Allahabad High Court
Brij Mohan Shukla @ Braj Mohan Shukla vs State Of U.P. & Others on 12 February, 2015
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 06.02.2015 Delivered on 12.02.2015 Case :- WRIT - A No. - 58033 of 2009 Petitioner :- Brij Mohan Shukla @ Braj Mohan Shukla Respondent :- State Of U.P. & Others Counsel for Petitioner :- B.D. Shukla Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J.
The challenge in the present writ petition is to an order dated 31.12.1997, terminating the services of the petitioner in terms of Rule 8 (2) (b) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short "Rules 1991"). The petition further lays challenge to the orders dated 24.02.1999 and 23.07.2009 being orders of affirmance passed in the Departmental Appeal and Revision respectively lodged by the petitioner.
A reading of the impugned order establishes that the Appointing Authority of the petitioner upon enquiry found that a Criminal Case No. 160 of 1988 under Sections 379, 411 IPC stood lodged against the petitioner and in which the competent Court had received a charge sheet naming the petitioner thereon 08.06.1988. Additionally, the order records that a confidential report had recorded the involvement of the petitioner in various other criminal activities and his complicity and active association with criminal elements in the district.
Based on the above two facts, the impugned order records that in a regular Departmental Enquiry, the petitioner was likely to influence and threaten his fellow officers. The Authority recorded that the continuance of the petitioner in the Police Force would not be in public interest and therefore proceeded to pass the order of termination. This order was taken in Departmental Appeal and Revision by the petitioner and was ultimately affirmed by both the Appellate as well as the Revisional Authority. Aggrieved thereby, the instant writ petition has been filed.
Although by amendments allowed in the writ petition the petitioner has sought to assail the satisfaction recorded by the Appointing Authority to dispense with the enquiry and pass orders under Rule 8 (2) (b) of the Rules 1991, these points were not raised or urged in oral argument by the learned counsel for the petitioner. The only ground, which was pressed into aid by the learned counsel for the petitioner for consideration of this Court was that the petitioner had been acquitted in the Criminal Case in question and therefore the very substratum of the impugned order had vanished. He submitted that the Magistrate's Court by its judgment dated 27.09.2004 had acquitted the petitioner in the case in question and therefore the impugned order was liable to be set aside.
Per contra, the learned standing counsel has submitted that the Criminal Case was not the solitary factor on the basis of which the Appointing Authority chose to terminate the services of the petitioner. He drew the attention of the Court to the confidential report, which was taken into consideration by the Appointing Authority, and the satisfaction recorded by him that in a regular Departmental Enquiry, the petitioner was likely to abuse his position of being a member of the Police Department and also influence the witnesses.
The provisions of Rule 8 (2) (b) of the Rules 1991 empowers the Appointing Authority to dismiss or remove a person or to reduce him in rank of a Police Officer without holding a regular Departmental Enquiry upon being satisfied that it would not be reasonably practicable to conduct the enquiry. The Rule further obliges and mandates that the power of dispensing with the enquiry must be supported by reasons to be recorded. This Court finds that the impugned oder of termination is not based upon the pendency of the Criminal Case against the petitioner alone. It was based also upon the reports obtained from confidential sources by the Appointing Authority, which recorded the active involvement and complicity of the petitioner in criminal activities. This aspect and part of the impugned order has not been assailed by the petitioner at all. In fact, the Court finds that this aspect of the matter and the correctness or otherwise of the conclusions, which are said to be comprised in the said confidential report has not even been assailed in the writ petition.
As pointed here-in-before, learned counsel for the petitioner in the course of oral submissions has not even assailed the validity of the satisfaction recorded by the Appointing Authority. Nor does he challenge the veracity of the conclusions recorded by him in support of exercise of powers under Rule 8 (2) (b) of the Rules aforementioned.
Insofar as the acquittal of the petitioner in Criminal Case is concerned, a reading of the judgment rendered by the Magistrate shows that the prosecution witnesses had failed to support and corroborate the statements made by them under Section 161 Cr.P.C. and consequently the Magistrate found that it was not possible for the prosecution to prove the charges against the petitioner and other co-accused beyond reasonable doubt. It was in the above circumstances that the petitioner and other co-accused were acquitted in the criminal case. A reading of the judgment shows that it was not a case of honorable acquittal. In Commissioner of Police Vs. Mehar Singh [(2013) 7 SCC 685], the Hon'ble Supreme Court, while considering the question of 'honourable acquittal' held as follows: -
"25. The expression "honourable acquittal" was considered by this Court in S. Samuthiram. In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 of the IPC and under Section 4 of the Eve-teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal [(1994) 1 SCC 541], where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in departmental proceedings. This Court observed that the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". This Court expressed that when the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted.
26. In light of above, we are of the opinion that since the purpose of departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it."
Learned counsel for the petitioner has additionally contended that his services could not have been brought to an end without a Departmental Enquiry being held and conducted. By this submission, the learned counsel petitioner perhaps sought to contend that a regular Departmental Enquiry envisaging issuance of charge sheet, examination of witnesses and other processes were liable to have been taken against him. It was in this connection that he had placed reliance upon a judgment rendered by a learned Single Judge of this Court in Constable 49 Civil Police Gabbr Singh Vs. State of U.P. And others [(2013) 3 UPLBEC 2008].
The above submission is clearly misplaced. As pointed here-in-before and as is evident from a reading of the order of termination, the Appointing Authority chose to proceed against the petitioner under Rule 8 (2) (b) of the Rules 1991. This provision empowers the Appointing Authority to proceed to terminate the services of a Police Officer without conducting a regular Departmental Enquiry. This power is exercised, upon the Appointing Authority being satisfied for reasons to be recorded that it is not reasonably practicable to hold such enquiry. This provision by its very nature excludes the applicability of the principles of natural justice. Of course, this Court in exercise of its powers of judicial review can test and scrutinize the formation of opinion but the rules of natural justice cannot be read into such provisions.
For all the aforesaid reasons, this Court finds no merit in this writ petition and it is accordingly dismissed.
Order Date :- 12.02.2015 nethra