The Allahabad High Court on Friday quashed the dismissal of the District Home Guard Commandant of Lucknow, Kripa Shankar Pandey. The Court has also directed his restoration in service with all benefits.
A single-judge bench of Justice Ashwani Kumar Mishra passed this order while hearing a petition filed by Pandey.
The petition is directed against an order dated November 6, 2020, whereby the petitioner has been dismissed from service. The petitioner has also challenged the order dated March 17, 2020, whereby a supplementary charge-sheet has been served upon him after observing that enquiry pursuant to the initial charge sheet is not proper.
It is contended that the orders that have been challenged were passed only out of annoyance on the part of the disciplinary authority since the petitioner had initiated contempt proceedings against him for disobedience of the order dated February 7, 2020 passed by the Lucknow Bench of the Court. It is further urged that principles of natural justice have been breached and none of the charges levelled against the petitioner is established.
The petition stated, facts giving rise to the present controversy are that the petitioner was posted as District Commandant, Home Guards, Lucknow at the relevant point of time. Disciplinary action against him was initiated with service of a charge-sheet, dated November 22, 2019.
The charge against the petitioner was relating to irregularities in the engagement of nine Home Guards, details whereof were elaborately mentioned in the charge-sheet.
The petitioner submitted a reply to the charge-sheet in which it was specifically stated that engagement of the Home Guard is the responsibility of the Platoon Commandant under the supervision of the Station House Officer concerned and the Commandant Home Guard is not the authority responsible for engagement, allocation or supervision of their work or for maintenance of records. Reference was made to the circular issued by the Home Guard Headquarter dated February 29, 2008, and December 27, 2007, as per which the responsibility for correct payment to Home Guard was upon the Company Commander, Home Guard and for any irregularity/corruption the Block Organizer and Platoon Commandant/ Company Commander were to be held responsible.
The petitioner also contended that no misconduct was committed by him and the charges were not made out. The Enquiry Officer conducted an enquiry and found the petitioner’s defence to be valid. The explanation submitted by the Petitioner was accepted accordingly and the enquiry report was submitted to the Disciplinary Authority on November 25, 2019. The enquiry officer found that Home Guards in the respective period had actually worked and payments were credited to their bank account but the concerned police authorities were not recording entries in the general diary about the movement of Home Guards. A recommendation has also been made for the conduct of interdepartmental enquiry between local police of the Police Station concerned and the Home Guard Department. It appears that despite the submission of such an enquiry report no final decision in the matter was taken.
It transpires that instead of concluding the enquiry, the Principal Secretary passed the order on March 17, 2020, observing that the Deputy Commandant General has not conducted a proper enquiry in the matter and his report was not credible. Interestingly, the disciplinary authority neither formulated points of disagreement with the enquiry officer nor granted any opportunity to the Petitioner to submit his reply on such issues of disagreement, the Court said.
The Court stated, “The charges against the Petitioner at best is with regard to irregularity in the assignment of duties of Home Guards in the Police Station, Vibhuti Khand district Lucknow. The attention of the Court has been invited to U.P. Home Guards Manual, 2015, which lays down the assignment of work to the District Commandant, Platoon Commandant, Block Organizer, etc. Clause 19 specifies the duties and responsibilities of the Platoon Commander and Block Organizer.
Submission with reference to the aforesaid provision that at best the Petitioner could be accused of supervisory lapses but he cannot be primarily held responsible for any error in allocation of duty to the Home Guard or for lack of supervision with regard to his working is liable to be accepted.
It is also not in dispute that neither any action has been taken against the Platoon Commandant/ Company Commander nor any proceedings have been initiated against the SHO concerned and the petitioner has been held responsible for the alleged lapses which were not even entrusted to him in the manual. Upon a pointed query raised, Chief Standing Counsel has not been able to disclose as to whether action has been taken against Platoon Commandant/ Company Commander or the SHO concerned.
In the facts of the case the Court finds that after the enquiry officer had exonerated the petitioner of the charges levelled against him, the Additional Chief Secretary of the department concerned kept the matter pending with him without taking any action. It appears that the direction issued by the Court to take appropriate action in the matter was not complied with, necessitating the filing of contempt.
The Chief Standing Counsel has laid much emphasis on the fact that the petitioner did not submit a reply to the supplementary charge sheet despite repeated opportunities granted to him. Though the argument appears to be attractive at the outset, it does not merit any consideration, if the facts are taken in their entirety. The supplementary charges were in respect of the charges which were already levelled against the petitioner in the main charge sheet. Petitioner had submitted a reply to it and the enquiry officer had accepted petitioner’s defence.
“It is admitted that the software for deployment of Home Guards has been developed by the NIC and the petitioner cannot be expected to be responsible if there was any flaw in the allocation of work as is alleged in the supplementary charge-sheet. In the event authorities found that there was a serious flaw in the deployment of Home Guards in the Police Station concerned, the least that was expected was that action would be initiated against the responsible officers i.e. Platoon Commandant and the SHO concerned and the petitioner could have been proceeded with only for supervisory lapses”, the Court said.
“The authorities, however, have fixed primary responsibility upon the petitioner for the alleged error in allocation of duties. This clearly is in the teeth of the Manual issued by the department itself. Once a course has been laid down for deployment of work to Home Guards by the Directorate, it is expected that the responsibility of the officers would be fixed only as per it and not at variance with it. The course that has been adopted by the respondents is absolutely contrary to the Manual and instead of taking action against the persons entrusted with the allocation of work the authority has fixed direct responsibility of the petitioner in the matter. This lends credence to the petitioner’s contention that the disciplinary authority felt aggrieved by the intervention made by this Court while issuing directions for concluding the proceedings and initiating contempt proceedings. The Court, however, refrains from making any further comments against the officer since he has not been arraigned as a party in a personal capacity and has also not been given an opportunity of hearing in the matter”, the order reads.
The Court observed that the procedure laid down for undertaking disciplinary action against the petitioner has not been followed and he has been held responsible for alleged lapses which under the Manual is specifically entrusted to other officers. The manner in which entire proceedings have been initiated against the petitioner and he has been dismissed from service smells of malice in law apparent on the face of the record.
The Court, therefore, cannot approve of the impugned action. This petition consequently succeeds and is allowed. Order dated November 6, 2020, passed by the disciplinary authority stands quashed. The petitioner shall be entitled to reinstatement in service and would also be entitled to all consequential benefits,” the Court ordered.