{"id":245866,"date":"2010-07-15T00:00:00","date_gmt":"2010-07-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dhirendra-kumar-rai-vs-state-of-u-p-thr-prin-secy-home-on-15-july-2010"},"modified":"2019-01-04T02:19:40","modified_gmt":"2019-01-03T20:49:40","slug":"dhirendra-kumar-rai-vs-state-of-u-p-thr-prin-secy-home-on-15-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dhirendra-kumar-rai-vs-state-of-u-p-thr-prin-secy-home-on-15-july-2010","title":{"rendered":"Dhirendra Kumar Rai vs State Of U.P.Thr. Prin Secy Home on 15 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Dhirendra Kumar Rai vs State Of U.P.Thr. Prin Secy Home on 15 July, 2010<\/div>\n
                                   1\n\nIn the High Court of Judicature at Allahabad, Lucknow Bench,\n                           Lucknow\n                                           RESERVED\n\n                                                        A.F.R.\n\nCase :- SERVICE BENCH No. - 768 of 2008\nPetitioner :- Dhirendra Kumar Rai\nRespondent :- State Of U.P.Through Principal Secy Home\nPetitioner's Counsel :- I B Singh,K.K Singh\nRespondent Counsel :- C.S.C\n\nHon'ble Devi Prasad Singh,J.\n<\/pre>\n
Hon’ble S.C. Chaurasia,J.\n<\/p>\n
     (Delivered by Hon’ble Devi Prasad Singh, J)<\/p>\n
     Question involved and raised in the instant writ petition are :-\n<\/p>\n
1.   (a) Whether an order of suspension, activated by mala fide or
\nnon-application of mind and based on no evidence may be
\npassed ?\n<\/p>\n
     (b) Whether a bona fide error in decision making process
\nmay be termed as mis-conduct and for that, a police officer may be
\nsuspended and charged by adopting the procedure for major
\npenalty ? What constitute misconduct ?\n<\/p>\n
     (c) Whether the action of the State and its authorities based
\non no evidence or on trivial grounds may be permitted to continue
\nwhich may demoralise the police force ?\n<\/p>\n
2.   The petitioner, who is Deputy Superintendent of Police in the
\nU.P. Police Force, has approached this Court under Art. 226 of the
\nConstitution of India with the grievance that he has been
\npersecuted by the government only because he had interrogated
\nthe Chief Minister of the State Ms. Mayawati while serving in
\nCentral    Bureau   of   Investigation   (in   short,   C.B.I.)   and   in
\nconsequence thereof, the impugned action has been taken which
\nsuffers from bias based on no evidence.\n<\/p>\n
     The order of suspension as well as the charge-sheet has
\nbeen impugned while invoking extraordinary remedy of the Court
\n                                    2<\/span><\/p>\n
under Art. 226 of the Constitution of India.\n<\/p>\n
                        SERVICE CAREER<\/p>\n
3.    On 25.12.1976, the petitioner was appointed as Sub
\nInspector in U.P. Police through direct recruitment. It has been
\nstated that from very beginning, the petitioner has been
\ndischarging duty with utmost commitment to his job. In the year
\n1977, the former Minister of the State Brahmadutt Dwivedi was
\nmurdered and the petitioner was entrusted to assist C.B.I. which
\nresulted with positive outcome.\n<\/p>\n
4.    Keeping in view the bright service career, the petitioner was
\nchosen by the C.B.I. and from 13.7.1999 to 31.7.2006, the
\npetitioner remained in C.B.I. on deputation. He raided the Director
\nof Doordarshan, Lucknow and arrested him on accepting bribe of
\nRs.1 lac. He was also associated in Century Scam case.\n<\/p>\n
5.    The petitioner was part of the team conducting enquiry (P.E.
\nNo.4(A)\/2003 with regard to Taj Heritage Corridor.         During the
\ncourse of investigation, evidence was collected by the petitioner
\nwith regard to fake donors who were earlier not traceable. For this
\nact of skillful investigation, the C.B.I. has rewarded the petitioner
\nwith Rs.5000\/-.\n<\/p>\n
6.    In para 5 of the writ petition, it has also been stated that from
\n1976 to 1983, the petitioner was posted in Varanasi and recovered
\n2.50quintal of looted silver while serving at police station Adampur,
\nVaranasi and for this, he was rewarded.\n<\/p>\n
7.    It has also been stated that “Argha” made of gold of Baba
\nVishwanath temple, Varanasi was stolen but it was recovered by
\nthe petitioner and the accused were convicted during trial. It has
\nbeen stated that in 1987, the petitioner was posted at police station
\nPannuganj, Mirzapur (now district Sonbhadra) and while posted
\n                                  3<\/span><\/p>\n
there, he arrested a dacoit Ghamari Kharwar bearing reward of
\nRs.50,000\/- on his head. For this act of bravery, the petitioner was
\nrewarded by payment of Rs.30,000\/- by the Government of Bihar.\n<\/p>\n
      While posted at police station Pannuganj, Mirzapur, the
\npetitioner had recovered 60 guns, one sten gun, seven rifles of 303
\nbore belonging to Bihar Police and granades and got released five
\nabducted persons of U.P. in the custody of Ghamri Kharwar gang.\n<\/p>\n
8.    In the year 1990, the petitioner was promoted as Inspector in
\nU.P. Police and posted in the Vigilance Department at Varanasi
\nSector, Varanasi and arrested several employees indulged in
\nbribery.    While working as Inspector in Anti Corruption Branch,
\nLucknow, the petitioner laid several       traps of Class-I officers
\nincluding I.T.S. Officers and DGM of Telecom Department and
\nDirector, Doordarshan, U.P. and for this courageous work, he was
\npaid Rs.5,000\/- by the C.B.I. as reward.\n<\/p>\n
9.    The petitioner was part of investigation team in Century Scam
\ncase and arrested the accused from Kalimpong for which the C.B.I.
\nDirector has rewarded him with payment of Rs.10,000\/-. The
\npetitioner has generated various valuable information while serving
\nin C.B.I.\n<\/p>\n
10.   While investigating Case No. R.C. No.19(A)\/2003 as member
\nof team of C.B.I., the petitioner had searched the house of Ms.
\nMayawati (as she then was), at 13, Mal Avenue, Lucknow and
\ninterrogated Ms. Mayawati on 10.5.2005 at her residence at
\nHumayun Road, New Delhi and recorded her statement under
\nSection 161 CrPC. He also interrogated other family members of
\nMs. Mayawati (as she then was) and sisters of Late Kashiram.
\nWhile investigating as member of the team in C.B.I. In R.C.
\nNo.19(A)\/2003, the petitioner detected an asset of huge amount in
\nthe name of a lady who is wife of Siddharth Kumar who happens
\n                                   4<\/span><\/p>\n
to be the real brother of Ms. Mayawati. Siddharth Kumar had taken
\nV.R.S. on 16.2.2005 while serving on the post of Joint Director,
\nTraining in the Ministry of Labour and Social Justice. It has also
\nbeen stated that the petitioner detected huge assets existing in the
\nname of Bhabhi of Ms. Mayawati.\n<\/p>\n
11.    It has been stated that the petitioner was rewarded twice with
\npayment of Rs. 1,750\/- and Rs.1000\/- for commendable work he
\nhas done in connection with investigation of a case against Ms.
\nMayawati (as she then was). A copy of the reward sanctioned by
\nthe D.I.G., C.B.I. On 7.10.2004 has been annexed as Annexure
\nNo.3 to the writ petition.\n<\/p>\n
12.    The petitioner was recommended by the Superintendent of
\nPolice, Lucknow vide his letter dated 30.10.2003 for Indian Police
\nMedal on account of his meritorious service on the occasion of
\nRepublic Day 2004. The recommendation dated 30.10.2003(copy
\nAnnexure-4 to the writ petition) is self speaking depicting the
\npetitioner’s meritorious service record.\n<\/p>\n
       On the Republic Day, Indian Police Medal was awarded to
\nthe petitioner by the President of India, a copy of which has been
\nannexed as Annexure No.5 to the writ petition.\n<\/p>\n
13.    Thereafter in May, 2006, Departmental Promotion Committee
\nhas considered and promoted the petitioner on the post of Deputy
\nSuperintendent of Police.     Subsequently, on 31.7.2006, he was
\nreverted back to the U.P. Police by the C.B.I. and joined on the
\npost of Deputy Superintendent of Police, C.B.C.I.D. While posted
\nas Circle Officer in Lucknow, the petitioner arrested several
\nprominent persons for their criminal act. He served on Economic
\nOffences Wing and then transferred to Special Task Force, in short
\nSTF.\n<\/p>\n
       A team was constituted under the leadership of the petitioner
\n                                    5<\/span><\/p>\n
to carry out the operation against the rewarded dacoit Daduwa and
\nThokiya.\n<\/p>\n
14.   On July 21, 2007, after receipt of the information with regard
\nto the presence of Thokiya alias Amibika Patel in Sakri Bera forest
\nof district Chitrakoot, the petitioner along with his team members
\nproceeded to said village area in forest after informing the Senior
\nSuperintendent of Police, STF in Chitrakoot. It has been stated
\nthat the petitioner had proceeded in vehicle from Chitrakoot to Gupt
\nGodawari, district Satna of Madhya Pradesh and from there, he
\nalong with his team members left the vehicle and marched to the
\nassigned area on foot from the mid of hilly area and jungle.\n<\/p>\n
15.   On 22.7.2007, between 8.00a.m. to 9.15a.m., encounter took
\nplace between the petitioner and Thokiya gang of dacoits. In the
\nsaid encounter, one dacoit Maiyadeen was killed but other dacoits
\nmanaged to escape. Keeping in view the blood stains on earth, the
\npetitioner’s team has tried to chase other dacoits who were injured
\nin the said encounter.       It has been stated that the petitioner
\ncommunicated the Senior Superintendent of Police, STF on mobile
\nphone No.9415902216 and as per his instruction, he also informed
\nthe Addl. Director General of Police, STF Shri Shailja Kant Mishra
\non his mobile phone No.9415902048. The petitioner also
\nrequested Dr. Pritender Singh, Superintendent of Police, Chitrakoot
\nsix times on his mobile phone No.9415902832 for additional
\nforce(back-up). An assurance was given by the Superintendent of
\nPolice, Chitrakoot to the petitioner for additional force. Information
\nwas communicated by the petitioner to Shri Brijendra Rai, Station
\nHouse Officer, Karvi on his mobile phone No.9415904408 in
\ncompliance of the instruction issued by the Superintendent of
\nPolice, Chitrakoot but except the assurance, the Station House
\nOfficer, Karvi had not sent reinforcement team to provide back-up
\nto the petitioner’s force.\n<\/p>\n
                                    6<\/span><\/p>\n
16.     It has been stated by the petitioner that in spite of repeated
\ndemands raised to the various authorities, no force was sent to
\nprovide assistance to the petitioner’s team which was fighting with
\nthe dreaded dacoits of the locality and one of whom was killed
\nduring the course of encounter.\n<\/p>\n
        It has also been stated that Shri Brijendra Rai, Station House
\nOfficer, Karvi through his mobile phone No.9415904408 informed
\nthe petitioner for necessary assistance to be reaching there soon
\nbut no one has arrived till night. Though the encounter with dacoits
\ntook place on 22.5.2007 between 8.00a.m. to 9.15a.m. but no
\nassistance was provided to the petitioner’s team in spite of due
\ncommunication to various authorities.\n<\/p>\n
17.     On getting no reinforcement or back-up from the local police,
\nthe petitioner’s team took a decision to leave the place and back to
\ndistrict headquarter.    While coming back after encounter in the
\nintervening night of 22\/23.7.2007, dacoit Thokiya had arranged an
\nambush along with his gang and fired upon the petitioner’s team in
\nwhich six police personnel of the team and one informer died.
\nThereafter, the petitioner was transferred to district Pratapgarh and
\nlater on Special Investigating Team, Lucknow.         He was again
\ntransferred to district Unnao.\n<\/p>\n
18.     A magisterial enquiry was held and the Sub Divisional
\nMagistrate, Karvi, Chitrakoot submitted his report dated 31.8.2007.
\nAfter receipt of the report, by the impugned order, the petitioner
\nwas placed under suspension in contemplation of departmental
\nenquiry with the allegation that because of lack of leadership
\nquality, six members of the STF team died on account of ambush
\narranged by dacoit gang. It has been treated to be dereliction of
\nduty.\n<\/p>\n
19.     A charge-sheet of the same date, i.e. 26.5.2008 was served
\n                                     7<\/span><\/p>\n
upon the petitioner in which the report of the Superintendent of
\nPolice, Chitrakoot and report of Shri Ghanshyam Ahirwar , Circle
\nOfficer, Chitrakoot and the report of the Shri Brijendra Rai, SHO,
\nKarvi has been shown to be evidence. It shall be appropriate to
\nreproduce the impugned charge-sheet dated 26.5.2008 a copy of
\nwhich has been filed as Annexure No.2 to the writ petition.\n<\/p>\n
                               \u0906\u0930\u094b\u092a-\u092a\u0924<\/p>\n
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\n\u0915\u0930 \u093f\u0926\u092f\u0947 \u0917\u092f\u0947 \u0925\u0947, \u091c\u092c\u093f\u0915 \u0906\u092a \u092f\u0939 \u0905\u091a\u091b\u0940 \u0924\u0930\u0939 \u091c\u093e\u0928\u0924\u0947 \u0925\u0947 \u093f\u0915 \u0926\u0938\u092f\u0941 \u0917\u0917\u0948 \u0920\u094b\u093f\u0915\u092f\u093e \u0915\u093e \u091c\u092c
\n\u092d\u0940 \u0915\u094b\u0907 \u0938\u0926\u0938\u092f \u092a\u0941\u093f\u0932\u0938 \u092e\u0941\u0920\u092d\u0947\u0921. \u092e\u0947 \u092e\u093e\u0930\u093e \u091c\u093e\u0924\u093e \u0939\u0948 \u0935\u0939 \u092a\u093f\u0924\u0936\u094b\u0927\u0938\u0935\u0930\u092a \u092a\u0941\u093f\u0932\u0938 \u0938\u0947 \u092c\u0926\u0932\u093e
\n\u0905\u0935\u0936\u092f \u0932\u0947\u0924\u093e \u0939\u0948, \u0907\u0938 \u0913\u0930 \u0906\u092a\u0915\u0947 \u0926\u093e\u0930\u093e \u0927\u092f\u093e\u0928 \u0928\u0939\u0940 \u093f\u0926\u092f\u093e \u0917\u092f\u093e \u0964 \u092f\u093f\u0926 \u0906\u092a\u0915\u0947 \u0926\u093e\u0930\u093e \u0907\u0938
\n\u0913\u0930 \u0927\u092f\u093e\u0928 \u093f\u0926\u092f\u093e \u0917\u092f\u093e \u0939\u094b\u0924\u093e \u0914\u0930 \u0925\u094b\u0921\u0940 \u0938\u0940 \u0938\u0942\u091d-\u092c\u0942\u091d \u0938\u0947 \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u091f\u0940\u092e \u0915\u093e
\n\u092e\u093e\u0917\u0930\u0926\u0936\u0930\u0928 \u093f\u0915\u092f\u093e \u0917\u092f\u093e \u0939\u094b\u0924\u093e \u0924\u094b \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u0915\u0947 \u091c\u0935\u093e\u0928 \u0928\u0939\u0940 \u092e\u093e\u0930\u0947 \u091c\u093e\u0924\u0947 \u0914\u0930 \u0928 \u0939\u0940
\n\u0918\u093e\u092f\u0932 \u0939\u094b\u0924\u0947 \u090f\u0935\u0902 \u0907\u0938 \u092c\u0921\u0940 \u0918\u091f\u0928\u093e \u0938\u0947 \u092c\u091a\u093e \u091c\u093e \u0938\u0915\u0924\u093e \u0925\u093e \u0964 \u0907\u0938 \u0938\u092e\u092c\u0928\u0927 \u092e\u0947 \u0906\u092a\u0915\u0947 \u0926\u093e\u0930\u093e
\n\u093f\u0926\u0928\u093e\u0902\u0915 \u0968\u0969.\u0966\u096d.\u0966\u096d \u0915\u094b \u0925\u093e\u0928\u093e \u0915\u094b\u0924\u0935\u093e\u0932\u0940 \u0915\u0935\u0940, \u091c\u0928\u092a\u0926 \u093f\u091a\u0924\u0915\u0942\u091f \u092e\u0947 \u093f\u0932\u093f\u0916\u0924 \u0924\u0939\u0930\u0940\u0930 \u0926\u0940
\n                                     8<\/span><\/p>\n
\u0917\u092f\u0940, \u093f\u091c\u0938\u0915\u0947 \u0906\u0927\u093e\u0930 \u092a\u0930 \u092e\u0941\u0966\u0905\u0966\u0938\u0966
\n                         \u0902 -\u0969\u0968\u096c\/\u0968\u0966\u0966\u096d,                    \u0927\u093e\u0930\u093e-\u0967\u096a\u096d\/\u0967\u096a\u096e \/
\n\u0967\u096a\u096f\/\u0969\u0966\u096d\/ \u0969\u0966\u0968\/\u0969\u096a \u092d\u093e\u0926\u093f\u0935 \u0935 \u096d \u093f\u0915\u0966\u0932\u093e\u0966\u0905\u0966\u090f\u0915\u091f \u090f\u0935\u0902 \u0967\u0966\/\u0967\u0968 \u0921\u0940\u0966\u090f\u0966 \u090f\u0915\u091f
\n\u092c\u0928\u093e\u092e \u0920\u094b\u093f\u0915\u092f\u093e \u0917\u0917\u0948 \u0915\u0941\u0932 \u0967\u096c \u0905\u093f\u092d\u092f\u0941\u0915\u094b \u0915\u0947 \u093f\u0935\u0930\u0926 \u092a\u091c
\n                                        \u0902 \u0940\u0915\u0943\u0924 \u093f\u0915\u092f\u093e \u0917\u092f\u093e , \u093f\u091c\u0938\u0915\u0940
\n\u093f\u0935\u0935\u0947\u091a\u0928\u093e \u0936\u0940 \u092c\u0943\u091c\u0947\u0928\u0926 \u0930\u093e\u092f, \u0924\u0924\u0915\u093e\u0932\u0940\u0928 \u092a\u092d\u093e\u0930\u0940 \u093f\u0928\u0930\u0940\u0915\u0915 \u0925\u093e\u0928\u093e \u0915\u094b\u0924\u0935\u093e\u0932\u0940 \u0915\u0935\u0940 \u0926\u093e\u0930\u093e \u0915\u0940
\n\u0917\u092f\u0940 \u0924\u0925\u093e \u092a\u0936\u0928\u0917\u0924 \u092a\u0915\u0930\u0923 \u0915\u0940 \u091c\u093e\u0902\u091a \u0936\u0940 \u0918\u0928\u0936\u092f\u093e\u092e \u0905\u093f\u0939\u0930\u0935\u093e\u0930, \u0924\u0924\u0915\u093e\u0928\u0940\u0928 \u0915\u0947\u0924\u093e\u093f\u0927\u0915\u093e\u0930\u0940
\n\u0928\u0917\u0930, \u093f\u091a\u0924\u0915\u0942\u091f \u0926\u093e\u0930\u093e \u0915\u0940 \u0917\u092f\u0940 \u0964 \u092a\u0936\u0928\u0917\u0924 \u0905\u093f\u092d\u092f\u094b\u0917 \u0915\u0940 \u093f\u0935\u0935\u0947\u091a\u0928\u093e \u0915\u0947 \u0926\u094c\u0930\u093e\u0928 \u092a\u0942\u0930\u0947 \u092a\u0915\u0930\u0923 \u092e\u0947
\n\u0906\u092a\u0915\u0947 \u0926\u093e\u0930\u093e \u0915\u0940 \u0917\u092f\u0940 \u0924\u0941\u093f\u091f\u092f\u093e\u0902 \u092a\u093e\u0908 \u0917\u0908 \u0964\n<\/p>\n
      \u0906\u092a\u0915\u0940 \u0932\u093e\u092a\u0930\u0935\u093e\u0939\u0940\/\u0909\u0926\u093e\u0938\u0940\u0928\u0924\u093e \u0915\u0947 \u0915\u093e\u0930\u0923 \u090f\u0915 \u0914\u0930            \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u0915\u0947 \u0966\u096c
\n\u091c\u0935\u093e\u0928 \u0936\u0939\u0940\u0926 \u0939\u094b \u0917\u092f\u0947 \u0924\u0925\u093e \u0967\u0966 \u091c\u0935\u093e\u0928 \u0918\u093e\u092f\u0932 \u0939\u094b \u0917\u092f\u0947 \u0924\u094b \u0926\u0938
\n                                             \u0942 \u0930\u0940 \u0913\u0930 \u0926\u0938\u092f\u0942 \u0917\u0917\u0948 \u0932\u0940\u0921\u0930
\n\u0920\u094b\u093f\u0915\u092f\u093e \u0915\u093e \u092e\u0928\u094b\u092c\u0932\/\u0909\u0924\u0938\u093e\u0939 \u0914\u0930 \u092c\u0922. \u0917\u092f\u093e \u0964 \u0907\u0938 \u092a\u0915\u093e\u0930 \u0906\u092a\u0915\u0947 \u0926\u093e\u0930\u093e \u0905\u092a\u0928\u0947 \u0915\u0924\u0930\u0935\u092f\u094b \u0915\u0947
\n\u092a\u093f\u0924 \u0918\u094b\u0930 \u0932\u093e\u092a\u0930\u0935\u093e\u0939\u0940\/\u0909\u0926\u093e\u0938\u0940\u0928\u0924\u093e \u090f\u0935\u0902 \u0905\u0915\u092e\u0930\u0923\u092f\u0924\u093e \u092c\u0930\u0924\u0940 \u0917\u092f\u0940 \u0964 \u0909\u0915 \u0906\u0930\u094b\u092a\u094b \u0915\u0947 \u0938\u092e\u0925\u0930\u0928
\n\u092e\u0947 \u093f\u0928\u092e\u0928 \u0938\u093e\u0915\u092f \u092a\u0938\u0924\u093e\u093f\u0935\u0924 \u0939\u0903\u0948 –\n<\/p>\n
\u0915\u0902\u0966                 \u0938\u093e\u0915\u0940 \u0915\u093e \u0928\u093e\u092e                \u0938\u093e\u0915\u092f\n\n\u0938\u0966\n \u0902\n\n1     \u0936\u0940 \u092a\u0940\u093f\u0924\u0928\u0926\u0930 \u093f\u0938\u0902\u0939, \u092a\u0941\u093f\u0932\u0938 \u0905\u0927\u0940\u0915\u0915, \u092a\u093e\u0907       \u0917\u092f\u0940     \u0932\u093e\u092a\u0930\u0935\u093e\u0939\u0940\/\u0909\u0926\u093e\u0938\u0940\u0928\u0924\u093e,\n      \u093f\u091a\u0924\u0915\u0942\u091f                            \u0905\u0915\u092e\u0930\u0923\u092f\u0924\u093e \u0915\u093e \u0938\u092e\u0925\u0930\u0928\n\n2     \u0936\u0940 \u0918\u0928\u0936\u092f\u093e\u092e \u0905\u093f\u0939\u0930\u0935\u093e\u0930, \u0915\u0947\u0924\u093e\u093f\u0927\u0915\u093e\u0930\u0940 \u093f\u0926\u0928\u093e\u0902\u0915 \u0966\u0967.\u0966\u096f.\u0966\u096d \u0915\u094b \u092a\u0938\u0924\u0941\u0924 \u0915\u0940 \u0917\u092f\u0940\n      \u0928\u0917\u0930, \u093f\u091a\u0924\u0915\u0942\u091f                       \u092a\u0936\u0928\u0917\u0924 \u092a\u0915\u0930\u0923 \u0915\u0940 \u091c\u093e\u0902\u091a \u0915\u093e \u0938\u092e\u0925\u0930\u0928\n\n3     \u0936\u0940 \u092c\u0943\u091c\u0947\u0928\u0926 \u0930\u093e\u092f, \u092a\u092d\u093e\u0930\u0940 \u093f\u0928\u0930\u0940\u0915\u0915, \u093f\u0935\u0935\u0947\u091a\u0928\u093e\u0924\u092e\u0915 \u0915\u093e\u092f\u0930\u0935\u093e\u0939\u0940 \u0938\u0947 \u092a\u093e\u0908 \u0917\u092f\u0940\n      \u0915\u094b\u0924\u0935\u093e\u0932\u0940 \u0915\u0935\u0940, \u091c\u0928\u092a\u0926 \u093f\u091a\u0924\u0915\u0942\u091f          \u0915\u093f\u092e\u092f\u094b \u0915\u093e \u0938\u092e\u0925\u0930\u0928\n\n\n\n\u0905\u093f\u092d\u0932\u0947\u0916\u0940\u092f \u0938\u093e\u0915\u092f-\n\u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u0915\u0947 \u0967\u0966 \u091c\u0935\u093e\u0928\u094b \u0915\u0940 \u0907\u0928\u091c\u0930\u0940 \u093f\u0930\u092a\u094b\u091f\u0930 \u0964\n\u0968.    \u090f\u0924\u0926\u0926\u093e\u0930\u093e \u0906\u092a\u0938\u0947 \u092a\u0924\u092f\u0947\u0915 \u0906\u0930\u094b\u092a \u0915\u0947 \u0909\u0924\u0930 \u092e\u0947 \u0905\u092a\u0928\u0947 \u092c\u091a\u093e\u0935 \u0915\u093e \u093f\u0932\u093f\u0916\u0924 \u093f\u0935\u0935\u0930\u0923,\n<\/pre>\n
\u0906\u0930\u094b\u092a \u092a\u0924 \u0915\u0940 \u092a\u093e\u093f\u092a \u0915\u0947 \u0967\u096b \u093f\u0926\u0928 \u0915\u0947 \u0905\u0928\u0926\u0930 \u091c\u093e\u0902\u091a \u0905\u093f\u0927\u0915\u093e\u0930\u0940 \u0915\u094b \u092a\u0938\u0924\u0941\u0924 \u0915\u0930\u0928\u0947 \u0915\u0940 \u0905\u092a\u0947\u0915\u093e
\n\u0915\u0940 \u0917\u092f\u0940 \u0939\u0948 \u0964 \u0906\u092a\u0915\u094b \u0938\u091a\u0947\u0924 \u093f\u0915\u092f\u093e \u091c\u093e\u0924\u093e \u0939\u0948 \u093f\u0915 \u092f\u093f\u0926 \u091c\u093e\u0902\u091a \u0905\u093f\u0927\u0915\u093e\u0930\u0940 \u0915\u094b \u093f\u0928\u0927\u093e\u0930\u093f\u0930\u0924 \u0938\u092e\u092f
\n\u0915\u0947 \u0905\u0928\u0926\u0930 \u090f\u0935\u0902 \u0915\u094b\u0908 \u093f\u0935\u0935\u0930\u0923 \u0928\u0939\u0940 \u092a\u093e\u092a \u0939\u094b\u0924\u093e \u0939\u0948, \u093f\u091c\u0938\u0915\u0940 \u092a\u0924\u092f\u093e\u0936\u093e \u0915\u0940 \u0917\u092f\u0940 \u0939\u0948, \u0924\u094b \u092f\u0939
\n\u092e\u093e\u0928\u093e \u091c\u093e\u090f\u0917\u093e \u093f\u0915 \u0909\u092a\u0930\u094b\u0915 \u0915\u0947 \u0938\u092c \u0902 \u092e\u0947 \u0906\u092a\u0915\u094b \u0915\u0941\u091b \u0928\u0939\u0940 \u0915\u0939\u0928\u093e \u0939\u0948 , \u0914\u0930 \u0906\u092a\u0915\u0947 \u092a\u0915\u0930\u0923
\n                        \u0902 \u0927
\n\u092e\u0947 \u0924\u0926\u0928\u0941\u0938\u093e\u0930 \u090f\u0915\u092a\u0915\u0940\u092f \u0915\u093e\u092f\u0930\u0935\u093e\u0939\u0940\/\u093f\u0928\u0923\u0930\u092f \u0932\u0947 \u093f\u0932\u092f\u093e \u091c\u093e\u092f\u0947\u0917\u093e \u0964
\n\u0969.      \u092f\u093f\u0926 \u0906\u092a \u0935\u092f\u093f\u0915\u0917\u0924 \u0938\u0941\u0928\u0935\u093e\u0908 \u0915\u0947 \u093f\u0932\u092f\u0947 \u0907\u091a\u091b\u0941\u0915 \u0939\u0948 \u0914\u0930 \u093f\u0915\u0938\u0940 \u0938\u093e\u0915\u0940 \u0915\u0940
\n\u092a\u0930\u0940\u0915\u093e\/\u092a\u093f\u0924\u092a\u0930\u0940\u0915\u093e \u0915\u0930\u0928\u093e \u091a\u093e\u0939\u0924\u0947 \u0939\u0948 \u0924\u094b \u0905\u092a\u0928\u0947 \u093f\u0932\u093f\u0916\u0924 \u093f\u0935\u0935\u0930\u0923 \u0915\u0947 \u0938\u093e\u0925 \u0909\u0938\u0915\u093e \u0928\u093e\u092e, \u092a\u0924\u093e
\n                                    9<\/span><\/p>\n
\u0938\u093e\u0915\u092f \u0915\u093e, \u093f\u091c\u0938\u0947 \u092a\u0924\u092f\u0947\u0915 \u090e\u0938\u0947 \u0938\u093e\u0915\u0940 \u0938\u0947 \u0926\u0947\u0928\u0947 \u0915\u0940 \u092a\u0924\u092f\u093e\u0936\u093e \u0915\u0940 \u091c\u093e\u092f\u0947\u0917\u0940, \u0938\u092e\u0941\u093f\u091a\u0924 \u093f\u0935\u0935\u0930\u0923 \u092d\u0940
\n\u091c\u093e\u0902\u091a \u0905\u093f\u0927\u0915\u093e\u0930\u0940 \u0915\u094b \u092a\u0938\u0924\u0941\u0924 \u0915\u0930\u0947 \u0964”\n<\/p>\n
20.   While assailing the impugned order, learned counsel for the
\npetitioner has relied upon the judgments reported in 1974 ALR 64
\nState of U.P. Versus Jai Singh Dixit and others, (1995)1 SCC 332
\nTransport Commissioner, Madras-5 versus A. Radha Krishna
\nMoorthy, 1997(31) ALR 604 Ram Dular Tripathi versus State of
\nU.P. And others, (1992)4 SCC 54 State of Punjab and others
\nversus Ram Singh Ex. Constable and AIR 1979 SC 1022 Union of
\nIndia and others versus J. Ahmed.\n<\/p>\n
21.   On the other hand, learned counsel for the respondents has
\nrelied upon the case reported in (1994)3 SCC 357 Union of India
\nand others versus Upendra Singh, (1996)3 SCC 157 Secretary
\nto Government, Prohibition & Excise Department versus L.
\nSrinivasan, (1996)11 SCC 498 Dy. Inspector General of Police
\nversus K.S. Swaminathan, (1997)11 SCC 368 State of Punjab
\nand others versus Ajit Singh and (2006)12 SCC 28 Union of
\nIndia and another versus Kunisetty Satyanarayana.\n<\/p>\n
            MAINTAINABILITY OF THE WRIT PETITION
\n                        DISCRETION<\/p>\n
22.   Learned Additional Chief Standing Counsel while defending
\nthe action of the State Government has submitted that the statutory
\ndiscretion has been exercised by the government after considering
\nthe material on record and the order of suspension has been
\npassed in contemplation of departmental enquiry and the charge-
\nsheet has been issued, hence the writ petition is not maintainable.\n<\/p>\n
23.   Keeping in view the submission made by the learned
\nAdditional Chief Standing Counsel, it shall be appropriate to
\n                                    10<\/span><\/p>\n
consider the rights flowing from Art. 226 of the Constitution of India
\nwith regard to judicial review and the disciplinary power of the State
\nto pass an order while exercising the statutory power.\n<\/p>\n
24.   According to Webster’s Encyclopaedia Unabridged Dictionary
\n(1994), p.411, the “Discretion” means the power, right or liberty to
\ndecide one way or the other, to act according to one’s own
\njudgment; freedom of choice; to be completely under one’s power
\nor control; the freedom to decide what should be done in a
\nparticular situation.\n<\/p>\n
25.   In Rooke case, (1598) 5 Co Rep 99b (100a), the “Discretion”
\nproclaimed Coke, “is a science of understanding to discern
\nbetween falsity and truth, between right and wrong, between
\nshadows and substance, between equity and colourable glosses
\nand pretences, and not to do according to their wills and private
\naffections.\n<\/p>\n
26.    In Sharp v. Wakefield, reported in 1891 AC 173, 179, Lord
\nHalsbury rightly observed as under:-\n<\/p>\n
                ”[D]iscretion’ means when it is said that something is
\n                to be done within the discretion of the authorities
\n                that something is to be done according to the rules
\n                of reason and justice, not according to private
\n                opinion….. according to law and not humour. It is to
\n                be, not arbitrary, vague, and fanciful, but legal and
\n                regular. And it must be exercised within the limit, to
\n                which an honest man competent to the discharge of
\n                his office ought to confine himself….”<\/p>\n
27.   Hon’ble Supreme Court in a case reported in 2004(2) SCC
\n590; Union of India v. Kuldeep Singh<\/a> has held that the discretion is
\nto know through law what is just. To quote:-\n<\/p>\n
                                     11<\/span><\/p>\n
              “Discretion is to know through law what is just.
\n              Where a judge has and exercises a judicial
\n              discretion his order is unappealable unless he did so
\n              under a mistake of law or fact or in disregard of
\n              principle, or after taking into account irrelevant
\n              matters. It will help to show this if it can be shown
\n              that there were no materials on which he could
\n              exercise his discretion in the way he did……”<\/p><\/blockquote>\n
     Their Lordships of Hon’ble Supreme Court further proceeded
\nto hold as under:-\n<\/p>\n
                     “20. When anything is left to any person, judge or
\n                     Magistrate to be done according to his discretion,
\n                     the law intends it must be done with sound
\n                     discretion, and according to law. (See Tomlin’s
\n                     Law Dictionary) In its ordinary meaning, the word
\n                     “discretion” signifies unrestrained exercise of
\n                     choice or will; freedom to act according to one’s
\n                     own judgment; unrestrained exercise of will; the
\n                     liberty or power of acting without control other
\n                     than one’s own judgment. But, when applied to
\n                     public functionaries, it means a power or right
\n                     conferred upon them by law, of acting officially in
\n                     certain circumstances according to the dictates of
\n                     their own judgment and conscience, uncontrolled
\n                     by the judgment or conscience of others.
\n                     Discretion is to discern between right and wrong;<\/p><\/blockquote>\n
                     and therefore, whoever hath power to act at
\n                     discretion, is bound by the rule of reason and
\n                     law.   (See     Tomlin’s    Law     Dictionary)\n<\/p>\n
                     21. Discretion, in general, is the discernment of
\n                     what is right and proper. It denotes knowledge
\n                   12<\/span><\/p>\n
and prudence, that discernment which enables a
\nperson to judge critically of what is correct and
\nproper united with caution; nice discernment, and
\njudgment directed by circumspection; deliberate
\njudgment; soundness of judgment; a science or
\nunderstanding to discern between falsity and
\ntruth, between wrong and right, between shadow
\nand substance, between equity and colourable
\nglosses and pretences, and not to do according
\nto the will and private affections of persons.
\nWhen it is said that something is to be done
\nwithin the discretion of the authorities, that
\nsomething is to be done according to the rules of
\nreason and justice, not according to private
\nopinion; according to law and not humour. It is to
\nbe not arbitrary, vague, and fanciful, but legal and
\nregular. And it must be exercised within the limit,
\nto which an honest man, competent to the
\ndischarge of his office out to confine himself (per
\nLord Halsbury, L.C., in Sharp v. Wakefield). (Also
\nsee S.G. Jaisinghani v. Union of India)\n<\/p>\n
22. The word ”discretion’ standing single and
\nunsupported by circumstances signifies exercise
\nof judgment, skill or wisdom as distinguished
\nfrom folly, unthinking or haste; evidently therefore
\na discretion cannot be arbitrary but must be a
\nresult of judicial thinking. The word in itself
\nimplies      vigilant   circumspection       and   care;
\ntherefore,     where     the   legislature    concedes
\ndiscretion it also imposes a heavy responsibility.
\n“The discretion of a judge is the law of tyrants; it
\nis always unknown. It is different in different men.
\nIt is casual, and depends upon constitution,
\ntemper and passion. In the best it is often times
\n                                   13<\/span><\/p>\n
                  caprice; in the worst it is every vice, folly, and
\n                  passion to which human nature is liable.” Said
\n                  Lord Camden, L.C.J., in Hindson and Kersey”.\n<\/p>\n
28.   In view of above in case the statutory discretion vests in an
\nauthority then such discretion should be exercised not in arbitrary,
\nwhimsical and fanciful manner. It must be reflected from the
\noutcome of event that the authority concerned has exercised
\ndiscretion within the sound principle of law, skill and wisdom with
\nvigilant circumspection and care. The discretionary power imposes
\na heavy responsibility on a person or authority. The latitude or
\nliberty accorded by statute, Circular or Order to the higher authority
\ndoes not permit to exercise such power in unjust and unfair
\nmanner. In the case of Kuldeep Singh (supra), their Lordships of
\nApex Court further held as under:-\n<\/p>\n
                   ” If a certain latitude or liberty is accorded by a
\n               statute or rules to a judge as distinguished from a
\n               ministerial or administrative official, in adjudicating
\n               on matters brought before him, it is judicial
\n               discretion. It limits and regulates the exercise of
\n               discretion, and prevents it from being wholly
\n               absolute, capricious, or exempt from review.”\n<\/p><\/blockquote>\n
29.   Hon’ble Supreme Court in the case of State of U.P. vs.
\nMohd. Nooh<\/a> reported in 1958 SC 86, Pratap Singh vs. State of
\nPunjab reported in AIR 1964 SC 72, Fashih Chaudhary vs. D.G.
\nDoordarshan reported in 1989(1) SCC 189 held that if the act
\ncomplained of is without jurisdiction or is in excess of authority
\nconferred by statute or there is abuse or misuse of power, a Court
\ncan interfere. In such an eventuality, mere fact that there is denial
\nof allegation of malafide or oblique motive or of its having taken
\ninto consideration improper or irrelevant matter does not preclude
\nthe court from enquiring into the truth of allegations levelled against
\n                                       14<\/span><\/p>\n
the authority and granting appropriate relief to the aggrieved party.\n<\/p>\n
30.     In number of cases Hon’ble Supreme Court ruled that every
\narbitrary   action,   whether    in    the   nature   of   legislative   or
\nadministrative or quasi-judicial exercise of power, is liable to attract
\nthe prohibition of Article 14 of the Constitution of India vide AIR
\n1974 SC 555; E.P.Royappa v. State of Tamil Nadu,<\/a> 1979 (3) SCC
\n489; R.D. Shetty v. International Airport Authority,<\/a> 1978 (1) SCC
\n248; Maneka Gandhi v. Union of India,<\/a> 1981(1) SCC 722; Ajay
\nHasia v. Khalid Mujib,<\/a> 1990 (3) SCC 223; Shri Sitaram Sugar
\nCo. Ltd. v. Union of India.\n<\/p>\n
31.     In M.I. Builders Pvt. Ltd. v. Radhey Shyam<\/a> reported in
\n(1999) 6 SCC 464, the Apex Court ruled that the decision is
\nunlawful if it is one to which no reasonable authority could have
\ncome.\n<\/p>\n
32.     The Constitution Bench of Hon’ble Supreme Court in a case
\nreported in AIR 1991 SC 101; Delhi Transport Corporation v.
\nD.T.C. Mazdoor Congress and others<\/a> had repelled the
\npresumption that person holding high office does not commit
\nwrong. Discretion enjoyed by the persons holding high offices
\nshould not be left to the good sense of individuals. Relevant portion
\nfrom the judgment of Delhi Transport Corporation (supra) is
\nreproduced as under:-\n<\/p>\n
                “There is need to minimize the scope of the arbitrary
\n                use of power in all walks of life. It is inadvisable to
\n                depend on the good sense of the individuals,
\n                however high-placed they may be. It is all the more
\n                improper and undesirable to expose the precious
\n                rights like the rights of life, liberty and property to the
\n                vagaries of the individual whims and fancies. It is
\n                trite to say that individuals are not and do not
\n                become wise because they occupy high seats of
\n                power, and good sense, circumspection and
\n                fairness does not go with the posts, however high
\n                they may be. There is only a complaisant
\n                presumption that those who occupy high posts have
\n                                    15<\/span><\/p>\n
               a high sense of responsibility. The presumption is
\n               neither legal nor rational. History does not support it
\n               and reality does not warrant it. In particular, in a
\n               society pledged to uphold the rule of law, it would be
\n               both unwise and impolitic to leave any aspect of its
\n               life to be governed by discretion when it can
\n               conveniently and easily be covered by the rule of
\n               law…………..\n<\/p><\/blockquote>\n
               25. The “high authority” theory so-called has already
\n               been adverted to earlier. Beyond the self-deluding
\n               and self-asserting righteous presumption, there is
\n               nothing to support it. This theory undoubtedly
\n               weighed with some authorities for some time in the
\n               past. But its unrealistic pretensions were soon
\n               noticed and it was buried without even so much as
\n               an ode to it. Even while Shah, J. in his dissenting
\n               opinion in Moti Ram Deka v. General Manager,
\n               N.E.P. Railways, Maligaon, Pandu,<\/a> (1964) 5 SCR
\n               683: (AIR 1964 SC 600) had given vent to it, Das
\n               Guptam H. in his concurring judgment but dealing
\n               with the same point of unguided provisions of Rule
\n               148(3) of the Railways Establishment Code, had not
\n               supported that view and had struck down the rule as
\n               being violative of Article 14 of the Constitution. The
\n               majority did not deal with this point at all and struck
\n               down the Rule as being void on account of the
\n               discrimination it introduced between railway
\n               servants and other government servants.”\n<\/p><\/blockquote>\n
33.    The Supreme Court in 2005(5) SCC 181; State of NCT of
\nDelhi and another v. Sanjeev alias Bittoo upheld the right of
\njudicial review under Article 226 on the basis of illegality in decision
\nmaking process coupled with irrationally and perversity. While
\nholding that decision is irrational and Court may look into the
\nmaterial on record. (Paragraphs 16, 17 and 21)<\/p>\n
      Hon’ble Supreme Court further held in the case of Sanjeev
\n(supra) that if the administrative or judicial power has been
\nexercised on non-consideration or non-application of mind to
\nrelevant factors, such exercise shall stand vitiated. Relevant
\nportion from the judgment of Sanjeev (supra) is reproduced as
\nunder:-\n<\/p>\n
                                      16<\/span><\/p>\n
                  “If the power has been exercised on a non-
\n                  consideration      or   non-application   of   mind   to
\n                  relevant factors, the exercise of power will be
\n                  regarded as manifestly erroneous. If a power
\n                  (whether legislative or administrative) is exercised
\n                  on the basis of facts which do not exist and which
\n                  are patently erroneous, such exercise of power will
\n                  stand vitiated.”\n<\/p><\/blockquote>\n
34.   In Centre for Public Interest Litigation and another v.
\nUnion of India reported in 2005 (8) SCC 202, the Hon’ble
\nSupreme Court reiterated the settled proposition of law that every
\nadministrative action should be reasonable and fair. Hon’ble
\nSupreme Court further held that the procedure adopted by the
\nAdministrative body should not be only fair but also seems to be
\njust, fair and proper.\n<\/p>\n
35.   Hon’ble Supreme Court in a case reported in AIR 1966 SC
\n81, Dwarka Nath Vs. Income Tax Officer and another while
\npronouncing the scope of article 226 of constitution of India held as
\nunder:-\n<\/p>\n
                   “para 4.     We shall first take the preliminary
\n                   objection, for if we maintain it, no other question
\n                   will arise for consideration. Article 226 of the
\n                   constitution reads:\n<\/p><\/blockquote>\n
                          “……..every High Court shall have power
\n                   throughout the territories in relation to which it
\n                   exercises jurisdiction, to issue to any person or
\n                   authority, including in appropriate cases any
\n                   Government, within those territories directions,
\n                   orders or writs, including writs in the nature of
\n                   habeas corpus, mandamus, prohibition, quo
\n                   warranto and certiorari, or nay of them, for the
\n                   enforcement of any of the rights conferred by Part
\n                   III and for any other purpose.”\n<\/p><\/blockquote>\n
                   This article is couched in comprehensive
\n                   phraseology land it ex facie confers a wide power
\n                   on the High Courts to reach injustice wherever it
\n                   is found. The Constitution designedly used a
\n                                  17<\/span><\/p>\n
                 wide language in describing the nature of the
\n                 power, the purpose for which and the person or
\n                 authority against whom it can be exercised. It
\n                 can issue writs in the nature of prerogative writs
\n                 as understood in England: but the scope of those
\n                 writs also is widened by the use of the expression
\n                 “nature” for the said expression does not equate
\n                 the writs that can be issued in India with those in
\n                 England, but only draws an analogy from them.
\n                 That apart, High Courts can also issue directions,
\n                 orders or writs other the prerogative writs. It
\n                 enables the High courts to mould the reliefs to
\n                 meet the peculiar and complicated requirements
\n                 of this country. Any attempt to equate the scope
\n                 of th empower of the high court under Art. 226 of
\n                 the constitution with that of the English courts to
\n                 issued prerogative writs is to introduce the
\n                 unnecessary procedural restrictions grown over
\n                 the years in a comparatively small country like
\n                 England with a unitary form of government to a
\n                 vast country like India functioning under a federal
\n                 structure. Such a construction defeats th purpose
\n                 of the article itself. To say this I snot to say that
\n                 the High Courts can function arbitrarily under this
\n                 Article. Some limitations are implicit in the article
\n                 and others may be evolved to direct the article
\n                 through defined channels. This interpretation has
\n                 been accepted by this court in T.C.Basappa Vs.
\n                 Nagappa, 1955-1 SCR 250 (AIR 1954 SC 440)
\n                 and Irani Vs. State of Madras 1962-(2) SCR 169;
\n                 (AIR 1961 SC 1731).”\n<\/p><\/blockquote>\n
36.   In the famous Minerva Mills Ltd. Vs. Union of India case
\nreported in AIR 1980 (2) SCC 1789, the Apex Court held that the
\nHigh Court can substitute its own finding in case an action is found
\nto be wrong. The controversy was relating to Government right to
\nexercise power under Article 352 of the Constitution of India but the
\nSupreme Court had given emphasis to exercise power to preserve
\nthe constitutional rights of the people of country. For convenience
\nrelevant portion from Minerva Mill case (supra) is reproduced as
\nunder:-\n<\/p>\n
                 “Para 79 Three Articles of our Constitution, and
\n                 only three stand between the heaven of freedom
\n                 18<\/span><\/p>\n
into which Tagore wanted his country to awake
\nand the abyss of unrestrained power. They are
\nArticle 14, 19 and 21. Article 31 C has removed
\ntwo sides of that golden triangle which affords to
\nthe people of this Country an assurance that the
\npromise held forth, by the Preamble will be
\nperformed by ushering an egalitarian era through
\nthe discipline of fundamental rights, that is,
\nwithout emasculation of the rights to liberty and
\nequality which alone can help preserve the
\ndignity of the individual.”\n<\/p>\n
“para 103 It will be convenient at this stage to
\nconsider the question as to whether and if so to
\nwhat extent, the Court can review the
\nconstitutionality of a proclamation of Emergency
\nissued under Art. 352 Cl. (1). There were two
\nobjections put forward on behalf of the
\nrespondents against the competence of the Court
\nto examine the question of validity of a
\nproclamation of Emergency. One objection was
\nthat the question whether a grave emergency
\nexists whereby the security of India or any part
\nthereof is threatened          by war or external
\naggression or internal disturbance is essentially a
\npolitical question entrusted by the Constitution to
\nthe Union Executive and on that account, it is not
\njusticiable before the court. It was urged that
\nhaving regard to the political nature of the
\nproblem, it was not amenable to judicial
\ndetermination and hence the court must refrain
\nfrom inquiring into it. The other objection was
\nthat in any event by reason of Cls. (4) and (5) of
\nArticle 352, the Court had no jurisdiction to
\nquestion the satisfaction of the President leading
\nto the issue of a proclamation of Emergency or to
\nentertain any question regarding the validity of
\nthe Proclamation of Emergency or its continued
\noperation. Both these objections are in view
\nunfounded and they do not bar judicial review of
\nthe validity of the Proclamation of Emergency
\nissued by the President under Article 352 Cl. (1).
\nMy reasons for saying so are as follows.”\n<\/p>\n
“Para 104 …….So long as the question is
\nwhether an authority under the constitution has
\nacted within the limits of its power or exceeded it,
\nit can certainly be decided by the court. Indeed it
\nwould be its constitutional obligation to do so. I
\nhave said before, I repeat again, that the
\nConstitution is suprema lex, the paramount, law
\nof the land, and there is no department or branch
\nof government above or beyond it. Every organ
\n                                  19<\/span><\/p>\n
                 or government, be it the executive or the
\n                 legislature or the judiciary, derives its authority
\n                 from the Constitution and it has to act within the
\n                 limits of its authority and whether it has done so
\n                 or not I for the court to decide. The court is the
\n                 ultimate interpreter of the Constitution and when
\n                 there is manifestly unauthorised exercise of
\n                 power under the Constitution, it is the duty of the
\n                 court to intervene. Let it not be forgotten, that to
\n                 this court as much as to other branches of
\n                 government, is committed the conservation and
\n                 furtherance of constitutional values. The Court’s
\n                 task is to identify those values in the
\n                 constitutional plan and to work then into life in the
\n                 cases that reach the court. “Tact and wise
\n                 restraint ought to temper any power but courage
\n                 and the acceptance of responsibility have their
\n                 place too.” The Court can not be and should not
\n                 shirk this responsibility, because it has sworn the
\n                 oath of allegiance to the Constitution and is also
\n                 accountable       to     the   people     of     this
\n                 country………………………”\n<\/p>\n
37.   In a case reported in 1965 SC 1150, Devilal Vs. Sales Tax
\nOfficer, Hon’ble Supreme Court held that an application under
\nArticle 226 of Constitution of India can not be refused on mere
\nground that application is not in proper form. The relevant portion
\nfrom the Apex Court judgment is reproduced as under:-\n<\/p>\n
                       “There can be no doubt that the
\n                       fundamental rights guaranteed to the
\n                       citizens are a significant feature of our
\n                       Constitution and the High Courts under
\n                       Article 226 are bound to protect these
\n                       fundamental rights. There can also be no
\n                       doubt that if a case is made out for the
\n                       exercise of its jurisdiction under Article 226
\n                       in support of a citizen’s fundamental rights,
\n                       the High court will not hesitate to exercise
\n                       that jurisdiction.”\n<\/p><\/blockquote>\n
38.   Hon’ble Supreme court in a case reported in AIR 1981 SC
\n344, Fertiliser Corporation Kamagar Union (Regd.) Sindri and
\nothers Vs. Union of India and others, while considering the
\npower under Article 32 as well as 226 of the Constitution of India
\n                                  20<\/span><\/p>\n
held that the power under Article 32 can be used only for
\nenforcement of fundamental right but under Article 226 also for ‘any
\nother purpose’, for convenience relevant portion from Fertiliser’s
\ncase is reproduced as under:-\n<\/p>\n
                 “Para 10. Article 32 of the constitution which
\n                 guarantees by clause (1) the right to move the
\n                 Supreme Court by appropriate proceedings for
\n                 the enforcement of the rights conferred by Part
\n                 III, provides by clause (2) that:\n<\/p><\/blockquote>\n
                        “the Supreme Court shall have power to
\n                 issue direction or orders or writs, including writs
\n                 in the nature of habeas corpus, mandamus,
\n                 prohibition, quo warranto and certiorari,
\n                 whichever may be appropriate,                for the
\n                 enforcement of any of the rights conferred by this
\n                 part”\n<\/p><\/blockquote>\n
                 It is manifest that the jurisdiction conferred on this
\n                 Court by Article 32 can be exercised for the
\n                 enforcement of the rights conferred by Part III
\n                 and for no other purpose. Clause (1) as well as
\n                 Clause (2) of article 32 bring out this point in
\n                 sharp focus. As contrasted with Article 32, article
\n                 226 (1) of the Constitution provides that:\n<\/p><\/blockquote>\n
                        “Notwithstanding anything in article 32
\n                 every High Court shall have power, throughout
\n                 the territories in relation to which it exercises
\n                 jurisdiction, to issue to any person or authority,
\n                 including in appropriate cases, any Government,
\n                 within those territories directions, orders or writs,
\n                 including writs in the nature of habeas corpus,
\n                 mandamus, prohibition, quo warranto and
\n                 certiorari, or any of then, for the enforcement of
\n                 any of the rights conferred by Part III and for any
\n                 other purpose.”\n<\/p><\/blockquote>\n
                 The difference in the phraseology of the two
\n                 Articles brings out the marked difference in the
\n                 nature and purpose of the right conferred by
\n                 these Article. Whereas the right guaranteed by
\n                 Article 32 can be exercised for the enforcement
\n                 of fundamental rights only, the right conferred by
\n                 article 226 can be exercised not only for the
\n                 enforcement of fundamental rights but for any
\n                 other purpose.”\n<\/p><\/blockquote>\n
39.   In the case of Union of India versus Vicco Laboratories
\n                                  21<\/span><\/p>\n
(2007)218 ELT 647 SC again the Hon’ble Supreme Court
\nreiterated the earlier propositions that alternative remedy is no bar
\nfor exercising writ jurisdiction by the courts. Their Lordships held
\nthat where a show cause notice is issued either without jurisdiction
\nor in an abuse process of law, certainly in that case, the writ court
\nwould not hesitate to interfere even at the stage of issuance of
\nshow cause notice. The relevant portion is reproduced as under:\n<\/p>\n
                        “Normally, the writ court should not interfere
\n                 at the stage of issuance of show cause notice by
\n                 the authorities. In such a case, the parties get
\n                 ample opportunity to put forth their contentions
\n                 before the concerned authorities and to satisfy
\n                 the concerned authorities about the absence of
\n                 case for proceeding against the person against
\n                 whom the show cause notices have been issued.
\n                 Abstinence from interference at the stage of
\n                 issuance of show cause notice in order to
\n                 relegate the parties to the proceedings before
\n                 the concerned authorities is the normal rule.
\n                 However, the said rule is not without exceptions.
\n                 Where a Show Cause notice is issued either
\n                 without jurisdiction or in an abuse of process of
\n                 law, certainly in that case, the writ court would not
\n                 hesitate to interfere even at the stage of issuance
\n                 of show cause notice. The interference at the
\n                 show cause notice stage should be rare and not
\n                 in a routine manner. Mere assertion by the writ
\n                 petitioner that notice was without jurisdiction
\n                 and\/or abuse of process of law would not suffice.
\n                 It should be prima facie established to be so.
\n                 Where factual adjudication would be necessary,
\n                 interference is ruled out”.\n<\/p><\/blockquote>\n
40.   In the case of Radha Krishan Moorthy(supra), their Lordships
\nof Hon’ble Supreme Court held that while interfering through
\njudicial review, the Court may not go into the truth of allegation
\n\/charges except in case they are based on no evidence or charges
\nare vague and not clear.\n<\/p>\n
41.   Reliance placed by the learned Addl. Chief Standing Counsel
\non the case of Upendra Singh(supra) seems to be not applicable
\nunder the facts and circumstances of the case. In the case of
\n                                   22<\/span><\/p>\n
Upendra Singh (supra), it was the tribunal which interfered with the
\nenquiry on the basis of correctness of charges. Hence, Hon’ble
\nSupreme Court held that it was beyond the jurisdiction of the
\ntribunal which is akin to that of High Court under Article 226 of the
\nConstitution of India to interfere with the charge-sheet. The power
\nof tribunal is restricted statutory power whereas the power of this
\nCourt under Art. 226 of the Constitution of India is wider to interfere
\nfor “any other purpose”.\n<\/p>\n
42.   The case of L. Srinivasan(supra) relates to interference by
\nadministrative tribunal quashing order of suspension or charge-
\nsheet is not applicable in the present context.\n<\/p>\n
43.   The case of Ajit Singh(supra) relates to a situation where
\nPunjab and Haryana High Court has examined the merit of the
\ncharges, hence the Hon’ble Supreme Court held that it could not
\nhave been done.\n<\/p>\n
44.   In the present case, the submission of the petitioner’s
\ncounsel is with regard to abuse of process of law, mala fide on the
\npart of the State authorities and also a plea has been raised that
\nassuming the allegation on record as correct, it shall not amount to
\nmisconduct. It has been vehemently stated that final outcome of
\nthe enquiry is well-known fact, hence the Court should exercise
\nextraordinary jurisdiction under Article 226 of the Constitution.\n<\/p>\n
45.   The case of Kunisetty Satyanarayana(supra) also relates to
\ndifferent facts and circumstances which does not seem to be
\napplicable in the present case.\n<\/p>\n
                              JUDICIAL REVIEW<\/p>\n
46.   Since almost six decades, courts have been following the
\nWednesbury principle while interfering with the administrative
\n                                 23<\/span><\/p>\n
orders through judicial review but keeping in view the moral
\ndevaluation in the society as well as the functioning of the
\ngovernment, the Wednesbury’s principle (Associated Provincial
\nPicture Houses Limited v. Wednesbury Corp [1948]1 K.B.223) has
\nbeen further given strength by evolving and adding other grounds
\nfor judicial review of administrative action (DE SMITH’S “Judicial
\nReview”).\n<\/p>\n
47.   Learned author held that the Wednesbury formulation has
\nbeen challenged in recent orders. Learned author has proceeded
\nto observe as under :\n<\/p>\n
               “Apart from its vagueness, the Wednesbury
\n               formulation has been challenged in recent years for
\n               the reason that it depicts “unreasonableness” as
\n               particularly extreme behaviour, such as acting in
\n               bad faith, or a decision which is “perverse”, or
\n               “absurd”- implying that the decision-maker has
\n               “taken leave of his senses”. In the GCHQ case, in
\n               the famous passage where he formulated the
\n               “grounds” of judicial review, Lord Diplock preferred
\n               to use the term “irrational”, which he described as
\n               applying to “a decision which is so outrageous in
\n               its defiance of logic or accepted moral standards
\n               that no sensible person who had applied his mind
\n               to the question to be decided could have arrived at
\n               it”. This definition is at least candid in its
\n               acknowledgement that courts can employ both
\n               logic and accepted moral standards as criteria by
\n               which to assess official decisions, but it does not
\n               assist in elucidating any more specific categories of
\n               legally unacceptable substantive decisions.         In
\n               addition, as has been pointed out, the term
\n               irrationality has the drawback that it casts doubt on
\n               the mental capacity of the decision-maker, whereas
\n               many decisions which fall foul of this ground of
\n               review have been coldly rational.”\n<\/p><\/blockquote>\n
48.   Learned author (supra) has considered various grounds for
\ninterference through judicial review which includes statutory
\nreasonableness, unreasonable process, violation of common law
\nor constitutional principles, oppressive decisions, inadequate
\nevidence, mistake of fact, mixed question of law and facts,
\n                                   24<\/span><\/p>\n
decisions unsupported by substantial evidence, irrational decision
\netc.\n<\/p>\n
49.    While considering oppressive decisions, in De Smith’s
\nJudicial Review, learned author observed that the official decisions
\nmay be held unreasonable when they are unduly oppressive. To
\nreproduce relevant portion ”\n<\/p>\n
                “official decisions may be held unreasonable when
\n                they are unduly oppressive because they subject
\n                the complainant to an excessive hardship or an
\n                unnecessarily onerous infringement of his rights or
\n                interests.     As we shall see, the principle of
\n                proportionality directs itself to the evaluation of the
\n                permitted degree of infringement of rights or
\n                interests. However, whether or not proportionality is
\n                expressly applied, this aspect of substantive review
\n                is well known to English law. As Laws L.J. has said
\n                :\n<\/p><\/blockquote>\n
                       “Clearly a public body may choose to deploy
\n                powers it enjoys under statute in so draconian a
\n                fashion that the hardship suffered by affected
\n                individuals in consequence will justify the court in
\n                condemning the exercise as irrational and
\n                perverse.”\n<\/p><\/blockquote>\n
                The focus of attention in these cases will be
\n                principally the impact of the decision upon the
\n                affected person. The outcome or end-product of
\n                the decision-making process will thus be assessed,
\n                rather than the way the decision was reached
\n                (although the factors taken into account in reaching
\n                the decision may also be- or may be assumed to
\n                be-incorrectly weighed). Since the claim is
\n                essentially abuse of power, in the sense of
\n                excessive use of power, each case must be
\n                considered in the context of the nature of the
\n                decision, the function of the particular power and
\n                the nature of the interests or rights affected.”\n<\/p><\/blockquote>\n
50.    Hon’ble Supreme Court in some of the recent cases has
\ndeparted from Wednesbury principle and held that the court while
\nproceeding with judicial review may consider later development of
\nlaw and pass appropriate order to do complete justice between the
\nparties vide 2008(9)SCC 677 Nikhil Merchant versus CBI.\n<\/p>\n
                                   25<\/span><\/p>\n
51.   In a recent case, reported in (2009)9 SCC 610 Babubhai
\nJamnadas Patel versus State of Gujarat and others, their
\nLordships of Hon’ble Supreme Court held that appropriate direction
\nmay be issued to do complete justice between the parties. It shall
\nbe appropriate to reproduce relevant portion :\n<\/p>\n
               “46. The courts, and in particular the High Courts
\n               and the Supreme Court, are the sentinels of justice
\n               and have been vested with extraordinary powers of
\n               judicial review and supervision to ensure that the
\n               rights of the citizens are duly protected. The courts
\n               have to maintain a constant vigil against the
\n               inaction of the authorities in discharging their duties
\n               and obligations in the interest of the citizens for
\n               whom they exist. This Court, as also the High
\n               Courts, have had to issue appropriate writs and
\n               directions from time to time to ensure that the
\n               authorities performed at least such duties as they
\n               were required to perform under the various statutes
\n               and orders passed by the administration.”\n<\/p><\/blockquote>\n
52.   Democratic polity is founded on the principle that each
\nindividual possess equal value and the dignity of a person is
\nimportant factor to be secured by courts without any discrimination.
\nBaroness Hale in Ghaidan versus Godin-Mendoza [2004]UKHL
\n30; [2004]2 A.C. 557 observed :\n<\/p>\n
               “Democracy is founded on the principle that each
\n               individual has equal value. Treating some as
\n               automatically having less value than others not only
\n               causes pain and distress to that person but also
\n               violates his or her dignity as a human being.”\n<\/p><\/blockquote>\n
53.   The dignity of individual is part and parcel of Art. 21 of the
\nConstitution of India and a person cannot be dealt with shabbily or
\noppressively in case he discharges his duty bona fidely, honestly
\nas per his own knowledge and skill (2010)3 SCC page 786
\nMaharashtra University of Health Society versus Satchikitsa
\nPrasarak Mandal Dignity.\n<\/p>\n
54.   Hon’ble Supreme Court in a case reported in (2008)3 SCC
\n                                  26<\/span><\/p>\n
484 Moni Shankar versus Union of India and another has held
\nthat the doctrine of unreasonableness is giving way to doctrine of
\nproportionality propounded by Wednesbury (supra) (para 17).\n<\/p>\n
55.   In one another judgment, reported in (2006)3 SCC 173
\nCommissioner of Police and others versus Syed Hussain, their
\nLordships of Hon’ble Supreme Court have held that while
\nexercising power of judicial review, the Court may not merely follow
\nthe Wednesbury principle but now adjudication involves a full blown
\nmerit judgment. To reproduce para 12, to quote;\n<\/p>\n
                   “Thus, even assuming that a time has come
\n                   where this Court can develop “administrative
\n                   law” by following the recent decisions of the
\n                   House of Lords, we are of the opinion it is not
\n                   one of such cases where the doctrine of
\n                   proportionality should be invoked. In ‘Ex p Daly’
\n                   (supra) it was held that the depth of judicial
\n                   review and the deference due to the
\n                   administrative discretion vary with the subject
\n                   matter. It was further stated : (All ER p.447,
\n                   para 32)<\/p>\n
                   “It may well be, however, that the law can never
\n                   be satisfied in any administrative field merely by
\n                   a finding that the decision under review is not
\n                   capricious or absurd.”\n<\/p><\/blockquote>\n
                   As for example in Huang and Ors. v. Secretary
\n                   of State for the Home Department , referring to
\n                   R. v. Secretary of State of the Home
\n                   Department, ex. P. Dale , it was held that in
\n                   certain cases, the adjudicator may require to
\n                   conduct a judicial exercise which is not merely
\n                   more intrusive than Wednesbury, but involves a
\n                   full-blown merits judgment, which is yet more
\n                   than Ex p. Daly requires on a judicial review
\n                   where the Court has to decide a proportionality
\n                   issue.”\n<\/p><\/blockquote>\n
56.   In State of U.P. Versus Sheo Shanker Lal Srivastava and
\nothers (2006)3 SCC 276, again Hon’ble Supreme Court has held
\n                                   27<\/span><\/p>\n
that the judicial review may require full blown merit judgment. The
\nprinciple involved in Syed Hussain has been reiterated.\n<\/p>\n
57.   In another case, reported in (2008)2 SCC 161 Jitendra
\nKumar and others versus State of Haryana and another,
\nWednesbury doctrine has been considered and Hon’ble supreme
\nCourt held that now it is on terminal decline. Their Lordships of
\nHon’ble Supreme Court held that the doctrine of unreasonableness
\nis giving way to the doctrine of proportionality (para 63).\n<\/p>\n
58.   The Constitution is organic body and it has to cope up the
\nsituation with the change of time. While there is fall of morality in
\npublic life and arbitrariness in administration is not uncommon, to
\nmeet the situation, the Court shall cross the Wednesbury doctrine.
\nUnreasonableness, justness and fairness in action             are the
\ngrounds to interfere under Art. 226 of the Constitution of India.\n<\/p>\n
59.   Apart from this, when an action suffers from mala fide or
\noppression or bias, the courts may lift the veil to find not only the
\nmotive behind action but correctness of the allegations raised
\nagainst a person.\n<\/p>\n
60.   In view of above, since it has been stated that the action of
\nthe State Government is oppressive in nature because of mala fide
\nand bias and because of the fact that the petitioner has
\ninterrogated and searched the house of Ms. Mayawati (as she then
\nwas), and the action taken is in consequence to it, the controversy
\nrequires judicial scrutiny and interference under extraordinary
\nremedy of Article 226 of the Constitution of India.\n<\/p>\n
                  FACTUAL DISCUSSION<\/p>\n
61.   Shri Pritender Singh, Superintendent of Police in his report of
\nSeptember 1, 2007 (Annexure No.SCA-2 to the supplementary
\n                                     28<\/span><\/p>\n
counter affidavit dated 7.4.2010) had charged the petitioner that
\ninstead of using vehicles while returning from the place of combat,
\nthe petitioner should have taken decision to return through jungle
\non foot. The reason assigned by the Superintendent of Police is
\nthat after killing of their colleague, ordinarily, dacoits take revenge
\nand to meet out such situation, the STF team should not have used
\nthe vehicle but should have followed the procedure of “field craft
\nand tactics” marching back on foot.        It has been noted by the
\nSuperintendent of Police that there is only one connecting road,
\nhence obviously, the ambush was arranged by the dacoits on the
\nsaid road and this should have been visualised by the petitioner.
\nBecause of lack of leadership quality, the petitioner took a decision
\nto return on the vehicles without keeping reasonable distance
\nbetween one vehicle to other and in consequence thereof, suffered
\ncausalities.\n<\/p>\n
62.    However, a plain reading of the report of the Superintendent
\nof Police seems to be one sided. There is not even a whisper as to
\nwhy reinforcement force was not sent to the petitioner to help the
\npetitioner’s team whole of the day. Why Shri Brijendra Rai in spite
\nof    specific   information   received   from   the   petitioner   and
\nSuperintendent of Police, Chitrakoot had not approached the spot
\nwith necessary assistance for several hours though he was well in
\ntouch on mobile phone ?\n<\/p>\n
63.    While filing an affidavit dated 17.12.2009, the petitioner had
\nfiled details of call giving statement of facts in para 16 of the
\naffidavit. For convenience, para 16 is reproduced as under :\n<\/p>\n
                 “That the contents of para 23 of the supplementary
\n                 counter affidavit are denied as wrong, false and
\n                 incorrect. It is submitted that the petitioner talked
\n                 with the authorities deployed in the local area as well
\n                 as the authorities posted at the headquarter,
\n                 Lucknow on mobile phone of the police personnel
\n                 who were members of the team headed by the
\n                 petitioner and the petitioner also used his own
\n                 mobile phone. The petitioner\/deponent has filed the
\n                                                              29<\/span><\/p>\n
                                      details of the call before the Apex Court of the
\n                                      relevant day and time and the same is being filed
\n                                      herewith as Annexure No.SA-2 to this affidavit.\n<\/p><\/blockquote>\n
                                            It would not be out of place to mention here
\n                                      that the then ADG Sri Shailja Kant Mishra has
\n                                      admitted in writing which is available with the inquiry
\n                                      officer that the petitioner deponent has already
\n                                      informed him and the SSP, STF about the incident.”\n<\/p><\/blockquote>\n
                   64.    A perusal of Annexure No.SA-2 which contains the details of
\n                   call shows various calls made on mobile of the petitioner and some
\n                   of the deceased members of the team and calls received by them
\n                   from various authorities. It shall be appropriate to reproduce the
\n                   call detail chart, a copy of which has been filed as Annexure
\n                   No.SA-2 to the supplementary rejoinder affidavit. To quote :\n<\/p><\/blockquote>\n
                                          CALL DETAIL CHART<\/p>\n
Sl. Phone No.      Owner’s                Phone No.   Owner’s        Date of   Time of   Call Caller’s    Listener’s
\nNo.                Name\/Caller’s name                 Name\/Receiv call         call      dura cell I.D.   cell I.D.\n<\/p><\/blockquote>\n
                                                      er's name                          tion\n1     9415902216   Sh. Amitabh Yas, SSP, 9415903255 Sh.Dhirendra     21.7.07   20.55.48 44      04F551    T.E.\n                   STF\/Sh. Amitabh Yash               Rai,DSP,STF\/                              393C8     Chitrakoot\n                                                      Sh Dhirendra                              CA        U.P.E.\n                                                      Rai                                       Markund\n                                                                                                i\n2     9450630889   Late Commando          9415902216 Sh. Amitabh     22.07.07 08\/28\/49 6                  04F455139\n                   Girish Nagar\/Sh.                   Yash\/Sh.                                            3C85C\n                   Dhirendra Rai                      Amitabh Yash                                        Manikpur\n3     9450630889   Late Co. Girish        9415902216 Sh. Amitabh     22.07.07 08.34.04 45                 04F455139\n                   Naagar\/Sh. Dhirendra               Yash\/Sh.                                            3C85C\n                   Rai                                Amitabh Yash                                        Manikpur\n4     9450630889   Late Co. Girish        9415902216 Sh. Amitabh     22.07.07 22.07.07 19                 04F455139\n                   Naagar\/Sh. Dhirendra               Yash\/Sh.                                            3C85C\n                   Rai                                Amitabh Yash                                        Manikpur\n5     9450630889   Late Co. Girish        9415902216 Sh. Amitabh     22.07.07 08.37.38 120                04F455139\n                   Naagar\/Sh. Dhirendra               Yash\/Sh.                                            3C85C\n                   Rai                                Amitabh Yash                                        Manikpur\n6     9415903255   Sh. Dhirendra Rai\/Sh. 9415902048 Sh. Shailaja     22.07.07 08.57.04 184 SADAH, Gandhi\n                   Dhirendra Rai                      Kant Mishra,                              U.P.E.    Bhavan,\n                                                      ADG,                                                U.P.E.\n                                                      STF\/Shailaja\n                                                      Kant Mishra\n                                                             30<\/span>\n\n7    9415904775   Sh. Rishikesh Yadav,   9415903255 Sh. Dhirendra 22.07.07 09\/14\/13 17                 Sadah,\n                  Insp. STF\/Sh.                      Rai\/Sh.                                           U.P.E.\n                  Rishikesh                          Dhirendra Rai\n8    9415904775   Sh. Rishikesh Yadav,   9415903255 Sh. Dhirendra 22.07.07 09\/14\/43 104                SADAH,\n                  Insp. STF\/Sh.                      Rai\/Sh.                                           U.P.E.\n                  Rishikesh Yadav                    Dhirendra Rai\n9    9415903255   Sh. Dhirendra Rai\/Sh. 9415902832 Sh.                22.07.07 13.33.18 50    SADAH, 04F455139\n                  Dhirendra Rai                      Preetinder                               U.P.E.   3C85C\n                                                     Singh, SP,                                        Manikpur\n                                                     Chitrakoot\/Sh.\n                                                     Preetinder\n                                                     Singh\n10   9415903255   Sh. Dhirendra Rai\/Sh. 9415902832 Sh.                22.07.07 13.37.40 44    SADAH, 04F455139\n                  Dhirendra Rai                      Preetinder                               U.P.E.   3C85C\n                                                     Singh, SP,                                        Manikpur\n                                                     Chitrakoot\/Sh.\n                                                     Preetinder\n                                                     Singh\n11   9415905209   Sh Shailendra Singh,   9415904408 Sh. Brijendra     22.07.07 14.10.57 8              04F455139\n                  SI, STF\/Sh Dhirendra               Rai,                                              3C7A9\n                  Rai                                Inspector,                                        Karvi\n                                                     Karvi,\n                                                     Chitrakoot\/Sh.\n                                                     Brijendra Rai\n12   9415905209   Sh Shailendra Singh,   9415904408 Sh. Brijendra     22.07.07 15.12.20 21             04F455139\n                  SI, STF\/Sh Dhirendra               Rai,                                              3C7A9\n                  Rai                                Inspector,                                        Karvi\n                                                     Karvi,\n                                                     Chitrakoot\n13   9415905209   Sh Shailendra Singh,   9415902048 Sh. Shailaja      22.07.07 15.23.40 193            04F455139\n                  SI, STF\/Sh Dhirendra               Kant                                              3C7A9 Te\n                  Rai                                Mishra\/Sh.                                        Karvi-1,\n                                                     Shailaja Kant                                     U.P.E.\n                                                     Mishra\n14   9415905209   Sh Shailendra Singh,   9415904408 Sh. Brijendra     22.07.07 15.42.55 6              TE KARVI-\n                  SI, STF\/Sh Dhirendra               Rai,                                              1 U.P.E.\n                  Rai                                Inspector,\n                                                     Karvi,\n                                                     Chitrakoot\n15   9415905209   Sh Shailendra Singh,   9415904408 Sh. Brijendra     22.07.07 15.43.54 1              04F455139\n                  SI, STF\/Sh Dhirendra               Rai,                                              3C7A9\n                  Rai                                Inspector,                                        Karvi\n                                                     Karvi,\n                                                     Chitrakoot\n16   9415905209   Sh Shailendra Singh,   9415904408 Sh. Brijendra     22.07.07 15.44.16 21             04F455139\n                                                              31<\/span>\n\n                  SI, STF\/Sh Dhirendra                Rai,                                                3C7A9\n                  Rai                                 Inspector,                                          Karvi\n                                                      Karvi,\n                                                      Chitrakoot\n17   9415905209   Sh Shailendra Singh,    9415904408 Sh. Brijendra    22.07.07 15,45,03 226               04F455139\n                  SI, STF\/Sh Dhirendra                Rai,                                                3C7A9\n                  Rai                                 Inspector,                                          Karvi\n                                                      Karvi,\n                                                      Chitrakoot\n18   9415905209   Sh Shailendra Singh,    9415904408 Sh. Brijendra    22.07.07 16.35.07 69                04F455139\n                  SI, STF\/Sh Dhirendra                Rai,                                                3C7A9\n                  Rai                                 Inspector,                                          Karvi\n                                                      Karvi,\n                                                      Chitrakoot\n19   9415902832   Sh. Preetinder          9415903255 Sh. Dhirendra 22.07.07 16.37.07 152 04F455           SADAH,\n                  Singh\/Sh. Preetinder                Rai\/Sh.                                 1393C7 U.P.E.\n                  Singh                               Dhirendra Rai                           A9 TE\n                                                                                              KARVI,\n                                                                                              U.P.E.\n20   9415903255   Sh Shailendra Singh,    9415902832 Sh.              22.07.07 17.21.45 58    SADAH, 04F455139\n                  SI, STF\/Sh Dhirendra                Preetinder                              U.P.E.      3C7A9\n                  Rai                                 Singh\/Sh.                                           Karvi\n                                                      Preetinder\n                                                      Singh\n21   9415902111   Sh. Shriram Tripathi,   9415903255 Sh. Dhirendra 22.07.07 17.22.48 309                  SADAH,\n                  D.I.G., Chitrakoot                  Rai\/Sh.                                             U.P.E.\n                                                      Dhirendra Rai\n22   9415903255   Sh. Dhirendra Rai\/Sh. 9415902832 Sh Preetinder 22.07.07 17.41.30 51         SADAH, TE KARVI-\n                  Dhirendra Rai                       Singh\/Sh.                               U.P.E.      1 U.P.E.\n                                                      Preetinder\n                                                      Singh\n23   9415903255   Sh. Dhirendra Rai\/Sh. 9415904408 Sh. Brijendra      22.07.07 17.56.02 165 SADAH, TE\n                  Dhirendra Rai                       Rai,                                    U.P.E.      BHARAT ;\n                                                      Inspector,                                          KOOP,\n                                                      Karvi,                                              UP.E.\n                                                      Chitrakoot\n24   9415902832   Sh. Preetinder          9415903255 Sh. Dhirendra 22.07.07 18.18.12 51       4F4551      SADAH\n                  Singh\/Sh. Preetinder                Rai\/Sh.                                 393C7A U.P.E.\n                  Singh                               Dhirendra Rai                           9 TE\n                                                                                              KARVI-\n                                                                                              1, U.P.E.\n25   9415903255   Sh. Dhirendra Rai\/Sh. 9415904408 Sh. Brijendra      22.07.07 18.26.22 98    SADAH, TE\n                  Dhirendra Rai                       Rai,                                    U.P.E.      BHARAT\n                                                      Inspector,                                          KOOP\n                                                      Karvi,\n                                                           32<\/span>\n\n                                                     Chitrakoot\n26   9415903255   Sh. Dhirendra Rai\/Sh. 9415902832 Sh.               22.07.07 20.43.21 55   SADAH, TE HARVI-\n                  Dhirendra Rai                      Preetinder                             U.P.E.      1, U.P.E.\n                                                     Singh\/Sh.\n                                                     Preetinder\n                                                     Singh\n27   9415903255   Sh. Dhirendra Rai\/Sh. 9415902832 Sh.               22.07.07 21.15.43 79   SADAH, 04F455139\n                  Dhirendra Rai                      Preetinder                             U.P.E.      3C7A9\n                                                     Singh\/Sh.                                          Karvi\n                                                     Preetinder                                         U.P.E.\n                                                     Singh\n28   9415902732   Sh. Preetinder         9415903255 Sh. Dhirendra 22.07.07 21.36.13 57      4F4551      SADAH,\n                  Singh\/Sh. Preetinder               Rai\/Sh.                                393C7A U.P.E.\n                  Singh                              Dhirendra Rai                          9 TE\n                                                                                            KARVI-\n                                                                                            1, U.P.E.\n29   9415904408   Sh.Brijendra Rai,      9415903255 Sh. Dhirendra 22.07.07 21.58.16 105 4F4551          SADAH,\n                  Inspector, Karvi,                  Rai\/Sh.                                393C8C U.P.E.\n                  Chitrakoot                         Dhirendra Rai                          O\n                                                                                            BAGHE\n                                                                                            LWARI,\n                                                                                            UPE.\n\n\n\n<\/pre>\n
                          These twenty-nine calls speaks volume, whereby the
\n                  petitioner’s cry for help remained futile.<\/p><\/blockquote>\n
                  65.     It has not been disputed that mobile phones were provided to
\n                  the petitioner and other authorities by the government. Even the
\n                  calls were made by the petitioner during the course of encounter
\n                  with dacoits between 8.00a.m. to 9.15a.m. have not been disputed
\n                  by the respondents while filing supplementary affidavit dated
\n                  25.11.2009, sworn by Shri Prakash Narayan, Deputy Secretary,
\n                  Home. It is horrible to note that in spite of receipt of call when the
\n                  encounter was going on, the Senior Superintendent of Police, STF
\n                  admittedly had not provided any assistance on the pretext of
\n                  engagement in operation of Daduwa gang. In case he was not in a
\n                  position to provide back-up to the petitioner’s team, then he should
\n                  have requested to other authorities to send the reinforcement but
\n                  the same was not done and burden has been shifted to the
\n                                   33<\/span><\/p>\n
petitioner’s shoulder with regard to causality of six persons who
\ndied in the ambush. It shall be appropriate to reproduce relevant
\nportion from para 23 of the affidavit dated 25.11.2009 sworn by the
\nDeputy Secretary, Home.:\n<\/p>\n
                 “23……………..It is further submitted that as per
\n                 available records, to perform the Government
\n                 works Mobile No.9415903255 and 9919361685
\n                 have been issued to the petitioner. As per call
\n                 details of the mobile numbers provided to the
\n                 petitioner, the petitioner has not contacted to the
\n                 Mobile No.9415902216 which was alloted to the
\n                 Senior Superintendent of Police, S.T.F. Through
\n                 the rejoinder affidavit, the petitioner has submitted
\n                 that he contacted to the Mobile No.9450630889 of
\n                 the commandos, but said facts are incorrect and
\n                 baseless.\n<\/p><\/blockquote>\n
                        It is submitted that as per call details of the
\n                 mobile numbers provided to the petitioner, at 8:24,
\n                 8:34, 8:36 and 8:37 A.M. The petitioner has tried
\n                 to contact to the C.U.G. Of the Senior
\n                 Superintendent of Police, S.T.F.; however, since
\n                 he was busy in an operation of Dadua Gang,
\n                 therefore, he was not in a position to deploy the
\n                 police force to other points.\n<\/p><\/blockquote>\n
                        It is also significant to submit that petitioner
\n                 requested to the then Superintendent of Police,
\n                 Chitrakoot for carrying the dead body of
\n                 Maiyadeen. The then Superintendent of Police,
\n                 Chitrakoot send a team of police officials at 3:30
\n                 p.m. to support the S.T.F. team; however, the
\n                 petitioner never demanded extra police force to
\n                 search the Thokiya Gang of dacoits. Thereafter,
\n                 after getting the information about operation of
\n                 Thokia Gang, the then Superintendent of Police,
\n                 Chitrakoot himself attained the spot with police
\n                 force, S.O.G. Team and ambulance.”\n<\/p><\/blockquote>\n
66.   While serving the charge-sheet, Shri Ghanshyam Ahirwar,
\nCircle Officer of the area has been mentioned as witness. When a
\ndefence was taken by the petitioner that Shri Ghanshyam Ahirwar
\nhad not sent any report against the petitioner, the respondents
\nhave changed their stand that it was not Shri Ghanshyam Ahirwar
\nbut one Shri Akhilesh Narayan Singh has held an enquiry and
\nsubmitted a report against the petitioner. This shifting of stand has
\nbeen taken at belated stage during course of hearing of the writ
\n                                     34<\/span><\/p>\n
petition while filing supplementary affidavit dated 25.1.2009, by Shri
\nPrakash Narayan Dubey, Secretary, Department of Home.\n<\/p>\n
67.   There is one other aspect of the matter which falsifies the
\nentire case set up against the petitioner. Shri Shailja Kant Mishra,
\nwho was Addl. Director General of Police, (STF) at the relevant
\ntime had made a statement before the enquiry committee on
\n22.1.2010 that the petitioner had duly informed the authorities with
\nregard to death of Maiyadeen in encounter and the allegation
\nraised against the petitioner is false and not correct. He stated on
\noath that in spite of information communicated, local police had not
\narrived to the scene of occurrence and kept the petitioner waiting
\nwhole of day.      The petitioner along with team members were
\nwaiting for assistance from the local police and panchayatnama of
\ndead body of dacoit Maiyadeen but no one turned up though force
\nwas available only at a distance of few kilometres.            It shall be
\nappropriate to reproduce the statement of Shri Shailjakant Mishra,
\nthe then Addl. Director General of Police, STF, a copy of which has
\nbeen filed as Annexure No.SA-I to the supplementary affidavit
\ndated 1.2.2010 :\n<\/p>\n
                   ''\u092c\u092f\u093e\u0928    \u0936\u0940    \u0936\u0948 \u0932 \u091c\u093e\u0915\u093e\u0928\u0924   \u093f\u092e\u0936 ,   \u0905\u092a\u0930        \u092a\u0941\u093f \u0932\u0938\n\n                   \u092e\u0939\u093e\u093f\u0928\u0926\u0947 \u0936 \u0915 ,   \u0909\u0966\u092a\u0966   \u092a\u093e\u0935\u0930   \u0915\u093e\u0930\u092a\u094b\u0930\u0947 \u0936 \u0928    \u093f\u0932\u093f\u092e\u091f\u0947 \u0921 ,\n\n                   \u0932\u0916\u0928\u0909 \u0964\n\n                   \u0938\u0936\u092a\u0925 \u092c\u092f\u093e\u0928 \u093f\u0915\u092f\u093e \u093f\u0915 \u092e\u0948 \u093f\u0926\u0928\u093e\u0902\u0915 \u0968\u0969 -\u096b-\u0968\u0966\u0966\u096d \u0938\u0947\n                   \u0968\u0969-\u0967\u0967-\u0968\u0966\u0966\u096d \u0924\u0915 \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u092a\u092d\u093e\u0930\u0940 \u0909\u0966\u092a\u0966\n<\/pre>\n
                   (\u0905\u092a\u0930 \u092a\u0941\u093f \u0932\u0938\u092e\u0939\u093e\u093f\u0928\u0926\u0947 \u0936 \u0915) \u0915\u0947 \u092a\u0926 \u092a\u0930 \u0915\u093e\u092f\u0930 \u0930\u0924 \u0930\u0939\u093e \u0939\u0942 \u0902 \u0964
\n                   \u092e\u0947 \u0930\u0947 \u0926\u093e\u0930\u093e \u092a\u0941\u093f \u0932\u0938 \u0909\u092a\u092e\u0939\u093e\u093f\u0928\u0930\u0940\u0915\u0915, \u092e\u0941\u0930 \u093e\u0926\u093e\u092c\u093e\u0926 \u092a\u093f\u0930\u0915\u0947 \u0924
\n                   \u092e\u0941\u0930 \u093e\u0926\u093e\u092c\u093e\u0926 \u0915\u094b \u093f\u0932\u093f\u0916\u0924 \u092a\u0924 \u0938\u0902 \u0916 \u092f\u093e \u0905\u092a\u0941\u092e \/\u092a\u093e\u0915\u093e\u093f\u0932-\n<\/p>\n
                   \u093f\u0935\u093f\u0935\u0927\/\u0968\u0966\u0966\u096e-\u0967\u096e\u0966\u096b \u093f\u0926\u0928\u093e\u0902\u093f \u0915\u0924 \u0967\u096f-\u0967\u0967-\u0968\u0966\u0966\u096e
\n                   \u091c\u094b \u092e\u0947 \u0930\u0947 \u0938\u093e\u092e\u0928\u0947 \u0939\u0948 , \u0935 \u092a\u0926\u0936\u0930 \u0916-\u0967 \u0939\u0948 , \u092a\u0930 \u092e\u0947 \u0930\u0947 \u0939\u0938\u0924\u093e\u0915\u0930
\n                   \u0939\u0948 \u0935 \u0909\u0938\u092e\u0947 \u093f\u0932\u0916\u0947 \u0917\u092f\u0947 \u0924\u0925\u092f \u0915\u094b \u092e\u0948 \u0938\u0935\u0940\u0915\u093e\u0930 \u0915\u0930\u0924\u093e \u0939\u0942 \u0902 \u0964\n<\/p>\n
                   \u093f\u0926\u0928\u093e\u0902\u0915 \u0968\u0968-\u096d-\u0968\u0966\u0966\u096d \u0915\u094b \u092a\u093e\u0924\u0903 \u0966\u096f \u092c\u091c\u0947 \u0915\u0947 \u0932\u0917\u092d\u0917
\n                 35<\/span><\/p>\n
\u0936\u0940 \u0927\u0940\u0930\u0947 \u0928 \u0926 \u0930\u093e\u092f, \u092a\u0941\u093f \u0932\u0938 \u0909\u092a\u093e\u0927\u0940\u0915\u0915, \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966
\n\u0926\u093e\u0930\u093e \u0920\u093e\u093f\u0915\u092f\u093e \u0917\u0948 \u0917 \u0938\u0947 \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u0915\u0940 \u092e\u0941\u0920 \u092d\u0947 \u0921 \u090f\u0935\u0902 \u0917\u0948 \u0917
\n\u0915\u0947 \u0938\u093f\u0915\u092f \u0938\u0926\u0938\u092f \u092e\u0948 \u092f \u093e\u0926\u0940\u0928 \u0915\u0947 \u092e\u093e\u0930\u0947 \u091c\u093e\u0928\u0947 \u0915\u0940 \u0938\u0942\u091a \u0928\u093e
\n\u092e\u094b\u092c\u093e\u0907\u0932 \u092b\u094b\u0928 \u0926\u093e\u0930\u093e \u092e\u0941\u091d\u0947 \u0926\u0940 \u0917\u0908 \u0925\u0940 \u0964\n<\/p>\n
      \u093f\u0926\u0928\u093e\u0902\u0915 \u0968\u0968-\u096d-\u0968\u0966\u0966\u096d \u0915\u094b \u0924\u0924\u0915\u093e\u0932\u0940\u0928 \u092a\u0941\u093f \u0932\u0938
\n\u092e\u0939\u093e\u093f\u0928\u0926\u0947 \u0936 \u0915, \u0909\u0966\u092a\u0966 \u0936\u0940 \u093f\u0935\u0915\u092e \u093f\u0938\u0902 \u0939 \u0915\u0947 \u0938\u093e\u0925 \u093f\u0926\u0928 \u092e\u0947
\n\u0915\u0941 \u0916\u092f\u093e\u0924 \u0926\u0938\u092f\u0941 \u0926\u0926 \u0941\u0906 \u0915\u0947 \u092e\u093e\u0930\u0947 \u091c\u093e\u0928\u0947 \u0915\u0940 \u0938\u0942\u091a \u0928\u093e \u092a\u0930 \u092e\u0948
\n\u0939\u0948 \u0932 \u0940\u0915\u093e\u092a\u091f\u0930 \u0938\u0947 \u091c\u0928\u092a\u0926 \u093f\u091a\u0924\u0915\u0942 \u091f \u0917\u092f\u093e \u0925\u093e \u0914\u0930 \u0930\u093e\u0938\u0924\u0947 \u092e\u0947
\n\u092e\u0947 \u0930\u0947 \u0926\u093e\u0930\u093e \u092a\u0941\u093f \u0932\u0938\u092e\u0939\u093e\u093f\u0928\u0926\u0947 \u0936 \u0915, \u0909\u0966\u092a\u0966 \u0938\u0947 \u0920\u094b\u093f\u0915\u092f\u093e \u0917\u0948 \u0917 \u0938\u0947
\n\u092e\u0941\u0920 \u092d\u0947 \u0921 \u0915\u0940 \u091a\u091a\u093e\u0930 \u0915\u0940 \u0917\u0907 \u0925\u0940 \u0935\u0947 \u0938\u0935\u0924\u0903 \u0907\u0938 \u092e\u0941\u0920 \u092d\u0947 \u0921 \u0915\u0940
\n\u092c\u093e\u0924 \u0938\u0947 \u093f\u092d\u091c \u0925\u0947 \u0964 \u093f\u0926\u0928 \u092e\u0947 \u0939\u0940 \u0932\u0917\u092d\u0917 \u0967\u096b\u0966\u0966\u092c\u091c\u0947 \u0936\u0940
\n\u0927\u0940\u0930\u0947 \u0928 \u0926 \u0930\u093e\u092f \u0938\u0947 \u092e\u0947 \u0930 \u0940 \u092e\u094b\u092c\u093e\u0907\u0932 \u0938\u0947 \u092a\u0941\u0928 \u0903 \u092c\u093e\u0924 \u0939\u0941 \u0907 \u0925\u0940 \u0964\n<\/p>\n
\u093f\u091c\u0932\u093e \u092a\u0941\u093f \u0932\u0938 \u0905\u0927\u0940\u0915\u0915, \u093f\u091a\u0924\u0915\u0942 \u091f \u0915\u094b \u0920\u094b\u093f\u0915\u092f\u093e \u0917\u0948 \u0917 \u0938\u0947
\n\u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u091f\u0940\u092e \u0938\u0947 \u0939\u0941 \u0907 \u092e\u0941\u0920 \u092d\u0947 \u0921 \u0915\u0940 \u092c\u093e\u0924 \u092a\u0924\u093e \u0925\u0940
\n\u0907\u0938\u093f\u0932\u090f \u0936\u0940 \u0927\u0940\u0930\u0947 \u0928 \u0926 \u0930\u093e\u092f \u0915\u0947 \u0909\u092a\u0930 \u0932\u0917\u093e\u092f\u093e \u0917\u092f\u093e \u092f\u0939
\n\u0906\u0930\u094b\u092a \u093f\u0915 \u093f\u0926\u0928\u093e\u0902\u0915 \u0968\u0968-\u096d-\u0968\u0966\u0966\u096d \u0915\u094b \u0920\u094b\u093f\u0915\u092f\u093e \u0917\u0948 \u0917 \u0938\u0947
\n\u0939\u0941 \u0907 \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u091f\u0940\u092e \u0915\u0940 \u092e\u0941\u0920 \u092d\u0947 \u0921 \u0915\u0940 \u0938\u0942\u091a \u0928\u093e \u0909\u0928\u0915\u0947
\n\u0926\u093e\u0930\u093e \u093f\u091c\u0932\u093e \u092a\u0941\u093f \u0932\u0938 \u0915\u094b \u0928\u0939\u0940 \u0926\u0940 \u0917\u0907, \u0917\u0932\u0924 \u0939\u0948 \u0964\n<\/p>\n
      \u091c\u0939\u093e\u0902 \u0924\u0915 \u092e\u0947 \u0930 \u0940 \u091c\u093e\u0928\u0915\u093e\u0930\u0940 \u0939\u0948 \u092c\u093e\u0935\u091c\u0942\u0926 \u092a\u092f\u093e\u0930\u092a \u0938\u0942\u091a \u0928\u093e
\n\u0915\u0947 \u091c\u0928\u092a\u0926\u0940\u092f \u092a\u0941\u093f \u0932\u0938 \u0915\u093e \u0915\u094b\u0907 \u092c\u0932 \u0936\u0940 \u0927\u0940\u0930\u0947 \u0928 \u0926 \u0930\u093e\u092f \u0915\u0947
\n\u0928\u0947 \u0924 \u0943\u0924 \u0935 \u0935\u093e\u0932\u0947 \u090f\u0938 \u091f\u0940 \u090f\u092b \u092c\u0932 \u0915\u0947 \u0938\u093e\u0925 \u092e\u0941\u0920 \u092d\u0947 \u0921 \u092e\u0947 \u092e\u093e\u0930\u0947
\n\u0917\u092f\u0947 \u0921\u0915\u0948 \u0924 \u092e\u0948 \u092f \u093e\u0926\u0940\u0928 \u0915\u0947 \u0936\u0935 \u0915\u093e \u092a\u0902 \u091a \u093e\u092f\u0924\u0928\u093e\u092e\u093e \u0915\u0930\u0935\u093e\u0928\u0947 \u0926\u0947 \u0930
\n\u0930\u093e\u0924 \u0924\u0915 \u092e\u094c\u0915\u0947 \u092a\u0930 \u0928\u0939\u0940 \u0917\u092f\u093e \u0964 \u092a\u0941\u093f \u0932\u0938 \u092e\u0941\u0920 \u092d\u0947 \u0921 \u092e\u0947 \u092e\u094c\u0915\u0947
\n\u092a\u0930 \u092a\u0902 \u091a \u093e\u092f\u0924 \u0928\u093e\u092e\u093e \u0915\u0930\u093e\u0928\u093e \u0915\u093e\u0928\u0942\u0928 \u0915\u0940 \u090e\u0938\u0940 \u0906\u0935\u0936\u092f\u0915\u0924\u093e
\n\u0939\u0948 \u093f\u091c\u0938\u0947 \u0928\u0915\u093e\u0930\u093e \u0928\u0939\u0940 \u091c\u093e \u0938\u0915\u0924\u093e \u0964 \u092e\u0947 \u0930 \u093e      \u092e\u093e\u0928\u0928\u093e \u0939\u0948 \u093f\u0915
\n\u092f\u093f\u0926 \u0938\u092e\u092f \u0938\u0947 \u093f\u0926\u0928 \u092e\u0947 \u093f\u091c\u0932\u093e \u092a\u0941\u093f \u0932\u0938 \u092c\u0932 \u092e\u094c\u0915\u0947 \u092a\u0930 \u092a\u0939\u0941 \u0902 \u091a
\n\u0915\u0930 \u092e\u0948 \u092f \u093e\u0926\u0940\u0928 \u0915\u0947 \u0936\u0935 \u0915\u093e \u092a\u0902 \u091a \u093e\u092f\u0924\u0928\u093e\u092e\u093e \u0926\u0902 \u0966 \u092a\u0966\u0938\u0902 \u0966 \u0915\u0947
\n\u092a\u093e\u0935\u0927\u093e\u0928\u094b \u0915\u0947 \u0905\u0927\u0940\u0928 \u092e\u093f\u091c\u0938\u091f\u0947 \u091f \u0938\u0947 \u0915\u0930\u0935\u093e \u0932\u0947 \u0924 \u093e \u0924\u094b
\n\u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u0915\u093e \u0926\u0932 \u0938\u092e\u092f \u0938\u0947 \u0935\u093e\u092a\u0938 \u0906 \u091c\u093e\u0924\u093e \u0914\u0930
\n\u092f\u0939 \u0926 \u0941\u0918\u0930 \u091f\u0928\u093e \u0928 \u0939\u094b\u0924\u0940 \u0964 \u0936\u0940 \u0927\u0940\u0930\u0947 \u0928 \u0926 \u0930\u093e\u092f \u0915\u0947 \u0909\u092a\u0930 \u0932\u0917\u093e\u092f\u093e
\n\u0917\u092f\u093e \u092f\u0939 \u0906\u0930\u094b\u092a \u0938\u0939\u0940 \u0928\u0939\u0940 \u0939\u0948 \u093f\u0915 \u0909\u0928\u0939\u094b\u0928\u0947 \u092e\u0948 \u092f \u093e\u0926\u0940\u0928 \u0915\u0940
\n\u092e\u0941\u0920 \u092d\u0947 \u0921 \u0915\u0947 \u092c\u093e\u0926 \u0938\u0925\u093e\u0928\u0940\u092f \u092a\u0941\u093f \u0932\u0938 \u0938\u0947 \u0938\u092e\u092a\u0915\u0930 \u0928\u0939\u0940 \u093f\u0915\u092f\u093e \u0964
\n\u0935\u093e\u0938\u0924\u093f\u0935\u0915\u0924\u093e \u092f\u0939 \u0939\u0948 \u093f\u0915 \u0938\u0925\u093e\u0928\u0940\u092f \u092a\u0941\u093f \u0932\u0938 \u0938\u0942\u091a \u0928\u093e \u0915\u0947
\n                          36<\/span><\/p>\n
\u092c\u093e\u0935\u091c\u0942\u0926 \u0918\u091f\u0928\u093e\u0938\u0925\u0932 \u092a\u0930 \u0928\u0939\u0940 \u092a\u0939\u0941 \u0902 \u091a \u0940 \u0914\u0930 \u0926\u0923\u0921 \u092a\u093f\u0915\u092f\u093e
\n\u0938\u0902 \u093f \u0939\u0924\u093e \u0915\u0947 \u092a\u093e\u0935\u0927\u093e\u0928\u094b \u0915\u0947 \u0924\u0939\u0924 \u092e\u094c\u0915\u0947 \u092a\u0930 \u0924\u0924\u0915\u093e\u0932
\n\u092e\u093f\u091c\u0938\u091f\u0947 \u091f \u0938\u0947 \u092a\u0902 \u091a \u093e\u092f\u0924\u0928\u093e\u092e\u093e \u0928\u0939\u0940 \u0915\u0930\u093e\u092f\u093e \u093f\u091c\u0938 \u0915\u093e\u0930\u0923 \u0936\u0940
\n\u0927\u0940\u0930\u0947 \u0928 \u0926 \u0930\u093e\u092f           \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u091f\u0940\u092e \u0915\u0947 \u0938\u093e\u0925 \u092a\u093f\u0924\u0915\u0942 \u0932
\n\u092a\u093f\u0930\u093f\u0938\u0925\u093f\u0924\u092f\u094b \u092e\u0947 \u0905\u0928\u093e\u0935\u0936\u092f\u0915 \u0930\u092a \u0938\u0947 \u0967\u096b \u0918\u0902 \u091f\u0947 \u0924\u0915
\n\u092d\u0940\u0937\u0923 \u091c\u0902 \u0917 \u0932 \u092e\u0947 \u0930\u0939\u0928\u0947 \u0915\u094b \u092c\u093e\u0927\u092f \u0939\u0941 \u090f \u0964\n<\/p>\n
        \u0920\u094b\u093f\u0915\u092f\u093e \u0917\u0948 \u0917 \u0938\u0947          \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u0926\u0932 \u0915\u0940 \u092e\u0941\u0920 \u092d\u0947 \u0921
\n\u0915\u0947 \u0918\u091f\u0928\u093e\u0938\u0925\u0932 \u0915\u093e \u093f\u0928\u0930\u0940\u0915\u0923 \u092d\u0940 \u092e\u0947 \u0930\u0947 \u0926\u093e\u0930\u093e \u0918\u091f\u0928\u093e \u0915\u0947
\n\u0905\u0917\u0932\u0947 \u093f\u0926\u0928 \u0924\u0924\u0915\u093e\u0932 \u092a\u0941\u093f \u0932\u0938 \u092e\u0939\u093e\u093f\u0928\u0926\u0947 \u0936 \u0915, \u0909\u0966\u092a\u0966 \u0936\u0940
\n\u093f\u0935\u0915\u092e \u093f\u0938\u0902 \u0939 \u0915\u0947 \u0938\u093e\u0925 \u0939\u0947 \u0932 \u0940\u0915\u093e\u092a\u091f\u0930 \u0938\u0947 \u091c\u093e\u0915\u0930 \u093f\u0915\u092f\u093e \u0917\u092f\u093e
\n\u0925\u093e \u0964        \u0918\u091f\u0928\u093e\u0938\u0925\u0932 \u0915\u0947 \u093f\u0928\u0930\u0940\u0915\u0923 \u0938\u0947 \u0938\u092a\u0937 \u0925\u093e \u093f\u0915 \u0926\u0938\u092f\u0941
\n\u0917\u0948 \u0917 \u0920\u094b\u093f\u0915\u092f\u093e \u0926\u093e\u0930\u093e \u0906\u0915\u093f\u0938\u092e\u0915 \u0930\u092a \u0938\u0947 \u090f\u092e\u092c\u0941\u0936 \u093f\u0915\u092f\u0947 \u091c\u093e\u0928\u0947
\n\u0915\u0947     \u092c\u093e\u0926        \u092d\u0940     \u0936\u0940     \u0927\u0940\u0930\u0947 \u0928 \u0926   \u0930\u093e\u092f      \u0915\u0947      \u0928\u0947 \u0924 \u0943\u0924 \u0935     \u092e\u0947
\n\u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966                \u0915\u0947     \u091c\u0935\u093e\u0928\u094b      \u0928\u0947      \u0938\u0935\u0930 \u0925\u093e      \u092a\u093f\u0924\u0915\u0942 \u0932
\n\u092a\u093f\u0930\u093f\u0938\u0925\u093f\u0924\u092f\u094b \u092e\u0947 \u0921\u0915\u0948 \u0924\u094b \u0915\u093e \u091c\u092e \u0915\u0930 \u092e\u0941\u0915 \u093e\u092c\u0932\u093e \u093f\u0915\u092f\u093e
\n\u0924\u0925\u093e \u0905\u092a\u0928\u0947 \u091c\u093e\u0928 \u0915\u0940 \u092c\u093e\u091c\u0940 \u0932\u0917\u093e\u0915\u0930 \u0905\u092a\u0928\u0947 \u0939\u093f\u0925\u092f\u093e\u0930\u094b \u090f\u0935\u0902
\n\u0926\u0932 \u0915\u0947 \u0926 \u0942 \u0938 \u0930\u0947 \u0938\u0926\u0938\u092f\u094b \u0915\u0940 \u091c\u0940\u0935\u0928 \u0930\u0915\u093e \u0915\u093e \u092a\u092f\u093e\u0938 \u093f\u0915\u092f\u093e
\n\u0964\n<\/p>\n
        \u0936\u0940 \u0927\u0940\u0930\u0947 \u0928 \u0926 \u0930\u093e\u092f \u0915\u0947 \u093f\u0935\u0930\u0926 \u0932\u0917\u093e\u092f\u0947 \u0917\u092f\u0947 \u092f\u0939 \u0906\u0930\u094b\u092a
\n\u093f\u0915 \u0909\u0928\u0939\u094b\u0928\u0947 \u0915\u0924\u0930 \u0935\u092f \u093f\u0936\u093f\u0925\u0932\u0924\u093e, \u0905\u0915\u092e\u0930 \u0923\u092f\u0924\u093e \u092c\u0930\u0924\u0940, \u092e\u0947 \u0930\u0947
\n\u093f\u0935\u091a\u093e\u0930 \u0938\u0947 \u0905\u0938\u0924\u092f \u090f\u0935\u0902 \u0906\u0927\u093e\u0930\u0939\u0940\u0928 \u0939\u0948 \u0964 \u092f\u0939 \u092a\u0936\u093e\u0938\u093f\u0928\u0915
\n\u0926\u093f\u0937\u0915\u094b\u0923 \u0938\u0947 \u0928\u092f\u093e\u092f\u094b\u093f\u091a\u0924 \u0928\u0939\u0940 \u0939\u0948 \u093f\u0915 \u0938\u0925\u093e\u0928\u0940\u092f \u092a\u0941\u093f \u0932\u0938
\n\u0905\u093f\u0927\u0915\u093e\u0930\u0940 \u093f\u091c\u0928\u0915\u0947 \u0938\u092e\u092f \u0938\u0947 \u0918\u091f\u0928\u093e\u0938\u0925\u0932 \u092a\u0930 \u0928 \u092a\u0939\u0941 \u0902 \u091a \u0928\u0947 \u0915\u0947
\n\u0915\u093e\u0930\u0923 \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u092c\u0932 \u091c\u0902 \u0917 \u0932 \u092e\u0947 \u093f\u0918\u0930\u093e \u0930\u0939\u093e , \u0935 \u0930\u093e\u093f\u0924
\n\u092e\u0947   \u0926\u0947 \u0930    \u0938\u0947        \u0932\u094c\u091f\u0928\u0947    \u0915\u0947    \u0915\u093e\u0930\u0923       \u0926\u0938\u092f\u0941       \u092c\u0932          \u0926\u093e\u0930\u093e
\n\u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966                \u092c\u0932      \u090f\u092e\u092c\u0941\u0936     \u0939\u0941 \u0906,     \u0909\u0928        \u0938\u0925\u093e\u0928\u0940\u092f
\n\u0905\u093f\u0927\u0915\u093e\u093f\u0930\u092f\u094b \u0915\u094b \u0926\u094b\u0937\u0940 \u0928 \u092e\u093e\u0928\u0915\u0930 \u0936\u0940 \u0927\u0940\u0930\u0947 \u0928 \u0926 \u0930\u093e\u092f \u0915\u094b
\n\u0926\u094b\u0937\u0940 \u092e\u093e\u0928\u093e \u0917\u092f\u093e \u0964\n<\/p>\n
             \u0936\u0940 \u0927\u0940\u0930\u0947 \u0928 \u0926 \u0930\u093e\u092f \u0915\u094b \u0909\u0915 \u092e\u0941\u0920 \u092d\u0947 \u0921 \u0915\u0947 \u0938\u092e\u0938\u0924
\n\u092a\u0915\u0930\u0923 \u092e\u0947 \u0926\u094b\u0937\u0940 \u092e\u093e\u0928\u093e \u091c\u093e\u0928\u093e \u092e\u0947 \u0930\u0947 \u0926\u093f\u0937\u0915\u094b\u0923 \u092e\u0947 \u0928\u092f\u093e\u092f\u094b\u093f\u091a\u0924
\n\u0928\u0939\u0940 \u0939\u0948 \u0964\n<\/p>\n
                               ————<\/p>\n
\u0906\u0930\u094b\u093f\u092a\u0924 \u0905\u093f\u0927\u0915\u093e\u0930\u0940 \u0915\u093e \u092a\u0936\u0928\u0903- \u092e\u0948 \u0920\u094b\u093f\u0915\u092f\u093e \u0917\u0948 \u0917 \u0938\u0947
\n                                        37<\/span><\/p>\n
                     \u093f\u0926\u0928\u093e\u0902\u0915 \u0968\u0968-\u096d-\u0968\u0966\u0966\u096d \u0915\u094b \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u091f\u0940\u092e \u0938\u0947 \u0939\u0941 \u0908
\n                     \u0926\u094b\u0928\u094b \u092e\u0941\u0920 \u092d\u0947 \u0921 \u094b \u0915\u093e \u092a\u092d\u093e\u0930\u0940 \u0925\u093e \u0964        \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u0915\u0947
\n                     \u092a\u092d\u093e\u0930\u0940 \u0905\u093f\u0927\u0915\u093e\u0930\u0940 \u0915\u0947 \u0930\u092a \u092e\u0947 \u0909\u0915 \u092e\u0941\u0920 \u092d\u0947 \u0921 \u094b \u0915\u0947 \u093f\u0935\u0937\u092f \u092e\u0947
\n                     \u092e\u0947 \u0930\u0947 \u093f\u0915\u0938\u0940 \u0905\u092a\u091a\u093e\u0930 \u0915\u094b \u0907\u0902 \u093f \u0917\u0924 \u0915\u0930\u0924\u0947 \u0939\u0941 \u090f \u0915\u092f\u093e \u0915\u094b \u0908
\n                     \u092e\u094c\u093f\u0916\u0915 \u0905\u0925\u0935\u093e \u093f\u0932\u093f\u0916\u0924 \u093f\u0936\u0915\u093e\u092f\u0924 \u093f\u091c\u0932\u093e \u092a\u0941\u093f \u0932\u0938 \u0915\u0947
\n                     \u093f\u0915\u0938\u0940 \u0938\u0924\u0930 \u0915\u0947 \u0905\u093f\u0927\u0915\u093e\u0930\u0940 \u0905\u0925\u0935\u093e              \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u0915\u0947
\n                     \u093f\u0915\u0938\u0940 \u0938\u0924\u0930 \u0915\u0947 \u0905\u093f\u0927\u0915\u093e\u0930\u0940 \u0928\u0947 \u0906\u092a\u0938\u0947 \u0915\u0940 \u0925\u0940 \u0964\n<\/p>\n
                     \u0909\u0924\u0930\u0903- \u0928\u0939\u0940 \u0964 \u093f\u091c\u0932\u093e \u092a\u0941\u093f \u0932\u0938 \u0905\u0925\u0935\u093e \u090f\u0938\u0966\u091f\u0940\u0966\u090f\u092b\u0966 \u0915\u0947
\n                     \u093f\u0915\u0938\u0940 \u0905\u093f\u0927\u0915\u093e\u0930\u0940 \u0928\u0947 \u0915\u094b\u0907 \u093f\u0932\u093f\u0916\u0924 \u0905\u0925\u0935\u093e \u092e\u094c\u093f\u0916\u0915
\n                     \u093f\u0936\u0915\u093e\u092f\u0924 \u0918\u091f\u0928\u093e \u0915\u0947 \u093f\u0926\u0928 \u0938\u0947 \u0906\u091c \u0924\u0915 \u0909\u0915 \u0938\u092e\u092c\u0928\u0927 \u092e\u0947
\n                     \u0928\u0939\u0940 \u0915\u0940 \u0939\u0948 \u0964\n<\/p>\n
(\u0936\u0948 \u0932 \u091c\u093e\u0915\u093e\u0928\u0924 \u093f\u092e\u0936)         (\u092c\u0926\u0940 \u092a\u0938\u093e\u0926 \u093f\u0938\u0902 \u0939 )                (\u0927\u0940\u0930 \u0947 \u0928 \u0926 \u0930\u093e\u092f)<\/p>\n
\u0905\u092a\u0930 \u092a\u0941\u093f \u0932\u0938 \u092e\u0939\u093e\u093f\u0928\u0926\u0947 \u0936 \u0915,   \u092a\u0941\u093f \u0932\u0938 \u0909\u092a\u092e\u0939\u093e\u093f\u0928\u0930\u0940\u0915\u0915\/       \u092a\u0941\u093f \u0932\u0938 \u0909\u092a\u093e\u0927\u0940\u0915\u0915(\u093f\u0928\u0932\u0902 \u093f \u092c\u0924 )<\/p>\n
\u0909\u0966\u092a\u0966 \u092a\u093e\u0935\u0930 \u0915\u093e\u0930\u092a\u094b\u0930 \u0947 \u0936 \u0928    \u0935\u093f\u0930\u0937 \u092a\u0941\u093f \u0932\u0938 \u0905\u0927\u0940\u0915\u0915,    \u0938\u092e\u092c\u0926 \u092e\u0941\u0916 \u092f\u093e\u0966 \u092a\u0941\u093f \u0932\u0938 \u092e\u0939\u093e\u093f\u0928\u0926\u0947 \u0936 \u0915<\/p>\n
\u093f\u0932\u093f\u092e\u091f\u0947 \u0921 , \u0936\u093f\u0915 \u092d\u0935\u0928,\u0932\u0916\u0928\u0909       \u092e\u0941\u0930 \u093e\u0926\u093e\u092c\u093e\u0926                   \u0909\u0966\u092a\u0966, \u0932\u0916\u0928\u0909 \u0964\n<\/p>\n
68.    The defence taken by the State while assailing the<\/p>\n
petitioner’s conduct does not seem to be only after thought but also
\nit shows that the persons who are responsible in not providing
\nassistance during the occurrence in question have been tried to be
\nshielded. In the supplementary counter affidavit dated 22.2.2010,
\nShri Prakash Narain, Deputy Secretary, Home Department submits
\nthat the petitioner had requested the Superintendent of Police,
\nChitrakoot for carrying the body of Maiyadeen and in consequence
\nthereof, a team of police officials were sent at 3.30p.m., to support
\nS.T.F. Team. The petitioner had never demanded extra police force
\nto search Thokiya gang. Such averment on the part of the State is
\ndisturbing and seems to have been cooked up in a very
\nirresponsible manner. It shall be appropriate to reproduce relevant
\nportion of para 9 of the affidavit dated 22.2.2010, filed by the State
\n:\n<\/p>\n
                                     38<\/span><\/p>\n
                “9…………………It is further submitted that as per
\n                available records, to perform the Government
\n                works Mobile No.9415903255 and 9919361685
\n                have been issued to the petitioner.          As per call
\n                details of the mobile numbers provided to the
\n                petitioner, the petitioner has not contacted to the
\n                Mobile No.9415902216 which was allotted to the
\n                Senior Superintendent of Police, S.T.F.\n<\/p><\/blockquote>\n
                      It is submitted that as per call details of the
\n                mobile numbers provided to the petitioner, at 8:24,
\n                8:34, 8:36 and 8:37 A.M. The petitioner has tried to
\n                contact to the C.U.G. Of the Senior Superintendent
\n                of Police, S.T.F. However, since he was busy in an
\n                operation of Dadua Gang; therefore, he was not in
\n                a position to deploy the police force to other points.\n<\/p><\/blockquote>\n
                       It is also significant to submit that petitioner
\n                requested to the then Superintendent of Police,
\n                Chitrakoot    for    carrying   the   dead     body    of
\n                Maiyadeen.     The then Superintendent of Police,
\n                Chitrakoot send a team of police officials at
\n                3:30p.m. To support the S.T.F. Team; however, the
\n                petitioner never demanded extra police force to
\n                search the Thokiya Gang of dacoits. Thereafter,
\n                after getting the information about operation of
\n                Thokia Gang, the then Superintendent of Police,
\n                Chitrakoot himself attained the spot with police
\n                force, S.O.G. Team and ambulance.”\n<\/p><\/blockquote>\n
69. For the sake of repetition, we are constraint to observe that
\nwhile imputing the petitioner’s conduct, the State and its authorities
\nhad tried to cook up a false case. Once it is admitted that during
\nthe course of encounter at 8:24, 8:34, 8:36 and 8:37 A.M., the
\npetitioner contacted Senior Superintendent of Police, S.T.F. for help
\nwho denied the same because of engagement to search out
\n                                   39<\/span><\/p>\n
Daduwa gang, then at no stretch of imagination, it could be
\npresumed that the petitioner had not requested for any assistance
\nwith regard to enforcement or back-up of police to assist his team.\n<\/p>\n
70. The Superintendent of Police, Chitrakoot while sending a team
\nof police at 3.30p.m. with Station House Officer, Karvi has forgotten
\nhis responsibility to ensure that whether the team arrived at the
\nspot or not. The repeated requests made to various authorities
\nspeak loudly that the petitioner and the members of the team
\nrepeatedly have requested for extra police force but the same was
\nnot provided.     Even the alleged police force sent by the
\nSuperintendent of Police, Chitrakoot at 3.30p.m. even after more
\nthen six hours of the occurrence had not arrived to the place of
\nencounter and the petitioner’s team was forced to come back on
\ntheir own strength.    Virtually, it is failure on the part of the
\nadministration in putting the life of S.T.F. Team in danger by not
\nsending additional force in spite of repeated requests made. For
\ntwo days and night, the members of the team were combing the
\nforest and encountered the dacoits. In such a situation, ordinarily,
\nit is not expected that they should come on foot from jungle area
\ninstead of using their vehicle. Affidavits filed on behalf of State
\ncontaining   self-contradictory   facts   shows    concoction    and
\nfabrication to persecute the petitioner, may be for extraneous
\nreasons.\n<\/p>\n
                       MIS-CONDUCT<\/p>\n
71.   U.P. Government Servant Conduct Rule 1956 ( in short, 1956
\nRules) regulate the conduct of government servant employed in
\nconnection with the affair of the State of U.P. Rule 3 (1) and 3 (2)
\nprovides that every government servant shall at all times maintain
\nabsolute integrity and devotion to duty. The government servant
\nshall at all times conduct himself in accordance with the specific or
\nimplied orders of Government regulating behaviour and conduct
\n                                     40<\/span><\/p>\n
which may be in force.\n<\/p>\n
      For convenience Rule 3 (1) and 3(2) is reproduced as under:-\n<\/p>\n
              “3. General- (1) Every Government servant shall at
\n              all times maintain absolute integrity and devotion to
\n              duty.\n<\/p><\/blockquote>\n
              (2) Every Government shall at all timnes conduct
\n              himself in accordance with the specific or implied
\n              orders of Government regulating behaviour and
\n              conduct which may be in force.”\n<\/p><\/blockquote>\n
      A plain reading of sub-rule (1) and (2) of Rule 3 of 1956 Rules
\nindicates that every government servant shall maintain at all times
\nintegrity and devotion to duty. He or she shall be abide by specific
\nor implied order of the government regulating behaviour and
\nconduct which may be in force.\n<\/p>\n
72.   The U.P. Government Servant (Discipline and Appeal) Rules,
\n1999, in short, 1999 Rules prescribe procedure for taking
\ndisciplinary action against the government servant. Under Rule 3,
\nminor and major penalties have been provided. Rule 4 deals with
\nsuspension. For convenience, Rule 3 and and relevant portion of
\nrule 4 are reproduced as under :\n<\/p>\n
               “3. Penalties.- The following penalties may, for good
\n               and sufficient reason and as hereinafter provided, be
\n               imposed upon the Government Servants:-\n<\/p><\/blockquote>\n
                      Minor Penalties-\n<\/p><\/blockquote>\n
               (I)      Censure;\n               (II)     Withholding of increment for a specified\n               period;\n               (III)    Stoppage at an efficiency bar;\n<\/pre>\n
               (IV) Recovery from pay of the whole or part of any
\n               pecuniary loss caused to Government by negligence
\n                        41<\/span><\/p>\n
or breach of orders;\n<\/p><\/blockquote>\n
(V)      Fine in case of persons holding Group ‘D’
\nposts;\n<\/p>\n
        Provided that the amount of such fine shall in no
\ncase exceed twenty-five per cent of the month’s pay
\nin which the fine is imposed.\n<\/p>\n
        Major Penalties-\n<\/p>\n
(I)         Withholding of increments with cumulative
\neffect;\n<\/p>\n
(ii)     Reduction to a lower post or grade or time
\nscale or to a lower stage in a time scale;\n<\/p>\n
(iii)    Removal from the service which does not
\ndisqualify from future employment;\n<\/p>\n
(iv)     Dismissal from the service which disqualifies
\nfrom future employment.\n<\/p>\n
Explanation.- The following shall not amount to
\npenalty within the meaning of this rule, namely :
\n(I)      Withholding of increment of a Government
\nServant       for   failure   to   pass    a   departmental
\nexamination or for failure to fulfil any other condition
\nin accordance with the rules or orders governing the
\nservice;\n<\/p>\n
(II)     Stoppage at the efficiency bar in the time scale
\nof pay on account of ones not being found fit to
\ncross the efficiency bar;\n<\/p>\n
(III)    Reversion of a person appointed on probation
\nto the service during or at the end of the period of
\nprobation      in   accordance      with   the   terms   of
\nappointment or the rules and orders governing such
\nprobation;\n<\/p>\n
(IV) Termination of the service of a person
\nappointed on probation during or at the end of the
\nperiod of probation in accordance with the terms of
\nthe service or the rules and orders governing such
\n                                  42<\/span><\/p>\n
              probation.”\n<\/p>\n
              “4. Suspension.- (1) A Government servant against
\n              whose conduct an inquiry is contemplated, or is
\n              proceeding, may be placed under suspension
\n              pending the conclusion of the inquiry in the
\n              discretion of the Appointing Authority :\n<\/p>\n
                  Provided that suspension should not be resorted
\n              to unless the allegations against the Government
\n              Servant are so serious that in the event of their
\n              being established may ordinarily warrant major
\n              penalty :\n<\/p>\n
                    Provided further that concerned Head of the
\n              Department empowered by the Governor by an
\n              order in this behalf may place a Government
\n              Servant or class of Government Servants belonging
\n              to Group ‘A’ and ‘B’ posts under suspension under
\n              this rule :\n<\/p>\n
                 Provided also that in the case of any Government
\n              Servant or class of Government Servants belonging
\n              to Group ‘C’ and ‘D’ posts, the Appointing Authority
\n              may delegate its power under this rule to the next
\n              lower authority.\n<\/p>\n
73.   Now it is trite in law that while construing an Act, Rule or
\nRegulation each and every word, every line, para should be given
\nmeaning and considered in its totality and not in piecemeal vide
\n2002 (4) SCC 297 Grasim Industries Limited Vs. Collector of
\nCustoms; 2003 SCC (1) 410 Easland Combines Vs. CCE; 2006 (5)
\nSCC 745 A.N.Roy Vs. Suresh Sham Singh and 2007 (10) SCC 528
\nDeewan Singh Vs. Rajendra Prasad Ardevi.\n<\/p>\n
74.   According to Maxwell, any construction which may leave
\nwithout affecting any part of the language of a statute should
\nordinarily be rejected. Relevant portion from Maxwell on the
\n                                  43<\/span><\/p>\n
Interpretation of Statutes (12th edition page 36) is reproduced as
\nunder:-\n<\/p>\n
                  “A construction which would leave without effect
\n                  any part of the language of a statute will
\n                  normally be rejected. Thus, where an Act plainly
\n                  gave an appeal from one quarter sessions to
\n                  another, it was observed that such a provision,
\n                  through extraordinary and perhaps an oversight,
\n                  could not be eliminated.”\n<\/p><\/blockquote>\n
75.   In AIR 2005 SC 1090, Manik Lal Majumdar and others Vs.
\nGouranga Chandra Dey and others, Hon’ble Supreme Court
\nreiterated that legislative intent must be found by reading the
\nstatute as a whole.\n<\/p>\n
76.   In 2006 (2) SCC 670, Vemareddy Kumaraswami Reddy
\nand another Vs. State of Andhra Pradesh, their Lordship of
\nHon’ble Supreme Court affirmed the principle of construction and
\nwhen the language of the statute is clear and unambiguous court
\ncan not make any addition or subtraction of words.\n<\/p>\n
77.   In AIR 2007 SC 2742, M.C.D. Vs. Keemat Rai Gupta and AIR
\n2007 SC 2625, Mohan Vs. State of Maharashtra, their Lordship of
\nHon’ble Supreme Court ruled that Court should not add or delete
\nthe words in statute. Casus Omisus should not be supplied when
\nthe language of the statute is clear and unambiguous.\n<\/p>\n
78.   In AIR 2008 SC 1797, Karnataka State Financial Corporation
\nVs. N. Narasimahaiah and others, Hon’ble Supreme Court held that
\nwhile construing a statute it can not be extended to a situation not
\ncontemplated thereby. Entire statute must be first read as a whole
\nthen section by section, phrase by phrase and word by word. While
\ndischarging statutory obligation with regard to take action against a
\nperson in a particular manner that should be done in the same
\nmanner. Interpretation of statute should not depend upon
\ncontingency but it should be interpreted from its own word and
\n                                    44<\/span><\/p>\n
language used.\n<\/p>\n
79.    House of Lord in the case of Johnson Vs. Marshall, sons and
\nCo. Ltd. reported in (1906) AC 409 (HL) where the issue was
\nwhether the workmen was guilty of serious and wilful misconduct
\ntheir Lordships held that burden of proving guilt was on employer.
\nMisconduct is reduced to the breach of rule, from which breach
\ninjuries actionable or otherwise could reasonably be anticipated is
\ndepend upon each case.\n<\/p>\n
80.   In the case of Rasik Lal Vaghaji Bhai Patel vs. Ahmedabad
\nMunicipal Corporation reported in (1985) 2 SCC 35, (Para 5)
\nHon’ble Supreme Court has held that unless either in the certified
\nstanding order or in the service regulations an act or omission is
\nprescribed as misconduct, it is not open to the employer to fish out
\nsome conduct as misconduct and would not be comprehended in
\nany of the enumerated misconduct.\n<\/p>\n
81.   In the case of Union of India versus J. Ahmed (1979)2
\nSCC 286, Hon’ble Supreme Court has held that, deficiency in
\npersonal character or personal ability do not constitute misconduct
\nfor taking disciplinary proceedings.\n<\/p>\n
82.   In the case of A.L. Kalara vs. Project & Equipment
\nCorporation<\/a> (1984) 3 SCC 316: Hon’ble Supreme court has held
\nthat acts of misconduct must be precisely and specifically stated in
\nrules or standing orders and can not be left to be interpreted ex-
\npost facto by the management.\n<\/p>\n
83.   The case of Rasik Lal Vaghaji Bhai Patel vs. Ahmedabad
\nMunicipal Corporation, (1985) 2 SCC 35, the apex court has held
\nthat it is well settled that unless either in the certified standing order
\nor in the service regulations an act or omission is prescribed as
\nmisconduct, it is not open to the employer to fish out some conduct
\n                                    45<\/span><\/p>\n
as misconduct and would not be comprehended in any of the
\nenumerated misconduct. (Para 5)<\/p>\n
84.    In the case of State of Punjab vs. Ex-Constable Ram Singh<\/a>
\n(1992) 4 SCC 54, Hon’ble Supreme Court held that the word
\nmisconduct though not capable of precise definition as reflection
\nreceives its connotation from the context, the delinquency in its
\neffect on the discipline and the nature of duty. It may involve moral
\nturpitude, it must be improper or wrong behaviour, unlawful
\nbehaviour , wilful in character; forbidden act, a transgression of
\nestablished and definite rule of action or code of conduct but not
\nmere     error   of   judgement,   carelessness   or   negligence   in
\nperformance of the duty; the act complained of bears forbidden
\nquality or character. Its ambit has to be construed with reference to
\nthe subject matter and context where in the terms occurs; regard
\nbeing had to the scope of the statute and public purpose it seeks to
\nserve.\n<\/p>\n
85.    In the case of G.M. Appellate Authority,Bank of India vs.
\nMohd. Nizamuddin (2006) 7 SCC 410: Hon’ble Supreme court has
\nheld that, it is well settled law that gravity of misconduct has to be
\nmeasured in terms of the nature of misconduct. (Para 9)<\/p>\n
86.    In Black’s Law Dictionary Seventh Edition, the word, “mis-
\nconduct” has been defined as under :\n<\/p>\n
                 “misconduct 1. A dereliction of duty; unlawful or
\n                 improper behavior.\n<\/p><\/blockquote>\n
                 Affirmative misconduct. 1. An affirmative act of
\n                 misrepresentation or concealment of a material fact;
\n                 intentional wrongful behavior.”\n<\/p><\/blockquote>\n
                 official misconduct. A public officer’s corrupt
\n                 violation of assigned duties by malfeasance,
\n                 misfeasance, or nonfeasance. – Also termed
\n                 misconduct in office; misbehavior in office;
\n                 malconduct in office; misdemeanor in office;
\n                 corruption in office; official corruption.”
\n                 “wanton misconduct. An act, or a failure to act
\n                 when there is a duty to do so, in reckless disregard
\n                                 46<\/span><\/p>\n
               of another’s rights, coupled with the knowledge that
\n               injury will probably result.- Also termed wanton and
\n               reckless mis-conduct.\n<\/p><\/blockquote>\n
               Willful     misconduct.       Misconduct   committed
\n               voluntarily and intentionally.\n<\/p><\/blockquote>\n
               “This term of art [willful misconduct] has defied
\n               definition, but it is clear that it means something
\n               more than negligence. Two classic examples of
\n               misconduct which will defeat the seaman’s claim
\n               are intoxication and venereal disease.” Frank L.
\n               Maraist, Admiralty in a Nutshell 185-86 (3 ed.
\n               1996).”\n<\/p><\/blockquote>\n
87.   In Law Lexicon by P Ramanatha Aiyar, mis-conduct has been
\ndefined as under :\n<\/p>\n
               “Misconduct. A transgression of some established
\n               and definite rule of action, a forbidden act, a
\n               dereliction from duty, unlawful behavior, willful in
\n               character, improper or wrong behaviour, its
\n               synonyms       are      mis-demeanor,      misdeed,
\n               misbehavior.        Delinquency,         impropriety,
\n               mismanagement, offences, but not negligence or
\n               carelessness. Term “misconduct” when applied to
\n               act of attorney, implies dishonest act or attempt to
\n               persuade court or jury by use of deceptive or
\n               reprehensible methods. People v. Sigal, 249 CA 2D
\n               299, 57 Cal Rptr. 541, 549. Misconduct, which
\n               renders discharged employee ineligible for
\n               unemployment compensation, occurs when conduct
\n               of employee evinces willful or wanton disregard of
\n               employer’s interest, as in deliberate violations, or
\n               disregard of standards of behavior which employer
\n               has right to expect of his employees, or in
\n               carelessness or negligence of such degree or
\n               recurrence as to manifest wrongful intent or evil
\n               design. Walson v. Brown, La. App., 147 So. 2D 27,
\n               29 (Black).\n<\/p><\/blockquote>\n
88.   Various meanings have been given of word, “mis-conduct” in
\nthe celebrated book, “Words and Phrases” published by West
\nPublishing Company. The definition of mis-conduct in reference to
\npresent context is reproduced as under :\n<\/p>\n
               “The term “misconduct” implies a wrongful intention,
\n               and not a mere error of judgment. Smith v. Cutler,
\n               N.Y., 10 Wend. 590, 25 Am.Dec. 580; U.S. v.
\n               Warner, 28 Fed. Cas. 404.”\n<\/p><\/blockquote>\n
               “Word “misconduct” has several different meanings;\n<\/p><\/blockquote>\n
                                  47<\/span><\/p>\n
               it   is    bad    behavior,   improper      conduct,
\n               mismanagement; wrong behavior, wrong conduct;
\n               any improper or wrong conduct; in usual parlance, a
\n               transgression of some established and definite rule
\n               of action, where no discretion is left; except what
\n               necessity may demand; it does not necessarily
\n               imply corruption or criminal intention, but implies
\n               wrongful intention, and not mere error of judgment.
\n               Boynton Cab Co. v. Neubeck, 296 N.W. 636, 639,
\n               237 Wis. 249.”\n<\/p><\/blockquote>\n
89.   Thus from the dictionary meaning, the word, “mis-conduct”
\nimplies wrongful intention and not mere error of judgment or bona
\nfide error of judgment on the part of government servant.\n<\/p>\n
90.   In a case, reported in State of Punjab versus Ex-Constable
\nRam Singh (1992) 4 SCC 54, their Lordships of Hon’ble Supreme
\nCourt have interpreted the word, “mis-conduct”.        To reproduce
\nrelevant portion from the judgment of Ram Singh (supra), to quote;\n<\/p>\n
             “Thus it could be seen that the word ‘misconduct’
\n             though not capable of precise definition, its reflection
\n             receive its connotation from the context, the
\n             delinquency in its performance and its effect on the
\n             discipline and the nature of the duty. It may involve
\n             moral turpitude, it must be improper or wrong
\n             behaviour; unlawful bahaviour, wilful in character;
\n             forbidden act, a transgression of established and
\n             definite rule of action or code of conduct but not mere
\n             error of judgment, carelessness or negligence in
\n             performance of the duty; the act complained of bears
\n             forbidden quality or character. Its ambit has to be
\n             construed with reference to the subject-matter and
\n             the context wherein the term occurs, regard being
\n             had to the scope of the statute and the public
\n             purpose it seeks to serve. The police service is a
\n             disciplined service and it requires to maintain strict
\n             discipline. Laxity in this behalf erodes discipline in the
\n             service causing serious effect in the maintenance of
\n             law and order.”\n<\/p><\/blockquote>\n
91.   In another judgment, reported in AIR 2002 SC 1124 Baldev
\nSingh Gandhi versus State of Punjab, their Lordships of Hon’ble
\nSupreme Court had occasion to define the word, “misconduct”\n<\/p>\n
                                  48<\/span><\/p>\n
which is reproduced as under :\n<\/p>\n
                “Misconduct has not been defined in the Act. The
\n                word “misconduct” is antithesis of the word
\n                “conduct”. Ordinarily the expression “misconduct”
\n                means wrong or improper conduct, unlawful
\n                behaviour,    misfeasance,       wrong   conduct,
\n                misdemeanour etc. Since there are different
\n                meanings of that expression, the same has to be
\n                construed with reference to the subject and the
\n                context wherein it occurs. Regard has to be paid
\n                to the aims and objects of the statute.”\n<\/p><\/blockquote>\n
92.   In a case reported in AIR 1979 SC 1022, Union of India Vs.
\nJ.Ahmed, their Lordship of Hon’ble Supreme Court held that failure
\nto take any effective preventive measures like error in judgement in
\nevaluating developing situation or failure to visit the scenes of
\ndisturbance to perform duty in certain manner are shortcomings in
\nthe personal capacity or degree of efficiency. Such allegation of
\npersonal quality could not constitute misconduct for the purpose of
\ndisciplinary proceedings. To reproduce relevant portion from the
\njudgement of J. Ahmed (supra), which is as under:-\n<\/p>\n
                 “11. It is, however, difficult to believe that lack of
\n                 efficiency or attainment of highest standards
\n                 in discharge of duty attached to public office
\n                 would ipso facto constitute misconduct There
\n                 may be negligence in performance of              duty
\n                 and a lapse in performance of duty or error of
\n                 judgment in evaluating the developing situation
\n                 may be negligence in discharge of duty but would
\n                 not constitute misconduct unless                   the
\n                 consequences directly attributable to negligence
\n                 would be such as       to beirreparable or        the
\n                 resultant damage would be so heavy that the
\n                 degree of culpability would be very high. An
\n                 error can be indicative of negligence and the
\n                 degree of culpability may indicate the grossness
\n                 of the negligence.     Carelessness can often
\n                 be productive of more harm than deliberate
\n                 wickedness or malevolence. Leaving aside the
\n                 classic example of the sentry who sleeps at his
\n                 post 513 and allows the enemy to slip through,
\n                 there are other more familiar instances of which a
\n                 railway cabinman signals in a train on the same
\n                 track where there is a stationary train causing
\n                 headlong collision; a nurse giving intravenous
\n                                             49<\/span><\/p>\n
                       injection which ought to be given intramuscular
\n                       causing instantaneous         death;    a     pilot
\n                       overlooking an instrument showing snag in
\n                       engine       and the aircraft crashes causing
\n                       heavy loss of life. Misplaced sympathy can be a
\n                       great evil [see Navinchandra Shakerchand shah
\n                       v. Manager, Ahmedabad Co-op. Department
\n                       Stores Ltd.(1)]. But in any case, failure to attain
\n                       the highest standard of efficiency in performance
\n                       of duty permitting an inference of negligence
\n                       would not constitute misconduct nor for the
\n                       purpose of Rule 3 of the Conduct Rules as would
\n                       indicate lack of devotion to duty.\n<\/p><\/blockquote>\n
                       13. …It is alleged that respondent showed
\n                       complete lack of leadership when disturbances
\n                       broke out and he disclosed complete inaptitude,
\n                       lack of foresight, lack of firmness and capacity to
\n                       take firm decision. These are personal qualities
\n                       which a man holding a post of Deputy
\n                       Commissioner would be expected to possess.
\n                       They may be relevant considerations on the
\n                       question of retaining him in the post or for
\n                       promotion, but such lack of personal quality
\n                       cannot constitute misconduct for the purpose of
\n                       disciplinary proceedings.”\n<\/p><\/blockquote>\n
93.     The    ratio        of    J.Ahmed        (supra)   in    case   taken     into
\nconsideration then the facts and circumstances and the material on
\nrecord do not constitute misconduct as the allegation relating to
\npetitioner is lack of leadership qualities though that too seems to be
\nnot correct keeping in view the facts and circumstances of the
\ncase.\n<\/p>\n
94.     In    view     of        above,   assuming     the      contention   of   the
\nSuperintendent of Police, Chitrakoot as correct that the petitioner
\nshould have come back along with team members on foot from
\njungle area not through vehicle, it may be error in decision making
\nprocess but it shall not constitute mis-conduct under the service
\nrules which may call for disciplinary action under 1999 Rules.\n<\/p>\n
95.     There is no material on record which may indicate that the
\n                                     50<\/span><\/p>\n
decision taken by the petitioner was with oblique motive, mala fide
\nor for some unreasonable consideration. Rather the action of the
\npetitioner has been upheld by his Head of Department(supra),
\nhence also, the petitioner does not seem to have committed any
\nmis-conduct under the service rules.\n<\/p>\n
                         SUSPENSION :\n<\/p>\n
96.   The next question cropped up as to whether the State should
\nhave suspended the petitioner for allegations on record. Rule 4 of
\n1999 Rules (supra) provides that the suspension shall not be
\nresorted to unless the allegation against the government servant is
\nso serious that in the event of their being established may
\nordinarily warrant major penalty. There appears to be no element
\nof mis-conduct warranting major penalty.\n<\/p>\n
97.   The first proviso to Rule 4 of 1999 Rules makes it obligatory
\nupon the appointing authority, that before resorting the power of
\nsuspension, necessary exercise must be done to find out whether
\nthe allegations     against    the Government   servant   constitute
\nmisconduct and is so serious that it shall warrant major penalty.
\nMeaning thereby, there should be effective application of mind by
\nthe authorities to record that the allegations against the
\nGovernment servant shall ordinarily warrant major penalty. In the
\npresent case, the original record placed before us, does not
\nindicate any such exercise done by the State Government.\n<\/p>\n
98.   Hon’ble Supreme Court in a case reported in AIR 1959 SC
\n1342 The Management of Hotel Imperial, New Delhi and others
\nVs. Hotel Workers’ Union, has held that power to suspend is the
\ncreature of statute or contract and decision be taken keeping in
\nview the letter and spirit of statute.\n<\/p>\n
99.   In a case reported in 1974 ALJ 92, State of U.P. Vs. Jai
\nSingh Dixit (Alld.) a Special Bench of Allahabad High Court
\n                                   51<\/span><\/p>\n
consisting of five Hon’ble Judges while interpreting the provisions
\ncontained in U.P. Punishment and Appeal Rules and power to
\nState Government to suspend a government servant held that “the
\npower of suspension arise when on an objective consideration the
\nappointing authority is of the view that a formal disciplinary inquiry
\nis expected or is proceeding”.         It has further been held that
\nsuspension should not be resorted to unless the allegations against
\nthe Government servant are so serious that in the event of their
\nbeing established, they may ordinarily be expected to warrant his
\ndismissal, removal or reduction. Meaning thereby suspension may
\nbe resorted to only in case there is serious misconduct on the part
\nof government servant which may culminate into major penalty
\nafter due enquiry.\n<\/p>\n
100. A Division Bench of Allahabad High Court in a case reported
\nin 1997 (31) ALR 605, Ram Dular Tripathi vs. State of U.P. And
\nothers<\/a> while interpreting Rule 49-A (1) of the Civil Services (CCA
\nRules) deprecated the suspension of government servant on flimsy
\nground observing that such suspension will have adverse affect on
\nthe service which may ultimately affect the working of the
\ngovernment. The principle opined by Hon’ble Five Judges of this
\nCourt in the case of Jai Singh Dixit (supra) has been reiterated and
\nfollowed.\n<\/p>\n
     Their Lordship of Allahabad High Court in the case of Ram
\nDular Tripathi (supra) further held that mere lack of efficiency or
\nskill does not ipso facto constitute misconduct and call for
\nsuspension for a government servant. To reproduce relevant
\nportion from the judgement of Ram Dular Tripathi (supra) which is
\nas under:-\n<\/p>\n
                 “A Government servant can be suspended only if
\n                 his conduct is such so as to warrant the inquiry
\n                 under Rule 55 where one of the three major
\n                 punishments can be imposed.           Mere lack of
\n                 efficiency\/skill or failure to attain the highest
\n                                   52<\/span><\/p>\n
                 standards in discharge of duty would not ipso
\n                 facto constitute misconduct. The suspension of
\n                 the Government servant on such a ground cannot
\n                 be sustained.”\n<\/p><\/blockquote>\n
101.       Hon’ble the Supreme Court in the case of State of
\nOrissa versus Bimal Kumar Mohanty reported in 1994(4) SCC
\n126, has ruled that order of suspension should not be passed as
\nan administrative routine in the mechanical manner. It should be on
\nconsideration of gravity of alleged misconduct or the nature of
\nallegations imputed to a delinquent employee. In the case of A.
\nRadha Krishna Moorthy (supra), their lordships of Hon’ble Supreme
\nCourt has ruled that disciplinary proceedings should not be initiated
\non vague charges. The charge should be clear and specific
\naccording to service rules and not of general nature. In the case of
\nK. Sunkhendar Reddy (supra), the Hon’ble Supreme Court
\ndeprecated the practice of passing selective orders of suspension.\n<\/p>\n
102. Prof. Wade in his famous treatise, “Administrative Law” Ninth
\nEdition, after discussing the law on the subject, has observed that
\nthe court will not accept the indiscriminate use of a power where
\ncases ought to be considered on their own merits. The learned
\nauthor further observed that the discretionary authority does not
\nhave got unfettered discretion.\n<\/p>\n
103. The Hon’ble Supreme Court in the case reported in AIR 1998
\nSC 477, Amarnath Ashram Trust Society Vs. Governor of U.P.,
\nhas held that discretion of the Government cannot be absolute and
\nunjusticiable. The same principle has been affirmed in 1993(3)
\nSCC 634, Hansraj H. Jain Vs. State of Maharastra and others;
\nAIR 1979 SC 1628: Ramana Dayaram Shetty Vs. International
\nAirport Authority of India and others and in catena of other
\njudgments of Hon’ble the Supreme Court. The Hon’ble Supreme
\nCourt from time to time has cautioned the Government not to
\n                                     53<\/span><\/p>\n
demoralise the bureaucracy by arbitrary use of power.\n<\/p>\n
FABRICATION\/MANIPULATION OF RECORD AND FALSITY OF
\n                       CHARGES\/ALLEGATIONS\n<\/p>\n
104. The allegation against the petitioner more or less based on
\nthe letter dated 1.9.2007, sent by the Superintendent of Police,
\nChitrakoot. In the said letter, a finding has been recorded on the
\nbasis of case diary No.22 dated 01.9.2007 filed with the
\nsupplementary counter affidavit of the respondents sworn on
\n7.4.2010. It has been stated that the charge-sheet No.221\/2007
\ndated 1.9.2007 was filed against the accused Thokia alias Ambika
\nPatel and Deepak alias Avdhesh Patel. Copy of the charge-sheet
\nNo.221 dated 1.9.2007 has been annexed as Annexure No.SA-6 to
\nthe supplementary affidavit dated 5.4.2010 filed by the petitioner.\n<\/p>\n
105. A perusal of the charge-sheet reveals that it does not relate to
\naccused Thokia alias Ambika Patel and Deepak alias Avdhesh
\nPatel. It relates to the accused, namely Anis Ahmad, Kalyan Singh
\nPatel and Ram Prasad Vishwakarma.               Thus, the letter dated
\n1.9.2007 sent by the Superintendent of Police recommending
\naction against the petitioner is at the face of record based on
\nunfounded facts. The date of occurrence has also been corrected
\nby ink pen from 22.2.2007 to 22.7.2007. It appears that the
\nSuperintendent    of    Police,    Chitrakoot   had   not   acted   with
\nresponsibility to place correct facts while forwarding the letter dated
\n1.9.2007.\n<\/p>\n
106. In the report dated 1.9.2007 of the Circle Officer, City,
\nChitrakoot, the date of occurrence has been corrected and
\nconverted from 22.2.2007 to 22.7.2007. Fluid seems to have been
\nused and the word, “Kshetradhikari, Nagar” has been substituted
\nby, “Prabhari Nirikshak, Karvi”.\n<\/p>\n
107. The alleged report of the Circle Officer, City dated 1.9.2007
\n                                     54<\/span><\/p>\n
contains a reference with regard to the report of the Investigating
\nOfficer\/Station House Officer, Karvi but the case diary filed with the
\nsupplementary affidavit dated 7.4.2010 (Annexure No.SCA-4) does
\nnot reveal existence of such report.\n<\/p>\n
      Things seem to have been managed against the petitioner by
\ninterpolation of records.\n<\/p>\n
108. In the charge-sheet dated 26.5.2008, Shri Ghanshyam
\nAhirwar, Circle Officer, City, Chitrakoot has been mentioned as
\nwitness to prove the allegations. It has been stated that during the
\ncourse of enquiry, the petitioner had demanded the report of Shri
\nGhanshyam Ahirwar. In response to which, the Superintendent of
\nPolice, Chitrakoot, vide his letter dated 6.8.2008, directed Shri
\nGhanshyam Ahirwar to send his report. Shri Ghanshyam Ahirwar
\nby FAX message dated 6.8.2008 had informed that he had not
\nconducted any preliminary enquiry. Copy of the FAX message of
\nShri Ghanshyam Ahirwar has been filed as Annexure No.RA-2 to
\nthe petitioner’s affidavit dated 26.11.2008.\n<\/p>\n
      This is an additional material which shows the temptation on
\nthe part of the State Government to prosecute and punish the
\npetitioner.\n<\/p>\n
109. During the course of enquiry, Shri Brijendra Rai, Station
\nHouse Officer, Karvi admitted before the enquiry officer that
\nwhatever allegation has been raised by him against the petitioner is
\nin pursuance to the direction issued by the higher authorities, i.e.
\nby the Superintendent of Police and the Deputy Inspector General
\nof Police, Chitrakoot.      The petitioner has specifically pleaded in
\nparagraph 38 of the rejoinder affidavit dated 26.11.2008 which has
\nnot been denied by filing supplementary counter affidavit dated
\n25.11.2009(para 30 of the supplementary counter affidavit).\n<\/p>\n
110. In the supplementary affidavit dated 5.4.2010, under para
\n10A to 10K, the petitioner has categorically stated that on 1.9.2007,
\n                                    55<\/span><\/p>\n
C.D. No.22 along with charge-sheet No.221 dated 1.9.2007 was
\nnot in existence to facilitate the Superintendent of Police,
\nChitrakoot to write the letter which became foundation to proceed
\nagainst the petitioner. While filing supplementary counter affidavit
\nsworn on 29.4.2010, the Deputy Home Secretary has not denied
\nthis fact. The non-existence of the charge-sheet dated 1.9.2007
\nhas been virtually accepted in para 8 of the supplementary counter
\naffidavit dated 29.4.2010 filed by the State.\n<\/p>\n
111. In the supplementary affidavit dated 5.4.2010, the petitioner
\nhas categorically stated that C.D. No.22 along with the charge-
\nsheet No.221\/2007 was received in the office of the Circle Officer,
\nChitrakoot on 24.9.2007. The supplementary charge-sheet of case
\ncrime No.326 to 329 of 2007 dated 1.10.2007 has also been filed
\nas Annexure No. SA-5 to the supplementary affidavit dated
\n5.4.2010.\n<\/p>\n
      Since the charge-sheet as well as the C.D. was received on
\n24.9.2007, there was no occasion for the Superintendent of Police,
\nChitrakoot to send the letter dated 1.9.2007 condemning the
\npetitioner’s conduct on the basis of these reports which was not in
\nthe office of the Circle Officer or the Superintendent of Police,
\nChitrakoot on 1.9.2007.\n<\/p>\n
112. The charge-sheet does not contain relevant material with
\nregard to encounter in question as well as the telephonic calls
\nbetween the petitioner and other authorities requesting to send
\nback-up or reinforcement team. The letter of the Superintendent of
\nPolice, Chitrakoot dated 26.7.2007 (Annexure No.RA-1) also
\nnegates the prosecution version.\n<\/p>\n
113. The magisterial enquiry has not been relied upon while
\nframing the charges against the petitioner which more or less
\nshows how the petitioner and his team had fought with the dacoits
\nwithout any help in spite of demand raised.\n<\/p>\n
                                      56<\/span><\/p>\n
114. In view of above, the overwhelming evidence on record
\nshows that the authorities have taken decision to charge the
\npetitioner on unfounded grounds by fabrication of records suffering
\nfrom bias – may be for political or other unforeseen reasons.\n<\/p>\n
115. It is unfortunate that the State of U.P. has acted in a very
\nhigh-handedness manner to charge the petitioner by cooking false
\ncase by fabricating the record.           A person who was awarded
\nPresident Medal has been charged because of his honesty and
\nuprightness in discharging his duty.\n<\/p>\n
116. Virtually a fraud has been committed deliberately to initiate
\ndisciplinary proceedings against the petitioner.             According to
\nBlack’s Law Dictionary, ‘fraud’ has been defined as under :\n<\/p>\n
                “fraud, n. 1. A knowing misrepresentation of the
\n                truth or concealment of a material fact to induce
\n                another to act to his or her detriment. Fraud is usu.
\n                A tort, but in some cases (esp. when the conduct is
\n                willful) it may be a crime.\n<\/p><\/blockquote>\n
                2.     A misrepresentation made recklessly without
\n                belief in its truth to induce another person to act. 3.
\n                A tort arising from a knowing misrepresentation,
\n                concealment         of    material   fact,   or   reckless
\n                misrepresentation made to induce another to act to
\n                his or her detriment. 4. Unconscionable dealing;
\n                esp., in contract law, the unconscientious use of the
\n                power arising out of the parties’ relative positions
\n                and resulting in an unconscionable bargain. –
\n                fraudulent, adj.”\n<\/p><\/blockquote>\n
117. In Law Lexicon by P. Ramanatha Aiyar, in the present
\ncontext, the definition of word, ‘fraud’ is as under :\n<\/p>\n
                “Fraud” means and includes any of the following
\n                acts committed by a party to a contract, or with his
\n                connivance, or by his agent, with intent to deceive
\n                                   57<\/span><\/p>\n
                another party thereto or his agent, or to induce him
\n                to enter into the contract :(1) the suggestion, as to a
\n                fact, of that which is not true by one who does not
\n                believe it to be true; (2) the active concealment of a
\n                fact by one having knowledge or belief of the fact;
\n                (3) a promise made without any intention of
\n                performing it; (4) any other act fitted to deceive; (5)
\n                any such act or omission as the law specially
\n                declares to be fraudulent.\n<\/p><\/blockquote>\n
                Explanation.- Mere silence as to facts likely to affect
\n                the willingness of a person to enter into a contract
\n                is not fraud, unless the circumstances of the case
\n                are such that, regard being had to them, it is the
\n                duty of the person keeping silence to speak, or
\n                unless his silence is in itself, equivalent to speech.
\n                [Act IX of 1872 (Contract) S. 17.]”\n<\/p><\/blockquote>\n
                “The word “fraud” as used in the Penal Code is
\n                used in its ordinary and popular acceptation; a man
\n                who deliberately makes a false document with false
\n                signatures in order to shield and conceal an already
\n                perpetrated fraud is himself acting with intent to
\n                commit fraud within the S. 463, Penal Code. [15
\n                Bom LR 708=14 CrLJ 518=20 IC 928 (1001). See
\n                also 13 Bom. 515; 1 Weir 554].”\n<\/p><\/blockquote>\n
118. While considering the fraud committed by persons holding
\nhigh offices, their Lordships of Hon’ble Supreme Court in a case
\nreported in 1987(1) SCC 227 Shivajirao Nilangekar Patil versus
\nDr. Mahes Madhav Gosavi and others observed that the things in
\npublic life are happening otherwise which were never anticipated
\nbefore and there are glaring instances of misuse of power by
\nauthority in position. Hence the courts are bound to take judicial
\nnotice of the State action even on the ground of commission of
\nfraud or alike allegations but that should be done after close
\nscrutiny of the allegations in a cautious manner.       To reproduce
\nrelevant portion from the judgment of Shivajirao Nilangekar Patil
\n(supra), to quote:-\n<\/p>\n
            37. The allegations of the petitioner have been noted
\n            about the role of the Chief Minister. It is well to
\n            remember that Rajagopala Ayyangar, J. Speaking for
\n            this Court in C.S. Rowjee and Ors., v. Andhra Pradesh
\n            State Road Transport Corporation<\/a> observed at page
\n            347 of the report that where allegations of this nature
\n            were made, the court must be cautious. It is true that
\n                                   58<\/span><\/p>\n
             allegation of mala fides and of improper motives on the
\n             part of those in power are frequently made and their
\n             frequency has increased in recent times. This Court
\n             made these observations as early as 1964. It is more
\n             true today than ever before. But it has to be borne in
\n             mind that things are happening in public life which
\n             were never even anticipated before and there are
\n             several glaring instances of misuse of power by men in
\n             authority and position. This is a phenomenon of which
\n             the courts are bound to take judicial notice. In the said
\n             decision the court noted that it is possible to decide a
\n             matter of probabilities and of the inference to be drawn
\n             from all circumstances on which no direct evidence
\n             could be adduced. The court further noted that it was
\n             somewhat unfortunate that allegations of mala fide
\n             which could have no foundation in fact were made and
\n             several cases which had come up before this Court
\n             and other courts and it had been found that these were
\n             made merely with a view to cause prejudice or in the
\n             hope that whether they have basis in fact or not some
\n             of which might at least stick. It is therefore the duty of
\n             the courts, warned this Court in the said decision, to
\n             scrutinize these allegations with care so as to avoid
\n             being in any manner influenced by them in cases
\n             where they have no foundation in fact.”\n<\/p><\/blockquote>\n
119. Hon’ble Supreme Court in a case reported in 2003(8) SCC
\n311 Ram Preeti Yadav versus U.P. Board of High School and
\nIntermediate Education and others observed with regard to fraud
\nas under :\n<\/p>\n
             “13. Fraud is a conduct either by letter or words, which
\n             induces the other person, or authority to take a definite
\n             determinative stand as a response to the conduct of
\n             former either by words or letter. Although negligence is
\n             not fraud but it can be evidence on fraud.\n<\/p><\/blockquote>\n
             14. In Lazarus, Estate v. Berly the Court of Appeal
\n             stated the law thus:\n<\/p><\/blockquote>\n
             “I cannot accede to this argument for a moment
\n             “no Court in this land will allow a person to keep
\n             an advantage which he has obtained by fraud. No
\n             judgment of a Court, no order of a Minister, can be
\n             allowed to stand if it has been obtained by fraud.
\n             Fraud unravels everything”. The Court is careful
\n             not to find fraud unless it is distinctly pleaded and
\n             proved; but once it is proved it vitiates judgments,
\n             contracts and all transactions whatsoever.”\n<\/p><\/blockquote>\n
             15. In S.P. Chengalvaraya Naidu v. Jagannath,<\/a> this
\n                                59<\/span><\/p>\n
           Court stated that fraud avoids all judicial acts,
\n           ecclesiastical or temporal.”\n<\/p><\/blockquote>\n
120. In another case reported in 2003(8)SCC 319 Ram Candra
\nSingh versus Savitri Devi and others, their Lordships of Hon’ble
\nSupreme Court observed as under :\n<\/p>\n
           “15. Commission of fraud on court and suppression
\n           of material facts are the core issues involved in
\n           these matters. Fraud as is well-known vitiates
\n           every solemn act. Fraud and justice never dwells
\n           together.\n<\/p><\/blockquote>\n
           16. Fraud is a conduct either by letter or words,
\n           which induces the other person, or authority to take
\n           a definite determinative stand as a response to the
\n           conduct of former either by word or letter.\n<\/p><\/blockquote>\n
           17. It is also well settled that misrepresentation
\n           itself amounts to fraud. Indeed, innocent
\n           misrepresentation may also give reason to claim
\n           relief against fraud.\n<\/p><\/blockquote>\n
           18. A fraudulent misrepresentation is called deceit
\n           and consists in leading a man into damage by
\n           willfully or recklessly causing him to believe and act
\n           on falsehood. It is a fraud in law if a party makes
\n           representations which he knows to be false, and
\n           injury ensues therefrom although the motive from
\n           which the representations proceeded may not have
\n           been bad.\n<\/p><\/blockquote>\n
           23. An act of fraud on court is always viewed
\n           seriously. A collusion or conspiracy with a view to
\n           deprive the rights of the others in relation to a
\n           property would, render the transaction void ab
\n           initio. Fraud and deception are synonymous.\n<\/p><\/blockquote>\n
           33. Once it is held that a judgment and decree has
\n           been obtained by practising fraud on the court it is
\n           trite that the principles of res-judicata shall not
\n           apply. The High Court, therefore, in our opinion
\n           committed a serious error in referring to the earlier
\n           orders passed by it so as to shut the doors of
\n           justice on the face of appellant for all time to come.
\n           We, therefore, are of the opinion that the impugned
\n           judgment dated 10.12.1998 cannot be sustained.”\n<\/p><\/blockquote>\n
121. In a case reported in (2005)8 SCC 283 Lily Kutty
\n                                 60<\/span><\/p>\n
versus Scrutiny Committee, SC&ST, their Lordships of
\nHon’ble Supreme Court observed that commission of fraud
\nshall be subversive to Constitution and fraudulent act shall not
\nbe encouraged by the Court.\n<\/p>\n
122. In     Baburao     Dagdu   Paralkar    versus     State   of
\nMaharastra (2005)7 SCC 605, their Lordships of Hon’ble
\nSupreme Court held that fraud may be committed expecting
\nadvantage of from ill-will towards other. It is an act of
\ndeliberate deception.     It is a deception in order to gain by
\nanother’s loss. It is cheating for some advantage (paras 9 and\n<\/p>\n
10).\n<\/p>\n
123. In (2006)5 SCC 353 Prem Singh versus Birbal, Hon’ble
\nSupreme Court held that the fraudulent misrepresentation as
\nregards character of a document is void but fraudulent
\nmisrepresentation as regards contents of document is
\nvoidable.\n<\/p>\n
124. In A.V. Papayya Sastry versus Government of Andhra
\nPradesh (2007)4 SCC 221, Hon’ble Supreme Court ruled that
\na judgment, decree or order obtained by playing fraud on the
\ncourt, tribunal or authority is a nullity. It can be challenged at
\nany time in a writ petition or appeal or revision or even in
\ncollateral proceedings.\n<\/p>\n
125. The aforesaid proposition of law has been reiterated by
\nthe Hon’ble Supreme Court in the case reported in
\n2008(13)SCC 170, 2008(2)SCC 383 State of Andhra
\nPradesh versus A.S. Peter and 2008(8) SCC 54.\n<\/p>\n
                                    61<\/span><\/p>\n
126. The facts, circumstances and the material on record
\nreveals that deliberately and consciously, the State or its
\nauthorities have committed fraud by cooking up a false case to
\npersecute the petitioner on unfounded ground while initiating
\ndisciplinary proceedings.\n<\/p>\n
                         MALAFIDE\/BIAS<\/p>\n
127. While   assailing     the   order   of   suspension   passed    in
\ncontemplation of departmental enquiry as well as charge-sheet, the
\npetitioner has stated that the disciplinary proceedings have been
\ninitiated because of bias. Even if the charges are correct, they
\nshall not make out a case of mis-conduct.         So far as the mis-
\nconduct is concerned, it has been dealt with in preceding
\nparagraphs of this judgment.\n<\/p>\n
     The question cropped up is whether the impugned action has
\nbeen taken on account of bias or mala fide ?\n<\/p>\n
128. As per government legal glossary the word ‘bias’ means;
\n” a one sided inclination of mind, any special influence that sways
\nthe mind”.\n<\/p>\n
     As per law lexicon by P. Ram Nath Aiyer the word ‘bias’
\nmeans;\n<\/p>\n
                “leaning    of   mind:    prepossession:   inclination:
\n                propensity towards an object, bent of mind a
\n                mental power, which sways the judgment: that
\n                which sways the mind toward one opinion rather
\n                than another; as, bias of arbitrator, of judge, or jury
\n                or witness”.\n<\/p><\/blockquote>\n
129. In the case of Secretary to Government, Transport
\nDepartment Vs Munuswamy Mudaliar, 1988 Supp. SCC 651,
\n                                  62<\/span><\/p>\n
the Hon’ble Supreme Court has defined the word ‘bias’ “as
\npredisposition to decide for or against one party without proper
\nregard to the true merits of the dispute”. Going through the
\nmeaning of bias mentioned above, it is borne out that the bias
\nmeans inclination or leaning of mind of Judge or Inquiry Officer in
\nfavour or against any person which sways his mind to form an
\nopinion on the point in issue before him.\n<\/p>\n
130. In the case of Ratan Lal Sharma Vs Managing Committee,
\nDr. Hari Ram (Co-education) Higher Secondary School and
\nothers, reported in (1993) 4 Supreme Court Case, Page 10, the
\nHon’ble Supreme Court has classified three kinds of bias namely,\n<\/p>\n
(i) personal bias (ii) pecuniary bias and (iii) official bias. The
\npresent case relates to the personal bias as well as official bias
\nbecause of political pressure.\n<\/p>\n
131. In case of Ratan Lal Sharma(supra), Hon’ble Supreme Court
\nhas held that in case the inquiry is challenged on the ground of
\nbias and malafidies, the petitioner is required to establish the real
\nlikelihood of bias not the likelihood of bias. The Hon’ble Supreme
\nCourt in this case has considered a number of its earlier judgments
\non the points in issue. The Hon’ble Supreme Court has relied on
\nR.V. Sussex Justices, 1924 (1) KB. 256, wherein it has been held
\nthat “answer to the question whether there was a real likelihood of
\nbias depends not upon what actually was done but upon what
\nmight appear to be done”.\n<\/p>\n
132. The Hon’ble Supreme Court also relied on Halsbury’s Laws
\nof England, 4th Edn., Vol.2, para 551 in its judgment wherein it has
\nbeen indicated that “the test of bias is whether a reasonable
\nintelligent man, fully apprised of all the circumstances would feel a
\nserious apprehension of bias”.\n<\/p>\n
133. The same principle had been laid down by the Hon’ble
\n                                   63<\/span><\/p>\n
Supreme Court in Manak Lal Vs Dr. Prem Chand, 1957, SCR 575
\nin which it has been held that “the test is not whether in fact, a bias
\nhas affected the judgment; the test always is and must be whether
\na litigant could reasonably apprehend that a bias attributable to a
\nmember of the tribunal might have operated against him in the final
\ndecision of the tribunal. It is in this sense that it is often said that
\njustice must not only be done but must also appear to be done”.\n<\/p>\n
134. In the case of Cantonment Executive Officer and others
\nVs Vijay Deewani and others (2008) 12, Supreme Court Cases,
\npage 203, Hon’ble Supreme Court has held that “question of bias
\nis always question of fact. The court has to be vigilant while
\napplying the principle of bias as it primarily depends upon the facts
\nof each case, the court should only act on the real bias and not
\nmerely likelihood of bias.”\n<\/p>\n
135. In case of Union of India and others Vs Prakash Kumar
\nTandon reported in (2009) 2 Supreme Court Cases 541 the
\nHon’ble Supreme Court found that the raid against the respondent
\nwas conducted by the vigilance department and the Chief of the
\nvigilance department was appointed as Inquiry Officer. Keeping in
\nview of this fact Hon’ble Supreme Court held that the inquiry was
\nnot fair. The appointment of Chief of vigilance department as
\nInquiry Officer should have been avoided. The Tribunal as well as
\nHigh Court held the inquiry to be vitiated. The Hon’ble Apex Court
\nconfirmed the judgment of the High Court. In view of above, it is
\nsettled that the Inquiry Officer should be fair and impartial. It is not
\nnecessary that he would have been witness in the inquiry or he
\nwould have in any way interested in the subject matter of the
\ninquiry. If the Inquiry Officer has prejudices against the employee,
\nhe cannot be said to be fair and impartial. The bias of Inquiry
\nOfficer may not relate to subject under inquiry. It may relate to
\ndifferent matter too which really causes apprehension that charged
\nperson will not get justice from him.\n<\/p>\n
                                    64<\/span><\/p>\n
136. Hon’ble Supreme Court in the case of State of Punjab Vs.
\nV.K. Khanna & others: (2001) 2 SCC 330, has examined the
\nissue of bias and mala fide and observed as under:\n<\/p>\n
                  “Whereas        fairness    is  synonymous       with
\n                  reasonableness– bias stands included within the
\n                  attributes and broader purview of the word ‘malice’
\n                  which in common acceptation means and implies
\n                  ‘spite’ or ‘ill will’. One redeeming feature in the
\n                  matter of attributing bias or malice and is now well
\n                  settled that mere general statements will not be
\n                  sufficient for the purposes of indication of ill will.
\n                  There must be cogent evidence available on
\n                  record to come to the conclusion as to whether in
\n                  fact, there was existing a bias or a mala fide move
\n                  which results in the miscarriage of justice… In
\n                  almost all legal inquiries, ‘intention as
\n                  distinguished from motive is the all-important
\n                  factor’ and in a common parlance a malicious act
\n                  stands equated with an intentional act without just
\n                  cause or excuse.” (Emphasis added).”\n<\/p>\n
137. Apart from the above, it appears that the authorities have
\nacted maliciously to abuse the process of law. The State is under
\nobligation to act fairly without ill will or malice– in facts or in law.
\n“Legal malice” or “malice in law” means something done without
\nlawful excuse. It is an act done wrongfully and wilfully without
\nreasonable or probable cause, and not necessarily an act done
\nfrom ill feeling and spite. It is a deliberate act in disregard to the
\nrights of others. Where malice is attributed to the State, it can
\nnever be a case of personal ill-will or spite on the part of the State.
\nIt is an act which is taken with an oblique or indirect object mala
\nfide exercise of powers does not imply any moral turpitude. It
\nmeans exercise of statutory power for “purposes foreign to those
\nfor which it is in law intended.” It means conscious violation of the
\nlaw to the prejudice of another, a depraved inclination on the part
\nof the authority to disregard the rights of others, which intent is
\nmanifested by its injurious acts. (Vide Jaichand Lal Sethia Vs.
\nThe State of West Bengal & Others, AIR 1967 SC 483; A.D.M.\n<\/p>\n
                                  65<\/span><\/p>\n
Jabalpur Vs. Shiv Kant Shukla, AIR 1976 SC 1207; State of A.P.
\nVs. Goverdhanlal Pitti, AIR 2003 SC 1941).\n<\/p>\n
138. Passing an order for unauthorised purpose constitute malice
\nin law. (Vide Punjab State Electricity Ltd. Vs. Nora Singh, (2005)
\n6 SCC 776; and Union of India Vs. V. Ramakrishnan, (2005) 8
\nSCC 394).\n<\/p>\n
139. In   the   constituent   assembly    debate   with   regard    to
\nbureaucracy in India, Dr. B.R. Ambedkar had persuaded to prefer
\nBritish system of bureaucracy, over and above the spoiled system
\nexisting in America at that time. Lord Denning had appreciated the
\nwork of members of Indian Civil Service because of their honesty,
\nknowledge and highest degree of integrity. But it appears that in
\npost independent India, the bureaucracy is gradually falling in
\nstandard with regard to honesty, independence and commitment to
\njob expected from them and their action is influenced by political
\nmasters. Present case is an example.\n<\/p>\n
140. Prof. H.W.R. Wade in his famous treatise “Administrative
\nLaw” (fifth edition page 58-59) had observed that it is expected
\nfrom the bureaucracy to possess high degree of detachment from
\nthe party politics and publicity. The learned author proceeded to
\nobserve as under:\n<\/p>\n
                  “The civil servant thus achieves a very high
\n                  degree of self-effacement, and although he is
\n                  bound to be much concerned with questions of
\n                  policy as well as with administration, he is
\n                  insulated from the effects of political controversy.
\n                  Working in this atmosphere of detachment, he
\n                  can give his services to a government of any
\n                  complexion with impartiality— or at least with the
\n                  greatest degree of impartiality that it is
\n                  reasonable to ask of a human being.”\n<\/p><\/blockquote>\n
141. De Smith, Woolf and Jowell in their famous treatise, “Judicial
\n                                  66<\/span><\/p>\n
Review of Administrative Action”, (fifth edition page 521) while
\ndefining the scope of the rule against bias and its content,
\nobserved that there are three requirement of public law to quote:-\n<\/p>\n
               “The first seeks accuracy in public decision-making
\n               and the second seeks the absence of prejudice or
\n               partiality on the part of the decision-maker. An
\n               accurate decision is more likely to be achieved by a
\n               decision-maker who is in fact impartial or
\n               disinterested in the outcome of the decision and
\n               who puts aside any personal prejudices. The third
\n               requirement is for public confidence in the decision-
\n               making process. Even though the decision-maker
\n               may in fact be scrupulously impartial, the
\n               appearance of bias can itself call into question the
\n               legitimacy of the decision-making process. In
\n               general, the rule against bias looks to the
\n               appearance or risk of bias rather than bias in fact, in
\n               order to ensure that “justice should not only be
\n               done, but should manifestly and undoubtedly be
\n               seen to be done.”\n<\/p><\/blockquote>\n
142. The Hon’ble Supreme Court in the case of O. P. Gupta versus
\nUnion of India and others 1987(4) SCC 328, has ruled, to quote:–\n<\/p>\n
                      “The public interest in maintaining the
\n                      efficiency of the services requires that civil
\n                      servants should not be unfairly dealt with.”<\/p><\/blockquote>\n
     In view of above, the order of suspension in contemplation of
\nenquiry passed by the respondents State seems to be an act of
\nnon-application of mind based on no material.\n<\/p>\n
143. Though the petitioner had charged Ms. Mayawati, Chief
\nMinister of State who is alleged to have actuated the proceeding,
\nbut as submitted by Shri H.P. Srivastava, no finding can be
\nrecorded against her, since she has not been made party.\n<\/p>\n
     The proceedings initiated may safely be inferred biased and
\nsuffers from malice in law.\n<\/p>\n
                                     67<\/span><\/p>\n
                    HIGH AUTHORITY THEORY<\/p>\n
144. It was vehemently argued by learned Chief Standing counsel
\nthat no inference of malice or fraud can be drawn against the
\ngovernment or its officers being decision taken at higher level.
\nSubmission of learned Additional Chief Standing counsel would
\nhave been correct before 5,6 decades or little earlier. Much waters
\nhave flown from the rivers of the country diluting the moral
\nstandard.     Dr. Ambedkar was of the view that social and
\nconstitutionally   morality   are   necessary   ingredients   of   the
\ndemocratic politics which seems to be missing.\n<\/p>\n
145. We are conscious of the fact that the petitioner has attributed
\nmalafide on the part of state authorities and even Chief Minister of
\nthe State. However, no finding can be recorded since she has not
\nbeen made party. However, this court is not precluded to record
\nfinding with regard to malice in law or commission of fraud while
\ninitiating departmental proceeding and that we have done.\n<\/p>\n
146. It is borne in mind that charges of personal hostility are easily
\nand very often made by persons who are subjected to penal or
\nquasi penal proceeding against those who initiate them hence
\npleadings and material on record should be examined with close
\nscrutiny which we have done (supra) while recording the finding.\n<\/p>\n
147. In a case reported in AIR 1964 SC 72, S. Pratap Singh Vs.
\nState of Punjab where allegations were raised against the Chief
\nMinister of State while initiating disciplinary proceeding their
\nLordship of Hon’ble Supreme Court instead of throwing the
\npetitioner’s case under the presumption of correctness at higher
\nlevel scrutinised the evidence and material placed by the petitioner
\nand decided the case. Their Lordships in the case of S.Pratap
\nSingh (supra) have observed as under:-\n<\/p>\n
                   “The Constitution enshrines and guarantees the
\n                                   68<\/span><\/p>\n
                  rule of law and Art. 226 is designed to ensure
\n                  that each and every authority in the State,
\n                  including the Government, acts bona fide and
\n                  within       the limits of its power and we consider
\n                  that when a Court is satisfied that there is an
\n                  abuse or misuse of power and its Jurisdiction is
\n                  invoked, it is incumbent on the Court to afford
\n                  justice to the individual.         It is with these
\n                  considerations in mind that we approach the
\n                  facts of this case.”\n<\/p><\/blockquote>\n
148. In one another case reported in C.S.Rawjee & Ors. v.
\nAndhra Pradesh State Road Transport Corporation, [1964] 2
\nSCR 330, Hon’ble Supreme Court had cautious that when
\nallegation is raised against the higher authorities court should be
\ncautious while scrutinising the related material.\n<\/p>\n
149. In 1987 AIR       294, Shivajirao Nilangekar Patil Vs. Dr.
\nMahesh Madhav Gosavi and others where allegation was raised
\nagainst the higher authorities and role of Chief Minister was also in
\nquestion   Hon’ble    Supreme     Court   reiterating   the   principle
\nenunciated by C.S.Rawjee (supra) observed that court should be
\ncautious to deal with the allegations of mala fide or cast aspirations
\non holders of high office and power but the court cannot ignore the
\nprobabilities arising from proven circumstances.          It shall be
\nappropriate to reproduce relevant portion from the judgement of
\nShivajirao Nilangekar Patil (supra) as under:-\n<\/p>\n
                  “It is true that allegation of mala fides and of
\n                  improper motives on the part of those in power
\n                  are frequently      made and their frequency has
\n                  increased in recent times. This Court made these
\n                  observations as early as 1964. It is more true
\n                  today than ever before. But it has to be borne in
\n                  mind that things are happening in public life which
\n                  were never even anticipated before and there
\n                  are several glaring instances of misuse of power
\n                  by men in authority and position. This is a
\n                  phenomenon of which the courts are bound to
\n                  take judicial notice. In the said decision the court
\n                  noted that it is possible to decide a matter of
\n                  probabilities and of the inference to be drawn from
\n                  all circumstances on which no direct evidence
\n                                    69<\/span><\/p>\n
                  could be adduced….. Therefore, while the court
\n                  should be conscious to deal with the allegations
\n                  of malafide or cast aspirations on holders of high
\n                  office and power,the     court cannot ignore the
\n                  probabilities arising from proven circumstances.\n<\/p><\/blockquote>\n
150. In a case reported in 1997 (6) SCC 169, Shri Arvind
\nDattatraya Dhande Vs. State Of Maharashtra and other, Hon’ble
\nSupreme court held that there is unimpeachable and eloquent
\ntestimony of the performance of the duties of higher authorities
\ncourts should not shirk from his responsibility to protect the
\nGovernment officers. It was further observed that when the power
\nexercised malafide it tends to demoralise the honest officer who
\nefficiently discharges the duty of public office.\n<\/p>\n
151. A Constitution Bench of Hon’ble Supreme Court in a case
\nreported    in   AIR    1991     SC     101,   DELHI     TRANSPORT
\nCORPORATION          Vs.D.T.C.     MAZDOOR          CONGRESS,       had
\nreiterated the aforesaid proposition and observed that arbitrary
\nunbridled and naked power of wide discretion used by the
\ngovernment tend to defeat the constitutional purpose.             Court
\nshould take into the actualities of life. It has further been observed
\nthat sincere, honest and defeated subordinate officers are unlikely
\nlick the boots of the corrupt superior officer and they become
\ninconvenient for their superiors and tends to spoil the career of the
\nhonest, sincere and devoted officers. Their Lordship observed
\nthat one should circumspect, pragmatic and realistic to these
\nactualities of life to reproduce relevant portion, which is as under :-\n<\/p>\n
            “How to angulate the effect of termination of service
\n            Law is a social engineering to remove the existing
\n            irabalance and to further the progress, serving the
\n            needs of the Socialist Democratic Bharat under rule of
\n            law. The prevailing social conditions and of life are to
\n            be taken into account to adjudging whether the
\n            impugned legislation would subserve the purpose of
\n            the society. The arbitrary, unbriddled and naked power
\n            of wide discretion to dismiss a permanent employee
\n            without any guidelines or procedure would tend to
\n            defeat the constitutional purpose of equality and allied
\n                                  70<\/span><\/p>\n
           purposes referred to above. Courts would take note of
\n           actualities of life that persons actuated to corrupt
\n           practices are capable, to maneuver with higher
\n           echolons in diverse ways and also camouflage their
\n           activities by becoming sycophants or chronies to the
\n           superior officers. Sincere, honest and              devoted
\n           subordinate officer unlikely to lick the boots of the
\n           corrupt superior officer. They develop a sense of
\n           self-pride for       their honesty, integrity and     apathy
\n           and inertia towards the corrupt and tent to undermine
\n           or show signs of disrespect or disregard towards them.
\n           Thereby, they not only become inconvenient to the
\n           corrupt officer but also stand an impediment to the on-
\n           going smooth sipbony of corruption at a grave risk to
\n           their prospects in career or even to their tenure of
\n           office. The term efficiency is an elusive and relative
\n           one to the adept capable to be          applied in diverse
\n           circumstances. if a superior officer develops likes
\n           towards sycophant, though corrupt, he would tolerate
\n           him      and found         him to be efficient and pay
\n           encomiums and corruption in such eases stand no
\n           impediment. When he finds a sincere, devoted and
\n           honest officer to be inconvenient, it is easy to cast
\n           him\/her off by writing confidential with delightfully
\n           vague language imputing to be ‘not upto the mark’,
\n           ‘wanting public relations’ etc. Yet times they may be
\n           termed to be “security risk” (to their activities). Thus
\n           they spoil the career of        the honest, sincere and
\n           devoted officers. Instances either way are gallore in
\n           this regard. Therefore,one would be circumspect,
\n           pragmatic and realistic to these of life while angulating
\n           constitutional validity of wide arbitrary, uncanalised and
\n           unbriddled discretionary power of dismissal vested in
\n           an appropriate authority either by a statute or a
\n           statutory rule. Vesting arbitrary power would be a
\n           feeding ground for nepotism and insolence;           instead
\n           of subserving the constitutional purpose, it would
\n           defeat        the very object, in particular, when the tribe
\n           of officers of honesty, integrity and devotion are
\n           struggling under despondence to continue to maintain
\n           honesty, integrity and devotion to the duty, in particular,
\n           when moral values and ethical standards are fast
\n           corroding in all walks of life including public services
\n           as well. It is but the     need and      imperative of the
\n           society to pat on the back of those band of honest,
\n           hard-working officers of integrity and devotion           to
\n           duty. It is the society’s interest to accord such officers
\n           security of service and avenues of promotion.”\n<\/p><\/blockquote>\n
152. With regard to presumption of fairness on the part of higher
\n                                  71<\/span><\/p>\n
authorities Hon’ble Supreme Court again proceeded to observe
\n(supra) that theory of higher authorities is unrealistic and has been
\nburied keeping in view the present scenario.\n<\/p>\n
                 “The “high authority” theory so-called has already
\n                 been adverted to earlier. Beyond the self-\n<\/p><\/blockquote>\n
                 deluding      and      self-asserting    righteous\n                 presumption, there is nothing to support         it.\n<\/pre>\n
                 This theory undoubtedly weighed with some
\n                 authorities for some time in the past. But its
\n                 unrealistic pretensions were soon noticed and it
\n                 was buried without even so much as an ode to it.”\n<\/p><\/blockquote>\n
153. Transparency International India places our country at Serial
\nNo.84 in the list of corrupt countries.     Substantial number of
\npersons throughout country holding high offices like Cabinet
\nMinister, Chairman of the Corporation and other bodies have got
\ncriminal antecedents.      Warren Anderson, the main accused
\ninvolved in the Bhopal disaster occurred on 2\/3.12.1984 was
\narrested on 7.12.1984, released on personal bond and sent to
\nDelhi in State plane to fly for America. This could not have been
\npossible without the meeting of mind at higher level.\n<\/p>\n
154.   Criminalisation of politics now is a known event in this
\ncountry. According to the news item published in Rastriya Sahara
\ndated July 6, 2010, the State Minister of the State of U.P. Shri
\nRatan Lal and his two sons have been punished to undergo for
\nimprisonment for one year by the Chief Judicial Magistrate,
\nShivpuri,   Madhya    Pradesh    on   account   of   possession    of
\nunauthorised arms.      Against some other ministers\/legislatures,
\ncriminal cases are alleged to be pending. The former Chief Minister
\nof Jharkhand is involved in misappropriation of government fund
\nwhich is alleged to be more than Rs.4000 crore. According to the
\nnewspaper reports, the Minister of another State is involved in
\nillegal mining work. Charge-sheet has been filed against some of
\nthe Hon’ble Judges of this Court in Ghaziabad P.F. Scam case. In
\nsuch situation, country does not seem to be ready to extend favour
\n                                   72<\/span><\/p>\n
to persons holding high offices by applying the principle of high
\nauthority and power of judicial review cannot be restricted or
\nnarrowed down on this presumptive ground.\n<\/p>\n
155. Justice V.R. Krishna Iyer, a former Judge of Hon’ble Supreme
\nCourt showing his astonishment in an article, published in
\nnewspaper, ” The Hindu” on 14.6.2010 observed as under :\n<\/p>\n
                 “The mass slaughter that occurred in Bhopal on
\n                 December 2, 1984 was the consequence of an
\n                 American multinational corporation dealing with
\n                 Indian lives in a cavalier manner. Some 20,000
\n                 people were “gassassinated.” Yet, after 26 years
\n                 of trial, the culprits get two years of rigorous
\n                 imprisonment as punishment. Such a thing can
\n                 happen only in bedlam Bharat.”<\/p><\/blockquote>\n
     A country “Bharat” where such things happen and morality in
\npersonal and public life is at its lowest ebb, respect to rule of law
\ndeteriorating speedily, invoking of “High Authority Theory” to defend
\nthe action of the State shall cause irreparable loss and injury to the
\ncountry resulting in chaos in society in due course of time.\n<\/p>\n
156. In a recent judgement reported in JT 2010 (4) SC 478,
\nS.Khushboo Vs. Kanniammal and another, their Lordship
\nreiterated the well settled proposition of law that it is paramount
\nduty of superior court to say that the person who is innocent at the
\nface of record should not be persecuted and while doing so court
\nmay adjudicate the disputed question of law and fact to check the
\nabuse of power, to reproduce relevant portion:-\n<\/p>\n
                 “It was further observed that superior courts “may
\n                 examine the questions of fact” when the use of
\n                 the criminal law machinery could be in the nature
\n                 of an abuse of authority or when it could result in
\n                 injustice. In Shakson Belthissor v. State of Kerala
\n                 and another.[JT 2009 (8) SC 617: 2009 (14) SCC
\n                                   73<\/span><\/p>\n
                  466], this court relied on earlier precedents to
\n                  clarify that a High Court while exercising its
\n                  inherent jurisdiction should not interfere with a
\n                  genuine complain but it should certainly not
\n                  hesitate to intervene in appropriate cases. In fact
\n                  it was observed:\n<\/p><\/blockquote>\n
                         “one of the paramount duties of the superior
\n                         courts is to see that a person who is
\n                         apparently innocent is not subjected to
\n                         prosecution and humiliation on the basis of
\n                         a false and wholly untenable complaint.”\n<\/p><\/blockquote>\n
157. According to Legal Maxims, “Acts Exteriora indicant interiors
\nsecrets.” i.e., act indicate the intention, is applicable in the present
\ncase with full vigour. In Broom’s Legal Maxims (Tenth Edition: Page\n<\/p><\/blockquote>\n
200) it has been discussed as under:\n<\/p><\/blockquote>\n
                  “The law, in some cases, judges of a man’s
\n                  previous intentions by his subsequent acts; and,
\n                  on this principle, it was resolved in a well-known
\n                  case, that if a man abuse an authority given him
\n                  by the law, he becomes a trespasser ab initio.”\n<\/p><\/blockquote>\n
158. In view of above submission of learned Additional Chief
\nStanding counsel does not seem to carry weight more so when
\nfrom the discussion made (supra) petitioner seems to has been
\npersecuted and charged for misconduct on the basis of frivolous
\ndocuments. Action should have been taken against the authorities
\nwho could not sent additional force in time to assist the petitioner.\n<\/p><\/blockquote>\n
Decision to take disciplinary action against petitioner is unfortunate
\nand shows that bureaucracy had lost its flavour to tender correct
\nand firm advise to the government in the State of U.P. to maintain
\nrule of law.\n<\/p>\n
                              FINDING\n<\/p>\n
159. From the pleading, evidence and material discussed in the
\npreceding paras it appears that the petitioner as the member of
\nteam of CBI had searched the premises of Ms. Mayawati as she
\nthen was (now Chief Minister of the State of U.P.) and also
\n                                    74<\/span><\/p>\n
interrogated her.      There is no factual denial on the part of
\nrespondent while filing affidavit. However, learned counsel for the
\npetitioner during the course of argument stated that he does not
\ndare to implead Ms. Mayawati as respondent in the present writ
\npetition, hence, no malafide may be attributed to the Chief Minister
\nof the State without complying with the principle of natural justice.
\nHowever, from the material on record, action against the petitioner
\nseems to suffer from malice in law being based on no evidence or
\nthe evidence which does not constitute misconduct and also based
\non records which seems to have been fabricated.\n<\/p>\n
160. In view of above, to sum up the finding:-\n<\/p>\n
(I)     Solitary allegation against the petitioner seems to be based
\non the decision taken to return on vehicle instead of adopting the
\nprocedure of “field craft and tactics”. Assuming allegation is correct
\nthere may be error of judgement but it does not seem to constitute
\nmisconduct.\n<\/p>\n
(II)    Records have been fabricated by the authorities to initiate the
\ndisciplinary proceeding against the petitioner.      Fraud has been
\ncommitted to create evidence. Because of commission of fraud
\nentire action vitiates.\n<\/p>\n
(III)   Petitioner, right from time of encounter with dacoits (8.15 am
\nto 9.15 am) and thereafter, informed the authorities to send the
\nreinforcement or backup but no assistance was provided. Though
\nDr. Pritender Singh, Superintendent of Police, Chitrakoot stated
\nthat Shri Brijendra Rai, Station House Officer, Karvi gone to assist
\nat about 3.30 pm but he did not reach to the spot till late night. The
\ndistance is of only few kilometers. Even Superintendent of Police
\nSTF had not helped on pretext being engage in other operation.\n<\/p>\n
(IV) In spite of information received and having sufficient time no
\n                                   75<\/span><\/p>\n
backup was provided to the petitioner’s team right from 8.15 am to
\nlate in the night. Addl. Director General of Police, STF Shri Shailja
\nKant Mishra and SSP Chitrakoot as well as Superintendent of
\nPolice STF were duly informed and in case the additional force
\nwould have rushed to the spot in time incident would have not
\noccurred. Petitioner has been made escape goat for extraneous
\nreasons to save the authorities who fail to provide necessary
\nbackup force during and after the encounter.\n<\/p>\n
(V)    From the material and evidence discussed (supra) there
\nappears to be serious negligence on the part of Superintendent of
\nPolice Chitrakoot, and SHO Karvi and other higher authorities in
\nnot providing police reinforcement in spite of due communication in
\ntime right from the period when encounter took place.            The
\npetitioner seems to be tried his best according to his ability to face
\nthe situation and being disappointed with the State machinery to
\nprovide help, he took decision to return on their respective
\nvehicles.   It is unfortunate that the state machinery does not
\npossess such a system with accountability to provide assistance to
\nits own machinery or officers who fight with the dacoits or terrorist
\nand on their demand to provide back up or additional force.
\nGovernment must look into this aspect of the matter and adopt
\ncorrective measure to tone up its administration.\n<\/p>\n
(VI) Action taken against the petitioner does not only suffer from
\nmalice in law but seems to be oppressive. Such action shall
\ndemoralise the police force and no officer will take risk on his own
\nto fight the terrorist or the dacoits. It is high time when government
\nmust    ponder   and    introspect     to   negate   the   extraneous
\nconsiderations so as to encourage the police force and paramilitary
\nforce to fight with antisocial elements without any feeling of
\nconsequential persecution in case the action is bonafide with
\ncommitment to duty and within the frame of law. Assuming the
\nallegation correct, misconduct is not made out more so keeping in
\n                                   76<\/span><\/p>\n
view the statement of Shri Shailja Kant Mishra, A.D.G.P STF\/HOD.\n<\/p>\n
(VII) Submission of the learned Addl. Chief Standing Counsel to
\ndefend the State action against the petitioner on the principle of
\n“high authority theory” does not seem to be available in the Indian
\ncontext keeping in view the moral devaluation in our system, more
\nso on account of the fact that the action against the petitioner
\nseems to be oppressive, based on no evidence.\n<\/p>\n
(VIII) Fabrication of records and commission of fraud vitiates even
\nsolemn act of the State and it shall be bad day for the country in
\ncase this Court remains a mute spectator and permit the
\ngovernment to persecute an officer for extraneous reasons by
\ncommission of fraud.\n<\/p>\n
161.     Mahatma Gandhi, Father of Nation has emphasised to
\nmaintain highest standard in personal life by constitutional
\nfunctionaries. To quote :\n<\/p>\n
             “Today you have worn on your head a crown of thorns.
\n             The seat of power is nasty thing. You have to remain
\n             ever wakeful on that seat. You have to be move non-
\n             violent, move humble and more-forbearing. Minister
\n             may not make private gains either for themselves or
\n             for their relatives or friends. The leaders have the reins
\n             and the disposal of millions of rupees is in their hands.
\n             They have to be vigilant. They must be humble.
\n             People often think nothing of net keeping their words.
\n             They should never promise what they cannot do. Once
\n             a promise is made, it must be kept at all cost.\n<\/p><\/blockquote>\n
             (Selected       Works      of   Mahatma      Gandhi).”<\/p>\n
       Again Mahatma Gandhi had proceeded to say (supra), to
\nquote:\n<\/p>\n
             “The legislative assemblies should be their only law-
\n             makers. Ministers were liable to be changes at will.
\n             Their acts should be subject to review by their courts.
\n             They should do all in their power to make justice,
\n             cheap,     expeditious    and      incorruptible…”
\n             The minister should be completely free from all the
\n             prejudices against any caste or creed and from any
\n                                   77<\/span><\/p>\n
             favouritism towards his old relatives and friends. This
\n             private life should be so simple that it inspires respect
\n             or even reverence. Bungalows and motor cars should
\n             be ruled out of course if he has to go far or on an
\n             urgent business, he should certainly use a car but its
\n             use should be definitely very limited. I see that the car
\n             may perhaps be quite necessary. They members of
\n             ministers’ family including children should do all the
\n             household works themselves, servants should be used
\n             as sparingly as possible. These rooms should be not
\n             furnished with expensive foreign made furniture, such
\n             as sofas, cupboards and chairs especially at present,
\n             when crores of his countrymen do not have a single
\n             cotton mattress to sit upon or even a piece of cloth to
\n             wear.”\n<\/p><\/blockquote>\n
162. Lord Denning had rightly said in his famous treatise, “The
\ndiscipline of Law” (page 61) to quote:\n<\/p>\n
             “Our procedure for securing our personal freedom is
\n             efficient, but our procedure for preventing the abuse of
\n             power is not.”<\/p><\/blockquote>\n
      However, in our country, the procedure to secure personal
\nfreedom as well as to prevent the abuse of power both, seems to
\nbe not upto the mark.\n<\/p>\n
163. It is not expected from the constitutional functionaries or the
\nauthorities to abuse their power for their vested interest or take
\nrevenge or teach lesson or to serve their own children, friends,
\nrelatives or associates, giving go-bye to rules and regulations.
\nAccording to Geeta, the persons holding high offices are torch
\nbearers and the society follows their leaders in day to day life.\n<\/p>\n
164. The great Indian freedom fighter, philosopher, scholar and
\nspiritual leader Sir Aurobindo long back taken note with regard to
\npersonal interest vis-a-vis social and national interest. The
\ncompilation of various lecturers\/writings between 1915 to 1918 has
\nbeen published under the title “The Human Cycle The Ideal of
\n                                    78<\/span><\/p>\n
Human Unity War and Self-Determination”. To quote relevant
\npassage from the said book (supra) :\n<\/p>\n
                “The attempt always leads to an eternal struggle
\n                with other egoisms, a mutual wounding and
\n                hampering, even a mutual destruction in which if
\n                we are conquerors today, we are the conquered or
\n                the slain tomorrow; for we exhaust ourselves and
\n                corrupt ourselves in the dangerous attempt to live
\n                by the destruction and exploitation of others.”\n<\/p><\/blockquote>\n
      Learned author further proceeded to observe as under :\n<\/p><\/blockquote>\n
                “The society has no right to crush or efface the
\n                individual for its own better development or self-
\n                satisfaction; the individual, so long at least as he
\n                chooses to live in the world, has no right to
\n                disregard for the sake of his own solitary
\n                satisfaction and development his fellow-beings and
\n                to live at war with them or seek a selfishly isolated
\n                good.”\n<\/p><\/blockquote>\n<\/blockquote>\n
      According to Sir Aurobindo, the service of the State stand at
\nhighest pedestrial of morality. To quote :\n<\/p><\/blockquote>\n
                   “The service of State and community is he only
\n                   absolute rule of morality.”<\/p><\/blockquote>\n
165. Moral values propounded by Britishers for civil servant (ICS)
\nnamely; poverty, neutrality and anonymity seems to at lowest ebb.
\nPoverty speaks for honesty and neutrality speaks for firm, polite
\nand lawful advise to government.        In case, order is passed or
\nrequest is made to do a thing against the rules or impossible to
\ncomply with, it is expected from civil servants to explain the
\nposition politely and firmly.   Anonymity speaks to serve people
\nsilently to meet the constitutional goal. All these virtues expected
\nfrom the bureaucracy seems to be eroding and time has come to
\nrejuvenate the bureaucracy so that no one may suffer because of
\ninaction or unlawful action on the part of civil servants.\n<\/p>\n
166. Petitioner seems to have suffered from mental pain and
\n                                    79<\/span><\/p>\n
agony apart from social humiliation for no fault on his part. Since,
\naction of the state government is oppressive in nature, suffer from
\nbias, it is a fit case where exemplary cost should be awarded to
\nmeet the ends of justice in view of law settled by Hon’ble Supreme
\nCourt (2005) 6 Supreme Court Cases 344, Salem Advocate Bar
\nAssociation (II), Vs. Union of India.\n<\/p>\n
167. In view of above, the writ petition deserves to be allowed with
\nexemplary cost :\n<\/p>\n
(i)     A writ in the nature of certiorari is issued quashing the
\nimpugned order dated        19.5.2008 and the charge-sheet dated
\n26.5.2008 (Annexures 1 and 2 to the writ petition) with
\nconsequential benefits with exemplary cost quantified to Rs.3 lacs
\nwhich shall be deposited in this Court by the Chief Secretary of the
\nState of U.P. within one month and the petitioner shall be entitled to
\nwithdraw an amount of Rs.2 lacs. Remaining cost of Rs.1 lac shall
\nbe remitted to the Mediation Centre, Lucknow.\n<\/p>\n
(ii)    It shall be open for the State of U.P. to recover the cost from
\nthe persons who are responsible to initiate departmental
\nproceedings against the petitioner on the basis of fraudulent
\nrecords by holding an enquiry in accordance with law.\n<\/p>\n
(iii)   It shall be open to the petitioner to proceed in accordance
\nwith law for injustice done to him against the authorities concerned.\n<\/p>\n
(iv)    The Chief Secretary, Government of U.P. is directed to
\nconstitute a Committee and hold an enquiry for the lack of
\nassistance to the petitioner by not providing necessary back-up
\nwith police force during the course of encounter with dacoits on
\n22.5.2007 in spite of due communication and cry for help by the
\npetitioner repeatedly as observed in the body of the judgment and
\ntake appropriate action against the authorities who were negligent
\nin their duty.\n<\/p>\n
                                    80<\/span><\/p>\n
       Let the Chief Secretary, Government of U.P. file compliance
\nreport with affidavit within two months. Registry to take follow up
\naction.\n<\/p>\n
       The writ petition is allowed accordingly.\n<\/p>\n
             (Justice S.C. Chaurasia)     (Justice Devi Prasad Singh)
\n                                     July 15, 2010
\nkkb\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Dhirendra Kumar Rai vs State Of U.P.Thr. Prin Secy Home on 15 July, 2010 1 In the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow RESERVED A.F.R. Case :- SERVICE BENCH No. – 768 of 2008 Petitioner :- Dhirendra Kumar Rai Respondent :- State Of U.P.Through Principal Secy Home Petitioner’s Counsel […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-245866","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nDhirendra Kumar Rai vs State Of U.P.Thr. 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