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2008 DIGILAW 183 (UTT)

Kewalanand Arya v. State of Uttarakhand

2008-04-24

K.R.BHATI

body2008
JUDGMENT 1. This claim petition has been filed by Sri Kewalanand Arya against the order dated 25-8-2000 passed by S.S. P., Udham Singh Nagar awarding the adverse entry and orders passed on 17-2-2001 and 29-04-2003 and seeking the relief that impugned orders be set aside. 2. The facts of the claim petition are that petitioner was served with a show cause notice for alleged misconduct and gross-negligence in discharge of duties on 16.12.1999 after the incidence of some stoning by anti social elements. The reply was submitted by the petitioner or 13.7.2000 denying the allegations as false and stated that is not guilty for the alleged negligence. The petitioner also stated in his reply that he has not been supplied required documents and therefore, the entire proceedings should be declared illegal. However, despite the denial of the allegations, the impugned order of adverse entry was passed on 25.8.2000. The appeal preferred was rejected without giving any opportunity of hearing and the revision application was also rejected by the competent authority. The respondents have acted in arbitrary manner and did not apply judicious mind, hence the impugned orders are illegal and liable to be quashed. The adverse entry has been awarded on the basis of the conjectures and surmises and is in utter disregard to the provisions of U.P. Government Servant (Disposal of Representation against the Adverse Entry) Rules, 1995. The adverse entry was awarded in 1999 whereas the incidence took place in 1997. Therefore, the adverse entry is illegal, void and without jurisdiction. Due to the criminal case registered about the incident, the proceedings if any under section- 7 of the Police Act provides a limitation of three months, but the action was takeh under U.P. Police Officer of the Subordinate Rank (Punishment and Appeal) Rules, 1991. Therefore, the entire proceedings are illegal, time barred and non-est in the eyes of law. 3. The petitioner has also taken the ground that rules prescribing the time limit for awarding annual entries have not been followed. The minor penalty has been awarded without following prescribed procedure and therefore, suffers from legal infirmity. The adverse entry was based on extraneous reasons and therefore, the claim petition deserves to be allowed. 4. The W.S. has been filed by the respondents and stated that the petition is baseless and without any force and deserves to the rejected. The minor penalty has been awarded without following prescribed procedure and therefore, suffers from legal infirmity. The adverse entry was based on extraneous reasons and therefore, the claim petition deserves to be allowed. 4. The W.S. has been filed by the respondents and stated that the petition is baseless and without any force and deserves to the rejected. Admitting the incidence of 6.12.1997 in Kashipur and further admitting that petitioner was sent on duly, the respondents state that the Govt. Gypsy was damaged and Constable Shamim Abbas suffered injuries due to stoning by the crowd. The enquiry by the C.B.C.I.D. proved that the petitioner avoided his responsibilities and left the injured constable and damaged gypsy on the spot and left the place of incident. The petitioner got the gypsy repaired from a private workshop at Haldwani without technical inspection and the bill was sent to the department for the payment. This conduct of the petitioner reflects irresponsibility as he should have known that technical inspection of the government vehicle is necessary before the repairs. It is incorrect to say that the petitioner was required to be supplied with copies of documents. The proceedings for minor penalties under section 14(2) of the U.P. Police Officers of the Subordinate Rank (Punishment and Appeal) Rules, 1991 do not provide for supply of enquiry report and any documents. However, the petitioner was allowed to inspect the documents and related files. But the petitioner did not avail the opportunity. The reply to show cause notice was submitted after approximately five months and he is responsible for not availing the opportunity of inspecting the files. Therefore, there is no legal infirmity in the orders passed by the competent authorities. The competent authorities have applied their mind and after due consideration of the provisions of principles of natural justice and available evidence, "have passed the orders of the punishment. The respondents further state that the punishment was awarded in 1999 as took its time. The delay therefore, was inbuilt in the entire procedure. The claim petition therefore, deserve$ to be rejected with cost 5. In the R.A., the petitioner reiterates the averments of the claim petition and states that the petitioner did not give oral evidence before C.B. C.I.D. The repair of the damaged gypsy was got done by the constable driver. The delay therefore, was inbuilt in the entire procedure. The claim petition therefore, deserve$ to be rejected with cost 5. In the R.A., the petitioner reiterates the averments of the claim petition and states that the petitioner did not give oral evidence before C.B. C.I.D. The repair of the damaged gypsy was got done by the constable driver. The statement regarding copies of the documents stated to be supplied to him is false and is rejected. The petitioner admits that he was given permission to inspect the documents, but due to his medical treatment at Delhi, he could not submit reply to show cause notice in time and therefore, adequate opportunity was not provided to him. The revision application has been disposed of after three years of the impugned orders and therefore, the petition deserves to succeed. 6. Heard learned counsel for the petitioner and learned A.P.O. It is admitted by the either: parties that the petitioner was sent for duly to Kashipur where some law and order problem had come up. The fact of the gypsy being damaged by stoning is also admitted by the either parties. But the fact of repair of the gypsy, a Govt. vehicle belonging to the Police station, Gadarpur where the petitioner was posted as S.H.O. is under contradictory submissions by the either parties. While petitioner states that damaged gypsy was repaired at police lines (para-4 C of the claim petition), the respondents state that the repair was carried out at Haldwani at a private workshop and the bill was sent to police office for payment. The record available on file shows that petitioner contradicts himself with the contention in para-4 (C) of the claim petition by stating that the repair was got done by the constable driver (para-7 of the R.A). The contradiction by the petitioner about the damage to the gypsy further confirms the negligence and irresponsibility displayed by the petitioner and which has been made the basis of the show cause notice. 7. The contention of the petitioner that the proceeding against the petitioner should have been conducted under the provisions of para 490(8) of Police Regulations and not under the Niyamawali of 1991, needs to be examined in the light of the provisions reflected in the opening paragraph of the Niyamawali of 1991. 7. The contention of the petitioner that the proceeding against the petitioner should have been conducted under the provisions of para 490(8) of Police Regulations and not under the Niyamawali of 1991, needs to be examined in the light of the provisions reflected in the opening paragraph of the Niyamawali of 1991. The opening statement of the Niyamawali states that; "In exercise of the powers under subsections (2) and (3) of Section 46 read with Section 2 and 7 of the Police Act, 1861 (Act no.5 of 1861) and all other power enabling him in this behalf and in super session of all existing rules issued in this behalf, the Governor is pleased to make the following rules with a view to regulating the departmental proceedings, punishment and appeals of the police officers of the subordinate ranks of the Uttar Pradesh Force." 8. The above reading makes it clear that the chapters 32 and 33 of the Police Regulation related to departmental punishment, appeal etc contained in para 477 onwards and up to para 513 have been restructured by way of U.P. Police Officers of the Subordinate Ranks (punishment and Appeal) Rules, 1991. It is clear that with the promulgation of these rules, all departmental proceedings shall be governed by these rules. The petitioner therefore, has been correctly governed by these rules as far as departmental proceedings are concerned and the issue is decided against the petitioner. 9. With regard to the allegation of indiscipline, gross negligence and carelessness, the respondents have stated that the petitioner failed to report the damage to the vehicle and incident of stoning to the police station,' Kashipur where he was sent for duty. The averment of the learned counsel for the petitioner that the petitioner was not required doing so as senior officers including S.S.P. and the District Magistrate were present on the scene is clearly misplaced. Although, the presence of S.S.P. and District Magistrate on the spot has not been denied by the respondents, but it is not correct to say that if senior officers are present, the responsibilities of the petitioner come to an end. He cannot be allowed to assume the role of a traveler while on duty for law and order. Although, the presence of S.S.P. and District Magistrate on the spot has not been denied by the respondents, but it is not correct to say that if senior officers are present, the responsibilities of the petitioner come to an end. He cannot be allowed to assume the role of a traveler while on duty for law and order. He remains duty bound to report any incident with which he is related and such reporting cannot be done by his superior officers but by the petitioner alone under the responsibility cast upon' him. The facts of not reporting the damage to the vehicle and injury to the constable Shamim Abbas has rightly been viewed seriously by the superior officer and they are functioning within their jurisdiction in so far as the departmental enquiry against the petitioner is concerned. Therefore, the contention of the respondents about the negligence and irresponsibility displayed by the petitioner was rightly relied upon in the show cause notice. 10. In so far as the adequate opportunity for self defence to the petitioner is concerned, it was stated by the petitioner that no documents or copies of the statement were supplied to him. The facts however, are contrary to this. The petitioner has admitted that he was allowed to inspect the files and it confirms the rules of the departmental proceedings under rule 14(2) of the said Niyamawali in which the detailed narration of the allegations has been made in the show cause notice. So far as his request for supply of the copies of documents is concerned, he was replied by letters dated 8.3.2000, 6.5.2000 and 15.6.2000 that he can inspect the documents. The petitioner has not availed of this opportunity and at the stage of adjudication in this Tribunal, he is barred to raise this plea. In fact, the petitioner had ample opportunity to inspect the documents and mount his defence till the reply to the show cause notice was submitted by him after delay of five months. As mentioned by the petitioner in para-7 of R.A., it IS clear that he had decided not to inspect the documents and not to avail the opportunity provided to him. As mentioned by the petitioner in para-7 of R.A., it IS clear that he had decided not to inspect the documents and not to avail the opportunity provided to him. Further, the proceedings of minor penalty under rule 14(2) are summary in nature and such proceedings cannot be converted in to major penalty proceedings under rule 14(1) of the Niyamawali which requires supply of copies of the documents relied upon by the disciplinary authority. The issue is accordingly decided against the petitioner. 11. In so far as the delay of three years and timing of award of adverse entry vis-a-vis the occurrence of the event is concerned, the proceedings cannot be held to be illegal keeping in view the fact that the C.B.C.LD. enquiry had taken its time and any punishment can be awarded only after an enquiry is over. The adverse entry per-se is not necessarily the part of annual remarks and it can be awarded out side the time frame laid down for the annual remarks. The contention of the learned counsel for the petitioner is misplaced when the adverse entry after a departmental enquiry is sought to be linked with annual remarks under the garb of interpretation of the rules. The conclusions of :my departmental enquiry have nothing to do with the annual remarks for which different set of rules have been provided by the government. This is clear misinterpretation of the rules and the issue is decided against the petitioner accordingly. 12. In the light of discussion above, the claim petition does not have any ground of sustain ability. The petitioner has failed to prove his contentions of lack of opportunity and procedural infirmity in the departmental proceedings drawn against him. The respondents have followed the provisions of rule 14(2) of the said Niyamawali and due care and consideration has been taken in to account while passing the impugned orders. ORDER The claim petitioner is rejected. No order to the cost.