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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
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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
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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
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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
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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.
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16. 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
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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
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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
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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
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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
12and 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
13caprice; 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
14the 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
15a 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
17wide 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
18into 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
19or 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
20held 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
22Upendra 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
23orders 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,
24decisions 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.25
51. 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
26484 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
27that 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
28counter 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
29details 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
33petitioner’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
34petition 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
35शी 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
36बावजूद 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
37िदनांक 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
39Daduwa 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
40which 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
41or 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
42probation.”
“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
43Interpretation 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
44language 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
45as 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
46of 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”48
which 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
49injection 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
50decision 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
51consisting 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
52standards 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
53demoralise the bureaucracy by arbitrary use of power.
FABRICATION/MANIPULATION OF RECORD AND FALSITY OF
CHARGES/ALLEGATIONS104. 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
54contains 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,
55C.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.56
114. 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
57another 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
58allegation 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
59Court 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
60versus 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 and10).
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 54.61
126. 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,
62the 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
63Supreme 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.64
136. 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
66Review 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.67
HIGH 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
68rule 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
69could 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
70purposes 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
71authorities 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
72to 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
73466], 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: Page200) 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
74interrogated 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
75backup 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
76view 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
77favouritism 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
78Human 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.
80
Let 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/