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2023 DIGILAW 1977 (ALL)

Vinod Kumar v. State of Uttar Pradesh

2023-08-17

AJIT KUMAR

body2023
JUDGMENT : AJIT KUMAR, J. 1. Both above petitions are being heard and decided together as they raise common question of law and facts. 2. Heard learned counsel for the petitioner and learned Standing Counsel for the State respondents. 3. Learned Advocate appearing for the petitioner in Writ (A) No. 17855 of 2022 has argued that charge-sheet that was issued to the petitioner leveling certain charges to set up in motion disciplinary proceedings, had no approval of the competent authority as per the Uttar Pradesh Police Officers of Sub-ordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'Rules, 1991'). This Court while entertaining this petition noted the ground raised by petitioner and directed that the disciplinary proceedings pursuant to the charge-sheet in question shall abide by decision of the petition. 4. It transpires that while the matter remained pending before this Court and counter affidavit was filed, the department proceeded to issue another charge-sheet and now this time by the Additional Deputy Commissioner, Agra with the approval of the higher competent authority. This charge-sheet has now come to be challenged in the writ petition being Writ (A) No. 12438 of 2023 on the ground that once the competence of authority in issuing charge-sheet was already under challenge before this Court and the charge-sheet had not been stayed, respondents were not justified in issuing another charge-sheet, this time, may be, with the approval of the higher authority. 5. Learned counsel for the petitioner while defending the first writ petition and assailing the charge-sheet has drawn the attention of the Court towards Rule 14 of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991 that provide for procedure for conducting departmental inquiry. According to him the procedure prescribes that the charge-sheet shall be issued and inquiry be conducted in terms of the Appendix-1 to the rules that lays down the procedure. 6. Per contra, it is argued by Mr. S.K. Pal, learned Additional Chief Standing Counsel that the rules are absolutely silent as to whether a charge-sheet is required to be approved further by the higher authority and the inquiry officer would not be competent in the matter. 6. Per contra, it is argued by Mr. S.K. Pal, learned Additional Chief Standing Counsel that the rules are absolutely silent as to whether a charge-sheet is required to be approved further by the higher authority and the inquiry officer would not be competent in the matter. He submits rather there is a form that has been prescribed for issuance of charge-sheet under the Police Act, 1861 that authorizes even the inquiry officer to issue charge-sheet because it is he who has to sign the document containing article of charges and, therefore, he submits that petitioner is not justified in assailing the charge-sheet on the ground that it was not approved by the disciplinary authority. However he submits that now this time the charge-sheet has stood approved by the higher authority and the charges are the same as leveled in the earlier charge-sheet impugned in writ petition being Writ (A) No. 17855 of 2022 petitioner should not have any grievance. 7. Having heard learned counsel for the respective parties and having perused the records and having gone to the relevant provisions of the rules as cited by the learned counsel for the respective parties and the charge-sheet that have been challenged in both the writ petitions, I find in the first place that the charges are same except with the modality that this time approved by higher competent authority while the earlier charge-sheet was issued by the inquiry officer. 8. In such above view of the matter, therefore, the controversy should not detain this Court any longer as once the charge-sheet has stood substituted by another charge-sheet, which according to the petitioner, would be a competent one, now the petitions can be disposed of with a direction to the authorities/disciplinary authority to proceed with the disciplinary proceedings in accordance with law. However, it would be relevant at the same time to reproduce Rule 14 of the Rules, 1991 that runs as under: “14. However, it would be relevant at the same time to reproduce Rule 14 of the Rules, 1991 that runs as under: “14. Procedure for conducting departmental proceedings: (1) subject to the provisions contained in these rules, the departmental proceedings in the case referred to in sub-rule (1) of rule 5 against to the police officers may be conducted in accordance with the procedure laid down in Appendix-I. (2) Notwithstanding anything contained in sub-rule (1) punishments in cases referred to in sub-rule (2) of Rule 5 may be imposed after informing the police officer in writing of the action proposed to be taken against him and of the imputations of act or omission on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal. (3) The charged police officer shall not be represented by Counsel in any proceedings instituted under these rules.” (Emphasis added) 9. Now, I find upon bare reading of relevant rules that refers to Appendix-1 to the rules that lays down the procedure of holding an inquiry and conduct the disciplinary proceedings in detail. The Appendix-1 talks about various procedures to be adopted by the inquiry officer in the matter of inquiry against the charge-sheet and, in the first place, it provides that grounds on which the disciplinary authorities is proposed to take action shall be used in the form of definite charge or charges as per Form-1. The Form-1 has been prescribed for the disciplinary proceedings under Section 7 of the Police Act, 1861 and upon bare reading of the same, I find that it is required to be issued under the signature of the Inquiry Officer. The Appendix of Form-1 to the Rules 1991 are reproduced hereunder: “APPENDIX-1 PROCEDURE RELATING TO THE CONDUCT OF DEPARTMENTAL PROCEEDINGS AGAINST POLICE OFFICER [See RULE 14(1)] Upon institution of a formal enquiry such police officer against whom the enquiry has been instituted shall be informed in writing of the grounds on which it is proposed to take action and shall be afforded an adequate opportunity of defending himself. The ground on which it is proposed to take action shall be used in the form of definite charge or charges as in FORM-1 appended to these Rules which shall be communicated to the charged polices officer and which shall be so clear and precise to give sufficient indication to the charged police officer of the facts and circumstances against him. He shall be required, within a reasonable time, to put in, in a written statement of his defence and to state, whether he desires to be heard in person. If he so desires, or if the Inquiry Officer so directs an oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded as the Inquiry Officer considers necessary. The charge police officer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish: Provided that the Inquiry officer may for sufficient reasons to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the finding and the ground thereof. The Inquiry officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged police officer. FORM-1 Form of charge to be used in proceeding under section 7 of the Police Act,1861 Office of the To Date.......199... (Full name and designation of the police officer charged) You are hereby charged as follows: (1) that you on (or about) (or between)..........................and .....................dated) while posted as (designation) and hereby (Facts of the case) Committed a breach of rule......................................................or were quality of discharge your duty, or etc. Evidence which it proposed to consider in support of the charge: (I)+ (II)+ (III)+ (2) that you* etc. (3) that you* etc. (to be repeated as many times as there charges) You are hereby required on or before.........................to put in a written statement of your defence in reply to each of the charges. You are warned that if no such statement is received form you by the undersigned within the time allowed, it be presumed that you have none to furnish and order's will be passed in your case accordingly. You are warned that if no such statement is received form you by the undersigned within the time allowed, it be presumed that you have none to furnish and order's will be passed in your case accordingly. You are further required simultaneously to inform the undersigned in writing whether you desire to be heard in person and in case you wish to examine or cross-examine any witnesses to submit along with your written statement their names and addresses together with a brief indication of the evidence which each such witness shall be expected to give. (Signature and designation of Inquiring officer) (For and on behalf of*) CERTIFIED that the charge has read over and explained to...........................(party charged) in simple Hindi and a copy of the same was handed over to..................Received a copy of charge. (Signature and Designation of inquiring officer) Signature and party charged.” (Emphasis added) 10. Thus, from the above, it is absolutely clear that even the earlier charge-sheet that was issued to the petitioner and was signed by the inquiry officer himself was not at all required to be approved by the disciplinary authority. However, since now a fresh charge-sheet has been issued with the same charges and this time approved by the higher authority, namely, disciplinary authority, I hold that the earlier charge-sheet stands superseded by the subsequent charge-sheet issued on 17th June, 2023 and accordingly disciplinary inquiry will now be held strictly as per the procedure prescribed for under Appendix-1 to the Rules, 1991, into the charges leveled under the charge-sheet dated 17th June, 2023. 11. It appears that the petitioner has raised certain grounds regarding applicability of the Uttar Pradesh Government Service Rules, 1999 which provide that the charge-sheet should be approved by the disciplinary authority. 12. In my considered view the Rules, 1991 are the special rules applicable to the police department and so on the principle that special law will override the general law, the 1999 Rules will not be applicable in so far as the disciplinary proceedings and in respect of the police personnel are concerned. 13. Petitioner is to submit his reply within a period of four weeks from today and, thereafter to cooperate in the disciplinary proceedings. 14. With the above observations and directions, both these petitions stand disposed of.