Lal Singh vs State Of Uttarakhand And Others
2021 Latest Caselaw 4117 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL

              Writ Petition (S/S) No. 601 of 2021
Lal Singh                                                  ...      Petitioner

                               Vs.
State of Uttarakhand and others                            ... Respondents

Advocates :   Mr. Vinay Kumar, Advocate, for the petitioner.
              Mr. N.P.Sah, Standing Counsel for the State of Uttarakhand.

Hon'ble Sharad Kumar Sharma, J.

The petitioner to the present writ petition has put a challenge to the impugned orders, being the Punishment Order No. 16 of 2015 dated 27.08.2015, which has been passed by the Commandant, Indian Reserve Battalion-II, Haridwar; whereby the services of the petitioner were terminated. Subsequent to it, a highly belated appeal was preferred under Rule 20 of the Rules of 1991, which too has been dismissed by the Appellate Authority i.e. Inspector General of Police, PAC Uttarakhand, by virtue of the judgement dated 29.01.2020. Hence the present writ petition.

2. The petitioner has contended that the principal order of punishment dated 27.08.2015; do not satisfied the necessity and test of the provisions contained under Rule 8

(a) and particularly that as contained under Rule 8 (2) (b), where the dispensation of inquiry is contemplated, and for that purpose there has had to be a prime facie satisfaction recorded by the Disciplinary Authority for dispensing of

the disciplinary proceedings for taking an action of dismissal or removal, as it has been contemplated under Rule 8 of the Rules of 1991. The counsel for the petitioner had drawn the attention of this Court to the reasons which have been assigned by the Disciplinary Authority, while concluding the order dated 27.08.2015 and he contends to argue, that the reason given therein will not satisfy the ingredients of the covenants, which had been laid down under Rule 8 (2) (b) of the Rules of 1991. And hence he contends that the said order of dispensation of services of the petitioner, for the set of allegation which has been levelled in the impugned order and that the disciplinary proceedings ought to have been taken against the petitioner and hence the principal order of 27.08.2015, itself was bad. In the absence of there being a satisfaction and the reason recorded by the Disciplinary Authority, while passing the impugned order, for dispensing with the formal disciplinary proceedings; under Rule 8 (2) (b) of Rules of 1991.

3. Be that as it may, the petitioner has preferred an appeal as contemplated under Rule 20 of Rules of 1991, before the Appellate Authority; the Appellate Authority, has dismissed the appeal on the ground of delay observing thereof that the limitation which has been prescribed under Rule 20 of the Rules for preferring of an appeal it has been prescribed, as to be three months, which could be made extendable for further three months as per the provisions contained under Sub Rule (6) of Rule 20 of the Rules of

1991, it means that if Sub Rule (6) of Rule 20, is taken into consideration, the liberty granted to the Appellate Authority for the purposes of extending the period of limitation of preferring of an appeal under Rule 20. There has been an upper limit fixed by the statute itself, where the period of limitation could be further extended by a further period of three months i.e. to a maximum period of six months in total from the date of the passing of the order. As a consequence of dismissal of appeal on the ground of delay observing thereof, that the appeal was preferred with the delay of four years, hence the appeal has been dismissed by the one of the impugned order dated 29.01.2020.

4. In order to overcome the observation which had been made by the Appellate Authority by dismissing the appeal, on the ground of delay, the learned counsel for the petitioner submitted that the delay may not be attributable to justify the cause raised, and issue involved in the manner, in which it has been attributed by the Appellate Authority for the reason being, that immediately after passing of the order of punishment dated 27.08.2015, the petitioner had represented his matter before the Appellate Authority, by submitting his representation on 21.11.2015. Preference of a representation as per opinion of this court in a disciplinary proceedings contemplated under the Rules of 1991, since is not a statutory provision and the representation thus submitted on 21.11.2015, will not act or

be legally taken as to be a substitute to an appeal provided under the Rule 20 of the Rules of 1991.

5. Secondly, the learned counsel for the petitioner submits, that taking cognizance to the representation submitted by the petitioner as there had been an inter departmental communications, between the officers but the said inter departmental communication, as per the opinion of this Court would not be construed that it was or it would at all be, creating any impediment for the petitioner to prefer an appeal in accordance with Rule 20 of the Rules and thus the inter departmental communication made between the authorities concerned, will not impede the provisions provided under Sub Rule (6) of Rule 20 of the Rules of 1991. Merely because of a correspondence was being carried between the authorities will not preclude the petitioner to file an appeal, hence the petitioner ought to have preferred an appeal within the prescribed time period and particularly when the statute has provided and fixed the upper time limit, under Sub Rule (6) of Rule 20 and the said time period cannot be extended beyond the period of six months, in that eventuality the appeal was rightly dismissed by the appellate authority on the ground of limitation.

6. The counsel for the petitioner has further made reference and relied upon a judgment, which was rendered by the coordinate Bench of this Court in Writ Petition No. 2232 of 2018, Rakesh Sharma vs. State of Uttarakhand and

Others, I am in respectful disagreement, to it, to be applied in the instant case, because in the said case the learned coordinate Bench of this Court while interpreting the implications of Rule 8(2) (b) of dispensing the disciplinary proceedings, has taken a liberal view based on the findings and the facts too, which has been recorded therein, in the principal order of punishment as well as in the Appellate order, in which the appeal itself which was filed within limitation, was decided on its merits which was subject matter of scrutiny before the learned Appellate Authority and that is why the finding which has been recorded by the learned coordinate Bench it was in, that eventuality and the different circumstances where both the orders were a subject matter of judicial scrutiny, which were decided on merits. This may not be the situation which would be identically made applicable, where an identical parity of a liberal interpretation to Rule 8 (2) (b) of the Rules of 1991, could be extended based on the judgment of 19.07.2019 as referred above.

7. For the reason being that in the instant case under the principle of merger once the petitioner himself has chosen to prefer an appeal under Rule 20 of Rules of 1991, admittedly much beyond the prescribed period of limitation which had been legally prescribed under Rule 20 to be read with Sub Rule (6) of Rule 20, the period prescribed therein since statutorily would not extendable beyond the period of six months in that eventuality at this stage in a writ jurisdiction under Article 226 of the

Constitution of India the principal order of punishment of 2015, where the petitioner contends that the actual sprit of Rule 8 (2) (b), of 1991 Rules, was not complied with cannot be made as a subject matter of scrutiny in a writ jurisdiction, particularly when the order of termination stood merged with the dismissal of an appeal on the ground of limitation and hence no parity as such based on the principles laid down by the coordinate Bench in its judgement dated 19.07.2019 would be attracted in the instant case.

8. In that eventuality, the argument extended in the light of provisions contained under Rule 8 (2) (b) of 1991 Rules may not be attracted, at this stage in the writ jurisdiction where the appellate order itself has been put to challenge, consequently, I am not inclined to interfere in the writ petition, writ petition is accordingly dismissed.

(Sharad Kumar Sharma, J.) 20.10.2021 Nahid