Uttarakhand High Court
WPSB/86/2021 on 25 February, 2021
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 2 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 3 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 4 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 5 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. 6 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 7 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 8 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.9
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 10 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