Allahabad High Court
Kunwar Brahma Prakash Singh vs State Of U.P. Thru. Addl. Chief Secy. ... on 8 January, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:1299
Court No. - 6
Case :- WRIT - A No. - 6768 of 2024
Petitioner :- Kunwar Brahma Prakash Singh
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko And 4 Others
Counsel for Petitioner :- Anand Prakash Singh
Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya)
Hon'ble Alok Mathur, J.
1. Heard Sri Anand Prakash Singh, learned counsel for the petitioner, learned Standing counsel for respondent No.s 1 to 4 and Sri R. K. Upadhyaya, who has appeared on behalf of respondent No.5.
2. The petitioner, who is a police officer, has approached this Court assailing the punishment order dated 15.7.2024 passed by Superintendent of Police, Ambedkar Nagar as well as rejection of his appeal by the Inspector General of Police, Ayodhya Region, Ayodhya vide order dated 13.8.2024 and has also sought a writ of mandamus to restrain the respondents from giving effect to the aforesaid orders and also to promote the petitioner on the post of Deputy Superintendent of Police with effect from 2.6.2023 from the date his juniors were promoted.
3. The facts in brief leading to the present writ petition are that in 2012 when the petitioner was posted as Sub Inspector in Police Station Tanda, District Ambedkar Nagar, he was entrusted with the task of investigation of case crime No.59 of 2012 under Sections 363 and 366 IPC. The investigation was done on 28.7.2012 and one parcha no.11 was made on 7.8.2012 wherein the statement of one of the witnesses, namely, Mangroo was recorded by the petitioner. After the investigation the charge sheet was filed against the accused and the trial took place. During the trial it was found that the said witness Mangroo had, in fact, died on 24.2.2012 nearly five and half months prior to the date of alleged recording of his statement under Section 161 of Cr.P.C. and consequently statement recorded by the petitioner, who was the instigating officer, was false and fabricated. This fact was duly noticed by the trial court in its judgment and order acquitting the accused. The said observation and strictures passed by the trial court were duly considered by Additional Superintendent of Police, Ambedkar Nagar and he found that the matter was serious where purportedly false statement has been recorded of a person who had died prior to recording of the said statement. It is in aforesaid circumstances that the censure entry was made to the petitioner on 12.6.2023 and was confirmed on 24.6.2023.
4. The petitioner, being aggrieved by the order dated 24.6.2023, had approached this Court by filing writ A No.6511 of 2023 which was allowed by this Court by means of order dated 18.2.2023. After noticing that proper opportunity of hearing was not given to the petitioner prior to passing of the said punishment order and also noticing that the petitioner had not even tendered his reply to the show cause notice and the respondents had proceeded to pass order of punishment this Court while allowing the writ petition had set aside the order of punishment and remanded the matter back to the authorities for proceedings afresh against the petitioner after giving him proper opportunity of hearing. It is on the directions of this court that fresh proceedings were initiated and notices were issued to the petitioner.
5. The petitioner had duly replied to the notice and stated that the person whose statement was recorded by him was identified by the local persons. In his defence he has stated that though he did not know the person namely Mangroo from previously but had recorded the statement after duly verifying his identity and accordingly prayed for dropping the proceedings against him. The inquiry officer as well as the disciplinary authority duly noticed the fact that the said person, namely, Mangroo, died on 24.2.2012 while the purported statement was recorded by the petitioner after five and half months on 7.8.2012. They also noticed that such an error of the petitioner is not condonable as he being an investigating officer is vested with much great duty to conduct free and fair investigation, while the petitioner proceeded to record the statement of any person without verifying the identity and antecedents. In the aforesaid circumstances they proceed to record censure entry against the petitioner.
6. The petitioner had also filed an appeal before the appellate authority which has also been rejected by means of order dated 13.8.2024.
7. In the present case, it has been argued on behalf of the petitioner that the respondents could not have initiated a disciplinary proceedings with regard to an incident which had occurred in 2012 and the charges are stale and accordingly the entire disciplinary proceedings deserves to be set aside.
8. We have duly considered the arguments raised by learned counsel for parties in this regard and we do not find any merit in the same for the following reasons:-
(i) Firstly, the aspect with regard to the manner in which the statement of the witness was recorded by the petitioner came to the knowledge of the police authorities only after the accused were acquitted by the judgment and order of the trial court dated 1.4.2023. This fact was not in the knowledge of the police authorities at any time prior to the judgment of the trial court and when they came to know of the aforesaid fact they initiated disciplinary proceedings against the petitioner. Even though the charge relates to 2012 but it came to knowledge of the respondents only on 1st April, 2024 and immediately thereafter they proceeded to inquire into the same and initiated the disciplinary proceedings against the petitioner. Accordingly, we do not find that there was any delay on part of the respondents to initiate the disciplinary proceedings as the relevant date would be when the judgment of the trial court was brought to the knowledge of the disciplinary authority and accordingly we are not impressed by the argument of learned counsel for the petitioner which is rejected.
(ii) The second ground for not accepting the contention of the petitioner is that when he challenged the censure entry dated 24.6.2023 before this Court in the first instance this ground was never raised by him and consequently the said aspect would be deemed to have been given up though it was open for the petitioner to take that plea afresh while assailing the order of censure entry when he had approached this Court by fling writ petition against the grant of censure entry on 24.6.2023. It seems that the said order was challenged only on the ground of violation of principles of nature justice and no such ground was raised by him. Accordingly, once he has omitted to assail the impugned order on the said ground, he cannot be permitted to raise the same consequently and even otherwise we do not find any force in the submission of the petitioner in this regard which are rejected.
9. Apart from the above, we find that due opportunity was given to the petitioner at all the stages and the jurisdiction of this Court in exercise of the powers under Article 226 of the Constitution while reviewing an administrative order is limited only to the decision making process and not to the decision itself. We find that in the disciplinary proceedings initiated by the respondents, as per the directions of this Court dated 18.10.2023, they have given due opportunity of hearing to the petitioner who had submitted his reply which was duly considered and even the disciplinary authority has passed a reasoned and speaking order considering all the grounds raised by the petitioner. As such, we do not find any merit in the writ petition challenging the censure entry made against the petitioner. Accordingly, the arguments of learned counsel for the petitioner are rejected.
10. Lastly, considering the prayer made by the petitioner with regard to consideration of his promotion without considering the censure entry, it has been submitted that even if the said entry is deemed to be on record, the same shall relate back to the year 2012 to which period the allegations pertain. In this regard he has placed before this Court the judgment and order of Division Bench of this Court in the case of State of U.P. and another Vs. Pramod Kumar Tewari and another, passed in Writ A No.1766 of 2023 where it was observed by the Division Bench as under:-
"13. Now, we examine the provisions as relied upon by the learned counsel representing the State authorities-petitioners contained in the Government Order dated 25.03.1994. Learned State Counsel has relied upon Para 5 (4) and Para 6 of the said Government Order, which are quoted hereunder:
5- of.kZr ifjfLFkfr;ksa esa iz'uxr ekeys esa eq>s fuEufyf[kr fLFkfr dks Li"V djus o 'kkldh; fu.kZ; ls vkidks voxr djkus dk निर्देश gqvk gS&
¼4½ izR;sd vfu;ferrk ds lEcU/k esa pkgs os fdlh iwoZ o"kZ dh gks] tks Hkh n.Mkns'k fuxZr fd;k tk;sxk] mldk rkRdkfy'k izHkko gksxk rFkk n.Mkns'k fuxZr gksus ds fnukad ls lEcfU/kr o"kZ dh okf"kZd izfof"V ds lkFk mls j[kk tk;sxkA
6- vuqjks/k gS fd lUnHkZxr 'kklukns'k fnukad 30 twu] 1993 esa fu/kkZfjr lkekU; ekxZn'kZd fl)kUrksa dks mijksDr izLrj&5 ds lkFk i<+k tk; o mudk d`i;k lHkh Lrjksa ij dM+kbZ ls vuqikyu lqfuf'pr fd;k tk;A
14. Paragraph 5 (4) of the Government Order dated 25.03.1994 as afore-quoted provides that any punishment order issued will be effective with immediate effect even if it is issued in respect of some irregularity committed at a prior point in time. It further provides that such punishment order shall be kept in the character roll of the employee concerned in the year in which it is awarded. Paragraph 6 states that the Government Order dated 30.06.1993 shall be read in conjunction which para 5 of the Government Order dated 30.06.1993.
15. If we compare Paragraph 5 (4) available in the Government Order dated 25.03.1994 and Paragraph 2 (स) of the Government Order dated 30.06.1993, we do not find that there is any conflict between the said provisions. In fact both operate in different fields. So far as Paragraph 5 (4) of the Government Order dated 25.03.1994 is concerned, according to our considered opinion, the same provides as to in the character roll of which year punishment awarded to a government employee has to be kept and from what date will it be effective. Whereas so far as the provisions contained in Paragraph 2 (स) of the Government Order dated 30.06.1993 is concerned, the same, in our considered opinion, provides that even if a censure entry is available in the service record of an employee awarded in a year subsequent to the year in which any irregularity is said to have been committed which has resulted in award of censure entry, the same is to be ignored for the purposes of assessment of satisfactory service of an employee provided that during next five years from the date of incident in respect of which censure entry was awarded, the employee concerned has not been awarded with any other censure entry or punishment.
16. Accordingly, Paragraph 5 (4) of the Government Order dated 25.06.1994 does not in any manner dilute the provisions contained in Paragraph 2 (स) of the Government Order dated 30.06.1993. The said interpretation and construction of the provisions contained in the Paragraph 2 (स) of the Government Order dated 30.06.1993 has a rationale too which is that in a situation where a censure entry is awarded to an employee in respect of an incident or alleged irregularity said to have occurred or committed in past and considerable time has elapsed since then, taking into consideration award of censure entry for the purposes of reckoning the satisfactory service, in our opinion, will be highly arbitrary.
17. Our view that Paragraph 5 (4) of the Government Order dated 25.03.1994 does not in any manner dilute or rescind the provisions contained in Paragraph 2 (स) of the Government Order dated 30.06.1993, is fortified by a subsequent Government Order dated 06.04.1999. Paragraph 2 of the said Government Order dated 06.04.1999 is quoted hereunder:
"2- eq>s ;g dgus dk funs'k gqvk gS fd ,sls izdj.kksa ij ftlesa tkapksijkUr lsalj ;k fuUnkRed izfof"V fn;s tkus dk fu.kZ; fy;k tkrk gS] og izfof"V lacaf/kr deZpkjh@vf/kdkjh dh pfj=&iaftdk esa mlh o"kZ dh izfof"V esa j[kh tk;sxh ftl o"kZ lsULkj vFkok fuUnkRed izfof"V fn;s tkus dk fu.kZ; fy;k x;k gSA og mYYks[k vo'; dj fn;k tk; fd izdj.k lacaf/kr ds lsokdky ds fdl in o o"kZ ls lacaf/kr jgk gS vkSj izkIr dh x;h =qfV fdl izd`fr dh jgh gS ftlls pfj= iaftdk dk ewY;kadu djrs le; nh x;h izfof"V ds LokHkkfod vlj dks n`f"Vxr j[kk tk ldsA
18. From a perusal of the afore-quoted provision of Paragraph 2 of the Government Order dated 06.04.1999, it is clear that it has been provided therein that in case after enquiry any censure entry is awarded against an employee, such censure entry shall be kept in the character roll of the employee concerned in the year in which censure entry is awarded, however, while doing so it shall also be mentioned, while recording the censure entry in the year in which it is awarded, that censure entry related to which year or which post and what has been the nature of the mistake which resulted in award of censure entry so that the actual and natural consequence and effect of such censure entry can be taken into account while evaluating an employee. Thus, the Government Order dated 06.04.1999, to us, appears to be in complete sync with provisions contained in Paragraph 2 (स) of the Government Order dated 30.06.1993 which, as observed above, does not get diluted by the provisions contained in Paragraph 5 (4) of the Government Order dated 25.03.1993.
19. So far as the facts of the present case are concerned, admittedly a censure entry awarded to the claimant on 10.04.2017 pertained to the period 2008-09 and the Departmental Promotion Committee was convened firstly on 13.10.2017 and thereafter on 28.03.2018 and again on 30.06.2020. As per the Government Orders as discussed above, the censure entry awarded on 10.04.2017 is to be kept in the service record of the claimant in the year 2017-18 however simultaneously a mentioned is to be made that the said censure entry pertained to the year 2008-09. Since there is nothing on record which can reveal that the claimant was awarded any other censure entry or punishment within five years after 2008-09 and the censure entry dated 10.04.2017 was the sole adverse material as such in our opinion while considering his promotion to the post of Head Assistant the Departmental Promotion Committee has unlawfully considered the censure entry dated 10.04.2017, whereas the said entry ought to have been ignored..."
11. It is noticed that in that case the period for which the censure entry was granted to the respondent was of 2008-09 and the entry was awarded on 10.4.2017. The Division Bench was of the view that the said entry pertains to the year 2008-09 and could not be considered for the purposes of promotion of the respondent therein.
12. Accordingly, this Court is of the considered opinion that the said censure entry would relate back to the year 2012 and in case the petitioner is sought to be considered for promotion to the post of Deputy Superintendent of Police, censure entry of prior to ten years would have to be considered and not the censure entry which would relate back to the date of incident which is of 2012. Accordingly, if the petitioner does not have adverse material for the past 10 years, then his case can be duly considered for promotion without taking into account the censure entry which relates back to the year 2012. This aspect of the matter shall be duly considered by the Departmental Promotion Committee while considering the case of the petitioner for promotion to the post of Deputy Superintendent of Police. Let the exercise for promotion be considered expeditiously.
13. Subject to aforesaid observations, the petition stands dismissed.
(Alok Mathur, J.)
Order Date :- 8.1.2025
RKM.
