Allahabad High Court
Km. Anamika Singh vs State Of U.P. And 5 Others on 17 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1952, (2019) 11 ADJ 20 (ALL)
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 38 Case :- WRIT - A No. - 13260 of 2019 Petitioner :- Km. Anamika Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Atipriya Gautam,Vijay Gautam(Senior Adv.),Vinod Kumar Mishra Counsel for Respondent :- C.S.C. Connected With Case :- WRIT - A No. - 13262 of 2019 Petitioner :- Km. Durgesh Yadav Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Atipriya Gautam,Vijay Gautam(Senior Adv.),Vinod Kumar Mishra Counsel for Respondent :- C.S.C. AND Case :- WRIT - A No. - 13263 of 2019 Petitioner :- Km. Dauly Kumari Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Atipriya Gautam,Vijay Gautam(Senior Adv.),Vinod Kumar Mishra Counsel for Respondent :- C.S.C. AND Case :- WRIT - A No. - 13265 of 2019 Petitioner :- Kumari Karishma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Atipriya Gautam,Vijay Gautam(Senior Adv.),Vinod Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
1. This bunch of writ petitions are directed against orders dated 26th June, 2019, passed by the Senior Superintendent of Police, Prayagraj, whereby all the petitioners have been terminated from service. The identical worded orders passed in respect of all the petitioners record that the petitioners while undergoing on the job training, sat on a protest (dharna) on 5.6.2019, and also blocked the road in front of training centre for raising their grievances that were extremely ordinary/trivial in nature, and were otherwise based mostly on rumours. Such act of indiscipline, while on training in a disciplined organization has been viewed seriously as an act of misconduct. Show cause notice was accordingly issued to them, to which a reply has also been submitted. The explanation submitted by present petitioners to the show cause notice has not been found satisfactory and it is observed that chances of petitioners becoming good police personnels do not exist. Jurisdiction under Rule 20(4) of the U.P. Police Constable and Head Constable Service Rules, 2015 read with Regulation 541(2) of the U.P. Police Regulations has been invoked to terminate the services of the present petitioners. Aggrieved by such orders of termination the petitioners are before this Court.
2. Before coming to the issues on merits, it would be worth noticing some of the background facts. State of Uttar Pradesh initiated process to recruit 41520 Constables in Civil Police and Pradeshiya Armed Constabulary (PAC), vide advertisement dated 14.1.2018. Petitioners also applied against the advertisement and having cleared the recruitment process were ultimately selected on 18.2.2019. All the petitioners were allotted Allahabad (Prayagraj) for undergoing on the job training. The first part of the JTC Training Course was successfully completed by the petitioners w.e.f. 16.5.2019 to 31.5.2019. The next round of training was to be undertaken at Regional Training Centre at Varanasi (hereinafter referred to as the RTC) w.e.f. 3rd June, 2019. It is on record that 300 female constables joined the RTC at Varanasi on 1st June, 2019, while 47 other female constables joined on 2nd June, 2019. Their training commenced on 3rd June, 2019. It is at this stage that the incident is said to have happened giving rise to passing of the orders of termination.
3. Alongwith the writ petition various newspaper reports have been annexed. The first of such newspaper report published in Hindi Daily 'Amar Ujala' from Varanasi is of 6th June, 2019. The headline of the news item quotes the lady trainee constables that their videos were prepared while they were having bath. The incident in question reportedly occurred in the night of 4/5th June, 2019, as per the newspaper report. A protest was reportedly organized by the female trainee constables demanding adequate security arrangement for them and for proper boundary etc. to be raised for their safety and security. Similar reports got published in other prominent newspapers including Dainik Jagaran etc., which are also annexed. Newspaper reports, ipso facto, may not be acceptable, but in view of what has been brought on record of the writ petitions, as would be elaborated later, it is apparent that serious issues relating to safety, security and breach of privacy for female constables on training had arisen resulting in a protest by them.
4. It transpires that on the very next morning a protest was made to highlight the problems faced by the lady police constables. Their protest ended with an assurance received from the Senior Superintendent of Police that their security and safety would be duly looked after. The incident, however, did generate concerns and was apparently taken as an act of serious breach of discipline on part of trainee constables by the higher police officers. The SSP Varanasi on 5th May, 2019 itself constituted a Committee to inquire into the protest by lady constables. This Inquiry Committee comprising of three officers submitted its fact finding report on 8th June, 2019. Copy of this report has been placed on record alongwith the counter affidavit. Its copy has also been served upon the writ petitioners alongwith the show cause notice. This inquiry report is the only material relied upon for taking the action against the writ petitioners.
5. Reference to this report would be necessary at this stage. The fact finding report, dated 8.6.2019, runs into 42 pages and records statement of 50 persons. It includes statement of 33 lady constables who were undergoing training, apart from other police personnels some of whom were present at the training centre. In order to protect the identity of lady constables the names of lady constables in the report is not being mentioned. The statement of first trainee police constable discloses that during the night of 4/5th June, 2019, she heard loud voices at the door of her barrack and when this constable came out she found that many of the female trainees present were weeping and informing the officer of the training centre about entering of some boy in the training centre. The next statement is also of a lady trainee constable narrating similar facts and also that the broken door of her barrack was repaired only on 4.6.2019 in the evening. Their statements are extracted hereinafter:-
^^cSfjd ls ckgj fudyus ij dkQh yMfd;ka jks jgh Fkh rFkk lHkh lj dks crk jgh Fkh fd eSus fdlh yMds dks cSfjd ds rjQ vkrs gq, ns[kk gS rks lHkh lj lhlhVh,u,l dk;kZYk; ds vkl & ikl tkdj ns[kk] ogka dksbZ ugh feykA lHkh YkMfd;ka jks jgh Fkh] ftUgsa lj le>k jgs FksA eS vius cSfjd esa okil pyh x;hA 2- c;ku e0 fj0 vk0 ----------- eS ,y cSjd esa jgrh gwaA esjs dejs esa njoktk VwVk gqvk Fkk mlds ckjs es geus estj lj dk fnukad 04-06-2019 dks crk;k FkkA fnukad 04-06-2019 dh 'kke dks gh njoktk Bhd djok fn;k x;k rFkk gesa mUgksus iw.kZ #i ls lqj{kk dk Hkjkslk fnyk;kA fnukad 04@05-06-2019 djhc jkf= esa 12 cts dkQh 'kksj&xqy gks jgk FkkA ge yksx vius cSjd ls ckgj fudys rks tkudkjh gqbZ fd fnukad 04@05-06-2019 dks djhc 11-45 cts Vksyh ua0 13 dh cSjd fM;wVh dh efgyk --------us 02 yMdks dks ifjlj esa vkrs ns[kk gS rFkk mlds dqN le; ckn Vksyh ua0 11 dh ------------ }kjk fdlh yMds dks cSjd es gkFk Mkyrs gq, ns[kus dh ckr crkbZ tk jgh FkhA dqN nsj ckn estj lj vkSj dqN vkbZVhvkbZ] ihVhvkbZ ogka igaqpsA dqN nsj ckn NksVsyky lj igqaps vkSj yMfd;ksa dks jksrs vkSj ?kcMkrs gq, ns[kdj mUgsa lqj{kk dk Hkjkslk fnykrs gq, ?kVuk ds ckjs esa tkap dh ckr Hkh dgh vkSj lqj{kk fM;wVh ij 04 vkj{kh dh fM;wVh rFkk 02 efgyk vkj{kh dh fM;wVh yxk;hA 3-----------^eSa lks jgh FkhA jkf= djhc 12 cts cSjd esa 'kksj gqvk rks eS tx x;h rks ns[kk fd ---------- gkFk esa okbij yh Fkh vkSj fpYyk jgh Fkh fd dkSu cn~reht gS vkSj dgh fd dksbZ O;fDr f[kMdh ls gkFk Mky jgk FkkA fQj lkjh yMfd;ka bdB~Bk gksdj xsV ij pyh x;h vkSj 'kksj epkus yxhA dqN nsj ckn djhc 12-30 cts yMfd;ksa us crk;k fd ckgj lj vk;s gS rks ge yksx ckgj vk x;s rks ns[kk dh dkQh HkhM bdB~Bk gks x;h FkhA lHkh yMfd;ka lj ls ckr&phr dj jgh Fkh] muds }kjk lHkh YkMfd;ksa dks le>k;k tk jgk Fkk fd ge yksx rqEgkjs ekrk & firk dh rjg gSA tks Hkh leL;k,a gS mudk fuLrkj.k lqcg dj fn;k tk;sxkA estj lj djhc 04 cts rd ge yksxks ds lkFk FksA blds ckn eS vius cSjd esa lksus pyh x;hA ^^iz'u & D;k vki }kjk fnukad 01-06-2019 ls 04@05-06-2019 dh jkf= rd fdlh yMds dks cSjd vFkok ok'k#e esa ns[kk x;k gS \ mRrj & Jheku th ugh] dsoy fnukad 04@05-06-2019 dh jkf= dks lhlhVh,u,l dk;kZy; ds Nr ij ,oa dqN nsj ckn fdlh O;fDr dks f[kMdh ds cxy ls Hkkxrs gq, ns[kh FkhA^^
6. The statements of all 33 lady police constables are unanimous, inasmuch as, they came to know of an incident occurring in the intervening night of 4/5th June, 2019, on account of which all the lady constables were frightened and were immensely concerned about their safety and security. It has also been stated by most of these female constables that they could not even dare to go alone to the toilets for the fear of their security. Statements of these constables suggests that two boys came on a bike and entered the training campus and that one of them tried to harm one of the lady trainee constables. The statements also suggest that basic facilities were not satisfactory and that water supply in the toilets was resumed only on 4.6.2019. Trainees had to go about 200 meters just to get drinking water. It is to be remembered that first week of June is the peak summer period when temperature in Varanasi can go upto 48 degree centigrades. Lack of regular water supply for drinking and fir use in toilets can well be visualized. The report further acknowledges that it was very hot and some of the coolers were got repaired while process was initiated to buy more coolers. Moreover due to low voltage even faces were not running properly.
7. It is not necessary to refer to all the statements but suffice it to note that the statements given by all trainee constables were consistent about an incident having occurred on the fateful night as also about lack of basic facilities at the centre. The questions that have been posed to these lady constables appear to suggest that anxiety on part of the concerned authorities was more to emphasize that there was no fault on their part; that basic facilities existed for them; that none of the candidates had specifically admitted outraging of her modesty; and that on an unfounded hearsay misreporting by one of the candidates the other trainee recruits overreacted and had blown the incident out of proportion.
8. There is an apparent noticeable flaw in the fact finding report. The tenor of report shows insensitivity to the concern of trainee constables who had stayed only for a couple of days and were new to the place. It is but natural that none of the recruits would have wished to be identified for an attempted outraging of her modesty, nor would have dared to speak-up against administration for lack of basic amenities provided to them. The authorities also failed to appreciate the consistent statement of almost all the lady trainee constables that they were in a state of fear and shock and were apprehensive about their safety. In almost all the statements it has surfaced that two boys on a bike entered the training camp with one of them going on roof while the other went near the office. The alleged undesirable acts were attributed to these two intruders. The three member committee, however, disbelieved the concern of lady constables by a curious process of reasoning. It observed as under:-
^^tgka rd fnukad 04-06-2019 dks le; djhc 12-00 cts jkf= cSjd uEcj 11 esa f[kMdh ls fdlh vKkr ;qod }kjk vUnj gkFk Mkyus lEcU/kh vkjksi gSA f[kMdh ds Bhd lkeus e0 fj0 vk0 -------------- dk csM gS ,oa mlds cxy es e0 fj0 vk0 ---------- dk ,oa mlds lkekukUrj f}rh; iafDr esa -----------o ------------ dk csM yxk gqvk gSA mDr ds lanHkZ es e0 fj0 vkjf{k;ksa ls c;ku fy;k x;k ftlesa ls e0 fj0 vk0 ----------- o -------------- }kjk jkf= ds le; djhc 12 ctas ds chp fdlh vKkr O;fDr ds gkFk dk vUnj ns[kuk crk;k x;kA bl lanHkZ esa mYys[kuh; gS fd e0 fj0 vkjf{k;ksa ds lqj{kkRed n`f"Vdks.k ls budh vkoklh; O;oLFkk Hkh iqfyl ykbu ds vfUre dksus esa LFkkfir fd;k x;k gSA tks yxHkx nksuks rjQ 08 QhV o mlls maph nhokj ls f?kjk gS] tks lqjf{kr LFkku gSA ge vf/kdkjhx.kksa }kjk scene-re-construction ¼n`'; iqulZajpuk½ djds ns[kk x;k rks f[kMdh ls csM dh nwjh 03 QhV ls vf/kd dh FkhA vr% Li"V gS fd f[kMdh ls csM rd fdlh O;fDr ds gkFk dk igqapuk lEHko ugh gS vr% NsMNkM dh fu;r ls mDr ?kVuk dk dkfjr fd;k tkuk rkfdZd izrhr ugh gksrkA mDr f[kMdh ds ckgj mHkjh gqbZ feV~Vh ,oa dqN fu"iz;ksT; OkLrq,a tSls nhoky ?kMh iMh gqbZ FkhA ;fn dksbZ O;fDr ogak fdlh Hkh fu;r ls [kMk gksrk rks mlds iSjksa ds fu'kku mHkjh gqbZ feV~Vh ij t#j gksrsA pwafd fdlh Hkh e0 fj0 vk0 }kjk Li"V #i ls ;g ugh crk;k x;k fd gkFk fdlh yMdh dk Fkk vFkok yMds dk vr% fuf'pr #i ls ;g ugh dgk tk ldrk fd ml LFkku ij dksbZ iq#"k gh vk;k Fkk vFkok bl rF; ls Hkh budkj ugh fd;k tk ldrk fd fdlh 'kjkjrh yMdh }kjk 'kjkjro'k ogak fdlh xyr fu;r ls ml LFkku ij x;h gks tSlk fd e0 fj0 vk0 ------------- }kjk vius c;ku es crk;k x;k fd mDr ;qod@ O;fDr lQsn jax dk Vh&"kVZ igus gqvk Fkk vkSj CkSjd ds leLr e0 fj0 vk0 lQsn jax dk Vh&"kVZ /kkj.k djrh gSA pwafd nhokj ds ihNs vke lMd gSA vr% ;g Hkh lEHkkO; gS fd dkssbZ O;fDr pksjh dh fu;r ls izos'k fd;k gksA fdUrq lhlhVhoh ds u gksus ls ,oa e0 fj0 vkjf{k;ksa }kjk Li"V #Ik ls gkFk dks ugh ns[ks tkus ds dkj.k mDr vkjksi dh okLrfodrk ij dqN Hkh Li"V #i ls dgk tkuk lEHko ugh gSA fnukad 01-6-2019 dks fjtoZ iqfyl ykbu okjk.klh esa 300 e0 fj0 vkjf{k;ksa ,oa fnukad 02-06-2019 dks dqy 47 e0 fj0 vkjf{k;ksa }kjk viuk vkxeu djk;k x;kA ?kVuk fnukad 05-06-2019 dks izkr% 06 cts dh gSA ?kVuk ds fnu e0 fj0 vkjf{k;ksa }kjk tks leL;ka, crk;h x;h muesa ls eq[; #i ds de oksYVst gksuk] ia[ks] izdk'k] 'kkSpky;] Lukukxkj] f[kMfd;ksa dk VwVk gksuk o lqj{kk lEcfU/kr leL;k,a crk;h x;hA ge vf/kdkjhx.kksa }kjk fnukad 05-6-2019 e0 fj0 vkjf{k;kaas ds izR;sd cSjdksa dk HkkSfrd lR;kiu dks fd;k x;k rks ik;k x;k fd yxHkx lHkh cSjdksa esa Ik;kZIr la[;k es ia[ks yxs gq, gSA ftu cSjdksa es ;fn dksbZ ia[ks [kjkc Fks rks mudh rRdky ejEEkr gsrq izfrlkj fujh{kd okjk.klh dks funsZf'kr fd;k x;kA e0 fj0 vkjf{k;ksa }kjk iwoZ es xehZ T;knk gksus dh leL;k crkus ij izfrlkj fujh{kd fjtoZ iqfyl ykbu okjk.klh }kjk ykbu esa miyC/k dwyjksa dks e0 fj0 vkjf{k;ksa ds d{k es yxok;k x;k ,oa vU; dwyjksa ds dz; lEcU/kh izfdz;k iwoZ esa gh izkjEHk dh tk pqdh gSA tgak rd fo|qr O;oLFkk esa oksYVst ds de gksus dh leL;k gS ftldk izR;{k #i ls iqfyl foHkkx ls dksbZ lEcU/k ugh gSA chp esa ek= 01 fnol oksYVst lEcU/kh leL;k vk;h ftlls cSjdks ds ia[ks /khjs & /khjs py jgs Fks tks dkykUrj esa Lor% Bhd gks x;kA e0 fj0 vkjf{k;ksa }kjk crk;h x;h leL;k esa ,d ckFk#e dk gksuk o ,d VksVh dk gksuk crk;k x;k gSA tcfd ekSds ij HkkSfrd lR;kiu djus ij ik;k x;k fd 42 ckFk#e iz;ksxkRed voLFkk esa lgh fLFkfr esa ik;s x;sA vr% e0 fj0 vkjf{k;ksa dh la[;k ds vuqikr ls Ik;kZIr ckFk#e miyC/k ik;s x;s rFkk e0 fj0 vk0 }kjk ckFk#e ls lEcfU/kr NksVh & eksVh leL;kvksa ds ckjs esa crk;k x;k mudk orZeku esa rRdky izHkko ls ejEer djk fn;k x;k gSA tgak rd e0 fj0 vk0 }kjk ckFk#e vFkok 'kkSpky; dk nwjh ij fLFkr gksuk crk;k x;k ds lEcU/k es HkkSfrd lR;kiu djus ij ik;k x;k fd cSjd ls ckFk#e vFkok 'kkSpky; dh vf/kdre nwjh yxHkx 20 ehVj o U;wure nwjh 04 ehVj ij gS] tks cgqr vf/kd ugh gSA vr,o mDr vkjksi vlR; ,oa fujk/kkj gSA tgak rd 'kkSpky; lEcU/kh leL;k gS rks mlds lEcU/k esa HkkSfrd lR;kiu djus ij ik;k x;k fd 50 'kkSpky; lkQ & lqFkjs ,oa lqO;ofLFkr n'kk esa ik;s x;s tks e0 fj0 vkjf{k;ksa dh la[;k ds lkis{k Ik;kZIr gSA e0 fj0 vkjf{k;ksa }kjk crk;h x;h leL;kvks esa ls ,d cMh leL;k ikuh dh crk;h x;h fd mUgs ikuh ysus gsrq cSjd ls vkj0 vks0 Iyk.V ftldh nwjh yxHkx 200 ehVj gksxh tkuk iMrk gSA lkFk gh ikuh j[kus gsrq fdlh ik= dh O;oLFkk Hkh ugh gSA mDr leL;k ds lUnHkZ esa tkap djus ij ik;k x;k fd fnukad 04-06-2019 dks izkRk% mDr lEkL;k ds lanHkZ es e0 fj0 vkjf{k;ksa }kjk izfrlkj fujh{kd ds laKku esa yk;k x;k ftlij izfrlkj fujh{kd }kjk rRdky laKku ysrs gq, 20 yh0 okys 70 xSyuksa o ?kMks dk dz; dj forfjr djk;k x;k o cSjdksa rd 'khry is;ty igqapkus dh O;oLFkk dh x;hA vr% mDr leL;k dk le;c) rjhds ls funku djk;k x;kA tgak rd e0 fj0 vk0 }kjk ikuh gsrq iSlk fy, tkus lEcU/kh vkjksi dk iz'u gS] ds lEcU/k es Li"V djuk lehphu gksxk fd e0 fj0 vk0 ls ikuh gsrq dksbZ iSlk ugh fy;k x;k gS] tSlk fd izfrlkj fujh{kd ds c;ku ls Li"V gSA^^
9. The Committee ultimately went on to hold that in respect of extremely common and simple problems the lady constables overreacted. Findings have ultimately been returned by the Inquiry Committee in following terms:-
^^lEiw.kZ tkap ,oa lk{; fo'ys"k.k ls ;g ik;k x;k fd 04 e0 fj0 vk0 ftuesa 01---------02--------------03---------------o -------------------04--------lfEefyr gS dks iqfyl tSls vuq'kkflr cy es jgrs gq, bu 04 e0 fj0 vk0 us vU; efgyk fj0 vkjf{k;ksa esa vlarks"k QSyk;k vkSj mUgs lMd tke djus gsrq mRizsfjr dj fjtoZ iqfyl ykbZu xsV ij ys tk;k x;kA vf/kdkfj;ksa ds lkFk vHknz O;ogkj o rdZ & fordZ djrs gq, vuq'kklughurk dk ifjp; fn;k x;kA bu efgyk fj0 vkjf{k;ksa }kjk Lo;a o vU; e0 fj0 vk0 dks iqfyl ykbZu xsV ij /kjuk nsus ds fy, mRizsfjr djus ls iqfyl foHkkx dh Nfo /kwfey gqbZA ;g fLFkfr rS;kj djus ds fy, bu 04 e0 fj0 vk0 dks izeq[k #i ls nks"kh ik;k tkrk gSA blds vfrfjDr 13 efgyk fjdzwV vkjf{k;ksa ftues dze'k% 01------------02------------03----------04--------------05-------------06------------07----------08-------------09-------------10---------11-------------12----------13--------dks vf/kdkfj;ksa ds lkFk okn & fookn djuk] lMd ij cSBuk] ckj & ckj dgus ds ckn Hkh lMd ls u gVuk ,oa ekgkSy lkekU; djus esa lg;ksx u djus dh nks"kh ik;h tkrh gSA Hkfo"; esa bl ckr ls badkj ugh fd;k tk ldrk fd buds }kjk ,slh lquh & lquk;h ckrksa ds izHkko eas vkdj vuq'kklUk ij izfrdwy izHkko Mkyk tk ldrk gSA vr% Hkfo"; esa buds izf'k{k.k ij lrdZ n`f"V j[kk tkuk visf{kr gSA vr,o mDr 13 e0 fj0 vk0 dks vU;= vkj0 Vh0 lh0 esa LFkkukUrfjr fd;k tkuk fopkj djus ;ksX; gSA blds vfrfjDr ;g Hkh ns[kus es vk;k fd dqN efgyk fjdzwV vkjf{k;ksa }kjk {kqnz vuq'kklughurk n'kkZ;h x;hA muds nks"k ds vuq#Ik mUgsa vyx ls Vksyh dek.Mj@Vksyh [email protected] estj ls fpfUgr djkdj dk;Zokgh fd;k tkuk lehphu gksxkA tkap vk[;k voyksdukFkZ lknj lsok esa isszf"kr gSA^^
10. The three member committee has fastened responsibility of organising protest and instigating others upon the petitioners. They are also accused of misbehaving with senior officers. The committee has also recommended transfer of thirteen lady constables to other training centres and further observed that in respect of some of the lady trainee recruits, who have shown acts of minor indiscipline, separate proceedings be undertaken to identify them and to take action, accordingly. It is admitted on record that apart from this fact finding inquiry no other inquiry has been held.
11. Alongwith the counter affidavit an order of the Deputy Inspector General of Police (Personnel), dated 11th June, 2019 has been annexed, which directs the SSP Prayagraj to take recourse to Rule 20(4) of the Rules of 2015 read with Regulation 541(2) of the Police Regulations and after affording an opportunity of hearing to the lady constables, take appropriate action. It is in furtherance of this direction that a show cause notice has been issued to all the petitioners. The petitioners have denied the allegations levelled against them in the show cause notice. In the leading writ petition, the petitioner has referred to the statement of the lady constable who had noticed entry of two unauthorised persons in the training centre on a bike and that on account of their attempting to outrage the modesty of one of the constables the trainee constables got frightened and raised their voice. They also informed the authorities about it. She has denied having taken any part in the protest or having instigated anyone else. Similar stand is taken by other petitioners. The petitioners have also denied having violated any provision of law or having indulged in any act of indiscipline. The explanation submitted by the petitioners have been rejected holding it to be not satisfactory. Consequently, orders of termination have been passed. No disciplinary proceedings have, nevertheless, been initiated against the petitioners.
12. The orders impugned are challenged primarily on the ground that as petitioners have been terminated on specific charges of indiscipline and misconduct, without conducting any disciplinary inquiry against them, as such, the orders are contrary to law. It is also stated that adequate opportunity has been denied to the petitioners to prove their innocence and that the procedure contemplated in law has otherwise been violated. The petitioners further urge that in view of the nature of allegations levelled against them an inquiry under Rule 14(1) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 was imperative which has not be done and consequently the order impugned is unsustainable. Submission is also advanced that Rule 20(4) of the Rules of 2015 have no applicability in the facts of the present case since the termination is founded on misconduct, without holding any enquiry, and not upon assessment of their work upon conclusion of the probation period. Petitioners have placed reliance upon a Division Bench Judgement of this Court in Paras Nath Pandey Vs. Director North Central Zone, Cultural Center, Allahabad passed in Special Appeal No. 798 of 2000. It has also been argued that petitioners' reply has not been considered and the impugned action is otherwise grossly disproportionate so as to shock the conscience of a prudent person.
13. A counter affidavit has been filed stating that due procedure has been followed before passing the order and that the grievance regarding violation of principles of natural justice is not made out. Petitioners have filed a rejoinder affidavit denying averments made in the counter affidavit and have reiterated averments made in the writ petition.
14. I have heard Sri Vijay Gautam, learned Senior Counsel assisted by Sri Atipriya Gautam, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the materials brought on record.
15. Facts giving rise to the present controversy have already been noticed and, therefore, requires no reiteration. It is admitted that petitioners have been terminated from service on a specific charge of misconduct. According to respondents for extremely ordinary grievances the petitioners went on a protest and blocked the road, outside the training centre, instigated others and misbehaved with higher authorities which is clearly an act unbecoming of a police personnel for which termination is justified.
16. It is not in issue that petitioners services in the matter of alleged misconduct on their part are governed by the provisions of the Rules of 1991. Once a trainee police constable is proposed to be terminated on a specific charge of misconduct, it is imperative that the procedure contemplated under Rule 14 is followed before proceeding to impose major punishment. It is not in issue that no procedure contemplated under Rule 14 of the Rules of 1991 has been followed. No regular disciplinary proceeding has been instituted; none of the witnesses have been produced in presence of the petitioners and they have also been denied an opportunity to cross examine them. The only inquiry conducted in the matter is at best a fact finding inquiry which cannot be a substitute for a regular disciplinary inquiry contemplated under the Rules of 1991. The petitioners grievance about denial of opportunity to defend themselves is also substantiated on record. Violation of the provisions of Rule 14 is also disclosed. The order impugned in the present writ petition, therefore, is liable to be set aside on this short ground alone.
17. The respondents apparently have invoked Rule 20(4) of the 2015 Rules as also para 541(2) of the U.P. Police Regulations to pass the order impugned. Rule 20(4) of the Rules of 2015 is reproduced:-
^^;fn ifjoh{kk vof/k ;k c<+k;h x;h ifjoh{kk vof/k ds nkSjku fdlh Hkh le; ;k mlds vUr esa fu;qfDr izkf/kdkjh dks ;g izrhr gks fd ifjoh{kk/khu O;fDr us c<+k;h x;h ifjoh{kk vof/k ds nkSjku fu;qfDrizkf/kdkjh ds larks"kkuqlkj i;kZIr lq/kkj ugha fd;k gS rks mls mlds ekSfyd in ij] ;fn dksbZ gks] izR;kofrZr fd;k tk ldrk gS vkSj ;fn mldk fdlh in ij /kkj.kkf/kdkj u gks] rks mldh lsok;sa lekIr dh tk ldrh gSA^^
18. Rule 20(4) confers jurisdiction upon the appointing authority to assess the working of a probationer with an intent to either confirm his services or to extend the period of probation or discontinue his employment on account of unsatisfactory work and failure to improve despite opportunity.
19. On facts, exigency to invoke Rule 20(4) of the 2015 Rules has not arisen. The respondents were not assessing the performance of probationer with the object of extending probation or confirming the services. The petitioners have hardly worked for a month. Their termination is on grounds of misconduct and not assessment of their working during the period of probation. The order impugned, therefore, is also liable to be set aside as it suffers from colourable exercise of power.
20. Para 541(2) of the U.P. Police Regulations provides as under:-
"In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his service. Before, however this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge."
21. Though Police Regulations have been held to have binding force in Chandra Prakash Sahi vs. State of U.P. reported in (2000) 5 SCC 152 but the regulations ultimately remains a compendium of executive instructions. The Police Regulations would therefore remains subservient to the statutory service regulations in vogue. In areas where field is occupied by statutory regulations the authorities cannot be permitted to act in violation of statutory rules by having resort to the provisions of Police Regulations.
22. In the matter of holding of disciplinary inquiry rule 14 of the Rules of 1991 occupies the field and specifies the manner of conduct of disciplinary inquiry. The requirement of adherence to rule 14 cannot be obviated by relying upon para 541(2) of the U.P. Police Regulations. Rule 20(4) of the Rules of 2015 and para 541(2) of Police Regulations operate in different field altogether i.e. assessment of work by a probationer and would not be attracted in a case of misconduct.
23. In case of termination on the proved charges of misconduct the authorities would be required to act as per Rule 14(1) of the Rules of 1991 even if the police personnel is on probation. Law in that regard stands settled in Parshotam Lal Dhingra Vs. Union of India; AIR 1958 SC 36. The proposition of law in that regard has remained consistent and has been reiterated in a recent judgment of the Apex Court in State Bank of India vs. Palak Modi reported in (2013) 3 SCC 607. In Palak Modi (supra) services of private respondents were not terminated on account of any deficiency in their performance during probation period but foundation of termination was the alleged use of unfair means in confirmation examination which constituted misconduct. Inquiry in the manner contemplated was not done on the premise that the private respondents were probationer. The Apex Court held the termination to be unsustainable.
24. A Division Bench of this Court in Paras Nath Pandey Vs. Director North Central Zone, Cultural Center, Allahabad reported in 2008 (10) ADJ 283 held as under in para 57 to 59:-
"57. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under :
(a)The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.
(b)An order of termination simplicitor prima facie is not a punishment and carries no evil consequences.
(c)Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order.
(d)The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.
(e)If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.
(f)"Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping. "Motive" is the moving power, which impels action for a definite result, or to put it differently. "Motive" is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.
(g)If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.
(h)Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.
(i)Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.
(j)Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.
(k)If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.
(l)Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.
(m)If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive
(n)When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.
(o)Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive.
i."want of application", ii."lack of potential", iii."found not dependable", iv."under suspension", v."work is unsatisfactory", vi."unlikely to prove an efficient officer".
(p)Description of background facts also have not been held to be stigmatic.
(q)However, the words "undesirable to be retained in Government service", have been held stigmatic.
(r)If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive.
58. The aforesaid are not exhaustive, but lay down some of the principles to find out whether termination of an employee is simplicitor or punitive. Each and every case has to be considered in the light of the facts and circumstances of the case, but broadly the aforesaid are the factors to find out whether termination of an employee is punitive or not.
59. Considering the facts of this case in the light of the legal principles, as discussed above, we are clearly of the view that the impugned order of termination is nothing but punitive one and, therefore, cannot sustain."
25. In Mathew P. Thomas vs. Kerala State Civil Supply Corporation Ltd. and others, (2003) 3 SCC 263, the Apex Court observed that if form and language of the termination of probationer clearly indicate that is punitive in nature then there would be no requirement to go into the details of the background and surrounding circumstances in testing whether the order of termination is simplicitor or punitive. This judgment would clearly be attracted in the facts of the present case inasmuch as the very perusal of termination order makes it explicit that termination of petitioners probationer are founded upon misconduct.
26. The petitioners are young unmarried females who have just joined the police force and have worked for less than a month as trainee constables. Their action in reacting to perceived threat to their security and violation of privacy has to be viewed with greater care and concern and in keeping with prevalent societal values. Their response to the situation even if had breached the settled norms of discipline in a police force but it cannot be viewed as an grave act of misconduct so as to warrant extreme punishment of termination from service.
27. The respondents have proceeded against the petitioners on the premise that on insignificant and non existent causes an act of indiscipline is performed by them. This premise, on facts, is found not to be correct. Statement of large number of lady trainee constables clearly shows occurrence of some incident during the night of 4/5th June, 2019 which generated serious concerns relating to safety and security of young ladies. These young ladies were extremely frightened. The facilities at the training centre for them was otherwise not adequate. It was in this background that they raised an alarm by going on protest for a duration of about half an hour and thereafter continued with their training.
28. Raising of concerns regarding security for young lady constables, on account of the incident happened on the previous night, cannot be treated as protest raised for no valid reasons. It, also, could not be treated as an insignificant issue. Even if protest was impermissible yet it could not be treated as an act so serious so as to justify ouster of lady constables in the peculiar facts of the present case.
29. At the threshold of their career and being new to the organization these constables could have been counselled or warned at best. It was not necessary for the authorities to reciprocate an alleged disproportionate response to the situation by the female constables with a shockingly disproportionate response on their part. Even the inquiry committee had only recommended shifting of some of these constables to other training centres and not their termination. The inquiry report recommended a further inquiry to identify other culprits in an appropriate proceedings which was never conducted.
30. Apart from action being in derogation of the applicable statutory provision as also Article 311(2) of the Constitution of India, the impugned action is grossly disproportionate and is shocking to the very conscience of a prudent person. In Ranjit Thakur vs. Union of India, (1987) 4 SCC 611, their Lordships of the Apex Court observed that sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the competent authority would be interfered with if is in outrageous defiance of logic.
31. In Bhagat Ram vs. State of Himachal Pradesh, AIR 1983 SC 454 the Apex Court observed that the penalty imposed must be commensurate with the gravity of the misconduct and if it is disproportionate then would be violative of Article 14 of the Constitution of India.
32. In S. R. Tiwari vs. Union of India, (2013) 6 SCC 602, the law on proportionality has been elucidated with reference to Article 14 of the Constitution of India in following words in para 6 and 25:-
"6. Thus, the questions that arise for consideration of this Court are whether the punishment of compulsory retirement awarded by the disciplinary authority is proportionate to the delinquency proved and whether the respondents in the contempt petitions wilfully violated the order dated 5-10-2012 [S.R. Tewari v. Union of India, SLPs (C) Nos. 22263-64 of 2012, order dated 5-10-2012 (SC), wherein it was directed:"Heard the learned counsel for the parties. We are of the view that it is desirable that the petitioner may move a representation before the competent authority and if he does so within a period of one week raising all grievances, the same will be decided by a speaking and reasoned order within a period of two weeks thereafter and the order shall not be given effect to immediately and shall be placed before this Court on the next date of hearing. List this matter after four weeks."] passed by this Court holding that the punishment should not be given effect to until it is produced before the Court at the time of the next hearing.
25. In B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44 : AIR 1996 SC 484] , this Court after examining its various earlier decisions observed that in exercise of the power of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, the court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority."
33. It was in this context that when writ petition was entertained this Court noticed the submissions advanced on behalf of the petitioners in following words:-
"The order impugned is assailed on the ground that though it has been passed on specific charges but no opportunity of hearing has been given and no proceedings as per law have otherwise been undertaken. It is also submitted that petitioner had only pointed out various shortcomings and had not indulged in any act of misconduct. Learned counsel for the petitioner further submits that petitioner undertakes not to commit any such act in future. Learned counsel for the petitioner states that petitioner otherwise would submit an undertaking not to repeat any such act in future.
Sri S.K. Dubey, learned Chief Standing Counsel may obtain instructions in the matter, by the next date fixed.
Post as fresh on 2nd September 2019."
34. The respondents, however, have chosen to contest the matter and that is how the writ petition has been heard on merits.
35. The reply submitted by the petitioners to the show cause notice denying the allegations levelled against them has also not been considered. Explanation of petitioners, on merits, denying the allegations have been discarded by observing that they are not satisfactory. However, no reasons are given as to why petitioners' explanations is found unsatisfactory. No inquiry has otherwise been conducted to prove the charges. The reasons to reject petitioners reply, in the facts and circumstances of the case, is found to be absolutely cryptic and arbitrary.
36. In light of the discussions made above, this Court finds that the impugned action is wholly arbitrary, unreasonable and unsustainable in law. Consequently, order impugned dated 26th June, 2019, passed by the Senior Superintendent of Police, Prayagraj, cannot be sustained and is quashed. The writ petitions are, accordingly, allowed.
37. The petitioners shall submit an unconditional apology and would also submit an undertaking not to indulge in any form of protest of this kind in future. If such an undertaking is submitted alongwith certified copy of this order, the appointing authority shall pass appropriate orders by taking a sympathetic view in the matter, in light of the observations made above, for petitioners to complete their ongoing training. It would be open for the respondents to shift the petitioners to any other training centre as also recommended by the fact finding committee. Needful orders in that regard would be passed within six weeks from the date of presentation of certified copy of this order.
38. In the facts of the present case the parties shall bear their own costs.
Order Date :- 17.10.2019 Ranjeet Sahu/Ashok Kr.
(Ashwani Kumar Mishra, J.)