Mohd.Yunus Khan vs State Of U.P.& Ors

The facts of the present case reveal that a person who initiated the disciplinary proceedings against the appellant for disobeying his own orders; appointed his subordinate as an inquiry officer; appeared as a witness in the proceedings to prove the charges of disobedience of his orders; accepted the enquiry report; and further passed the order of punishment - i.e. dismissal of the appellant from service. The 1 question does arise as to whether such a course is permissible in law.

3. Facts and circumstances giving rise to this case are that the appellant was appointed as a Constable in the Provincial Armed Constabulary (hereinafter referred to as `PAC') on 10th February, 1969 and promoted to the post of Head Constable vide order dated 5th May, 1983. The appellant was posted with 30th Battalion PAC in G- Company in the year 2002. On 29th September, 2002, the appellant was on duty as Guard Commander along with another Head Constable named Rama Nand. At around 6.20 A.M., the appellant left his post and came back after 25 minutes after having tea and medicine in the 2 canteen. His departure from his post was duly recorded in the register maintained for the purpose by the other guard, Head Constable Rama Nand. The Dal Nayak endorsed his comments in respect of the appellant's absence for the period of 25 minutes and placed it before the Commandant on 3rd October, 2002. The Commandant vide order dated 4th October, 2002 imposed the punishment of 10 days punishment drill. Upon protest by the appellant, the Commandant enhanced the punishment to 10 days confinement in a cell. The appellant refused to serve the punishment being not acceptable to him.

4. Refusal to serve the punishment so imposed by the appellant was considered to be a serious act of indiscipline and he was placed under suspension. The appellant was served with a chargesheet dated 2nd December, 2002 indicating that an enquiry was to be held against him under Rule 14(1) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as `the Rules 1991). The appellant submitted his reply to the said chargesheet on 11th December, 2002. The inquiry officer concluded the enquiry and submitted the report on 28th March, 2003 with the finding that the appellant was guilty of negligence and disobedience and recommended his removal from service. 3

5. The Disciplinary Authority issued a notice dated 31st March, 2003 to the appellant to show cause as to why his services should not be terminated in view of the enquiry report. The appellant submitted his reply to the said show cause on 7th April, 2003. After considering the same, the Commandant passed the order dated 8th April, 2003 imposing the punishment of termination from service.

6. Being aggrieved, the appellant preferred an appeal against the order of termination. However, the said appeal was dismissed by the Appellate Authority vide order dated 25th August, 2003. The appellant challenged the said order of termination before the Tribunal by filing Claim Petition No. 837 of 2003. The Tribunal dismissed the said Claim Petition vide judgment and order dated 25th May, 2007 recording the finding that the absence from duty for 25 minutes on 29th September, 2002 was bona fide and permissible under Rule 21 of the Guard and Escort Rules, however, not obeying the order of punishment was a case of gross indiscipline and thus, order of termination of his services was justified.

13. The Appellate Authority, while affirming the said order of 8 punishment, considered the past conduct of the appellant wherein it had been mentioned that the appellant had been given 8 petty punishments; 3 censure entries; and a penalty of reversion for six months from the post of Head Constable to the post of Constable. He was also reduced to the lowest pay scale of Rs.975/- for one year after he had been found guilty in a departmental enquiry.

14. The Tribunal dismissed the Claim Petition filed by the appellant, however, it recorded the finding that the absence of the appellant for 25 minutes was bona fide and legally permissible in view of the provisions of Rule 21 of the Guard and Escort Rules. However, his subsequent misconduct, i.e., disobedience in carrying out the punishment was a serious matter. The Tribunal also took note of the order of the Appellate Authority wherein the past conduct of the appellant had been taken into consideration. The High Court dismissed the Writ Petition without realising the gravity of the legal issues involved in the case.

32. We are of the considered opinion that the initiation of disciplinary proceedings against the appellant and the conclusion thereof by the imposition of the punishment by the Commandant, who had himself been a witness, was in flagrant violation of the principles of natural justice and thus, stood vitiated. "Principles of natural justice are to some minds burdensome but this price-a small price indeed-has to be paid if we desire a society governed by the rule of law." All other consequential orders passed in appeal etc. remained inconsequential. More so, a protest/disobedience against an illegal order may not be termed as misconduct in every case. In an appropriate case, it may be termed as revolting to one's sense of 20 justice. In view of the above, we are of the considered opinion that the protest raised by the appellant against the punishment imposed for his absence could not give rise to a cause of action for initiating the disciplinary proceedings.

36. In view of the above, we reach the following inescapable conclusions:-

37. In view of the above, we are of the considered opinion that the present case is squarely covered by the decision of the Constitution Bench in Arjun Chaubey (supra). The order of punishment is null and void and therefore, cannot be given effect to. The appeal deserves to be allowed. The appellant had already reached the age of 24 superannuation and no fresh enquiry can be initiated in the matter if the earlier proceedings are rendered null and void for the violation of the statutory provisions and principles of natural justice. In the facts and circumstances of the case and in order to meet the ends of justice, it is desirable that the appellant be paid 50% of the wages from the date of removal from service till the date of reaching the age of superannuation and he be granted retiral benefits in accordance with law from the date of his retirement.

In view of the above, appeal stands disposed of. No order as to costs.