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2022 DIGILAW 479 (ALL)

Pramod Kumar Shukla v. State Of U. P.

2022-04-01

MANJU RANI CHAUHAN

body2022
JUDGMENT : 1. Heard Mr. R.K. Ojha, Senior Advocate assisted by Mr. Satyam Pandey, learned counsel for the petitioners, Mr. Manas Bhargava, learned counsel for the respondent no.2 and Mr. Aseem Mukherjee, learned Standing Counsel for the State-respondents. 2. This writ petition has been filed by the petitioners with the following prayer:- "(A) Issue a writ, order or direction in nature of Certiorari quashing the impugned orders passed by the Lokayukt respondent no.2 dated 22.09.2021 (Annexure no.5 to this writ petition) and the charge sheet issued by the Additional Deputy Commissioner of Police, Headquarter Commissionerate, Kanpur Nagar respondent no.4 dated 22.01.2022 (Annexure no.6 to this writ petition). (B) Issue a writ, order or direction in the nature of mandamus commanding and directing for restraining the respondent not to proceed in pursuance of the charge sheet dated 22.01.2022 issued on the basis of the order of the Lokayukt dated 2.09.2021. (C) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents authority to not interfere in the peaceful working of the petitioners." 3. Learned counsel for the petitioners submits that the petitioner no.1, namely, Pramod Kumar Shukla was selected as Sub-Inspector in the year 1998 and, thereafter, was promoted as Inspector on 26.01.2015. The petitioner no.2, namely, Pramod Kumar Yadav was selected as Constable in the year 1998 and, thereafter, was promoted as Sub-Inspector in the year 2013. Both the petitioners have been performing their duties up to the satisfaction of their superior. He further submits that the petitioner nos.1&2 were posted as Inspector and Sub-Inspector in P.S.-Chakeri at the time when the incident in question took place. One Mr. Samar Singh moved an application before the Additional City Magistrate-II (hereinafter referred as ACM-II) on Tehsil Diwas on 03.04.2018 with respect to removal of certain articles like cattle etc. and animals lying in their property. Pursuant to which, the ACM-II directed Revenue Inspector to conduct an inquiry with the help of concerned Station House Officer (SHO) and do the needful. On the said direction, the Lekhpal of the area submitted a report dated 05.04.2018, on the basis of which Mr. Samar Singh moved another application on 10.04.2018, on which the ACM-II passed an order directing Inspector Chakeri to provide security force for removal of the illegal encroachment upon the property in question, in order to maintain peace. The Lekhpal as well as complainant Mr. Samar Singh moved another application on 10.04.2018, on which the ACM-II passed an order directing Inspector Chakeri to provide security force for removal of the illegal encroachment upon the property in question, in order to maintain peace. The Lekhpal as well as complainant Mr. Samer Singh went to the Inspector, i.e. petitioner no.1, who in turn directed to petitioner no.2 to provide necessary force. On the aforesaid direction, the petitioner no.2 visited at the spot with the requisite force and found that there was no disturbance, therefore, the petitioners did not do anything for removing the encroachment. 4. Learned counsel for the petitioners further submits that it was the duty of the Revenue Officer to perform the duty of removing the illegal encroachment upon the property in question and the petitioners have nothing to do with the aforesaid task. The petitioners were responsible for maintaining peace over the area and since no incident took place, therefore, it cannot be said that the petitioners had not performed their duty. 5. Subsequently, the complainant/opposite party approached this Court by means of filing a writ petition bearing Writ-C No.15753 of 2018, which was dismissed by order dated 01.05.2018 with a direction to the petitioner therein to approach the Civil Court where the litigation in respect to the matter is already pending or move an application under Section 145 of Cr.P.C. In stead of proceeding as directed by the aforesaid order dated 01.05.2018, the opposite party moved an application before the Lokayukt, Lucknow, who proceeded as per the provision of Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 (hereinafter referred as "the Act 1975"). 6. Thereafter, on the complaint of Mr. Samar Singh, three members committee was constituted, which submitted its report on 22.11.2018. On the basis of which, notices were issued to the petitioners, who submitted their reply. Surprisingly, the Lokayukta, without noticing the fact that the petitioners have performed their duties maintaining peace pursuant to the order of ACM-II by providing requisite police force, passed the order dated 22.09.2021 recommending for awarding of major punishment to the petitioners. On the basis of the aforesaid recommendation, disciplinary proceedings has been initiated against the petitioners and the charge sheet has been given to them on 22.01.2022. 7. On the basis of the aforesaid recommendation, disciplinary proceedings has been initiated against the petitioners and the charge sheet has been given to them on 22.01.2022. 7. Learned counsel for the petitioners further submits that the order/direction of Lokayukta for awarding major punishment to the petitioners is not sustainable in the eyes of law as the Lokayukta can only recommend for punishment but cannot define as to what punishment has to be awarded. The order dated 22.09.2021 passed by the Lokayukta is patently erroneous, illegal and arbitrary as the same has been passed ignoring the fact that the petitioners have performed their duties of providing police force and maintaining peace over the area in question. The charge sheet so submitted is bad as the same has been submitted without considering the reply of the petitioners and is based on the recommendation of the Lokayukta, the report submitted by the Lekhpal as well as order of ACM-II. Hence the impugned orders 22.09.2021 and 22.01.2022 cannot sustained in the eyes of law, therefore, the same are liable to be set aside by this Court. 8. On the other hand, Mr. Manas Bhargava, learned counsel for the respondent no.2 submits that as per Section 12 of the Act, 1975, if, after investigation of any action in respect of any complaint involving a grievance has been made, the Lokayukta or an Up-Lokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or any other person, he shall by a report in writing recommend to the public servant and the competent authority concerned that such injustice or undue hardship shall be remedied or redressed in such manner and within such time as may be specified in the report. 9. Mr. Bhargava further submits that if, after investigation of any action in respect of which a complaint involving an allegation has been made, the Lokayukta or an Up-Lokayukta is satisfied that such allegation can be substantiated either wholly or partly, he shall by report in writing communicate his findings and recommendation alongwith the relevant documents, materials and other evidence to the competent authority. The competent authority shall examine the report so forwarded to it and intimate within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Up-Lokayukta, the action taken or proposed to be taken on the basis of the report. Section 12 (4) of the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 reads as under:- "(4) The competent authority shall examine the report forwarded to it under sub-section (3) and intimate within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Up-Lokayukta, the action taken or proposed to be taken on the basis of the report." In view of the aforesaid, the Lokayukta, in the present case, has recommended for punishment of the petitioners. 10. Mr. Bhargava further submits that as per Section 17(2) of the Act 1975, no proceedings of the Lokayukta or the Up-Lokayukta shall be held bad for want of form and except on the ground of jurisdiction, no proceedings or decision of the Lokayukta or the Up-Lokayukta shall be liable to be challenged, reviewed, quashed or called in question in any Court. 11. On the cumulative strength of the aforesaid, learned Standing Counsel as well as counsel for the respondent no.2 submits that the order passed by Lokayukta dated 22.09.2021 is only a recommendation, therefore, no interference is required by this Court and also the aforesaid order cannot be challenged as per Section 17(2) of the 1975 Act. 12. Apart from the above, learned Standing Counsel as well as counsel for the respondent no.2 submits that ordinarily a writ petition does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person who has no jurisdiction to do so. In support of their submission, they relied upon the judgment of the Apex Court in the case of Secretary, Ministry of Defence & Others VS. Prabhash Chandra Mishra reported in (2012) 11 SCC, 565. In view of the aforesaid, they submits that no interference is called for by this Court in exercise of powers under Article 226 of the Constitution of India. Hence, the present writ petition is liable to be dismissed. Prabhash Chandra Mishra reported in (2012) 11 SCC, 565. In view of the aforesaid, they submits that no interference is called for by this Court in exercise of powers under Article 226 of the Constitution of India. Hence, the present writ petition is liable to be dismissed. Hence, the present writ petition is liable to be quashed. 13. This Court has considered the submissions as urged by learned counsel for the parties as well as gone through the entire materials brought on record. 14. It would be relevant to refer Section 17 (2) of the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975, which read as under:- "17. Protection. -......... (2) No proceedings of the Lokayukta or the Up-Lokayukta shall be held bad for want of form and except on the ground of jurisdiction, no proceedings or decision of the Lokayukta or the Up-Lokayukta shall be liable to be challenged, reviewed, quashed or called in question in any Court." 15. From perusal of the record it comes out that the Lokayukta has rightly recommended the punishment of the petitioners by passing the order dated 22.09.2021. No order or proceeding of the Lokayukta can be challenged, reviewed, canceled or questioned in any court unless it has been passed without jurisdiction. 16. So far as challenge made by the learned counsel for the petitioners to the impugned charge-sheet is concerned, it is necessary for this Court to refer judgment of the Apex Court in the case of State of U.P. vs. Shri Brahm Datt Sharma and another [reported in AIR 1987 SC 943 ), wherein the Apex Court has held that when a show-cause notice was issued to a government servant under the statutory provisions calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. 17. Interference by the Court before that stage would be premature. 17. The Apex Court in the case of State of H.P. Vs. B.C. Thakur reported in 1994 SCC (L&S), in paragraph nos. 3 and 4 has held as follows: "(3) HAVING heard learned counsel for the parties, we are satisfied that in the facts and circumstances of the case, the impugned order of the Tribunal quashing the order of respondents suspension does not call for any interference, even though the other part of the Tribunals order quashing the charge-sheet issued to the respondent cannot be sustained. The quashing of the charge-sheet by the Tribunal is not on the ground of want of authority to issue the charge-sheet or any other inherent defect therein. This being so, the question of going into the merits of the charges, which are yet to be investigated in the departmental proceedings, did not arise for consideration or adjudication by the Tribunal at this stage. This being so, the Tribunals order quashing the charge-sheet as well, on reaching the conclusion that the suspension order had to be set aside, is unwarranted. The respondent had been under suspension for nearly two years on the date of the Tribunals order and another year has elapsed since then. Setting aside the suspension order in this situation, particularly when no substantial progress in the disciplinary proceedings has been made as yet, does not, therefore, call for any interference. (4) CONSEQUENTLY, the appeal is partly allowed to the extent that the Tribunals order quashing the charge-sheet issued to the respondent is set aside while the challenge to the quashing of the suspension order dated 10-5-1990 is rejected. No costs." 18. The Apex Court in the case of Union of India Vs. Ashok Kacker reported in 1995 Supp (1) SCC 180, while hearing a matter where the employee had challenged the charge sheet, clearly held that the Tribunal entertained the application at a premature stage. It was observed as follows :- ".........In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. It was observed as follows :- ".........In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him." 19. Again in the case of Secretary to Government, Prohibition & Excise Department Vs. L. Srinivasan, reported in (1996) 3 SCC 157 , the Apex Court set-aside the order of the Tribunal by which the departmental enquiry and the charge-sheet were quashed on the ground of delay in initiation of the disciplinary proceedings and it was observed as follows :- "Order dated 12.11.1993 in Nos. Nos. 1702 of 1993 and 2206 of 1993 of the Tamil Nadu Administrative Tribunal, Madras is in question before us. The respondent while working as Assistant Section Officer, Home, Prohibition and Excise Department had been placed under suspension. Departmental inquiry is in process. We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charge, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied." (emphasis supplied)." 20. The Apex Court in the case of State of Orissa and another vs. Sangram Keshari Misra and another [reported in (2010) 13 Supreme Court Cases 311] in para 10 has opined as under:- "10. Though there appears to be some merit in the said contentions of the first respondent, it is unnecessary to examine the correctness of these contentions as normally a charge-sheet is not quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous. It is well settled that the correctness or truth of the charge is the function of the disciplinary authority (vide Union of India v. Upendra Singh SCC p. 362, para 6). Therefore we reject the contention that the charge ought to have been quashed without reserving to the State to proceed in accordance with law." 21. The Hon'ble Apex Court in the case of Union of India and others vs. Upendra Singh [reported in (1994) 3 Supreme Court Cases 357] in para 6 has held as under:- "6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317, para 8) "Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself." 22. The Apex Court in the case of Secretary, Ministry of Defence and others vs. Prabhash Chandra Mirdha [reported in (2012) 11 Supreme Court Cases 565] in para nos. 10 to 12 has opined as follows: - "11. Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. Ordinarily a writ application does not lie against a chargesheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of U.P. Vs. Brahm Datt Sharma, AIR 1987 SC 943 ; Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh & Others, (1996) 1 SCC 327 ; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. Vs. Mohd. Ghulam Ghouse & Another , AIR 2004 SC 1467 ; and Union of India & Another Vs. Kunisetty Satyanarayana, AIR 2007 SC 906 ). 12. In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311 , this Court held that normally a chargesheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority. (See also: Union of India & Ors., (1994) 3 SCC 357 ). 13. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings." 23. In the case of Union of India and another Vs. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28 , Hon'ble the Supreme Court has held as under:- "Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet." 24. It was, therefore, emphasized by the Apex Court that even by way of final order the departmental enquiry or the charge-sheet could not have been quashed. The law on this point is that the Courts are, therefore, not to grant stay/quash the disciplinary proceedings nor they should go into the correctness or otherwise of the charges leveled in the charge-sheet and the departmental inquiry should be allowed to continue uninterrupted to come to its natural conclusion 25. In the case of charges framed in a disciplinary enquiry, the tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. The tribunal or the Court cannot take over the functions of the disciplinary authority. The truth or otherwise of the charge is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of their disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. 26. From the aforesaid legal positions, it is clear that in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. 27. 26. From the aforesaid legal positions, it is clear that in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. 27. In view of the aforesaid settled legal positions of the Apex Court which have been referred to above, this Court does not find any illegality or infirmity in the impugned charge-sheet dated 22.01.2022 passed by respondent no.4 so as to warrant any interference by this Court in exercise of powers under Article 226 of the Constitution of India. 28. The present writ petition being devoid of merits and is accordingly dismissed. 29. However, it is provided that the departmental inquiry be initiated against the petitioners and brought to its logical end, strictly in accordance with law, keeping in view that the recommendation of Lokayukta is only to the extent of punishment to the petitioner as per law, at the earliest possible preferably within a period of three months from the date of production of a certified copy of this order before the disciplinary authority.