Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Once Regular Enquiry Instituted, Findings Recorded In Preliminary Enquiry Loose Its Significance.
JUDGEMENT TITLE : Subhash Chandra Upadhyay Vs. State Of U.P. And Others. On 08/05/2006 By Allahabad High Court
CASE NO : WRIT - A NO. 21276 OF 2004.
CORAM : Hon'ble R.K. Agrawal,J. And Hon'ble Sanjay Misra,J.


Court No.37

Civil Misc. Writ Petition No.21276 Of 2004
Subhash Chandra Upadhaya V. State Of U.P. And Others

Hon'ble R.K.Agrawal, J.
Hon'ble Sanjay Misra, J.

(Delivered By R.K.Agrawal, J.)

By Means Of The Present Writ Petition Filed Under Articles 226/227 Of The Constitution Of India, The Petitioner, Subhash Chandra Upadhaya, Seeks The Following Reliefs:-
(A) To Issue A Writ, Order Or Direction In The Nature Of Certiorari For Quashing The Judgment/order Dated 23.9.2003 Received On 25.11.2003 (Annexure No.1) Passed By State Public Service Tribunal, Lucknow Be Quashed And Further The Hon'ble Court Be Pleased To Allow The Claim Petition No.1413 Of 2001, Subhash Chandra Upadhaya Vs. State Of U.P. And Others And To Quash The Order Of Punishment Dated 5.9.1999, Order Of Appellate Authority Dated 4.1.2000 And Order Of Revisional Authority Dated 2.8.2001 And Respondent No.1 And 3 Be Directed To Reinstate The Petitioner On The Post Held By Him With All The Consequential Benefits Attached To The Post.
(B) To Issue Any Other Writ, Order Or Direction Which This Hon'ble Court May Deem Fit And Proper In The Facts And Circumstances Of The Case.
(C) To Award Cost Of Petition In Favour Of Petitioner."

According To The Petitioner, He Was Appointed On The Post Of Constable In Provincial Armed Constabulary (hereinafter Referred To As "the PAC") In The State Of U.P. His Services Were Also Confirmed On The Said Post. While Posted In H Company Of 33 Bn. PAC At Tara Chand Hostel Of Allahabad University, Some Incident Took Place Between The Petitioner And Sri Satya Prakash Arun, Company Commander Of The Said Battalion, Respondent No.4. He Was Placed Under Suspension By The Respondent No.4, Vide Order 6.7.1998, Which Was Subsequently Revoked On 13.8.1998 By The Commandant, 33 Bn. PAC, Jhansi. A Preliminary Enquiry Was Conducted By The Assistant Commandant, 33 Bn. PAC And Statement Of The Witnesses Were Recorded. The Disciplinary Authority Decided To Hold A Full Fledged Enquiry. The Charge Sheet Was Issued On 28.10.1998 And The Assistant Commandant, 33 Bn. PAC, Jhansi Was Appointed As The Enquiry Officer. Before The Enquiry Officer, All The Witnesses Named In The Charge Sheet Were Examined, Who Were Also Cross-examined By The Petitioner And After Taking Into Consideration The Evidence And Other Material As Also The Defence Taken By The Petitioner, The Enquiry Officer Submitted His Report To The Disciplinary Authority. The Disciplinary Authority After Issuing A Show Cause Notice Enclosing A Copy Of The Enquiry Report, Called For An Explanation/reply Of The Petitioner. After Considering The Reply So Given By The Petitioner, The Disciplinary Authority, Vide Order Dated 5.9.1999 Passed An Order Of Punishment Dismissing The Petitioner From Service. The Appeal As Also The Revision Preferred By The Petitioner Failed, Whereupon The Petitioner Preferred A Claim Petition Before The State Public Services Tribunal, Lucknow, Being Claim Petition No.1413 Of 2001. The Said Claim Petition Has Been Dismissed By The Tribunal Vide Order Dated 23.9.2003, Which Order Is Under Challenge In The Present Petition.
We Have Heard Sri Satish Dwivedi, Learned Counsel For The Petitioner, And Sri S.K.Mehrotra, Learned Standing Counsel Appearing The Respondents.
The Learned Counsel For The Petitioner Submitted That The Order Of Punishment As Upheld In Appeal And Revision As Also By The Tribunal Is Liable To Be Set Aside On The Ground That The Petitioner Was Not Given The Copy Of The Preliminary Enquiry Report Nor The Statement Of The Persons Recorded During The Preliminary Enquiry, Which Resulted In Denying The Petitioner An Opportunity To Effectively Cross-examine The Witnesses. In Support Of His Aforesaid Pleas, He Has Relied Upon The Following Decisions:-
(i) State Of Punjab V. Bhagat Ram, AIR 1974 SC 2335;
(ii) State Of U.P. V. Mohd. Sharif, 1982 (45) FLR 289(SC);
(iii) Chandrama Tiwari V. Union Of India, 1988 (56) FLR 323(SC).

He Further Submitted That The Service Record Of The Petitioner Has Been Unblemished And In The Past No Adverse Entry Or Any Warning Has Been Issued To The Petitioner. Thus, The Punishment Of Dismissal From Service For The Alleged Incident Is Highly Disproportionate To The Nature Of The Charges And Instead The Petitioner Should Have Been Given Some Lighter Punishment. In Support Of His Aforesaid Submissions, He Has Relied Upon The Decision In The Case Of Rama Kant Mishra V. State Of U.P. And Others, AIR 1982 SC 1552.
The Learned Standing Counsel, However, Submitted That The Petitioner Was Given Full Opportunity To Cross Examine All The Witnesses, The Copies Of All The Documents Which He Wanted, Were Supplied To Him And Further Looking To The Nature Of The Charges Which Were Very Serious In Nature, As The Petitioner Belongs To Police Cadre Which Is Required To Maintain Discipline, Law And Order, The Punishment Imposed Cannot Be Said To Be Disproportionate To The Charges Levelled. He Further Submitted That The Enquiry Officer Had Complied With All The Requirements Of The Principles Of Equity, Fair Play And Justice And Does Not Call For Any Interference.
Having Heard The Learned Counsel For The Parties, We Find That In The Charge Sheet The Findings Recorded In The Preliminary Enquiry Have Not Been Made The Basis. Further, The Statements Recorded In The Preliminary Enquiry Have Not Been Relied Upon In The Charge Sheet. The Witnesses Who Were To Be Examined, Have Been Mentioned In The Charge Sheet Which All Have Been Cross-examined By The Petitioner. The Enquiry Officer Has Also Not Relied Upon The Findings Recorded In The Preliminary Enquiry And If The Same Had Not Been Given To The Petitioner, It Did Not Cause Any Prejudice To The Petitioner. The Decisions Relied Upon By The Learned Counsel For The Petitioner Are Of No Help To The Petitioner Inasmuch As In View Of The Decision Of The Apex Court In The Case Of Vijay Kumar Nigam V. State Of M.P., 1997 AIR SCW 1616 And Narayan Duttaraya Ramterthakar V. State Of Maharashtra And Others, 1997 (2) SLJ 91 (SC) Once The Regular Enquiry Has Been Instituted, The Findings Recorded In The Preliminary Enquiry Loose Its Significance.
So Far As The Plea That The Punishment Awarded To The Petitioner Is Disproportionate To The Charges, We May Mention That Looking To The Nature Of Service In Which The Petitioner Was Employed, Using Abusive Language Against The Superior And Threatening Him To Beat With Chappal, Are Serious Charges Which Are Required To Be Dealt With Firmly And With A Firm Determination. The Punishment For Dismissal Of Service, In The Circumstances, Cannot Be Said To Be Disproportionate.
In The Circumstances, We Do Not Find Any Merit In This Petition. It Is Dismissed.

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