Bhanu Pratap Singh Yadav vs State Of Up And 4 Others
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Allahabad High Court

Bhanu Pratap Singh Yadav vs State Of Up And 4 Others on 2 May, 2024

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:78414-DB
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 443 of 2024
 

 
Appellant :- Bhanu Pratap Singh Yadav
 
Respondent :- State Of Up And 4 Others
 
Counsel for Appellant :- Atipriya Gautam,Devesh Mishra,Madhaw Pandey,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Vijay Gautam, learned Senior Advocate assisted by learned counsel for the appellant-petitioner and Sri Fuzail Ahmad Ansari, learned standing counsel for the State-respondents.

2. The present intra-court appeal is preferred questioning the validity of the impugned judgment and order dated 04.04.2024 in Writ-A No.4148 of 2024 (Bhanu Pratap Singh Yadav vs. State of U.P. and 4 others) passed by learned Single Judge, who has dismissed the writ petition on the ground of statutory alternative remedy of appeal under Rule, 20 of the U.P. Police Officers of the Sub-ordinate Ranks Punishment and Appeal Rules, 1991 (in short 'the Rules, 1991'). The said writ petition was preferred challenging the Removal from Service Order dated 25.02.2024 passed by the fourth respondent, who had awarded the punishment of major penalty to the petitioner, i.e. removal from his services under Rule 4(1)(a)(ii) of the Rules, 1991. It transpires from the record that the appellant-petitioner has also questioned the said Removal from Service Order dated 25.02.2024.

3. Sri Vijay Gautam, learned senior advocate states that the controversy in hand is no more res-integra and in support of his submissions, he has placed reliance upon the judgment passed by the Division Bench in Service Bench No.314 of 2010 (Mohd. Haneef Khan vs. State of U.P.), decided on 03.04.2017 wherein the Division Bench had considered the manifest illegality which had been committed by an Inquiry Officer recommending punishment of dismissal by looking into past record of claimant-petitioner on its own, which was not a charge. The Division Bench has considered the Appendix-I read with Rule 14(1) of Rules, 1991 and relied upon the judgment passed by the Uttarkhand High Court in State of Uttranchal and others Vs. Kharak Singh, 2008(8) SCC 236, wherein, it was held that if in inquiry report, punishment is also recommended by Inquiry Officer, it is a grave illegality for the reason that appropriate punishment is the exclusive jurisdiction of punishing or disciplinary authority and Inquiry Officer's only job is to enquire, whether charge levelled against delinquent employee is proved or not. The Division Bench, in the light of the judgment of Kharak Singh (supra), had allowed the writ petition by judgment and order dated 03.04.2017, relevant portion of which is extracted below:

"12. Second, it is submitted that manifest illegality committed by Inquiry Officer in recommending punishment of dismissal in its inquiry report itself and that too by looking into past record of petitioner, which was not a charge. In this regard he referred to Appendix I read with Rule 14(1) of "U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991" (hereinafter referred to as the "Rules, 1991"). Aforesaid provision permits Inquiry Officer to make his recommendation regarding punishment. It reads as under:

"APPENDIX-I

PROCEDURE RELATING TO THE CONDUCT OF DEPARTMENTAL PROCEEDINGS AGAINST POLICE OFFICER

Upon institution of a formal enquiry such police officer against whom the enquiry has been instituted shall be informed in writing of the grounds on which it is proposed to take action and shall be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be used in the form of a definite charge or charges as in Form I appended to these Rules which shall be communicated to the charged police officer and which shall be so clear and precise as to give sufficient indication to the charged police officer of the facts and circumstances against whim. he shall be required, within a reasonable time, to put in, in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the Inquiry Officer so directs an oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded as the Inquiry Officer considers necessary. The charged police officer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish:

Provided that the Inquiry Officer may for sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged police officer."

13. This aspect has already considered in State of Uttranchal and others Vs. Kharak Singh, 2008(8) SCC 236 and Court has held, if in inquiry report, punishment is also recommended by Inquiry Officer, it is a grave illegality for the reason that appropriate punishment is the exclusive jurisdiction of punishing or disciplinary authority and Inquiry Officer's only job is to enquire, whether charge levelled against delinquent employee is proved or not.

14. In the present case rules permit Inquiry Officer to make its own recommendation regarding punishment but separately and not as part of inquiry report. In the entirety of facts and circumstances of the case, impugned punishment order as well as judgment passed by Tribunal cannot sustain.

15. In the result, writ petition is allowed. Impugned judgment and order dated 28.01.2010 passed by Tribunal; dismissal order dated 18.05.1998, appellate order dated 28.12.1998 and revisional order dated 21.05.1999 are hereby quashed. Petitioner shall be entitled for all consequential benefits."

4. Sri Vijay Gautam, learned senior advocate has also placed reliance upon judgment passed by learned Single Judge in Writ A No.39792 of 2012, decided on 08.02.2019, wherein, learned Single judge has also opined that the punishment imposed upon the petitioner on the basis of a direction issued by the Inquiry Officer to dismiss the services of the petitioner, was in gross violation of principles of natural justice and the aspects of proportionality of punishment also does not appear to have been examined in correct perspective. In this backdrop, learned senior advocate vehemently submits that the Court has considered the Appendix-I read with Rule 14(1) of the Rules, 1991, which permits the inquiry officer to make his recommendation regarding punishment to be imposed on the charged police officer but the same is to be made separately. He submits in this backdrop that in the writ petition, petitioner had taken a categorical ground that under Rule 14(1) of the Rules, 1991, the inquiry officer could make a recommendation regarding the punishment but it had to be separate recommendation and also should not be part of the inquiry report. He submits that the learned Single Judge has erred in law and despite the petitioner's plea regarding the separate recommendation of punishment under Rule 14(1) being disregarded, the petition was dismissed on the grounds of alternative statutory remedies. Accordingly, the order impugned dated 04.04.2024 passed by the learned Single Judge and the order dated 25.02.2024 passed by the fourth respondent cannot be sustained in view of settled proposition of law.

5. Sri Fuzail Ahmad Ansari, learned standing counsel for the State-respondents submits that as the Rules, 1991 provide for procedure for an appeal and revision, the learned Single Judge has rightly relegated the matter to the appellate/revisional authority. Even aforesaid discrepancy of not recommending punishment separately by inquiry officer can also be addressed by pressing appropriate relief before appellate authority/ revisional authority. He submits that in view of the categorical provision in the Rules, 1991, learned Single Judge has rightly relegated the matter to the appellate authority and no interference is required.

6. In rejoinder, Sri Vijay Gautam, learned senior advocate states that once it is brought into the notice of the competent court regarding procedural lapse by the disciplinary authority, in such situation, the matter is not to be relegated to the appellate/ revisional authority and in support of his submissions he has placed reliance upon judgments in M/s Godrej Sara Lee Ltd., Vs. The excise & Taxation Officer -cum-Assessing Authority and others, Reported in 2023 SCC On-Line SC 95 (Paras 4,5,6,7 & 8), M/s Radha Krishan Industries Vs. State of Himanchal Pradesh and others, decided on 20/04/2021, reported in (2021) 6 SCC 771, (Paras 24,25,26 & 27), Special Appeal No. 228 of 2023 Dr. Ram Manohar Lohiya Institute of Medical Sciences, LKO, Through Director and others Vs. Dr. Charu Mahajan and others decided on 15/05/2023 (Paras 23,24,25,26,27,28,37 & 38), M/s Magadh Sugar & Energy Ltd., Vs. State of Bihar and others Civil Appeal No. 5728 of 2021, Decided on 24/09/2021 (Paras 19,20,21, 22, 23, 24 & 25), Committee of Management and another Vs. Vice-Chancellor and others, Reported in (2009) 2 SCC 630, Avatar Singh Chhabra Vs. State of UP and others, Reported in 2006(3) A.L.J. Page 355 (DB) and Pradeep Kumar Singh Vs. UP State Sugar Corporation and another, Reported in 2002 (1) UPLBEC Page 705.

7. Considering the facts and circumstances of the case, we are in respectful agreement with the Division Bench judgment passed in Service Bench No.314 of 2010 (Mohd. Haneef Khan vs. State of U.P.), decided on 03.04.2017, and accordingly, the special appeal stands allowed. The judgment and order dated 04.04.2024 passed by learned Single Judge and Removal from Service Order dated 25.02.2024 passed by the fourth respondent are set aside and the matter stands remitted to the Disciplinary Authority for afresh examination of cause, in the light of the observation made above, within a period of two months, from the date of presentation of a certified copy of this order. The question of grant of back-wages or other service benefits would abide by the fresh orders to be passed by the authority concerned, as directed above.

Order Date :- 2.5.2024

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