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2023 DIGILAW 1811 (ALL)

Sunil Kumar v. State of U. P.

2023-07-27

ATTAU RAHMAN MASOODI, OM PRAKASH SHUKLA

body2023
JUDGMENT Heard Shri Ramesh Singh, learned Counsel for the petitioner and Shri Aakash Sinha, learned State Counsel representing the respondent nos. 1, 3 and 4. 2. The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner, Sunil Kumar, assailing (i) the judgment and order dated 28.09.2018 passed by the State Public Services Tribunal, Indira Bhawan, Lucknow (hereinafter referred to as the "Tribunal") in Claim Petition No. 935 of 2017, (ii) judgment and order dated 15.11.2019 passed in Review Petition No. 67 of 2019. Apparently, the claim petition No. 935 of 2017 has been preferred by the writ petitioner against (a) the order of punishment/censure dated 14.12.2016 and (b) the appellate order dated 21.04.2017. 3. Brief facts of the case as culled out from the record available before this Court in the instant writ petition are that the petitioner was initially appointed to the post of Constable in Civil Police in the year 1997. He was promoted to the post of Sub-Inspector in the year 2013. When he was posted in Police Station Patranga, District Faizabad on 11.06.2016 the Station House Officer, Police Station Patranga, District Faizabad, at about 12:00 noon informed the petitioner orally that there was apprehension of certain incident of cow slaughter in village Siwan near the house of Juber Ahmad. Allegedly, the petitioner did not visit the aforesaid place, however, he submitted his report to the effect that no cattle could be recovered. After two and half hours, a herd of unclaimed cattle was recovered from the aforesaid place. Taking into consideration the aforesaid facts and apparent dereliction in duty, the Senior Superintendent of Police, Faizabad ordered a preliminary enquiry and the Circle Officer, Bikapur, District Faizabad was appointed as enquiry officer. 4. The Enquiry Officer, after due enquiry, arrived at the conclusion that the petitioner and three others were prima facie guilty and accordingly submitted its report dated 01.08.2016 to the disciplinary authority i.e. Superintendent of Police, Faizabad. On receipt of the enquiry report dated 01.08.2016, the Superintendent of Police, Faizabad issued a show cause notice dated 09.09.2016 to the petitioner, requiring him to explain as to why a censure entry for the year 2016 may not be recorded in his character roll in view of his proven guilt. A copy of the enquiry report was also annexed with the said show cause notice. A copy of the enquiry report was also annexed with the said show cause notice. Having received the aforesaid show cause notice dated 09.09.2016, the petitioner submitted his explanation on 03.11.2016, denying the delinquency being attributed to him. The Superintendent of Police, Faizabad, after considering the explanation of the petitioner to the show cause notice, arrived at a conclusion that the explanation offered by the petitioner was not satisfactory and ordered to record a censure entry in his character roll by means of punishment order dated 14.12.2016. 5. Aggrieved by the order of punishment/censure dated 14.12.2016, the petitioner preferred an appeal as per the rules before the Deputy Inspector General of Police, Faizabad Range, Faizabad, who, in turn, rejected it by means of order dated 21.04.2017. Thereafter, the petitioner preferred Claim Petition No. 935 of 2017 before the learned Tribunal, challenging the aforesaid punishment/censure dated 14.12.2016 as well as the appellate order dated 21.04.2017. The learned Tribunal, having regard to the submissions advanced by the parties, noting the proposed penalty mentioned in the show cause notice dated 09.09.2016, explanation of the petitioner dated 03.11.2016 to the show cause notice, Rule 4, 5(2) and 14 (2) of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the 'Rules, 1991'), arrived at a conclusion that the conduct of the petitioner in taking cognizance of the incident and avoiding to visit the site without any rhyme or reason cannot be considered a bona fide action on his part and since the petitioner failed to establish any procedural flaw or any deviation from the principle of natural justice on the part of the respondents, the learned Tribunal dismissed the claim petition by means of order dated 28.09.2018. 6. Dissatisfied with the aforesaid order dated 28.09.2018, the petitioner preferred a review petition No. 67 of 2019. The Tribunal, vide order dated 15.11.2019, dismissed the review petition as no error apparent of the record could be pointed by the claimant/writ petitioner. 7. Thus, the writ petitioner, feeling aggrieved by the aforesaid orders dated 15.11.2019 (supra), 28.09.2018 (supra), punishment/censure order dated 14.12.2016 and appellant order dated 21.04.2017, has filed the instant writ petition. 8. The Tribunal, vide order dated 15.11.2019, dismissed the review petition as no error apparent of the record could be pointed by the claimant/writ petitioner. 7. Thus, the writ petitioner, feeling aggrieved by the aforesaid orders dated 15.11.2019 (supra), 28.09.2018 (supra), punishment/censure order dated 14.12.2016 and appellant order dated 21.04.2017, has filed the instant writ petition. 8. Submission of the learned Counsel for the petitioner is that for the same incident, the Station House Officer Ramakant Prasad was also punished with minor punishment and aggrieved by the said minor punishment, Ramakant Prasad preferred Claim Petition No. 1820 of 2017, which was allowed by the learned Tribunal vide judgment and order dated 12.09.2018 and the minor punishment order dated 14.12.2016, appellate order dated 30.05.2017 and revision order dated 31.08.2017 were set-aside, however, the claim petition preferred by the petitioner has been rejected by the learned Tribunal, despite the fact that the petitioner is also entitled to get similar benefit of the judgment and order dated 12.09.2018 (supra) 9. Learned Counsel for the petitioner has further submitted that there was no bad intention on the part of the petitioner as on the said date itself, he visited the village to search the cattle and when no cattle was found in the village, he informed the same to the Station House Officer and after returning from village, he engaged in other official work. Thus, it was argued that the act of the petitioner does not come into the category of misconduct but at the most, it can come under the category of negligence. However, neither the appellate authority nor the learned Tribunal has considered the matter in the aforesaid aspect of the matter and thus it has been argued that the impugned order passed by the Tribunal is liable to be quashed. 10. Per contra, learned Standing Counsel representing the respondents has vehemently opposed the aforesaid contentions of the learned Counsel for the petitioner and has argued that the due procedure was duly adopted while awarding the punishment of censure. A preliminary enquiry was instituted against the petitioner for the act of misconduct committed by him in disobeying the order of the superior officers. A preliminary enquiry was instituted against the petitioner for the act of misconduct committed by him in disobeying the order of the superior officers. The disciplinary authority, on receipt of the enquiry report, issued a show cause notice to the petitioner by following the procedure provided under Rule 14 (2) of the Rules, 1991, calling upon him to submit his explanation and thereafter after considering the explanation/reply submitted by the petitioner to the said show cause notice in detail, the disciplinary authority has awarded the punishment of censure entry to the petitioner by means of a speaking and well-reasoned order dated 14.12.2016 and the same is commensurate to the act of omission of the petitioner. 11. It has been contended by the learned Standing Counsel that looking to the gravity of lapse committed by the petitioner, it cannot be said that the act of the petitioner comes under negligence rather it has come under the category of misconduct because the petitioner himself has deliberately disobeyed the directions issued by his higher officer to make inspection of the village but he did not do so and without making any inspection of the village, he erroneously informed the higher officer that he did not find any cattle in the village. 12. Having heard learned counsel representing the parties and going through the record available before us in the instant writ petition, it is required to be noted that due procedure as prescribed in sub-rule (2) of Rule 14 of the Rules, 1991 has been followed for conducting departmental proceedings in awarding minor punishment of censure. The petitioner was informed in writing about the act or omissions committed by him as well as the action proposed to be taken against him. Further, reasonable opportunity was provided to the petitioner for making representation/explanation viz. enquiry report was supplied to the petitioner; the disciplinary authority on receipt of the preliminary enquiry report followed the procedure prescribed under Rule 14 (2) of the Rules, 1991 issued show cause notice to the petitioner for filing his reply; the petitioner, thereafter, filed his reply to the show cause notice; and the disciplinary authority, on consideration of the reply of the petitioner as well as other relevant evidences on record, passed the punishment order of censure. Therefore, there is no dispute relating to the application of rules or infringement of any principles of natural justice in conducting the enquiry. Therefore, there is no dispute relating to the application of rules or infringement of any principles of natural justice in conducting the enquiry. 13. So far as the plea of the petitioner that the alleged act of the petitioner has not come under the purview of misconduct rather at the most, it came under the category of negligence, this Court would find that the Tribunal has considered this plea of the petitioner and has recorded finding in this regard in paragraph- 15 of the impugned order dated 28.09.2018, which is reproduced as under :- "15. A perusal of the file illustrates that the information upon which the petitioner was supposed to act in an alert and highly responsible manner was of a serious nature and clearly suggested that there was apprehension of the incident of cow slaughter. Instead of readily springing into action and rushing the spot without loss of time, the petitioner pretended to have visited the site and furnished the report that there was nothing serious or alarming and he had arrested a person to prevent the commission of intended crime. The enquiry report dated 01.08.2016 reveals that the petitioner's version was misleading as he had in fact not visited the site and preferred to take the incident lightly. It has also been pointed out in the enquiry report that since the senior officers were suspicious about the petitioner's version, they pressurized the local police to look into the matter afresh and this is why a number of cattle who seemed to have been brought there for purpose of slaughter were recovered from the bushy areas of the site. It cannot be gainsaid that cow slaughter is a crime which sometimes assumes grave dimensions as a particular community is dead against it. In this view of the matter, the way the petitioner took the incident and avoided going to the site without rhyme or reason cannot be considered a bona fide action on his part. The facts which he tried to bring to the notice of the senior officers were not found to be correct as the police party had recovered several cattle from that very site which he had mischievously informed to have been visited. The facts which he tried to bring to the notice of the senior officers were not found to be correct as the police party had recovered several cattle from that very site which he had mischievously informed to have been visited. If the opposite party no.3 has interpreted the petitioner's aforementioned act as misconduct on his part and thereby deciding to punish him by awarding him a censure entry, he cannot be said to have taken a wrong and unbefitting decision." 14. In our opinion, the learned Tribunal has rightly arrived to the conclusion that act of the petitioner will definitely come under the purview of misconduct. Therefore, the plea of the petitioner in this regard is not substantiated in the facts and circumstances of the case. Further, this Court finds that discipline amongst the police force is hallmark of their proper functioning and is a non-negotiable service condition. 15. At this juncture, it would be apt to mention that law is well settled that the Courts will not interfere with findings of facts recorded in a departmental enquiry, except where such findings are based on no evidence or where they are mala fide or the decision arrived is clearly perverse. This Court in Writ-A No. 5258 of 2023 : Dileep Kumar Srivas v. State of Uttar Pradesh and others, decided on 25.07.2023, has recently held that :- "20. It is well settled that quantum of punishment is essentially the domain of the departmental authority. Courts cannot assume the function of departmental authorities and the judicial review of quantum of punishment is very limited only where penalty is found to be shocking to the conscience of the Court. It is not for the Court to substitute its decision by prescribing the quantum of punishment unless the punishment is shockingly disproportionate with the gravity of charge." 16. On due consideration of the facts and the submission of the parties, we are of the view that the order of censure passed against the petitioner cannot be faulted with. In view of the guilt of the petitioner, it cannot be said that the punishment is disproportionate and shocking, thereby warranting any interference. The said punishment of censure is proportionate with the gravity of the charge, hence deserves to be upheld. 17. Thus, we are of the considered view that the Tribunal has not erred in law or on facts. In view of the guilt of the petitioner, it cannot be said that the punishment is disproportionate and shocking, thereby warranting any interference. The said punishment of censure is proportionate with the gravity of the charge, hence deserves to be upheld. 17. Thus, we are of the considered view that the Tribunal has not erred in law or on facts. We do not find any perversity or infirmity in the impugned judgment and order warranting any interference. 18. In the result, the writ petition lacks merit and is, accordingly, dismissed. However, there will be no order as to costs.