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Allahabad High Court · body

2017 DIGILAW 283 (ALL)

STATE OF U. P. v. DEVENDRA KUMAR DUBEY

2017-01-20

SHEO KUMAR SINGH I, SHRI NARAYAN SHUKLA

body2017
JUDGMENT By the Court.—Heard Shri Sanjay Bhasin, Additional Chief Standing Counsel for the petitioner as well as Shri S.K. Pathak, learned counsel for the first respondent. 2. The petition has assailed the judgment and order dated 16.8.2016 passed by the U.P.Public Services Tribunal in claim petition No. 1346/2016. By means of order impugned the learned Tribunal has setaside the order dated 2.7.2016 passed by the Senior Superintendent of Police, Lucknow whereby the petitioner was awarded the punishment of adverse entry in his character role. Mr. Bhasin, Additional Chief Standing Counsel for the petitioner has submitted that he had raised objection with regard to maintainability of the claim petition before the U.P. Public Services Tribunal Act, 1976 as the first respondent being aggrieved with the order of punishment had filed an appeal on 4.7.2016 but without waiting the result of appeal he instituted the claim petition on 11.7.2016. The learned Tribunal decided the case on 16.9.2016. It has been urged that the petitioners had taken a categorical plea before the Tribunal that the first respondent had not exhausted the departmental remedy available to him, therefore, the claim petition was not maintainable as has been provided under Section-4 sub clause 5 & 6 of the U.P.Public Services Tribunal Act, 1976. 3. He further submitted that the learned Tribunal has observed that through the audio CDs in which the voice of the first respondent as well as SI Shyam Babu Shukla was recorded was found that the first respondent had used the abusive language for Mr. Navneet Shikere the then Inspector General of Police, however, the order of punishment has been set aside on the ground that the CD in which the voice of first respondent was recorded was not sent for technical examination. 4. In view of the aforesaid submissions, we have examined the record. Since, the learned Tribunal has decided the matter finally now at this stage we after affording opportunity to the petitioners, do not feel it appropriate to remit the matter to the appellate authority for a decision. Therefore, we proceed to examine the merit of the order impugned passed by the learned Tribunal. Since, the learned Tribunal has decided the matter finally now at this stage we after affording opportunity to the petitioners, do not feel it appropriate to remit the matter to the appellate authority for a decision. Therefore, we proceed to examine the merit of the order impugned passed by the learned Tribunal. A bare perusal of the order impugned shows that definitely the original audio CD was heard by the Inquiry Officer who identified their voices and found that abusive language was used by the Station Officer, Ghazipur, but since Tribunal had found that the said audio was not got examined by the expert nor was technically examined by the competent authority. But punished the first respondent after hearing the said audio clip only. The learned Tribunal has also gone through the judgment of the Hon’ble Supreme Court rendered in the case of Kuldeep Singh v. Commissioner of Police and others, 1999 SCC (L&S) 429, on the basis of statement of an officer, who had received the complaint, the delinquent employee was punished whereas no original complaint was placed on record. The Supreme Court in such a circumstance had arrived at the conclusion that the absence of the original complaint indicates that there was no complaint in existence. 5. Apart from the above, the order impugned shows that during the course of inquiry the above officer Shyam Babu Shukla, Station Officer, Gomti Nagar was called upon and was inquired whether during the course of discussion Mr. Dubey, used any abusive languages against Shri Shikera, IGP. Mr. Shyam Babu Shukla, Sub. Inspector replied that the details of discussions are in audio clip, thus, it is very much obvious that nothing was stated by him with regard to use of abusive language by the first respondent against Mr. Shikera. Thus, it is obvious that the veracity of the petitioner‘s statement was not tested by any other independent evidence, therefore, we are of the view that learned Tribunal has rightly held that such discussion could not be relied up for awarding the punishment impugned. 6. We do not find error in the order impugned dated 16.8.2016. 7. In the result, the writ petition is dismissed.