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Virendra Nath Ojha v. State Of U.P. & Others - WRIT - A No. 30273 of 1999 [2004] RD-AH 1592 (2 December 2004)


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                                                                                                        Court No.38

Civil Misc. Writ Petition No.   30273 of 1999

Virendra Nath Ojha              Vs.            State of U.P. and others

Hon'ble Vineet Saran, J

The petitioner was duly selected as a Constable in the Provincial Armed Constabulary (in short ''P.A.C.' ) along with 179 other candidates. After appointment, he joined duty as a Constable in August, 1994. On receiving information of his wife's illness, he left for his home on 30th December, 1998 after applying for leave, but without waiting for the same to be sanctioned. Thereafter when he returned back after 11 days i.e. on 10.1.1999, he was informed that by an order dated 8.1.1999 passed by Commandant, 36 Vahini, P.A.C. Ram Nagar, Varanasi, Respondent no.3 he had been dismissed from service. Aggrieved by the said order the petitioner filed an appeal before the Deputy Inspector General of Police, P.A.C., Varanasi Region, Varanasi. Without entering into the merits of the case, the appeal was dismissed on 30.3.1999 on the ground of maintainability, holding that the appeal would  not lie under Rule 20(1)(a) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. Aggrieved by the same, the petitioner has filed this writ petition praying for quashing the said orders dated 8.1.1999 and 30.3.1999 passed by Respondent nos. 3 and 2 respectively.

I have heard Sri Ashok Khare, learned Senior counsel appearing for the petitioner and Sri R.K.Awasthi, learned Standing Counsel appearing for the respondents and have perused the record.

The contention of the learned counsel for the petitioner is that even if the petitioner was on probation, before passing an order dismissing him from service, it was incumbent on the authorities to issue a show cause notice and follow the procedure prescribed under Paragraph 541(2) of the Police Regulations. It was urged that the U.P. Temporary Government Servant (Termination of Service) Rules, 1975 (hereinafter referred to as the Rules of 1975) have no applicability to the officials of the police department and their service conditions would be governed by the Police Act and the administrative instructions and guidelines issued thereunder. It was further submitted that the action which has been taken by the respondent was punitive in nature which was based on the absence of the petitioner from duty and thus the petitioner ought to have been afforded an opportunity of hearing before passing of such order. It was also contended that by the same selection, those who were junior to the petitioner, have been retained in service whereas the service of the petitioner has wrongly and illegally been dispensed with.

In support of his submission the learned counsel for the petitioner has placed reliance on two decisions of the Apex Court rendered in the cases of Chandra Prakash Shahi vs. State of U.P.and others 2000 All.L.J. 1445 and Chandra Prakash Tiwari and others vs. Shakuntala Shukla and others (2002) 6 SCC 127.

In reply, Sri Awasthi, learned Standing counsel appearing for the Respondents, has submitted that the Rules of 1975 having been framed under Article 309 of the Constitution of India and having applicability on all government servants in temporary service, would be applicable and not the Regulations framed under the Police Act, 1861. In support of his contention he has placed reliance on a Full Bench decision of this Court rendered in the case of Nanak Chand vs. State of U.P. and others, 1971 A.L.J. 724

The facts as admitted by the parties are that the petitioner had been given appointment after due selection along with other candidates in the month of August, 1994. After having undergone the training, he was duly recruited as a Constable in the P.A.C.  In paragraph 11 of the writ petition it has been categorically stated that neither the post on which the petitioner was working had been abolished, nor the post in question was a temporary one. Such averments made in the writ petition have not been categorically denied in the counter affidavit except that it has been stated that the petitioner was in temporary service and that the petitioner had been punished for his misconducts in the years 1996, 1997 and 1998 and since there was no improvement in his working, he was dismissed from service. In the same breath the learned Standing Counsel has stated that the order dated 8.1.1999 was merely a dismissal order simplicitor without any stigma and thus it could not be said that the same had been passed by way of punishment.

In the case of Chandra Prakash Shahi (supra), the case before the Supreme Court was of a Constable who had been recruited on 1.10.1985. After completing his training he was placed on probation for a period of two years. After completing his probation, his services were terminated by a simple notice in terms of Rule 3 of 1975 Rules. The order of termination had been passed because of an incident of quarrel between two Constables in which the appellant before the Supreme Court was also involved. It was held that the termination order was punitive in nature and that the termination could not have been made under the Rules of 1975 as it would be the Police Regulations which would govern his service and any order terminating the services of such personnel of the Police Department could only be passed under the provisions of Regulations 541(2) of the U.P. Police  Regulations. The relevant extract of the judgment of the Supreme Court is quoted below:-

"Where, therefore, the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. The probationer/constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his services.

If this procedure is followed and the services are terminated thereafter, it would not amount to a punitive action. The rule being mandatory in nature, compliance thereof would not alter the nature of the order passed against the probationer. This aspect was considered by this Court in two decisions, namely, the State of Orissa v. Ram Narayan Das, (1961) 1 SCR 606 : (AIR 1961 SC 177) (supra) and Ranendra Chandra Banerjee v. Union of India, (1964) 2 SCR 135 : (AIR 1963 SC 1552) (supra) in terms of Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, which, in all respects is akin to Para 541 of the U.P."

While allowing the appeal filed by the constable, the Supreme Court held that "there has been total non-compliance with the provisions of Para 541 of the U.P. Police Regulations and services of the appellant were terminated without ever issuing him any notice intimating the grounds on which his services were proposed to be terminated nor was his explanation ever obtained. The services were terminated because he was found involved in a quarrel between two other Police Constables."

In the other case of Chandra Prakash Tiwari (supra) the matter before the Supreme Court was with regard to applicability of U.P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994. In the said case the dispute related to the promotion of sub Inspector of Police to the rank of Inspector, Civil Police. After considering the various provisions of the Police Act, 1861 and also the general Rules framed under Article 309 of the Constitution of India, the Apex Court held as under:-

"Police force, admittedly, has a special significance in the administration of the State and the intent of the framers of our Constitution to empower the State Government to make rules therefore has its due significance rather than being governed under a general omnibus rule framed under the provisions under Article 309."

It was thus held that while the General Rules are for general government servants, the Police Force are to be guided by the provisions of the Police Act and no exception can be taken thereto.

The Full Bench in the case of Nanak Chand (supra), as has been relied upon by the learned Standing Counsel appearing for the Respondents, was a case in which the question under consideration was of an appointment on a temporary post in the police force. After holding that the Police Regulations would be applicable only to appointments made on permanent posts, the dismissal order of a personnel appointed on a temporary post without following the guidelines issued in Regulation 541 of the Police Regulations was held to be justified after holding that the said Police Regulation would not be applicable to temporary appointments made on temporary post. In my view, the ratio of the said decision would not be applicable to the facts of the present case as the petitioner herein was not appointed on a temporary post or a post which had been abolished. Even otherwise, the decision of the Full Bench is of a period prior to coming into force of the Rules of 1975.

Thus, testing the facts of the case in hand in the light of the ratio and observation of the Apex Court, in my view, the contention of the petitioner that the Regulations framed under the Police Act would be applicable in the present case and not the Rules of 1975, has force. The Regulations, having been framed under the specific Act governing all the police personnel, would be applicable in the case of the petitioner. The general Rules of 1975 applicable to the temporary government servants having been framed under Article 309 of the Constitution of India would not govern the service conditions of the police personnel.

Para 541 of the Police Regulations reads as follows:-

"541. (1) A recruit will be on probation from the date he begins to officiate in a clear vacancy. The period of probation will be two years except in the following cases :

(a) those recruited directly in the Criminal Investigation Department or District Intelligence Staff will be on probation for three years, and

(b) those transferred to the Mounted Police will be governed by the directions in paragraph 84 of the Police Regulations.

If at the end of the period of probation conduct and work have been satisfactory and the recruit has been approved by the Deputy Inspector General of Police for service in the force, the Superintendent of Police will confirm him in his appointment.

(2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his service. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.

(3) Every order passed by a superintendent under sub-paragraph (2) above shall, subject to the control of the Deputy Inspector General be final."

As per the aforesaid Regulation, the services of the petitioner could be dispensed with only if the Superintendent of Police was of the opinion that he was  unlikely to make a good police officer. Before this, it was necessary that the petitioner should have been supplied with specific complaints and grounds on which it was proposed to discharge him and only thereafter considering his reply to the show cause notice, could the Superintendent of Police pass such an order of discharge. In the present case, since the impugned order has been passed in complete ignorance and violation of the aforesaid provision, the same deserves to be set aside.

Accordingly, the order dated 8.1.1999 passed by Respondent no.3 dispensing with the services of the petitioner as well as the order dated 30.3.1999 passed in appeal are set aside. The petitioner shall be reinstated in service with immediate effect.

As regards the question of payment of back wages, it is true that the normal rule would be that full back wages are to be paid but before passing such an order what would be required to be considered is the service record of the concerned employee; the status of the employee i.e. as to whether he could have been gainfully employed during the period he was out of job; besides the other factors like the efforts made by such employee in pursuing his case for setting aside the order of dismissal. Such discretion has to be exercised judiciously according to rule of reason and justice, after taking into consideration the entire facts and circumstances of the particular case. In the present case the petitioner was a constable and for the period during which he remained out of service, looking to his status, it can presumed that he would have been gainfully employed during such period, even though he may not have been able to earn the same amount which he would have got while in service as constable. As regards his service record, it is the specific case of the respondents that the petitioner had been punished for misconducts in the years 1996, 1997 and 1998. Although in some cases the principle of "no pay no work" is to be considered but taking into account the totality of the circumstances, in my judicial discretion, in the present set of facts the petitioner shall be entitled to only one-third of his salary from the date of the passing of the impugned order till the date of his reinstatement in service. He shall otherwise be entitled to be treated in continuous service for the purposes of his seniority and other benefits.

Subject to the aforesaid direction, this writ petition stands allowed. No order as to costs.




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