Allahabad High Court
Cp-248 Ramesh Chandra Mishra vs State Of U.P. Thru. Secy. Deptt. Of Home. ... on 11 April, 2018
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED A.F.R. Case :- SERVICE BENCH No. - 21781 of 2017 Petitioner :- Cp-248 Ramesh Chandra Mishra Respondent :- State of U.P. Through Secretary Department of Home. & Others Counsel for Petitioner :- Mukesh Kumar Tewari Counsel for Respondent :- C.S.C. Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II, J.)
1. Heard Mr. M.K. Tiwari, learned Counsel for the petitioner and learned Standing Counsel.
2. The writ petition has been instituted by the petitioner assailing impugned judgment and order dated 22.05.2017 passed by State Public Service Tribunal, Lucknow (hereinafter referred to as "Tribunal") passed in Reference/Claim Petition No. 1231 of 2010 and order dated 24.11.2004 passed by Superintendent of Police (Special Enquiry), U.P. Lucknow, order dated 21.11.2006 passed by Inspector General of Police (Special Enquiry), order dated 17.04.2007 passed by Senior Superintendent of Police, Meerut, order dated 22.07.2008 passed by Deputy Inspector General of Police, Meerut and order dated 15.04.2010 passed by Revisional Authority, i.e., Deputy Director General of Police (Door Sanchar), Lucknow.
3. Learned Tribunal has dismissed Reference Petition No. 1231 of 2010: Constable Ramesh Chandra Mishra Vs. State of U.P. and others vide impugned judgment and order dated 22.05.2017.
4. It is pleaded in the ground of the writ petition that the petitioner was recruited as Constable in the Civil Police at the Police Line, Meerut. His number is CP-248. He served the department being posted at different places with due satisfaction and utmost devotion of his superiors. The petitioner was posted at Police Headquarter (Special Enquiry) U.P., Jawahar Bhawan, Lucknow. A Charge-sheet was served to him on 24.01.2003. It was alleged that on 01.08.2001 at 5.00 p.m. he misbehaved with Sri Lal Bahadur Singh, the then Deputy Superintendent of Police, (Special Enquiry) U.P. Lucknow. His act was in nature of misconduct and indiscipline. The petitioner was directed to submit reply/written statement in his defence on or before 05.03.2003. The petitioner submitted his reply to the authority on 10.02.2003.
5. It is further contended that petitioner is a disciplined member of Police Force and he has always paid respect to the Senior Officers, but the petitioner was charge sheeted being a Brahmin by caste and the then Superintendent of Police being member of Scheduled Caste was adamant to punish the petitioner for reasons best known to him. It is mentioned that there is no sufficient evidence in respect of the allegations made by the authorities against the petitioner, but the inquiry officer submitted the report with the finding and conclusion that the allegations made by the Senior Officer against the petitioner were found proved and recommended with a punishment to place the petitioner at the minimum pay scale for a period of 03 years. The petitioner has provided Inquiry Report dated 07.10.2004 as Annexure-8. It is further pleaded that the petitioner in his explanation submitted all the fact in his defence, but opposite party no. 5 passed punishment order dated 24.11.2004 (Annexure-1) ignoring the material facts made available before him.
6. It is further contended that the petitioner preferred appeal before Deputy Inspector General of Police (Special Enquiry) U.P. Headquarter, Lucknow-opposite party no.4. The Appellate Authority-opposite party no.4 also over looked the material evidences and dismissed the appeal vide order dated 31.01.2005.
7. It is further mentioned that the petitioner had challenged the order dated 24.11.2004 and 31.01.2005 passed by opposite party no. 5 and 4 respectively in Writ Petition No. 442 (S/S) of 2006 (Annexure-10).
8. The petitioner has further pleaded that after dismissal of the writ petition, the petitioner filed a Claim Petition No. 254 of 2006 before the Tribunal, which was dismissed vide order dated 08.03.2006 with liberty to the petitioner to file the revision within 30 days before the Revisional Authority and directed it to decide the same by means of speaking order within a period of 02 months. In compliance of order dated 08.03.2006 (Annexure-11), the petitioner filed a Revision Petition before the Inspector General of Police (Special Enquiry) U.P. Lucknow, which was decided vide order dated 21.11.2006, whereby the Senior Superintendent of Police, Meerut was directed to pass order of dismissal of the petitioner from service. The petitioner has provided order dated 21.11.2006 (Annexure-2). The Senior Superintendent of Police, Meerut-Appointing Authority has dismissed the services of the petitioner vide order dated 17.04.2007 (Annexure-3).
9. It is further mentioned by the petitioner that he instituted Claim Petition No. 505 of 2007 challenging his dismissal order dated 17.04.2007. Learned Tribunal vide order dated 10.07.2007 dismissed this Claim Petition on the ground of alternative remedy of departmental appeal. It is further pleaded that the petitioner preferred appeal in compliance of order dated 10.07.2007 (Annexure-12) before the Deputy Inspector General of Police . This appeal was rejected vide order dated 22.07.2008 (Annexure-4).
10. The petitioner feeling aggrieved from the order dated 22.07.2008 and 17.04.2007 preferred Revision before Additional Director General of Police (Door Sanchar),U.P. Lucknow. It is contended that the learned Revisional Authority has not considered the good service record of petitioner prior to the alleged incident and the earlier order of punishment, whereby the petitioner was placed at minimum pay scale for the period of three years, which was just and proper. There is no material available for enhancement of punishment and dismissal of petitioner from the service.
11. The petitioner has further mentioned that the petitioner preferred the Reference Petition No. 1231 of 2010 : Constable Ramesh Chandra Mishra Vs. State of U.P. and others before learned Tribunal, which was dismissed vide impugned judgment and order dated 22.05.2017 observing that the allegations made against the petitioner were proved by the authorities and the Revisional Authority was empowered under Rule 24 of Rules, 1991 to enhance the punishment. The Petitioner has contended that the impugned order of dismissal of petitioner from service, the initial punishment order as well as the order of learned Tribunal are against the material evidences available on record and also against the settled proposition of law.
12. It is further contended that the learned Tribunal has not considered the fact that Sri Lal Bahadur Singh, the then Deputy Superintendent of Police, Special Enquiry, U.P. Lucknow being a member of Scheduled Caste was adamant and having malice intention to punish the petitioner, because the petitioner belongs to Brahmin caste. The Revisional Authority has awarded major punishment, which is arbitrary and illegal.
13. The Appellate Authority, Revisional Authority as well as learned Tribunal has not considered that Inquiry Officer has inquired the matter and submitted his report/recommendation and he proposed the punishment to the petitioner for minimum pay scale for a period of 03 years. It is mentioned that after inquiry the punishment order dated 24.11.2004 was passed, whereby opposite party no.4 passed the order awarding the petitioner with a punishment placing him at the minimum pay scale for a period of three years. This order was challenged by the petitioner by preferring appeal, which was dismissed. The Revisional Authority has no power to enhance the punishment by a major punishment.
14. It is further pleaded by the petitioner that there is no eye witness of alleged incident dated 01.08.2001. No body has adduced evidence to prove the allegations made against the petitioner. Therefore, order of punishment is bad in law and is liable to be set aside. The petitioner has served for more than 20 years of service and his age of superannuation is scheduled in the year 2017, but due to dismissal from the service, the petitioner could not get the service benefit.
15. It is also mentioned that the order passed by learned Tribunal is erroneous and against settled proposition of law. It has not considered that order of punishment dated 24.11.2004 was just and proper and it has also not considered the fact that petitioner has served for more than 20 years of service to the department. The order of dismissal passed by Revisional Authority is bad in law and liable to be set aside, because the same was passed in casual manner and without going into the depth of matter and also without considering the material available on record.
16. It is further submitted that the petitioner was initially appointed on 15.03.1977 and his age of superannuation was 17.03.2017, meaning thereby the petitioner ought to have retired during the pendency of case before learned Tribunal. The act of opposite parties is in violation of Articles 14 and 16 of the Constitution of India. The petitioner having no alternative and efficacious remedy than to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
17. On the above mentioned grounds, following reliefs has been sought:
"i. a writ, order or direction in the nature of certiorari for quashing the impugned judgment and order dated 22.05.2017 passed by Learned State Public Service Tribunal, Indira Bhawan, Lucknow in Reference Petition No. 1231/2010, order dated 15.04.2010 passed by Divisional Authority i.e. Deputy Director General of Police (Door Sanchar), Lucknow, order dated 22.07.2008 passed by Deputy Inspector General of Police, Meerut order dated 17.04.2007 passed by the Senior Superintendent of Police, District Meerut, order dated 21.11.2006 passed by Inspector General of Police (Special Enquiry) Lucknow as well as order dated 24.11.2004 passed by Superintendent of Police (Special Enquiry), U.P. Lucknow, contained as Annexure No. 1 to 6, in the interest of justice.
ii. a writ, order or direction in the nature of mandamus commanding the opposite parties to reinstate the petitioner in service till the date of superannuation and thereafter to pay all consequential benefits including arrears of salary giving no effect of orders impugned passed against the petitioner, in the interest of justice.
iii. a writ, order or direction in the nature of mandamus commanding the opposite parties to pay the retiral dues to the petitioner after reinstatement in service and not to give any effect of the impugned orders, in the interest of justice."
18. The respondents have filed counter affidavit by pleading that in year 2001, the petitioner was posted as Constable in Special Enquiry Cell, Jawahar Bhawan, Lucknow. On 01.08.2001, at about 05.30 p.m. the petitioner had misbehaved with Mr. Lal Bahadur Singh, who was the then Dy. S.P. Special Enquiry Cell, Jawahar Bhawan, Lucknow. The petitioner caught the shirt of Mr. Lal Bahadur Singh and suddenly pulled him out from the lift and took him to the gallery by using force. The petitioner abused Mr. Lal Bahadur Singh by using defamatory words for his caste and creed. He pushed him down due to which Mr. Lal Bahadur Singh had received injuries and the said injuries were medically examined in Civil Hospital, Lucknow. The aforesaid act of the petitioner had downgraded the image of the department also, hence with respect to the aforesaid act/misconduct of the petitioner, a disciplinary/departmental inquiry was conducted against the petitioner under Rule 14 (1) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules 1991 (hereinafter referred to as "Rules of 1991") for the following charge:
"tc vki o"kZ 2001 esa fo'ks"k tkap eq[;ky; m0 iz0 y[kuÅ esa dk;Zjr Fks rks fnukad 1-8-2001 dks lk;adky 5-00 cts vkius Jh yky cgknqj flag] rRdkyhu iqfyl mik/kh{kd] fo'ks"k tkap dh 'kVZ dks idM+ dj vf/kdkjh dh fyQV ls mUgsa ckgj [khapk] /kDdk eqDdk o xkyh xykSt dh rFkk ekjihV dhA vkidk ;g d`R; vkids vius drZO; ds ikyu ds izfr ?kksj vuq'kklughurk ,oa mn.Mrk dk ifjpk;d gS"
19. It is further contended in counter affidavit that the disciplinary/departmental inquiry was conducted against the petitioner under the provisions of the aforesaid Rules of 1991 with respect to the aforesaid charge, in which the petitioner was found guilty. Hence vide order of the respondent no.5 dated 24.11.2004, the petitioner was reverted to the minimum of the pay scale for 3 years. Against the aforesaid punishment order passed by respondent no.5, the petitioner had preferred an appeal, which was rejected by the order dated 31.01.2005 by respondent no.4 Against both the orders, the petitioner had preferred a Writ Petition No. 442 (S/S) of 2006, which was dismissed vide order dated 20.01.2006 passed by this Court, on the basis of availability of an alternative remedy of filing a Claim Petition before the Learned Tribunal. Thereafter, a Claim Petition No. 254 of 2006 was filed by the petitioner before the Tribunal against the aforesaid punishment, which was also dismissed with the direction/liberty to the petitioner to prefer a revision before the Revisional Authority. After this, the petitioner had filed a Revision which was considered by the concerned authority in accordance with law and finally, by order no. fo0 tk0&106 ¼2½ 2001 of the Revisional Authority (the respondent No.8) dated 21.11.2006, the direction was issued to dismiss the petitioner from service. In compliance/pursuance of the aforesaid order of respondent No.8 dated 21.11.2006, the petitioner was dismissed from police service by the order No. PF-23/2006 dated 17.04.2007 issued/passed by the then Superintendent of Police, District Meerut.
20. The respondents have mentioned in counter affidavit that against the aforesaid order of dismissal dated 17.04.2007, the petitioner had preferred an appeal before the respondent No. 3, which was rejected by the order dated 22.07.2008 (no.-D-Com-Appeal-39-2007) passed by the respondent no.3, being devoid of merit. Against the aforesaid dismissal order dated 17.04.2007 and appellate order dated 22.07.2008, the petitioner had filed a revision before the respondent No.2, which was also rejected by the order no.A-741/2009(revision) dated 15.04.2010, issued/passed by the respondent no.2. Thereafter, against the aforesaid dismissal, appellate and revision orders; the petitioner had filed a Claim Petition No. 1231 of 2010 before the learned Tribunal, which was dismissed by the judgment and order of learned Tribunal dated 22.05.2017. Against the aforesaid judgment and order of learned Tribunal dated 22.05.2017 and the aforesaid dismissal, appellate and revisional orders, the present writ petition has been filed by the petitioner before this Court.
21. The respondents have also mentioned in counter affidavit that the petitioner was reverted to the minimum of the pay scale for 3 years vide order dated 24.11.2004 passed by the respondent no.5. The Superintendent of Police, Meerut passed order dated 17.4.2007 in compliance of order dated 21.11.2006 passed by respondent no.8.
22. The respondents have further pleaded that the guilt of the petitioner was fully established in this matter on the basis of the documents available on records, hence the punishment order was passed by the competent authority after giving the full opportunity of hearing to the petitioner, the same is reasoned and speaking order passed in accordance with law, rules and regulations of the department and also in accordance with the principles of natural justice.
23. It it further pleaded that the learned Tribunal has passed impugned judgment and order after considering all the aspects of the matter, which is perfectly just, valid and in accordance with law and the same is free from the voice of any illegality. It is further contended that the act of the authorities concerned are perfectly just, valid and in accordance with law and the same is not in violation of any fundamental right of the petitioner. The grounds taken in writ petition by the petitioner are not sustainable in the eyes of law, hence liable to be dismissed, being devoid of merits.
24. The petitioner has filed rejoinder affidavit reiterating his earlier contentions and controverting the averments of counter affidavit.
25. We have perused Charge-sheet dated 24.01.2003 (Annexure-7), which was served on the petitioner by the Inquiry Officer- Additional Superintendent of Police (Special Inquiry).
It is mentioned in the charge-sheet that witnesses mentioned at Serial No. 1 to 7 would be produced during the course of inquiry to prove charge. The petitioner had admitted that he submitted his reply on 10.02.2003 before the Inquiry Officer. In para 6 of the writ petition, petitioner has only averred that he is a disciplined member of police force and he respects the senior officer, but the petitioner was charge-sheeted being a Brahmin by caste and the then Superintendent of Police being member of Scheduled Caste was adamant to punish the petitioner for reasons best known to him. He has not brought on record his reply dated 10.02.2003.
26. The petitioner has annexed Inquiry Report dated 07.10.2004 as Annexure-8 with the writ petition, therefore Inquiry Report dated 07.10.2004 was well within his knowledge. On perusal of the same it reveals that the Inquiry Officer has recorded evidence of witness no.1 Head Constable Sri Kishori Lal, witness no.2, Constable Pramod Kumar Tiwari, witness no.3 Accountant Sri Ajai Kumar Srivastava, witness no.4 Constable Abdul Saleem, PW-5 Sri Onkar Verma, PW-6 Dr. Ashok Kumar Gangwar, PW-7 victim Sri Lal Bahadur Singh, Dy. S.P.. PW-8 Sri Jitendra Sonkar, Superintendent of Police who conducted preliminary inquiry against the petitioner. The Inquiry Officer had afforded opportunity to the petitioner to cross examine these witnesses during the course of inquiry.
27. During examination-in-chief and cross examination of victim PW-7 Sri Lal Bahadur Singh this fact was disclosed by the victim that he conducted preliminary inquiry against the petitioner Constable Ramesh Chandra Mishra regarding his absence from duty and he recommended for sanction of leave without pay for a period of his absence. The preliminary inquiry made by the victim Sri Lal Bahadur Singh and recommendation made by him was the motive for the petitioner to commit incident dated 01.08.2001 with PW-7 victim when victim boarded lift at Jawahar Bhawan on 01.08.2001 at 5.00 p.m. The petitioner caught hold him by collar of shirt and dragged him out of lift towards Cultural Department near stair case. The petitioner pushed him towards window glasses. In the meanwhile victim gripped cloths worn by the petitioner, but fell down on floor. The petitioner assaulted the victim at his chest with fists and caused injuries to him.
28. The Inquiry Officer has appreciated and evaluated evidence of witnesses of the department and perused file of preliminary inquiry No. 115 (24 of 2001), which was conducted by the victim Sri Lal Bahadur Singh regarding absence of the petitioner during the period 13.05.2001 to 20.05.2001, wherein Sri Lal Bahadur Singh, Deputy Superintendent recommended for sanction of leave without pay for 08 days and admonition for future. The then Superintendent of Police (Special Inquiry) appointed the victim as Inquiry Officer vide order dated 12.06.2001. A Show Cause Notice dated 25.07.2001 was issued to the petitioner and his explanation was not found satisfactory. Therefore, Superintendent of Police Sri Ram Sewak sanctioned leave without pay during the period 13.05.2001 up to 20.05.2001 i.e.for 08 days.
29. The Inquiry Officer has mentioned in inquiry report that the Accountant Sri Ajay Kumar Srivastava, Head Constable Kishori Lal and Constable Abdul Saleem had adduced evidence that on 01.08.2001 Sri Lal Bahadur Singh Deputy Superintendent of Police came in the office of Special Inquiry (Establishment) at about 5.00 p.m. to receive his salary. The petitioner Constable Sri Ramesh Chandra Mishra was also present in the office. When the victim left the office, Constable Sri Ramesh Chandra Mishra also left the office. Immediately Sri LaL Bahadur Singh returned back in the office after 20 minutes and apprised these witnesses that Constable Sri Ramesh Chandra Mishra assaulted him near lift. He was terrified and in panic state and reached the office in running position. These witnesses assessed from mental and physical state of the victim that some incident occurred with him.
30. Inquiry Officer has also recorded finding that witnesses Constable Pramod Kumar Tiwari and Constable Onkar Verma also corroborated this statement of witnesses Ajay Kumar Srivastava, Kishori Lal and Abdul Saleem that the victim was terrified after the incident. They saw that victim, at that time was perturbed, his shirt was out from his pant. Constable Pramod Kumar Tiwari took the victim at Civil Hospital. E.N.T. Surgeon Dr. Ashok Gangwar PW-6 observed pain in stomach/abdomen and body of the victim. He applied two injection and gave treatment to him. These witnesses Constable Pramod Kumar Tiwari and Constable Onkar Verma were present at about 6.00 p.m. at tea shop situated at Gate of Jawahar Bhawan. The Constable Ramesh Chandra Mishra was traced after the incident by these witnesses, but he fled away from the place of incident.
31. The Inquiry Officer has also considered explanation/reply dated 10.02.2003 submitted by the petitioner and appreciated and analyzed evidence of DW-1 Sri Jagdeesh, DW-2 Sri Ram Sewak, DW-3 Sri Vishnu Dayal.
32. The petitioner could not prove this fact that on 01.08.2001 victim Sri Lal Bahadur Singh, Deputy Superintendent of Police reached near lift, where the petitioner was waiting for lift to go upward. The petitioner had a conversation with the victim regarding punishment awarded to him on account of preliminary inquiry conducted by the victim. Sri Lal Bahadur Singh got annoyed and told him that he may apprise Superintendent of Police as he wishes. The victim himself scolded and abused him when petitioner tried to board the lift. Sri Lal Bahadur Singh victim dragged him by holding his collar. The victim also told him that this lift is meant for officers, he could not use it. He assaulted him, then petitioner said that he will inform the Superintendent of Police regarding this incident. Victim told him that if petitioner would make complaint against him, then he would get his services terminated. The petitioner under duress being terrified could not make any complaint against the victim.
33. This incident allegedly committed by the victim was not corroborated by defence witnesses. DW-1 Jagdeesh, Lift Man, Jawahar Bhawan, has stated that on 01.08.2001 he was on duty from 8.00 a.m. up to 2.00 p.m., therefore, he did not see any such incident (as disclosed by victim or the petitioner). DW-2 Ram Sewak and DW-3 Vishnu Dayal has accepted this fact that on 01.08.2001 they were going downwards by lift. Constable Ramesh Chandra Mishra, the petitioner and some officer were also present in the lift. There was altercation between them (victim and the petitioner). They did not saw any incident of assault occurred between them. DW-3 Vishnu Dayal has also stated that he asked the petitioner what was the reason for altercation, he did not apprise anything to him. The petitioner could not produce Sri Sanjeev Sharma as DW-4. Therefore, by evidence of defence witnesses the petitioner could not prove his version stated before the Inquiry Officer.
34. After appreciating evidence of victim Sri Lal Bahadur Singh, Deputy Superintendent of Police and other witnesses and evidence of Dr. Ashok Gangwar PW-6 and defence witnesses produced on behalf of the petitioner, the Inquiry Officer has recorded finding that the petitioner Sri Ramesh Chandra Mishra misbehaved with the victim by dragging him by holding collar of his shirt, assaulted him with fists. The witnesses produced during the course of inquiry on behalf of victim has proved the fact that they saw the victim after incident in a panic and terrified position. His cloths were not in order and he was perturbed. The defence witnesses DW-2 Ram Sewak and DW-3 Vishnu Dayal have also corroborated these facts that they saw the petitioner while he indulged in an altercation in the lift with the victim Lal Bahadur Singh.
35. Evidence of witnesses Kishori Lal, Pramod Kumar Tiwari, Accountant Ajay Kumar Srivastava, Constable Abdul Saleem, Constable Onkar Verma is admissible under Section 6 of Evidence Act on the principle of res geste, because victim Sri Lal Bahadur Singh, Deputy Superintendent of Police apprised these witnesses that the petitioner committed incident on 01.08.2001 at about 5.00 p.m. with him and assaulted him. Constable Pramod Kumar Tiwari brought the victim at Civil Hospital and PW-6 Dr. Ashok Gangwar gave treatment to the victim.
36. PW-8 Sri Jitendra Sonkar, Superintendent of Police has conducted preliminary Inquiry regarding incident dated 01.08.2001. He had also recorded statement of above mentioned witnesses and recommended on 25.08.2001 for initiation of departmental inquiry under Rule 14 (1) of Rules of 1991. He has further stated that during his posting in the department of Special Inquiry for about three and quarter year, no Lift Man was found by him in the lift installed in Jawahar Bhawan. He has also stated that the Cultural department is situated at a distance from place of incident. The place of incident was found near lift as alleged by victim PW-7 Sri Lal Bahadur Singh.
37. The Inquiry Officer has submitted his inquiry report dated 07.10.2004 along with his recommendation for punishment of keeping him at minimum pay scale for three years. The Inquiry Officer has afforded full opportunity of hearing during the course of inquiry and opportunity to cross examine witnesses produced on behalf of department. He was also afforded opportunity to adduce defence evidence. Therefore, Inquiry Report dated 07.10.2004 is based on evidence recorded by the Inquiry Officer. There is no infirmity in conducting inquiry by the Inquiry Officer.
38. We have perused punishment order dated 24.11.2004 passed by Disciplinary Authority, Superintendent of Police (Special Inquiry), Lucknow. The Disciplinary Authority has considered the charges framed against the petitioner and inquiry report dated 07.10.2004 submitted by Inquiry Officer, which was approved by him. A Show Cause Notice dated 04.11.2004 was issued against the petitioner by proposing punishment for his reversion on the minimum pay scale for three years. It is mentioned in the punishment order dated 24.11.2004 that the petitioner submitted his explanation dated 17.11.2004 which was considered by the Disciplinary Authority and no substance was found in his explanation. Therefore, punishment of reversion on minimum pay scale for three years was passed against the petitioner. The petitioner has not brought on record the explanation dated 17.11.2004 submitted by him before Disciplinary Authority. It is not clarified in the pleadings and grounds of writ petition that which fact was not considered by the Disciplinary Authority mentioned by him in his explanation dated 17.11.2004.
39. We have also perused order dated 31.01.2005 (Annexure-9) passed by Appellate Authority. The petitioner had preferred appeal challenging his punishment order dated 24.11.2004. The Appellate Authority has observed that the petitioner was found guilty for assaulting his senior officer Sri Lal Bahadur Singh, Deputy Superintendent of Police on 01.08.2001 in the evening. The Appellate Authority has considered objection Nos. 1,2 and 4 to 8 raised in appeal and found that no fact or document was produced by the petitioner/appellant to substantiate his contentions made in the appeal. The Appellate Authority has also considered the defence version of the petitioner that the victim Sri Lal Bahadur Singh himself assaulted him while he asked for his punishment in the preliminary inquiry conducted by the victim which he could not prove.
40. The contention mentioned in point no.3 Sub-Clause "Aa" "Ba" "Sa" "Da" were not proved by the appellant. The Appellate Authority has also considered the contentions of appeal mentioned at Serial Nos. 1 to 6 and available documents. The Appellate Authority reached the conclusion that the appeal was liable to be dismissed, even after considering the humanitarian grounds. The Appellate Authority vide speaking and reasoned order dated 31.01.2005 has dismissed appeal preferred by the petitioner challenging his punishment order dated 24.11.2004. The Appellate Authority has recorded finding that the conduct of the petitioner comes within purview of indiscipline, because he was the member of disciplined police force, even then he assaulted on 01.08.2001 to his senior officer Sri Lal Bahadur Singh posted in Special Inquiry department, Lucknow.
41. The petitioner preferred Writ Petition No. 442 (S/S) of 2006 before this Court. This writ petition was dismissed vide order dated 20.01.2006. Copy of order dated 20.01.2006 (Annexure-10) has been perused by us. The observation of the Court is as follows:
" Under challenge is an order dated 31.01.2005 by which the petitioner appeal against the order of punishment dated 24.11.2004 was dismissed. This order can be assailed by filing a claim petition before the U.P. Public Services Tribunal under Section 4 of the U.P. Public Services Tribunal Act, 1976.
Accordingly the writ petition is dismissed on the ground of an efficacious alternative remedy being available to the petitioner."
42. The petitioner after dismissal of Writ Petition No. 442 (S/S) of 2006 instituted Claim Petition 2545 of 2006 before the Tribunal. This Claim Petition was disposed off vide order dated 08.03.2006 by observing that:
"The petitioner has been awarded the punishment by means of order dated 24.03.2006 (Annexure No.A) for the misconduct having been committed by the petitioner. The petitioner has filed appeal under Section 20 (1) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 against the punishment order which has been rejected on dated 31.01.2006..............However it has not availed the statutory remedy of filing revision as envisaged under Rule 23 of the aforementioned Rules of 1991 and has filed this claim petition which appears to be prematured.
The claim petition, therefore, is dismissed as premature, however, with liberty to the petitioner to file revision petition to the revisional authority within a period of 30 days. In case the revision petition is filed within the aforesaid period, the revisional authority shall consider and decide the same by means of a speaking order within a period of 02 months from the date of receipt of revision petition and certified copy of this order. "
43. The petitioner in compliance of order dated 08.03.2006 passed in Claim Petition No. 254 of 2006, instituted revision before Competent Authority of the department. The Revisional Authority- Inspector General of Police (Special Inquiry), Lucknow has considered the facts and circumstances of incident dated 01.08.2001 occurred at 5.00 p.m. and found that the petitioner was held guilty in the departmental proceedings conducted against him vide punishment order dated 24.11.2001,which is transcribed wrongly, actual date of punishment order is 24.11.2004, it may be typhographical mistake. It is also mentioned by the Revisional Authority that appeal preferred by the appellant had been dismissed vide order dated 31.01.2005 by the Appellate Authority.
44. The Revisional Authority has also mentioned in his order that Writ Petition No. 442 (S/S) of 2006 instituted by the petitioner was dismissed vide order dated 20.01.2006, hence Claim Petition No. 254 of 2006 was instituted by the petitioner, which was decided vide order dated 08.03.2006 and it was directed that Revision Petition be instituted by the petitioner. The Revisional Authority has recorded finding that since the petitioner assaulted the victim Sri Lal Bahadur Singh, Deputy Superintendent of Police his senior officer, therefore, victim felt humiliated/insulted and his self-respect/esteem and dignity was degraded by the conduct of the petitioner. In para 6 after considering contentions of Revision Petition and material available on record finding was recorded that charges/allegations framed against the petitioner were fully proved. The departmental discipline was stigmatized and it was adversely affected, because police department is a disciplined force. Therefore, his conduct was within purview of indiscipline, which sent wrong message among other police personnel of the department and image of police department was tarnished.
45. The Revisional Authority has mentioned in order dated 21.11.2006 that a Show Cause Notice dated 17.07.2006 was issued against the petitioner as to why his services should not be terminated from police department by enhancing punishment according to provisions of Section 24 of Rules of 1991. The petitioner submitted his explanation/reply dated 28.08.2006, which was considered by Revisional Authority. A report of Superintendent of Police and Deputy Inspector General of Police of Special Inquiry Department was sought by the Revisional Authority. After considering all the material, Show Cause Notice issued against the petitioner was confirmed and his services were terminated and he was dismissed from the service vide order dated 21.11.2006.
46. The Superintendent of Police, Special Inquiry, Lucknow vide order dated 29.02.2016 provided to the petitioner photo copy of order dated 21.11.2006, in response of application dated 16.02.2016 forwarded by the petitioner under Right to Information Act.
47. The petitioner has not mentioned in the grounds of writ petition that the copy of the order dated 21.11.2006 was not supplied to him earlier. Therefore, order dated 21.11.2006 was well within his knowledge, as per contentions mentioned in para 13 of the writ petition. The Revisional Authority-Inspector General of Police, Special Inquiry, U.P. Lucknow directed Senior Superintendent of Police, Meerut to pass order of dismissal of the petitioner.
48. The services of the petitioner was dismissed by Senior Superintendent of Police, Meerut/Appointing Authority vide order dated 17.04.2007. The petitioner had challenged this dismissal order dated 17.04.2007 in Claim Petition No. 505 of 2007 instituted by him before Tribunal. The Tribunal vide order dated 10.07.2007 has observed as follows:
" We have perused the record.
The impugned order was passed by the Senior Superintendent of Police, Meerut on 17.4.2007 whereby the petitioner was dismissed from service. Petitioner had a remedy of filing an appeal before the D.I.G. and a revision also lies against the appellate order which he did not avail.
In the circumstances the petition having been filed without exhausting the departmental remedies in accordance with the provisions of Sub Section 5 of Section 4 of the U.P. Public Services (Tribunal) Act, 1976 cannot be entertained.
The petition is therefore, dismissed as not maintainable."
49. The petitioner in compliance of order dated 10.08.2007 preferred appeal before Deputy Inspector General of Police-Appellate Authority, which has considered the contentions made by the petitioner in this appeal and rejected the appeal vide order dated 22.07.2008.
50. The petitioner again preferred revision challenging order dated 17.04.2007 and 22.07.2008 before Additional Director General of Police (Door Sanchar), U.P., Lucknow. It is argued by learned Counsel for the petitioner on the basis of contention mentioned in para 17 of writ petition that the Revisional Authority has not considered the good service record of the petitioner prior to the alleged incident and has also not considered the fact that earlier order of punishment whereby petitioner was placed at minimum pay scale for a period of three years was just and proper and there is no material for enhancement of punishment of dismissal of petitioner from service. There is no substance in this arguments because revisional authority has considered all facts and circumstances and aspects in which punishment order dated 17.04.2007 has been passed.
51. This Revision was also rejected by the Revisional Authority, therefore, petitioner instituted Reference Petition 1231 of 2010: Constable Ramesh Chandra Mishra Vs. State of U.P. and others challenging the order dated 17.04.2007 and 21.11.2006.
52. The Tribunal vide impugned judgment and order dated 22.05.2017 has dismissed Claim/Reference Petition by observing that the allegations made against the petitioner were proved by the authorities and Revisional Authority. The Revisional Authority has been empowered under the Rule-24 of Rules, 1991 to enhance a punishment.
53. We have perused order dated 17.04.2007 passed by Senior Superintendent of Police, Meerut. Who has considered the facts and circumstances and earlier orders passed by Tribunal and Revisional and Appellate Authorities, in compliance of order dated 21.11.2006 passed by Inspector General of Police, Special Inquiry, U.P., Lucknow. On the basis of order dated 21.11.2006 passed by Revisional Authority the Superintendent of Police, Meerut after finding the fact that Show Cause Notice issued under Section 24 of Rules, 1991 had been confirmed by Inspector General of Police, Special Inquiry, U.P., Lucknow, therefore, as Appointing Authority he passed dismissal order from service against the petitioner. The Senior Superintendent of Police, Meerut had no option, but to comply order dated 21.11.2006 passed by revisional authority. He has only complied with direction given vide order dated 21.11.2006.
54. We have perused order dated 22.07.2008 passed by Appellate Authority. The Appellate Authority in compliance of order dated 10.07.2007 passed in Claim Petition No. 505 of 2007 by the Tribunal, has considered the facts and circumstances and earlier orders passed by revisional authority and contentions of petitioner mentioned in the memo of appeal and found that the petitioner/appellant was dismissed from service due to his misconduct of assaulting his senior officer and his misconduct came within purview of indiscipline. His explanations submitted before Revisional and Appellate Authorities were not found satisfactory, therefore, he was punished after holding him guilty according to process of law. Humanitarian ground was also considered, as it was mentioned in para 7 of the order dated 22.07.2008 and it was observed that petitioner was himself responsible for his family conditions. The contention made in the grounds of appeal were not substantiated by the petitioner before Appellate Authority, therefore, his appeal was dismissed.
55. We have also perused order dated 15.04.2010 passed by Additional Director of Police (Tele Communication), U.P., Lucknow. In this revision all the facts were considered regarding order dated 17.04.2007 and 22.07.2008 passed against the petitioner. Earlier orders passed by departmental authorities, this Court and Tribunal were also considered. This revision was preferred by the petitioner against his punishment order and order passed by Appellate Authority. The contentions mentioned in the revision petition were considered in detail by the Revisional Authority and it was found that petitioner assaulted Sri Lal Bahadur Singh. He torn clothes of the victim and victim sustained injuries in this incident dated 01.08.2001 occurred at 5.30 p.m. The victim felt repent, self-respect/ esteem and personal dignity and dignity of his post was degraded by the conduct of the petitioner. A wrong message went among the other police personnel on the basis of his misconduct of indiscipline. The image of police department was tarnished by his act.
56. This fact was also considered that vide punishment order dated 24.11.2004 he was reverted on the minimum pay scale for three years, which was again revised by the revisional authority and he was dismissed. This punishment was found commensurate to the misconduct of indiscipline by the petitioner. The punishment order passed by Disciplinary Authority and Appellate Authority were found reasoned and speaking order and in accordance with principles of natural justice. Therefore, this Revision was dismissed vide order dated 15.04.2010.
57. We have perused impugned judgment and order dated 22.05.2017 passed by learned Tribunal. It is pertinent to mention here that in grounds of writ petition in Para 34 the petitioner has mentioned that petitioner was initially appointed on 15.03.1977 and his date of superannuation was 17.03.2017. Therefore, petitioner ought to have retired during pendency of Claim Petition No. 1231 of 2010 before learned Tribunal.
58. Learned Tribunal has considered the facts and circumstances of this case and also orders passed by Disciplinary Authority, Revisional Authority and Appellate Authority. Earlier order of punishment dated 24.11.2004 and order dated 31.01.2005 passed by Appellate Authority were also considered. Learned Tribunal has recorded finding that punishment order dated 24.11.2004 was revised by Revisional Authority by invoking power in accordance with Rule 24 of Rules, 1991.
59. We have also perused Rule 24 of Rules, 1991, which is quoted in the impugned judgment and order, which reads as under:
"24. "Enhancement of punishment---A punishment may be enhanced by-----
(a) an appellate authority on appeal; or
(b) any authority superior to the authority to whom an application will lie, in exercise of revisionary powers;
Provided that before enhancing the punishment such authority shall call upon the officer punished, to show cause why his punishment should not be so enhanced, and that an order by such authority so enhancing a punishment shall be deemed to be an original order of punishment."
60. Learned Tribunal has found that Show Cause Notice dated 17.07.2006 was issued against the petitioner before enhancing the punishment in accordance with proviso of Rule 24 of Rules, 1991. The Revisional Authority was having authority to enhance the punishment imposed against the petitioner after affording opportunity of hearing to the petitioner and the order dated 21.11.2006 enhancing the punishment was passed by the Revisional Authority in accordance with law. There was no infirmity in decision making process, because during the course of inquiry petitioner was afforded opportunity of hearing. Reversion to minimum pay scale for 3 years and dismissal are both major punishment, which were within jurisdiction/authority of appointing authority Superintendent of Police, Meerut. In compliance of order dated 21.11.2006, dismissal order dated 17.04.2007 was passed by Superintendent of Police, Meerut.
61. The Appellate Authorities vide order dated 31.01.2005 and 22.07. 2008 dismissed appeals preferred by the petitioner against punishment orders dated 24.11.2004 and 17.04.2007 respectively, after considering material on record. These orders are speaking and reasoned orders. Likewise, Revisional Authorities have also considered the facts and circumstances and material available on record and explanations of the petitioner and rejected Revision Petition vide orders dated 21.11.2006 and 15.04.2010, which were also reasoned and speaking orders.
62. Learned Tribunal has rightly relied upon Case Law Kalinga Mining Corporation Vs. Union of India and others, (2013) 5 SCC 252, in which Hon'ble Apex Court has held as follows:
"It is by now well settled that judicial review of the administrative action/quasi judicial orders passed by the Government is limited only to correcting the errors of law or fundamental procedural requirements which may lead to manifest injustice. When the conclusions of the authority are based on evidence, the same cannot be reappreciated by the Court in exercise of its powers of judicial review."
63. Likewise, Tribunal has also relied upon Case Law State of U.P. and another Vs. Manmohan Nath Sinha and another, (2009) 8 SCC, 310, in which Hon'ble Apex Court has held as follows:
"The judicial review cannot be directed against the decision but has to be confined to the decision making process."
64. On the basis of above facts and circumstances and discussions, there is no substance in the argument of learned Counsel for the petitioner that Revisional Authority while enhancing the punishment imposed against the petitioner vide order dated 21.11.2006 has not recorded valid reasons.
65. We have examined impugned order dated 21.11.2006 passed by Revisional Authority and order dated 17.04.2007 passed by Senior Superintendent of Police, Meerut and order dated 22.07.2008 passed by Appellate Authority as well as Revisional Order dated 15.04.2010 and found that valid and appropriate reasons, as mentioned above at proper place by us, has been recorded, while concerned authorities passed the said orders. There was no deficiency or infirmity in decision making process. These orders were passed by these authorities after affording opportunity of hearing to the petitioner by complying principles of natural justice also.
66. Learned Counsel for the petitioner has argued on the basis of contentions of petitioner that the victim Sri Lal Bahadur Singh, Deputy Superintendent of Police, Special Inquiry and the then Superintendent of Police, Special Inquiry, Lucknow Sri Ram Sewak belonged to Scheduled Caste and petitioner belonged to Brahmin caste, therefore, his senior officers were adamant to punish him. Therefore, departmental inquiry was initiated against him. It is pertinent to mention here that Sri Ram Sewak, the then Superintendent of Police, Special Inquiry, Lucknow was not arrayed personally in Claim Petitions instituted by petitioner. Sri Ram Sewak, the then Superintendent of Police, Special Inquiry, Lucknow has not been arrayed as opposite party in this writ petition also. On the basis of malice no adverse order can be passed against a person, who was not arrayed as party in the Claim Petition or Writ Petition.
67. Hon'ble Supreme Court in the following Case Laws has held regarding malice of any person, who has not been arrayed as party in the proceedings.
68. In State of Bihar and Anr. vs. P.P. Sharma, IAS and Anr. 1992 Supp(1)SCC222 in para 55 of the judgement, the apex Court held as under :-
"55. It is a settled law that the person against whom mala fides or bias was imputed should be impleaded economize as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegation would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R.K. Singh and G.N. Sharma were not impleaded. On this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them."
69. In All India State Bank Officers' Federation and Ors. vs. Union of India (UOI) and Ors. JT 1996 (8)SC 550,in para 23,.....the relevant observation of the apex court relevant are reproduced as under:-
"23.....the person against whom mala fides are alleged must be made a party to the proceeding. The allegation that the policy was amended with a view to benefit respondents 4 and 5 would amount to the petitioners contending that the Board of Directors of the Bank sought to favour respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot be allowed to raise the allegations of mala fide, which allegations, in fact, are without merit."
70. On perusal of record it reveals that Sri Akhileshwar Nath Mishra, the then Superintendent of Police, Special Inquiry, Lucknow has considered Inquiry Report dated 07.10.2004 and initially passed punishment order dated 24.11.2004 against the petitioner. Sri Akhileshwar Nath Mishra does not belong to Scheduled Caste category. Sri Ram Sewak, the then Superintendent of Police, Special Inquiry, has not passed punishment order against the petitioner. Therefore, no malice can be inferred in these facts and circumstances against Sri Ram Sewak, the then Superintendent of Police, Special Inquiry, Lucknow that he was adamant to punish the petitioner.
71. The Inquiry Officer Sri Gulab Singh framed charge on 24.01.2003 against the petitioner. There is no substance in the arguments put forth by learned Counsel for the petitioner that senior officers being member of Scheduled Caste were adamant to punish the petitioner, being a Brahim by caste. No malice can be attributed either to victim or the then Superintendent of Police, Special Inquiry, Sri Ram Sewak. The Inquiry Officer has mentioned in Inquiry Report that Sri Ram Sewak, Superintendent of Police, Special Inquiry, passed order dated 12.06.2001 in file no. 115 (24/2001) for initiation of preliminary inquiry, which had to be conducted by Sri Lal Bahadur Singh, Deputy Superintendent of Police, Special Inquiry) regarding absence of the petitioner during the period 13.05.2001 up to 20.05.2001 and leave of the petitioner was sanctioned without pay during period 13.05.2001 up to 20.05.2001 on the basis of preliminary inquiry conducted by the victim.
72. In the above facts and circumstances, there is no scope of judicial review to interfere in the impugned judgment and order dated 22.05.2017 delivered by learned Tribunal. No interference is called for by this writ court under Article 226 of the Constitution of India to invoke equitable jurisdiction in favour of the petitioner.
73. The Writ Petition being devoid of merits and is liable to be dismissed.
74. Accordingly, dismissed.
Order Date :- 11.4.2018 Arvind