# Awadhes Kumar Pandey v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 1530
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-26
- **Case number:** Special Appeal No. 601 of 2024
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhes-kumar-pandey-v-state-of-u-p-ors-52567
- **Pages:** 16

## Headnote

Law
-
Departmental
proceedings - Dismissal - U.P. Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991 -
Rule 14(1) - Whether the dismissal of
petitioner
from
service
pursuant
to
departmental enquiry was justified?

In a departmental enquiry the strict and
sophisticated rules of evidence under the
Indian Evidence Act may not apply. All
materials, which are legally probative for
a prudent mind are permissible. There is
no allergy to hearsay evidence provided it
has reasonable nexus and credibility. The
essence
of
judicial
approach
is
objectivity,
exclusion
of
extraneous
materials
or
considerations
and
observance of rules of natural justice. Of
course, fair play is the basis and if
perversity
or
arbitrariness,
bias
or
surrender or independence of judgment
vitiate the conclusions reached, such
finding even though of a
domestic
tribunal, cannot be held good. (Para 27)

(i) From brief analysis of the facts of the
case, the alleged incident does not
inspire confidence at all. The alleged
incident is said to have happened at the
petitioner's
residence.
In
the
departmental
enquiry
five
witnesses
were examined. Except Ram Nageena
Singh, Sub Inspector, no other witnesses
had directly or indirectly supported the
occurrence
as
they
were
not
eyewitnesses. The St.ment of Shri Ram Nageena
Singh is also different in the departmental
enquiry as well as in criminal trial. One thing is
clear that he was not the eye witness of the
alleged incident. (Para 26)

(ii) The other charge is of absence of two days
from duty. If the absence is due to
compelling circumstances under which it
is not possible to report or perform duty
such absence cannot be held to be willful
and employee cannot be held to be guilty
of misconduct. (Para 28)

In the instant case, neither Inquiry Officer nor
Appellate Authority found absence of appellant
willful. Evidence produced by the appellant to
substantiate his claim was ignored by the
authorities concerned and on the basis of
irrelevant facts and surmises the petitioner was
held guilty. (Para 29)

Since the charges on which the punishment
was invoked even imposed are taken to be
correct, what is now left at this belated stage
to be considered and examined is, as to
whether
the
punishment
imposed
was
commensurate with the said charges or not.
(Para 30)

B.
Jurisdiction
-
Irrationality
and
perversity are recognised grounds of
judicial review. The High Court normally
does not interfere with the quantum of
9 All. Constable No. 118 Awadhes Kumar Pandey Vs. State of U.P. & Ors.
1531
punishment unless the punishment shocks
the conscience of the Court.

Normally, it is the disciplinary authority, which
should be best left with the duty of imposing the
punishment after considering the facts and
circumstances of the case. However, it is well
settled that in case, if on the admitted facts, the
punishment imposed is grossly disproportionate to
the offence, which shocks the conscience of th

## Text

_Characters 0–39,951 of 54,664. This is a partial read: ask again with offset=39951 for what follows._

1530 INDIAN LAW REPORTS ALLAHABAD SERIES
the
respondents
to
provide
regular
maintenance grant to the attached primary
section of the Institution, under the Act of
1971, in the same manner as the high
school and intermediate sections.

29. There shall be no order as to costs.
----------
(2024) 9 ILRA 1530
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal No. 601 of 2024

Constable
No.
118
Awadhes
Kumar
Pandey ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Balwant Singh

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Departmental
proceedings - Dismissal - U.P. Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991 -
Rule 14(1) - Whether the dismissal of
petitioner
from
service
pursuant
to
departmental enquiry was justified?

In a departmental enquiry the strict and
sophisticated rules of evidence under the
Indian Evidence Act may not apply. All
materials, which are legally probative for
a prudent mind are permissible. There is
no allergy to hearsay evidence provided it
has reasonable nexus and credibility. The
essence
of
judicial
approach
is
objectivity,
exclusion
of
extraneous
materials
or
considerations
and
observance of rules of natural justice. Of
course, fair play is the basis and if
perversity
or
arbitrariness,
bias
or
surrender or independence of judgment
vitiate the conclusions reached, such
finding even though of a
domestic
tribunal, cannot be held good. (Para 27)

(i) From brief analysis of the facts of the
case, the alleged incident does not
inspire confidence at all. The alleged
incident is said to have happened at the
petitioner's
residence.
In
the
departmental
enquiry
five
witnesses
were examined. Except Ram Nageena
Singh, Sub Inspector, no other witnesses
had directly or indirectly supported the
occurrence
as
they
were
not
eyewitnesses. The St.ment of Shri Ram Nageena
Singh is also different in the departmental
enquiry as well as in criminal trial. One thing is
clear that he was not the eye witness of the
alleged incident. (Para 26)

(ii) The other charge is of absence of two days
from duty. If the absence is due to
compelling circumstances under which it
is not possible to report or perform duty
such absence cannot be held to be willful
and employee cannot be held to be guilty
of misconduct. (Para 28)

In the instant case, neither Inquiry Officer nor
Appellate Authority found absence of appellant
willful. Evidence produced by the appellant to
substantiate his claim was ignored by the
authorities concerned and on the basis of
irrelevant facts and surmises the petitioner was
held guilty. (Para 29)

Since the charges on which the punishment
was invoked even imposed are taken to be
correct, what is now left at this belated stage
to be considered and examined is, as to
whether
the
punishment
imposed
was
commensurate with the said charges or not.
(Para 30)

B.
Jurisdiction
-
Irrationality
and
perversity are recognised grounds of
judicial review. The High Court normally
does not interfere with the quantum of
9 All. Constable No. 118 Awadhes Kumar Pandey Vs. State of U.P. & Ors.
1531
punishment unless the punishment shocks
the conscience of the Court.

Normally, it is the disciplinary authority, which
should be best left with the duty of imposing the
punishment after considering the facts and
circumstances of the case. However, it is well
settled that in case, if on the admitted facts, the
punishment imposed is grossly disproportionate to
the offence, which shocks the conscience of the
Court, the Court has the power and jurisdiction to
interfere with the punishment imposed. (Para 32)

In the facts and circumstances of the case, the
punishment is found to be disproportionate and
unjustified. (Para 33)

C. On the facts of the case, what is the effect
of acquittal order passed by the trial court in
a criminal trial, whereby the petitioner was
acquitted?

Once the termination order is set aside, the
natural consequence is that the employee
should be taken back in service and
thereafter proceeded with as per the
directions. Once the termination order is set
aside, then the employee is deemed to be in
service. (Para 38)

The acquittal in criminal proceeding was
after full consideration of prosecution
witnesses and prosecution miserably failed
to prove the charge and the same can
easily be arrived at after reading of
judgment in entirety. After examining the
factual position, which emerges from the criminal
proceeding, it is found that the same witnesses
were examined in departmental enquiry, who
were examined in the criminal trial. The trial
court had acquitted the petitioner-appellant after
examining all the prosecution witnesses. (Para
36)

The
petitioner-
appellant
was
honorably
acquitted. The disciplinary proceeding and the
orders passed thereon cannot be allowed to
stand. The charges were not just the same but
identical and the evidence, witnesses and
circumstances were all the same. Merely on the
basis of two days absence, that so due to
ailment, no such major penalty can be inflicted.
(Para 37)
D. Words and Phrases - "honourable
acquittal" - The expressions 'honourable
acquittal', 'acquitted
of blame' and 'fully
exonerated' are unknown to the Criminal
Procedure Code or the Penal Code. They are
coined by judicial pronouncements. It is difficult
to define what is meant by the expression
'honourably acquitted'. When the accused is
acquitted
after
full
consideration
of
prosecution case and the prosecution
miserably fails to prove the charges
leveled
against
the
accused,
it
can
possibly be said that the accused was
honourably acquitted. (Para 35)

The orders passed by the disciplinary authority,
appellate and revisional authority as well as the
judgment passed by the learned Single Judge
are
not
sustainable
and
the
same
are
accordingly
set
aside.
Consequently,
the
petitioner-appellant is entitled for reinSt.ment.
(Para 40)

As the matter is old, at this stage, matter has
not been remitted to the authority concerned.
Since the petitioner's counsel has not St.d on
affidavit as to whether the petitioner-appellant
was gainfully working somewhere else or not,
petitioner has not been accorded full back
wages. The petitioner- appellant is entitled for
25% back wages.

Special appeal allowed. (E-4)

Precedent followed:

1. Ram Lal Vs St. of Raj. & ors., (2024) 1 SCC
175 (Para 13)

2. Deputy Inspector General of Police & anr.Vs
S. Samuthiram, AIR 2013 SC 14 (Para 13)

3. St. of Har. & anr.Vs Ved Kaur, (2017) 6 SCC
796 (Para 13)

4. Captain M. Paul Anthony Vs Bharat Gold
Mines Ltd. & ors., (1999) 3 SCC 679 (Para 18)

5. G.M. Tank Vs St. of Guj. & ors., 2006 (5) SCC
446 (Para 19)

6. Krushnakant B. Parmar Vs U.O.I. & anr,
(2012) 3 SCC 178 (Para 28)
1532 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Ranjit Thakur Vs U.O.I. & ors., AIR 1987 SC
2386 (Para 31)

8. Suresh Kumar Tiwari Vs D.I.G., P.A.C. & anr.,
2001 (4) AWC 2630 (Para 32)

9. Commissioner of Police, New Delhi & anr.Vs
Mehar Singh, (2013) 7 SCC 685 (Para 35)

10. Anantdeep Singh Vs The High Court of
Punjab & Haryana at Chandigarh & anr., Misc.
Application No. 267 of 2024 in Civil Appeal No.
3082 of 2022 dated 06.09.2024 (Para 38)

11. Kalp Nath Rai Vs S.S.P. & ors., Special Appeal
No. 88 of 2013, dated 19.12.2016 (Para 39)

Present special appeal assails the validity
of the impugned judgment and order
dated 19.10.2023, passed by the learned
Single Judge in Writ-A No. 40893 of 2010.

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Prashant Kumar, J.)

1. Heard Shri Umesh Vats, learned
counsel assisted by Shri Balwant Singh,
learned counsel for the petitioner-appellant
and Shri Ratan Deep Mishra, learned
Standing Counsel along with Shri Piyush
Shukla, learned Standing Counsel for the
State respondents

2. Present special appeal has been
preferred assailing the validity of the
impugned judgment and order dated
19.10.2023 passed by the learned Single
Judge in Writ-A No.40893 of 2010 (Const.
No.118 Awadhesh Kumar Pandey v. State
of U.P. & Ors.), which, for ready reference,
is reproduced in entirety as under:-

"1. Heard Shri Rajesh Nath
Tripathi, learned counsel for the petitioner
and Shri Girijesh Kumar Tripathi, learned
standing counsel for the State respondents.

2. This writ petition has been
preferred for seeking quashing of the
impugned
orders
dated
10.5.2009,
10.9.2009
and
10.5.2010
passed
by
respondent nos. 2,3 and 4 respectively
through which the services of the petitioner
has been terminated.

3. It is the case of the petitioner
that the he was duly selected and appointed
as Constable in Civil police and was posted
at police station Bakhira District Sant
Kabir Nagar. On 12.9.2008, the petitioner
was assigned special duty and attached
with Circle officer, Mehdawal and when he
was relieved from the special duty by the
Circle Officer, Mehdawal he fallen ill and
came for taking bed rest at his rented
accommodation, where some altercation
took place between the petitioner and his
landlord and at the same time Additional
Superintendent of Police (A.S.P) Sant
Kabir Nagar was passing and seen the
crowed near the house of the petitioner, he
stopped there and on wrong information
that was given by some person against the
petitioner that he was having illicit
relationship with a women, the A.S.P,
directed to arrest the petitioner and that
women also and a case was registered
bearing case crime no.2158 of 2008 under
Section 294 I.P.C in police station Kotwali
Khalilabad, District Sant Kabir Nagar.
The petitioner was released on bail on the
very next date as there was not a single
person of public or nearby locality to
support the prosecution version of the
F.I.R. Chargesheet dated 18.11.2008 was
forwarded and filed in the court on
11.12.1988 and after taking cognizance,
Criminal Case No.6478 of 2008 was
registered between State of U.P. vs.
Awadhesh Pandey under Section 294 IPC
before
the
court
of
Chief
Judicial
Magistrate, District Sant Kabir Nagr but as
the A.S.P. was annoyed with the petitioner,
9 All. Constable No. 118 Awadhes Kumar Pandey Vs. State of U.P. & Ors.
1533
he was suspended the petitioner on
23.9.2008 and after considering the reply
submitted by the petitioner, he was
reinstated in service with effect from
29.11.2008 and continued on duty till his
dismissal from service on 10.5.2009. After
registration of the first information report,
a disciplinary proceedings were also
initiated against the petitioner and served
with a show cause notice also. Petitioner
submitted his written reply on 6.11.2008
and also prayed to produce two witnesses
namely Shri Vinod Rai and Arendra Rai in
defence of his case but the same was not
accepted by the Enquiry Officer and
submitted enquiry report dated 19.4.2009.
Respondent No.2 had again issued show
cause notice on 22.4.2009 granting fifteen
days time to file his reply to the enquiry
report. Since the petitioner was suffering
from hypertension w.e.f. 20.4.2008 to
10.5.2009 hence he could not appear
personally before the Superintendent of
Police. Petitioner sent his explanation
dated 8.5.2009 by Blaze Courier Ltd, which
was received in the office of Superintendent
of Police on the same dated i.e, 8.5.2009.
Respondent no.2 thereafter passed an order
of dismissal from service on 10.5.2009
totally ignoring the detailed reply of the
petitioner dated 8.5.2009.

4. Against the order of dismissal
dated 10.5.2009, petitioner preferred an
appeal before Deputy Inspector General of
Police, Basti Region (respondent no.3)
alongwith his medical certificate showing
that
he
was
continuously
ill
w.e.f.
20.4.2008 to 10.5.2009. Respondent no.3
dismissed the appeal of the petitioner on
10.9.2009, copy of which had been served
upon the petitioner on 17.9.2009.

5. Being aggrieved with the order
of the appellate authority, petitioner
preferred writ dated 10.9.2009 before this
Court being Civil Misc. Writ Petition
No.69680 of 2009. The writ petition too
was dismissed on 22.12.009 on the ground
of alternative remedy of filing revision
under Rule 23 of Rules of 1901. Thereafter
petitioner preferred revision before the
revisional authority. Revision of the
petitioner was also dismissed on the
ground of delay in filing the revision.

6. Learned counsel for the
petitioner submitted that the petitioner did
not commit any misconduct as alleged by
the disciplinary authority and the said
misconduct was not supported by any
evidence and the enquiry officer without
appreciating the evidence and without
enquiring the said misconduct by any
independent witnesses, passed the order of
dismissal from service. Learned counsel
for the petitioner further submitted that if
the said incident is true, the same was not
committed by the petitioner during duty
period and the said alleged incident
committed by him at his private residence
which is not a misconduct in performing his
duties. The petitioner has also been
acquitted in case crime no.2158 of 2008
under Section 294 I.P.C on the basis of
which the services of the petitioner were
terminated.
The
departmental
appeal
preferred by the petitioner was dismissed
without providing any information of date
and hearing and as such the orders
impugned are illegal and the same may be
set aside.

7. In support of his submissions,
learned counsel for the petitioner relied
upon the judgments of Coordinate Bench of
this Court passed in Basistha Muni Mishra
vs. Union of India [2023 (6) ADJ 704] and
Indra Kumar (Ex-Constable) vs. Union of
India [2023 (5) ADJ 57 (LB)]. In addition
to the aforesaid judgments, learned counsel
for the petitioner had also relied upon the
judgment of Kedar Nath Yadav vs. State of
Uttar Pradesh, Laws (All) 2005 (5) 286 as
1534 INDIAN LAW REPORTS ALLAHABAD SERIES
well as M.Paul Anthony Capt vs. Bharat
Gold Mines Ltd, 1999 Law Suit (SC) 379.

8. Per contra, learned standing
counsel opposed the prayer as made in the
petition and submitted that the petitioner
was awarded punishment of dismissal from
service on the basis of departmental
proceedings carried out against him for
committing negligence and carelessness in
performing duty as he did not record his
returning in police station Bakhira on
21.9.2008 and because of his unauthorised
absence alongwith his government rifle and
20 units of bullets, he was arrested red
handed alongwith a women and said F.I.R
was lodged against him. He further
submitted that during the course of
enquiry, neither the petitioner produced
any evidence in his defence nor examined
any witnesses in his favour after having
being given so many opportunities of
hearing.

9. Learned standing counsel
placed reliance upon the judgment passed
in Imtiyaz Ahmad Malla vs. State of Jammu
& Kashmir and others [SLP (C) No. 678 of
2021] and submitted that a terminated
employee cannot be reinstated in service
only because of his acquittal in criminal
proceedings.

10.
After
having
the
rival
submissions as extended by learned counsel
for both the parties and perusal of the
records as well as the judgments relied
upon, the Court finds that the services of
the petitioner were terminated on the basis
of departmental proceedings, not at the
behest of criminal proceedings in which the
petitioner was ultimately acquitted. The
departmental proceedings were conducted
on the ground that the petitioner had not
complied with the order of his senior and
without informing the department, he was
absent from duty with his government rifle
and 20 units of bullets and the said
proceedings
were
culminated
into
termination from service of the petitioner
as he was found guilty under the provisions
of Police Officers of Subordinate Ranks
(Punishment & Appeal) Rules, 1991 and as
such, the criminal proceedings initiated
against the petitioner under Section 294
IPC is not identical with the departmental
proceedings.

11. In the case of Imtiyaz Ahmad
Malla (Supra), the Hon'ble Supreme Court
held that if a persons is acquitted or
discharged, it cannot obviously be inferred
that he was falsely involved, or he had no
criminal antecedents and it does not entitle
an employee to the reinstatement in service.

12. In another case, namely, The
State of Rajasthan and others vs. Phool
Singh (Civil Appeal No.5930 of 2022, dated
2.9.2022), the Apex Court has taken a
different view with the order passed in
Capt. M. Paul Anthony (Supra) and held
that a terminated employee cannot be
reinstated in service because of his
acquittal in criminal proceedings.

13. The departmental proceeding
were conducted against the petitioner in
accordance with procedure and law and
the charges leveled against him, were
found proved thereafter, the petitioner had
been terminated from service and as such
the orders impugned are perfectly just and
legal.

14. In view of the aforesaid facts
and circumstances, the present petition
lacks merit and is accordingly dismissed."

FACTS

3. The petitioner-appellant was a
Constable in Civil Police, U.P. and at the
relevant point of time he was posted at the
Police Station Bakhira, Distt. Sant Kabir
Nagar. The petitioner was assigned the
special duty and was attached with the
9 All. Constable No. 118 Awadhes Kumar Pandey Vs. State of U.P. & Ors.
1535
Circle Officer, Mehdawal. As the Circle
Officer, Mehdawal was assigned Special
VVIP duty at Kanpur Nagar, he had
relieved the petitioner and directed him to
join back his duties at the Police Station
Bakhira. It is claimed that while returning
from the duty of Circle Officer on
21.09.2008, the petitioner had suddenly
sufferred from high fever, acute headache
and severe body pain and as such he could
not report on duty on 21.09.2008. He was
compelled to take rest at his rented
accommodation at Village Vidhiyani, P.S.
Kotwali, Khalilabad.

4. It is claimed that on 23.09.2008
some of his friends and closed relatives had
come to his house to inquire about his well
being. Meanwhile, some altercation has
erupted between his friends and the son of
his landlord and the crowd had also
gathered. At that point of time, Smt.
Kaushilya Devi, the domestic maid had
also reached there. However, the Addl.
Superintendent of Police, Sant Kabir
Nagar, was also passing nearby on his
official jeep, upon hearing the noise
stopped there. It is alleged that some
miscreants had falsely informed the Addl.
Superintendent of Police that the petitioner
had illicit relationship with his maid and
some of them had also seen them in an
obscene situation as the door of the house
was
open.
Thereupon,
the
Addl.
Superintendent of Police, being annoyed,
immediately sent wireless message to local
police Chowki and directed arrest of the
petitioner. Thereafter, the police had
reached there and arrested the petitioner
and Smt. Kaushilya Devi and a First
Information Report being Case Crime
No.2158 of 2008 was registered under
Section
294
IPC
at
P.S.
Kotwali,
Khalilabad. The petitioner was suspended
on the same day on 23.09.2008 and the
departmental enquiry was initiated, wherein
he had filed his written statement and after
considering his reply, the petitioner was
reinstated on 29.11.2008. Though in the
criminal proceeding he has been honorably
acquitted but in the departmental enquiry
he was found guilty, consequently he was
dismissed from the services on 10.05.2009.
The appeal and revision were also rejected
giving rise to the writ petition in question,
which
was
dismissed
by
the
order
impugned, hence this appeal.

SUBMISSIONS
OF
LEARNED
COUNSEL FOR THE PETITIONERAPPELLANT

5. Shri Umesh Vats, learned
counsel for the petitioner-appellant has
vehemently submitted that learned Single
Judge has erred in law in dismissing the
writ petition without considering the facts
of the instant matter. There is an error
apparent on the face of record and
dismissal of the writ petition is based on
surmises and conjectures. The petitioner
did not commit any of the misconduct
alleged by the disciplinary authority and
even the alleged misconduct was not
supported
by
any
evidence
either
documentary or oral in the departmental
enquiry. In most arbitrary manner, the
enquiry officer, while submitting enquiry
report,
had
proposed
punishment
of
dismissal from service. In the disciplinary
proceedings, two charges were levelled
against the petitioner. The first charge
related to absence from duty for two days
without information and the second charge
related to criminal case registered against
the petitioner under Section 294 IPC. Only
on the basis of said charges the petitioner
was terminated from service on the ground
of
misconduct.
Though
in
criminal
proceeding after adducing the evidence and
examination
of
all
the
prosecution
1536 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses, the trial court had acquitted the
petitioner honorably. Even the said charge
does not fall under the category of
misconduct, whereby major punishment
could be inflicted upon the petitioner.

6. Shri Vats further submitted that
mere acquittal in criminal proceeding
although does not confer any indefeasible
right to an employee to claim benefit
including reinstatement. However, where
charges in departmental enquiry and
criminal matter are identical; evidence,
witnesses and circumstances are also the
same; where the court in exercise of
judicial review finds that the acquittal in
criminal
proceeding
was
after
full
consideration of prosecution witnesses and
prosecution miserably failed to prove the
charges, the Court can interfere with the
order passed by the disciplinary authority,
where the finding of disciplinary authority
are found to be unjust, unfair and
oppressive.

7. He next submitted that in the
instant matter even in the departmental
enquiry six witnesses were examined. All
the
witnesses
of
Police
Department
admitted that they were not the witnesses of
alleged incident except witness no.4 i.e.
Sub-Inspector Ram Nageena Singh, who
was Chowki Incharge. In his statement, he
had stated that he had received information
from one informer that the petitioner was
indulged in some obscene activity with one
lady in his house. Crowd of passerby
gathered there and there were indignation
amongst them. For ready reference, the
version of Ram Nageena Singh in the
departmental enquiry, is reproduced as
under:-

"उप सनरीिक श्री र म नगीन स िंह प्रभ री चौकी
क नूनगो पुर थ न कोति ली नगर जनपद बहर इच ने िपथ बय न
सकय सक मै सदन िंक 13-03-2008 े 02-11-2008 तक
थ न कोति ली खलील ब द में सनयुि रह उि दौर न सदन िंक 1006-2008 े बतौर प्रभ री चौकी गोल ब ज र सनयुि रह उ ी
दौर न सदन िंक 23-09-2008 को मै असभ० एच० जी० र मदरि
य दि को थ लेकर िगरज सििेचन चौकी िेत् में मौजूद रह सक
उ ी दौर न जररये मुखसिर ूचन समली सक मुहल्ल सिसिय नी में
अपने क्ि टार में क ० अििेि प ण्डेय जो बसखर थ ने में तैन त है
एक मसहल के थ अश्लील हरकत कर रहे, है तथ िाजसनक
र स्ते े आने ज ने ि लो की क िी भीड लगी है तथ लोगो में
क िी िोभ है इ ूचन पर सिश्व करके हमर ही एच० जी० को
 थ लेकर मौके पर पहुाँच तथ अश्लील हरकत ि भीडभ ड को
देखकर उि आरिी ि उ मसहल को पकड गय सज ने पूित िंि
पर उि मसहल े अपन न म कौसिल्य पत्नी स द्धन थ सनि ी
प्रज पसतपुर थ न घनघट जनपद िंत कबीर नगर बत य । उि
मसहल को मसहल क ० अमर िती दूबे के थ लेकर सगरित री की
गयी थी तथ उि दोनो व्यसियो क ० अििेि प ण्डेय ि कौसिल्य
देिी के सिरूद्ध आ० ० 2158 / 2008 ि र 294 आई०
पी० ी० थ न खलील ब द पर पिंजीकृत कर य गय थ ।"

8. Learned counsel for the petitioner
submitted that the aforesaid statement is
unreliable as he was not the witness of the
said incident. He had also appeared in the
criminal case as prosecution witness,
wherein in cross-examination he had made
a statement that when he reached there, the
petitioner was sitting in the north side of
his room and the lady was sitting in south.
For ready reference, the statement of PW-4
in the criminal trial is also reproduced as
under:-

"असभयोजन पि े परीसित िी पी०डब्लू०-4
र म नगीन स िंह,सजनके द्व र असभयुिगण को मौके े सगरफ्त र
करन कह गय है, ने अपने प्रसतपरीि िय न में यह कथन सकय है
सक-"अििेि प िंडेय अपने कमरे में सक चीज पर बैठे थे, य द नहीं
है। िह मक न/कमरे में बैठे थे. य द नहीं है। यह मक न / कमरे में
दरि जे के मने उत्तर ईड में बैठे 'थे, मसहल दरि जे के मने
दसिण तरि बैठी थी. दरि जे पर ये लोग थे जो अन्दर दरि जे े
 टे थे, िहीं े सगरि््‌त र कर सलय । "जबसक िी द्व र अपने
मौसखक मुख्य परीि बय न में यह कथन सकय गय है सक इन दोनों
को अश्लील हरकत देखकर खुले दरि जे े होकर दोनों को टोक
9 All. Constable No. 118 Awadhes Kumar Pandey Vs. State of U.P. & Ors.
1537
गय । इ प्रक र िी पी० डब्लू0-4 र म नगीन स िंह के मौसखक
मुख्य परीि िय न एििं प्रसत परीि बय न में सिरोि भ होन
प्रतीत होत है। जह ाँ एक ओर िी पी०डब्लू०-4 र म नगीन स िंह
द्व र अपने मौसखक मुख्य परीि में कथन सकय गय है सक
असभयुिगण कमरे में अश्लील हरकत कर रहे थे, सज े क िी भीड
इकटठ हो गयी थी तथ आने ज ने ि ले लोगों में िोभ व्य प्त हो
गय थ , िहीं िी पी०डब्लू0-4 र म नगीन स िंह ने अपने प्रसत
परीि बय न में यह कथन सकय है सक अििेि प ण्डेय कमरे में
उत्तर तथ मसहल दसिण तरि बैठी थी। इन लोगों के मुाँह े कुि
कहते हुए नहीं ुन थ । िी पी०डब्लू०-4 र म नगीन स िंह द्व र
अपने मौसखक बय न में ऐ कोई कथन नहीं सकय गय है सज े
इ तथ्य की पुसि होती हो सक असभयुिगण द्व र कमरे के अन्दर
ऐ ी हरकत की ज रही थी जो सक अश्लीलत की पररसि में आती
है।"

9. In this backdrop, he vehemently
submitted that bare perusal of the statement
of Ram Negeena Singh in departmental
proceeding
as
well
as
in
criminal
proceeding shows two different versions,
therefore, the same is unreliable. The
enquiry officer has heavily relied upon the
statement made by Ram Nageena Singh in
the departmental proceeding and merely on
the basis of said statement not only
submitted
enquiry
report
but
also
recommended for dismissal of petitionerappellant from service. He submitted that
during criminal trial each and every
evidence and prosecution witnesses were
examined
and
the
Chief
Judicial
Magistrate, Sant Kabir Nagar acquitted the
petitioner honorably on 18.04.2017.

10. Learned counsel for the petitioner,
in support of his submissions, has also
placed reliance upon Regulation 492 of
U.P. Police Regulations1, which deals with
judicial trial of police officer. The said
Regulation provides that whenever a police
officer has been judicially tried, the
Superintendent must await the decision of
the judicial appeal, if any, before deciding
whether further departmental action is
necessary. He submits that the simple
language of provision shows that where a
Police Officer has been tried judicially and
only the judgment is awaited, in such
circumstances and in interregnum period,
the competent authority should not decide
to take further departmental proceedings
but should await the decision.

11. He has also placed reliance on
Regulation 493 of the Regulations, which
provides that it will not be permissible for
the Superintendent of Police in the course
of a departmental proceeding against a
Police Officer, who has been tried
judicially to re-examine the truth of any
facts in issue at his judicial trial, and the
finding of the Court on these facts must be
taken as final. If the accused has been
judicially acquitted or discharged, and the
period for filing an appeal has elapsed and/
or
no
appeal
has
been
filed,
the
Superintendent of Police must at once
reinstate him, if he has been suspended, but
the findings of the Court not be inconsistent
with the view that the accused has been
guilty of negligence in, or unfitness for the
discharge of his duty within the meaning of
Section
7
of
the
Police
Act,
the
Superintendent of Police may refer the
matter to the Deputy Inspector-General of
Police and ask for permission to try the
accused departmentally for such negligence
or unfitness.

12. He assertively submitted that in
the instant matter initially the petitioner
was placed under suspension on 23.09.2008
and after considering his reply/ response he
was reinstated in service by the competent
authority
w.e.f.
29.11.2008
and
he
continued on duty till his dismissal w.e.f.
10.05.2009. In this backdrop, he submitted
that the suspension was earlier revoked and
he was reinstated in service as the
1538 INDIAN LAW REPORTS ALLAHABAD SERIES
misconduct was not such grave, which
could
inflict
major
punishment.
He
submitted that the instant matter, it is not a
case, wherein the trial court has acquitted
the petitioner giving the benefit of doubt
but contrarily it had honorably acquitted
the petitioner. In such situation, the only
misconduct, which remains is the two days
absence
from
duty.
He
vehemently
submitted
that
in
the
facts
and
circumstances of the case the punishment
imposed was shockingly disproportionate
to the charges proved.

13. Lastly he has placed reliance on
Rule 14 (1) of the U.P. Police Officers of
the Subordinate Ranks (Punishment and
Appeal) Rules, 19912, which deals with the
procedure for conducting departmental
proceedings against the police officers. He
submitted that the enquiry officer may for
sufficient reasons to be recorded in writing
refuse to call a witness. The proceeding
shall contain sufficient record of evidence
and statement of findings and grounds
thereof.
The
enquiry
officer
may
recommend punishment but it should be
separate from these proceeding. In the
instant matter, initially in an arbitrary
manner
while
submitting
report,
the
Enquiry Officer had recommended for
dismissal, which is unsustainable. It is
submitted that in an arbitrary manner the
appeal and revision had also been rejected.
In support of his submissions, he has
placed reliance upon the judgments passed
by Hon'ble Apex Court in Ram Lal v.
State of Rajasthan & Ors.3, Deputy
Inspector General of Police & Anr. v. S.
Samuthiram4, State of Haryana & Anr.
v. Ved Kaur5.

ARGUMENT
OF
LEARNED
STANDING COUNSEL ON BEHALF
OF RESPONDDENTS

14. Per contra, Shri Ratan Deep
Mishra, learned Standing Counsel has
vehemently opposed the special appeal. He
submitted that the petitioner belongs to a
disciplined
force
and
the
impugned
punishment order for dismissal has been
passed strictly in accordance with law after
following the due procedure and giving
opportunity of being heard and as such
learned Single Judge has rightly proceeded
to decline to interfere in the matter and
dismissed the writ petition.

15. He further submitted that the
punishment inflicted upon the petitioner is
commensurate to the charges found proved
by the Disciplinary Authority. Hence no
interference is required in the order of
punishment as upheld by learned Single
Judge.

ANALYSIS

16. Heard rival submissions, perused
the record and respectfully considered the
judgments cited at Bar.

17. In the instant matter, heavy
reliance
has
been
placed
upon
the
honorable acquittal of the petitionerappellant by the trial court. There is no bar
of holding disciplinary proceeding during
the pendency of trial though basis may be
one and the same. The enquiry officer can
come to the different conclusion that what
arrived at by the criminal court and it is
immaterial whether charges were identical
or witnesses were same. The power
exercised by criminal court and the enquiry
officer under the relevant law and the
service law are distinct and separate. But
there must be subjective satisfaction of the
disciplinary authority to record reasons in
writing that it is not reasonably practicable
to hold enquiry, which mean that there
9 All. Constable No. 118 Awadhes Kumar Pandey Vs. State of U.P. & Ors.
1539
must be some material for satisfaction of
the Disciplinary Authority not to hold
enquiry. The subjective satisfaction of the
authorities is to be based on certain
objective facts so as to justify dispensation
of the enquiry.

18. The Constitution Bench of the
Supreme Court in Captain M. Paul
Anthony v. Bharat Gold Mines Ltd. &
Ors.6 had held that one of the grounds
where departmental proceeding could be
kept in abeyance is:

"based on identical and similar
set of facts and the charge in the criminal
case against the delinquent employee is of
a grave nature which involves complicated
questions of law and fact, it would be
desirable
to
stay
the
departmental
proceedings till the conclusion of the
criminal case."

19. In G.M. Tank v. State of
Gujarat & Ors.7, the Supreme Court held
that where departmental proceedings and
criminal case are based on identical and
similar set of facts and the charges in a
departmental case against the applicant and
the charges before the Criminal Court are
one and the same in which case, the
departmental proceedings would be stayed
till the disposal of the criminal case.

20. We are conscious that in the
departmental proceedings power under
Article 226/227 of the Constitution is very
limited and in the disciplinary proceedings,
the High Court is not and cannot act as a
second Court of first appeal. The High
Court, in exercise of its powers under
Article 226/227 of the Constitution of
India, shall not venture into reappreciation
of the evidence. The Court has to see
whether the enquiry is held by the
competent authority and its conclusion on
the very face of it is so wholly arbitrary and
capricious that no reasonable person could
ever have arrived at such a conclusion and
also to see whether the disciplinary
authority had erroneously failed to admit
admissible and material evidence. The
Court can also see whether the disciplinary
authority
had
erroneously
admitted
inadmissible evidence which influenced the
finding and whether the finding of fact is
based on any or no evidence.

21. In the instant matter the most
glaring fact is that the petitioner-appellant
was staying at his own residence. It is
alleged that he indulged in some obscene
act with the lady and as the door was open
the passerby had seen the such incident.
The police officials had reached later on.
Merely on the basis of statement of Ram
Nageena Singh, Sub Inspector, major
punishment
was
inflicted
upon
the
petitioner-appellant, whereas Ram Nageena
Singh has given entirely different version
before the criminal court. Even in the
criminal proceeding the trial court had
examined all the five prosecution witnesses
and honorably acquitted the petitioner.

22. In the instant matter, there were
identical
allegations
in
both
the
proceedings. Five witnesses were examined
in
the
departmental
proceeding
and
similarly they were also examined in the
criminal trial. The enquiry officer in the
departmental proceeding found charges
proved against the petitioner and the
disciplinary authority vide order dated
10.05.2009 had dismissed the petitioner
from service. The appellate and revisional
authority had also dismissed the appeal and
revision. Though, on the other hand, after
examining all the prosecution witnesses,
1540 INDIAN LAW REPORTS ALLAHABAD SERIES
the trial court had acquitted the petitioner
for the offence under Section 294 IPC.

23. Learned Single Judge vide order
dated 19.10.2023 dismissed the writ
petition by holding that standard of proof in
criminal
proceeding
and departmental
proceeding is different. Learned Single
judge found no infirmity in the order of
disciplinary authority.

QUESTIONS
FOR
CONSIDERATION

24. In the instant matter, following
two questions arise for consideration:-

(a) Whether the dismissal of
petitioner
from
service
pursuant
to
departmental enquiry was justified

(b) On the facts of the case, what
is the effect of acquittal order passed by the
trial court in a criminal trial, whereby the
petitioner was acquitted.

25. We now proceed to examine both
the questions independently.

Question No.1

26. From brief analysis of the facts of
the case, we find that the alleged incident
does not inspire confidence at all. The
alleged incident is said to have happened at
the
petitioner's
residence.
In
the
departmental enquiry five witnesses were
examined. Except Ram Nageena Singh,
Sub Inspector, no other witnesses had
directly
or
indirectly
supported
the
occurrence as they were not eye-witnesses.
The statement of Shri Ram Nageena Singh
is also different in the departmental enquiry
as well as in criminal trial. One thing is
clear that he was not the eye witness of the
alleged incident.

27. The other charge is of absence of
two days from duty. In a departmental
enquiry the strict and sophisticated rules of
evidence under the Indian Evidence Act
may not apply. All materials, which are
legally probative for a prudent mind are
permissible. There is no allergy to hearsay
evidence provided it has reasonable nexus
and credibility. The essence of judicial
approach is objectivity, exclusion of
extraneous materials or considerations and
observance of rules of natural justice. Of
course, fair play is the basis and if
perversity or arbitrariness, bias or surrender
or independence of judgment vitiate the
conclusions reached, such finding even
though of a domestic tribunal, cannot be
held good.

28.

Hon'ble
Apex
Court
in
Krushnakant B. Parmar v. Union of
India & Anr.8 has held that if the absence
is due to compelling circumstances under
which it is not possible to report or perform
duty such absence cannot be held to be
willful and employee cannot be held to be
guilty of misconduct. Paragraphs 17, 18
and 19 of the said judgment, for ready
reference, are reproduced as under:-

"17. If the absence is the result of
compelling circumstances under which it
was not possible to report or perform duty,
such absence can not be held to be wilful.
Absence from duty without any application
or prior permission may amount to
unauthorised absence, but it does not
always mean wilful. There may be different
eventualities due to which an employee
may
abstain
from
duty,
including
compelling
circumstances
beyond
his
control
like
illness,
accident,
hospitalisation, etc., but in such case the
employee cannot be held guilty of failure of
9 All. Constable No. 118 Awadhes Kumar Pandey Vs. State of U.P. & Ors.
1541
devotion to duty or behaviour unbecoming
of a Government servant.

18.
In
a
Departmental
proceeding, if allegation of unauthorised
absence from duty is made, the disciplinary
authority is required to prove that the
absence is wilful, in absence of such
finding, the absence will not amount to
misconduct.

19. In the present case the
Inquiry Officer on appreciation of evidence
though held that the appellant was
unauthorisedly absent from duty but failed
to hold the absence is wilful; the
disciplinary authority as also the Appellate
Authority, failed to appreciate the same
and wrongly held the appellant guilty."

29. In the instant case, neither Inquiry
Officer nor Appellate Authority found
absence of appellant willful. Evidence
produced by the appellant to substantiate
his claim was ignored by the authorities
concerned and on the basis of irrelevant
facts and surmises the petitioner was held
guilty.

30. It is trite law that the High Court
normally does not interfere with the
quantum
of
punishment
unless
the
punishment shocks the conscience of the
Court. As already noticed above, since the
charges on which the punishment was
invoked even imposed are taken to be
correct, what is now left at this belated
stage to be considered and examined is, as
to whether the punishment imposed was
commensurate with the said charges or not.

31. Hon'ble Apex Court in the case of
Ranjit Thakur v. Union of India and
Ors., AIR 1987 SC 2386, has held that
"the question of the choice and quantum of
punishment is within the jurisdiction and
discretion of the Court-Martial. But the
sentence has to suit the offence and the
offender. It should not be vindictive or
unduly harsh. It should not be so
disproportionate to the offence as to shock
the conscience and amount in itself to
conclusive evidence of bias.