Allahabad High Court
Union Of India Thru. Its Secy. Ministry ... vs Prakash Kumar Shukla on 11 May, 2023
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:32407-DB RESERVED Court No. - 1 Case :- SPECIAL APPEAL No. - 186 of 2023 Appellants :- Union Of India Thru. Its Secy. Ministry Of Home Affairs, Govt. Of India And 3 Others Respondent :- Prakash Kumar Shukla Counsel for appellants :- Deepanshu Dass Counsel for Respondent :- Vijay Dixit Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Om Prakash Shukla,J.
(Per Om Prakash Shukla, J.) (1) Heard Shri S.B. Pandey, Senior Advocate/Deputy Solicitor General of India, assisted by Shri Deepanhu Dass, learned Counsel representing the appellants-Union of India and Shri Vijay Dixit, learned Counsel for the respondent/writ petitioner.
(2) The instant intra Court appeal under Section 5 Chapter VIII of the Allahabad High Court Rules, 1952, seeks to challenge the judgment and order dated 21.03.2023 passed by the learned Single Judge, whereby Writ-A No. 13920 of 2021 : Prakash Kumar Shukla Vs. Union of India and others, filed by the respondent/writ petitioner has been allowed. The operative portion of the judgment and order dated 21.03.2023 is reproduced as under :-
"12. Thus, the present writ petition is allowed and the impugned show cause notice dated 9.6.2021 issued by the Commandant, 59th Battalion, SSB, Nanpara, District Bahraich, is hereby quashed. Opposite parties are directed to send the petitioner for Basic Recruit Training Course as observed by the Commandant in his order dated 26.5.2020 by giving him one more chance. However, if the petitioner fails in the training, his services are liable to be terminated forthwith in accordance with the Rules. No disciplinary inquiry/regular inquiry is required to be conducted in case of a probationer if he fails to qualify the Basic Recruit Training Course. This one more chance is being given to the petitioner as the opposite parties have not challenged the judgement order dated 20.12.2019 passed by a coordinate Bench of this Court in Writ Petition No.1995 (SS) of 2016. Otherwise, the petitioner has no right to remain in service, if he does not qualify the Basic Recruit Training Course as per the relevant rules and the condition prescribed in the appointment order itself."
FACTUAL MATRIX (3) It has been stated that pursuant to advertisement published in Employment News for appointment on the post of Constable (General Duty) in B.S.F., C.I.S.F., C.R.P.F. and S.S.B. by the Staff Selection Commission, the writ petitioner/respondent applied and had participated in the recruitment examination, in which, he was declared successful. Consequently, appointment letter dated 04.03.2013 was issued to the writ petitioner/respondent for the post of Constable (General Duty) in Sashtra Seema Bal (S.S.B). In the said appointment letter dated 04.03.2013, one of the conditions was that the writ petitioner/respondent has to successfully complete the Basic Recruit Training Course being conducted by S.S.B., for which he would be given two chances only and, if he failed to qualify the Basic Recruit Training Course even in the second chance, his services would be liable to be terminated. This Basic Recruit Training Course in two chances was to be completed within two years.
(4) The writ petitioner/respondent, in pursuance to the aforesaid appointment letter dated 04.03.2013, submitted his joining at 59th Battalion, Shashtra Seema Bal (S.S.B.) and thereafter he was sent for Basic Recruit Training Course at Regional Training Centre, S.S.B., Gorakhpur from 08.04.2013 to 06.02.2014. During the training period, the writ petitioner/respondent submitted resignation on 12.09.2013 but before his resignation could be accepted by the competent authority, he withdrew his resignation on 19.09.2013. The writ petitioner/respondent was sent for training but he applied for 15 days' earned leave i.e. from 21.09.2013 to 05.10.2013 and thereafter, as he allegedly fell ill, he submitted an application for extension of his leave. After that on recovering fully well, he submitted his joining along with medical certificate and fitness certificate on 26.04.2014. The competent authority took a lenient view in the case of the writ petitioner/ respondent and regularized his absence for 202 days vide order dated 09.06.2014 and he was sent for training second time to Regional Training Centre, S.S.B., Gorakhpur on 18.10.2014, wherein he submitted his joining on 19.10.2014. However, he absented himself for four hours without authorization from the training and as such, in terms of the provisions of Shashatra Seema Bal Rules, 2009, a show cause notice dated 02.01.2015 was issued to him, to which the writ petitioner/respondent submitted his reply on 23.01.2015. However, the writ petitioner/respondent was discharged from service w.e.f. 09.03.2015, which was challenged by the writ petitioner/respondent by filing an appeal and the same was also rejected vide order dated 17.12.2015.
(5) Aggrieved by the aforesaid orders dated 09.03.2015 and 17.12.2015, the writ petitioner/respondent preferred writ petition No. 1995 (S/S) of 2016, which was disposed of by the learned Single Judge vide judgment and order dated 20.12.2019 by quashing the aforesaid orders dated 09.03.2015 and 17.12.2015 with a direction to the appellants to reinstate the writ petitioner/respondent in service. However, liberty was granted to the disciplinary authority to get departmental inquiry conducted and concluded strictly in accordance with law.
(6) Apparently, there was no challenge to the said judgment & order dated 20.12.2019 passed in Writ petition No. 1995 (S/S) of 2016, and as a matter of fact and records, the writ petitioner/respondent was reinstated in service w.e.f. 17.02.2020 on the basis of principles of 'No Work No Pay' for the period he remained out of employment and a Court of Inquiry was also instituted against the writ petitioner/ respondent for investigating the circumstances under which writ petitioner/respondent had not completed Basic Recruit Training Course in two chances which was given to him prior to 'termination from service'. In pursuance thereof, the Court of Inquiry conducted the investigation and after due inquiry, the Court of Inquiry opined that as the punishment given to the writ petitioner/respondent was not commensurate with the gravity of misconduct, therefore, a lenient view may be taken and the writ petitioner/respondent be warned to refrain from such act in future and continue his Basic Recruit Training.
(7) Thereafter, the disciplinary authority i.e. Commandant, 59th Battalion, S.S.B., Nanpara, vide order dated 26.05.2020, agreed with the findings and opinion of the Court of Inquiry and recommended that one more opportunity be given to the writ petitioner/respondent to undergo Basic Recruit Training Course, which was mandatory and an undertaking be taken from him that in case he fails to qualify his Basic Recruit Training Course in this chance, his services shall be terminated.
(8) The aforesaid recommendation of the Commandant dated 26.05.2020 was examined by the Force Headquarters, New Delhi and it was directed that action may be taken after going through the existing instructions and provisions contained in Sashastra Seema Bal Combatised (General Duty) Group 'C' posts Recruitment Rules, 2011. Thereafter, the Commandant, 59th Battalion, Nanpara, in exercise of powers conferred under sub-section (2) of Section 11 of the SSB Act, 2007 read with Rule 179 of SSB Rules, 2009 and in conformity with Rule 18 of SSB Rules, 2009, issued second show cause notice dated 30.04.2021 to the writ petitioner/respondent, to which he submitted his reply on 25.05.2021. Thereafter, another show cause notice dated 09.06.2021 was issued to the writ petitioner/respondent.
(9) Feeling aggrieved by the aforesaid two show cause notices dated 30.04.2021 and 09.06.2021, the writ petitioner/respondent preferred Writ-A No. 13920 of 2021. Learned Single Judge has allowed the writ petition by means of impugned order dated 21.03.2023, observing that once the Court of Inquiry had exonerated the writ petitioner and the findings of the Court of Inquiry was accepted by the disciplinary authority i.e. Commandant, who reinstated the writ petitioner in service and recommended for sending the writ petitioner for training giving one more chance, second show cause notice for the same charges would be unsustainable. It is this order dated 21.03.2023, which is impugned and under challenge in the instant appeal.
SUBMISSIONS (10) Learned Senior Counsel representing the appellants has drawn our attention to Rule-4 of the Sashastra Seema Bal Combatised (General Duty) Group 'C' posts Recruitment Rules, 2011 and Schedule annexed thereto and argued that the writ petitioner/respondent admittedly did not complete the Basic Recruitment Training Course in the two attempts provided for nor within the time period of Two Years provided for the same and as such, the services of the petitioner were disengaged without holding any departmental enquiry. He argued that as per Section 59 of the SSB Act, 2007 read with SSB Rules, 2009, the Superior Authority may cancel, vary or remit the punishment and make such other direction as may be appropriate in the circumstances of the case. Therefore, in view of the aforesaid provision of Section 59 of the SSB Act, 2007 read with SSB Rules, 2009, the exoneration of the writ petitioner/respondent by the Commandant vide recommendation dated 26.05.2020 was not accepted by the Superior Authority and vide order dated 26.03.2021, the writ petitioner/respondent was directed to be issued show cause notice.
(11) Learned Senior Counsel representing the appellants has next argued that there is no power to relax the provisions of the aforesaid rules except those provided under Rule 11 of SSB Rules, 2009, wherein the said power is vested in Central Government. Therefore, his submission is that no mandamus can be issued to send the writ petitioner for training other than in accordance with the provisions of Rule 11 of the SSB Rules, 2011 and it is for the appropriate authority to decide whether such relaxation could be granted in the present case.
(12) Learned Senior Counsel representing the appellants has further argued that as per Sashastra Seema Bal Combatised (General Duty) Group 'C' posts Recruitment Rules, 2011, the age for recruitment is provided as between 18 and 21 years and the Basic Training is to be completed within two years therefrom. But admittedly the writ petitioner/respondent, being 32 years, is not eligible for recruitment nor for undergoing Basic Recruitment Training. Thus, it has been submitted by the learned Senior Counsel that notwithstanding the aforesaid apparent impediment in grating any relief to the writ petitioner/respondent, the learned Single Judge has erred in not considering the aforesaid facts while passing the impugned order, hence the impugned order is liable to be set-aside.
(13) Per contra, learned Counsel for the writ petitioner/respondent has opposed the aforesaid submissions advanced by the learned Senior Counsel representing the appellants and has argued that the order of disengagement dated 09.03.2015 and appellate order dated 17.12.2015 were challenged by the writ petitioner/ respondent by filing Writ Petition No. 1995 (S/S) of 2016, which was allowed by the learned Single Judge vide order dated 20.12.2019 and while quashing the aforesaid orders dated 09.03.2015 and 17.12.2015, the learned Single Judge directed the appellants to reinstate the writ petitioner/respondent and liberty was granted to the appellants to institute disciplinary enquiry against the writ petitioner/respondent. He argued that the aforesaid order dated 20.12.2019 attained finality as the same was not challenged in any Court of law. Furthermore, in compliance of the aforesaid order dated 20.12.2019, the Commandant, who is the disciplinary authority in the instant case, had reinstated the writ petitioner/respondent and a Court of Inquiry was instituted, which returned a favourable findings in favour of the writ petitioner/ respondent. The Commandant, thereafter, on receipt of the report of Court of Inquiry, agreed with the findings and opinion given by the Court of Inquiry and recommended the writ petitioner/ respondent to give one more chance to writ petitioner/ respondent for completion of the training, but instead of sending the writ petitioner/respondent for training, the Commandant has issued second show cause notice dated 30.04.2021, which was duly replied by the writ petitioner/respondent. It has been submitted by the learned Counsel that dehors the pendency of the aforesaid show cause notice dated 30.04.2021, which itself was bad in law, yet another show cause notice dated 09.06.2021 has been issued to the writ petitioner/respondent for the same charges. His submission is that the writ petitioner/respondent was reinstated in service in compliance of the judgment and order dated 20.12.2019, which attained finality and further Court of Inquiry was also conducted in pursuance of the liberty granted vide judgment and order dated 20.12.2019 (supra), therefore, issuing second show cause notice to the writ petitioner/respondent on the same charges cannot be permissible under law, particularly when the judgment and order dated 20.12.2019 (supra) attained finality and as such any anticipated action as a consequence of issuance of show cause notice is overreaching the finality of the Judgment passed by this Court. Thus, it has been submitted by the learned Counsel that the impugned order passed by the learned Single Judge is not liable to be set-aside.
ANALYSIS (14) We have carefully considered the rival submissions made by the learned Counsel for the respective parties and have also gone through the record available before us on this intra Court appeal.
(15) Admitted facts are that pursuant to the judgment and order dated 20.12.2019 passed by the learned Single Judge in Service Single No. 1995 of 2016, which attained finality as the same was not challenged before any Court of law, the writ petitioner/respondent was reinstated in service and a Court of Inquiry was also instituted. The Court of Inquiry, after due inquiry, gave its opinion to the effect that the punishment given to the writ petitioner/respondent was not commensurate with the gravity of misconduct, therefore, on lenient ground, the writ petitioner/ respondent could have been warned to refrain from such act in future and continue his basic training. The said report of the Court of Inquiry was considered by the Commandant and after due consideration, the Commandant agreed with the findings and opinion of the Court of Inquiry and vide recommendation dated 26.05.2020, the Commandant has recommended that one more opportunity be given to writ petitioner/respondent to undergo Basic Recruit Training Course and an undertaking be also taken from him to the effect that, in case the writ petitioner/respondent fails in his Basic Recruit Training Course in this chance, his services shall be terminated.
From the aforesaid admitted facts, it is crystal clear that the writ petitioner/respondent was reinstated and the Court of Inquiry was instituted against the writ petitioner/respondent in compliance of the judgment and order dated 20.12.2019 passed by the learned Single Judge in Writ Petition No. 1995 (S/S) of 2016, which, undisputedly, attained finality. The report of the Court of Inquiry was considered by the Commandant and he agreed with its findings and opinion and as such the Commandant recommended to give the writ petitioner/respondent, one more chance to complete the training. Thus, it is apparent that the aforesaid whole exercise has been done by the Commandant in compliance of the judgment and order dated 20.12.2019 (supra), but the Superior Authority has not taken into consideration the fact that decision for reinstatement of the writ petitioner/respondent and recommendation by the Commandant for provided one more opportunity to complete training to the writ petitioner/respondent was made in compliance of the judgment and order dated 20.12.2019, which attained finality, rather it appears that the Superior Authority has taken decision contrary to the final judgment and order dated 20.12.2019 (supra), which had attained finality and on the decision of the Superior Authority, the second show cause notice on the same charge has been issued, which had been the subject matter of the earlier round of litigation between the parties in Writ Petition No. 1995 (S/S) of 2016 already decided vide judgment dated 20.12.2019 and as such the principle of res judicata would squarely apply to the facts of the present case.
(16) At this juncture, it would be apt to mention that in Daryao & others vs. State of U.P. & others : AIR 1960 SC 1457, the Constitution Bench of the Apex Court considered the application of rule of res judicata in writ petitions and held that if a writ petition filed by a party under Article 226 of the Constitution of India is considered on the merits as a contested matter and is dismissed, the decision, thus, pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. In Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others : 1990 (2) SCC 715, the Constitution Bench of the Apex Court emphasized that the binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasized by the Constitution, is founded and a judgment of the High Court under Article 226 of the Constitution of India passed after a hearing on the merits, must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32 of the Constitution of India. Thus, the judgment and order dated 20.12.2019 (supra), which attained finality, is binding upon the parties and the appellants cannot be permitted to consider the case of the writ petitioner/respondent on re-analyzing the issue on its own choice, contrary to the order dated 20.12.2019 (supra), which attained finality.
CONCLUSION (17) This Court finds that the learned Single Judge has granted a discretionary relief of one more chance to the writ petitioner/ respondent, owing to the prevailing peculiar situation that the appellant had not challenged the judgment dated 20.12.2019 passed in Writ Petition No.1995 (S/S) of 2016 and has rather complied with the said order. Thus, the learned Single Judge has estopped the appellant in re-agitating the same issue by issuance of the show cause notice. We find that the learned Single Judge has also held that the writ petitioner/respondent would have no right to remain in service, if he does not qualify the Basic Recruit Training Course as per the relevant rules and the condition prescribed in the appointment order. Having said so, this Court finds that the learned Single Judge has nowhere missed the woods of the tree in the impugned order and as such the order does not call for any interference.
(18) For the reasons aforesaid, we are in complete agreement with the impugned order passed by the learned Single Judge.
(19) The special appeal is dismissed. However, there will be no order as to costs.
(Om Prakash Shukla, J.) (Devendra Kumar Upadhyaya, J.)
Order Date :- 11th May, 2023
Ajit/-