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2012 DIGILAW 1449 (ALL)

Pratap Narain Saxena v. State of U. P. and Others

2012-07-04

SATISH CHANDRA

body2012
Satish Chandra, J.;— Heard Sri S.P.Singh, learned counsel for the petitioner and Smt. Purnima Gupta, learned standing counsel. The brief facts of the case are that the petitioner was working as Incharge (Sub-Inspector), Police Chauki Baragaon, Thana-Kotwali Maholi, District Sitapur in the year 2006. He had retained a few villagers on 22.05.2006, who were relieved only after arrival of their relatives at the police chauki. On receiving a complaint, Superintendent of Police, Sitapur vide order dated 04.01.2007 had withhold the integrity (Satyanishtha) of the petitioner for the year 2006. Being aggrieved, the petitioner has filed an appeal before the D.I.G., Lucknow, which was rejected vide order dated 25.06.2007. Against the rejection of appeal, a revision was filed, which was also rejected by the impugned order dated 23.10.2007. Still not being satisfied, the petitioner has filed the present writ petition. With this background, Sri S.P.Singh, learned counsel for the petitioner has confined his argument by stating that as per the Utter Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991, dated 21.03.1991, there is no punishment prescribed like "withhold the integrity". Rule 4 of the aforesaid provides all types of major penalties and minor penalties. The same are produced as under: 4. Punishment- (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely- (a) Major Penalties- (i) Dismissal from service. (ii) Removal from service. (iii) Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale. (b) Minor Penalties- (i) Withholding of promotion. (ii) Fine not exceeding one months' pay (iii) Withholding of increment, including stoppage at an efficiency bar. (iv) Censure. Learned counsel further submits that when no punishment is prescribed in the rules, the same can not be awarded to the petitioner. On the other hand, learned standing counsel accepts that there is no punishment like "withhold the integrity" (Satyanishtha) prescribed in the aforesaid rules. After hearing both the parties, it is evident that the punishment may be major or minor, and the same can be awarded only when it is prescribed in the book. In the instant case, the rules do not empower the Disciplinary Authority to impose "any other" major or minor punishment. After hearing both the parties, it is evident that the punishment may be major or minor, and the same can be awarded only when it is prescribed in the book. In the instant case, the rules do not empower the Disciplinary Authority to impose "any other" major or minor punishment. It is a settled proposition of law that punishment not prescribed under rules, as a result of disciplinary proceedings, cannot be awarded as per the ratio laid down in the case of State of U.P. & others vs. M.P.Sharma (2011) 2 SCC 212 . Similar views were expressed in the case of Vijay Singh vs. State of U.P. & others, 2012 (30) LCD 963. Needless to mention that in a civilized society governed by rule of law, the punishment not prescribed under the statutory rules cannot be imposed. Principle enshrined in Criminal Jurisprudence to this effect is prescribed in legal maxim nulla poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law. In S. Khushboo v. Kanniammal & anr. AIR 2010 SC 3196 , the Hon'ble Apex Court has held that a person cannot be tried for an alleged offence unless the Legislature has made it punishable by law and it falls within the offence as defined under Sections 40, 41, and 42 of the Indian Penal Code, 1860, Section 2 (n) of Code of Criminal Procedure 1973, or Section 3(38) of the General Clauses Act, 1897. The same analogy can be drawn in the instant case though the matter is not criminal in nature. Thus, in view of the above, the punishment order is not maintainable in the eyes of law. In view of above, the petition succeeds and is allowed. The impugned order dated 04.01.2007 and subsequent orders in this regard are hereby quashed. The opposite parties are directed to consider the case of the petitioner for all consequential benefits including promotion etc., if any, as and when he became eligible. With the above observations, the writ petition is allowed. _____________