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ALLAHABAD HIGH COURT
Abhinava Upadhya, J.
Bani Singh - Appellant
Versus
State of U.P. & Others - Respondent
Writ - A No. - 17468 of 2012
Decided On : 22-08-2016
Dismissal - Unauthorized absence from service - Sections 307 and 326 of I.P.C. - [Sections 307, 326 of I.P.C.] - The court discussed the disciplinary proceeding against the petitioner for unauthorized absence and firing at his wife and son, referencing Sections 307 and 326 of I.P.C. The court highlighted the contradiction between the statements made in the disciplinary proceeding and those made in the trial court, leading to the finding that the disciplinary authority's reliance on the statements of the wife and son was perverse.
Fact of the Case:
The petitioner challenged the dismissal order after an inquiry for unauthorized absence and firing at his wife and son. The petitioner had taken casual leave and was accused of firing at his family, leading to a criminal case. The disciplinary proceeding was based on the statements of the wife and son, which contradicted their statements in the trial court.
Finding of the Court:
The court found that the disciplinary authority's reliance on the statements of the wife and son was perverse, as it contradicted the findings of the trial court. Therefore, the dismissal order and subsequent appellate and revisional orders were quashed.
Issues: Unauthorized absence, firing at wife and son, reliance on contradictory statements, perversity of findings
Ratio Decidendi: The court held that the disciplinary authority's reliance on contradictory statements, which contradicted the findings of the trial court, was perverse and therefore quashed the dismissal order and subsequent appellate and revisional orders.
Final Decision: The writ petition was allowed, and the dismissal order, appellate order, and revisional order were quashed.
Abhinava Upadhya, J.
1. By means of this writ petition the petitioner has challenged the order of dismissal, after inquiry, dated 5.9.2009 and appellate order dated 14.2.2010 by which the appeal of the petitioner has been dismissed as well as revisional order dated 21.2.2011, by which the revision of the petitioner has also been dismissed.
2. A disciplinary proceeding was drawn against the petitioner pursuant to his unauthorized absence from service. The petitioner had taken three days casual leave on 14.6.2008 and was to report back for duty on 17.6.2008 which he did not and during this period the allegation was that the petitioner fired at his wife and son on 16.6.2008 and a criminal case was registered being Case Crime No. 362/2008 under Sections 307 and 326 of I.P.C. The petitioner was served with a show cause notice after preliminary inquiry on 31.5.2009. After considering the explanation submitted by the petitioner, which was not found favourable by the authorities, he was dismissed from service on 5.9.2009 against which the petitioner filed an appeal which was dismissed, then the petitioner filed a revision which was also dismissed. Hence this writ petition.
3. In the show cause notice dated 31.5.2009, after preliminary inquiry, the petitioner has been charged as to why he should not be dismissed from service for being unauthorizedly absent after 16.6.2008 and using his licensed revolver shot and injured his wife and son on 16.6.2008. The petitioner submitted his explanation stating therein that pursuant to the incident dated 16.6.2008 the petitioner has been acquitted in Sessions Trial No. 391/2008 under Sections 307, 326 I.P.C. by judgment and verdict dated 5.2.2009 in which it has categorically been held that in the said incident it could not be proved by the prosecution that petitioner fired from his licensed arm. The statement of the wife and son of the petitioner was also recorded which had categorically denied that the petitioner fired at them. However, in the disciplinary proceeding the statement of wife and son was recorded and it was stated that in order to save her marriage and upon the petitioner apologizing to them as well as after intervention of the elders and seniors of the village, the wife and son did not give the correct statement so that the petitioner cannot be arrested and the wife have a healthy matrimonial life ahead, but after acquittal the petitioner has returned back to his old ways and keeps threatening them with his licensed arm of dire consequences. The authorities seems to have been swayed by the fact with regard to the statement of wife and son which was contrary to the statement made before the court of law, which was open to cross-examination etc. and also on affidavit.
4. So far as the incident of unauthorized absence is concerned, it is to be noted that the petitioner did apply for leave from 14.6.2008 to 17.6.2008 and the charge is that on 16.6.2008 and thereafter the petitioner did not join the duty whereas the own case of the departmental authorities was that the petitioner was arrested on 16.6.2008. It is further to be noted that a clear cut stand taken by the petitioner in the appeal was that the petitioner is being punished by the department exactly on the same charge for which he has already been acquitted by the court of law and, therefore, relying upon the decision in the case of Kundan Lal Vs. Delhi Administration and others reported in 1976 (1) SLR 133 the petitioner cannot be put into the disciplinary test on the same charges. The entire departmental proceeding has been proceeded with upon the statement of the wife and the son with regard to the incident that occurred on 16.6.2008 whereas the trial was done with regard to the same incident in criminal court where the statement of the wife and son was contrary to what has been made before the authorities and the petitioner was acquitted from the charges. Therefore, it does appear that the finding arrived at in depar
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