Allahabad High Court
Constable 415 Ap (Vigular) Naresh Kumar ... vs State Of U.P. Thru' Secy. Home & Ors. on 30 July, 2010
Author: Anil Kumar
Bench: Anil Kumar
1
(Reserved)
Court No. - 26
Case :- WRIT - A No. - 8842 of 2002
Petitioner :- Constable 415 Ap (Vigular) Naresh Kumar & Anr.
Respondent :- State Of U.P. Thru' Secy. Home & Ors.
Petitioner Counsel :- C.B. Yadav,P.Misra,Rakesh Tripathi,Vijay
Fautam
Respondent Counsel :- C.S.C.
Hon'ble Anil Kumar,J.
Heard Sri S.K. Mishra, learned counsel for the petitioners and learned Standing Counsel.
Factual matrix of the present case as submitted by the learned counsel for the petitioners are that the petitioner no. 1(Naresh Kumar) and petitioner no. 2(Amar Singh) were working as Constable having Constable Nos. 415 A.P.(Vigular) and 381 A.P. (Vigular) respectively and posted at Police Line, Meerut under the control and supervision of Uttar Pradesh Police Headquarter.
On 18.01.2000, the petitioners alongwith one Sri Madan Pal Singh, Head Constable were assigned the duty to take a hard- core criminal Sri Sanjay @ Bunti son of Brij Raj Singh from District Jail Meerut to the Court no. 16, Patiyala House Court, New Delhi. While they were returning from New Delhi, on their way they stopped at Modinagar, District Ghaziabad in order to take food in the Hotel 'Sanjha Chulha, Modinagar, Ghaziabad alongwith prisoner Sri Sanjay @ Bunti who took the advantage of the said stay and escaped away from the custody of the petitioners. In view of the said fact, a First Information Report was lodged at police station Modinagar under Sections 223, 224, 225, 395 and 397 I.P.C. read with Section 29 of the Police Act against them. On the basis of which, a criminal case has been instituted in the competent criminal court.
2Thereafter, the petitioners were served with the charge- sheet dated 29.02.2000 and a preliminary enquiry was conducted by one Sri Uma Nath Singh, Additional Superintendent of Police (Rural), Ghaziabad, a copy of the said enquiry report is annexed as Annexure no. 4 to the writ petition.
On behalf of the petitioners a submission is made that the criminal case is pending against them, so request was made to the authority concerned and the Inquiry Officer to stay the disciplinary proceedings till the decision of the criminal case. But no heed was paid in the matter so the petitioners submitted their reply to the charge-sheet dated 29.02.2000 on 02.03.2000. Thereafter, the Inquiry Officer conducted the enquiry proceedings and submitted an enquiry report dated 29.11.2000 to the punishing authority.
On 24.12.2000, show-cause-notices were issued to the petitioners by the punishing authority alongwith the enquiry report, they submitted their reply on 31.12.2000. Thereafter, Senior Superintendent of Police, Meerut/Punishing authority, after considering the reply submitted by the petitioners, enquiry report and material on record, passed the impugned orders dated 13.02.2001 dismissing the petitioners from services.
Aggrieved by the said order of dismissal dated 13.02.2001, petitioners preferred an appeal before the Deputy Inspector General of Police, Meerut Region, Meerut (respondent no. 3) on 26.02.2001, rejected by orders dated 06.06.2001, against the said orders, the petitioners preferred a revision before the Inspector General of Police, Meerut Region, Meerut, the same were dismissed by the impugned orders dated 23.11.2001 and 16.01.2002 respectively, hence the present writ petition has been filed by the petitioners thereby challenging the said orders.
3Learned counsel for the petitioners while assailing the impugned orders submits that no reasonable opportunity whatsoever has been given to the petitioners during the course of enquiry proceedings and the Inquiry Officer was personally prejudiced and biased against them. Enquiry proceedings have been conducted against the petitioners with predetermined mind, so the enquiry report as well as the entire action taken thereafter are violative of the principles of natural justice and liable to be set aside.
A submission has also been made on behalf of the petitioners that the Inquiry Officer in his enquiry report dated 29.11.2000 had recommended the punishment of dismissal, the said action on the part of the Inquiry Officer was uncalled for and without jurisdiction. As the Inquiry Officer has got no jurisdiction to recommend the punishment to be awarded to the petitioner, thus, the enquiry report as well as entire proceedings thereafter are void and on the basis of the same no punishment order can be passed against the petitioners.
Learned counsel for the petitioners also submits that the impugned order of dismissal passed by the punishing authority/Senior Superintendent of Police, Meerut is non-speaking order as the same does not specifies any reason on the basis of which the said order has been passed.
Last submission made by the learned counsel for the petitiones that in service jurisprudence it is well established that the punishment should be awarded in proportion to the gravity of misconduct committed by the delinquent and in the present case the petitioners who have put many years of satisfactory services, have been dismissed from services, so the punishment which is awarded to them does not commensurate with misconduct, if 4 any, committed by them, as such the impugned orders of dismissal as well as the appellate orders and revisional orders are arbitrary in nature and liable to be set aside.
In support of his case, learned counsel for the petitioners relied the judgment reported in the case of Sri Krishna Bhagwan Pandey Vs. U.P. Pradhan Prabandhak Meerut Western Region, Meerut and others, [2002(1)E.S.C. (All.)] page 26.
Learned Standing Counsel on the other hand submits that in the present case due to sole negligence and carelessness on the part of the petitioners in performing their duties diligently, a hard-core criminal has escaped from their custody. Accordingly, in the said incident, a charge-sheet has been issued, thereafter enquiry proceedings have been were initiated in which petitioners were provided full opportunity to defend their case and on the basis of enquiry report submitted by the Inquiry Officer, the orders of dismissal has been passed by the respondent no. 3, confirmed by the appellate authority as well as by the revisional authority respectively, hence there is neither any illegality nor infirmity in the impugned orders under challenge in the present case, accordingly the writ petition lacks merit and deserves to be dismissed.
I have heard learned counsel for the parties and perused the record.
Undisputed facts of the present case are that the petitioners were working as Constables and posted at Police Lines, Meerut having Constable Nos. 415 A.P.(Vigular) and 381 A.P. (Vigular) respectively under the control and supervision of Uttar Pradesh Police Headquarter. On 18.01.2000, while they were assigned the duty with one Sri Madan Pal Singh, head 5 constable to take a hard-core criminal Sri Sanjay @ Bunti son of Brij Raj Singh from District Jail Meerut to the Court no. 16, Patiyala House Court, New Delhi. While they were returning from New Delhi, in the way they stopped at Modinagar, District Ghaziabad and to take food in the Hotel namely 'Sanjha Chulha, Modinagar, Ghaziabad alongwith prisoner Sri Sanjay @ Bunti, and taking the advantage of their stay in the Hotel, the said prisoner escaped away from their custody with the help of five other unknown persons.
In the incident in question, an F.I.R. was registered as Case Crime No. 32 of 2000 at Police Station Modinagar and the petitioners were placed under suspension. Thereafter, a charge- sheet dated 29.02.2000 was served on the petitioners to which they gave their reply dated 02.03.2000. Further, a preliminary enquiry was also conducted by Sri Uma Nath Singh, Additional Superintendent of Police(Rural), Ghaziabad.
Further, a fulfledged domestic enquiry was conducted by the Inquiry Officer/Additional Superintendent of Police(Rural) Meerut Region Meerut in which as per material on record ample and adequate opportunity was provided to the petitioners by the Inquiry Officer and after conducting the same he submitted an enquiry report dated 29.11.2000 inter alia stating therein that when the petitioners alongwith Head Constable Sri Madan Pal Singh were returning from Court no. 16, Patiyala House Court, New Delhi where Sri Sanjay @ Bunti son of Brij Raj Singh resident Badi Haveli, Ghoda Pyas, Police Station Atal Band, District Bharatpur, Rajsthan was produced, by Bajra Vahan at Modinagar, Ghaziabad. The petitioners stopped at Modinagar, District Ghaziabad for taking food in a Hotel namely 'Sanjha Chulha, Modinagar, Ghaziabad alongwith prisoner Sri Sanjay @ 6 Bunti and taking the advantage of the said fact, the said prisoner escaped away with the help of five unknown persons who got him released from the custody of the petitioners and took him in their vehicle. The Inquiry Officer has given a categorical finding of fact in his enquiry report that the said incident took place because the petitioners had put their arms with carelessness, as such the said act on the part of the petitioners amounts to negligence, indiscipline and carelessness in discharging their duties. Accordingly, they are not entitled to be retained in police services, so their services be terminated.
Thereafter, show-cause-notices were issued to the petitioners to which they submitted their response and after taking the reply submitted by the petitioners, other material documents on record as well as enquiry report, the orders of dismissal dated 13.02.2001 have been passed by Punishing Authority/Senior Superintendent of Police, Meerut(respondent no.
4), confirmed by the appellate authority as well by the revisional authority.
In view of the above said facts, the first contention raised by the learned counsel for the petitioners that no reasonable opportunity whatsoever has been given to them during the course of enquiry proceedings is wholly incorrect and wrong because as per the settled law, the reasonable opportunity means as under :-
(a) an opportunity to deny guilt and establish innocence;
which a government servant can only do if he is told what the charges leveled against him are and the allegations on which such charges are based.
(b) an opportunity to defend himself by cross examining the witnesses produced against him and by examining himself or any 7 other witnesses in support of his defence which he can effectively do if he was supplied the copies of the documents relied upon and the depositions of witnesses , and finally,
(c) an opportunity to make his representation as to why no punishment should be inflicted on him which he can only do if the competent authority, after the enquiry is over tentatively proposes to inflict one of the scheduled punishments and communicates his tentative decision along with a copy of the inquiry report to the Government servant.
In the case of State of Tamil Nadu Vs. Thiru K.V. Perumal and others 1996 (5) SCC 474 , Hon'ble Supreme Court has held as under :-
"The Tribunal seems to be under the impression that the enquiry officer/ disciplinary authority is bound to supply each an every document that may asked for by delinquent officer/employee. It is wrong there. Their duty is only to supply relevant documents and not each and every document asked for by the delinquent officer/ employee. In this case respondent has asked for certain documents. The Registrar, to whom the request was made, called upon him to specify the relevance of each and every document asked for by him. The respondent did not do so. It was the duty of the respondent to point out how each and every documents was relevant to the charges or to the enquiry being held against him and whether and how their non- supply has prejudiced his case. Equally , It is the duty of the Tribunal to record the finding whether any relevant documents were supplied and whether such non-supply has prejudiced the defendant's case."
In the instant case, the petitioners had made a bald and vague statement that the reasonable opportunity was not provided to them and further they had not stated that in what manner they are being prejudiced. Moreover, the relevant 8 materials and documents including the copy of the preliminary enquiry report and the enquiry report, were supplied to the petitioners, as such the submission made by the learned counsel for the petitioners that no reasonable opportunity was given to the petitioners in the instant case is misconceived argument and the same is rejected having no force.
Next contention as raised by the learned counsel for the petitioners that the Inquiry Officer is prejudiced and biased against the petitioners is wholly misconceived and wrong as from the documents which are on record it does not transpires that the said allegation which is made by the petitioners is founded on any sound reasons and grounds. Further, in case if the petitioners have any grievance against the Inquiry Officer that he was personally biased against them, then he should have been impleaded as respondent in the writ petition but the same has not been done in the present case. Needless to mention here that it is the settled proposition of law that if the person/officer against whom prejudice or bias is alleged and he is not impleaded in personal capacity in order to rebut the said allegations otherwise the said allegations cannot be taken to be correct. Further, the petitioners have failed to establish on the basis of material on record that the Inquiry Officer was prejudiced and biased against them rather the said plea on the part of the petitioners that the Inquiry Officer was biased and prejudiced is incorrect, wrong and without any foundation and specific pleadings in the writ petition. It is relevant to mention herein that the pleadings made in the writ petition in this regard are vague and bald on the basis of which it cannot be established or proved that the Inquiry Officer was prejudiced or biased against the petitioner and submitted enquiry report. Accordingly, the 9 submission made in this regard is rejected.
Next, the submission made by the learned counsel for the petitioner that Inquiry Officer has recommended the punishment to be awarded to petitioner in the enquiry report, accordingly the said action on the part of the Inquiry Officer is without jurisdiction and it rendered the enquiry report and impugned orders passed thereafter against the petitioner is incorrect and wrong and is rejected having no force becasue when the Disciplinary Authority does not have sufficient time on hand to hold the enquiry, he may appoint an Inquiring Authority. Out of the same necessity, the Inquiry Officer, also has to perform the duties of both prosecutor and Judge. A challenge that he acted as a 'persecutor and judge' and, therefore, the proceedings suffered from "subject bias" would not vitiate the proceedings.
In the case of Board of Trustees of the port of Bombay Vs. Dilip Kumar Raghavendranath Nadkarni, (1983) 1 SCC 124, the Supreme Court recognized it to be lawful that the position of Enquiry Officer both as a persecutor and as a judge is "rolled into one". Thus, the challenge that it violates the first principle of natural justice would not be available.
Further, when a duty to decide either way is required to be performed by any person under any obligation cast upon him for performance of the duty, the plea of bias would not forbid performance of such duty and unless the content of the performance is fallacious, mere plea of bias, without anything more, would not defeat the performance.
Even otherwise in the present case after the submission of enquiry report by the Inquiry Officer, the punishing authority had issued a show-cause notice and called for a reply from the 10 petitioner. In response to the same, the petitioner submitted his reply inter alia stating the reasons for not inflicting the punishment of dismissal is proposed in the show-cause notice, further after considering the same and other documents on record, the punishing authority as per it's discretion and on the basis of the materials on record awarded the punishment thereby dismissing the petitioner from services.
In view of the said fact, the submission made by the learned counsel for the petitioners that the Inquiry Officer has recommended the punishment has no force and accordingly rejected.
Next submission made by the learned counsel for the petitioners that the impugned orders passed by the punishing authority are non-speaking and unreasonable orders. From perusal of the record, it is clearly borne out that the said authority after taking into consideration the material documents on record as well as the enquiry report has given a categorical finding of fact that there was no justification or reason on the part of the petitioners to stop in the mid-way to take food as they had taken their food in the Police Mess and distance from Delhi to Meerut is 57 Kilometer only, and due to the said sole negligence on the part of the petitioners, the incident in question has taken place. Further, finding was also given by the punishing authority in the impugned orders of dismissal that the petitioners were well aware about the fact that the accused Sanjay @ Bunti is hard- core criminal and had a criminal history. So, the action on the part of the petitioners to stop in the mid-way to have food is an action on their part which is nothing but indiscipline and negligence and accordingly on the basis of said findings and reasons the orders of dismissal are passed against the 11 petitioners. Accordingly, the submission made in this regard has got no force and is rejected.
Last submission made on behalf of the petitioners is that the punishment awarded does not commensurate with the gravity of chargers, if any, committed by them does not holds the field good as it is the sole prerogative and domain of the punishing authority to impose the punishment on an employee taking into consideration the material documents and evidence on record and misconduct committed by him.
Further, in the present case, the petitioners are employee of a disciplinary force and thus, they have to be maintained discipline and perform their duties with due diligence but in the present case and as per material on record, the action on the part of the petitioners amounts to negligence and carelessness in discharging their duties and due to this reason the incident in question had taken place and a hard-core criminal namely Sanjay @ Bunti escaped away.
In the case of B.C. Chaturvedi Vs. Union of India (1995) 6 SCC 749 , Hon'ble Supreme Court has held as under :-
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment. Keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the 12 disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
In the case of V. Rajarathinam Vs. State of Tamilnadu and another, 1997 SCC(L&S) 90, the Court has held as under :-
"that if if all the relevant facts and circumstances and the evidence on record are taken into consideration and it is found that the evidence established misconduct against a public servant, the disciplinary authority is perfectly empowered to take appropriate decision as to the nature of the findings on the proof of guilt. Once there is a finding as regards the proof of misconduct, what should be the nature of the punishment to be imposed is for the disciplinary authority to consider."
In the case of State of Karnataka and others Vs. H.Nagaraj (1998) 9 SCC 671, Hon'ble Apex Court after relying earlier judgment in the case of Union of India Vs. Parma Nanda (1989) 2 SCC (L&S), 303 held as under :-
"That it is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority."
In the case of Union of India Vs. S.S. Ahluwalia, (2007) 7 SCC 257 the Hon'ble Apex Court had held as under :-
"8.... The scope of judicial review in the matter of imposition of penalty as a result of disciplinary 13 proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved."
In the case of State of Meghalaya Vs. Mecken Singh N. Marak, (2008) 7 SCC 580, the Hon'ble Supreme Court had held as under :-
"The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercise by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gratuity misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquents holds, previous penalty,if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts."
"Secondly, the Tribunal failed to notice that the respondent was holding an important position as Land Reforms Officer during the relevant period having been conferred with various powers and duties under the Regulations. As a Land Reforms Officer, the respondent possessed the official authority for grant of occupancy rights under the Regulations. The co-delinquents were only his subordinates and they carried out his instructions. In the facts and circumstances, therefore, the respondent and the two co-delinquents cannot be said to have been similarly placed."
Recently, in the case of Administrator Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad (2010) 5 SCC 775, the Hon'ble Supreme Court has held as under :-
14"Para 14 : The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercise by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the disciplinary or appellate authority is dependent of host of factor such as gravity of misconduct, past conduct the nature of duties assigned to delinquent, responsibility of position that the delinquent holds, previous penalty, if any, and the discipline required to maintain in the department or establishment he works. Ordinarily the court or Tribunal would not substitute it's opinion on reappraisal of facts."
In view of the above said facts, I have no hesitation in holding that on the facts found and conclusions recorded in the enquiry report, the punishment of dismissal cannot be said to be not commensurate with the indiscipline proved against the petitioners.
Further, this Court while exercising the power of judicial review under Article 226 of the Constitution of India does not exercise appellate powers. It is not intended to take away from administrative authorities the powers and discretion properly vested in them by law and to substitute courts as the bodies making the decisions. Judicial review is a protection and not a weapon.
In the case of Council of Civil Service Unions (CCSU) V. Minister for the Civil Service (1984) 3 ALL ER 935, Lord Diplock has observed the scope of judicial review in the following words:-
"Judicial Review as I think developed to a stage 15 today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality' the second 'irrationality' and the third 'procedural impropriety".
Moreover, judicial review has certain inherent limitations. It is suited more for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the rules and statute.
In the case of Chief Constable of the North Wales Police V. Evans, (1982) 3 ALL ER 141 , it was observed by Lord Hailsham as under:-
"Purpose of judicial review is to ensure that individual receives fair treatment and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorized by law to decide with its conclusion which is corrected in the eyes of the Court."
In the same case, Lord Brightman observed that:-
"Judicial review as the words imply is not an appeal from a decision but a review of the manner in which a decision was made," and held, that "it would be an error to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
The aforesaid observations made by the Lord Hailsham and Lord Brightman were quoted with approval by their Lordships of Supreme Court in State of U.P. V. Dharmendar Prasad Singh, AIR 1989 SC 997 , and while upholding that the judicial review is directed not against the decision, but is confined to the 16 examination of the decision making process, it was held by the Supreme Court as under:-
"When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account, relevant factors or is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonable have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors."
In the case of Tata Cellular V. Union of India (1994) 6 SCC 651 the Supreme Court stated that:-
"Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made but the decision making process itself," and enumerated some broad grounds upon which an administrative action is subject to control by judicial review and classified them under the heading of 'illegality', 'irrationality' and 'procedural impropriety.' In their supervisory jurisdiction as distinguished form the appellate one, the Courts do not themselves embark upon rehearing of the matter but nevertheless courts will, if called upon, act in a supervisory capacity and see that the decision making body acts fairly. If the decision making body is influenced by considerations which ought not to influence or fails to take into account the matters which ought to have been taken into account the Courts will interfere. If the decision making body comes to its decision on no evidence or comes to a finding so unreasonable that a reasonable man could not have come to it then again the Courts will interfere.
Further if the decision making body goes outside its power or misconstrues the extent of its power, then too the Courts can interfere, and if the decision making body acts in a bad faith or with ulterior object which it is not authorized by law, its decision will be set aside in supervisory 17 jurisdiction. A decision of a public authority will be liable to be quashed or otherwise dealt with by appropriate order in judicial review proceedings, where the Courts concludes that the decision is such that no authority properly directing itself on the relevant law and fact acting reasonably could have reached it."
Thus the decision by the appropriate authority to grant or not to grant a particular relief to a person is not open to Judicial review by the High Court under Article 226 of the Constitution of India but the power of judicial review is circumscribed to scrutiny of the decision making process only and is to be exercised in the light of the principles laid down above and applying the said principles to the facts of the present case, I do not find any irregularity, infirmity in the impugned orders.
No other point was pressed or argued before me. Accordingly, the present writ petition lacks merit and is dismissed.
No order as to costs.
Order date: 30/07/2010 Krishna/*