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2023 DIGILAW 1446 (ALL)

Anil Kumar Rana v. State of U. P.

2023-05-25

DEVENDRA KUMAR UPADHYAYA, SYED QAMAR HASAN RIZVI

body2023
JUDGMENT : Order on C.M. Application No. 1 of 2023 (delay condonation application) Heard the learned counsel for the appellant and Shri Amitabh Rai, learned Additional Chief Standing Counsel representing the State-respondents. Having regard to the averments made in the application seeking condonation of delay in filing the Special Appeal, we are satisfied that the delay has sufficiently been explained. Accordingly, the application is allowed and the delay in filing the special appeal is hereby condoned. Order on appeal By instituting the proceedings of this intra-Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, the appellant-petitioner has challenged the order dated 1.12.2020 passed by learned Single Judge whereby the petition seeking review of the earlier order dated 27.2.2020 passed by learned Single Judge in Writ Petition No. 2936 (S/S) of 2020 has been rejected. 2. Before dealing with the respective submissions made by learned counsel for the parties, we may note certain facts which are essential for the proper adjudication of the issue involved in this writ petition. The appellant-petitioner was employed as Constable in Uttar Pradesh Police, however, after departmental proceedings were conducted against him he was dismissed from service by means of an order dated 26.6.2007 passed by the Superintendent of Police concerned. The said order of dismissal was challenged by the appellant-petitioner instituting statutory appeal, which too was dismissed by the appellate authority by passing a judgment and order dated 3.4.2008. Challenging the order of dismissal as also the appellate order a Writ Petition was filed before this Court namely, Writ Petition No. 4262 (S/S) of 2008 which however, was also disposed of with the liberty to the appellant-petitioner to approach the U.P. State Public Services Tribunal by way of making a reference under Section 4 of the U.P. Public Services (Tribunal) Act, 1976. Accordingly, the appellant-petitioner filed a claim petition before the U.P. State Public Services Tribunal which was dismissed by the Tribunal by means of an order dated 24.8.2011 on the ground that the claim petition was preferred with delay and the Tribunal did not have power or authority to condone the same. 3. Accordingly, the appellant-petitioner filed a claim petition before the U.P. State Public Services Tribunal which was dismissed by the Tribunal by means of an order dated 24.8.2011 on the ground that the claim petition was preferred with delay and the Tribunal did not have power or authority to condone the same. 3. The said order of the Tribunal dated 24.8.2011 as also the dismissal order and the appellate order passed on 26.6.2007 and 3.4.2008, respectively, were challenged by the petitioner-appellant by instituting the proceedings of Writ Petition No. 1788 (S/B) of 2011 which too was dismissed by a Division Bench of this Court by means of an order dated 10.12.2015. The appellant-petitioner thereafter sought review of the said order dated 10.12.2015 which too was dismissed by Division Bench of this Court by means of an order dated 19.5.2016. 4. The appellant-petitioner, after dismissal of the Writ Petition No. 1788 (S/B) of 2011 and the review petition by this Court challenged the orders dated 10.12.2015 and 19.5.2016 passed by a Co-ordinate Bench of this Court by filing Special Leave Petition before Hon'ble the Supreme Court which, however, too was dismissed vide order dated 2.12.2016. Hon'ble the Supreme Court while dismissing the said Special Leave Petition clearly observed that no legal or valid ground was found to entertain the Special Leave Petition. However, while dismissing the Special Leave Petition Hon'ble the Supreme Court further observed that the question of law will be kept open. 5. Order passed by Hon'ble the Supreme Court is quoted herein below : ''Date: 02/12/2016 These petitions were called on for hearing today. CORAM : HON'BLE MR. JUSTICE S.A. BOBDE HON'BLE MR. JUSTICE ASHOK BHUSHAN For Petitioner(s) Mr. Raj Vikarma Singh, Adv. Mr. Mukesh Verma, Adv. Mr. Pawan Kumar Shukla, Adv. Mr. Bikash Kumar Sinha, Adv. Mr. Yash Pal Dhingra, AOR ORDER Heard learned counsel for the petitioner. Delay condoned. We do not find any legal and valid ground to entertain these, special leave petitions. The special leave petitions are, accordingly, dismissed. The question of law is kept open.'' 6. Mr. Mukesh Verma, Adv. Mr. Pawan Kumar Shukla, Adv. Mr. Bikash Kumar Sinha, Adv. Mr. Yash Pal Dhingra, AOR ORDER Heard learned counsel for the petitioner. Delay condoned. We do not find any legal and valid ground to entertain these, special leave petitions. The special leave petitions are, accordingly, dismissed. The question of law is kept open.'' 6. After dismissal of the Special Leave Petition by Hon'ble the Supreme Court by means of the order dated 2.12.2016, ordinarily the matter ought to have been given a quietus, however, the appellant-petitioner made an application to the Superintendent of Police on 13.6.2018, i.e., after about one and a half years from the dated Special Leave Petition was dismissed, praying therein that in the light of the judgment of Hon'ble the Supreme Court in the case of Union of India and others v. P. Thayagarajan delivered on 24.11.1998, order be passed for re-enquiry or de-novo enquiry in the matter of disciplinary action which already stood concluded by the dismissal order dated 26.6.2007 as affirmed by Hon'ble the Supreme Court while dismissing the Special Leave Petition on 2.12.2016. 7. It appears that nothing was done on the said application at the end of Superintendent of Police, who is the disciplinary authority, however, the appellant-petitioner relies upon of a hand-written letter dated 27.8.2018 said to have been written by the Sub-Inspector, Police Station Shahabad, District Hardoi to Tehsildar, Tehsil Shahabad, District Hardoi stating therein that the Sub-Inspector is conducting an enquiry in the matter of appellant-petitioner only in the light of the judgment of Hon'ble the Supreme Court in P. Thayagarajan (supra) and accordingly the Tehsildar should submit a report about the caste certificate which was relied upon by the appellant-petitioner while seeking his recruitment as Police Constable. It is the case of the appellant-petitioner that on the application preferred by him to the Superintendent of Police on 13.6.2018 the de-novo enquiry was ordered and it is pursuant to the said de-novo enquiry that the Superintendent of Police has written a letter dated 27.8.2018 to the Tehsildar. 8. The appellant-petitioner thereafter instituted the proceedings of Writ Petition No. 2936 (S/S) of 2020 with the prayer that the authorities may be directed to provide him a copy of the enquiry report based on the alleged de-novo enquiry. 8. The appellant-petitioner thereafter instituted the proceedings of Writ Petition No. 2936 (S/S) of 2020 with the prayer that the authorities may be directed to provide him a copy of the enquiry report based on the alleged de-novo enquiry. In the said writ petition, an order was passed on 31.1.2020 by learned Single Judge noticing the facts and also observing that it appears that there is no document indicating initiation of any de-novo enquiry after dismissal of the Special Leave Petition by Hon'ble the Supreme Court. The learned Single Judge also records in the order dated 31.1.2020 that it does not appear that de-novo enquiry was conducted though attention of Hon'ble Judge was drawn on the letter dated 31.10.2018 in respect of which the learned Single Judge observed that the said letter also does not indicate that any de-novo enquiry was instituted. 9. The learned counsel representing the appellant-petitioner was given time to bring on record any document such as charge-sheet indicating de-novo enquiry or disciplinary enquiry having been held. The said writ petition thereafter was dismissed by means of order dated 27.2.2020 with a cost of Rs.5,000/- against the appellant-petitioner. 10. Challenging the said order dated 27.2.2020 whereby the Writ Petition No. 2936 (S/S) of 2020 was dismissed by learned Single Judge, the appellant-petitioner filed a Special Appeal bearing No. 140 of 2020 which too has been dismissed by Division Bench of this Court vide order dated 28.5.2020. The Division Bench of this Court while dismissing the said Special Appeal has considered the entire matter in detail and did not find any substance in the Special Appeal and accordingly dismissed the same vide order dated 28.5.2020. However, the appellant-petitioner has filed an application seeking review of the said Division Bench judgment dated 28.5.2020. The said review petition is said to be pending. 11. In the meantime before disposal of the said review petition, the appellant-petitioner filed another petition seeking review of the judgment and order dated 27.2.2020 passed by learned Single Judge whereby the Writ Petition No. 2936 (S/S) of 2020 has been dismissed. It is this review petition which has been decided by the order dated 1.12.2020 by learned Single Judge which is under appeal before us herein. 12. Submission of learned counsel for the appellant-petitioner is that the case of the appellant-petitioner has nowhere been decided on merits. It is this review petition which has been decided by the order dated 1.12.2020 by learned Single Judge which is under appeal before us herein. 12. Submission of learned counsel for the appellant-petitioner is that the case of the appellant-petitioner has nowhere been decided on merits. He has stated that learned Tribunal, this Court as also the Hon'ble Apex Court in the earlier round of litigation are culminated in the dismissal of the Special Leave Petition by Hon'ble the Supreme Court vide order dated 2.12.2016 claim of the appellant-petitioner regarding genuineness of the caste certificate on the basis of which he had sought his induction into police force has not been considered; neither it has been decided nowhere and accordingly, even after dismissal of the Special Leave Petition he had made an application to the Superintendent of Police on 13.6.2018 for initiation of de-novo enquiry. His submission is that had on the application preferred by the appellant-petitioner on 13.6.2018 any de-novo enquiry been instituted, there would be no question of Sub-Inspector, Police Station Shahabad, District Hardoi to have passed the order/letter dated 27.8.2018 whereby he had required statement of a report from Tehsildar in respect of the caste certificate of the appellant-petitioner. 13. He has further stated that the fact that de-novo enquiry was instituted even after dismissal of the Special Leave Petition by Hon'ble the Supreme Court established by another document namely, the letter of the Tehsildar dated 31.10.2018 written to the Sub-Inspector, Kotwali Shahabad, District Hardoi. In view of the said submission, it has been argued by learned counsel for the appellant-petitioner that learned Single Judge has completely failed to consider the aforesaid aspects of the matter while passing the order dated 27.2.2020 as also while passing the order under appeal herein, dated 1.12.2020. On the aforesaid counts, the submissions of learned counsel for the appellant-petitioner is that the Special Appeal is liable to be allowed. 14. Opposing the prayers made in the Special Appeal, Shri Rai, learned Additional Chief Standing Counsel has submitted that the Special Appeal is highly misconceived for the simple reason that the question of initiation of any de-novo enquiry after the dismissal of the Special Leave Petition by Hon'ble the Supreme Court vide order dated 2.12.2016 did not arise in this case at all. His submission is, once the matter relating to dismissal of the appellant-petitioner became final upto the stage of Hon'ble the Supreme Court, unless the Hon'ble Supreme Court had directed the said authorities to initiate de-novo enquiry or it has given any liberty to the appellant-petitioner to make such a prayer for de-novo enquiry, any sort of de-novo enquiry was not permissible. In his submission, he has stated that as a matter of fact, no such question arises out of de-novo enquiry. 15. Having considered the rival submissions made by the learned counsel representing the respective parties, we are of the opinion that the entire effort made by the appellant-petitioner in invoking the jurisdiction of this Court repeatedly is futile. As already notice above, the dismissal order passed way back on 26.6.2007 was contested by the appellant-petitioner at various forums and the matters stood concluded by Hon'ble Supreme Court vide order dated 2.12.2016 whereby the Special Leave Petition challenging various orders including the order of dismissal dated 26.6.2007 was dismissed. 16. Merely because Hon'ble Supreme in the said order dated 2.12.2016 kept it open to consider the question of law would not entitle the appellant-petitioner to seek any de-novo enquiry in the disciplinary matter which concluded vide order dated 26.6.2007 whereby he was dismissed from service. 17. The appellant-petitioner has utterly failed to establish that after dismissal of the Special Leave Petition, any order by the appointing authority, i.e., Superintendent of Police was ever passed for institution of any de-novo enquiry. Reliance placed on the letter of the Sub-Inspection dated 27.8.2018 is highly misconceived as it appears that no such letter exists. Even it is assumed that the Sub-Inspector by the said order/letter dated 27.8.2018 had attempted to make certain enquiries from the Tehsildar concerned in respect of the Caste Certificate, in absence of any specific order by the appointing authority, i.e., Superintendent of Police for institution of de-novo enquiry, the said letter loses all its significance. Reliance placed by the learned counsel for the appellant-petitioner on the said letter, as such, is highly misplaced. 18. In view of the aforesaid, we are unable to persuade ourselves to agree with the submissions made by the learned counsel for the appellant-petitioner and thus do not find any infirmity in the order passed by the learned Single Judge which may call for any interference by us in this Special Appeal. 19. 18. In view of the aforesaid, we are unable to persuade ourselves to agree with the submissions made by the learned counsel for the appellant-petitioner and thus do not find any infirmity in the order passed by the learned Single Judge which may call for any interference by us in this Special Appeal. 19. Resultantly, the Special Appeal is hereby dismissed. 20. However, before parting with the case, we may only observe that considering the precarious financial condition of the appellant-petitioner, the cost imposed on him by learned Single Judge by means of the order dated 27.2.2020 passed in Writ Petition No. 2936 (SS) of 2020 may be waived off. 21. Accordingly we direct that the appellant-petitioner will not be liable to pay the cost as per the order dated 27.2.2020 passed by the learned Single Judge.