Constable Manoj Kumar vs Union Of India And 4 Others
2023 Latest Caselaw 9578 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 39
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 112 of 2023
 

 
Appellant :- Constable Manoj Kumar
 
Respondent :- Union Of India And 4 Others
 
Counsel for Appellant :- Santosh Kumar Kesarwani
 
Counsel for Respondent :- A.S.G.I.,Himkanya Srivastava
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Budhwar,J.

Order on Delay Condonation Application No.1 of 2023:-

There is a delay of 143 days in filing the appeal.

Ms. Himkanya Srivastava, learned counsel for the respondent submits that she has no objection to the delay condonation application.

The explanation offered for delay in filing the appeal is to the satisfaction of the Court.

The delay condonation application is allowed. Delay condoned.

Office shall allot regular number to the appeal.

Order on Appeal:-

To assail the reasoning given by the learned Single Judge that no case is made out for interference within the limited power of judicial review as two witnesses out of twelve witnesses had supported the guilt of the writ petitioner/appellant herein, the reliance has been placed on the decision of the Apex Court in Munna Lal vs. Union of India; 2010 (15) SCC 399 to assert that as no medical examination had been done on the date of the incident i.e. on 25.11.2003 to ascertain by best evidence as to whether he was in influence of liquor, the oral evidence of two witnesses against the writ petitioner/appellant herein would only be of an act of presumption based on suspicion. The submission, thus, is that an element of doubt is created for not putting the writ petitioner to medical examination when he himself was available in the Court, carrying dead persons, whose death had occurred during the course of the incident.

We may note that the presence of the writ petitioner/appellant herein on the spot i.e. on duty and the occurrence of the incident on 25.11.2003 is not disputed. During the course of the departmental inquiry, sufficient opportunity of cross-examination of two witnesses, who deposed against the writ petitioner, had been given. The conclusion of the inquiry officer as well as the disciplinary authority is based on the appreciation of evidence against the writ petitioner which includes the answer given by the witnesses during their cross-examination.

As rightly held by the learned Single Judge, re-appreciation of evidence within the scope of judicial review under Article 226 of the Constitution of India, is not possible as this Court cannot substitute its view from that of the disciplinary authority like an Appellate Authority, even if it reaches at a different conclusion.

For the aforesaid, the arguments of the learned counsel for the appellant to assail the correctness of the judgment and order dated 25.08.2022 passed by the Writ Court, out of which the present intra-Court appeal arises, cannot be appreciated.

The appeal is, accordingly, dismissed being devoid of merits.

Order Date :- 3.4.2023

P Kesari