New Delhi: The Allahabad High Court has come to the rescue of a deputy superintendent of police (DSP) in Uttar Pradesh, who was suspended twice since 2016 and has had to flit between the UP State Public Service Tribunal and the court to get the orders reversed.
Setting aside a charge sheet and the UP government’s disciplinary proceedings against DSP Abhishek Yadav, Justice Ajit Kumar found this to be “a glaring case of exercise of administrative discretion to be vitiated for malice in law”. The judgment was passed in October but uploaded on the high court website last week.
In his petition, Yadav had challenged the departmental proceedings against him and had also demanded that he be promoted to the rank of additional superintendent of police with effect from 13 January this year.
The officer was suspended on 3 April this year, when a charge sheet was issued against him. However, he was reinstated on 11 August, after the government revoked his suspension order.
It all began in 2016, when Yadav was an investigating officer in a case filed under sections 342 (wrongful confinement) and 376D (gangrape) of the Indian Penal Code, along with provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. He filed a closure report in the case in September 2016, but the deputy director general of police, Moradabad Region, gave directions for a fresh investigation by another officer.
This second probe led to the filing of the charge sheet in the case in November 2016, with the finding that the evidence was cogent and convincing. Trial began in the case in 2017, but finally resulted in acquittal in August 2021. The trial court specifically found that the prosecution failed to establish the commission of the crime.
While the state government initiated departmental proceedings alleging carelessness, the high court now asserted that since the trial court had acquitted the accused in the case in which Yadav had filed the closure report, he cannot now be held guilty of faulty investigation.
The high court went on to say that it does not find “any good ground” to sustain the chargesheet and the disciplinary proceedings against Yadav. It also directed the state authorities to consider Yadav’s claim for promotion by “opening the sealed cover and accord him due promotion in accordance with (the) law”.
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The penalty
Yadav was first issued a show cause notice in March 2018, asking him to explain why he shouldn’t be given an adverse entry of ‘censure’ for casually conducting the investigation when another investigating officer could submit a charge sheet in the case.
The notice alleged that while Yadav had seized the dress that was worn by the victim during investigation, he did not send it to the Forensic Science Laboratory for examination. The state also alleged that Yadav did not make the call detail records (CDRs) a part of the probe despite having received them. In July 2018, he was given an adverse entry of censure.
Yadav challenged the censure before the UP State Public Service Tribunal, Lucknow, which ruled that the disciplinary authority should have considered Yadav’s response to the notice. However, at the same time, the tribunal allowed the state government to proceed against him afresh, after receiving the representation by him.
In response, the state government issued a fresh show cause notice to Yadav in July 2019, without passing any order to initiate proceedings for a major penalty. The UP Government Servant (Discipline and Appeal) Rules 1999, under which Yadav was being proceeded against, provides for two types of penalties — major and minor. Minor penalties include censure, withholding increments, and fine, while major penalties include demotion, removal for service, and dismissal.
In the meantime, the Departmental Promotion Committee was organised to consider the promotion of the officers of Yadav’s batch. However, it kept its decision in a sealed cover in Yadav’s case. On 3 November 2022, Yadav was suspended in contemplation of an inquiry for a major penalty.
The rules allow for such a suspension against a government servant against whom an inquiry is contemplated until the inquiry is concluded. However, the provision adds that suspension should not be resorted to unless the allegations against the government servant are so serious that if the allegations are found to be true, it would attract a major penalty. This order was passed after the trial court had already acquitted the accused in the trial.
Yadav, therefore, filed a petition in the high court last year, challenging his suspension. The high court set aside the suspension order in December last year and asserted that the allegations were not serious enough to warrant a major penalty.
However, since the high court did not look into the charge sheet prepared against Yadav, the state government went on to file the charge sheet against him and also suspended him on 3 April this year. This new charge sheet had the same allegations against Yadav, as in the March 2018 notice.
Yadav once again challenged the government’s orders and the charge sheet before the high court in August this year. He was represented by senior advocate Anup Trivedi, assisted by advocates Vibhu Rai and Abhinav Gaur.
‘A case of malice’
Ruling in Yadav’s favour, the high court pointed out that the only charge against Yadav in the show cause notice issued to him is that he “showed his carelessness, passive and indifferent approach in conducting investigation” in the case.
The court noted that the allegation in the initial 2018 show cause notice remained the same in the new notice as well, but the authorities now wanted to initiate a departmental inquiry for a major penalty instead of a minor penalty.
“The Court does not find this discretion in any manner to be the logical one which can be conceived by any stretch of imagination in the given facts and circumstances of the case. No one can perceive the same charge to have acquired a higher degree of gravity with passage of time,” the court observed.
It found that “it is apparent to be a case of malice in law as the exercise of discretion has been malicious one for no justifiable reasons which can be said to be judicious one”.
(Edited by Uttara Ramaswamy)
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