Allahabad High Court
Dhirendra Kumar Rai vs State Of U.P.Thr. Prin Secy Home on 15 July, 2010
Author: Devi Prasad Singh
Bench: Devi Prasad Singh
1
In the High Court of Judicature at Allahabad, Lucknow Bench,
Lucknow
RESERVED
A.F.R.
Case :- SERVICE BENCH No. - 768 of 2008
Petitioner :- Dhirendra Kumar Rai
Respondent :- State Of U.P.Through Principal Secy Home
Petitioner's Counsel :- I B Singh,K.K Singh
Respondent Counsel :- C.S.C
Hon'ble Devi Prasad Singh,J.
Hon'ble S.C. Chaurasia,J.
(Delivered by Hon'ble Devi Prasad Singh, J) Question involved and raised in the instant writ petition are :-
1. (a) Whether an order of suspension, activated by mala fide or non-application of mind and based on no evidence may be passed ?
(b) Whether a bona fide error in decision making process may be termed as mis-conduct and for that, a police officer may be suspended and charged by adopting the procedure for major penalty ? What constitute misconduct ?
(c) Whether the action of the State and its authorities based on no evidence or on trivial grounds may be permitted to continue which may demoralise the police force ?
2. The petitioner, who is Deputy Superintendent of Police in the U.P. Police Force, has approached this Court under Art. 226 of the Constitution of India with the grievance that he has been persecuted by the government only because he had interrogated the Chief Minister of the State Ms. Mayawati while serving in Central Bureau of Investigation (in short, C.B.I.) and in consequence thereof, the impugned action has been taken which suffers from bias based on no evidence.
The order of suspension as well as the charge-sheet has been impugned while invoking extraordinary remedy of the Court 2 under Art. 226 of the Constitution of India.
SERVICE CAREER
3. On 25.12.1976, the petitioner was appointed as Sub Inspector in U.P. Police through direct recruitment. It has been stated that from very beginning, the petitioner has been discharging duty with utmost commitment to his job. In the year 1977, the former Minister of the State Brahmadutt Dwivedi was murdered and the petitioner was entrusted to assist C.B.I. which resulted with positive outcome.
4. Keeping in view the bright service career, the petitioner was chosen by the C.B.I. and from 13.7.1999 to 31.7.2006, the petitioner remained in C.B.I. on deputation. He raided the Director of Doordarshan, Lucknow and arrested him on accepting bribe of Rs.1 lac. He was also associated in Century Scam case.
5. The petitioner was part of the team conducting enquiry (P.E. No.4(A)/2003 with regard to Taj Heritage Corridor. During the course of investigation, evidence was collected by the petitioner with regard to fake donors who were earlier not traceable. For this act of skillful investigation, the C.B.I. has rewarded the petitioner with Rs.5000/-.
6. In para 5 of the writ petition, it has also been stated that from 1976 to 1983, the petitioner was posted in Varanasi and recovered 2.50quintal of looted silver while serving at police station Adampur, Varanasi and for this, he was rewarded.
7. It has also been stated that "Argha" made of gold of Baba Vishwanath temple, Varanasi was stolen but it was recovered by the petitioner and the accused were convicted during trial. It has been stated that in 1987, the petitioner was posted at police station Pannuganj, Mirzapur (now district Sonbhadra) and while posted 3 there, he arrested a dacoit Ghamari Kharwar bearing reward of Rs.50,000/- on his head. For this act of bravery, the petitioner was rewarded by payment of Rs.30,000/- by the Government of Bihar.
While posted at police station Pannuganj, Mirzapur, the petitioner had recovered 60 guns, one sten gun, seven rifles of 303 bore belonging to Bihar Police and granades and got released five abducted persons of U.P. in the custody of Ghamri Kharwar gang.
8. In the year 1990, the petitioner was promoted as Inspector in U.P. Police and posted in the Vigilance Department at Varanasi Sector, Varanasi and arrested several employees indulged in bribery. While working as Inspector in Anti Corruption Branch, Lucknow, the petitioner laid several traps of Class-I officers including I.T.S. Officers and DGM of Telecom Department and Director, Doordarshan, U.P. and for this courageous work, he was paid Rs.5,000/- by the C.B.I. as reward.
9. The petitioner was part of investigation team in Century Scam case and arrested the accused from Kalimpong for which the C.B.I. Director has rewarded him with payment of Rs.10,000/-. The petitioner has generated various valuable information while serving in C.B.I.
10. While investigating Case No. R.C. No.19(A)/2003 as member of team of C.B.I., the petitioner had searched the house of Ms. Mayawati (as she then was), at 13, Mal Avenue, Lucknow and interrogated Ms. Mayawati on 10.5.2005 at her residence at Humayun Road, New Delhi and recorded her statement under Section 161 CrPC. He also interrogated other family members of Ms. Mayawati (as she then was) and sisters of Late Kashiram. While investigating as member of the team in C.B.I. In R.C. No.19(A)/2003, the petitioner detected an asset of huge amount in the name of a lady who is wife of Siddharth Kumar who happens 4 to be the real brother of Ms. Mayawati. Siddharth Kumar had taken V.R.S. on 16.2.2005 while serving on the post of Joint Director, Training in the Ministry of Labour and Social Justice. It has also been stated that the petitioner detected huge assets existing in the name of Bhabhi of Ms. Mayawati.
11. It has been stated that the petitioner was rewarded twice with payment of Rs. 1,750/- and Rs.1000/- for commendable work he has done in connection with investigation of a case against Ms. Mayawati (as she then was). A copy of the reward sanctioned by the D.I.G., C.B.I. On 7.10.2004 has been annexed as Annexure No.3 to the writ petition.
12. The petitioner was recommended by the Superintendent of Police, Lucknow vide his letter dated 30.10.2003 for Indian Police Medal on account of his meritorious service on the occasion of Republic Day 2004. The recommendation dated 30.10.2003(copy Annexure-4 to the writ petition) is self speaking depicting the petitioner's meritorious service record.
On the Republic Day, Indian Police Medal was awarded to the petitioner by the President of India, a copy of which has been annexed as Annexure No.5 to the writ petition.
13. Thereafter in May, 2006, Departmental Promotion Committee has considered and promoted the petitioner on the post of Deputy Superintendent of Police. Subsequently, on 31.7.2006, he was reverted back to the U.P. Police by the C.B.I. and joined on the post of Deputy Superintendent of Police, C.B.C.I.D. While posted as Circle Officer in Lucknow, the petitioner arrested several prominent persons for their criminal act. He served on Economic Offences Wing and then transferred to Special Task Force, in short STF.
A team was constituted under the leadership of the petitioner 5 to carry out the operation against the rewarded dacoit Daduwa and Thokiya.
14. On July 21, 2007, after receipt of the information with regard to the presence of Thokiya alias Amibika Patel in Sakri Bera forest of district Chitrakoot, the petitioner along with his team members proceeded to said village area in forest after informing the Senior Superintendent of Police, STF in Chitrakoot. It has been stated that the petitioner had proceeded in vehicle from Chitrakoot to Gupt Godawari, district Satna of Madhya Pradesh and from there, he along with his team members left the vehicle and marched to the assigned area on foot from the mid of hilly area and jungle.
15. On 22.7.2007, between 8.00a.m. to 9.15a.m., encounter took place between the petitioner and Thokiya gang of dacoits. In the said encounter, one dacoit Maiyadeen was killed but other dacoits managed to escape. Keeping in view the blood stains on earth, the petitioner's team has tried to chase other dacoits who were injured in the said encounter. It has been stated that the petitioner communicated the Senior Superintendent of Police, STF on mobile phone No.9415902216 and as per his instruction, he also informed the Addl. Director General of Police, STF Shri Shailja Kant Mishra on his mobile phone No.9415902048. The petitioner also requested Dr. Pritender Singh, Superintendent of Police, Chitrakoot six times on his mobile phone No.9415902832 for additional force(back-up). An assurance was given by the Superintendent of Police, Chitrakoot to the petitioner for additional force. Information was communicated by the petitioner to Shri Brijendra Rai, Station House Officer, Karvi on his mobile phone No.9415904408 in compliance of the instruction issued by the Superintendent of Police, Chitrakoot but except the assurance, the Station House Officer, Karvi had not sent reinforcement team to provide back-up to the petitioner's force.
616. It has been stated by the petitioner that in spite of repeated demands raised to the various authorities, no force was sent to provide assistance to the petitioner's team which was fighting with the dreaded dacoits of the locality and one of whom was killed during the course of encounter.
It has also been stated that Shri Brijendra Rai, Station House Officer, Karvi through his mobile phone No.9415904408 informed the petitioner for necessary assistance to be reaching there soon but no one has arrived till night. Though the encounter with dacoits took place on 22.5.2007 between 8.00a.m. to 9.15a.m. but no assistance was provided to the petitioner's team in spite of due communication to various authorities.
17. On getting no reinforcement or back-up from the local police, the petitioner's team took a decision to leave the place and back to district headquarter. While coming back after encounter in the intervening night of 22/23.7.2007, dacoit Thokiya had arranged an ambush along with his gang and fired upon the petitioner's team in which six police personnel of the team and one informer died. Thereafter, the petitioner was transferred to district Pratapgarh and later on Special Investigating Team, Lucknow. He was again transferred to district Unnao.
18. A magisterial enquiry was held and the Sub Divisional Magistrate, Karvi, Chitrakoot submitted his report dated 31.8.2007. After receipt of the report, by the impugned order, the petitioner was placed under suspension in contemplation of departmental enquiry with the allegation that because of lack of leadership quality, six members of the STF team died on account of ambush arranged by dacoit gang. It has been treated to be dereliction of duty.
19. A charge-sheet of the same date, i.e. 26.5.2008 was served 7 upon the petitioner in which the report of the Superintendent of Police, Chitrakoot and report of Shri Ghanshyam Ahirwar , Circle Officer, Chitrakoot and the report of the Shri Brijendra Rai, SHO, Karvi has been shown to be evidence. It shall be appropriate to reproduce the impugned charge-sheet dated 26.5.2008 a copy of which has been filed as Annexure No.2 to the writ petition.
आरोप-पत शी धीरने द राय, पुिलस उपाधीकक (िनलिमबत ) आपके िवरद संिसथत िवभागीय कायरवाही मे आपको एतददारा िनमनवत आरोिपत िकया जाता हःै जब आप एस०टी०एफ० टीम के पभारी थे तब िदनांक २२.०७.०७ को एस०टी०एफ० एवं ठोिकया गगै के मधय पातः ८.०० बजे से ९.१५ बजे तक थाना े ा जगं ल मे हु इ मुठभेड. मे गगै का सदसय मय कोतवाली, कवी, िचतकूट के बड ै ादीन उफर लमझगड. उफर पनडा पुत जगं िलया उफर वयापारी िनवासी खमहिरया, थाना कोतवाली कवी, जनपद िचतकूट मारा गया था । ठोिकया अपने सािथयो के साथ भागने मे सफल रहा । एस०टी०एफ० टीम घटना के पशचात १५ घणटे तक जंगल मे मौजूद रही थी । आप एस०टी०एफ० टीम पभारी थे, आपका यह पथम दाियतव था िक जब ठोिकया गगै का एक सदसय मारा गया था तो आपको इसकी सूचना सथानीय पुिलस/केतािधकारी/पुिलस अधीकक को दी जानी चािहए थी, परनतु आपके दारा ऎसा नही िकया गया और िबना सथानीय पुिलस के सहयोग से घटना के लगभग १५ घणटे तक भीषण जगं ल मे मौजूद रहने एवं राित २३.१५ बजे जंगल से वापस आते समय बघौलन ितराहा, गाम बघौलन मे ठोिकया गगै के दारा पितशोध से एस०टी०एफ० टीम के उपर फायिरगं की गयी, िजसमे एस०टी०एफ० के ०६ सदसय मारे गये तथा १० अनय सदसय घायल हु ए थे । आपकी लापरवाही/उदासीनता एवं अकमरणयता के कारण एस०टी०एफ० के ०६ जवान मारे गये तथा १० जवान घायल कर िदये गये थे, जबिक आप यह अचछी तरह जानते थे िक दसयु गगै ठोिकया का जब भी कोइ सदसय पुिलस मुठभेड. मे मारा जाता है वह पितशोधसवरप पुिलस से बदला अवशय लेता है, इस ओर आपके दारा धयान नही िदया गया । यिद आपके दारा इस ओर धयान िदया गया होता और थोडी सी सूझ-बूझ से एस०टी०एफ० टीम का मागरदशरन िकया गया होता तो एस०टी०एफ० के जवान नही मारे जाते और न ही घायल होते एवं इस बडी घटना से बचा जा सकता था । इस समबनध मे आपके दारा िदनांक २३.०७.०७ को थाना कोतवाली कवी, जनपद िचतकूट मे िलिखत तहरीर दी 8 गयी, िजसके आधार पर मु०अ०स० ं -३२६/२००७, धारा-१४७/१४८ / १४९/३०७/ ३०२/३४ भादिव व ७ िक०ला०अ०एकट एवं १०/१२ डी०ए० एकट बनाम ठोिकया गगै कुल १६ अिभयुको के िवरद पज ं ीकृत िकया गया , िजसकी िववेचना शी बृजेनद राय, ततकालीन पभारी िनरीकक थाना कोतवाली कवी दारा की गयी तथा पशनगत पकरण की जांच शी घनशयाम अिहरवार, ततकानीन केतािधकारी नगर, िचतकूट दारा की गयी । पशनगत अिभयोग की िववेचना के दौरान पूरे पकरण मे आपके दारा की गयी तुिटयां पाई गई ।
आपकी लापरवाही/उदासीनता के कारण एक और एस०टी०एफ० के ०६ जवान शहीद हो गये तथा १० जवान घायल हो गये तो दस ू री ओर दसयू गगै लीडर ठोिकया का मनोबल/उतसाह और बढ. गया । इस पकार आपके दारा अपने कतरवयो के पित घोर लापरवाही/उदासीनता एवं अकमरणयता बरती गयी । उक आरोपो के समथरन मे िनमन साकय पसतािवत हःै -
कं० साकी का नाम साकय
स०
ं
1 शी पीितनदर िसंह, पुिलस अधीकक, पाइ गयी लापरवाही/उदासीनता,
िचतकूट अकमरणयता का समथरन
2 शी घनशयाम अिहरवार, केतािधकारी िदनांक ०१.०९.०७ को पसतुत की गयी
नगर, िचतकूट पशनगत पकरण की जांच का समथरन
3 शी बृजेनद राय, पभारी िनरीकक, िववेचनातमक कायरवाही से पाई गयी
कोतवाली कवी, जनपद िचतकूट किमयो का समथरन
अिभलेखीय साकय-
एस०टी०एफ० के १० जवानो की इनजरी िरपोटर ।
२. एतददारा आपसे पतयेक आरोप के उतर मे अपने बचाव का िलिखत िववरण, आरोप पत की पािप के १५ िदन के अनदर जांच अिधकारी को पसतुत करने की अपेका की गयी है । आपको सचेत िकया जाता है िक यिद जांच अिधकारी को िनधारिरत समय के अनदर एवं कोई िववरण नही पाप होता है, िजसकी पतयाशा की गयी है, तो यह माना जाएगा िक उपरोक के सब ं मे आपको कुछ नही कहना है , और आपके पकरण ं ध मे तदनुसार एकपकीय कायरवाही/िनणरय ले िलया जायेगा ।
३. यिद आप वयिकगत सुनवाई के िलये इचछुक है और िकसी साकी की परीका/पितपरीका करना चाहते है तो अपने िलिखत िववरण के साथ उसका नाम, पता 9 साकय का, िजसे पतयेक ऎसे साकी से देने की पतयाशा की जायेगी, समुिचत िववरण भी जांच अिधकारी को पसतुत करे ।"
20. While assailing the impugned order, learned counsel for the petitioner has relied upon the judgments reported in 1974 ALR 64 State of U.P. Versus Jai Singh Dixit and others, (1995)1 SCC 332 Transport Commissioner, Madras-5 versus A. Radha Krishna Moorthy, 1997(31) ALR 604 Ram Dular Tripathi versus State of U.P. And others, (1992)4 SCC 54 State of Punjab and others versus Ram Singh Ex. Constable and AIR 1979 SC 1022 Union of India and others versus J. Ahmed.
21. On the other hand, learned counsel for the respondents has relied upon the case reported in (1994)3 SCC 357 Union of India and others versus Upendra Singh, (1996)3 SCC 157 Secretary to Government, Prohibition & Excise Department versus L. Srinivasan, (1996)11 SCC 498 Dy. Inspector General of Police versus K.S. Swaminathan, (1997)11 SCC 368 State of Punjab and others versus Ajit Singh and (2006)12 SCC 28 Union of India and another versus Kunisetty Satyanarayana.
MAINTAINABILITY OF THE WRIT PETITION DISCRETION
22. Learned Additional Chief Standing Counsel while defending the action of the State Government has submitted that the statutory discretion has been exercised by the government after considering the material on record and the order of suspension has been passed in contemplation of departmental enquiry and the charge- sheet has been issued, hence the writ petition is not maintainable.
23. Keeping in view the submission made by the learned Additional Chief Standing Counsel, it shall be appropriate to 10 consider the rights flowing from Art. 226 of the Constitution of India with regard to judicial review and the disciplinary power of the State to pass an order while exercising the statutory power.
24. According to Webster's Encyclopaedia Unabridged Dictionary (1994), p.411, the "Discretion" means the power, right or liberty to decide one way or the other, to act according to one's own judgment; freedom of choice; to be completely under one's power or control; the freedom to decide what should be done in a particular situation.
25. In Rooke case, (1598) 5 Co Rep 99b (100a), the "Discretion"
proclaimed Coke, "is a science of understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.
26. In Sharp v. Wakefield, reported in 1891 AC 173, 179, Lord Halsbury rightly observed as under:-
''[D]iscretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion..... according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself...."
27. Hon'ble Supreme Court in a case reported in 2004(2) SCC 590; Union of India v. Kuldeep Singh has held that the discretion is to know through law what is just. To quote:-
11"Discretion is to know through law what is just. Where a judge has and exercises a judicial discretion his order is unappealable unless he did so under a mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did......"
Their Lordships of Hon'ble Supreme Court further proceeded to hold as under:-
"20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary)
21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge 12 and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office out to confine himself (per Lord Halsbury, L.C., in Sharp v. Wakefield). (Also see S.G. Jaisinghani v. Union of India)
22. The word ''discretion' standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. "The discretion of a judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper and passion. In the best it is often times 13 caprice; in the worst it is every vice, folly, and passion to which human nature is liable." Said Lord Camden, L.C.J., in Hindson and Kersey".
28. In view of above in case the statutory discretion vests in an authority then such discretion should be exercised not in arbitrary, whimsical and fanciful manner. It must be reflected from the outcome of event that the authority concerned has exercised discretion within the sound principle of law, skill and wisdom with vigilant circumspection and care. The discretionary power imposes a heavy responsibility on a person or authority. The latitude or liberty accorded by statute, Circular or Order to the higher authority does not permit to exercise such power in unjust and unfair manner. In the case of Kuldeep Singh (supra), their Lordships of Apex Court further held as under:-
" If a certain latitude or liberty is accorded by a statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of discretion, and prevents it from being wholly absolute, capricious, or exempt from review."
29. Hon'ble Supreme Court in the case of State of U.P. vs. Mohd. Nooh reported in 1958 SC 86, Pratap Singh vs. State of Punjab reported in AIR 1964 SC 72, Fashih Chaudhary vs. D.G. Doordarshan reported in 1989(1) SCC 189 held that if the act complained of is without jurisdiction or is in excess of authority conferred by statute or there is abuse or misuse of power, a Court can interfere. In such an eventuality, mere fact that there is denial of allegation of malafide or oblique motive or of its having taken into consideration improper or irrelevant matter does not preclude the court from enquiring into the truth of allegations levelled against 14 the authority and granting appropriate relief to the aggrieved party.
30. In number of cases Hon'ble Supreme Court ruled that every arbitrary action, whether in the nature of legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution of India vide AIR 1974 SC 555; E.P.Royappa v. State of Tamil Nadu, 1979 (3) SCC 489; R.D. Shetty v. International Airport Authority, 1978 (1) SCC 248; Maneka Gandhi v. Union of India, 1981(1) SCC 722; Ajay Hasia v. Khalid Mujib, 1990 (3) SCC 223; Shri Sitaram Sugar Co. Ltd. v. Union of India.
31. In M.I. Builders Pvt. Ltd. v. Radhey Shyam reported in (1999) 6 SCC 464, the Apex Court ruled that the decision is unlawful if it is one to which no reasonable authority could have come.
32. The Constitution Bench of Hon'ble Supreme Court in a case reported in AIR 1991 SC 101; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others had repelled the presumption that person holding high office does not commit wrong. Discretion enjoyed by the persons holding high offices should not be left to the good sense of individuals. Relevant portion from the judgment of Delhi Transport Corporation (supra) is reproduced as under:-
"There is need to minimize the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have 15 a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law..............
25. The "high authority" theory so-called has already been adverted to earlier. Beyond the self-deluding and self-asserting righteous presumption, there is nothing to support it. This theory undoubtedly weighed with some authorities for some time in the past. But its unrealistic pretensions were soon noticed and it was buried without even so much as an ode to it. Even while Shah, J. in his dissenting opinion in Moti Ram Deka v. General Manager, N.E.P. Railways, Maligaon, Pandu, (1964) 5 SCR 683: (AIR 1964 SC 600) had given vent to it, Das Guptam H. in his concurring judgment but dealing with the same point of unguided provisions of Rule 148(3) of the Railways Establishment Code, had not supported that view and had struck down the rule as being violative of Article 14 of the Constitution. The majority did not deal with this point at all and struck down the Rule as being void on account of the discrimination it introduced between railway servants and other government servants."
33. The Supreme Court in 2005(5) SCC 181; State of NCT of Delhi and another v. Sanjeev alias Bittoo upheld the right of judicial review under Article 226 on the basis of illegality in decision making process coupled with irrationally and perversity. While holding that decision is irrational and Court may look into the material on record. (Paragraphs 16, 17 and 21) Hon'ble Supreme Court further held in the case of Sanjeev (supra) that if the administrative or judicial power has been exercised on non-consideration or non-application of mind to relevant factors, such exercise shall stand vitiated. Relevant portion from the judgment of Sanjeev (supra) is reproduced as under:-
16"If the power has been exercised on a non- consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated."
34. In Centre for Public Interest Litigation and another v. Union of India reported in 2005 (8) SCC 202, the Hon'ble Supreme Court reiterated the settled proposition of law that every administrative action should be reasonable and fair. Hon'ble Supreme Court further held that the procedure adopted by the Administrative body should not be only fair but also seems to be just, fair and proper.
35. Hon'ble Supreme Court in a case reported in AIR 1966 SC 81, Dwarka Nath Vs. Income Tax Officer and another while pronouncing the scope of article 226 of constitution of India held as under:-
"para 4. We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the constitution reads:
"........every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or nay of them, for the enforcement of any of the rights conferred by Part III and for any other purpose."
This article is couched in comprehensive phraseology land it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a 17 wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England: but the scope of those writs also is widened by the use of the expression "nature" for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other the prerogative writs. It enables the High courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of th empower of the high court under Art. 226 of the constitution with that of the English courts to issued prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats th purpose of the article itself. To say this I snot to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this court in T.C.Basappa Vs. Nagappa, 1955-1 SCR 250 (AIR 1954 SC 440) and Irani Vs. State of Madras 1962-(2) SCR 169; (AIR 1961 SC 1731)."
36. In the famous Minerva Mills Ltd. Vs. Union of India case reported in AIR 1980 (2) SCC 1789, the Apex Court held that the High Court can substitute its own finding in case an action is found to be wrong. The controversy was relating to Government right to exercise power under Article 352 of the Constitution of India but the Supreme Court had given emphasis to exercise power to preserve the constitutional rights of the people of country. For convenience relevant portion from Minerva Mill case (supra) is reproduced as under:-
"Para 79 Three Articles of our Constitution, and only three stand between the heaven of freedom 18 into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Article 14, 19 and 21. Article 31 C has removed two sides of that golden triangle which affords to the people of this Country an assurance that the promise held forth, by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual."
"para 103 It will be convenient at this stage to consider the question as to whether and if so to what extent, the Court can review the constitutionality of a proclamation of Emergency issued under Art. 352 Cl. (1). There were two objections put forward on behalf of the respondents against the competence of the Court to examine the question of validity of a proclamation of Emergency. One objection was that the question whether a grave emergency exists whereby the security of India or any part thereof is threatened by war or external aggression or internal disturbance is essentially a political question entrusted by the Constitution to the Union Executive and on that account, it is not justiciable before the court. It was urged that having regard to the political nature of the problem, it was not amenable to judicial determination and hence the court must refrain from inquiring into it. The other objection was that in any event by reason of Cls. (4) and (5) of Article 352, the Court had no jurisdiction to question the satisfaction of the President leading to the issue of a proclamation of Emergency or to entertain any question regarding the validity of the Proclamation of Emergency or its continued operation. Both these objections are in view unfounded and they do not bar judicial review of the validity of the Proclamation of Emergency issued by the President under Article 352 Cl. (1). My reasons for saying so are as follows."
"Para 104 .......So long as the question is whether an authority under the constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed it would be its constitutional obligation to do so. I have said before, I repeat again, that the Constitution is suprema lex, the paramount, law of the land, and there is no department or branch of government above or beyond it. Every organ 19 or government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority and whether it has done so or not I for the court to decide. The court is the ultimate interpreter of the Constitution and when there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the court to intervene. Let it not be forgotten, that to this court as much as to other branches of government, is committed the conservation and furtherance of constitutional values. The Court's task is to identify those values in the constitutional plan and to work then into life in the cases that reach the court. "Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too." The Court can not be and should not shirk this responsibility, because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of this country..........................."
37. In a case reported in 1965 SC 1150, Devilal Vs. Sales Tax Officer, Hon'ble Supreme Court held that an application under Article 226 of Constitution of India can not be refused on mere ground that application is not in proper form. The relevant portion from the Apex Court judgment is reproduced as under:-
"There can be no doubt that the fundamental rights guaranteed to the citizens are a significant feature of our Constitution and the High Courts under Article 226 are bound to protect these fundamental rights. There can also be no doubt that if a case is made out for the exercise of its jurisdiction under Article 226 in support of a citizen's fundamental rights, the High court will not hesitate to exercise that jurisdiction."
38. Hon'ble Supreme court in a case reported in AIR 1981 SC 344, Fertiliser Corporation Kamagar Union (Regd.) Sindri and others Vs. Union of India and others, while considering the power under Article 32 as well as 226 of the Constitution of India 20 held that the power under Article 32 can be used only for enforcement of fundamental right but under Article 226 also for 'any other purpose', for convenience relevant portion from Fertiliser's case is reproduced as under:-
"Para 10. Article 32 of the constitution which guarantees by clause (1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, provides by clause (2) that:
"the Supreme Court shall have power to issue direction or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part"
It is manifest that the jurisdiction conferred on this Court by Article 32 can be exercised for the enforcement of the rights conferred by Part III and for no other purpose. Clause (1) as well as Clause (2) of article 32 bring out this point in sharp focus. As contrasted with Article 32, article 226 (1) of the Constitution provides that:
"Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of then, for the enforcement of any of the rights conferred by Part III and for any other purpose."
The difference in the phraseology of the two Articles brings out the marked difference in the nature and purpose of the right conferred by these Article. Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only, the right conferred by article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose."
39. In the case of Union of India versus Vicco Laboratories 21 (2007)218 ELT 647 SC again the Hon'ble Supreme Court reiterated the earlier propositions that alternative remedy is no bar for exercising writ jurisdiction by the courts. Their Lordships held that where a show cause notice is issued either without jurisdiction or in an abuse process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The relevant portion is reproduced as under:
"Normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the concerned authorities and to satisfy the concerned authorities about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule. However, the said rule is not without exceptions. Where a Show Cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out".
40. In the case of Radha Krishan Moorthy(supra), their Lordships of Hon'ble Supreme Court held that while interfering through judicial review, the Court may not go into the truth of allegation /charges except in case they are based on no evidence or charges are vague and not clear.
41. Reliance placed by the learned Addl. Chief Standing Counsel on the case of Upendra Singh(supra) seems to be not applicable under the facts and circumstances of the case. In the case of 22 Upendra Singh (supra), it was the tribunal which interfered with the enquiry on the basis of correctness of charges. Hence, Hon'ble Supreme Court held that it was beyond the jurisdiction of the tribunal which is akin to that of High Court under Article 226 of the Constitution of India to interfere with the charge-sheet. The power of tribunal is restricted statutory power whereas the power of this Court under Art. 226 of the Constitution of India is wider to interfere for "any other purpose".
42. The case of L. Srinivasan(supra) relates to interference by administrative tribunal quashing order of suspension or charge- sheet is not applicable in the present context.
43. The case of Ajit Singh(supra) relates to a situation where Punjab and Haryana High Court has examined the merit of the charges, hence the Hon'ble Supreme Court held that it could not have been done.
44. In the present case, the submission of the petitioner's counsel is with regard to abuse of process of law, mala fide on the part of the State authorities and also a plea has been raised that assuming the allegation on record as correct, it shall not amount to misconduct. It has been vehemently stated that final outcome of the enquiry is well-known fact, hence the Court should exercise extraordinary jurisdiction under Article 226 of the Constitution.
45. The case of Kunisetty Satyanarayana(supra) also relates to different facts and circumstances which does not seem to be applicable in the present case.
JUDICIAL REVIEW
46. Since almost six decades, courts have been following the Wednesbury principle while interfering with the administrative 23 orders through judicial review but keeping in view the moral devaluation in the society as well as the functioning of the government, the Wednesbury's principle (Associated Provincial Picture Houses Limited v. Wednesbury Corp [1948]1 K.B.223) has been further given strength by evolving and adding other grounds for judicial review of administrative action (DE SMITH'S "Judicial Review").
47. Learned author held that the Wednesbury formulation has been challenged in recent orders. Learned author has proceeded to observe as under :
"Apart from its vagueness, the Wednesbury formulation has been challenged in recent years for the reason that it depicts "unreasonableness" as particularly extreme behaviour, such as acting in bad faith, or a decision which is "perverse", or "absurd"- implying that the decision-maker has "taken leave of his senses". In the GCHQ case, in the famous passage where he formulated the "grounds" of judicial review, Lord Diplock preferred to use the term "irrational", which he described as applying to "a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it". This definition is at least candid in its acknowledgement that courts can employ both logic and accepted moral standards as criteria by which to assess official decisions, but it does not assist in elucidating any more specific categories of legally unacceptable substantive decisions. In addition, as has been pointed out, the term irrationality has the drawback that it casts doubt on the mental capacity of the decision-maker, whereas many decisions which fall foul of this ground of review have been coldly rational."
48. Learned author (supra) has considered various grounds for interference through judicial review which includes statutory reasonableness, unreasonable process, violation of common law or constitutional principles, oppressive decisions, inadequate evidence, mistake of fact, mixed question of law and facts, 24 decisions unsupported by substantial evidence, irrational decision etc.
49. While considering oppressive decisions, in De Smith's Judicial Review, learned author observed that the official decisions may be held unreasonable when they are unduly oppressive. To reproduce relevant portion "
"official decisions may be held unreasonable when they are unduly oppressive because they subject the complainant to an excessive hardship or an unnecessarily onerous infringement of his rights or interests. As we shall see, the principle of proportionality directs itself to the evaluation of the permitted degree of infringement of rights or interests. However, whether or not proportionality is expressly applied, this aspect of substantive review is well known to English law. As Laws L.J. has said :
"Clearly a public body may choose to deploy powers it enjoys under statute in so draconian a fashion that the hardship suffered by affected individuals in consequence will justify the court in condemning the exercise as irrational and perverse."
The focus of attention in these cases will be principally the impact of the decision upon the affected person. The outcome or end-product of the decision-making process will thus be assessed, rather than the way the decision was reached (although the factors taken into account in reaching the decision may also be- or may be assumed to be-incorrectly weighed). Since the claim is essentially abuse of power, in the sense of excessive use of power, each case must be considered in the context of the nature of the decision, the function of the particular power and the nature of the interests or rights affected."
50. Hon'ble Supreme Court in some of the recent cases has departed from Wednesbury principle and held that the court while proceeding with judicial review may consider later development of law and pass appropriate order to do complete justice between the parties vide 2008(9)SCC 677 Nikhil Merchant versus CBI.
2551. In a recent case, reported in (2009)9 SCC 610 Babubhai Jamnadas Patel versus State of Gujarat and others, their Lordships of Hon'ble Supreme Court held that appropriate direction may be issued to do complete justice between the parties. It shall be appropriate to reproduce relevant portion :
"46. The courts, and in particular the High Courts and the Supreme Court, are the sentinels of justice and have been vested with extraordinary powers of judicial review and supervision to ensure that the rights of the citizens are duly protected. The courts have to maintain a constant vigil against the inaction of the authorities in discharging their duties and obligations in the interest of the citizens for whom they exist. This Court, as also the High Courts, have had to issue appropriate writs and directions from time to time to ensure that the authorities performed at least such duties as they were required to perform under the various statutes and orders passed by the administration."
52. Democratic polity is founded on the principle that each individual possess equal value and the dignity of a person is important factor to be secured by courts without any discrimination. Baroness Hale in Ghaidan versus Godin-Mendoza [2004]UKHL 30; [2004]2 A.C. 557 observed :
"Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being."
53. The dignity of individual is part and parcel of Art. 21 of the Constitution of India and a person cannot be dealt with shabbily or oppressively in case he discharges his duty bona fidely, honestly as per his own knowledge and skill (2010)3 SCC page 786 Maharashtra University of Health Society versus Satchikitsa Prasarak Mandal Dignity.
54. Hon'ble Supreme Court in a case reported in (2008)3 SCC 26 484 Moni Shankar versus Union of India and another has held that the doctrine of unreasonableness is giving way to doctrine of proportionality propounded by Wednesbury (supra) (para 17).
55. In one another judgment, reported in (2006)3 SCC 173 Commissioner of Police and others versus Syed Hussain, their Lordships of Hon'ble Supreme Court have held that while exercising power of judicial review, the Court may not merely follow the Wednesbury principle but now adjudication involves a full blown merit judgment. To reproduce para 12, to quote;
"Thus, even assuming that a time has come where this Court can develop "administrative law" by following the recent decisions of the House of Lords, we are of the opinion it is not one of such cases where the doctrine of proportionality should be invoked. In 'Ex p Daly' (supra) it was held that the depth of judicial review and the deference due to the administrative discretion vary with the subject matter. It was further stated : (All ER p.447, para 32) "It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd."
As for example in Huang and Ors. v. Secretary of State for the Home Department , referring to R. v. Secretary of State of the Home Department, ex. P. Dale , it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merits judgment, which is yet more than Ex p. Daly requires on a judicial review where the Court has to decide a proportionality issue."
56. In State of U.P. Versus Sheo Shanker Lal Srivastava and others (2006)3 SCC 276, again Hon'ble Supreme Court has held 27 that the judicial review may require full blown merit judgment. The principle involved in Syed Hussain has been reiterated.
57. In another case, reported in (2008)2 SCC 161 Jitendra Kumar and others versus State of Haryana and another, Wednesbury doctrine has been considered and Hon'ble supreme Court held that now it is on terminal decline. Their Lordships of Hon'ble Supreme Court held that the doctrine of unreasonableness is giving way to the doctrine of proportionality (para 63).
58. The Constitution is organic body and it has to cope up the situation with the change of time. While there is fall of morality in public life and arbitrariness in administration is not uncommon, to meet the situation, the Court shall cross the Wednesbury doctrine. Unreasonableness, justness and fairness in action are the grounds to interfere under Art. 226 of the Constitution of India.
59. Apart from this, when an action suffers from mala fide or oppression or bias, the courts may lift the veil to find not only the motive behind action but correctness of the allegations raised against a person.
60. In view of above, since it has been stated that the action of the State Government is oppressive in nature because of mala fide and bias and because of the fact that the petitioner has interrogated and searched the house of Ms. Mayawati (as she then was), and the action taken is in consequence to it, the controversy requires judicial scrutiny and interference under extraordinary remedy of Article 226 of the Constitution of India.
FACTUAL DISCUSSION
61. Shri Pritender Singh, Superintendent of Police in his report of September 1, 2007 (Annexure No.SCA-2 to the supplementary 28 counter affidavit dated 7.4.2010) had charged the petitioner that instead of using vehicles while returning from the place of combat, the petitioner should have taken decision to return through jungle on foot. The reason assigned by the Superintendent of Police is that after killing of their colleague, ordinarily, dacoits take revenge and to meet out such situation, the STF team should not have used the vehicle but should have followed the procedure of "field craft and tactics" marching back on foot. It has been noted by the Superintendent of Police that there is only one connecting road, hence obviously, the ambush was arranged by the dacoits on the said road and this should have been visualised by the petitioner. Because of lack of leadership quality, the petitioner took a decision to return on the vehicles without keeping reasonable distance between one vehicle to other and in consequence thereof, suffered causalities.
62. However, a plain reading of the report of the Superintendent of Police seems to be one sided. There is not even a whisper as to why reinforcement force was not sent to the petitioner to help the petitioner's team whole of the day. Why Shri Brijendra Rai in spite of specific information received from the petitioner and Superintendent of Police, Chitrakoot had not approached the spot with necessary assistance for several hours though he was well in touch on mobile phone ?
63. While filing an affidavit dated 17.12.2009, the petitioner had filed details of call giving statement of facts in para 16 of the affidavit. For convenience, para 16 is reproduced as under :
"That the contents of para 23 of the supplementary counter affidavit are denied as wrong, false and incorrect. It is submitted that the petitioner talked with the authorities deployed in the local area as well as the authorities posted at the headquarter, Lucknow on mobile phone of the police personnel who were members of the team headed by the petitioner and the petitioner also used his own mobile phone. The petitioner/deponent has filed the 29 details of the call before the Apex Court of the relevant day and time and the same is being filed herewith as Annexure No.SA-2 to this affidavit.
It would not be out of place to mention here that the then ADG Sri Shailja Kant Mishra has admitted in writing which is available with the inquiry officer that the petitioner deponent has already informed him and the SSP, STF about the incident."
64. A perusal of Annexure No.SA-2 which contains the details of call shows various calls made on mobile of the petitioner and some of the deceased members of the team and calls received by them from various authorities. It shall be appropriate to reproduce the call detail chart, a copy of which has been filed as Annexure No.SA-2 to the supplementary rejoinder affidavit. To quote :
CALL DETAIL CHART Sl. Phone No. Owner's Phone No. Owner's Date of Time of Call Caller's Listener's No. Name/Caller's name Name/Receiv call call dura cell I.D. cell I.D. er's name tion 1 9415902216 Sh. Amitabh Yas, SSP, 9415903255 Sh.Dhirendra 21.7.07 20.55.48 44 04F551 T.E. STF/Sh. Amitabh Yash Rai,DSP,STF/ 393C8 Chitrakoot Sh Dhirendra CA U.P.E. Rai Markund i 2 9450630889 Late Commando 9415902216 Sh. Amitabh 22.07.07 08/28/49 6 04F455139 Girish Nagar/Sh. Yash/Sh. 3C85C Dhirendra Rai Amitabh Yash Manikpur 3 9450630889 Late Co. Girish 9415902216 Sh. Amitabh 22.07.07 08.34.04 45 04F455139 Naagar/Sh. Dhirendra Yash/Sh. 3C85C Rai Amitabh Yash Manikpur 4 9450630889 Late Co. Girish 9415902216 Sh. Amitabh 22.07.07 22.07.07 19 04F455139 Naagar/Sh. Dhirendra Yash/Sh. 3C85C Rai Amitabh Yash Manikpur 5 9450630889 Late Co. Girish 9415902216 Sh. Amitabh 22.07.07 08.37.38 120 04F455139 Naagar/Sh. Dhirendra Yash/Sh. 3C85C Rai Amitabh Yash Manikpur 6 9415903255 Sh. Dhirendra Rai/Sh. 9415902048 Sh. Shailaja 22.07.07 08.57.04 184 SADAH, Gandhi Dhirendra Rai Kant Mishra, U.P.E. Bhavan, ADG, U.P.E. STF/Shailaja Kant Mishra 30 7 9415904775 Sh. Rishikesh Yadav, 9415903255 Sh. Dhirendra 22.07.07 09/14/13 17 Sadah, Insp. STF/Sh. Rai/Sh. U.P.E. Rishikesh Dhirendra Rai 8 9415904775 Sh. Rishikesh Yadav, 9415903255 Sh. Dhirendra 22.07.07 09/14/43 104 SADAH, Insp. STF/Sh. Rai/Sh. U.P.E. Rishikesh Yadav Dhirendra Rai 9 9415903255 Sh. Dhirendra Rai/Sh. 9415902832 Sh. 22.07.07 13.33.18 50 SADAH, 04F455139 Dhirendra Rai Preetinder U.P.E. 3C85C Singh, SP, Manikpur Chitrakoot/Sh.
Preetinder Singh 10 9415903255 Sh. Dhirendra Rai/Sh. 9415902832 Sh. 22.07.07 13.37.40 44 SADAH, 04F455139 Dhirendra Rai Preetinder U.P.E. 3C85C Singh, SP, Manikpur Chitrakoot/Sh.
Preetinder
Singh
11 9415905209 Sh Shailendra Singh, 9415904408 Sh. Brijendra 22.07.07 14.10.57 8 04F455139
SI, STF/Sh Dhirendra Rai, 3C7A9
Rai Inspector, Karvi
Karvi,
Chitrakoot/Sh.
Brijendra Rai
12 9415905209 Sh Shailendra Singh, 9415904408 Sh. Brijendra 22.07.07 15.12.20 21 04F455139
SI, STF/Sh Dhirendra Rai, 3C7A9
Rai Inspector, Karvi
Karvi,
Chitrakoot
13 9415905209 Sh Shailendra Singh, 9415902048 Sh. Shailaja 22.07.07 15.23.40 193 04F455139
SI, STF/Sh Dhirendra Kant 3C7A9 Te
Rai Mishra/Sh. Karvi-1,
Shailaja Kant U.P.E.
Mishra
14 9415905209 Sh Shailendra Singh, 9415904408 Sh. Brijendra 22.07.07 15.42.55 6 TE KARVI-
SI, STF/Sh Dhirendra Rai, 1 U.P.E.
Rai Inspector,
Karvi,
Chitrakoot
15 9415905209 Sh Shailendra Singh, 9415904408 Sh. Brijendra 22.07.07 15.43.54 1 04F455139
SI, STF/Sh Dhirendra Rai, 3C7A9
Rai Inspector, Karvi
Karvi,
Chitrakoot
16 9415905209 Sh Shailendra Singh, 9415904408 Sh. Brijendra 22.07.07 15.44.16 21 04F455139
31
SI, STF/Sh Dhirendra Rai, 3C7A9
Rai Inspector, Karvi
Karvi,
Chitrakoot
17 9415905209 Sh Shailendra Singh, 9415904408 Sh. Brijendra 22.07.07 15,45,03 226 04F455139
SI, STF/Sh Dhirendra Rai, 3C7A9
Rai Inspector, Karvi
Karvi,
Chitrakoot
18 9415905209 Sh Shailendra Singh, 9415904408 Sh. Brijendra 22.07.07 16.35.07 69 04F455139
SI, STF/Sh Dhirendra Rai, 3C7A9
Rai Inspector, Karvi
Karvi,
Chitrakoot
19 9415902832 Sh. Preetinder 9415903255 Sh. Dhirendra 22.07.07 16.37.07 152 04F455 SADAH,
Singh/Sh. Preetinder Rai/Sh. 1393C7 U.P.E.
Singh Dhirendra Rai A9 TE
KARVI,
U.P.E.
20 9415903255 Sh Shailendra Singh, 9415902832 Sh. 22.07.07 17.21.45 58 SADAH, 04F455139
SI, STF/Sh Dhirendra Preetinder U.P.E. 3C7A9
Rai Singh/Sh. Karvi
Preetinder
Singh
21 9415902111 Sh. Shriram Tripathi, 9415903255 Sh. Dhirendra 22.07.07 17.22.48 309 SADAH,
D.I.G., Chitrakoot Rai/Sh. U.P.E.
Dhirendra Rai
22 9415903255 Sh. Dhirendra Rai/Sh. 9415902832 Sh Preetinder 22.07.07 17.41.30 51 SADAH, TE KARVI-
Dhirendra Rai Singh/Sh. U.P.E. 1 U.P.E.
Preetinder
Singh
23 9415903255 Sh. Dhirendra Rai/Sh. 9415904408 Sh. Brijendra 22.07.07 17.56.02 165 SADAH, TE
Dhirendra Rai Rai, U.P.E. BHARAT ;
Inspector, KOOP,
Karvi, UP.E.
Chitrakoot
24 9415902832 Sh. Preetinder 9415903255 Sh. Dhirendra 22.07.07 18.18.12 51 4F4551 SADAH
Singh/Sh. Preetinder Rai/Sh. 393C7A U.P.E.
Singh Dhirendra Rai 9 TE
KARVI-
1, U.P.E.
25 9415903255 Sh. Dhirendra Rai/Sh. 9415904408 Sh. Brijendra 22.07.07 18.26.22 98 SADAH, TE
Dhirendra Rai Rai, U.P.E. BHARAT
Inspector, KOOP
Karvi,
32
Chitrakoot
26 9415903255 Sh. Dhirendra Rai/Sh. 9415902832 Sh. 22.07.07 20.43.21 55 SADAH, TE HARVI-
Dhirendra Rai Preetinder U.P.E. 1, U.P.E.
Singh/Sh.
Preetinder
Singh
27 9415903255 Sh. Dhirendra Rai/Sh. 9415902832 Sh. 22.07.07 21.15.43 79 SADAH, 04F455139
Dhirendra Rai Preetinder U.P.E. 3C7A9
Singh/Sh. Karvi
Preetinder U.P.E.
Singh
28 9415902732 Sh. Preetinder 9415903255 Sh. Dhirendra 22.07.07 21.36.13 57 4F4551 SADAH,
Singh/Sh. Preetinder Rai/Sh. 393C7A U.P.E.
Singh Dhirendra Rai 9 TE
KARVI-
1, U.P.E.
29 9415904408 Sh.Brijendra Rai, 9415903255 Sh. Dhirendra 22.07.07 21.58.16 105 4F4551 SADAH,
Inspector, Karvi, Rai/Sh. 393C8C U.P.E.
Chitrakoot Dhirendra Rai O
BAGHE
LWARI,
UPE.
These twenty-nine calls speaks volume, whereby the petitioner's cry for help remained futile.
65. It has not been disputed that mobile phones were provided to the petitioner and other authorities by the government. Even the calls were made by the petitioner during the course of encounter with dacoits between 8.00a.m. to 9.15a.m. have not been disputed by the respondents while filing supplementary affidavit dated 25.11.2009, sworn by Shri Prakash Narayan, Deputy Secretary, Home. It is horrible to note that in spite of receipt of call when the encounter was going on, the Senior Superintendent of Police, STF admittedly had not provided any assistance on the pretext of engagement in operation of Daduwa gang. In case he was not in a position to provide back-up to the petitioner's team, then he should have requested to other authorities to send the reinforcement but the same was not done and burden has been shifted to the 33 petitioner's shoulder with regard to causality of six persons who died in the ambush. It shall be appropriate to reproduce relevant portion from para 23 of the affidavit dated 25.11.2009 sworn by the Deputy Secretary, Home.:
"23.................It is further submitted that as per available records, to perform the Government works Mobile No.9415903255 and 9919361685 have been issued to the petitioner. As per call details of the mobile numbers provided to the petitioner, the petitioner has not contacted to the Mobile No.9415902216 which was alloted to the Senior Superintendent of Police, S.T.F. Through the rejoinder affidavit, the petitioner has submitted that he contacted to the Mobile No.9450630889 of the commandos, but said facts are incorrect and baseless.
It is submitted that as per call details of the mobile numbers provided to the petitioner, at 8:24, 8:34, 8:36 and 8:37 A.M. The petitioner has tried to contact to the C.U.G. Of the Senior Superintendent of Police, S.T.F.; however, since he was busy in an operation of Dadua Gang, therefore, he was not in a position to deploy the police force to other points.
It is also significant to submit that petitioner requested to the then Superintendent of Police, Chitrakoot for carrying the dead body of Maiyadeen. The then Superintendent of Police, Chitrakoot send a team of police officials at 3:30 p.m. to support the S.T.F. team; however, the petitioner never demanded extra police force to search the Thokiya Gang of dacoits. Thereafter, after getting the information about operation of Thokia Gang, the then Superintendent of Police, Chitrakoot himself attained the spot with police force, S.O.G. Team and ambulance."
66. While serving the charge-sheet, Shri Ghanshyam Ahirwar, Circle Officer of the area has been mentioned as witness. When a defence was taken by the petitioner that Shri Ghanshyam Ahirwar had not sent any report against the petitioner, the respondents have changed their stand that it was not Shri Ghanshyam Ahirwar but one Shri Akhilesh Narayan Singh has held an enquiry and submitted a report against the petitioner. This shifting of stand has been taken at belated stage during course of hearing of the writ 34 petition while filing supplementary affidavit dated 25.1.2009, by Shri Prakash Narayan Dubey, Secretary, Department of Home.
67. There is one other aspect of the matter which falsifies the entire case set up against the petitioner. Shri Shailja Kant Mishra, who was Addl. Director General of Police, (STF) at the relevant time had made a statement before the enquiry committee on 22.1.2010 that the petitioner had duly informed the authorities with regard to death of Maiyadeen in encounter and the allegation raised against the petitioner is false and not correct. He stated on oath that in spite of information communicated, local police had not arrived to the scene of occurrence and kept the petitioner waiting whole of day. The petitioner along with team members were waiting for assistance from the local police and panchayatnama of dead body of dacoit Maiyadeen but no one turned up though force was available only at a distance of few kilometres. It shall be appropriate to reproduce the statement of Shri Shailjakant Mishra, the then Addl. Director General of Police, STF, a copy of which has been filed as Annexure No.SA-I to the supplementary affidavit dated 1.2.2010 :
''बयान शी शै ल जाकानत िमश , अपर पुि लस
महािनदे श क , उ०प० पावर कारपोरे श न िलिमटे ड ,
लखनउ ।
सशपथ बयान िकया िक मै िदनांक २३ -५-२००७ से
२३-११-२००७ तक एस०टी०एफ० पभारी उ०प०
(अपर पुि लसमहािनदे श क) के पद पर कायर रत रहा हू ं । मे रे दारा पुि लस उपमहािनरीकक, मुर ादाबाद पिरके त मुर ादाबाद को िलिखत पत सं ख या अपुम /पाकािल-
िविवध/२००८-१८०५ िदनांि कत १९-११-२००८ जो मे रे सामने है , व पदशर ख-१ है , पर मे रे हसताकर है व उसमे िलखे गये तथय को मै सवीकार करता हू ं ।
िदनांक २२-७-२००७ को पातः ०९ बजे के लगभग 35 शी धीरे न द राय, पुि लस उपाधीकक, एस०टी०एफ० दारा ठािकया गै ग से एस०टी०एफ० की मुठ भे ड एवं गै ग के सिकय सदसय मै य ादीन के मारे जाने की सूच ना मोबाइल फोन दारा मुझे दी गई थी ।
िदनांक २२-७-२००७ को ततकालीन पुि लस महािनदे श क, उ०प० शी िवकम िसं ह के साथ िदन मे कु खयात दसयु दद ुआ के मारे जाने की सूच ना पर मै है ल ीकापटर से जनपद िचतकू ट गया था और रासते मे मे रे दारा पुि लसमहािनदे श क, उ०प० से ठोिकया गै ग से मुठ भे ड की चचार की गइ थी वे सवतः इस मुठ भे ड की बात से िभज थे । िदन मे ही लगभग १५००बजे शी धीरे न द राय से मे र ी मोबाइल से पुन ः बात हु इ थी ।
िजला पुि लस अधीकक, िचतकू ट को ठोिकया गै ग से एस०टी०एफ० टीम से हु इ मुठ भे ड की बात पता थी इसिलए शी धीरे न द राय के उपर लगाया गया यह आरोप िक िदनांक २२-७-२००७ को ठोिकया गै ग से हु इ एस०टी०एफ० टीम की मुठ भे ड की सूच ना उनके दारा िजला पुि लस को नही दी गइ, गलत है ।
जहां तक मे र ी जानकारी है बावजूद पयारप सूच ना के जनपदीय पुि लस का कोइ बल शी धीरे न द राय के ने त ृत व वाले एस टी एफ बल के साथ मुठ भे ड मे मारे गये डकै त मै य ादीन के शव का पं च ायतनामा करवाने दे र रात तक मौके पर नही गया । पुि लस मुठ भे ड मे मौके पर पं च ायत नामा कराना कानून की ऎसी आवशयकता है िजसे नकारा नही जा सकता । मे र ा मानना है िक यिद समय से िदन मे िजला पुि लस बल मौके पर पहु ं च कर मै य ादीन के शव का पं च ायतनामा दं ० प०सं ० के पावधानो के अधीन मिजसटे ट से करवा ले त ा तो एस०टी०एफ० का दल समय से वापस आ जाता और यह द ुघर टना न होती । शी धीरे न द राय के उपर लगाया गया यह आरोप सही नही है िक उनहोने मै य ादीन की मुठ भे ड के बाद सथानीय पुि लस से समपकर नही िकया ।
वासतिवकता यह है िक सथानीय पुि लस सूच ना के 36 बावजूद घटनासथल पर नही पहु ं च ी और दणड पिकया सं ि हता के पावधानो के तहत मौके पर ततकाल मिजसटे ट से पं च ायतनामा नही कराया िजस कारण शी धीरे न द राय एस०टी०एफ० टीम के साथ पितकू ल पिरिसथितयो मे अनावशयक रप से १५ घं टे तक भीषण जं ग ल मे रहने को बाधय हु ए ।
ठोिकया गै ग से एस०टी०एफ० दल की मुठ भे ड के घटनासथल का िनरीकण भी मे रे दारा घटना के अगले िदन ततकाल पुि लस महािनदे श क, उ०प० शी िवकम िसं ह के साथ हे ल ीकापटर से जाकर िकया गया था । घटनासथल के िनरीकण से सपष था िक दसयु गै ग ठोिकया दारा आकिसमक रप से एमबुश िकये जाने के बाद भी शी धीरे न द राय के ने त ृत व मे एस०टी०एफ० के जवानो ने सवर था पितकू ल पिरिसथितयो मे डकै तो का जम कर मुक ाबला िकया तथा अपने जान की बाजी लगाकर अपने हिथयारो एवं दल के द ू स रे सदसयो की जीवन रका का पयास िकया ।
शी धीरे न द राय के िवरद लगाये गये यह आरोप िक उनहोने कतर वय िशिथलता, अकमर णयता बरती, मे रे िवचार से असतय एवं आधारहीन है । यह पशासिनक दिषकोण से नयायोिचत नही है िक सथानीय पुि लस अिधकारी िजनके समय से घटनासथल पर न पहु ं च ने के कारण एस०टी०एफ० बल जं ग ल मे िघरा रहा , व राित मे दे र से लौटने के कारण दसयु बल दारा एस०टी०एफ० बल एमबुश हु आ, उन सथानीय अिधकािरयो को दोषी न मानकर शी धीरे न द राय को दोषी माना गया ।
शी धीरे न द राय को उक मुठ भे ड के समसत पकरण मे दोषी माना जाना मे रे दिषकोण मे नयायोिचत नही है ।
------------
आरोिपत अिधकारी का पशनः- मै ठोिकया गै ग से 37 िदनांक २२-७-२००७ को एस०टी०एफ० टीम से हु ई दोनो मुठ भे ड ो का पभारी था । एस०टी०एफ० के पभारी अिधकारी के रप मे उक मुठ भे ड ो के िवषय मे मे रे िकसी अपचार को इं ि गत करते हु ए कया को ई मौिखक अथवा िलिखत िशकायत िजला पुि लस के िकसी सतर के अिधकारी अथवा एस०टी०एफ० के िकसी सतर के अिधकारी ने आपसे की थी ।
उतरः- नही । िजला पुि लस अथवा एस०टी०एफ० के िकसी अिधकारी ने कोइ िलिखत अथवा मौिखक िशकायत घटना के िदन से आज तक उक समबनध मे नही की है ।
(शै ल जाकानत िमश) (बदी पसाद िसं ह ) (धीर े न द राय) अपर पुि लस महािनदे श क, पुि लस उपमहािनरीकक/ पुि लस उपाधीकक(िनलं ि बत ) उ०प० पावर कारपोर े श न विरष पुि लस अधीकक, समबद मुख या० पुि लस महािनदे श क िलिमटे ड , शिक भवन,लखनउ मुर ादाबाद उ०प०, लखनउ ।
68. The defence taken by the State while assailing the petitioner's conduct does not seem to be only after thought but also it shows that the persons who are responsible in not providing assistance during the occurrence in question have been tried to be shielded. In the supplementary counter affidavit dated 22.2.2010, Shri Prakash Narain, Deputy Secretary, Home Department submits that the petitioner had requested the Superintendent of Police, Chitrakoot for carrying the body of Maiyadeen and in consequence thereof, a team of police officials were sent at 3.30p.m., to support S.T.F. Team. The petitioner had never demanded extra police force to search Thokiya gang. Such averment on the part of the State is disturbing and seems to have been cooked up in a very irresponsible manner. It shall be appropriate to reproduce relevant portion of para 9 of the affidavit dated 22.2.2010, filed by the State :
38"9.....................It is further submitted that as per available records, to perform the Government works Mobile No.9415903255 and 9919361685 have been issued to the petitioner. As per call details of the mobile numbers provided to the petitioner, the petitioner has not contacted to the Mobile No.9415902216 which was allotted to the Senior Superintendent of Police, S.T.F. It is submitted that as per call details of the mobile numbers provided to the petitioner, at 8:24, 8:34, 8:36 and 8:37 A.M. The petitioner has tried to contact to the C.U.G. Of the Senior Superintendent of Police, S.T.F. However, since he was busy in an operation of Dadua Gang; therefore, he was not in a position to deploy the police force to other points.
It is also significant to submit that petitioner requested to the then Superintendent of Police, Chitrakoot for carrying the dead body of Maiyadeen. The then Superintendent of Police, Chitrakoot send a team of police officials at 3:30p.m. To support the S.T.F. Team; however, the petitioner never demanded extra police force to search the Thokiya Gang of dacoits. Thereafter, after getting the information about operation of Thokia Gang, the then Superintendent of Police, Chitrakoot himself attained the spot with police force, S.O.G. Team and ambulance."
69. For the sake of repetition, we are constraint to observe that while imputing the petitioner's conduct, the State and its authorities had tried to cook up a false case. Once it is admitted that during the course of encounter at 8:24, 8:34, 8:36 and 8:37 A.M., the petitioner contacted Senior Superintendent of Police, S.T.F. for help who denied the same because of engagement to search out 39 Daduwa gang, then at no stretch of imagination, it could be presumed that the petitioner had not requested for any assistance with regard to enforcement or back-up of police to assist his team.
70. The Superintendent of Police, Chitrakoot while sending a team of police at 3.30p.m. with Station House Officer, Karvi has forgotten his responsibility to ensure that whether the team arrived at the spot or not. The repeated requests made to various authorities speak loudly that the petitioner and the members of the team repeatedly have requested for extra police force but the same was not provided. Even the alleged police force sent by the Superintendent of Police, Chitrakoot at 3.30p.m. even after more then six hours of the occurrence had not arrived to the place of encounter and the petitioner's team was forced to come back on their own strength. Virtually, it is failure on the part of the administration in putting the life of S.T.F. Team in danger by not sending additional force in spite of repeated requests made. For two days and night, the members of the team were combing the forest and encountered the dacoits. In such a situation, ordinarily, it is not expected that they should come on foot from jungle area instead of using their vehicle. Affidavits filed on behalf of State containing self-contradictory facts shows concoction and fabrication to persecute the petitioner, may be for extraneous reasons.
MIS-CONDUCT
71. U.P. Government Servant Conduct Rule 1956 ( in short, 1956 Rules) regulate the conduct of government servant employed in connection with the affair of the State of U.P. Rule 3 (1) and 3 (2) provides that every government servant shall at all times maintain absolute integrity and devotion to duty. The government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct 40 which may be in force.
For convenience Rule 3 (1) and 3(2) is reproduced as under:-
"3. General- (1) Every Government servant shall at all times maintain absolute integrity and devotion to duty.
(2) Every Government shall at all timnes conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force."
A plain reading of sub-rule (1) and (2) of Rule 3 of 1956 Rules indicates that every government servant shall maintain at all times integrity and devotion to duty. He or she shall be abide by specific or implied order of the government regulating behaviour and conduct which may be in force.
72. The U.P. Government Servant (Discipline and Appeal) Rules, 1999, in short, 1999 Rules prescribe procedure for taking disciplinary action against the government servant. Under Rule 3, minor and major penalties have been provided. Rule 4 deals with suspension. For convenience, Rule 3 and and relevant portion of rule 4 are reproduced as under :
"3. Penalties.- The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon the Government Servants:-
Minor Penalties-
(I) Censure;
(II) Withholding of increment for a specified
period;
(III) Stoppage at an efficiency bar;
(IV) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence 41 or breach of orders;
(V) Fine in case of persons holding Group 'D' posts;
Provided that the amount of such fine shall in no case exceed twenty-five per cent of the month's pay in which the fine is imposed.
Major Penalties-
(I) Withholding of increments with cumulative effect;
(ii) Reduction to a lower post or grade or time scale or to a lower stage in a time scale;
(iii) Removal from the service which does not disqualify from future employment;
(iv) Dismissal from the service which disqualifies from future employment.
Explanation.- The following shall not amount to penalty within the meaning of this rule, namely :
(I) Withholding of increment of a Government Servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service;
(II) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar;
(III) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation;
(IV) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of the service or the rules and orders governing such 42 probation."
"4. Suspension.- (1) A Government servant against whose conduct an inquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority : Provided that suspension should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty :
Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belonging to Group 'A' and 'B' posts under suspension under this rule :
Provided also that in the case of any Government Servant or class of Government Servants belonging to Group 'C' and 'D' posts, the Appointing Authority may delegate its power under this rule to the next lower authority.
73. Now it is trite in law that while construing an Act, Rule or Regulation each and every word, every line, para should be given meaning and considered in its totality and not in piecemeal vide 2002 (4) SCC 297 Grasim Industries Limited Vs. Collector of Customs; 2003 SCC (1) 410 Easland Combines Vs. CCE; 2006 (5) SCC 745 A.N.Roy Vs. Suresh Sham Singh and 2007 (10) SCC 528 Deewan Singh Vs. Rajendra Prasad Ardevi.
74. According to Maxwell, any construction which may leave without affecting any part of the language of a statute should ordinarily be rejected. Relevant portion from Maxwell on the 43 Interpretation of Statutes (12th edition page 36) is reproduced as under:-
"A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, through extraordinary and perhaps an oversight, could not be eliminated."
75. In AIR 2005 SC 1090, Manik Lal Majumdar and others Vs. Gouranga Chandra Dey and others, Hon'ble Supreme Court reiterated that legislative intent must be found by reading the statute as a whole.
76. In 2006 (2) SCC 670, Vemareddy Kumaraswami Reddy and another Vs. State of Andhra Pradesh, their Lordship of Hon'ble Supreme Court affirmed the principle of construction and when the language of the statute is clear and unambiguous court can not make any addition or subtraction of words.
77. In AIR 2007 SC 2742, M.C.D. Vs. Keemat Rai Gupta and AIR 2007 SC 2625, Mohan Vs. State of Maharashtra, their Lordship of Hon'ble Supreme Court ruled that Court should not add or delete the words in statute. Casus Omisus should not be supplied when the language of the statute is clear and unambiguous.
78. In AIR 2008 SC 1797, Karnataka State Financial Corporation Vs. N. Narasimahaiah and others, Hon'ble Supreme Court held that while construing a statute it can not be extended to a situation not contemplated thereby. Entire statute must be first read as a whole then section by section, phrase by phrase and word by word. While discharging statutory obligation with regard to take action against a person in a particular manner that should be done in the same manner. Interpretation of statute should not depend upon contingency but it should be interpreted from its own word and 44 language used.
79. House of Lord in the case of Johnson Vs. Marshall, sons and Co. Ltd. reported in (1906) AC 409 (HL) where the issue was whether the workmen was guilty of serious and wilful misconduct their Lordships held that burden of proving guilt was on employer. Misconduct is reduced to the breach of rule, from which breach injuries actionable or otherwise could reasonably be anticipated is depend upon each case.
80. In the case of Rasik Lal Vaghaji Bhai Patel vs. Ahmedabad Municipal Corporation reported in (1985) 2 SCC 35, (Para 5) Hon'ble Supreme Court has held that unless either in the certified standing order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and would not be comprehended in any of the enumerated misconduct.
81. In the case of Union of India versus J. Ahmed (1979)2 SCC 286, Hon'ble Supreme Court has held that, deficiency in personal character or personal ability do not constitute misconduct for taking disciplinary proceedings.
82. In the case of A.L. Kalara vs. Project & Equipment Corporation (1984) 3 SCC 316: Hon'ble Supreme court has held that acts of misconduct must be precisely and specifically stated in rules or standing orders and can not be left to be interpreted ex- post facto by the management.
83. The case of Rasik Lal Vaghaji Bhai Patel vs. Ahmedabad Municipal Corporation, (1985) 2 SCC 35, the apex court has held that it is well settled that unless either in the certified standing order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct 45 as misconduct and would not be comprehended in any of the enumerated misconduct. (Para 5)
84. In the case of State of Punjab vs. Ex-Constable Ram Singh (1992) 4 SCC 54, Hon'ble Supreme Court held that the word misconduct though not capable of precise definition as reflection receives its connotation from the context, the delinquency in its effect on the discipline and the nature of duty. It may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour , wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgement, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and context where in the terms occurs; regard being had to the scope of the statute and public purpose it seeks to serve.
85. In the case of G.M. Appellate Authority,Bank of India vs. Mohd. Nizamuddin (2006) 7 SCC 410: Hon'ble Supreme court has held that, it is well settled law that gravity of misconduct has to be measured in terms of the nature of misconduct. (Para 9)
86. In Black's Law Dictionary Seventh Edition, the word, "mis- conduct" has been defined as under :
"misconduct 1. A dereliction of duty; unlawful or improper behavior.
Affirmative misconduct. 1. An affirmative act of misrepresentation or concealment of a material fact; intentional wrongful behavior."
official misconduct. A public officer's corrupt violation of assigned duties by malfeasance, misfeasance, or nonfeasance. - Also termed misconduct in office; misbehavior in office; malconduct in office; misdemeanor in office; corruption in office; official corruption."
"wanton misconduct. An act, or a failure to act when there is a duty to do so, in reckless disregard 46 of another's rights, coupled with the knowledge that injury will probably result.- Also termed wanton and reckless mis-conduct.
Willful misconduct. Misconduct committed voluntarily and intentionally.
"This term of art [willful misconduct] has defied definition, but it is clear that it means something more than negligence. Two classic examples of misconduct which will defeat the seaman's claim are intoxication and venereal disease." Frank L. Maraist, Admiralty in a Nutshell 185-86 (3 ed. 1996)."
87. In Law Lexicon by P Ramanatha Aiyar, mis-conduct has been defined as under :
"Misconduct. A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behaviour, its synonyms are mis-demeanor, misdeed, misbehavior. Delinquency, impropriety, mismanagement, offences, but not negligence or carelessness. Term "misconduct" when applied to act of attorney, implies dishonest act or attempt to persuade court or jury by use of deceptive or reprehensible methods. People v. Sigal, 249 CA 2D 299, 57 Cal Rptr. 541, 549. Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behavior which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Walson v. Brown, La. App., 147 So. 2D 27, 29 (Black).
88. Various meanings have been given of word, "mis-conduct" in the celebrated book, "Words and Phrases" published by West Publishing Company. The definition of mis-conduct in reference to present context is reproduced as under :
"The term "misconduct" implies a wrongful intention, and not a mere error of judgment. Smith v. Cutler, N.Y., 10 Wend. 590, 25 Am.Dec. 580; U.S. v. Warner, 28 Fed. Cas. 404."
"Word "misconduct" has several different meanings;47
it is bad behavior, improper conduct, mismanagement; wrong behavior, wrong conduct; any improper or wrong conduct; in usual parlance, a transgression of some established and definite rule of action, where no discretion is left; except what necessity may demand; it does not necessarily imply corruption or criminal intention, but implies wrongful intention, and not mere error of judgment. Boynton Cab Co. v. Neubeck, 296 N.W. 636, 639, 237 Wis. 249."
89. Thus from the dictionary meaning, the word, "mis-conduct"
implies wrongful intention and not mere error of judgment or bona fide error of judgment on the part of government servant.
90. In a case, reported in State of Punjab versus Ex-Constable Ram Singh (1992) 4 SCC 54, their Lordships of Hon'ble Supreme Court have interpreted the word, "mis-conduct". To reproduce relevant portion from the judgment of Ram Singh (supra), to quote;
"Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful bahaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
91. In another judgment, reported in AIR 2002 SC 1124 Baldev Singh Gandhi versus State of Punjab, their Lordships of Hon'ble Supreme Court had occasion to define the word, "misconduct"
48which is reproduced as under :
"Misconduct has not been defined in the Act. The word "misconduct" is antithesis of the word "conduct". Ordinarily the expression "misconduct"
means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc. Since there are different meanings of that expression, the same has to be construed with reference to the subject and the context wherein it occurs. Regard has to be paid to the aims and objects of the statute."
92. In a case reported in AIR 1979 SC 1022, Union of India Vs. J.Ahmed, their Lordship of Hon'ble Supreme Court held that failure to take any effective preventive measures like error in judgement in evaluating developing situation or failure to visit the scenes of disturbance to perform duty in certain manner are shortcomings in the personal capacity or degree of efficiency. Such allegation of personal quality could not constitute misconduct for the purpose of disciplinary proceedings. To reproduce relevant portion from the judgement of J. Ahmed (supra), which is as under:-
"11. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to beirreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post 513 and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous 49 injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil [see Navinchandra Shakerchand shah v. Manager, Ahmedabad Co-op. Department Stores Ltd.(1)]. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
13. ...It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete inaptitude, lack of foresight, lack of firmness and capacity to take firm decision. These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess. They may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings."
93. The ratio of J.Ahmed (supra) in case taken into consideration then the facts and circumstances and the material on record do not constitute misconduct as the allegation relating to petitioner is lack of leadership qualities though that too seems to be not correct keeping in view the facts and circumstances of the case.
94. In view of above, assuming the contention of the Superintendent of Police, Chitrakoot as correct that the petitioner should have come back along with team members on foot from jungle area not through vehicle, it may be error in decision making process but it shall not constitute mis-conduct under the service rules which may call for disciplinary action under 1999 Rules.
95. There is no material on record which may indicate that the 50 decision taken by the petitioner was with oblique motive, mala fide or for some unreasonable consideration. Rather the action of the petitioner has been upheld by his Head of Department(supra), hence also, the petitioner does not seem to have committed any mis-conduct under the service rules.
SUSPENSION :
96. The next question cropped up as to whether the State should have suspended the petitioner for allegations on record. Rule 4 of 1999 Rules (supra) provides that the suspension shall not be resorted to unless the allegation against the government servant is so serious that in the event of their being established may ordinarily warrant major penalty. There appears to be no element of mis-conduct warranting major penalty.
97. The first proviso to Rule 4 of 1999 Rules makes it obligatory upon the appointing authority, that before resorting the power of suspension, necessary exercise must be done to find out whether the allegations against the Government servant constitute misconduct and is so serious that it shall warrant major penalty. Meaning thereby, there should be effective application of mind by the authorities to record that the allegations against the Government servant shall ordinarily warrant major penalty. In the present case, the original record placed before us, does not indicate any such exercise done by the State Government.
98. Hon'ble Supreme Court in a case reported in AIR 1959 SC 1342 The Management of Hotel Imperial, New Delhi and others Vs. Hotel Workers' Union, has held that power to suspend is the creature of statute or contract and decision be taken keeping in view the letter and spirit of statute.
99. In a case reported in 1974 ALJ 92, State of U.P. Vs. Jai Singh Dixit (Alld.) a Special Bench of Allahabad High Court 51 consisting of five Hon'ble Judges while interpreting the provisions contained in U.P. Punishment and Appeal Rules and power to State Government to suspend a government servant held that "the power of suspension arise when on an objective consideration the appointing authority is of the view that a formal disciplinary inquiry is expected or is proceeding". It has further been held that suspension should not be resorted to unless the allegations against the Government servant are so serious that in the event of their being established, they may ordinarily be expected to warrant his dismissal, removal or reduction. Meaning thereby suspension may be resorted to only in case there is serious misconduct on the part of government servant which may culminate into major penalty after due enquiry.
100. A Division Bench of Allahabad High Court in a case reported in 1997 (31) ALR 605, Ram Dular Tripathi vs. State of U.P. And others while interpreting Rule 49-A (1) of the Civil Services (CCA Rules) deprecated the suspension of government servant on flimsy ground observing that such suspension will have adverse affect on the service which may ultimately affect the working of the government. The principle opined by Hon'ble Five Judges of this Court in the case of Jai Singh Dixit (supra) has been reiterated and followed.
Their Lordship of Allahabad High Court in the case of Ram Dular Tripathi (supra) further held that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension for a government servant. To reproduce relevant portion from the judgement of Ram Dular Tripathi (supra) which is as under:-
"A Government servant can be suspended only if his conduct is such so as to warrant the inquiry under Rule 55 where one of the three major punishments can be imposed. Mere lack of efficiency/skill or failure to attain the highest 52 standards in discharge of duty would not ipso facto constitute misconduct. The suspension of the Government servant on such a ground cannot be sustained."
101. Hon'ble the Supreme Court in the case of State of Orissa versus Bimal Kumar Mohanty reported in 1994(4) SCC 126, has ruled that order of suspension should not be passed as an administrative routine in the mechanical manner. It should be on consideration of gravity of alleged misconduct or the nature of allegations imputed to a delinquent employee. In the case of A. Radha Krishna Moorthy (supra), their lordships of Hon'ble Supreme Court has ruled that disciplinary proceedings should not be initiated on vague charges. The charge should be clear and specific according to service rules and not of general nature. In the case of K. Sunkhendar Reddy (supra), the Hon'ble Supreme Court deprecated the practice of passing selective orders of suspension.
102. Prof. Wade in his famous treatise, "Administrative Law" Ninth Edition, after discussing the law on the subject, has observed that the court will not accept the indiscriminate use of a power where cases ought to be considered on their own merits. The learned author further observed that the discretionary authority does not have got unfettered discretion.
103. The Hon'ble Supreme Court in the case reported in AIR 1998 SC 477, Amarnath Ashram Trust Society Vs. Governor of U.P., has held that discretion of the Government cannot be absolute and unjusticiable. The same principle has been affirmed in 1993(3) SCC 634, Hansraj H. Jain Vs. State of Maharastra and others; AIR 1979 SC 1628: Ramana Dayaram Shetty Vs. International Airport Authority of India and others and in catena of other judgments of Hon'ble the Supreme Court. The Hon'ble Supreme Court from time to time has cautioned the Government not to 53 demoralise the bureaucracy by arbitrary use of power.
FABRICATION/MANIPULATION OF RECORD AND FALSITY OF CHARGES/ALLEGATIONS
104. The allegation against the petitioner more or less based on the letter dated 1.9.2007, sent by the Superintendent of Police, Chitrakoot. In the said letter, a finding has been recorded on the basis of case diary No.22 dated 01.9.2007 filed with the supplementary counter affidavit of the respondents sworn on 7.4.2010. It has been stated that the charge-sheet No.221/2007 dated 1.9.2007 was filed against the accused Thokia alias Ambika Patel and Deepak alias Avdhesh Patel. Copy of the charge-sheet No.221 dated 1.9.2007 has been annexed as Annexure No.SA-6 to the supplementary affidavit dated 5.4.2010 filed by the petitioner.
105. A perusal of the charge-sheet reveals that it does not relate to accused Thokia alias Ambika Patel and Deepak alias Avdhesh Patel. It relates to the accused, namely Anis Ahmad, Kalyan Singh Patel and Ram Prasad Vishwakarma. Thus, the letter dated 1.9.2007 sent by the Superintendent of Police recommending action against the petitioner is at the face of record based on unfounded facts. The date of occurrence has also been corrected by ink pen from 22.2.2007 to 22.7.2007. It appears that the Superintendent of Police, Chitrakoot had not acted with responsibility to place correct facts while forwarding the letter dated 1.9.2007.
106. In the report dated 1.9.2007 of the Circle Officer, City, Chitrakoot, the date of occurrence has been corrected and converted from 22.2.2007 to 22.7.2007. Fluid seems to have been used and the word, "Kshetradhikari, Nagar" has been substituted by, "Prabhari Nirikshak, Karvi".
107. The alleged report of the Circle Officer, City dated 1.9.2007 54 contains a reference with regard to the report of the Investigating Officer/Station House Officer, Karvi but the case diary filed with the supplementary affidavit dated 7.4.2010 (Annexure No.SCA-4) does not reveal existence of such report.
Things seem to have been managed against the petitioner by interpolation of records.
108. In the charge-sheet dated 26.5.2008, Shri Ghanshyam Ahirwar, Circle Officer, City, Chitrakoot has been mentioned as witness to prove the allegations. It has been stated that during the course of enquiry, the petitioner had demanded the report of Shri Ghanshyam Ahirwar. In response to which, the Superintendent of Police, Chitrakoot, vide his letter dated 6.8.2008, directed Shri Ghanshyam Ahirwar to send his report. Shri Ghanshyam Ahirwar by FAX message dated 6.8.2008 had informed that he had not conducted any preliminary enquiry. Copy of the FAX message of Shri Ghanshyam Ahirwar has been filed as Annexure No.RA-2 to the petitioner's affidavit dated 26.11.2008.
This is an additional material which shows the temptation on the part of the State Government to prosecute and punish the petitioner.
109. During the course of enquiry, Shri Brijendra Rai, Station House Officer, Karvi admitted before the enquiry officer that whatever allegation has been raised by him against the petitioner is in pursuance to the direction issued by the higher authorities, i.e. by the Superintendent of Police and the Deputy Inspector General of Police, Chitrakoot. The petitioner has specifically pleaded in paragraph 38 of the rejoinder affidavit dated 26.11.2008 which has not been denied by filing supplementary counter affidavit dated 25.11.2009(para 30 of the supplementary counter affidavit).
110. In the supplementary affidavit dated 5.4.2010, under para 10A to 10K, the petitioner has categorically stated that on 1.9.2007, 55 C.D. No.22 along with charge-sheet No.221 dated 1.9.2007 was not in existence to facilitate the Superintendent of Police, Chitrakoot to write the letter which became foundation to proceed against the petitioner. While filing supplementary counter affidavit sworn on 29.4.2010, the Deputy Home Secretary has not denied this fact. The non-existence of the charge-sheet dated 1.9.2007 has been virtually accepted in para 8 of the supplementary counter affidavit dated 29.4.2010 filed by the State.
111. In the supplementary affidavit dated 5.4.2010, the petitioner has categorically stated that C.D. No.22 along with the charge- sheet No.221/2007 was received in the office of the Circle Officer, Chitrakoot on 24.9.2007. The supplementary charge-sheet of case crime No.326 to 329 of 2007 dated 1.10.2007 has also been filed as Annexure No. SA-5 to the supplementary affidavit dated 5.4.2010.
Since the charge-sheet as well as the C.D. was received on 24.9.2007, there was no occasion for the Superintendent of Police, Chitrakoot to send the letter dated 1.9.2007 condemning the petitioner's conduct on the basis of these reports which was not in the office of the Circle Officer or the Superintendent of Police, Chitrakoot on 1.9.2007.
112. The charge-sheet does not contain relevant material with regard to encounter in question as well as the telephonic calls between the petitioner and other authorities requesting to send back-up or reinforcement team. The letter of the Superintendent of Police, Chitrakoot dated 26.7.2007 (Annexure No.RA-1) also negates the prosecution version.
113. The magisterial enquiry has not been relied upon while framing the charges against the petitioner which more or less shows how the petitioner and his team had fought with the dacoits without any help in spite of demand raised.
56114. In view of above, the overwhelming evidence on record shows that the authorities have taken decision to charge the petitioner on unfounded grounds by fabrication of records suffering from bias - may be for political or other unforeseen reasons.
115. It is unfortunate that the State of U.P. has acted in a very high-handedness manner to charge the petitioner by cooking false case by fabricating the record. A person who was awarded President Medal has been charged because of his honesty and uprightness in discharging his duty.
116. Virtually a fraud has been committed deliberately to initiate disciplinary proceedings against the petitioner. According to Black's Law Dictionary, 'fraud' has been defined as under :
"fraud, n. 1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is usu. A tort, but in some cases (esp. when the conduct is willful) it may be a crime.
2. A misrepresentation made recklessly without belief in its truth to induce another person to act. 3. A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. 4. Unconscionable dealing; esp., in contract law, the unconscientious use of the power arising out of the parties' relative positions and resulting in an unconscionable bargain. - fraudulent, adj."
117. In Law Lexicon by P. Ramanatha Aiyar, in the present context, the definition of word, 'fraud' is as under :
"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive 57 another party thereto or his agent, or to induce him to enter into the contract :(1) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent.
Explanation.- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is in itself, equivalent to speech. [Act IX of 1872 (Contract) S. 17.]"
"The word "fraud" as used in the Penal Code is used in its ordinary and popular acceptation; a man who deliberately makes a false document with false signatures in order to shield and conceal an already perpetrated fraud is himself acting with intent to commit fraud within the S. 463, Penal Code. [15 Bom LR 708=14 CrLJ 518=20 IC 928 (1001). See also 13 Bom. 515; 1 Weir 554]."
118. While considering the fraud committed by persons holding high offices, their Lordships of Hon'ble Supreme Court in a case reported in 1987(1) SCC 227 Shivajirao Nilangekar Patil versus Dr. Mahes Madhav Gosavi and others observed that the things in public life are happening otherwise which were never anticipated before and there are glaring instances of misuse of power by authority in position. Hence the courts are bound to take judicial notice of the State action even on the ground of commission of fraud or alike allegations but that should be done after close scrutiny of the allegations in a cautious manner. To reproduce relevant portion from the judgment of Shivajirao Nilangekar Patil (supra), to quote:-
37. The allegations of the petitioner have been noted about the role of the Chief Minister. It is well to remember that Rajagopala Ayyangar, J. Speaking for this Court in C.S. Rowjee and Ors., v. Andhra Pradesh State Road Transport Corporation observed at page 347 of the report that where allegations of this nature were made, the court must be cautious. It is true that 58 allegation of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. This Court made these observations as early as 1964. It is more true today than ever before. But it has to be borne in mind that things are happening in public life which were never even anticipated before and there are several glaring instances of misuse of power by men in authority and position. This is a phenomenon of which the courts are bound to take judicial notice. In the said decision the court noted that it is possible to decide a matter of probabilities and of the inference to be drawn from all circumstances on which no direct evidence could be adduced. The court further noted that it was somewhat unfortunate that allegations of mala fide which could have no foundation in fact were made and several cases which had come up before this Court and other courts and it had been found that these were made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of which might at least stick. It is therefore the duty of the courts, warned this Court in the said decision, to scrutinize these allegations with care so as to avoid being in any manner influenced by them in cases where they have no foundation in fact."
119. Hon'ble Supreme Court in a case reported in 2003(8) SCC 311 Ram Preeti Yadav versus U.P. Board of High School and Intermediate Education and others observed with regard to fraud as under :
"13. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by words or letter. Although negligence is not fraud but it can be evidence on fraud.
14. In Lazarus, Estate v. Berly the Court of Appeal stated the law thus:
"I cannot accede to this argument for a moment "no Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything". The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever."
15. In S.P. Chengalvaraya Naidu v. Jagannath, this 59 Court stated that fraud avoids all judicial acts, ecclesiastical or temporal."
120. In another case reported in 2003(8)SCC 319 Ram Candra Singh versus Savitri Devi and others, their Lordships of Hon'ble Supreme Court observed as under :
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would, render the transaction void ab initio. Fraud and deception are synonymous.
33. Once it is held that a judgment and decree has been obtained by practising fraud on the court it is trite that the principles of res-judicata shall not apply. The High Court, therefore, in our opinion committed a serious error in referring to the earlier orders passed by it so as to shut the doors of justice on the face of appellant for all time to come. We, therefore, are of the opinion that the impugned judgment dated 10.12.1998 cannot be sustained."
121. In a case reported in (2005)8 SCC 283 Lily Kutty 60 versus Scrutiny Committee, SC&ST, their Lordships of Hon'ble Supreme Court observed that commission of fraud shall be subversive to Constitution and fraudulent act shall not be encouraged by the Court.
122. In Baburao Dagdu Paralkar versus State of Maharastra (2005)7 SCC 605, their Lordships of Hon'ble Supreme Court held that fraud may be committed expecting advantage of from ill-will towards other. It is an act of deliberate deception. It is a deception in order to gain by another's loss. It is cheating for some advantage (paras 9 and
10).
123. In (2006)5 SCC 353 Prem Singh versus Birbal, Hon'ble Supreme Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of document is voidable.
124. In A.V. Papayya Sastry versus Government of Andhra Pradesh (2007)4 SCC 221, Hon'ble Supreme Court ruled that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity. It can be challenged at any time in a writ petition or appeal or revision or even in collateral proceedings.
125. The aforesaid proposition of law has been reiterated by the Hon'ble Supreme Court in the case reported in 2008(13)SCC 170, 2008(2)SCC 383 State of Andhra Pradesh versus A.S. Peter and 2008(8) SCC 54.
61126. The facts, circumstances and the material on record reveals that deliberately and consciously, the State or its authorities have committed fraud by cooking up a false case to persecute the petitioner on unfounded ground while initiating disciplinary proceedings.
MALAFIDE/BIAS
127. While assailing the order of suspension passed in contemplation of departmental enquiry as well as charge-sheet, the petitioner has stated that the disciplinary proceedings have been initiated because of bias. Even if the charges are correct, they shall not make out a case of mis-conduct. So far as the mis- conduct is concerned, it has been dealt with in preceding paragraphs of this judgment.
The question cropped up is whether the impugned action has been taken on account of bias or mala fide ?
128. As per government legal glossary the word 'bias' means;
" a one sided inclination of mind, any special influence that sways the mind".
As per law lexicon by P. Ram Nath Aiyer the word 'bias' means;
"leaning of mind: prepossession: inclination:
propensity towards an object, bent of mind a mental power, which sways the judgment: that which sways the mind toward one opinion rather than another; as, bias of arbitrator, of judge, or jury or witness".
129. In the case of Secretary to Government, Transport Department Vs Munuswamy Mudaliar, 1988 Supp. SCC 651, 62 the Hon'ble Supreme Court has defined the word 'bias' "as predisposition to decide for or against one party without proper regard to the true merits of the dispute". Going through the meaning of bias mentioned above, it is borne out that the bias means inclination or leaning of mind of Judge or Inquiry Officer in favour or against any person which sways his mind to form an opinion on the point in issue before him.
130. In the case of Ratan Lal Sharma Vs Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others, reported in (1993) 4 Supreme Court Case, Page 10, the Hon'ble Supreme Court has classified three kinds of bias namely,
(i) personal bias (ii) pecuniary bias and (iii) official bias. The present case relates to the personal bias as well as official bias because of political pressure.
131. In case of Ratan Lal Sharma(supra), Hon'ble Supreme Court has held that in case the inquiry is challenged on the ground of bias and malafidies, the petitioner is required to establish the real likelihood of bias not the likelihood of bias. The Hon'ble Supreme Court in this case has considered a number of its earlier judgments on the points in issue. The Hon'ble Supreme Court has relied on R.V. Sussex Justices, 1924 (1) KB. 256, wherein it has been held that "answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done".
132. The Hon'ble Supreme Court also relied on Halsbury's Laws of England, 4th Edn., Vol.2, para 551 in its judgment wherein it has been indicated that "the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances would feel a serious apprehension of bias".
133. The same principle had been laid down by the Hon'ble 63 Supreme Court in Manak Lal Vs Dr. Prem Chand, 1957, SCR 575 in which it has been held that "the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done".
134. In the case of Cantonment Executive Officer and others Vs Vijay Deewani and others (2008) 12, Supreme Court Cases, page 203, Hon'ble Supreme Court has held that "question of bias is always question of fact. The court has to be vigilant while applying the principle of bias as it primarily depends upon the facts of each case, the court should only act on the real bias and not merely likelihood of bias."
135. In case of Union of India and others Vs Prakash Kumar Tandon reported in (2009) 2 Supreme Court Cases 541 the Hon'ble Supreme Court found that the raid against the respondent was conducted by the vigilance department and the Chief of the vigilance department was appointed as Inquiry Officer. Keeping in view of this fact Hon'ble Supreme Court held that the inquiry was not fair. The appointment of Chief of vigilance department as Inquiry Officer should have been avoided. The Tribunal as well as High Court held the inquiry to be vitiated. The Hon'ble Apex Court confirmed the judgment of the High Court. In view of above, it is settled that the Inquiry Officer should be fair and impartial. It is not necessary that he would have been witness in the inquiry or he would have in any way interested in the subject matter of the inquiry. If the Inquiry Officer has prejudices against the employee, he cannot be said to be fair and impartial. The bias of Inquiry Officer may not relate to subject under inquiry. It may relate to different matter too which really causes apprehension that charged person will not get justice from him.
64136. Hon'ble Supreme Court in the case of State of Punjab Vs. V.K. Khanna & others: (2001) 2 SCC 330, has examined the issue of bias and mala fide and observed as under:
"Whereas fairness is synonymous with reasonableness-- bias stands included within the attributes and broader purview of the word 'malice' which in common acceptation means and implies 'spite' or 'ill will'. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice... In almost all legal inquiries, 'intention as distinguished from motive is the all-important factor' and in a common parlance a malicious act stands equated with an intentional act without just cause or excuse." (Emphasis added)."
137. Apart from the above, it appears that the authorities have acted maliciously to abuse the process of law. The State is under obligation to act fairly without ill will or malice-- in facts or in law.
"Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object mala fide exercise of powers does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide Jaichand Lal Sethia Vs. The State of West Bengal & Others, AIR 1967 SC 483; A.D.M. 65 Jabalpur Vs. Shiv Kant Shukla, AIR 1976 SC 1207; State of A.P. Vs. Goverdhanlal Pitti, AIR 2003 SC 1941).
138. Passing an order for unauthorised purpose constitute malice in law. (Vide Punjab State Electricity Ltd. Vs. Nora Singh, (2005) 6 SCC 776; and Union of India Vs. V. Ramakrishnan, (2005) 8 SCC 394).
139. In the constituent assembly debate with regard to bureaucracy in India, Dr. B.R. Ambedkar had persuaded to prefer British system of bureaucracy, over and above the spoiled system existing in America at that time. Lord Denning had appreciated the work of members of Indian Civil Service because of their honesty, knowledge and highest degree of integrity. But it appears that in post independent India, the bureaucracy is gradually falling in standard with regard to honesty, independence and commitment to job expected from them and their action is influenced by political masters. Present case is an example.
140. Prof. H.W.R. Wade in his famous treatise "Administrative Law" (fifth edition page 58-59) had observed that it is expected from the bureaucracy to possess high degree of detachment from the party politics and publicity. The learned author proceeded to observe as under:
"The civil servant thus achieves a very high degree of self-effacement, and although he is bound to be much concerned with questions of policy as well as with administration, he is insulated from the effects of political controversy. Working in this atmosphere of detachment, he can give his services to a government of any complexion with impartiality--- or at least with the greatest degree of impartiality that it is reasonable to ask of a human being."
141. De Smith, Woolf and Jowell in their famous treatise, "Judicial 66 Review of Administrative Action", (fifth edition page 521) while defining the scope of the rule against bias and its content, observed that there are three requirement of public law to quote:-
"The first seeks accuracy in public decision-making and the second seeks the absence of prejudice or partiality on the part of the decision-maker. An accurate decision is more likely to be achieved by a decision-maker who is in fact impartial or disinterested in the outcome of the decision and who puts aside any personal prejudices. The third requirement is for public confidence in the decision- making process. Even though the decision-maker may in fact be scrupulously impartial, the appearance of bias can itself call into question the legitimacy of the decision-making process. In general, the rule against bias looks to the appearance or risk of bias rather than bias in fact, in order to ensure that "justice should not only be done, but should manifestly and undoubtedly be seen to be done."
142. The Hon'ble Supreme Court in the case of O. P. Gupta versus Union of India and others 1987(4) SCC 328, has ruled, to quote:--
"The public interest in maintaining the efficiency of the services requires that civil servants should not be unfairly dealt with."
In view of above, the order of suspension in contemplation of enquiry passed by the respondents State seems to be an act of non-application of mind based on no material.
143. Though the petitioner had charged Ms. Mayawati, Chief Minister of State who is alleged to have actuated the proceeding, but as submitted by Shri H.P. Srivastava, no finding can be recorded against her, since she has not been made party.
The proceedings initiated may safely be inferred biased and suffers from malice in law.
67HIGH AUTHORITY THEORY
144. It was vehemently argued by learned Chief Standing counsel that no inference of malice or fraud can be drawn against the government or its officers being decision taken at higher level. Submission of learned Additional Chief Standing counsel would have been correct before 5,6 decades or little earlier. Much waters have flown from the rivers of the country diluting the moral standard. Dr. Ambedkar was of the view that social and constitutionally morality are necessary ingredients of the democratic politics which seems to be missing.
145. We are conscious of the fact that the petitioner has attributed malafide on the part of state authorities and even Chief Minister of the State. However, no finding can be recorded since she has not been made party. However, this court is not precluded to record finding with regard to malice in law or commission of fraud while initiating departmental proceeding and that we have done.
146. It is borne in mind that charges of personal hostility are easily and very often made by persons who are subjected to penal or quasi penal proceeding against those who initiate them hence pleadings and material on record should be examined with close scrutiny which we have done (supra) while recording the finding.
147. In a case reported in AIR 1964 SC 72, S. Pratap Singh Vs. State of Punjab where allegations were raised against the Chief Minister of State while initiating disciplinary proceeding their Lordship of Hon'ble Supreme Court instead of throwing the petitioner's case under the presumption of correctness at higher level scrutinised the evidence and material placed by the petitioner and decided the case. Their Lordships in the case of S.Pratap Singh (supra) have observed as under:-
"The Constitution enshrines and guarantees the 68 rule of law and Art. 226 is designed to ensure that each and every authority in the State, including the Government, acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its Jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual. It is with these considerations in mind that we approach the facts of this case."
148. In one another case reported in C.S.Rawjee & Ors. v. Andhra Pradesh State Road Transport Corporation, [1964] 2 SCR 330, Hon'ble Supreme Court had cautious that when allegation is raised against the higher authorities court should be cautious while scrutinising the related material.
149. In 1987 AIR 294, Shivajirao Nilangekar Patil Vs. Dr. Mahesh Madhav Gosavi and others where allegation was raised against the higher authorities and role of Chief Minister was also in question Hon'ble Supreme Court reiterating the principle enunciated by C.S.Rawjee (supra) observed that court should be cautious to deal with the allegations of mala fide or cast aspirations on holders of high office and power but the court cannot ignore the probabilities arising from proven circumstances. It shall be appropriate to reproduce relevant portion from the judgement of Shivajirao Nilangekar Patil (supra) as under:-
"It is true that allegation of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. This Court made these observations as early as 1964. It is more true today than ever before. But it has to be borne in mind that things are happening in public life which were never even anticipated before and there are several glaring instances of misuse of power by men in authority and position. This is a phenomenon of which the courts are bound to take judicial notice. In the said decision the court noted that it is possible to decide a matter of probabilities and of the inference to be drawn from all circumstances on which no direct evidence 69 could be adduced..... Therefore, while the court should be conscious to deal with the allegations of malafide or cast aspirations on holders of high office and power,the court cannot ignore the probabilities arising from proven circumstances.
150. In a case reported in 1997 (6) SCC 169, Shri Arvind Dattatraya Dhande Vs. State Of Maharashtra and other, Hon'ble Supreme court held that there is unimpeachable and eloquent testimony of the performance of the duties of higher authorities courts should not shirk from his responsibility to protect the Government officers. It was further observed that when the power exercised malafide it tends to demoralise the honest officer who efficiently discharges the duty of public office.
151. A Constitution Bench of Hon'ble Supreme Court in a case reported in AIR 1991 SC 101, DELHI TRANSPORT CORPORATION Vs.D.T.C. MAZDOOR CONGRESS, had reiterated the aforesaid proposition and observed that arbitrary unbridled and naked power of wide discretion used by the government tend to defeat the constitutional purpose. Court should take into the actualities of life. It has further been observed that sincere, honest and defeated subordinate officers are unlikely lick the boots of the corrupt superior officer and they become inconvenient for their superiors and tends to spoil the career of the honest, sincere and devoted officers. Their Lordship observed that one should circumspect, pragmatic and realistic to these actualities of life to reproduce relevant portion, which is as under :-
"How to angulate the effect of termination of service Law is a social engineering to remove the existing irabalance and to further the progress, serving the needs of the Socialist Democratic Bharat under rule of law. The prevailing social conditions and of life are to be taken into account to adjudging whether the impugned legislation would subserve the purpose of the society. The arbitrary, unbriddled and naked power of wide discretion to dismiss a permanent employee without any guidelines or procedure would tend to defeat the constitutional purpose of equality and allied 70 purposes referred to above. Courts would take note of actualities of life that persons actuated to corrupt practices are capable, to maneuver with higher echolons in diverse ways and also camouflage their activities by becoming sycophants or chronies to the superior officers. Sincere, honest and devoted subordinate officer unlikely to lick the boots of the corrupt superior officer. They develop a sense of self-pride for their honesty, integrity and apathy and inertia towards the corrupt and tent to undermine or show signs of disrespect or disregard towards them. Thereby, they not only become inconvenient to the corrupt officer but also stand an impediment to the on- going smooth sipbony of corruption at a grave risk to their prospects in career or even to their tenure of office. The term efficiency is an elusive and relative one to the adept capable to be applied in diverse circumstances. if a superior officer develops likes towards sycophant, though corrupt, he would tolerate him and found him to be efficient and pay encomiums and corruption in such eases stand no impediment. When he finds a sincere, devoted and honest officer to be inconvenient, it is easy to cast him/her off by writing confidential with delightfully vague language imputing to be 'not upto the mark', 'wanting public relations' etc. Yet times they may be termed to be "security risk" (to their activities). Thus they spoil the career of the honest, sincere and devoted officers. Instances either way are gallore in this regard. Therefore,one would be circumspect, pragmatic and realistic to these of life while angulating constitutional validity of wide arbitrary, uncanalised and unbriddled discretionary power of dismissal vested in an appropriate authority either by a statute or a statutory rule. Vesting arbitrary power would be a feeding ground for nepotism and insolence; instead of subserving the constitutional purpose, it would defeat the very object, in particular, when the tribe of officers of honesty, integrity and devotion are struggling under despondence to continue to maintain honesty, integrity and devotion to the duty, in particular, when moral values and ethical standards are fast corroding in all walks of life including public services as well. It is but the need and imperative of the society to pat on the back of those band of honest, hard-working officers of integrity and devotion to duty. It is the society's interest to accord such officers security of service and avenues of promotion."
152. With regard to presumption of fairness on the part of higher 71 authorities Hon'ble Supreme Court again proceeded to observe (supra) that theory of higher authorities is unrealistic and has been buried keeping in view the present scenario.
"The "high authority" theory so-called has already been adverted to earlier. Beyond the self-
deluding and self-asserting righteous
presumption, there is nothing to support it.
This theory undoubtedly weighed with some authorities for some time in the past. But its unrealistic pretensions were soon noticed and it was buried without even so much as an ode to it."
153. Transparency International India places our country at Serial No.84 in the list of corrupt countries. Substantial number of persons throughout country holding high offices like Cabinet Minister, Chairman of the Corporation and other bodies have got criminal antecedents. Warren Anderson, the main accused involved in the Bhopal disaster occurred on 2/3.12.1984 was arrested on 7.12.1984, released on personal bond and sent to Delhi in State plane to fly for America. This could not have been possible without the meeting of mind at higher level.
154. Criminalisation of politics now is a known event in this country. According to the news item published in Rastriya Sahara dated July 6, 2010, the State Minister of the State of U.P. Shri Ratan Lal and his two sons have been punished to undergo for imprisonment for one year by the Chief Judicial Magistrate, Shivpuri, Madhya Pradesh on account of possession of unauthorised arms. Against some other ministers/legislatures, criminal cases are alleged to be pending. The former Chief Minister of Jharkhand is involved in misappropriation of government fund which is alleged to be more than Rs.4000 crore. According to the newspaper reports, the Minister of another State is involved in illegal mining work. Charge-sheet has been filed against some of the Hon'ble Judges of this Court in Ghaziabad P.F. Scam case. In such situation, country does not seem to be ready to extend favour 72 to persons holding high offices by applying the principle of high authority and power of judicial review cannot be restricted or narrowed down on this presumptive ground.
155. Justice V.R. Krishna Iyer, a former Judge of Hon'ble Supreme Court showing his astonishment in an article, published in newspaper, " The Hindu" on 14.6.2010 observed as under :
"The mass slaughter that occurred in Bhopal on December 2, 1984 was the consequence of an American multinational corporation dealing with Indian lives in a cavalier manner. Some 20,000 people were "gassassinated." Yet, after 26 years of trial, the culprits get two years of rigorous imprisonment as punishment. Such a thing can happen only in bedlam Bharat."
A country "Bharat" where such things happen and morality in personal and public life is at its lowest ebb, respect to rule of law deteriorating speedily, invoking of "High Authority Theory" to defend the action of the State shall cause irreparable loss and injury to the country resulting in chaos in society in due course of time.
156. In a recent judgement reported in JT 2010 (4) SC 478, S.Khushboo Vs. Kanniammal and another, their Lordship reiterated the well settled proposition of law that it is paramount duty of superior court to say that the person who is innocent at the face of record should not be persecuted and while doing so court may adjudicate the disputed question of law and fact to check the abuse of power, to reproduce relevant portion:-
"It was further observed that superior courts "may examine the questions of fact" when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice. In Shakson Belthissor v. State of Kerala and another.[JT 2009 (8) SC 617: 2009 (14) SCC 73 466], this court relied on earlier precedents to clarify that a High Court while exercising its inherent jurisdiction should not interfere with a genuine complain but it should certainly not hesitate to intervene in appropriate cases. In fact it was observed:
"one of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint."
157. According to Legal Maxims, "Acts Exteriora indicant interiors secrets." i.e., act indicate the intention, is applicable in the present case with full vigour. In Broom's Legal Maxims (Tenth Edition: Page
200) it has been discussed as under:
"The law, in some cases, judges of a man's previous intentions by his subsequent acts; and, on this principle, it was resolved in a well-known case, that if a man abuse an authority given him by the law, he becomes a trespasser ab initio."
158. In view of above submission of learned Additional Chief Standing counsel does not seem to carry weight more so when from the discussion made (supra) petitioner seems to has been persecuted and charged for misconduct on the basis of frivolous documents. Action should have been taken against the authorities who could not sent additional force in time to assist the petitioner. Decision to take disciplinary action against petitioner is unfortunate and shows that bureaucracy had lost its flavour to tender correct and firm advise to the government in the State of U.P. to maintain rule of law.
FINDING
159. From the pleading, evidence and material discussed in the preceding paras it appears that the petitioner as the member of team of CBI had searched the premises of Ms. Mayawati as she then was (now Chief Minister of the State of U.P.) and also 74 interrogated her. There is no factual denial on the part of respondent while filing affidavit. However, learned counsel for the petitioner during the course of argument stated that he does not dare to implead Ms. Mayawati as respondent in the present writ petition, hence, no malafide may be attributed to the Chief Minister of the State without complying with the principle of natural justice. However, from the material on record, action against the petitioner seems to suffer from malice in law being based on no evidence or the evidence which does not constitute misconduct and also based on records which seems to have been fabricated.
160. In view of above, to sum up the finding:-
(I) Solitary allegation against the petitioner seems to be based on the decision taken to return on vehicle instead of adopting the procedure of "field craft and tactics". Assuming allegation is correct there may be error of judgement but it does not seem to constitute misconduct.
(II) Records have been fabricated by the authorities to initiate the disciplinary proceeding against the petitioner. Fraud has been committed to create evidence. Because of commission of fraud entire action vitiates.
(III) Petitioner, right from time of encounter with dacoits (8.15 am to 9.15 am) and thereafter, informed the authorities to send the reinforcement or backup but no assistance was provided. Though Dr. Pritender Singh, Superintendent of Police, Chitrakoot stated that Shri Brijendra Rai, Station House Officer, Karvi gone to assist at about 3.30 pm but he did not reach to the spot till late night. The distance is of only few kilometers. Even Superintendent of Police STF had not helped on pretext being engage in other operation.
(IV) In spite of information received and having sufficient time no 75 backup was provided to the petitioner's team right from 8.15 am to late in the night. Addl. Director General of Police, STF Shri Shailja Kant Mishra and SSP Chitrakoot as well as Superintendent of Police STF were duly informed and in case the additional force would have rushed to the spot in time incident would have not occurred. Petitioner has been made escape goat for extraneous reasons to save the authorities who fail to provide necessary backup force during and after the encounter.
(V) From the material and evidence discussed (supra) there appears to be serious negligence on the part of Superintendent of Police Chitrakoot, and SHO Karvi and other higher authorities in not providing police reinforcement in spite of due communication in time right from the period when encounter took place. The petitioner seems to be tried his best according to his ability to face the situation and being disappointed with the State machinery to provide help, he took decision to return on their respective vehicles. It is unfortunate that the state machinery does not possess such a system with accountability to provide assistance to its own machinery or officers who fight with the dacoits or terrorist and on their demand to provide back up or additional force.
Government must look into this aspect of the matter and adopt corrective measure to tone up its administration.
(VI) Action taken against the petitioner does not only suffer from malice in law but seems to be oppressive. Such action shall demoralise the police force and no officer will take risk on his own to fight the terrorist or the dacoits. It is high time when government must ponder and introspect to negate the extraneous considerations so as to encourage the police force and paramilitary force to fight with antisocial elements without any feeling of consequential persecution in case the action is bonafide with commitment to duty and within the frame of law. Assuming the allegation correct, misconduct is not made out more so keeping in 76 view the statement of Shri Shailja Kant Mishra, A.D.G.P STF/HOD.
(VII) Submission of the learned Addl. Chief Standing Counsel to defend the State action against the petitioner on the principle of "high authority theory" does not seem to be available in the Indian context keeping in view the moral devaluation in our system, more so on account of the fact that the action against the petitioner seems to be oppressive, based on no evidence.
(VIII) Fabrication of records and commission of fraud vitiates even solemn act of the State and it shall be bad day for the country in case this Court remains a mute spectator and permit the government to persecute an officer for extraneous reasons by commission of fraud.
161. Mahatma Gandhi, Father of Nation has emphasised to maintain highest standard in personal life by constitutional functionaries. To quote :
"Today you have worn on your head a crown of thorns. The seat of power is nasty thing. You have to remain ever wakeful on that seat. You have to be move non- violent, move humble and more-forbearing. Minister may not make private gains either for themselves or for their relatives or friends. The leaders have the reins and the disposal of millions of rupees is in their hands. They have to be vigilant. They must be humble. People often think nothing of net keeping their words. They should never promise what they cannot do. Once a promise is made, it must be kept at all cost.
(Selected Works of Mahatma Gandhi)."
Again Mahatma Gandhi had proceeded to say (supra), to quote:
"The legislative assemblies should be their only law- makers. Ministers were liable to be changes at will. Their acts should be subject to review by their courts. They should do all in their power to make justice, cheap, expeditious and incorruptible..."
The minister should be completely free from all the prejudices against any caste or creed and from any 77 favouritism towards his old relatives and friends. This private life should be so simple that it inspires respect or even reverence. Bungalows and motor cars should be ruled out of course if he has to go far or on an urgent business, he should certainly use a car but its use should be definitely very limited. I see that the car may perhaps be quite necessary. They members of ministers' family including children should do all the household works themselves, servants should be used as sparingly as possible. These rooms should be not furnished with expensive foreign made furniture, such as sofas, cupboards and chairs especially at present, when crores of his countrymen do not have a single cotton mattress to sit upon or even a piece of cloth to wear."
162. Lord Denning had rightly said in his famous treatise, "The discipline of Law" (page 61) to quote:
"Our procedure for securing our personal freedom is efficient, but our procedure for preventing the abuse of power is not."
However, in our country, the procedure to secure personal freedom as well as to prevent the abuse of power both, seems to be not upto the mark.
163. It is not expected from the constitutional functionaries or the authorities to abuse their power for their vested interest or take revenge or teach lesson or to serve their own children, friends, relatives or associates, giving go-bye to rules and regulations. According to Geeta, the persons holding high offices are torch bearers and the society follows their leaders in day to day life.
164. The great Indian freedom fighter, philosopher, scholar and spiritual leader Sir Aurobindo long back taken note with regard to personal interest vis-a-vis social and national interest. The compilation of various lecturers/writings between 1915 to 1918 has been published under the title "The Human Cycle The Ideal of 78 Human Unity War and Self-Determination". To quote relevant passage from the said book (supra) :
"The attempt always leads to an eternal struggle with other egoisms, a mutual wounding and hampering, even a mutual destruction in which if we are conquerors today, we are the conquered or the slain tomorrow; for we exhaust ourselves and corrupt ourselves in the dangerous attempt to live by the destruction and exploitation of others."
Learned author further proceeded to observe as under :
"The society has no right to crush or efface the individual for its own better development or self- satisfaction; the individual, so long at least as he chooses to live in the world, has no right to disregard for the sake of his own solitary satisfaction and development his fellow-beings and to live at war with them or seek a selfishly isolated good."
According to Sir Aurobindo, the service of the State stand at highest pedestrial of morality. To quote :
"The service of State and community is he only absolute rule of morality."
165. Moral values propounded by Britishers for civil servant (ICS) namely; poverty, neutrality and anonymity seems to at lowest ebb. Poverty speaks for honesty and neutrality speaks for firm, polite and lawful advise to government. In case, order is passed or request is made to do a thing against the rules or impossible to comply with, it is expected from civil servants to explain the position politely and firmly. Anonymity speaks to serve people silently to meet the constitutional goal. All these virtues expected from the bureaucracy seems to be eroding and time has come to rejuvenate the bureaucracy so that no one may suffer because of inaction or unlawful action on the part of civil servants.
166. Petitioner seems to have suffered from mental pain and 79 agony apart from social humiliation for no fault on his part. Since, action of the state government is oppressive in nature, suffer from bias, it is a fit case where exemplary cost should be awarded to meet the ends of justice in view of law settled by Hon'ble Supreme Court (2005) 6 Supreme Court Cases 344, Salem Advocate Bar Association (II), Vs. Union of India.
167. In view of above, the writ petition deserves to be allowed with exemplary cost :
(i) A writ in the nature of certiorari is issued quashing the impugned order dated 19.5.2008 and the charge-sheet dated 26.5.2008 (Annexures 1 and 2 to the writ petition) with consequential benefits with exemplary cost quantified to Rs.3 lacs which shall be deposited in this Court by the Chief Secretary of the State of U.P. within one month and the petitioner shall be entitled to withdraw an amount of Rs.2 lacs. Remaining cost of Rs.1 lac shall be remitted to the Mediation Centre, Lucknow.
(ii) It shall be open for the State of U.P. to recover the cost from the persons who are responsible to initiate departmental proceedings against the petitioner on the basis of fraudulent records by holding an enquiry in accordance with law.
(iii) It shall be open to the petitioner to proceed in accordance with law for injustice done to him against the authorities concerned.
(iv) The Chief Secretary, Government of U.P. is directed to constitute a Committee and hold an enquiry for the lack of assistance to the petitioner by not providing necessary back-up with police force during the course of encounter with dacoits on 22.5.2007 in spite of due communication and cry for help by the petitioner repeatedly as observed in the body of the judgment and take appropriate action against the authorities who were negligent in their duty.
80Let the Chief Secretary, Government of U.P. file compliance report with affidavit within two months. Registry to take follow up action.
The writ petition is allowed accordingly.
(Justice S.C. Chaurasia) (Justice Devi Prasad Singh) July 15, 2010 kkb/