Allahabad High Court
Ashok Kumar vs State Of U.P. And Others on 1 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:227988
Court No. - 10
Case :- WRIT - A No. - 22314 of 2007
Petitioner :- Ashok Kumar
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Vijay Gautam
Counsel for Respondent :- C.S.C.
Hon'ble Kshitij Shailendra,J.
1. Heard Sri Devesh Mishra, Advocate, holding brief of Sri V.K. Mishra, learned counsel for petitioner, learned Standing Counsel for the State-respondents and perused the record.
2. The petitioner was posted as 'Constable' in G.R.P. and on the allegation that on 6.11.2005 while traveling by Train No. 3039/3040 - Janta Express, the petitioner demanded a sum of Rs. 250 from a passenger namely Anil Kumar Pandey and misbehaved with one Surendra Singh Yadav, General Secretary, Samajwadi Party, Kanpur, the petitioner has been awarded punishment in terms of "withholding of intergrity".
3. Learned counsel for the petitioner submits that punishment has been awarded only on the basis of preliminary inquiry conducted and the appeal and revision filed by him have also been illegally dismissed. It has also been argued that the impugned punishment is not provided under the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'the Rules, 1991) and, therefore, the orders impugned are not sustainable.
4. Learned counsel for the petitioner submits that the controversy of the power of disciplinary authority to impose a punishment not prescribed under the Rules is no more res integra. He submits that in the matter of Surendra Kumar Singh v. State of U.P. & Ors, 2013 (11) ADJ 346 followed by a concurrent bench of this Court in Writ - A No. 10597 of 2021, Rajiv Kumar Tomar v. State of U.P. & 2 Others decided on 26.08.2021 it has been held that a punishment that is not prescribed as such, cannot be imposed. The relevant paragraphs are reproduced hereunder:
"Learned counsels for parties are ad idem that the impugned order would not sustain in light of the decision rendered in Surendra Kumar Singh Vs. State of U.P. And Others [2013 (11) ADJ 346]. That decision was dealing with an issue of whether withholding of integrity was a punishment which was contemplated under the relevant rules. Dealing with the aforesaid issue, the learned Judge held thus:
6. It is not in dispute that disciplinary proceeding of a police officer of subordinate rank is now regulated by Rules, 1991, which have been framed in exercise of power conferred under Section 46(2) and (3) read with Sections 2 and 7 of Police Act, 1861 (hereinafter referred to as the "Act, 1861"). It thus also cannot be disputed that, if, as a result of disciplinary proceeding, a punishment is to be awarded, such punishment must be prescribed in Rules, 1991 and then only can validly be imposed upon a police officer of subordinate rank. The various kinds of punishments which can be imposed are prescribed in Rule 4. It is admitted between the parties that withholding of integrity is not one of the punishment prescribed in Rule 4 of Rules, 1991.
7. The question, whether a punishment, which is not prescribed in Rules, can be imposed, came to be considered by Apex Court in Vijay Singh (supra) and returning in negative, in para 11 thereof, the Court said:
"11. The issue involved herein is required to be examined from another angle also. Holding departmental proceedings and recording a finding of guilt against any delinquent and imposing the punishment for the same is a quasi-judicial function and not administrative one. (Vide: Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539; and Chairman-cum-Managing Director, Coal India Ltd. & Ors. v. Ananta Saha & Ors., (2011) 5 SCC 142).
Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules.
Thus, the order of punishment being outside the purview of the statutory rules is a nullity and cannot be enforced against the appellant."
.......
9. In view of above noticed overwhelming authorities, it leaves no scope for this Court but to hold the impugned order patently illegal and without jurisdiction, being a punishment, not prescribed in Rules.
10. However, before parting I would also like to notice the stand taken by respondents with respect to various Government orders dealing with the matter of "withholding of integrity".
11. In administrative matters an employee is supposed to be watched by superior officers regularly and his work and performance is annually assessed and put on record by superior officers every year, which process, normally is called as recording of Annual Character Roll or Annual Confidential Report (hereinafter referred to as the 'ACR'). The normal hierarchy for recording of ACR at initial level is the just superior officer termed as "Reporting Officer", who assess the work and performance of officer concerned and the aforesaid assessment recorded by "Reporting Officer" is subject to acceptance and review by "Accepting Authority", who is the next in hierarchy to the "Reporting Officer" and then to the another next officer in hierarchy called Reviewing Officer. In a very few matters the process of recording of ACR is two tier level consists of Reporting Officer and Accepting Officer. Besides, other traits, certification of integrity is one of the part, integrally connected, with the assessment of work, performance and conduct of officer concerned and, therefore, it is a regular feature of ACR. This aspect is fortified from the various Government orders referred to in the counter affidavit as noticed above, copies whereof have been filed collectively as Annexure-1 to the counter affidavit.
12. The Government Order dated 28.12.1959 would clearly demonstrate that initial certification of integrity has to be made by "Reporting Officer". The guidelines have been laid down in para 2 for the benefit of Reporting Officer as to how he should deal with the matter of certification of integrity of subordinate officers in respect of whose work and performance he has to record ACR. The consequence of non-certification of integrity or withholding of integrity is provided in para 5. It says that the officer concerned shall stand held up at the stage of crossing of efficiency bar or even his annual increment would stand deferred until he gets integrity certified again.
13. In the Government Order dated 07.10.1966 one of the important aspect stated in para 3 is that the certification of integrity when denied by Reporting Officer, such Government servant should be posted elsewhere and should not be continued under/with the same Reporting Officer.
14. The next Government Order dated 03.07.1979 clarify that withholding of integrity being part of ACR would relate back to the year for which it was to be certified and for different year it has to be dealt with separately, without being influenced by previous year.
15. The Government Order dated 15.12.1980 only gives few illustrations for the guidance of officers telling them the manner in which they should record their views regarding certification of integrity of a subordinate officer.
16. The Government Orders dated 16.05.1981 and 21.12.1993 only reiterate that in cases where conduct of Government servant is suspicious or under inquiry, it should be closely watched and in case of inquiry, this fact should be mentioned and certification of integrity should be deferred till inquiry is concluded.
17. These Government orders, therefore, only deal with the manner of certification/withholding of integrity in ACR but by no means upgrade "withholding of integrity" to the status or extent of punishment, minor or major, as the case may be. It leaves no doubt that whenever the question of punishment would arise as a result of disciplinary proceeding, the competent authority will have to look into and abide to the relevant rules prescribing punishment and cannot invent/ discover a new punishment by itself which has not been prescribed in the statute by rule framing authority. The reference to aforesaid Government orders, therefore, in the context of present case, is wholly misconceived and it appears that either the respondents do not understand the nature of certification of integrity or have no idea of difference between a punishment and recording of ACR. The defence taken by respondents, therefore, is wholly out of context and does not them.
18. In view of above, the writ petition is allowed. The impugned order dated 14.03.2011 is hereby quashed. However, this order shall not preclude the disciplinary authority from passing any fresh order in accordance with law after giving due opportunity of hearing to all concerned parties.
In view of the aforesaid, writ petition is allowed. The impugned order dated 21 October 2019 is hereby quashed. The petitioner shall be entitled to all consequential reliefs."
(emphasis added)
5. Upon perusal of Rule 4 of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 only following punishments have been prescribed as major punishment and minor punishment:-
"4. PUNISHMENT - (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon Police Officer, namely --
a) Major Penalties ---
(i) Dismissal from service.
(ii) Removal from service.
(iii) Reduction in rank including reduction to a lower - scale or to a lower stage in a time scale.
(b) Minor penalties:
(i) Withholding of promotion
(ii) Fine not exceeding one months pay.
(iii) Withholding of increment, including stoppage at an efficiency bar.
(iv) Censure.
(2) In addition to the punishments mentioned in sub-rule (1) Head Constable and Constables may also be inflicted with the following punishments --
(i) Confirnement to quarters (this term includes confinement to Quarter Guard for a term not exceeding fifteen days extra guard or other dyty).
(ii) Punishment Drill not exceeding fifteen days.
(iii) Extra guard duty not exceeding seven days.
(iv) Deprivation of good conduct pay.
(3) In addition to the punishments mentioned in sub rules (1) and (2) Constables may also be punished with Fatigue duty, which shall be restricted to the following tasks.:
(i) Tent pitching;
(ii) Drain digging;
(iii) Cutting grass, cleaning jungle and picking stones from parade grounds;
(iv) Repairing huts and butts and similar work in the lines;
(v) Cleaning Arms."
6. In support of his submission, he has also placed reliance upon judgments of this Court, which are as follows:
"Dinesh Kumar Vs. State of U.P. & others 2013(11) ADJ 346, Civil Misc. Writ Petition No. 13408 of 2022, decided on 15.9.2022 and Surendra Kumar Singh Vs. State of U.P. & others 2013(2) ADJ 80 (Para 8)"
7. Learned Standing Counsel, on the other hand, submits that lawful procedure was held under the Rules of 1991 and after due compliance of the procedure of law, punishment of "withholding of integrity" has been awarded to the petitioner. He further submits that the petitioner has committed a serious misconduct and, therefore, no interference is warranted.
8. Having heard learned counsel for the parties, the Court finds that the authorities are fully competent to hold disciplinary proceedings and award any of the punishments categorized as major or minor, as provided under the Rules, 1991, however, a punishment which is not mentioned in the Rules, 1991 cannot be awarded, as already discussed in the authorities referred to hereinabove.
9. "Withholding of integrity", having no place, either as a minor punishment or major punishment, the Court finds that the orders impugned are unsustainable and have been passed in teeth of the decisions referred to hereinabove.
10. Accordingly, the writ petition succeeds and is allowed.
11. The impugned orders dated 28.12.2005, 30.4.2006 and 28.2.2007 passed by respondent no.4 - The Senior Superintendent of Police, Railways, Allahabad Division, Allahabad, respondent no.3 - The Deputy Inspector General of Police, Railways, Allahabad, respondent no.2 - The Inspector General of Police, Railways, Allahabad respectively are, hereby, set aside.
13. In view of the above, the Disciplinary Authority is at liberty to pass fresh orders in accordance with law, provided a certified copy of this order is produced before the concerned respondent in the month of December, 2023.
14. All consequential benefits, if any, shall be subject to the fresh order to be passed by the concerned Authority.
Order Date :- 1.12.2023
CS/-
