 2001 under Sections 395,397,506 and 283, I.P.C.   It is submitted that on the same day on 12.10.2001, five Sub Inspectors, one Head Constable and four Constables were placed under suspension in

7

contemplation of  departmental proceedings.  The Officer Incharge of Police Station Shivali was directed to submit a inquiry report within a period of eight days.  However, three days thereafter orders were passed by Deputy Inspector General of Police, Kanpur Zone, Kanpur and Superintendent of Police dismissing one Sub Inspector one Head Constable and four Constables.  There after on 22.10.2001 other persons were dismissed.  According to counsel for petitioner no inquiry whatsoever was made into the incident and that an investigation in respect of the aforesaid offence was pending.  The Superintendent of Police and Additional Superintendent of Police, Kanpur Dehat did not make either  spot inspection or examine any witnesses.   There was no material whatsoever except the report of the aforesaid officers who had neither witnessed the incident nor had any evidence or material to form an opinion, about their conclusions.  It is incorrect to say that petitioners had any connection with Sri Vikas Dubey.  He submits that the conclusion drawn by the competent authority about  any connection, negligence and intimacy of petitioners with criminals was incorrect and was not supported  by any evidence or material on record .   All petitioners have been held to be responsible for not taking any action and having intimacy and  collusion with  criminals.  It is not denied that Sri Santosh Shukla was shot and  killed inside the police station and that Vikas Dubey succeeded in running away, but  this fact alone cannot support the conclusion drawn in the report.  At that time a big crowd  had assembled  at the police station and the situation was  deteriorating rapidly.   Each of the petitioners could have explained the situation, and the charges against them.  In any case the conclusion that it is not  reasonably practicable to hold an  inquiry on account of intimacy of police personals with Vikash Dubey and his influence in the area is wholly arbitrary, illegal and has been arrived at without any inquiry or investigation of facts and any material on record.

Learned Standing Counsel, on the other hand, submits that the impugned orders gives sufficient and adequate reasons on the basis of which the competent authority came to conclusion that it was not reasonably practicable to hold an inquiry.  An incident of shooting inside the police station of a person holding the post equal to  Minister of State, has

8

lowered the image of police department, and had taken away the confidence of general public in police.  The entire situation justified the dismissal orders against petitioners under Rule 8(2)(b) of the Rules, 1991, and that satisfaction of the competent authority that it was not reasonably practicable to hold an inquiry is supported by reports of Superintendent of Police and Additional Superintendent of Police, Kanpur Dehat.

The legal position with regard to the satisfaction that it is not reasonably practicable to hold inquiry to dismiss a civil servant under Article 311(2) of the Constitution of India as well as the Service Rules providing same powers is more than clear.  In Union of India Vs. Tulsi Ram Patel 1985(51) F.L.R. 326, Supreme  Court  lays down as below:

" A disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid holding of an enquiry or because the department's case against the Government servant is weak and must fail.  The departmental enquiry cannot be dispensed with on the ipse dixit of the authority concerned and when the satisfaction of the concerned authority is challenged in a Court of law then it is incumbent upon the concerned authority to show that his satisfaction was based on certain objective facts and is not outcome of the whim or caprice of the officer concerned.  Neither in the impugned order of dismissal  nor in the counter affidavit any material has been disclosed by the respondents to show that it was not reasonably practicable to hold department  proceedings against the petitioner.  Since the impugned order or the counter affidavit does not disclose any independent material to justify dispensing with the enquiry envisaged under article 311(2) the impugned order of dismissal cannot be sustained and is liable to be quashed."

                                                                               

The aforesaid conclusions have been followed in Deep Narain Vs. Deputy Inspector General, Gorakhpur 1994(3) UPLBEC 1717, Balvir Singh Vs. State of U.P., 1996 AWC 245, Brijesh Singh Yadav Vs. State of U.P., 1998(1) UPLBEC 638; Shiv Kumar Vs. State of U.P., 1999(2) UPLBEC 1218 and various  cases which  need not be reiterated. In Union of India Vs. Tulsi Ram Patel (Supra) the power of judicial review with regard to the material to justify dispensing of inquiry has been settled.  The two conditions that there must exists a situation which runs holding of an inquiry " not reasonably practicable" and the disciplinary authority recording in writing its reasons in support of its satisfaction, must be present to justify the order.

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In the present case the reasons in support of satisfaction that it is not reasonably practicable to hold an inquiry have been recorded in the orders.  These reasons, however, are based only upon  reports of Superintendent of Police, Kanpur Dehat dated 14.10.2001  and the report of Additional Superintendent of Police, Kanpur Dehat dated 15.10.2001.  Both these officers did not have an occasion to witness the incident.  They  neither caused any inquiry into the matter nor collected any evidence by way of statement of witnesses or any other material to justify their conclusions.  The incident has not been denied.  But the manner in which it happened and whether the petitioners were in a position to prevent the killing and were guilty of  inaction has not been adverted to in the report.   The ultimate result of the incident cannot justify the conclusion that petitioners were either guilty of inaction or that they were in collusion with Subhash Yadav.  There is no material on record to show that all petitioners who have been dismissed in respect of the incident were individually guilty of inaction or they were in any way connected and colluded with  Vikas Dubey to shoot and kill Sri Santosh Shukla, his gunner and one other person  inside the premises of police station and thereafter allowed him to run away.   They may or could not have prevented, or  they may have frozen out of sheer cowerdise, but that by itself cannot be a ground to hold that it was not reasonably practicable to hold an inquiry against them.  The Court finds that due to seriousness of the incident, its publicity and the concern of the image of police department triggered a knee-jerk reaction in the department,  and a face saving decision to solvage the situation, followed to dismiss  some of the police personnel, to restore public faith and confidence in police.  The immediate suspension could be  justified  the reaction, but dismissing the petitioners within three days of the incident without awaiting detailed enquiry report, in respect of some of the petitioners and within ten days in respect of others without any fact finding inquiry or collecting  evidence was neither proper nor justified in law.  I, therefore, find that there was no material on record to support the conclusion that it was not reasonably practicable to hold an inquiry, and thus dispensation of enquiry  and to award extreme punishment of  dismissal of petitioner was not in accordance with law.

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 For the reasons given above,  all the  writ petition are allowed.  The orders passed by Deputy Inspector General of Police, Kanpur Zone, Kanpur and Superintendent of Police, Kanpur Dehat dated 15.12.2001 and 22.12.2001 dismissing petitioners from service are set aside.  All the petitioners shall be treated under suspension with effect from the date they were suspended i.e. 12.10.2001, and that respondents shall be at liberty to hold  departmental inquiry and to proceed against them in accordance with the provisions of Rules, 1991.  Petitioners shall be reinstated in service and shall be entitled to suspension allowance in accordance with law, with effect from 12.10.2001. There shall be no order as to costs.

Dt.11.9.2002.

BM/-

               


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