# Application No. 278 of 2008 (Inder v. State), pending in the court of Judicial

- **Citation:** (2010) 1 ILRA 262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-25
- **Case number:** Civil Misc. Writ Petition No. 5676 of 2002
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/application-no-278-of-2008-inder-v-state-pending-in-the-court-of-judicial-41583
- **Pages:** 3

## Headnote

Constitution of India, Art. 226-Practice &
Procedure-against the dismissal orderstatutory appeal allowed-matter send
back before disciplinary authority to
proceed further-on failure of joining on
the date fixed by authority-appellate
authority cancelled its earlier order-held-
1 All] Naseem Ahmed V. Union of India and others

263
without jurisdiction once order passed
under statutory provisions-can not be
cancelled by an administrative order.

Held: Para 9

The appellate authority had become
functus-officio and it had no jurisdiction
to set aside an order passed in a
statutory appeal by an administrative
order. If an order has been passed in
exercising of a statutory power, the
same cannot be reviewed in exercise of
administrative powers. In the instant
case, the same D.I.G., who had allowed
the appeal of the petitioner, had no
authority to cancel the same. The entire
exercise
is,
therefore,
without
jurisdiction.

## Text

262 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

to take cognizance, then the procedure
laid down under Chapter XV Cr.P.C.
should be followed by the magistrate after
treating the protest petition as complaint,
as held by Division Bench of this Court in
Pakhando case (supra). Therefore, in
present case also, if the material in the
case
diary
was
not
sufficient
for
summoning the accused to face the trial,
then after taking cognizance under section
190(1)(a) Cr.P.C., the protest petition
filed by the complainant against the final
report ought to have been registered as
complaint and following the procedure
laid down under section 200 and 202
Cr.P.C., the learned magistrate should
have decided whether the complaint
should be dismissed or process should be
issued. If after taking evidence under
section
200
and
202
Cr.P.C.,
the
magistrate decides to take cognizance
against the accused persons, final report
has to be rejected, but in any case,
cognizance cannot be taken merely on the
basis of affidavits or other material filed
by the complainant in support of the
protest petition against final report,
without following the procedure laid
down under Chapter XV Cr.P.C., if the
material in the case diary is not sufficient
to take cognizance.

12. In view of the observations made
herein-above, the impugned summoning
order cannot be sustained, as cognizance
has been taken by the learned magistrate
merely on the basis of the affidavits filed
by the complainant in support of the
protest petition against final report.
Therefore, it would be in the interest of
justice to send the case back to the court
below for passing fresh order on the
protest petition filed by the complainant
against the final report.

13. Consequently, the application
under section 482 Cr.P.C. is allowed.
Setting aside the impugned summoning
order dated 15.06.2009 and quashing
further proceedings of Criminal Misc.
Application No. 278 of 2008 (Inder Vs.
State), pending in the court of Judicial
Magistrate, Court No. 1, Kanpur Dehat,
the learned magistrate is directed to pass
fresh order on the protest petition filed by
the complainant against final report, in
case crime No. 215 of 2008 of P.S.
Rasoolabad,
District
Kanpur
Dehat,
treating the same as complaint and
following the procedure laid down under
section 200 and 202 Cr.P.C.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 5676 of 2002

Naseem Ahmad

...Petitioner
Versus
Union of India Thru' Secy. Ministry of
Home Affairs and others ...Respondents

Counsel for the Petitioner:
Sri R.P. Tripathi
Sri Ashutosh Tripathi

Counsel for the Respondents:
Sri S.N. Srivastava/SSC,
Sri U.N. Sharma
Sri Devi Shanker Shukla
C.S.C.

Constitution of India, Art. 226-Practice &
Procedure-against the dismissal orderstatutory appeal allowed-matter send
back before disciplinary authority to
proceed further-on failure of joining on
the date fixed by authority-appellate
authority cancelled its earlier order-held-
1 All] Naseem Ahmed V. Union of India and others

263
without jurisdiction once order passed
under statutory provisions-can not be
cancelled by an administrative order.

Held: Para 9

The appellate authority had become
functus-officio and it had no jurisdiction
to set aside an order passed in a
statutory appeal by an administrative
order. If an order has been passed in
exercising of a statutory power, the
same cannot be reviewed in exercise of
administrative powers. In the instant
case, the same D.I.G., who had allowed
the appeal of the petitioner, had no
authority to cancel the same. The entire
exercise
is,
therefore,
without
jurisdiction.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Shri Ashutosh Tripathi,
learned counsel for the petitioner and Shri
Upendra Nath Sharma, learned counsel
for the respondents.

2. The petitioner-Naseem Ahmad
underwent disciplinary proceedings on
account of overstay after having taken
leave. The petitioner was subjected to an
inquiry but the disciplinary authority
disagreeing with the Enquiry Officer's
report
proceeded
to
impose
the
punishment of dismissal on the petitioner
vide order dated 7th July, 1999. The
petitioner preferred an appeal against the
same and the same was allowed on 24th
November, 1999 by the following order:

"......... Therefore, I find that the
departmental enquiry conducted against
the appellant is not just and fair. In view
of the above procedural irregularities,
which are against instructions on the
subject as well as principle of the natural
justice,
the
departmental
enquiry
conducted against No. 851190409 Ex CT
Nasim Ahmed of 130 Bn by the
Commandant 130 Bn CRPF vide his
office order No. P. VIII-11/98-130-EC-II
dated 31.10.98 is hereby quashed and a
denovo enquiry is ordered for his OSL for
76 days from 19.7.98 to 2.10.98. Said No.
851190409 Ex. CT Nasim Ahmed of 130
Bn is hereby re-instated into service with
the direction to report in the unit within
thirty (30) days from the date of issue of
this order. Intervening period from the
date of dismissal from service till the date
of reporting in the unit be treated as
DIES-NON."

3. It is, therefore, clear that the
appeal was allowed and the petitioner was
to
be
tried
again
in
the
inquiry
proceedings de-novo. The petitioner was
served with a notice on 6th January, 2000
that he may report or else he was not to be
given any further opportunity. The
respondents have come out with a case
that the petitioner failed to report for duty
and, therefore, the impugned order was
passed on 14th Feburary, 2000 cancelling
the earlier order of the appellate authority
dated 24.11.1999.

4. This writ petition has been filed
questioning the correctness of the order
dated 14.02.2000 and the jurisdiction of
the Deputy Inspector General of Police to
cancel his earlier order passed in a
statutory appeal.

5. Learned counsel for the petitioner
submits that even if the petitioner did not
report for duty in spite of passing of the
order by the Appellate Authority, the
Authority had to proceed to hold the
inquiry de-novo and, thereafter, any order
could have been passed against the
petitioner. There was no occasion for the
264 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

D.I.G. to cancel the earlier appellate order
dated 24.11.1999.

6. Shri Sharma, learned counsel for
the respondents contends that this order
was
under
a
compulsory
situation,
inasmuch as, if the petitioner failed to
comply with the direction of the order of
the Appellate Authority, there was no
option but to cancel the appellate order
which has been done by the D.I.G.

7. I have heard learned counsel for
the parties and perused the affidavits
available on records. The appeal, which
was allowed in favour of the petitioner,
was a statutory appeal. The consequences
of the order in appeal was that the order
of dismissal had been set aside and the
petitioner will therefore be deemed to be a
member of the force. In such a situation,
even if it is presumed that he did not join
for duty, the option to the authority was to
proceed ex-parte against the petitioner in
an inquiry under the rules and then to pass
an order.

8. The Rules do not provide for
cancellation of the appellate order and the
order passed in appeal could not be
reviewed by the appellate authority. It
could have been set aside by a competent
authority or a court of law. The D.I.G.
was not possessed with any jurisdiction to
cancel an order merely on the ground that
the petitioner had not reported for duty
after passing of the order in appeal.

9. The appellate authority had
become functus-officio and it had no
jurisdiction to set aside an order passed in
a statutory appeal by an administrative
order. If an order has been passed in
exercising of a statutory power, the same
cannot be reviewed in exercise of
administrative powers. In the instant case,
the same D.I.G., who had allowed the
appeal of the petitioner, had no authority
to cancel the same. The entire exercise is,
therefore, without jurisdiction.

10. In my opinion, the order dated
14.02.2000 is not in conformity with law
and is patently illegal. The same is hereby
set aside.

11. It shall be open to the
respondents to proceed de-novo against
the petitioner as directed by the Appellate
Authority in the order dated 24.11.1999.

12. With the aforesaid observations,
the writ petition stands allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 8314 of 2002

Santosh Kumar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A. Upadhyay
Sri Indra Raj Singh
Sri Mritunjay
Sri Namit Srivastava
Sri Ranjit Saxena
Sri Anil Kumar Sharma
Sri Narendra Mohan

Counsel for the Respondents:
C.S.C.

U.P. Government Servant Regulation of
Drivers Rule 1993-Regulation-petitioner
working as Drivers on daily wages basic