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2005 DIGILAW 72 (ALL)

PREM KUMAR SINGH v. STATE OF U P

2005-01-17

JAGDISH BHALLA, P.K.CHATTERJI

body2005
P. K. CHATTERJI, J. This petition is directed against the judgment and order dated 20-12-1985 passed by U. P. State Public Services Tribunal (hereinafter referred as Tribunal ). 2. The petitioner joined the Police Force as Sub-Inspector on 8-12-1948 and was confirmed on 15-2- 1952. Proceedings under Section 7 of the Police Act were started against the petitioner and the petitioner submitted his reply and after evidence from both the sides, the trying officer recommended the dismissal of the petitioner vide his report dated 5-10-1963 and consequent there upon a show-cause notice was issued to petitioner on 27-12-1963. The punishing authority vide his order dated 14-4-1964 reduced the rank of the petitioner to the lowest scale of Sub-Inspector for three years. The petitioner being aggrieved by the order of Punishing Authority preferred an appeal to the Inspector General of Police who in turn issued a show-cause notice on 11-3-1966 for enhancing the punishment inflicted by the Deputy Inspector General of Police. A reply was submitted by the petitioner to the said notice on 12- 6-1966. The Inspector General of Police by his order dated 8-8-1966 dismissed the petitioner from service and the petitioner submitted a appeal to the Government on 17-11-1966 which too was rejected on 19-8-1975 and the order of rejection was communicated to the petitioner on 1-4-1976. Thereafter the petitioner preferred a claim petition before the Tribunal and the same was dismissed vide order dated 20-12-1985. 3. Being aggrieved against the order of dismissal of claim petition by the Tribunal the petitioner has approached this Court by filing this petition. 4. Heard learned Counsel for the petitioner and the learned Standing Counsel. 5. It has been argued by learned Counsel for the petitioner that the petitioner had withdrawn the appeal under Regulation 508 of the Police Regulation and therefore, the provision of Regulation 511 of the Police Regulation should have been strictly applied. The learned Tribunal in this regard has observed that show-cause notice could not have been issued during the pendency of appeal. The papers filed as additional written statement which were the letters of the petitioner dated 19-10-1965 and 1-2-1966 made it clear that he did not press the appeal further. The learned Tribunal also held that mere absence of specific order rejecting the appeal before issue of show-cause notice for enhancement of the punishment would not vitiate the notice. The papers filed as additional written statement which were the letters of the petitioner dated 19-10-1965 and 1-2-1966 made it clear that he did not press the appeal further. The learned Tribunal also held that mere absence of specific order rejecting the appeal before issue of show-cause notice for enhancement of the punishment would not vitiate the notice. It is also note-worthy that once the competent authority has decided to proceed with the issue of show-cause notice for enhancement of punishment, the appeal filed by the petitioner become infructuous as in case the appeal continue to exist there was no question of giving him opportunity to show-cause notice. 6. The learned Counsel for the petitioner has relied upon M. D. Maharashtra Cotton Growers Market Federation Ltd. v. Chougle Popatrao Annasaheb & Anr. , reported in (2003) 6 Supreme Court Cases page 247, where in their Lordships of Supreme Court have held that, "once the delinquent officer has withdrawn the appeal, there was no valid reason for the Appellate Authority to have proceeded with the appeal. Besides that there is no suo motu or any other power under Rule 53 of the Discipline and Appeal Rules with the Appellate Authority to enhance the punishment". The argument of the learned Counsel for the petitioner that Regulation 511 of the Police Regulations deals with revision which is reproduced below: "511 (a) The power of revision, may in the case of all orders against which an appeal would lie under Regulation (508) (1) be exercised suo motu by any authority to whom the appeal would lie. (b) Without prejudice to the provisions of clause (a), the Inspector General of Police may revised an order of a subordinate authority in non-appealable cases and also in cases of acquittal. (c) No record of a case decided by a subordinate servant shall ordinarily be called for after six months from the date of the order sought to be revised. (d) No order adversely affecting to Government servant shall be passed, in exercise of revisionary powers, ordinarily after six months from the date of receipt of records except for very special reason to be recorded in writing. (e) No authority shall suo motu exercise the power of revision in any case more than once. " Regulation 513 deals with enhancement of the punishment. It reads as under : "513. (e) No authority shall suo motu exercise the power of revision in any case more than once. " Regulation 513 deals with enhancement of the punishment. It reads as under : "513. A punishment may be enhanced by - (a) an appellate authority on appeal; or (b) any authority superior to the authority to whom an appeal would lie, in exercise of revisionary powers: Provided, in either case, that before enhancing a punishment, the competent authority shall call upon the officer punished to show-cause why his punishment should not be so enhanced, and that an order of an appellate authority so enhancing a punishment shall, for the purpose of appeal, be deemed to be an original order of punishment. " 7. Now the question arises under what circumstances the order of dismissal was passed by the Inspector General of Police on 8-8-1966. The Inspector General of Police issued a notice to the petitioner as to why the punishment be not enhanced under Regulation 511 of the Police Regulations. Therefore, the argument that the Inspector General of Police can exercise the power of enhancement of publishment in an appeal and the said power is in non-appealable cases that is the power of revision has to be exercised in cases where the punishment is provided in non-appealable cases. The appeal of the petitioner stood withdrawn in view of his application dated 19-10-1965 and 1-2-1966 moved to Inspector General of Police. The learned Tribunal has observed that mere absence of specific order or rejection of appeal before the issue of show-cause notice for enhancement of punishment would not vitiate the enquiry. It is also note worthy that once a competent authority proceeded for enhancement of punishment, the appeal filed by the petitioner became infructuous and there was no question of giving opportunity to the petitioner, is not illegal on this account. 8. It has been further held by learned Tribunal that the Inspector General of Police was competent to issue the notice for enhancement of the punishment under the Police Regulations and a plain reading of Regulations 511 and 513 of the Police Regulations clarifies that an appellate authority under Regulation 513 of the Police Regulations could enhance the punishment. 9. 8. It has been further held by learned Tribunal that the Inspector General of Police was competent to issue the notice for enhancement of the punishment under the Police Regulations and a plain reading of Regulations 511 and 513 of the Police Regulations clarifies that an appellate authority under Regulation 513 of the Police Regulations could enhance the punishment. 9. This view of the learned Tribunal has to be examined in the light of the fore going discussions and so far as it was held by the learned Tribunal that the appeal thus is not vitiated even after withdrawn by the petitioner. The only question before use will be whether or not the revising authority that is the Inspector General of Police could exercise the power for enhancing the punishment when the appeal stood withdrawn. 10. We have gone through the para 513 of the Police Regulations cited by the learned Counsel for petitioner. It appears that the order of dismissal was passed by the superior officer which stands as original order of punishment hence the appeal would have lied against this order. Such a situation contemplated as above suffers from un-reasonability that the officer who is superior to the appellate authority has passed the order which is again appealable to the authority which can be termed as revising officer. 11. The Uttar Pradesh Police Officers of the Sub-ordinate Rank (Punishment and Appeal) Rules were framed on 21st March, 1991. Rule 20 of the same provide for appeals, which runs as under: 20. Appeals.- (1) Every Police Office against whom an order of punishment in sub-clause (I) to (iii) or clause (a) and sub-causes (I) to (iv) or clause (b) entitled to prefer an appeal against the order of such punishment to the authority mentioned below: (a) to the Deputy Inspector General, if the original order is of the Superintendent of Police or Officers empowered under sub-rule (4) of Rule 7 of these rules; (b) to the Inspector General, if the original order is of the Deputy General; (c) to the Director General, if the original order is of Inspector General; (d) to the State Government, if the original order is of Director General. " 12. " 12. In the case in hand, the original order of punishment was passed by the Inspector General of Police as the punishment proposed by the Deputy Inspector General of Police was enhanced by the Inspector General of Police, therefore, the order passed by Inspector General of Police is the original order of punishment and the appeal against it was to the Director General of Police or to the State Government. The petitioner moved an appeal to the State Government, which was rejected. 13. Now we will examine whether there was any duty on the Tribunal to examine the validity of punishment order and to what extent. The Inspector General of Police who has passed the order of dismissal has stated in his order that the petitioner has kept the horse at the place of Ram Chandra, whose son Sadhu Ram was an accused under Section 302 of the IPC but this fact was not in the charge itself. The Inspector General of Police has decided that the horse was kept as against receiving of some money and there is nothing on record to show that no money was to be paid to the person with whom the horse was kept. Now it has to be seen that how the Tribunal has dealt with this point. 14. The petitioner as mentioned above, has preferred an appeal to the Government and the Government while rejecting the appeal of the petitioner has not assigned any reason. Since it was the first appeal against the order of dismissal, the same had to be decided on merit discussing each and every point involved. Therefore, also we have to scrutinize and judgment of the Tribunal on this point. 15. The charge was that the petitioner had kept a horse at the place of one Sadhu Ram and simultaneously it is said that he did not have any horse. Since the appeal against the first order of punishment was withdrawn by the petitioner, the punishment awarded by the Deputy Inspector General of Police had become final. According to the aforesaid rules, the order was passed by the Inspector General which was the first order of punishment, therefore, the Government was under duty to scrutinize the punishment order on merits and not simply mentioning that the Government has considered his representation and dismissed the appeal. According to the aforesaid rules, the order was passed by the Inspector General which was the first order of punishment, therefore, the Government was under duty to scrutinize the punishment order on merits and not simply mentioning that the Government has considered his representation and dismissed the appeal. The Inspector General of Police while passing the original order of dismissal has based the order on some adverse remarks also for dismissal of the petitioner besides the punishment awarded by the Deputy Inspector General of Police. It is not in the notice of the petitioner as to what were the adverse remarks which were considered against him for his dismissal, simply the Government could have called for those remarks and could have seen whether these remarks warrant his dismissal, therefore, the finding of the Tribunal that there is no need to interfere in the order of dismissal is not in accordance with law. 16. Now the question arises under the circumstances what relief if any should have been given by the tribunal. The Tribunal has already condoned the delay and entertained the petition against the order of dismissal. Now the position is that if the order of dismissal is set aside, the petitioner will be treated as the employee of the Government under pending enquiry, it will be again the discretion of the Government to pay the amount for the period of pendency of the writ petition but since the case has been delayed and it is not due to the fault of the petitioner it would be proper that the petitioner will be entitled for half salary as per Rules till the date of his superannuation and his post retiral benefits will be fixed on the basis of last pay drawn in accordance with law and will be paid to the petitioner. 17. In the result the judgment and order passed by Tribunal dated 20-12-1985 is set aside and the petition is, therefore, allowed as above. No orders as to costs. Petition allowed. .