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ASHISH KUMAR CHAKRAVARTI versus STATE OF U.P. THRU' PRIN. SECY. HOME AND OTHERS

High Court of Judicature at Allahabad

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Ashish Kumar Chakravarti v. State Of U.P. Thru' Prin. Secy. Home And Others - WRIT - A No. 49408 of 2005 [2006] RD-AH 19454 (17 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 49408 of 2005

Ashish Kumar Chakrvarti

Versus

State of U.P. and others

Hon'ble V.K. Shukla,J.

Petitioner was placed under suspension vide order dated 15.06.1990 on account of Case Crime No. 419 of 1989 pending against him. Categorical directions were made in the suspension order that items which are mentioned at Serial No. 2 would be paid when it is proved and specified that incumbent is not engaged in any other service or occupation. It has further been directed that during the suspension period petitioner shall remain attached with police lines and should surrender his Kit of Radio Inspection. Petitioner faced trial being Session Trial No. 55 of 1991 arising out of Case Crime No. 419 of 1989 under Section 6 of P.A.C Act and was acquitted on 16.09.2004. No appeal whatsoever had been filed against the said judgment. Even after order of acquittal was passed petitioner was not allowed to work. In this background petitioner preferred present writ petition wherein order dated 18.07.2005 was passed by this Court which is being quoted below:

"The petitioner alleges that he was suspended by an order dated 15.06.1990 on account of that fact that a criminal case No. 419 of 1989 was pending against him. The petitioner further alleges that till date no domestic enquiry or final order has been passed and the he remained suspended during the pendency of the criminal proceedings. The petitioner further contends that the criminal proceedings come to an end and he has been acquitted by a judgment dated 16.09.2004, and in spite of the acquittal he has not been reinstated.

Standing Counsel will file a counter affidavit within three weeks from today.

List for admission thereafter."

After said order has been passed, petitioner was sought to be placed under suspension on 19.10.2005 and departmental proceedings has been sought to be initiated against him. At this stage this Court on 27.04.2006 passed following order which is being quoted below:

" Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

It is evident from a perusal of the counter affidavit filed by Sri Staya Prakash Singh on behalf of the respondents that the respondents have initiated disciplinary proceedings against the petitioner taking recourse of Par-493 (c) of U.P. Police Regulations. It is stated in para 11 of the C.A that an order was passed for continuing the petitioner under suspension, which order is dated 19.10.2005. The said proceedings are pending. Learned counsel for the petitioner contends that neither the order referred to in the counter affidavit nor the documents pertaining to the proceedings have been filed to enable the petitioner to contest the matter.

From a perusal of the facts as brought on record, it appears that the petitioner was suspended on account of proceedings having been initiated against him under Section 6 of the Provisions of Armed Constabulary Act. The petitioner was tried by the Sessions Court in S.T. No. 55 of 1991. The petitioner was ultimately acquitted on 16.09.2004, a copy of the judgment is annexure V to the writ petition. The petitioner was not being reinstated, in terms of para 493 of the Policy Regulations as a result whereof he moved this court by filing the present writ petition. Respondents were put to notice vide order dated 18.07.2005 calling upon them to explain as to why the petitioner has been kept under suspension when no departmental proceedings or any domestic enquiry is stated to be pending against the petitioner. Learned counsel for the petitioner contends that after service of the aforesaid notice, the respondents have filed a counter affidavit and stated therein that in the month of October 2005 they have proceeded to initiate disciplinary proceedings after a lapse of 14 years. Learned counsel for the petitioner has relied on the decision of the Apex Court in P.V. Mahadevan Vs. M.D. Tamil Nadu Bousing Board, reported in 2005(4) ESC 559 to contend that such proceedings cannot be permitted to be initiated after lapse of such a long period of time. Learned counsel for the petitioner has invited the attention of the Court of para-16 of the judgment to contend that the action of the respondents is absolutely unfounded. It is further stated that for the very came charge the criminal court on the basis of the some set of evidence has acquitted the petitioner as such in these circumstances the initiation of the disciplinary proceedings after a lapse of 14 years is a clear case of harassment. He further contends that the respondent no. 3 was no where prevented from initiating the proceedings. Learned counsel for the petitioner relied on the case of Subash Chandra Vs. State of U.P. 2005 (4) ESC 2823. In view of this pronouncement the respondents have no authority to keep the petitioner under suspension and the suspension order stated to have been passed on 19.10.2005 is liable to be set aside.

Let the respondents file a counter affidavit to the aforesaid submission advanced on behalf of the petitioner and explain as to why they may not be restrained to proceed any further.

Let a certified copy of this order be served upon the respondent no. 3 within ten days.

List after three weeks."

Repeated opportunities have been provided for to the respondents to explain as to why they may not be restrained to proceed any further.

On the matter being taken up today no explanation whatsoever has been furnished as such present writ petition has been taken up with the consent of the parties for final hearing and disposal.

Impugned order of suspension reflects that in case crime No. 419 of 1989 under Section 6 of P.A.C at Police Station Cantt District Varanasi petitioner was sent to jail and as such he was placed under suspension. Apart from this no other ground for placement of petitioner under suspension has been mentioned. Once aforesaid criminal case has resulted into acquittal and on account of said criminal case petitioner was sent to jail, then same cannot be made foundation and basis for continuance of suspension, as such said suspension order dated 15.06.1990 is of no consequence and same cannot be made foundation and basis of non-suiting the claim of the petitioner and as on date said suspension order has rendered itself redundant and otiose.  Apart from this in the present case petitioner was taken to trial in case crime no. 419 of 1989 and as has been acquitted on 17.09.2004 by the competent criminal court. Once he has been acquitted by the competent Criminal court then in stead of complying with the provision as contained under Para-493 of U.P. Police Regulations by reinstating the petitioner in service. Respondents in their wisdom have chosen to initiate departmental proceedings against the petitioner. Division Bench of this Court in the case of Kedar Nath Yadav Vs. State of U.P. 2005 (3) ESC 1955 has taken the view that authorities were bound to follow Regulations 492 and 493, the 1991 Rules notwithstanding. Paragraph 50 and 51 of the said judgment is being quoted below:

492. Whenever a police officer has been judicially tried the superintendent must await the decision of the judicial appeal, if any, before deciding whether further departmental action is necessary.

493. It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to reexamine the truth of any facts in issue at his judicial trial, and the finding of the Court on these facts must be taken as final.

Thus, (a) if the accused has been convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary, as the fact that he has been found deserving of rigorous imprisonment must be taken as conclusively providing his unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act. In such cases the Superintendent of Police will without further proceedings ordinarily pass an order of dismissal, obtaining the formal order of the Deputy Inspector General when necessary under paragraph 479 (a). Should he wish to do otherwise he must refer the matter to the Deputy Inspector General of the range for orders.

(b) If the accused has been convicted but sentenced to a punishment less than of rigorous imprisonment a departmental trial will be necessary, if further action is thought desirable, but the question in issue at this trial will be merely (1) whether the offence of which the accused has been convicted amounts of an offence under Section 7 of the Police Act. (2) if so, what punishment should be imposed. In such cases the Superintendent of Police will (i) call upon the accused to show cause why any particular penalty should not be inflicted on him (ii) record anything the accused Officers has to urge against such penalty without allowing him to dispute the findings and order in the ordinary way dealing with any plea raised by the accused officers which is relevant to (1) and (2) above.

(c) If the accused has been judicially acquitted or discharged and the period for filing an appeal has elapsed and/ or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court not be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General  and ask for permission to try the accused departmentally for such negligence or unfitness. "

50. The inescapable conclusion, therefore, is that the authorities were bound to follow Regulation 492 and 493, the 1991 Rules notwithstanding. They did not do so and they proceeded to decide differently on the charge of embezzlement of four magazines although the writ petitioner-appellant had been acquitted on the same charge in the Criminal Courts. The authorities have thus, brought on record an error of law by acting contrary to existing Regulation; such an error on the face of the record can and should be corrected by the writ Court. An acquittal is an acquittal, whether on the benefit of doubt  or not. One cannot go behind the acquittal, but must ordinarily accept it on its face value.

51. The order under appeal before us is thus, set aside. We allow the appeal; the writ petition is allowed. The disciplinary proceedings culminating in the order imposing punishment dated 6.5.1995 merging in the appellate order dated 4.1.1997 and the order imposing punishment dated 31.1.1998, are all quashed. The writ petitioner-appellant will treated to have been exonerated absolutely in the departmental proceedings. All the benefits and consequential benefits will be accorded to him on that basis, as expeditiously as possible, including payment of all arrears, if any, within a period of a fortnight from the date hereof."

Apart from this in the present case in spite of repeated opportunities being provided  no explanation has come forward to explain as to why departmental proceedings have been initiated against the petitioner after lapse of such a long period.  Hon'ble Apex Court in P.V. Mahadevan Vs. M.D. Tamil Nadu Bousing Board, reported in 2005(4) ESC 559  has taken the view that where an incumbent has already suffered enough then undertaking of disciplinary proceedings after delay of more than 10 years would be nothing but harassment. Here more than seventeen years period has elapsed and for almost  same set of charges petitioner was put for trial and has been exonerated and in stead of proceeding to comply with the provisions as contained in Para-493 of U.P. Police Regulations respondents in mechanical manner have chosen to initiate departmental proceedings.

Consequently in the facts of the present case order of suspension dated 15.06.1990 is hereby quashed and set aside. Further proceedings undertaken against the petitioner is also quashed. Respondents are directed to reinstate the petitioner within one month from the date of presentation of certified copy of this order and all consequential benefits which are admissible to the petitioner shall be extended to him in term of promotion etc. and petitioner shall be treated as continuing in service. As far as wages part is concerned undisputedly petitioner was facing criminal trial and acquitted in the aforesaid criminal trial on 17.09.2004 consequently ends of justice would be more served in the event of 1/3rd of the total salary computed be paid for the period commencing from 15.06.1990 to 17.09.2004 and w.e.f. 18.09.2004 up till date of reinstatement, full benefits be extended.

With the above observations, present writ petition is allowed and disposed of.

17.11.2006

Dhruv      


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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