State Of U.P. Thru. Addl. Chief ... vs Ram Khelawan And Another
2022 Latest Caselaw 21913 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- WRIT - A No. - 8681 of 2022
 

 
Petitioner :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And 3 Others
 
Respondent :- Ram Khelawan And Another
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- Shikhar Anand
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Saurabh Lavania,J.

Heard Sri Nishant Shukla, learned Standing counsel for the State-petitioners and perused the record available before us.

By means of the present writ petition, State-petitioners have challenged the order dated 10.12.2021 passed by U.P. State Public Service Tribunal, Lucknow (in short "Tribunal") in Claim Petition No. 373 of 2020 (Ram Khelawan vs. State of U.P. and 3 Others).

Brief facts of the case are as under:-

Before the Tribunal claimant-respondent No.1-Ram Khelawan challenged the order of punishment dated 27.11.2017 whereby the claimant-respondent No.1-Ram Khelawan was awarded the punishment of "censure entry" and the order passed by the Appellate Authority dated 09.08.2018 and also the order passed by the Revisional Authority dated 18.11.2019.

The order dated 27.11.2017, as per the case of the petitioners-State, was passed after providing opportunity of hearing as provided under Rule 14(2) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (in short "Rules of 1991"). In other words, a show cause notice dated 13.12.2016 was issued under Rule 14(2) of the Rules of 1991, which relates to inflicting minor punishment to the Police Officers covered under the Rules, to which, the reply dated 28.01.2017 was submitted by the claimant-respondent No.1-Ram Khelawan and after considering the same, the Senior Superintendent of Police, Lucknow passed the order of punishment dated 27.11.2017 awarding the minor punishment of censure entry and thereafter, the Appellate Authority i.e. Inspector General of Police, Lucknow Region, Lucknow and Revisional Authority i.e. Additional Director General of Police, Lucknow Zone, Lucknow, after considering the entire material available on record rejected the appeal and revision of the claimant-respondent No.1-Ram Khelawan vide order(s) dated 09.08.2018 and 18.11.2019, respectively.

While assailing the order impugned dated 10.12.2021 in the present petition, learned Standing Counsel-Sri Nishant Shukla has stated that the Tribunal interfered with in the order of punishment dated 27.11.2017 and the order(s) passed by the Appellate Authority and Revisional Authority dated 09.08.2018 and 18.11.2019, respectively primarily on the ground that the order of punishment dated 27.11.2017 was not speaking and reasoned and the same was affirmed by the Appellate and Revisional Authority provided under the Rules of 1991, as such, the opportunity ought to have been provided to the State for making inquiry afresh or to proceed in the matter from the stage fromwhere the irregularity was found by the Tribunal. In this regard, he has placed reliance on the judgment passed by the Hon'ble Apex Court in the case of Chairman, LIC of India and others Vs. A. Masilamani; reported in 2013 (32) LCD 30: (2013) 6 SCC 530. The relevant portion of the same is as under:-

"15.1. When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds i.e. non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide opportunity to the disciplinary authority to take up and complete the proceedings from the point that they stood vitiated; and

15.2. If the answer to Question 1 is that such fresh opportunity should be given, then whether the same may be denied on the ground of delay in initiation, or in conclusion of the said disciplinary proceedings.

"16. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: Managing Director, ECIL, Hyderabad etc.etc. v. B. Karunakar etc.etc. AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls & Ors., (2002) 10 SCC 293; U.P. State Spinning C. Ltd. v. R.S. Pandey & Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex- Inspector AIR 2009 SC 161).

17. The second question involved herein, is also no longer res integra. Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.

18. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion (Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250)".

Case of the respondent-claimant is that to the show cause notice dated 13.12.2016 claimant-respondent No.1 had submitted his reply, wherein he indicated that the delay occurred in concluding the investigation of 5 cases out of 8 cases i.e. Case Crime Nos. 712 of 2013, 526 of 2013, 427 of 2013, 994 of 2013, 750 of 2014, 791 of 2014, 801 of 2014 and 858 of 2014, was not willful rather it was on account of his engagement in maintaining the law and order situation in the area concerned and while passing the impugned order, the facts indicated in the reply were not taken into account and a perusal of the order of punishment dated 27.11.2017 would show that to reject the plea taken in the reply by the claimant-respondent No.1, the authority concerned had not recorded any reason and in the same tune the Appellate and Revisional Authorities passed the orders dated 09.08.2018 and 18.11.2019, respectively.

It is also the case of the respondent that the preliminary inquiry report was also considered by the Appellate and Revisional Authority while rejecting the orders dated 09.08.2018 and 18.11.2019, respectively. However, a perusal of the show cause notice dated 13.12.2016 would show that the copy of the preliminary inquiry report was not provided, which was required in view of Rules of 1991 as also based upon the principles of natural justice. Case of the respondent-claimant is further that considering the facts and circumstances of the case, the Tribunal interfered in the order imposing minor punishment of "censure entry". The punishment of "censure entry" is a minor punishment, as such, there is no requirement to send the matter back to the Disciplinary Authority to pass order afresh.

Case set up by the respondent further is that the Authority/Court before whom the order of punishment is in issue, can see such order on merits and that remanding the matter to pass the order afresh, if the order of punishment is vitiated on account of non-following the procedure prescribed under the relevant rules/regulation or for non-observance of principles of natural justice, depends upon the gravity of charges/delinquency involved, evidence in support of charges and magnitude of misconduct and in the present case the punishment imposed is "minor" and accordingly remand is not required and being so, the order impugned dated 10.12.2021 is not liable to be interfered with. It is also the case of the respondent that all the cases relied upon by the counsel for the petitioner relate to "major" punishment and this case relates to "minor" punishment and for this reason also the order impugned, dated 10.12.2021 of Tribunal is not liable to be interfered with.

Considered the submissions made by learned State counsel and perused the records available before us.

We may note that considering the "minor" punishment, a Division Bench of this Court in its judgment in Writ Petition No. 673 (S/B) of 2015 (State of U.P. Vs. Subodh Ranjan Saxena) decided on 07.10.2017 declined to interfere in the order of Tribunal not accepting the ground that the Tribunal ought to have remanded the matter back to the Disciplinary Authority to hold the inquiry afresh and pass appropriate orders thereafter. Reference may also be made to the judgment passed in Writ Petition No. 34093 (S/B) of 2018 (State of U.P. Vs. Deepak Kumar), dated 28.11.2018, wherein this Court after considering the judgment of the Hon'ble Apex Court passed in A.Masilamani (supra), observed as under:-

"A conjoin reading of above quoted paras of the judgment of the Hon'ble Apex Court, it appears that if an authority/Court set asides the order of punishment on technical ground then the matter should be remanded to the punishing authority and employee should not be reinstated and whether or not the disciplinary authority should be given an opportunity to complete the enquiry afresh depends upon the gravity of delinquency involved and thus, for coming to the conclusion the authority/Court concerned must take into consideration all the relevant aspects and facts of the case including the chargesand magnitude of misconduct alleged and examine the same."

The position which emerges from the material available on record is that the reply to the show cause notice dated 13.12.2016 was duly submitted by the claimant-respondent No.1 vide his letter dated 28.01.2017, however, the plea indicated therein was not rejected by the Disciplinary Authority by passing reasoned and speaking order. The preliminary inquiry report, which was considered by the Appellate and Revisional Authority, as appears from the order passed by these Authorities dated 09.08.2018 and 18.11.2019, respectively, was not provided to the claimant-respondent No.1, which is evident from the show cause notice itself. Thus, this Court is of the view that the Tribunal rightly interfered in the impugned order.

So far as the submission of the learned counsel for the petitioners to the effect that the matter ought to have been remanded to the Disciplinary Authority is concerned, this Court after considering the facts and circumstances of the case particularly the magnitude of the alleged misconduct, the punishment i.e. censure entry, which is minor punishment awarded to the claimant-respondent No.1 vide order dated 27.11.2017 passed by Disciplinary Authority as also the period elapsed since the date of institution of disciplinary proceedings against the claimant-respondent No.1-Ram Khelawan vide show cause notice dated 13.12.2016 i.e. about six years, is not inclined to interfere with the order of the Tribunal dated 10.12.2021 while exercising our jurisdiction of judicial review under Article 226 of the Constitution of India.

For the foregoing reasons, the writ petition is dismissed.

Costs made easy.

Order Date :- 20.12.2022

Vinay/-