IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 327 (S/B) of 2008 Smt. Karan Devi and others. …..…Petitioners. Versus Deputy Inspector General, PAC, Bareilly Zone, Bareilly and another. …...…Respondents. Mr. Shobhit Saharia, Advocate present for the petitioners. Mr. K.P. Upadhyay, Additional Chief Standing Counsel for State of Uttarakhand present for respondent no. 2. Judgment Coram: Hon’ble Barin Ghosh, CJ. Hon’ble Nirmal Yadav, J. Barin Ghosh, C.J. (Oral) One Sri Indra Pal Singh was a Driver Constable of Pradeshik Armed Constabulary. By an order dated 29.10.1993, he was dismissed from service. This order of dismissal was assailed by him before the Public Services Tribunal, Uttarakhand. When the matter was pending before Tribunal, he died leaving the petitioners as his successors. The petitioners applied and were substituted before the Tribunal. Amongst many contentions, it has been contended by the petitioners, in the present writ petition, which was not contended before the Tribunal, that the proceedings culminating in the order of dismissal dated 29.10.1993 is contrary to and in violation of Rule 13 of the Uttar 2 Pradesh Police Officers of the Subordinate Ranks (P & A) Rules 1991 (hereinafter referred to as said “Rules”). The Tribunal took notice of each and every contention of Indra Pal Singh as was projected by him before the Tribunal and found no substance in those. 2. There is no dispute that Commandant in the Pradeshik Armed Constabulary is equivalent to Superintendent of Police. There is also no dispute that the respondents proceeded to discipline Indra Pal Singh under and in terms of the said Rules. At the same time, there is no dispute that the Commandant of Pradeshik Armed Constabulary, of which Indra Pal Singh was a member, was a witness to the proceedings initiated by the respondents resulting in the said order of dismissal dated 29.10.1993. 3. Rule 13 of the said Rules reads as follows: “13. Officer not competent to conduct disciplinary proceedings – A gazetted officer of the Police Force who is either a prosecution witness in the case or has earlier conducted a preliminary enquiry in that case shall not conduct inquiry in that case under these Rules. In case the said gazetted officer is the Superintendent of Police himself, the Deputy Inspector General concerned shall be moved to transfer the case to some other district or unit as the case may be.” 4. Fact remains that despite the Commandant of the said Constabulary being a witness in the case, no step 3 had been taken to transfer the case to some other district or unit. The case was concluded in the same district or unit. The conclusion, therefore, would be that the case was concluded by persons not competent to conclude the same, which in turn will suggest that the order of dismissal of Indra Pal Singh dated 29.10.1993 was passed by an incompetent person. 5. It is true that it was not contended before the Tribunal that the order of dismissal dated 29.10.1993 is by an incompetent person or that the case of Indra Pal Singh was not transferred in accordance with directions contained in Rule 13 of the said Rules, but the fact remains that infraction of law patent on the face of the record can be urged at any stage. Failure to urge the same before the Tribunal cannot stop the petitioners from urging the same before this court. Facts necessary to establish infraction of law were already on record before the Tribunal. It was an obligation of the Tribunal to see that the procedure adopted before passing the order of dismissal had sanction of law. The Tribunal failed to take note of the same. 6. We, accordingly, conclude the matter and quash the dismissal order dated 29.10.1993. We also declare that the said order of dismissal prevented Indra Pal Singh from rendering further service and accordingly, he must be deemed to be in service till the date he died. Consequentially, he shall be entitled to all salaries payable on and from 29.10.1993 until the date he died. 4 The order of Tribunal directing the respondents to pass an order pertaining to salaries and other allowances payable for the period Indra Pal Singh remained suspended until the date the said order was illegally passed is retained, but in the event during the pendency of present writ petition an order to that effect has been passed by the respondent, they are directed to pass a fresh order after taking into account the findings as above. It shall be deemed that Indra Pal Singh died in harness and accordingly, all his terminal dues, due and payable to him must be settled and paid to him as quickly as possible. The application of the dependent of Indra Pal Singh for compassionate appointment shall also be considered and disposed of in accordance with law. This disposes of the writ petition. (Nirmal Yadav, J.) (Barin Ghosh, C.J.) 08.11.2010 SKS