# Constable 3461 Baliram Singh v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 763
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-18
- **Case number:** Civil Misc. Writ Petition No. 25657 of 2006
- **Bench:** Rakesh Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/constable-3461-baliram-singh-v-state-of-u-p-and-others-41448
- **Pages:** 7

## Headnote

Constitution of India Art. 226-311 (2)-
Dismissal order-petitioner being P.A.C.
personal-being shocked with accidental
death
of
his
colleague-used
un
constitutional language against Seniorother P.A.C. personal who were also
involved
have
been
reinstated-helddiscriminatory and the punishment of
dismissal too harsh-order set-a side with
all consequential entitle benefits.

Held: Para 17 & 20

In view of the above, it is amply clear
that the departmental enquiry was not
conducted fairly and only on the basis of
evidence of Vikas Srivastava, Company
Commander, who was also facing a
criminal case relating to the same
incident, the petitioners have been held
guilty without any corroboration. The
Enquiry
Officer
and
the
Punishing
authority ought to have considered this
aspect of the matter, which it did not.

Undoubtedly,
the
petitioners,
being
members of a disciplined force, have
acted
in
an
irresponsible
manner,
however, considering the totality of the
circumstances, it would be appropriate
that they may be awarded a minor
penalty and not a major penalty, that is,
removal or dismissal from service or
reduction in rank. The petitioners' cases
are covered by the judgments of the
Hon'ble Apex Court cited above.
Case law discussed:
2007 SCCL.COM 1235, AIR 1983 SC 454, AIR
1992 SC 417, (1999) 8 SCC 582, (1998)9 SCC
666, (2005) 1 UPLBEC 276.

## Text

3 All] Constable 3461 Baliram Singh V. State of U.P. and others

763
Director of Education, Meerut region,
Meerut as well as the order dated
06.08.09
passed
by
the
Regional
Committee are hereby quashed. The
matter is remitted back to the Regional
Committee to pass a fresh order on the
recall application of respondent no. 4 after
hearing all concerned in accordance with
law. It is also provided that while
constituting the Regional Committee
some other District Inspector of Schools
of other district be made a member of the
Committee and the Committee shall
decide
the
matter
expeditiously,
if
possible, within a period of three months
from the date of receipt of certified copy
of the order of this Court. It is further
directed that in the meantime the
petitioner shall be permitted to function as
a
Manager
of
the
Committee
of
Management.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2009

BEFORE
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No. 25657 of 2006
Alongwith
Civil Misc. Writ Petition No. 42771 of 2004

Constable 3461 Baliram Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Sri Pramod Kumar Pandey
Sri Satyendra Nath Srivastava
Sri S.K. Shukla

Counsel for the Respondents:
Sri A.C. Misra
Sri S.M. Haider Zaidi
S.C.

Constitution of India Art. 226-311 (2)-
Dismissal order-petitioner being P.A.C.
personal-being shocked with accidental
death
of
his
colleague-used
un
constitutional language against Seniorother P.A.C. personal who were also
involved
have
been
reinstated-helddiscriminatory and the punishment of
dismissal too harsh-order set-a side with
all consequential entitle benefits.

Held: Para 17 & 20

In view of the above, it is amply clear
that the departmental enquiry was not
conducted fairly and only on the basis of
evidence of Vikas Srivastava, Company
Commander, who was also facing a
criminal case relating to the same
incident, the petitioners have been held
guilty without any corroboration. The
Enquiry
Officer
and
the
Punishing
authority ought to have considered this
aspect of the matter, which it did not.

Undoubtedly,
the
petitioners,
being
members of a disciplined force, have
acted
in
an
irresponsible
manner,
however, considering the totality of the
circumstances, it would be appropriate
that they may be awarded a minor
penalty and not a major penalty, that is,
removal or dismissal from service or
reduction in rank. The petitioners' cases
are covered by the judgments of the
Hon'ble Apex Court cited above.
Case law discussed:
2007 SCCL.COM 1235, AIR 1983 SC 454, AIR
1992 SC 417, (1999) 8 SCC 582, (1998)9 SCC
666, (2005) 1 UPLBEC 276.

(Delivered by Hon'ble Rakesh Sharma, J.)

1. Since similar and common
controversy is involved in these two writ
petitions, both the writ petitions are being
decided by this one and common
judgment.
764 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

2. Heard Sarvasri G.K. Singh and
V.K. Singh, learned counsel for the
petitioners as well as learned Standing
Counsel and perused the record.

3. Under challenge in these two
petitions is an order of dismissal passed
on 31st July, 2004 dismissing the
petitioners from service and the other
subsequent orders passed on 30th May,
2005 dismissing the appeal of the
petitioner and the order dated 28.12.2005
by which the petitioner's revision was
dismissed.

4. It emerges from the record that
the petitioners, who were working as
Constables in 35 Battalion in Provincial
Armed Constabulary (hereinafter referred
to as the PAC), were posted on security
duty of Ram Janam Bhumi, Ayodhya,
Faizabad with other PAC personnel. On
9th April, 2003, they were on the duty of
the Watch Towers to keep a watch on the
disputed premises. One Sri Rajesh Kumar
Tiwari and other PAC personnel were
also posted on the duty at Watch Tower
No.12. Accidentally, he fell from the
Watch Tower and died on the spot. When
the news of accident and sudden death of
a colleague Constable Rajesh Kumar
Tiwari spread, the other Constables
assembled
at
the
spot.
The
PAC
Constables, who were present on the spot,
were shocked by the accident and on the
death of their colleague. They became
emotionally surcharged and wanted to
talk to their Circle Officer before sending
the dead body to mortuary. According to
the PAC Constables present on duty, the
superior Officers did not take proper care
of the Watch Tower and the area
surrounding
it
and
adequate
safety
arrangements were not made on the
Watch Tower. There was lack of safety
measures as a result of which the PAC
Constable had fallen from the Watch
Tower and died.

5. Since a mob was gathered at the
spot of accident, some Constables might
have reacted and uttered improper words
for the superior officers in the emotionally
charged
atmosphere.
A
preliminary
enquiry was ordered and some of the
officers were transferred immediately. On
account of charges, a departmental
enquiry
was
initiated
against
the
petitioners also and they were put under
suspension vide an order dated 11.4.2003.
Chargesheets were also served on them on
11.7.2003 and 14.7.2003 to which they
had
submitted
detailed
replies
on
28.7.2003 and 21.7.2003. The Enquiry
Officer has submitted his report on
6.5.2004. After conclusion of the enquiry,
show cause notices were issued against
the petitioners on 15.5.2004, which was
replied by the petitioner by submitting his
explanation on 10.6.2004.

6. As per learned counsel for the
petitioners, without considering detailed
reply of the petitioners to the chargesheet,
the petitioners were dismissed from
service vide an order dated 31.7.2004.
Their Appeals and revision were also
dismissed by the appropriate authority
without application of mind and without
dealing with the defence taken by the
petitioners.

7.

Learned
counsel
for
the
petitioners has further submitted that four
other Constables, who had been dismissed
from service alongwith the petitioners,
had approached the U.P. Public Services
Tribunal
challenging
the
order
of
dismissal, appellate and revisional order
by filing Claim Petition Nos. 357/2005,
3 All] Constable 3461 Baliram Singh V. State of U.P. and others

765
736/2005, 729/2005 and 653/2005. These
claim petitions were decided by a
common judgment of the U.P. Public
Services
Tribunal,
rendered
on
20.12.2007. The Tribunal had quashed the
order of dismissal and directed the
respondents
to
reinstate
the
four
dismissed Constables. It is relevant to
mention
here
that
13
Constables
belonging to PAC establishment were
dismissed from service in pursuance of a
common proceeding out of which four
similarly placed Constables have been
reinstated pursuant to the judgment of the
Tribunal. The petitioners may also be
dealt
with
accordingly,
taking
into
account the aforesaid judgment rendered
by the U.P. Public Services Tribunal and
the submissions put-forth in these writ
petitions.

8.

Learned
counsel
for
the
petitioners has assailed the orders of
dismissal passed against the petitioners on
the ground that a very harsh view has
been taken in the matter and the orders of
dismissal
and
punishment
do
not
commensurate with the gravity of charges
levelled against them. It is natural that due
to death of a colleague, the atmosphere
was highly surcharged with emotions and
if any act was done by the petitioners in
that atmosphere after seeing the dead
body of their colleague, it could not be
defined as misconduct and such act could
have been pardoned taking into account
past work, conduct and performance of
the petitioners, which always remained
satisfactory. The petitioners have not
created any disturbance on the spot nor
they had indulged in any such act of
indiscipline, which may result in removal
or dismissal from service.

9. It has been submitted by Sri G.K.
Singh, learned counsel for the petitioners
that the charges levelled against the
petitioners were not at all proved from the
materials on record. They were awarded
with the punishment of dismissal from
service only on the sole testimony of
Vikas Srivastava, Company Commander.
Vikas Srivastava's statement could not be
believed as he himself was an accused in
a criminal case relating to the same
incident. It appears that in order to save
himself, he named the petitioners and
other
Constables
showing
their
involvement in the incident. The U.P.
Public Services Tribunal has also taken
note of these facts in its judgment
rendered on 20.12.2007, a copy of which
has been annexed as Annexure-13 to the
writ
petition,
and
directed
for
reinstatement of four Constables in
service.

10. The departmental enquiry, was
not conducted in accordance with the
relevant Service Rules and the principles
of
natural
justice
were
completely
violated. A criminal case, under Section
147, 148, 149, 323, 427, 452 and 336 of
the Indian Penal Code read with 7th
Criminal Law Amendment Act and
Section 6 of the U.P.P.A.C. Act and 3/4,
Prevention of Damage to the Public
Property Act was registered at Police
Station Ram Janma Bhumi, Faizabad
against
the
petitioners
and
other
Constables. In the said criminal case, a
final report was submitted on 10.8.2004
before the court of Additional Chief
Judicial Magistrate, Faziabad. It was
clearly mentioned in the Final Report that
no concrete evidence was available
against
the
petitioners
and
other
Constables to prove the charges levelled
against them in the chargehsheet, but on
766 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

the same charges, the petitioners have
been dismissed from service. On this
count also, the orders of dismissal passed
against the petitioners are liable to be set
aside. The appellate and the revisional
authority
did
not
deal
with
the
submissions put forth by the petitioners
and passed the orders with pre-determined
mind dismissing the appeal and revision
of the petitioners.

11. Learned Standing Counsel,
appearing for the respondents, has resisted
the motion. He has submitted that the
petitioners, while being posted in the
security duty at Ram Janma Bhoomi,
Ayodhya,
Faizabad
had
committed
serious misconduct. They were involved
in creating law and order problem at Ram
Janma Bhoomi complex, along with their
other colleagues when the dead body of
late Constable Rajesh Kumar Tiwari was
being taken to mortuary for post mortem.
The petitioners and the other PAC
personnel surrounded the vehicle and
obstructed the movement of the vehicle
which was carrying the dead body of the
dead Constable to Faizabad mortuary for
post mortem. Several PAC personnel
alongwith the petitioners were involved in
this incident and as such a departmental
enquiry was ordered against them. A
detailed chargesheet was issued against
the petitioners to enable them to meet out
the allegations levelled against them. The
petitioners had submitted their reply, but
failed to prove themselves to be innocent
of the charges levelled against them. A
show cause notice was issued to them and
after conducting a detailed departmental
enquiry in accordance with the relevant
Rules of 1999, services of the petitioners
were
dismissed
on
31.7.2004.
The
petitioners were members of a disciplined
armed force, that is, the Provincial Armed
Constabulary, but serious misconduct was
committed by them at a sensitive place
like Ram Janma Bhoomi, Ayodhya. The
petitioners
were
afforded
ample
opportunity of hearing and were also
permitted to lead their cases at all the
stages in the departmental trial. There
were documentary and oral evidence
against them on the basis of which they
were found guilty of the charges levelled
against them. The appeals and the
revisions
of
the
petitioner
were
appropriately dealt with by the competent
authorities and the same were rightly
rejected in accordance with law by
passing reasoned and speaking orders.

12. In rejoinder, Sri G.K. Singh,
learned counsel for the petitioners, has
submitted that the extreme punishments
of dismissal from service have been
awarded to the petitioners, which was
disproportionate
to
the
level
of
misconduct on the part of the petitioners.
Similarly placed Constables, who had
approached
U.P.
Public
Services
Tribunal, their Claim Petitions have been
allowed as a result of which they have
been reinstated in the services. Learned
counsel for the petitioners has placed
reliance on following judgments of the
Hon'ble Apex Court as reported in 2007
SCCL.COM 1235, Vishwanath Vs. Union
of India and others, AIR 1983 SC 454
Bharat Ram Vs. State of Himachal
Pradesh and others, AIR 1992 SC 417,
Ex- Naik Sardar Singh v. Union of India
and others, (1999) 8 SCC 582, Hardwari
Lal v. State of U.P., (1998)9 SCC 666,
Ram Avatar Singh v. State Public
Services Tribunal and of this Court
reported in (2005) 1 UPLBEC 276, Atul
Kumar v. U.P. Export Corporation Ltd.,
Lucknow and others in support of his
case.
3 All] Constable 3461 Baliram Singh V. State of U.P. and others

767
13. Learned counsel for the
petitioners has reiterated that when the
similarly placed persons have been
reinstated, the petitioners' case also
deserves to be reconsidered and be also
given a fresh look. Further, only on the
testimony of Vikas Srivastava, Company
Commander,
the
services
of
the
petitioners ought not to have been
dismissed in such a way.

14. I have heard learned counsel for
the parties and perused the record.

15. In the present case, it appears
that a serious accident took place at Ram
Janma
Bhoomi
Complex,
Ayodhya,
Faizabad
on
9.4.2003
where
the
petitioners
alongwith
their
other
colleagues of PAC personnel had been
deputed in the security duty on Watch
Towers. One of the colleague of the
petitioners, Constable Rajesh Kumar
Tiwari, had fallen down from the Watch
Tower and died on the spot. This incident
has shocked the petitioners as well as
other PAC personnel, who had gathered
on the spot. It further appears that the
petitioners
and
other
PAC
personnel/constables were shocked due to
sudden death of their colleague. On
seeing the dead body of their colleague,
they became surcharged with emotions
and
anguished
due
to
which
the
Constables must have reacted. The
reaction, like stopping the dead body from
immediately
being
taken
away
to
mortuary and other actions might have
happened, which have been defined as
misconduct. Undoubtedly, they had acted
in a very irresponsible manner, not
expected of members of a disciplined
armed force, but as has been observed by
the Hon'ble Apex Court in the case of
Vishwanath v. Union of India (supra), the
conduct
of
the
delinquent
Police
personnel must be seen in the background
of the entire episode. In the instant case,
the authorities have acted without looking
into the entire background, the entire
episode. As a result of the departmental
enquiry, the petitioners (PAC Constables)
were held guilty and were dismissed from
service. The matter has not been seen in
its entirety.

16. This Court has also perused the
record. Statement of 16 witnesses were
recorded in the departmental trial, but out
of this lot, 14 witnesses had not adduced
any evidence against the petitioners. Only
on the basis of the statement of Vikas
Srivastava, Company Commander, who
had recorded his statement before the
Enquiry Officer naming the petitioners
and other Constables to be involved in
demonstrations and Gherao of the vehicle
carrying the dead body of late Constable
Rajesh Kumar Tiwari, which action of the
petitioners according to him created law
and order problem on the spot, the
petitioners
were
held
guilty.
The
petitioners'
case
was
that
Vikas
Srivastava, Company Commander, has
wrongly implicated the petitioners and
other PAC personnel (who were claimantpetitioners before the U.P. Public Services
Tribunal in Claim Petition nos. 357/2005,
736/2005/ 729/2005 and 653/2005) in
order to save himself from the criminal
liability, as he was an accused in the
criminal case registered by the Police in
respect of the incident of death of
Constable late Rajesh Kumar Tiwari. The
petitioners and other PAC personnel have
demanded cross-examination of Vikas
Srivastava, Company Commander, the
complainant and main witness, but this
opportunity was not provided to the
petitioners. On the basis of sole evidence
768 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

of
Vikas
Srivastava,
Company
Commander, alone, the enquiry officer
held the petitioners guilty of the charges
levelled against them. While holding the
petitioners guilty of the charges levelled
against them, the statements of the
petitioners and their defence witnesses
were excluded from consideration.

17. In view of the above, it is amply
clear that the departmental enquiry was
not conducted fairly and only on the basis
of
evidence
of
Vikas
Srivastava,
Company Commander, who was also
facing a criminal case relating to the same
incident, the petitioners have been held
guilty without any corroboration. The
Enquiry
Officer
and
the
Punishing
authority ought to have considered this
aspect of the matter, which it did not.

18. It is note-worthy that the
Tribunal in its judgment has also taken
note of this fact and has also recorded the
opinion that the Deputy Inspector General
of Police, Faizabad, and the Senior
Superintendent of Police, Faizabad had
made statements that the PAC personnel
posted at the Ram Janma Bhoomi site at
Ayodhya, Faizabad were disciplined and
did not create any law and order problem
in the town. This Court has also taken
note of the fact that a large number of
emotionally charged PAC personnel were
present on the spot of incident. In a large
crowd, having so many Constables and
members of the Police force of different
wings and the local people, it was difficult
to establish the identity of an erring Police
personnel. It appears that the most of the
members of the PAC were held guilty of
the alleged charges. The appropriate
authority could have waited for the
outcome of the criminal investigation in
order to satisfy itself whether any law and
order problem was, in fact, created by
these PAC personnel or not. The veracity
of statement of only Vikas Srivastava,
Company
Commander,
cannot
be
believed as he himself was an accused in
the criminal case and as such he tried to
fasten the responsibility on the petitioners
and other similarly placed Constables.

19. This Court has also taken note of
the fact that extreme punishment of
dismissal from service imposed on the
petitioners
seems
to
be
shockingly
disproportionate to the charges levelled
against them. The Court has also taken
note of the fact that the other PAC
personnel, who were involved in the same
incident
have
been
reinstated
in
furtherance of the judgment and order
passed by the U.P. Public Services
Tribunal. The Tribunal had given a well
considered,
reasoned
and
speaking
judgment in their favour taking note of
the events, which took place on 9.4.2003
and the conduct of the PAC personnel.

20. Undoubtedly, the petitioners,
being members of a disciplined force,
have acted in an irresponsible manner,
however, considering the totality of the
circumstances, it would be appropriate
that they may be awarded a minor penalty
and not a major penalty, that is, removal
or dismissal from service or reduction in
rank. The petitioners' cases are covered by
the judgments of the Hon'ble Apex Court
cited above.

21. In view of the discussions made
above, the writ petitions succeed and are
allowed. The orders of dismissal dated
31.7.2004 and the orders dated 30.5.2005
and
28.12.2005
are
quashed.
The
petitioners shall be immediately reinstated
in the service and shall be entitled to all
3 All] Purvanchal University Jaunpur and anotherV. Shabana Khatoon and others

769
the consequential benefits. However, it is
open to the Disciplinary authority to pass
fresh orders after initiating denovo
disciplinary proceedings in accordance
with law, if the Department deems it
proper, but the petitioners shall not be
awarded any major penalty of removal or
dismissal from service or reduction in
rank.

22. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2009

BEFORE
THE HON'BLE SYED RAFAT ALAM, J.
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 2415 of 1995

Purvanchal
University
Jaunpur
and
another

 ...Petitioners
Versus
Shabana Khatoon and others

 ...Respondents

Counsel for the Petitioner:
Sri Ajit Kumar Singh
Sri Pankaj Mittal

Counsel for the Respondents:
SC

Constitution of India Art. 226-Order
passed by consumer forum-activities of
university in conducting examinationnon
commercial-students
not
came
within the definition of consumer forumany order passed by consumer forumheld-without jurisdiction.

Held: Para 9

In the instant case, admittedly, the
University in discharge of its statutory
function held the examination in which
the petitioner appeared as examinee. No
material has been brought on record to
show that the University deliberately has
declared the petitioner to have passed in
Second Division to extend favour to
some other student. On the other hand,
the University has come up with the plea
that it was on account of technical error
in the computer and while computing the
total marks of the examinee, took the
percentage out of 1000 instead of 900
and, therefore, though the petitioner
secured more than 60% marks out of
900, yet she has been shown to have
secured less than 60% out of 1000 and
thus, placed her in Second Division. In
the facts and circumstances, we are
satisfied with the explanation of the
University that the mistake was not
deliberate. Besides that the respondent
no.
1,
the
examinee
not
being
a
'consumer' as per definition under the
Act and the University not being 'service
provider', they do not come within the
purview of the Act, hence the impugned
order being without jurisdiction, cannot
sustain.
Case law discussed:
Civil Appeal No. 3911 of 2003, decided on
September 4, 2009, Writ Petition No. 29610 of
2007 - decided on 1.9.2008.

(Delivered by Hon'ble Syed Rafat Alam, J.)

1. In the instant writ petition under
Article 226 of the Constitution of India
the petitioners have prayed for quashing
the order of Consumer Protection Forum,
Azamgarh dated 7.10.1994 and also the
complaint dated 27.8.1993 made by
respondent No. 1.

2. We have heard Sri Ajit Kumar
Singh, learned counsel for the petitioners
University and the learned standing
counsel for respondent No. 3. No one has
entered
appearance
on
behalf
of
respondent Nos. 1 and 2 despite notice. In
view of office report dated 4.1.2001
service of notice on the said respondents