MANSA RAM YADAV vs STATE OF U. P. - 2009 Supreme(All) 2315

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(All) 2315

[2009(5) ADJ 73 (LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : DEVI PRASAD SINGH, J.
MANSA RAM YADAV AND OTHERS .....Petitioners
Versus
STATE OF U.P. AND OTHERS ...Respondents
(Writ Petition No. 3589 (S/S) of 2008, decided on 20th May, 2009)

Advocates:
Counsel :
Amit Bose for the Petitioners; Ashwani Kumar Agnihotri, Standing Counsel for the Respondents.

Headnote:(A) Affidavit—Filing of—Whether constitute a case of misconduct—Right to take disciplinary action by authority—Held, (i) Courts discharge divine duty and to assist the Court is constitutional, as well as pious obligations—Telling truth, or placing of correct fact before Courts/quasi-judicial authorities, is pious obligation of citizens, as well as Govt. servant—And, for such action, neither citizen, nor Govt. employee, can be prosecuted, or tried for misconduct, (ii) Filing of affidavit in Court, or making statement during course of trial, in Court, does not constitute "misconduct"—Whether it is common citizen, or Govt. servant, it is their duty to assist Court in dispensation of justice—And, for that act, neither such person may be persecuted, nor prosecuted by State, or its authorities; (iii) That a person may be tried, or punished by filing a false affidavit, or making false statement in Courts under provisions of Cr.P.C., Evidence Act, and other statutory provisions, and not otherwise—Hence, unless Court makes some adverse observation while deciding a case against Govt. employee, he or she cannot be charged for "misconduct"—(iv) Moreover, in case disciplinary authority is disagree, with finding of fact recorded by Enquiry Officer then disciplinary authority to serve a notice, indicating, therein points of difference between him and Enquiry Officer, calling response from delinquent employee—In case it is not done, it shall be violative of principles of natural justice—And, renders orders of punishment illegal. [Paras 1, 21, 40 and 85]
       (B) Affidavit—Filing of, whether constitute "misconduct"—Merely because petitioner has filed an affidavit narrating facts, as he thought correct does not constitute "misconduct" under service Rules—In case affidavit was false, then that could have been looked into only by High Court, in view of provisions of Section 195, Cr.P.C. or Section 155 of Evidence Act. [Para 40]
       (C) Dismissal—Police personnel by S.S.P.—Misconduct—Gravity of—Petitioners have been charged for filing of affidavit in writ petition, filed in High Court—There is nothing on record, which may indicate that a finding has been recorded by High Court that facts narrated by petitioners in their affidavits, was incorrect, or was for some extraneous consideration or reasons—Hence, petitioners does not seems to have committed any misconduct under Service Rules—A person may be tried for misconduct only on ground enumerated in Service Rules and not otherwise—Held, impugned order is not "misconduct" under Service Rules—Impugned order for dismissal from service of petitioner quashed and set aside—And, S.S.P. directed to grant all consequential benefits to petitioner (Constable) and to restore in service. [Criminal Procedure Code, 1973—Sections 195 and 39—U.P. Government Servants Conduct Rules, 1956—Rule 53 and 8—Evidence Act, 1872—Sections 118, 132, 136 and 155—(Indian) Penal Code, 1860—Sections 191, 193, 196 and 195]. [Paras 2, 3, 85, 86, 87, 88 and 89]

JUDGMENT

Hon’ble Devi Prasad Singh, J.—While admitting the present writ petition the following questions were framed for adjudication :

(i) Whether filing of affidavit by a person in a Court of law shall constitute a case of misconduct and the Government employee concerned can be charged for misconduct under Service Rules?

(ii) Whether the State Government or district authority has got right to take disciplinary action relating to conduct of filing of affidavit in this Court by the Government employee more so, when no proceeding has been initiated by this Court in pursuance of provisions contained under Section 195, IPC, 340 and 341, Cr.P.C. or any other law for the time being in force?

(iii) Whether in the present case, where a different view was taken by the punishing authority with regard to the incident than what was taken by the inquiry officer without serving show cause notice or recording reasons therefore, is sustainable under Law?

(iv) Whether citizen including Government employees or the members of Police Force have right to file affidavit in a Court under judicial proceedings and in case filed then whether only because of such action, such person can be permitted to face disciplinary action or may be punished for that action under any law for the time being in force?

Brief facts

2. Petitioners, who are Head Constables and Constables of U.P. Police Department were deputed for guard duties in the year 2002 at the residence of one Shri Akhilesh Singh Member of Legislative Assembly. On 3.7.2002 an incident of murder of one Shri Rakesh Pandey in district Raebareli took place. In consequence thereto a case crime No. 311/02 under Section 302/395/120-B, I.P.C. was lodged in Police Station Kotwali, District Raebareli. Shri Akhilesh Singh was named as an accused. Shri Akhilesh Singh in the year 2002 had filed a Writ Petition No. 5045 (MB) of 2002 in the Lucknow Bench of High Court for quashing of FIR and staying of arrest. The writ petition was dismissed almost after lapse of five years on 26.8.2007. In the aforesaid writ petition affidavits (Annexure-5, 6, 7 and 8 to the writ petition) were filed by the petitioners with the statement of fact that on the alleged date of incident of murder of Shri Rakesh Pandey, Shri Akhilesh Singh was available at his Lucknow Residence. The petitioners had filed the affidavits with regard to availability of Shri Akhilesh Singh at his residence keeping in view the fact that they were posted as guard at the Lucknow residence of the accused.

3. Feeling aggrieved with the affidavit filed by the petitioner Shri Anurag Kumar Pandey brother of deceased Rakesh Pandey had submitted a complaint (Annexure-9) in November, 2007 to the Senior Superintendent of Police Lucknow with the prayer that the petitioners have filed false affidavit in the writ petition decided by the High Court with intention to save Shri Akhilesh Singh, hence, necessary action may be taken against the petitioners by holding appropriate enquiry. After receipt of complaint of Shri Anurag Pandey, Senior Superintendent of Police Lucknow had appointed Shri S.C. Pandey, Assistant Superintendent of Police Lucknow to hold a preliminary enquiry. Shri Subhash Chand Pandey Assistant Superintendent of Police had submitted his report on 1.1.2008 (Annexure-10) holding the petitioners prima facie guilty of misconduct.

4. On the basis of preliminary report submitted by the Assistant Superintendent of Police, a charge-sheet dated 3.3.2008 was served on the petitioners inviting their reply. Copy of one of such charge-sheet with regard to petitioner No. 1 is annexed as Annexure-11 to the writ petition. The petitioner No. 1 had submitted a reply to the charge-sheet with submission that he has not committed any misconduct. A copy of the reply submitted by the petitioner No. 1 has been filed as Annexure-12 to the writ petition. Identical reply was submitted by the other petitioners. The enquiry officer filed his report dated 6.5.2008 and exonerated the pet

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2009 Supreme(All) 2315

[2009(5) ADJ 73 (LB)]ALLAHABAD HIGH COURT (Lucknow Bench)BEFORE : DEVI PRASAD SINGH, J.MANSA RAM YADAV AND OTHERS .....Petitioners Versus STATE OF U.P. AND OTHERS ...Respondents (Writ Petition No. 3589 (S/S) of 2008, decided on 20th May, 2009)

Cases Referred (31)

[2009(5) ADJ 73 (LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : DEVI PRASAD SINGH, J.
MANSA RAM YADAV AND OTHERS .....Petitioners
Versus
STATE OF U.P. AND OTHERS ...Respondents
(Writ Petition No. 3589 (S/S) of 2008, decided on 20th May, 2009)