WPSB/86/2021
2021 Latest Caselaw 469 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


              WRIT PETITION (S/B) No. 86 OF 2021

                      25TH FEBRUARY, 2021

 Between:

 Nand Kishore Gwari.                                        ...Petitioner

 and


 State of Uttarakhand and others.
                                                        ...Respondents

Counsel for the petitioner : Mr. Sandeep Tiwari.

 Counsel for the respondents           :     Mr.    N.S.  Pundir,
                                             leaned       Deputy
                                             Advocate General for
                                             the State.


 The Court made the following:

JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

The petitioner has challenged the legality of the

order dated 25.11.2020, passed by the Uttarakhand Public

Service Tribunal, Dehradun ('The learned Tribunal', for

short) whereby the learned Tribunal has dismissed the

claim petition filed by the petitioner, wherein the petitioner

had challenged the punishment order dated 28.12.2019,

passed by the Senior Superintendent of Police, District

Haridwar, and the appellate order dated 05.02.2020,

passed by the Inspector General of Police, Garhwal Circle.

2. Briefly, the facts of this case are that a criminal

case, namely Criminal Case No. 383 of 2010 was

registered at Police Station Jwalapur, District Haridwar for

the offences under Sections 420, 467, 468 and 471 of the

IPC against one Balraj. The investigation of the said case

was conducted by the Sub-Inspector Govind Singh

Kunwar. However, when the accused failed to appear

before the court of Chief Judicial Magistrate, Haridwar, a

Non-Bailable Warrant (N.B.W) was issued against him. On

26.07.2015, the said N.B.W was received by Police Station

Jawlapur. The said N.B.W was handed-over to the

petitioner for its execution. On 27.07.2015, the petitioner

attempted to execute the N.B.W. But the accused could

not be arrested, as he was not available at the given

address. On 27.07.2015, the petitioner recorded his return

to the Police Station Jwalapur in the General Diary No. 42

at 15:30 hours. The petitioner also made an entry in

General Diary regarding returning of N.B.W to the Court

concerned. However, admittedly the N.B.W was never

returned to the Court. After lapse of eight months, on

2/3.03.2016, the petitioner again tried to arrest the

accused. But as the accused had already been granted a

stay by the Hon'ble High Court, the accused showed the

stay to the petitioner. Hence, again the accused could not

be arrested. Despite the fact that the accused could not be

arrested by the petitioner, due to the stay order, allegedly,

the petitioner did not make any entry in the General Diary

of the police station with regard to the non-arrest of the

accused. Moreover, he never indicated as to the reasons

why the N.B.W was kept by him for eight long months.

3. A preliminary inquiry was conducted against the

petitioner. On 06.09.2019, the preliminary inquiry report

was submitted. Subsequently, on 28.09.2019 a show

cause notice was issued alongwith the drafts entry under

Rule 14(2) of the U.P. Police Officers of Subordinate Ranks

(Punishment and Appeal) Rules, 1991, ('the Rules', for

short). Immediately on 01.10.2019, the petitioner replied

to the show cause notice. However, the Senior

Superintendent of Police, Haridwar was not satisfied with

the said reply. Thus, by order dated 24.12.2019, the

petitioner was punished with "censure". Since the

petitioner was aggrieved by the punishment of censure he

filed a departmental appeal. However, by order dated

05.02.2020, the Inspector General of Police confirmed the

punishment order, and dismissed the departmental

appeal. Since the petitioner was aggrieved by both the

punishment order and order dismissing his departmental

appeal, he filed a claim petition before the learned

Tribunal. However, by order dated 25.11.2020, the

learned tribunal dismissed the claim petition as mentioned

hereinabove. Hence, the present writ petition before this

Court.

4. Mr. Sandeep Tiwari, the learned counsel for the

petitioner, has raised the following contentions before this

Court:-

Firstly, the conclusion was equally based on the

finding given in the preliminary inquiry. Even in the

preliminary inquiry report, it was noted that the

petitioner is found to be guilty of the alleged

misconduct. Therefore, according to the learned

counsel both the preliminary inquiry report as well as

the show cause notice clearly shows a biased mind.

Moreover before such a conclusion could be drawn by

the department, the department was legally bound to

give an opportunity of hearing to the petitioner.

However, no such opportunity was given by the

department. Therefore, the petitioner's rights under

the Principle of Natural Justice have been violated.

According to the learned counsel, this aspect has

escaped the notice of the learned Tribunal. Hence,

the order passed by learned Tribunal deserves to be

set aside by this Court.

Secondly, the Department has acted with a biased

mind. For, even in the show cause notice dated

20.09.2019, the department had already concluded

that "the petitioner is guilty of the alleged

misconduct".

Thirdly, the disciplinary authority has not passed a

reasoned order. Therefore, the punishment order

dated 24.12.2020 is a non-speaking order. Hence,

the learned Tribunal has erred in dismissing the claim

petition filed by the petitioner.

5. Mr. N.S. Pundir, learned Deputy Advocate

General for the State, submits that the preliminary inquiry

report may not have been drafted using the best of the

language; but the very function of the preliminary inquiry

report is well known to the disciplinary authority.

Therefore, even if the preliminary inquiry report does

contain the words that the delinquent officer is "found to

be guilty", even the said words are meaningless. For, the

very purpose of an inquiry is to discover the facts and to

discover if the allegations are prima facie true or not.

Secondly, the part of the show-cause notice dated

28.09.2019, containing the words that the "petitioner is

guilty of the alleged misconduct" and containing the fact

that the punishment of censure may be imposed, is merely

a part of the draft connected with the show-cause notice.

It is only after considering the reply to the show-cause

notice that the disciplinary authority has concluded that

the petitioner is, indeed, guilty of the alleged misconduct.

Lastly, the petitioner himself had admitted his guilt. Once

the guilt is admitted, there is no need for the disciplinary

authority to pass an elaborate speaking order. Therefore,

the learned counsel has supported the punishment order,

the appellate order and the impugned order passed by the

learned Tribunal.

6. Heard learned counsel for the petitioner,

perused the record, and examined the impugned order.

7. Needless to say, the function of a preliminary

inquiry is to discover the facts with regard to the

allegations made against the delinquent officer. The

purpose of a preliminary inquiry is not to adjudicate upon

the guilt, or innocence of the alleged delinquent officer.

Therefore, although the language used in the preliminary

inquiry report may not be a correct one, but nonetheless

the very purpose of holding a preliminary inquiry is well-

known to the department. Although, it is true that in the

preliminary inquiry report uses the words that "Sub-

Inspector Nand Kishor Gaur is found to be guilty", but

even the use of these words is unimportant. For, what the

preliminary inquiry report would indicate is that the

allegations made against the petitioner "are found to be

true".

8. Secondly, the learned Tribunal has correctly

noted the fact that if the show cause notice dated

20.09.2019 is read holistically, it merely provides an

opportunity to the petitioner to place his defense before

the department within a period of seven days. The part of

the show cause notice quoted by the learned counsel for

the petitioner, in fact, belongs to "the draft", which has

been attached with the show cause notice. The draft is of a

possible punishment, which may be imposed upon the

delinquent officer. The draft does not indicate, and cannot

indicate, as to what would be the final and eventual

outcome of the inquiry. Therefore, the contention being

raised by the learned counsel for the petitioner that the

department has already pre-judged the issue is bereft of

any merit.

9. A bare perusal of the record clearly reveals that

the petitioner had admitted his guilt with regard to the

alleged misconduct. Once the guilt is admitted, the

disciplinary authority is not required to pass an elaborate

speaking order. Therefore, even the third contention,

raised by the learned counsel for the petitioner, is

unacceptable.

10. In the case of Union of India and Others Vs.

P. Gunasekaran [(2015) 2 SCC 610], and recently in

the case of State of Karnataka and Another Vs. N.

Gangaraj, [(2020) 3 SCC 423], the Hon'ble Supreme

Court has clearly prescribed the jurisdiction of the High

Court, under Article 226 of the Constitution of India, while

dealing with the departmental punishment imposed after

holding of the departmental inquiry.

11. In the case of P. Gunasekaran (supra), the

Hon'ble Supreme Court has opined as under:-

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.

12. Therefore, the jurisdiction of the High Court is

an extremely limited one. For the High Court is not

permitted to re-appreciate the evidence, or to interfere in

the conclusion of the inquiry, or go into the adequacy of

the evidence, or go into the reliability of the evidence, or

to interfere if there is some legal evidence on which

finding can be based, or to correct the error of fact,

howsoever, they may appear to be. The only ground on

which the High Court can interfere with the punishment

order is if the punishment is shockingly disproportionate to

the alleged misconduct.

13. In the present case, the allegations against the

petitioner are firstly that he claimed in the General Dairy

that the N.B.W was returned to the Court, when the fact

remains that the N.B.W was never returned to the Court,

but, was kept in the Police Station itself. Secondly, he did

not bother to execute the N.B.W for eight long months.

During that entire period the accused had sufficient time

for seeking a stay order from the High Court. The stay was

duly granted by the High Court. Therefore even after eight

months the accused could not be arrested.

14. Since, the police force is a disciplined force,

since the Police is legally bound to execute the N.B.W as

soon as possible, since the non-execution of an N.B.W

creates a hurdle in the criminal justice administration, the

petitioner was legally bound to execute the N.B.W as

expeditiously as possible. Therefore, the mis-recording of

fact in the General Diary, the delay in execution of the

N.B.W were clearly misconduct committed by the

petitioner.

15. Despite the fact that his omission would

adversely affect the criminal justice system, the petitioner

was punished merely by censure by the department.

Therefore, the petitioner certainly would not be justified in

claiming that the punishment is shockingly

disproportionate to the alleged misconduct committed by

him.

16. For the reasons stated above, this Court does

not find any merit in the present writ petition and the

present writ petition is hereby dismissed. No order as to

cost.

_____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 25th February, 2021 Shubham/Neha