# Munni Lal Verma & Anr v. The State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1413
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-23
- **Case number:** W.P. No. 53 (S/S) of 2010
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munni-lal-verma-anr-v-the-state-of-u-p-ors-43334
- **Pages:** 19

## Headnote

C.S.C.
Police Regulation-Regulation 493-a and
(c)
read
with
U.P.
Police
Officer
Subordinate Ranks (Punishment & Appeal)
Rules 1991-Rule-8
(2)(a)-Dismissal of
Police person-by exercising power under
Rule 8 (2)(b)-on ground of conviction in
criminal
case-argument
that
against
conviction-criminal
appeal
conviction
suspended by granting bail-criminal appeal
still pending-held-in view of mandatory
provision of Regulation 493 (a) and (c)-if
appeal allowed-it shall be open to file
review
of
dismissal-order
impugned
warrant no interference.
Held: Para-48
For the reasons aforesaid, this Court is of
the considered opinion that merely because
appeal was pending against the order of the
trial court and the execution of the
sentence had been suspended, it cannot be
said that, punishment order cannot be
passed by the disciplinary authority. If and
when the appeal against conviction is
allowed, the delinquent employee can seek
review of the decision passed by the
disciplinary authority. Thus, this Court
declines
to
exercise
its
discretionary
jurisdiction under
Article 226 of
the
Constitution of India in favour of the
petitioners as this Court do not find any
valid ground to interfere with the impugned
orders.
Case Law discussed:
AIR 1961 SC 751; 1985 (3) SCC 398; 1989 (1)
UPLBEC 624; C.M.W.P. No. 1344 of 2012,
C.M.W.P. No. 1917 OF 2012; C.M.W.P. No.
2705 of 2012; W.P. No. 1735 (S/S) 2011; W.P.
No. 39 (S/S) 2013; Special Appeal Defective
71 of 2015; 1995 (3) SCC 377; 1997 (11) SCC
383: 1996 SCC (L & S) 668; 1997 (7) SCC 514;
1995 (2) SCC 573; 2005 (1) UPLBEC 83; 2002
(49) ALR 419; W.P. No. 662 (S/B) of 2015;
Special Appeal No. 99 of 2014; 1998 (1) AWC
636; 1949 All England Law Reports 381; 1952
SCR 683; AIR 1959 SC 422; (2003) 6 SCC 186.

## Text

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3 All. Munni Lal Verma & Anr. Vs. The State of U.P. & Ors.
1413
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.12.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.
W.P. No. 53 (S/S) of 2010
alongwith W.P. No. 56 (S/S) of 2010
Munni Lal Verma & Anr. ...Petitioners
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Amit Bose
Counsel for the Respondents:
C.S.C.
Police Regulation-Regulation 493-a and
(c)
read
with
U.P.
Police
Officer
Subordinate Ranks (Punishment & Appeal)
Rules 1991-Rule-8
(2)(a)-Dismissal of
Police person-by exercising power under
Rule 8 (2)(b)-on ground of conviction in
criminal
case-argument
that
against
conviction-criminal
appeal
conviction
suspended by granting bail-criminal appeal
still pending-held-in view of mandatory
provision of Regulation 493 (a) and (c)-if
appeal allowed-it shall be open to file
review
of
dismissal-order
impugned
warrant no interference.
Held: Para-48
For the reasons aforesaid, this Court is of
the considered opinion that merely because
appeal was pending against the order of the
trial court and the execution of the
sentence had been suspended, it cannot be
said that, punishment order cannot be
passed by the disciplinary authority. If and
when the appeal against conviction is
allowed, the delinquent employee can seek
review of the decision passed by the
disciplinary authority. Thus, this Court
declines
to
exercise
its
discretionary
jurisdiction under
Article 226 of
the
Constitution of India in favour of the
petitioners as this Court do not find any
valid ground to interfere with the impugned
orders.
Case Law discussed:
AIR 1961 SC 751; 1985 (3) SCC 398; 1989 (1)
UPLBEC 624; C.M.W.P. No. 1344 of 2012,
C.M.W.P. No. 1917 OF 2012; C.M.W.P. No.
2705 of 2012; W.P. No. 1735 (S/S) 2011; W.P.
No. 39 (S/S) 2013; Special Appeal Defective
71 of 2015; 1995 (3) SCC 377; 1997 (11) SCC
383: 1996 SCC (L & S) 668; 1997 (7) SCC 514;
1995 (2) SCC 573; 2005 (1) UPLBEC 83; 2002
(49) ALR 419; W.P. No. 662 (S/B) of 2015;
Special Appeal No. 99 of 2014; 1998 (1) AWC
636; 1949 All England Law Reports 381; 1952
SCR 683; AIR 1959 SC 422; (2003) 6 SCC 186.
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J)
1. Heard Mr. Amit Bose, learned
Counsel for the petitioners and Mrs.
Sangeeta Chandra, learned Chief Standing
Counsel, assisted by Mr. Badrul Hasan,
learned
Additional
Chief
Standing
Counsel.
2.
Petitioners of writ petition No. 53
(S/S) of 2010 have questioned the validity
and correctness of the order of dismissal
dated 24.9.2008 and 17.10.2008 passed by
the Superintendent of Police, Rai Bareli and
Superintendent of Police, Food Cell, U.P.
Police, Lucknow, respectively, whereas
petitioner of writ petition No. 56 (S/S) of
2010 has questioned the validity and
correctness of the order of dismissal dated
25.9.2008 passed by the Deputy Inspector of
Police (Establishment), Economic Offence
Research Organization, U.P., Lucknow.
3. Since the common questions of
law and facts and involved in abovecaptioned writ petitions, therefore, both
the writ petitions have been clubbed and
are being decided by a common order.
1414
 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Shorn off unnecessary details the
facts of the case are as under :
5. Petitioners of writ petition No. 53
(S/S) of 2010 were posted as Constables
of Civil Police, Police Station Misrikh,
District Sitapur, whereas petitioner of writ
petition No. 56 (S/S) of 2010 was posted
as Sub-Inspector of Civil Police, Police
Station Misrikh, District Sitapur. On
10.2.1981, an encounter took place at
Village Sarsai within the circle of Police
Station Misrikh, District Sitapur, led by
the Station Officer Incharge of Police
Station Misrikh, District Sitapur including
the petitioners and other police officers.
In the said encounter, three criminals,
namely, Girish, Rameshwar and Chetrani
alias Dhania were killed. In respect of the
incident, First Information Report was
lodged at Police Station Misrikh, District
Sitapur against the aforesaid criminal
persons, on the basis of which, a criminal
case was registered at Police Station
Misrikh, District Sitapur.
6. After the aforesaid incident, father
of one of the accused (Girish), namely,
Sri Jai Dayal Srivastava submitted a
representation before the Home Minister,
Government of U.P., Lucknow, stating
therein that the police had arrested the
aforesaid three persons and had murdered
them and in order to cover up the said
criminal act of murder by the police party,
the incident leading to the alleged murder
was depicted as an encounter in which all
the said three persons were killed. On the
said representation, an inquiry was
instituted and the same was entrusted to
the Crime Branch, Criminal Investigation
Department, U.P. Thereafter, the Crime
Branch took over the investigation of the
said criminal case and lodged an FIR at
Police Station Misrikh, District Sitapur
against eight police officers including the
Station
Officer-In-charge
of
Police
Station Misrikh, District Sitapur (Sri Braj
Gopal Verma), Inspector, the petitioners
and 32 members of the public under
Sections 147/148/149/342/302/201/120-B
I.P.C. read with Section 25 of the Arms
Act on 13.09.1983.
7.
According to the petitioners, vide
judgment and order dated 07.08.2008,
Additional Sessions Judge/ Fast Track
Court-7, Sitapur, all the fourteen police
officers, including the petitioners, against
whom the charge-sheet was submitted, were
convicted of the offences punishable under
Sections 147/148/149/218/302 I.P.C., but,
all the members of the public against whom
also charge-sheet was submitted, were
acquitted of all the charges leveled against
them. Immediately thereafter, all the
accused persons including the petitioners
were taken in custody and confined in the
District Jail, Sitapur on 7.8.2008.
8.
In these backgrounds, petitioner
No.1-Munni Lal Verma and petitioner No.2Ram Singh were dismissed from service vide
orders dated 24.9.2008 and 17.10.2008 by
the Superintendent of Police, Raibareli and
Superintendent of Police, Food Cell, U.P.,
Police, Lucknow, respectively, in exercise of
powers under Section 8 (2) (a) of the Rules,
1991. Petitioner-Hari Shankar Mishra of writ
petition No. 56 (S/S) of 2010 was initially
suspended vide order dated 23.9.2008 but
subsequently vide order dated 25.9.2008, the
Deputy
Inspector
General
of
Police
(Establishment),
Economic
Offences
Research Organization, U.P., Lucknow
dismissed him in exercise of powers under
Section 8 (2) (a) of Rules, 1991.
9. In the meantime, against the
judgment and order dated 7.8.2008
3 All. Munni Lal Verma & Anr. Vs. The State of U.P. & Ors.
1415
whereby
they
were
convicted
and
sentenced to imprisonment, the petitioners
had approached this Court by filing
Criminal Appeal No. 1853 of 2008 and a
Division Bench of this Court, vide order
dated 30.11.2009, suspended the sentence
of all the accused persons including the
petitioners and released them on bail. In
pursuance to the order dated 30.11.2009,
the petitioners were released from jail.
Thereafter,
the
above-captioned
writ
petitions
have
been
filed
by
the
petitioners.
10. Submission of learned Counsel
for the petitioners Mr. Amit Bose is that
the impugned orders of dismissal from
service have been passed against the
petitioners only on the ground of
conviction and sentence in exercise of
powers under Clause (a) of the Second
Proviso to Article 311 (2) of the
Constitution read with Rule 8 (2) (a) of
the
U.P.
Police
Officers
of
the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 [in short, referred to
as "1991 Rules"]. He submitted that
provisions of Rule 8 (2) (a) of Rules,
1991 are in pari materia with the
provisions of Clause (a) of the Second
Proviso to Article 311 (2) of the
Constitution. Further submission is that it
is not the mere conviction that would
entail the punishment to a police officer,
but, it is the conduct leading to a
conviction that can be a ground to punish
a police officer. In such a situation, the
Appointing Authority has to consider
whether any major penalty of either
dismissal, removal or reduction in rank
would be commensurate with the conduct
which has led to the conviction of a police
officer. But, in the present case, the
impugned orders of dismissal from
service have been passed against the
petitioners only on the ground of having
been convicted and sentenced but the
conduct of the petitioners which led to
their conviction has not been taken into
consideration at all.
11.
Elaborating his submission, Mr.
Amit Bose has submitted that the petitioners
had no role to play in the alleged fake
encounter as no evidence was led during trial
of the petitioners that they had either actively
participated in the alleged fake encounter or
they had done any covert or overt act
resulting in the death of three persons. The
only evidence that has come on record was
that the police officers including the
petitioners were present at the spot. In such a
situation and assuming for sake of argument
that the entire incident was a fake encounter,
the conduct of the petitioners would not
justify any punishment being imposed on
them much less the punishment of dismissal
from service.
12. Mr. Amit Bose has next
contended that the issue of departmental
proceedings against a police officer who
has been tried on a criminal charges and
has been acquitted are governed by the
provisions of Paras 492 and 493 of the
U.P. Police Regulations. From perusal of
the aforesaid provisions, it is apparent that
whenever a police officer has been tried
on criminal charges and acquitted, it
would
not
be
permissible
for the
Superintendent of Police to re-examine
the truth or otherwise of the findings of
facts recorded by the competent court and
the findings recorded by the competent
court in this regard, have to be taken to be
final.
Moreover,
departmental
proceedings against a police officer who
has been acquitted on criminal charges
can be conducted only if the findings of
the court are not inconsistent with the
1416
 INDIAN LAW REPORTS ALLAHABAD SERIES
view that the accused has been guilty of
negligence or unfit for the discharge of
his duty within the meaning of Section 7
of the Police Act. In other words,
departmental proceedings against a police
officer who has been acquitted can be
conducted if the charges leveled in the
criminal case also lead to allegations of
committing misconduct by the police
officer in the discharge of his official
duties. In these backgrounds, submission
of the learned Counsel for the petitioners
is that if a police officer is alleged to have
committed a criminal offence in relation
to his work and conduct and he has been
acquitted in the trial for the said criminal
offence on findings which do not amount
to exoneration of the charge, departmental
proceedings can be conducted against
such a police officer even in respect of the
act or omission relating to the said
criminal offence despite his acquittal by
the criminal court. But, in such a situation
also, the matter has to be referred to the
Deputy Inspector General of Police of the
range for his permission to conduct
departmental proceedings against the
police officer concerned.
13. In support of his submissions,
Mr. Amit Bose has contended that the
aforesaid provisions of Paras 492 and 493
of the U.P. Police Regulations came up
for consideration before a Division Bench
of this Hon'ble Court in the case of Kedar
Nath Yadav Vs State of U.P. Reported in
2005 (3) ESC 1955, wherein it was held
that the said provisions continued to be in
force despite the enactment of the U.P.
Police Officers of the Subordinate Ranks
(Punishment and Appeal) Rules, 1991 and
whenever a police officer is tried for
having committed a criminal offence,
departmental proceedings have to await
the verdict in the trial as well as the
judicial appeal, if any, filed against the
judgment of conviction. Therefore, in
view of the aforesaid provisions of Para
492 of the U.P. Police Regulations and in
view of the fact that the petitioners had
already filed Criminal Appeal No. 1853
of 2008:Braj Gopal Verma and others Vs.
State on 14.08.2008 i.e. within a week of
the pronouncement of the conviction and
sentence of the petitioners and other
police
officers.
Therefore,
it
was
incumbent
on
the
part
of
the
Superintendent of Police concerned to
have waited for the outcome of the appeal
filed by the petitioners before taking any
disciplinary action against them as
mandated by the provisions of Para 492 of
the U.P. Police Regulations. Thus, the
Superintendent of Police as well as
Deputy Inspector General of Police
concerned, in the instant case, have totally
acted contrary to the provisions of Para
492 of the U.P. Police Regulations.
14. Mr. Amit Bose, learned Counsel
for the petitioner has submitted that this
Court, vide judgment and order dated
12.5.2005 passed in Writ Petition No.
3554 (S/S) of 2004: Girdhari Lal Vs. State
of U.P. and others, has set aside an order
of dismissal from service passed against a
police officer who was dismissed from
service on his conviction in a criminal
case on the ground that the appeal against
the conviction was pending and as such
the order of dismissal from service was
contrary to the provisions of Para 492 of
the U.P. Police Regulations.
15.
To strengthen his aforesaid
contentions, Mr. Amit Bose has relied upon
the judgment of the Apex Court in State of
U.P. Vs. Babu Ram Upadhya : AIR 1961 SC
751, Union of India Vs. Tulsi Ram Patel :
1985 (3) SCC 398 and the judgment of this
3 All. Munni Lal Verma & Anr. Vs. The State of U.P. & Ors.
1417
Court in Dhani Ram Vs. Superintendent of
Police, Hardoi : 1989 (1) UPLBEC 624, Brij
Pal Singh Vs. State of U.P. & others (Civil
Misc. Writ Petition No. 1344 of 2012,,
decided on 10.1.2012), Veer Pal Singh &
others Vs. State of U.P. and others (Civil
Misc. Writ Petition No. 1917 of 2012,
decided on 12.1.2012), Dhirendra Kumar
Tiwari Vs. State of U.P. and others (Civil
Misc. Writ Petition No. 2705 of 2012,
decided on 16.1.2012), Surendra Singh Vs.
State of U.P. & others (writ petition No.
1735 (SS) of 2011, decided on 6.1.2012),
Vijay Kumar Tiwari Vs. State of U.P. &
others (writ petition No. 39 (SS) of 2013,
decided on 1.9.2014) and State of U.P. and
others Vs. Vijay Kumar Tiwari (Special
Appeal Defective No. 71 of 2015).
16. Refuting the submissions of the
learned Counsel for the petitioner, Mrs.
Sangeeta Chandra, learned Chief Standing
Counsel, assisted by Mr. Badrul Hasan,
learned
Additional
Chief
Standing
Counsel, has submitted that appropriate
decision has been taken by the competent
authority (the Superintendent of Police,
Food Cell, U.P. Police, Lucknow),
dismissing the petitioners on the basis of
their conviction in the criminal case by
the Additional Sessions Judge/Fast Tract
Court no.7, Sitapur, under the provisions
of Rule 8 (2) (a) of the Rules 1991. As
regard the conduct of the petitioners,
which
led
to
convictions,
while
performance of duty as a Police Officer, it
is submitted that the petitioners had
shown false encounter and had murdered
three persons. The petitioners have been
found to have misused their office as a
Police Officer by the learned Trial Court.
This observation is sufficient for the
petitioners to have been dismissed from
service under Section 8(2) (a) of the Rules
1991 and the second proviso to Article
311 (2) of the Constitution of India. The
petitioners have misused their powers of a
Police Officer. Further the perusal of the
judgment of the learned Trial Court would
establish
that
the
conduct
of
the
petitioners was sufficient for the dismissal
from service.
17. Mrs. Sangeeta Chandra has
submitted
that
the
petitioners
are
governed by the specific Rules framed for
them i.e. Rules, 1991, therefore, as the
petitioners have been convicted and not
acquitted,
the
provisions
of
Police
Regulations would not be applicable and
the petitioners were rightly dismissed
from service. There is no prohibition that
the outcome of appeal is to be waited for.
18. So far as placing reliance upon
Tulsi Ram Patel (supra) by the Counsel
for the petitioner is concerned, learned
Counsel for the State has submitted that
the second proviso will apply where the
conduct of a Government Servant is such
as he deserves the punishment of
dismissal, removal or reduction in rank
and
if
under
second
proviso,
a
disciplinary authority comes to know that
a Government Servant has been convicted
of a criminal charge, his conduct itself
warranting major penalty, then, the
Government Servant is not entitled to an
inquiry. Mrs. Sangeeta Chandra, on the
basis of observations made in Tulsi Ram
Patel (supra), has contended that there
cannot be any departmental trial or even a
rudimentary enquiry in case of conviction
followed by punishment of rigorous
imprisonment.
19. It is also submitted that in Tulsi
Ram Patel (supra), the Constitution Bench
has held that under the exclusionary
effect, the Second Proviso to Article 311
1418
 INDIAN LAW REPORTS ALLAHABAD SERIES
(2), it cannot be said that while
considering the facts and circumstances of
each case, the Disciplinary Authority
must also hear the delinquent employee
and if he is not heard or given a chance to
satisfy the authority regarding final orders
that may be passed by it, there would be
no consideration and the order would be
vitiated. The view taken in Divisional
Personal Officer Southern Railway Vs.
T.R. Challapan : 1976 (3) SCC 190, was
held
to
be
unacceptable.
The
consideration of what penalty should be
imposed by the Disciplinary Authority
should be ex parte and by the authority
itself. It was also held that in case the
Service Rules provided for giving of a
Show-Cause Notice and considering the
reply of the delinquent employee, such
Rules must be read as directory and not
mandatory because if held otherwise, they
would run counter to the exclusionary
effect of the second proviso to Article
311(2). Para 493 (a) provides that in case
a police officer is convicted and sentenced
to rigorous imprisonment, there shall not
be any departmental trial necessary and
the
Superintendent
of
Police
shall
ordinarily dismiss such an officer and if
he proposes to do otherwise, then, he may
refer the matter to the D.I.G. of the Range
stating
his
reasons
clearly.
Her
submission is that para 493 provides for
the same course of action as was being
provided by sub-clause (a) of second
proviso to Article 311 (2) of the
Constitution of India. Further para 493
lays down that it shall not be open for the
Superintendent of Police to re-examine
the correctness of the findings of fact in
issue
when
a
criminal
Court
has
pronounced upon them and they shall act
as a form of departmental res judicata.
20. So far as Kedar Nath Yadav's
and Girdhari Lal's cases relied upon by
the petitioner's counsel is concerned, Mrs.
Sangeeta Chandra has submitted that in
fact para 493 (a) has been replaced by
Rule 8 (2) (a) of the Rules, 1991, which is
in pari materia, with Article 311 (2) of
Second proviso (a) and, hence, as
observed by the Hon'ble Supreme Court
in
Tulsi
Ram
Patel
(supra),
the
exclusionary effect of Article 311 (2),
second proviso would apply with full
force and no departmental trial shall be
necessary in such a case and if para-492
provides for the Superintendent of Police
to await the result of criminal appeal filed
against the judgment of the trial Court
before taking departmental action against
such
an
employee,
it
would
be
unconstitutional as held by a Division
Bench of this Court in Vijay Shanker
Tiwari (Supra).
21. Clarifying the position, Mrs.
Sangeeta Chandra has vehemently argued
that since the Division Bench in Kedar
Nath Yadav (Supra) has held that Para493 of the Police Regulations has not
been replaced by any corresponding rule
in the later Rules of 1991, it cannot be
said to have been impliedly repealed, and,
therefore, Regulation 493 (a) would be as
binding upon the State Respondents as
Regulation-493(c).
Since
Para-493(a)
clearly provides that no departmental trial
shall be necessary if conviction by a trial
court results in rigorous imprisonment of
more than 10 years, the same would act
against the writ petitioners herein, with
equal and binding force. A Division
Bench of this Court in the case of Vijay
Shanker Tiwari (supra) on relying upon
the case of Tulsi Ram Patel (supra) has
held in Paras-10 and 11 thus :-
"10.
Regulation
492,
however,
requires the Superintendent of Police to
3 All. Munni Lal Verma & Anr. Vs. The State of U.P. & Ors.
1419
await decision of judicial appeal, if any,
before deciding this question as to
whether department action is necessary.
This runs counter to clause (a) of second
proviso to Article 311(2). Supreme Court
in Tulsi Ram Patel's case (supra)" has
held that neither the Act nor the Rule nor
the government instructions can alter or
liberalise the effect of the second proviso
to Article 311(2). In this connection
Supreme Court has laid down as under :
"Service rules may reproduce the
provisions
of
the
second
proviso
authorizing the disciplinary authority to
dispense with the inquiry contemplated by
clause (2) ofArticle 311in the three cases
mentioned in the second proviso to that
clause or any one or more of them. Such a
rule, however, cannot be valid and
constitutional without reference to the
second
proviso
toArticle
311(2)and
cannot be read apart from it. Thus, while
the source of authority of a particular
officer to act as a disciplinary authority
and to dispense with the inquiry is derived
from the service rules, the source of his
power to dispense with the inquiry is
derived from the second proviso toArticle
311 (2)and not from any service rules.
There is a well-established distinction
between the source of authority to
exercise a power and the source of such
power."
Supreme Court accordingly, in para
122 of its judgment, held that last part of
Rule 37 of the CISF Rules which provides
for a notice before imposing penalty of
dismissal to the delinquent government
servant, would be void as violating the
second
proviso
to
Article
311(2),
"because it would whittle down the
exclusionary
effect
of
the
second
proviso". Supreme Court, however, did
not declare it ultra vires and treated it as
directory and not mandatory. The reasons
for treating the Rules which are in conflict
with second proviso to Article 311(2) as
directory as given by Supreme Court, are
as under :
"It is, however, a well-settled rule of
construction of statutes that where two
interpretations are possible, one of which
would
preserve
and
save
the
constitutionality of the particular statutory
provision while the other would render it
unconstitutional and void, the one which
saves and preserves its constitutionality
should be adopted and the other rejected.
Such constitutionality can be preserved by
interpreting that statutory provision as
directory and not mandatory. It is equally
well-settled
that
where
a
statutory
provision is directory, the courts cannot
interfere to compel the performance or
punish breach of the duty created by such
provision and disobedience of such
provision would not entail any invalidity -
see Craies on Statute Law, Seventh
Edition, at page 229. In such a case
breach of such statutory provisions would
not furnish any cause of action or ground
of challenge to a government servant for
at the very threshold, such cause of action
or ground of challenge would be barred
by the second proviso toArticle 311(2)."
11. Regulation 492 whittles down the
effect of clause (a) of second proviso to
Article 311(2) and, therefore, cannot
survive being in conflict with it. But for
the reasons given by Supreme Court in
Tulsi Ram Patel's case this Regulation can
be saved by treating it directory and not
mandatory. Regulation 492 is therefore,
declared directory only."
22. To strengthen her aforesaid
submissions, Mrs. Sangeeta Chandra has
relied upon Deputy Director of Collegiate
Education (Administration) Madras Vs. S.
Nagoor Meera: 1995 (3) SCC 377, Union
1420
 INDIAN LAW REPORTS ALLAHABAD SERIES
of India Vs. V.K. Bhaskar : 1997 (11)
SCC 383, Karam Singh Vs. State of
Punjab : 1996 SCC (L&S) 668, Union of
India and others Vs. Ramesh Kumar :
1997 (7) SCC 514, Rama Narang Vs.
Ramesh Narang : 1995 (2) SCC 573 and
Government
of
Andhra
Pradesh
&
another Vs. B. Jagjeevan Rao : 2014 (13)
SCC 239.
23. I have heard learned Counsel for
the parties and perused the record.
24. It is not in dispute that the order
of dismissal has been passed after
dispensing with the enquiry to be
conducted against the petitioners under
clause (a) of the Second Proviso to Article
311 (2) of the Constitution of India read
with Rule 8 (2) (a) of Rule, 1991.
Therefore, in order to appreciate the rival
submissions of the learned Counsel for
the parties, this Court deem it appropriate
to
reproduce
Article
311
of
the
Constitution of India as well as Rule 8 (2)
(a) of Rule, 1991, which are as under :
"311.
Dismissal,
removal
or
reduction in rank of persons employed in
civil capacities under the Union or a
State-
(1) No person who is a member of a
civil service of the Union or an all India
service or a civil service of a State or
holds a civil post under the Union or a
State shall be dismissed or removed by a
authority subordinate to that by which he
was appointed
(2) No such person as aforesaid shall
be dismissed or removed or reduced in
rank except after an inquiry in which he
has been informed of the charges against
him and given a reasonable opportunity of
being heard in respect of those charges.
Provided that where it is proposed
after such inquiry, to impose upon him
any such penalty, such penalty may be
imposed on the basis of the evidence
adduced during such inquiry and it shall
not be necessary to give such person any
opportunity of making representation on
the penalty proposed:
Provided further that this clause shall
not apply
(a) where a person is dismissed or
removed or reduced in rank on the ground
of conduct which has led to his conviction
on a criminal charge; or
(b) where the authority empowered
to dismiss or remove a person or to reduce
him in rank ins satisfied that for some
reason, to be recorded by that authority in
writing, it is not reasonably practicable to
hold such inquiry; or
(c) Where the President or the
Governor, as the case may be, is satisfied
that in the interest of the security of the
State, it is not expedient to hold such
inquiry
(3) If, in respect of any such person
as aforesaid, a question arises whether it
is reasonably practicable to hold such
inquiry as is referred to in clause ( 2 ), the
decision
thereon
of
the
authority
empowered to dismiss or remove such
person or to reduce him in rank shall be
final."
"8. Dismissal and removal - (2) No
Police
Officer
shall
be
dismissed,
removed or reduced in rank except after
proper
inquiry
and
disciplinary
proceedings as contemplated by these
rules:
Provided that this rule shall not
apply-
(a) Where a person is dismissed or
removed or reduced in rank on the ground
of conduct which has led to his conviction
on a criminal charge; or
(b) Where the authority empowered
to dismiss or remove a person or to reduce
3 All. Munni Lal Verma & Anr. Vs. The State of U.P. & Ors.
1421
him in rank is satisfied that for some
reason to be recorded by that authority in
writing, it is not reasonably practicable to
hold such enquiry; or
(c)
Where
the
Government
is
satisfied that in the interest of the security
of the State, it is not expedient to hold
such enquiry."
25. Clause (2) of Article 311 of the
Constitution provides inter alia that no
person who is a member of a civil service
of the Union or of a State shall be
dismissed, removed or reduced in rank
except after an inquiry in which he had
been informed of the charges against him
and
has
been
given
a
reasonable
opportunity of being heard in respect of
those charges. However, clause (a) of the
second proviso provides that clause (2)
shall not apply where a person is
dismissed or removed or reduced in rank
on the ground of conduct which has led to
his conviction on a criminal charge.
26. Undisputed facts are that the
petitioners were named in a criminal case
registered
under
Sections
147/148/149/342/ 201/302/201/120-B of
Indian Penal Code read with Section 25 of
the
Arms
Act.
Learned
Additional
Sessions Judge/Fast Track Court, Sitapur,
sentenced all the convicted persons
including
the
petitioners
to
life
imprisonment and fine of Rs.5000/- for
the offence under Section 302 I.P.C., to
rigorous imprisonment for one year for
the offences under Sections 147/148
I.P.C.
and
to
two
years
rigorous
imprisonment for the offence under
Section 218 I.P.C. Immediately thereafter,
all the convicted persons including the
petitioners were taken in custody and
lodged in District Jail, Sitapur with effect
from
7.8.2008.
On
knowing
the
conviction of the petitioners in a heinous
offence i.e. under Section 302 I.P.C., the
Disciplinary Authority have dismissed the
services of the petitioners.
27. Sri Amit Bose, learned Counsel
for the petitioners has argued that he is
not disputing the power under Article
311(2) second proviso (a) or Rule 8(2)(a)
or even Para 493 (a) of the Police
Regulations but his submission was that
these provisions could be applied and
should be applied, only after decision in
criminal appeal and there should be
postponement of the order of dismissal,
till decision in appeal.
28. Regulations 492 and 493 are
extracted as under:
"492. Whenever a police officer has
been Judicially tried, the Superintendent
must await the decision of the judicial
appeal, if any, before deciding whether
further departmental action is necessary.
493. It will not be permissible for the
Superintendent of Police in the course of
a departmental proceeding against a
Police Officer who has been tried
judicially to re-examine the truth of any
facts in issue at his judicial trial, and the
finding of the Court on these facts must
be taken as final.
Thus, (a) if the accused has been
convicted and sentenced to rigorous
imprisonment, no departmental trial will
be necessary, as the fact that he has been
found deserving of rigorous imprisonment
must be taken as conclusively proving his
unfitness for the discharge of his duty
within the meaning ofSection 7of the
Police
Act.
In
such
cases
the
Superintendent of Police will without
further proceedings ordinarily pass an
order of dismissal, obtaining the formal
1422
 INDIAN LAW REPORTS ALLAHABAD SERIES
order of the Deputy Inspector General
when necessary under paragraph 479 (a).
Should he wish to do otherwise he must
refer the matter to the Deputy Inspector
General of the range for orders.
(b) If the accused has been convicted
but sentenced to a punishment less than of
rigorous imprisonment a departmental
trial will be necessary, if further action is
thought desirable, but the question in
issue at this trial will be merely (1)
whether the offence of which the accused
has been convicted amounts to an offence
underSection 7of the Police Act, (2) if so,
what punishment should be imposed. In
such cases the Superintendent of Police
will (i) call upon the accused to show
cause why any particular penalty should
not be inflicted on him (ii) record
anything the accused Officers has to urge
against such penalty without allowing him
to dispute the findings of the Court, and
(iii) write a finding and order in the
ordinary way dealing with any plea raised
by the accused officers which is relevant
to (1) and (2) above.
(c) If the accused has been judicially
acquitted or discharged, and the period for
filing an appeal has elapsed and/or no
appeal has been filed the Superintendent of
Police must at once reinstate him if he has
been suspended; but should the findings of
the Court not be inconsistent with the view
that the accused has been guilty of
negligence in, or unfitness for, the discharge
of his duty within the meaning ofSection
7of the Police Act, the Superintendent of
Police may refer the matter to the Deputy
Inspector General and ask for permission to
try the accused departmentally for such
negligence or unfitness."
29. It is pertinent to mention here that
when the Police Regulations were framed,
the British ruled the country and the Police
was utilized as an instrument for oppression
and suppression of native population and to
perpetuate foreign rule. The conditions are
now different as India is independent and,
therefore, the Police Regulations, which had
been framed before Independence and in the
wake of Revolt of 1857, with the intent of
protecting and preserving the police powers
are no longer to be treated as having binding
and statutory force. A Division Bench of
this Court in the case of Nurul Hasan v.
Senior Superintendent of Police, Lucknow :
1985 (3) LCD 208 observed that the
conditions have changed since the time
when the Police Regulations were famed
and
the
State
Government
should
immediately consider the question of
amending the Police Regulations. It was
observed in Para 51 :-
"It is now well known that the
standard of discipline in the police force
has deteriorated and the police personnel
who are entrusted with the task of
maintaining law & order, have been
found, times out of number to be law
breakers and involved in commission of
serious cognizable offence but on account
of limited scope of the provisions of Para
496 of the Police Regulations immediate
action by way of suspension cannot be
taken against them even though the
situation as also the gravity of the offence
might require immediate suspension .. "
30.
Taking
into
account
the
observations made in the case of Nurul
Hasan (supra), the U.P. Police Officers of
Subordinate Rank (Punishment & Appeal)
Rules, 1991 were framed in which the
Preamble of the Rules itself mentioned as
follows :-
"In exercise of powers under Subsections (2) and (3) of Section 46 read
3 All. Munni Lal Verma & Anr. Vs. The State of U.P. & Ors.
1423
with Sections 2 and 7 of the Police Act,
1861 (Act No. 5 of 1861) and all other
power enabling him in this behalf and in
supersession of all existing rules issued in
this behalf, the Governor is pleased to
make the following rules with a view to
regulating the departmental proceedings,
punishment and appeals of the Police
Officers of the subordinate ranks of the
Uttar Pradesh Force."
31. The Police Regulations have
been
issued
as
executive
instructions/orders and not all of them
have been considered to be binding or to
have statutory force. However, Chapter
XXXII of the Police Regulations has been
held by the Hon'ble Supreme Court in the
case of Babu Ram Upadhyaya (supra) to
be a result of an exercise of Statutory
Rule making powers contained in Section
7 of the Police Act 1861. The Rules of
1991 stand on a higher footing in the
hierarchy of statutory laws as has been
held by a Full Bench decision in the case
of R.B. Dixit v. Union of India & others :
2005 (1) UPLBEC 83, wherein the
Hon'ble Full Bench relied upon the case
of Smart Chip v. State of U.P.: 2002 (49)
ALR 419 observed that in every legal
system there was a hierarchy of norms. In
the Indian Legal system, this hierarchy
has the Constitution of India at the top,
the statutory laws/enactments made by the
Parliament or the State Legislature and
thereafter delegated legislation, which
may
be
either
in
the
form
of
Rules/Regulations made under such Acts
followed by executive instructions or
Government Orders. In the case of a
conflict between the higher law and a
lower law, the higher law will prevail.
Therefore, the Regulations being lower in
the hierarchy than Rules and the Rules
being framed in supersession of all
existing laws/statutory provisions made in
this behalf (made with respect to
departmental
action
against
the
subordinate police officers). The Rule of
1991 would prevail particularly when the
language of Rule 8(2)(a) is pari materia
with the language of the Constitution
Article 311 (2) Second proviso Clause (a).
32. On perusal of Scheme of
Chapter-XXXII, it is evident that a
proceeding against a police officer will
consist of a magisterial or police inquiry
followed if this inquiry shows the need
for further action by a judicial trial or
departmental trial or both consecutively,
but at the same time under Para-489 of the
Police Regulations, it is provided that
Police Officer may be departmentally
tried under Section 7 of the Police Act
after he has been tried judicially; or after a
magisterial inquiry under Cr.P.C. or after
a police investigation under Cr.P.C. or a
departmental inquiry, where the offense is
only an offense under Section 7 or a noncognizable
offense
of
which
the
Superintendent of Police considers it
unnecessary at that stage to forward a
report
in
writing
to
the
District
Magistrate.
The
scheme
of
the
Regulations themselves describe that a
proceeding against the police officer
consists of three components; it may be a
magisterial or a police inquiry followed
by a judicial trial or a departmental trial,
or both consecutively, but at the same
time says that no departmental trial will
be necessary if the judicial trial results in
conviction and punishment of rigorous
imprisonment, where the Superintendent
of Police shall ordinarily dismiss the
police officer concerned having been
proved in judicial trial to be unfit to
remain a police officer and in case he
wishes to do otherwise, then the matter
1424
 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be referred by him to D.I.G. of the
Range. The intention of the Police
Regulations at the time when they were
framed was to protect to Police Officers
as India before independence was a Police
State.
After
independence,
the
circumstances have changed and a great
deal of water has flowed down the river.
Article 311(2) (a) of the Constitution
clearly
lays
down
that
reasonable
opportunity of hearing / disciplinary
proceedings are unnecessary where a
person is dismissed or removed or
reduced in rank on the ground of conduct
which has led to his conviction on a
criminal charge. The Rule 8 (2) (a) of
U.P. Police Officers of Subordinate Rank
(Discipline & Appeal) Rules is also pari
materia and cast in the same language as
that of the Constitution which means that
in case of conviction on a criminal charge,
the misconduct which led to the said
conviction may result in major penalty
without
the
necessity
of
holding
departmental proceedings.
33. Mrs. Sangeeta Chandra, learned
Chief Standing Counsel has relied upon
two Division Benches orders passed by
this Court in the case of State of U.P. v.
Uday Narayan Sachan (Writ Petition No.
662 (S/B) of 2015 decided on 14.05.2015)
and in Vijay Prakash Srivastava v. State
of U.P. & others (Special Appeal No. 99
of 2014 decided on 21.02.2014). In the
case of Vijay Prakash Srivastava's case,
the grievance of the appellants was that
the Disciplinary Authority is required to
consider the conduct of the employee,
which led to his conviction on a criminal
charge and mere conviction would not be
sufficient to justify the order of dismissal.
The Division Bench, relying upon the
case of S. Nagoormeera, came to the
conclusion that to await the decision of
the appeal against conviction would not
be advisable since it would mean
continuing in service a person who has
been convicted of a serious offence by a
criminal court. Since the delinquent
employee had been convicted for an
offence under Section 302 I.P.C. read
with Section 34 of I.P.C., the conduct
which led to conviction was held
sufficient for passing an order of
dismissal, the mere pendency of the
appeal would not operate to stay the
conviction.
34.