The Lucknow Bench of the Allahabad High Court has directed the State Government of Uttar Pradesh to reconsider the appeal of Siraj Hussain, a dismissed constable of U.P Police.
A Single Bench of Justice J.J Munir passed this order while hearing a petition filed by Siraj Hussain.
The facts of the case are that the petitioner was a Constable in the Civil Police. He was appointed on 01.02.1982 and worked up to the year 2010, when he was dismissed from service. The petitioner was placed under suspension pending inquiry vide order dated 17.02.2005 on the charge of unauthorized absence from duty. A chargesheet was served upon the petitioner on 10.05.2008 under Rule 14(1) of The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991.
The Inquiry Officer, appointed to inquire into the charges, submitted his report on 21.11.2008. The petitioner, on the basis of findings of the Inquiry Officer, was dismissed by the Superintendent of Police, Lakhimpur Kheri by order dated 28.05.2010.
The petitioner carried a departmental appeal impugning the order of his dismissal from service passed by the Superintendent of Police last mentioned under Rule 20 of the Rules. The Deputy Inspector General of Police, Lucknow Range, Lucknow, before whom the appeal came up, dismissed the same vide order dated 30.11.2012 on ground that it was barred by an uncondonable period of limitation.
The petitioner challenged the appellate order by instituting a claim petition before the Uttar Pradesh Public Service Tribunal. The Tribunal by their judgment and order dated 22.12.2015 held that the appeal being preferred before the Appellate Authority beyond the prescribed period of limitation of 90 days, which the Appellate Authority refused to condone, the Tribunal could do nothing in the matter. The power of condonation was vested with the Appellate Authority, which had declined the condonation of delay.
The Tribunal held further that since the remedy of appeal had not been exhausted by the petitioner by preferring a competent appeal within the prescribed period of limitation, the claim petition was one instituted without exhausting the statutory alternative remedy. It was on this rather queer logic that the Tribunal dismissed the claim petition.
The petitioner challenged the Tribunal’s judgment before the Court by means of Writ Petition. A Division Bench of the Court by the order dated 21.09.2016 quashed the order of the Appellate Authority, rejecting the petitioner’s statutory appeal as barred by time, as well as the Tribunal’s judgment dated 22.12.2015 and restored the appeal to the Appellate Authority’s file for reconsideration. When the petitioner’s appeal came up before the Appellate Authority, to wit, the Deputy Inspector General of Police, Lucknow Range, Lucknow afresh on 14.02.2017, it was rejected again substantially on the ground of an uncondonable limitation.
The petitioner challenged the order passed by the Appellate Authority by means of a revision under Rule 23 of the Rules to the Inspector General of Police, Lucknow Zone, Lucknow. The Inspector General dismissed the revision vide order dated 12.05.2017 with the remark that the appeal was rightly dismissed as barred by limitation.
The petitioner preferred a representation dated 10.08.2017 under Rule 25 of the Rules to the State Government. The State Government passed an order dated 14.08.2017 directing the Superintendent of Police, Kheri to look into the petitioner’s case on humanitarian grounds and take appropriate action with regard to his reinstatement in service.
The Court said that even if there was an error apparent in the orders passed by this Court, it is both beyond ken and jurisdiction of the Additional Chief Secretary to say that this Court has committed an error apparent. He also could not have at all blamed Counsel for the petitioner, saying that the Court had been misguided into passing the order dated 06.09.2018. There is absolutely no power or jurisdiction with the Additional Chief Secretary to comment on the record or proceedings of this Court in the slightest measure.The Court observed that,
However, adopting a magnanimous view in the matter, we rest the matter here so far as the facet of contents of the order impugned are concerned. But, it does not mean that we can allow these kinds of remarks to be made by the Additional Chief Secretary regarding our record and proceedings. The proper course for the Additional Chief Secretary was to have understood the order in the best way possible within the limits of his jurisdiction and decide the matter without commenting on the worth or validity of the Court’s order or saying if we were misguided into passing it.
He had no business to blame the Counsel, who appeared in the matter earlier of misguiding this Court. If for some reason, the Additional Chief Secretary felt that he could not decide the matter without writing that our order in Writ Petition dated 06.09.2018 suffered from some kind of an error apparent, the only course of action open to him was to stay proceedings before him and make an application before the Judge, who passed that order, seeking clarification of the remarks about the ‘minor penalty’ mentioned in the order.
We think that it was not at all necessary to seek any clarification because whether the penalty was minor or major, it had no bearing on the directions issued by this Court that were harmlessly limited to a command to the State Government to decide the petitioner’s representation preferred under Rule 25 of the Rules. The remarks about the order incorrectly mentioning that the petitioner had been punished with a censure instead of dismissal and virtually castigating our order for an error apparent, is to say the least, the most undesirable transgression of hierarchy in jurisdiction by the Additional Chief Secretary.
So far as the second part of the order impugned is concerned, by which the Additional Chief Secretary has held the representation under Rule 25 of the Rules not maintainable, we find it to be utterly flawed.
The Court further observed that,
The second part of his reasoning carried in the order dated 01.02.2022, we find flawed for the reason that in the Additional Chief Secretary’s opinion, the petitioner’s remedy under Rule 25 of the Rules was barred because he had appealed the order of punishment, which excluded the State Government’s power under Rule 25 whereas in this case, there was really no appeal ever carried by the petitioner.
The petitioner did attempt to lodge an appeal with the Appellate Authority praying for condonation of delay, which was twice denied. The Appellate Authority having denied the petitioner’s condonation of delay in the matter of his appeal, no competent appeal on the petitioner’s behalf ever came into existence. All that was dealt with by the Appellate Authority was a delay condonation application, which he rejected, in consequence whereof no appeal can be said to have ever been instituted by the petitioner against the Disciplinary Authority’s order under Rule 20 of the Rules.
If there was no appeal ever competently instituted against the order of the Authority in the first instance, the clause in Rule 25 excluding the State Government’s jurisdiction to exercise power under Rule 25 does not come into play at all. It is here where the Additional Chief Secretary has erred in saying the petitioner’s statutory representation under Rule 25 was not maintainable. For the said reason, the order of the Additional Chief Secretary on this count is held bad and vitiated.
The last part of the order impugned where the Additional Chief Secretary has attempted to show that he has considered the merits of the petitioner’s case as well, is besides the point. Once he has held the proceedings to be incompetent before him, his remarks on merits lose all significance. Even if the remarks on merits are to be taken as valid expression of an opinion by the State Government under Rule 25, we are not at all impressed by the reasoning, in that the conclusions are laconic, cryptic and perfunctory. We must say that the petitioner has been denied his right of appeal and revision on the technical ground of delay under Rules 20 and 23 of the Rules.
“In this case, virtually the State Government while exercising powers under Rule 25 would be doing a review of the order of punishment passed by the Disciplinary Authority. It has, therefore, to consider the matter almost as carefully as would be expected of the Appellate Authority, if not precisely by the same procedure.
On the basis of contentions raised, the procedural fairness, the evidence appearing against the petitioner, the tenability of his defence based on documents that the petitioner has offered to justify his absence, must all be carefully scrutinized to affirm, modify or pass any other order under Rule 25 of the Rules.
It cannot be done by the State Government at least in this case by a cryptic remark that the petitioner has shown nothing that may demonstrate his innocence as to the charge.
The State Government must satisfy themselves if in this case the Establishment have discharged their burden of bringing home the charge by evidence, both documentary and oral, after fixing a date, time and place for holding an inquiry.
These are the procedural aspects, which must be gone into by the State Government while deciding the petitioner’s statutory representation under Rule 25 of the Rules.
The quantum of punishment, and if it is disproportionate, would always be open to the State Government to consider while making their orders afresh under Rule 25″, the Court also observed while allowing the petition.
The Court quashed the order dated 01.02.2022 passed by the State Government.
The Lucknow Bench of the Allahabad High Court has directed the State Government of Uttar Pradesh to reconsider the appeal of Siraj Hussain, a dismissed constable of U.P Police.
A Single Bench of Justice J.J Munir passed this order while hearing a petition filed by Siraj Hussain.
The facts of the case are that the petitioner was a Constable in the Civil Police. He was appointed on 01.02.1982 and worked up to the year 2010, when he was dismissed from service. The petitioner was placed under suspension pending inquiry vide order dated 17.02.2005 on the charge of unauthorized absence from duty. A chargesheet was served upon the petitioner on 10.05.2008 under Rule 14(1) of The Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991.
The Inquiry Officer, appointed to inquire into the charges, submitted his report on 21.11.2008. The petitioner, on the basis of findings of the Inquiry Officer, was dismissed by the Superintendent of Police, Lakhimpur Kheri by order dated 28.05.2010.
The petitioner carried a departmental appeal impugning the order of his dismissal from service passed by the Superintendent of Police last mentioned under Rule 20 of the Rules. The Deputy Inspector General of Police, Lucknow Range, Lucknow, before whom the appeal came up, dismissed the same vide order dated 30.11.2012 on ground that it was barred by an uncondonable period of limitation.
The petitioner challenged the appellate order by instituting a claim petition before the Uttar Pradesh Public Service Tribunal. The Tribunal by their judgment and order dated 22.12.2015 held that the appeal being preferred before the Appellate Authority beyond the prescribed period of limitation of 90 days, which the Appellate Authority refused to condone, the Tribunal could do nothing in the matter. The power of condonation was vested with the Appellate Authority, which had declined the condonation of delay.
The Tribunal held further that since the remedy of appeal had not been exhausted by the petitioner by preferring a competent appeal within the prescribed period of limitation, the claim petition was one instituted without exhausting the statutory alternative remedy. It was on this rather queer logic that the Tribunal dismissed the claim petition.
The petitioner challenged the Tribunal’s judgment before the Court by means of Writ Petition. A Division Bench of the Court by the order dated 21.09.2016 quashed the order of the Appellate Authority, rejecting the petitioner’s statutory appeal as barred by time, as well as the Tribunal’s judgment dated 22.12.2015 and restored the appeal to the Appellate Authority’s file for reconsideration. When the petitioner’s appeal came up before the Appellate Authority, to wit, the Deputy Inspector General of Police, Lucknow Range, Lucknow afresh on 14.02.2017, it was rejected again substantially on the ground of an uncondonable limitation.
The petitioner challenged the order passed by the Appellate Authority by means of a revision under Rule 23 of the Rules to the Inspector General of Police, Lucknow Zone, Lucknow. The Inspector General dismissed the revision vide order dated 12.05.2017 with the remark that the appeal was rightly dismissed as barred by limitation.
The petitioner preferred a representation dated 10.08.2017 under Rule 25 of the Rules to the State Government. The State Government passed an order dated 14.08.2017 directing the Superintendent of Police, Kheri to look into the petitioner’s case on humanitarian grounds and take appropriate action with regard to his reinstatement in service.
The Court said that even if there was an error apparent in the orders passed by this Court, it is both beyond ken and jurisdiction of the Additional Chief Secretary to say that this Court has committed an error apparent. He also could not have at all blamed Counsel for the petitioner, saying that the Court had been misguided into passing the order dated 06.09.2018. There is absolutely no power or jurisdiction with the Additional Chief Secretary to comment on the record or proceedings of this Court in the slightest measure.The Court observed that,
However, adopting a magnanimous view in the matter, we rest the matter here so far as the facet of contents of the order impugned are concerned. But, it does not mean that we can allow these kinds of remarks to be made by the Additional Chief Secretary regarding our record and proceedings. The proper course for the Additional Chief Secretary was to have understood the order in the best way possible within the limits of his jurisdiction and decide the matter without commenting on the worth or validity of the Court’s order or saying if we were misguided into passing it.
He had no business to blame the Counsel, who appeared in the matter earlier of misguiding this Court. If for some reason, the Additional Chief Secretary felt that he could not decide the matter without writing that our order in Writ Petition dated 06.09.2018 suffered from some kind of an error apparent, the only course of action open to him was to stay proceedings before him and make an application before the Judge, who passed that order, seeking clarification of the remarks about the ‘minor penalty’ mentioned in the order.
We think that it was not at all necessary to seek any clarification because whether the penalty was minor or major, it had no bearing on the directions issued by this Court that were harmlessly limited to a command to the State Government to decide the petitioner’s representation preferred under Rule 25 of the Rules. The remarks about the order incorrectly mentioning that the petitioner had been punished with a censure instead of dismissal and virtually castigating our order for an error apparent, is to say the least, the most undesirable transgression of hierarchy in jurisdiction by the Additional Chief Secretary.
So far as the second part of the order impugned is concerned, by which the Additional Chief Secretary has held the representation under Rule 25 of the Rules not maintainable, we find it to be utterly flawed.
The Court further observed that,
The second part of his reasoning carried in the order dated 01.02.2022, we find flawed for the reason that in the Additional Chief Secretary’s opinion, the petitioner’s remedy under Rule 25 of the Rules was barred because he had appealed the order of punishment, which excluded the State Government’s power under Rule 25 whereas in this case, there was really no appeal ever carried by the petitioner.
The petitioner did attempt to lodge an appeal with the Appellate Authority praying for condonation of delay, which was twice denied. The Appellate Authority having denied the petitioner’s condonation of delay in the matter of his appeal, no competent appeal on the petitioner’s behalf ever came into existence. All that was dealt with by the Appellate Authority was a delay condonation application, which he rejected, in consequence whereof no appeal can be said to have ever been instituted by the petitioner against the Disciplinary Authority’s order under Rule 20 of the Rules.
If there was no appeal ever competently instituted against the order of the Authority in the first instance, the clause in Rule 25 excluding the State Government’s jurisdiction to exercise power under Rule 25 does not come into play at all. It is here where the Additional Chief Secretary has erred in saying the petitioner’s statutory representation under Rule 25 was not maintainable. For the said reason, the order of the Additional Chief Secretary on this count is held bad and vitiated.
The last part of the order impugned where the Additional Chief Secretary has attempted to show that he has considered the merits of the petitioner’s case as well, is besides the point. Once he has held the proceedings to be incompetent before him, his remarks on merits lose all significance. Even if the remarks on merits are to be taken as valid expression of an opinion by the State Government under Rule 25, we are not at all impressed by the reasoning, in that the conclusions are laconic, cryptic and perfunctory. We must say that the petitioner has been denied his right of appeal and revision on the technical ground of delay under Rules 20 and 23 of the Rules.
“In this case, virtually the State Government while exercising powers under Rule 25 would be doing a review of the order of punishment passed by the Disciplinary Authority. It has, therefore, to consider the matter almost as carefully as would be expected of the Appellate Authority, if not precisely by the same procedure.
On the basis of contentions raised, the procedural fairness, the evidence appearing against the petitioner, the tenability of his defence based on documents that the petitioner has offered to justify his absence, must all be carefully scrutinized to affirm, modify or pass any other order under Rule 25 of the Rules.
It cannot be done by the State Government at least in this case by a cryptic remark that the petitioner has shown nothing that may demonstrate his innocence as to the charge.
The State Government must satisfy themselves if in this case the Establishment have discharged their burden of bringing home the charge by evidence, both documentary and oral, after fixing a date, time and place for holding an inquiry.
These are the procedural aspects, which must be gone into by the State Government while deciding the petitioner’s statutory representation under Rule 25 of the Rules.
The quantum of punishment, and if it is disproportionate, would always be open to the State Government to consider while making their orders afresh under Rule 25″, the Court also observed while allowing the petition.
The Court quashed the order dated 01.02.2022 passed by the State Government.