Allahabad High Court
Vinod Kumar Tewari vs State Of U.P. & Others on 30 March, 2015
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 30 Case :- WRIT - A No. - 17468 of 2010 Petitioner :- Vinod Kumar Tewari Respondent :- State Of U.P. & Others Counsel for Petitioner :- V.K. Singh,G.K. Singh Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar,J.
In brief, the facts of the case is that the petitioner, a constable in the Provincial Armed Constabulary (P.A.C.), whose service conditions is governed by the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 19911. Charge sheet was served upon the petitioner on 9 January 2002 mentioning that while the petitioner was posted as Post Commander at Camp Village Kheradih, Thana Aroura, Mirzapur, on 22 November 2001 at 16.30 hours, naxalites attacked the Camp and looted 14 S.L.R., 1350 cartridges, 1 staingun and 192 cartridges, destroyed the Government property after putting it on fire. The petitioner failed to discharge his duty as per the Rules prescribed in the Margdarshak Niyamawali. The incident according to the respondents took place due to dereliction of duty by the petitioner. The petitioner replied to the charge mentioning, therein, that the police force was not adequate at that point of time as required under the Rules, no follower was posted at the Camp, due to which the petitioner had to cook the meals. On the date of the incident only two Head constables and seven constables were posted at the camp against the required strength of 11 constables. On the said date, the Santry saw 40 to 50 labourers coming towards the camp. The Santry could not understand the motive of the naxalites disguised as labourers, therefore, the Santri did not alert the others nor made any signal or indication of imminent danger. According to the petitioner, the incharge of the camp, who is the Platoon Commander, barely visited the camp and resided at the Chauki, whereas, it was the duty of the Platoon Commander to stay at the camp. Due to the non availability of follower, the mess arrangement was not proper at the camp, therefore, the Platoon Commander was not staying at the camp; had the Platoon Commander being staying at the camp, he would have been the proper person to have taken an appropriate decision at the relevant time.
The Enquiry Officer on conducting the enquiry proposed the penalty of dismissal which was duly imposed by the disciplinary authority on 12 June 2002. Aggrieved, the petitioner preferred an appeal which was rejected by the third respondent, Deputy Inspector General of Police (P.A.C.), Varanasi Zone, Varanasi vide order dated 25 September 2002, thereafter, the revision was also turned down by the second respondent, Inspector General of Police (P.A.C.) on 28 May 2003.
Aggrieved, the petitioner preferred a claim petition, Vinod Kumar Tiwari Versus State of U.P. and others2 before the State Public Services Tribunal, Lucknow. The Tribunal heard the claim petition along with other petitions of similarly situated persons and by a common judgement and order dated 31 May 2007 allowed the claim petition setting aside the impugned orders, directing the reinstatement of the petitioner and giving liberty to the opposite party to conduct the enquiry afresh by re-evaluating the evidence on record and then drawing the conclusions.
Aggrieved, the State assailed the order of the Tribunal before the Lucknow Bench of this Court in a writ petition, State of U.P. and others Versus Vinod Kumar Tiwari3. This Court by judgment and order dated 31 March 2008 allowed the writ petition in part directing the disciplinary authority to pass a fresh and reasoned order, in accordance with law, on the basis of the evidence which was available on the record. Pursuant thereof, the fourth respondent, Commandant 39th Battalion, P.A.C., Mirzapur, passed an order on 25 August 2008 inflicting the punishment of dismissal. Aggrieved, petitioner preferred an appeal before the third respondent, Deputy Inspector of General of Police (P.A.C.), Varanasi Zone. The appellate authority on considering the facts and circumstances of the case and upon perusal and reassessment of the entire evidence, came to the conclusion that the punishment of dismissal was harsh and a lesser punishment would sub-serve the purpose, thus, directing the reinstatement of the petitioner. On the principle that different punishment cannot be awarded to a co-delinquent for the same incident, the order of the disciplinary authority was set aside, directing that a minor penalty, as awarded to constable Sanjai Kumar Rai, could be imposed upon the petitioner, if so desired by the disciplinary authority. Sanjai Kumar Rai was awarded censure entry for the same allegations.
After a lapse of more than 9 months, the second respondent, Inspector General of Police (P.A.C.), Eastern Zone, U.P., Lucknow in exercise of power under Rule 23 of the 1991 Rules issued a notice on 9 September 2009 calling upon the petitioner to show cause as to why the appellate order may not be revised. The revisional authority opined that there was no illegality or infirmity in conducting the disciplinary proceedings, and sufficient material was available on record to establish the charge. The responsibility and allegation in respect of Constable Sanjai Kumar Rai was different from that of the petitioner.
The petitioner aggrieved by the show cause notice, approached this Court in writ jurisdiction4, which was dismissed on 5 November 2009 directing the petitioner to file a reply to the notice. Pursuant thereof, the petitioner replied on 23 November 2009 reiterating the facts of the incident and the circumstances which had taken the petitioner and other fellow colleagues unawares of the incident, thus, there being no illegality or infirmity in the appellate order. Further, the petitioner was discriminated against as constable Sanjai Kumar Rai was given a lesser punishment, the appellate authority had considered the evidence available on record and had come to a conclusion that the disciplinary authority had erred in holding the petitioner responsible for dereliction of duty, whereas, admittedly, there was no followers posted at the camp and it was the petitioner and other constables who had to prepare the food at the mess. The Inspector General of Police (P.A.C.) by the impugned order dated 15 December 2009 allowed the revision and set aside the appellate order dated 29 December 2008, accordingly, upholding the order of termination passed by the disciplinary authority on 25 August 2008.
The petitioner has come up in writ jurisdiction assailing the order dated 15.12.2009 passed by the second respondent, Inspector General of Police (P.A.C.).
Learned Standing Counsel would submit that the impugned order is legal and within the jurisdiction of the revisional authority.
I have heard learned counsel for the parties and perused the record.
The only question for determination is as to whether the revisional authority in exercise of its suo moto powers under Rule 23 could have reappreciated the evidence and taken a different view in contradiction to the view taken by the appellate authority in the given facts and circumstances.
Submission of learned counsel for the petitioner is that the appellate authority had passed a detailed order, there was no element of perversity, the appellate authority had considered and re-appreciated the evidences, documents and had come to a conclusion that in the facts and circumstances of the case, in absence of the Platoon Commander and non availability of requisite number of constables and followers to run the mess, the constables, apart from their usual duty, had to manage the mess and in these circumstances, the camp was overpowered by naxalites disguised as labourers. The learned counsel, would therefore, submit that the revisional authority in exercise of its powers under Rule 23 could not have re-appreciated the evidence to arrive at a conclusion which was different from that of the appellate authority. If two views were possible, the view taken by the appellate authority would prevail, which could not have been substituted by the revisional authority.
The revisional jurisdiction as provided under Rule 23 is extracted:-
"Rule 23- (1) An officer whose appeal has been rejected by any authority subordinate to the Government is entitled to submit an application for revision to the superior authority next to the authority which has rejected his appeal within three months from the date of rejection of appeal as mentioned below:-
(a)...........
(b)..........
(c)........
On such an application, the powers of revision may be exercised only when, in consequence of flagrant irregularity, there appears to have been material injustice or miscarriage of justice;
Provided that the revising authority may on its own motion call for and examine the records of any order passed in appeal against which no revision has been preferred under this rule for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit:
Provided further that no order under the first proviso shall be made except after giving the person effected a reasonable opportunity of being heard in the matter.
In the case of State of Kerala v. KM Charia Abdullah & Co.5, the Court expressed the view that when the Legislature confers a right to appeal in one case and a discretionary remedy of revision in another, it may be deemed to have created two jurisdictions different in scope and content.
"Appeal" and "revision" are expressions of common usage in Indian statute and the distinction between "appellate jurisdiction" and "revisional jurisdiction" is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising Tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute. (Vide Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar6) According to the dictionary meaning "appeal" is the judicial examination of the decision by a higher court of the decision of an inferior court. Simply stated, appeal is a proceeding by which the defeated authority approach the higher authority or court to have the decision of a lower authority or court reversed. The appeal is thus a removal of a cause from an inferior court/authority to a superior court/authority for the purpose of testing the soundness of the decision of the inferior court. The appeal is a continuation of a proceeding.
The revisional authority, may at any time, on its own motion or on the application of any aggrieved person, call for and examine the records relating to the appeal for the purpose of satisfying itself as to the legality or propriety of such order or to the regularity of such procedure and may pass order in respect thereto as it may deem fit.
In order to embark upon an enquiry to find out the ambit and scope of the revisional power under Rule 23, extent, scope, ambit and meaning of the terms "legality or propriety" and "regularity, correctness, legality or propriety" will have to be determined.
A Constitution Bench in Hindustan Petroleum Corporation Limited Versus Dilbahar Singh7 was called upon to answer a reference regarding the scope and ambit of the revisional powers of the High Court under various Rent Control Acts. The Supreme Court had the occasion to determine the extent, scope and ambit of the meaning of the terms "legality or propriety" and "regularity, correctness, legality or propriety". The Court held as follows:-
"29.1. The ordinary meaning of the word "legality" is lawfulness. It refers to strict adherence to law, prescription, or doctrine; the quality of being legal.
29.2. The term "propriety" means fitness; appropriateness, aptitude; suitability; appropriateness to the circumstances or condition conformity with requirement; rules or principle, rightness, correctness, justness, accuracy.
29.3. The terms "correctness" and "propriety" ordinarily convey the same meaning, that is, something which is legal and proper. In its ordinary meaning and substance, "correctness" is compounded of "legality" and "propriety" and that which is legal and proper is "correct".
29.4. The expression "regularity" with reference to an order ordinarily relates to the procedure being followed in accord with the principles of natural justice and fair play."
The Court while explaining the expressions "appeal" and "revision" employed in a statute/rule, observed that the expression "revision" is meant to convey the idea of a much narrower jurisdiction than that conveyed in that expression "appeal". The use of two expressions "appeal" and "revision" is not without purpose and significance. Ordinarily, appellate jurisdiction involves a rehearing while it is not so in the case of revisional jurisdiction when the same statute provides the remedy by way of an "appeal" and so also of a "revision". If that were so, the revisional power would become coextensive with that of the trial court or the subordinate tribunal which is never the case. The revisional power is not wide enough to make it a second court/authority of second appeal. Under the garb of revisional jurisdiction, the revisional authority is not conferred a status of second authority of appeal and the authority cannot enlarge the scope of revisional jurisdiction to that extent.
In dealing with the finding of fact, the examination of findings of fact by the revisional authority is limited to satisfy itself to the legality and propriety of such order. Whether or not a finding of fact recorded by the subordinate authority is legal or proper, is required to be seen on the touchstone whether such finding of fact is based on some legal evidence or it suffers from any illegality by misreading of evidence or overlooking and ignoring the material evidence altogether or suffers from perversity or any such finding has resulted in gross miscarriage of justice. But the revisional power is not as wide as that of the appellate authority or such power is coextensive with that of the appellate authority or that the concluded finding of fact recorded by the original authority or the appellate authority can be interfered with by the revisional authority by reappreciating evidence because the revisional authority is not in agreement with the finding of fact recorded by the authority below. Revisional authority cannot reverse the finding of fact merely because on reappreciation of the evidence it has a different view on the findings of fact.
I have considered the proposition of law regarding the scope, extent and ambit of "appeal" and "revision".
Applying the law in the facts of the case in hand, it is evident that the revisional authority on reappreciating the material available on record, the evidences and statements of the delinquent officials had not recorded as to how the findings of the appellate authority was illegal or improper. The revisional authority had noted in the impugned order that the camp was situated in a naxal area, the petitioner along with constable Sanjai Kumar Rai was posted as Guard, at the time of attack they were negligent in defending the camp. The revisional authority disagreed with the appellate authority merely for the reason that the negligence on the part of the petitioner was not required to be established by an independent witness as the attack on the camp and consequently the constables running for their lives, was accepted by the delinquent employee in his statement. The revisional authority was in agreement with appellate authority that the petitioner as well as the constable Sanjai Kumar Rai, though posted as Guards, were assigned the work of cooking food on the direction and order of the Commander. The required number of constables were not posted at the camp nor were the followers. In the aforesaid admitted position, the revisional authority, took a different view, that despite non availability of the followers and the assignment of cooking work, the petitioner being a constable should have been alert while performing his duties even while he was cooking the food. Therefore, the revisional authority opined that at the time of attack the petitioner was negligent in performance of his duties. The revisional authority, finally concluded, that considering the overall facts and circumstances and the conduct of the constables posted at the camp, the petitioner being a constable and deputed for the protection of the camp was negligent in performance of duty because at the time of the attack the petitioner and the other constables had escaped, consequently, the naxalites were successful in destroying the Government property and looting the arms and armaments.
The revisional authority failed to point out the illegality and impropriety in the order of the appellate authority. No finding has been recorded regarding the illegality or irregularity of any procedure. It is also not the case of the revisional authority that facts and evidences were not considered or wrongly considered and applied on the wrong facts and circumstances of the case. The impugned order would reflect that the revisional authority had drawn inference on the same material and facts, but the revisional authority had taken distinct and different view from that of the appellate authority. The scope of "appeal" and "revision", discussed herein above, would not permit the revisional authority to re-appreciate the evidences to come to a different conclusion, save and except, when the revisional authority records a categorical finding regarding the legality and propriety of such order under revision. In my view the revisional authority had exceeded his jurisdiction by taking upon himself the role of a second authority of appeal which is not permissible under the Rules.
It is not disputed by the respondents that constable Sanjai Kumar Rai was also assigned the work of cooking. At the time of the incident he also acted in the same manner as the petitioner, however, a minor penalty was imposed upon Sanjai Kumar Rai, whereas, the petitioner was awarded a major penalty. In respect of other constables, no punishment was imposed upon constable Meraj Ahmad, Rajnath Verma and the Company Commander.
Learned counsel for the petitioner informed that the termination order of constable Bal Bachan and Head constable Rajnath has been set aside by this Court in writ jurisdiction and the writ petition of other constables are still pending.
Regarding quantum of punishment in cases where the co-delinquent is awarded lesser punishment, the Supreme Court relying upon Rajendra Yadav versus State of M.P8 and Obettee (P) Ltd. Versus Mohd.Shafiq Khan9 laid down the following principles in Lucknow Kshetriya Gramin Bank versus Rajendra Singh10:-
"19. The principles discussed above can be summed up and summarized as follows:
19.1 When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities;
19.2 The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority;
19.3 Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court;
19.4 Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.
19.5 The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co- delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable.
20. It is made clear that such a comparison is permissible only when the other employee(s) who is given lighter punishment was co- delinquent. Such a comparison is not permissible by citing the cases of other employees, as precedents, in all together different departmental enquiries."
The allegation against the petitioner is primarily of a general nature of not defending the camp at the time of the naxal attack. The appellate authority had noted the background in which the petitioner along with other constables acted at the relevant time. The guard strength was inadequate, seven guards against eleven, of which two guards, including the petitioner, were assigned the work of a cook. The Commander was not available when approximately fifty naxals attacked the camp. In these circumstances the first reaction of the guards was to take shelter to save their lives. The appellate authority in these circumstances and on considering the material, evidence and statements of the guards was of the view that the petitioner was wrongly held guilty by the Disciplinary Authority. The penalty awarded to other constables, in the admitted circumstances, was far lesser. The revisional authority failed to record as to how the charges of misconduct was not identical to that of Sanjai Kumar Rai or the petitioner was foisted with more serious charges. In this background the revisional authority exceeded his jurisdiction in interfering with penalty proposed by the appellate authority.
For the law and reasons stated above, the impugned order dated 15.12.2009 passed by the Inspector General of Police (P.A.C..), Eastern Zone, U.P., Lucknow is unsustainable and is accordingly quashed. The writ petition is allowed with all consequential benefits.
No order as to costs.
Order Date :- 30.03.2015 kkm