# Dhirendra Kumar v. State of U.P. and others

- **Citation:** (2001) 2 ILRA 186
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhirendra-kumar-v-state-of-u-p-and-others-39845
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
186
before commencement of the trail. It is
only after the trail has concluded and the
prosecution
has
been
given
the
opportunity to lead evidence that the
validity of the sanction can be examined
on this ground.

15. In the writ petition the entire
effort of the petitioner has been to show
that he has not misappropriated the funds
and that the same had been utilised for
official purpose. These are all questions
which go to the merits of the case,
namely, whether the charges against the
petitioner that he misappropriated the
public funds is established or not. These
are matters to be seen in the trial after the
prosecution and the accused had the
opportunity to lead evidence in support of
their case. An order of sanction cannot be
assailed or tested on the ground that the
evidence does not establish the charge.
This is the function of the court trying the
case and not of the sanctioning authority.
The sanctioning authority has merely to
see whether the facts alleged against the
accused constitute an offence and whether
he should be tried by a competent court
for the said offence. There is neither any
pleading nor any ground in the writ
petition that the sanctioning authority did
not
apply
his
mind
to
the
facts
constituting the offence. In the order of
sanction it is recited that the authority had
carefully examined all the papers and had,
thereafter, come to the conclusion that the
petitioner Om Prakash, senior assistant,
should be prosecuted for the offence
committed by him before a competent
court. It is, further, recited that on being
satisfied the authority was granting the
sanction for prosecution of the petitioner
before a competent court in case Crime
No. 100 of 2000, under Section 409 IPC.
The impugned order of sanction clearly
shows that it has been granted with
reference to the facts on which the
proposed prosecution was to be based
and, therefore, the same is perfectly valid.
Similarly, there is neither any pleading
nor any ground in the writ petition that Sri
M.A.
Farooqui,
Director
(Administration), Medical and Health
Services, U.P. Government, Lucknow,
was not legally competent to grant
sanction and, therefore, the order of
sanction cannot be assailed on the ground
of
competency
of
the
sanctioning
authority.

16. For the reasons mentioned
above, there is no merit in the writ
petition which is hereby dismissed.

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2All] Dhirendra Kumar V. State of U.P. and others
187
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-7 6&

By the Court

1. Heard Sri Ram Autar Verma, the
learned
counsel
appearing
for
the
petitioner-appellant
and
Sri
Sandeep
Mookerji, the learned Standing Counsel
of the State of U.P., representing the
respondents No. 1, 2 and 4 at length and
in great detail.

2. The appellant is a member of
Uttar Pradesh Police. A disciplinary
proceedings against his conduct is in
contemplation and in the meantime he has
been placed under suspension by the order
dated 4th March, 2001.

3. Feeling aggrieved by the order of
suspension and initiation of disciplinary
enquiry, the appellant filed in this court
the Civil Misc. Writ Petition No. 10317 of
2001, Dhirendra Kumar Vs. State of U.P.
and others.

4. The writ petition has been finally
disposed of by a learned single Judge of
the court, vide his order dated 22nd march,
2001. The learned single Judge opined
that considering the nature of the charge
against him the disciplinary enquiry could
go on without placing the appellant under
suspension. Therefore, while disposing of
the petition finally, the learned single
Judge has directed that the disciplinary
enquiry may be taken to its logical end in
accordance with law and the order of
suspension of the appellant be kept in
abeyance. Consequential reinstatement of
the appellant has also been directed by the
learned single Judge.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
188
5. The appellant is not satisfied with
the magnanimity and mercy shown to him
by the learned single judge by keeping the
order of suspension in abeyance during
the pendency of the disciplinary enquiry.
The appellant demands more. To be
precise, he urges that disciplinary enquiry
against him should be knocked off.
Hence, this intra-court appeal.

6. In its decision rendered in U.P.
Rajya Krishi Utpadan Mandi Parishad &
Ors. Vs. Sanjiv Rajan, reported in
Judgement Today 1993 (2) S.C. at page
550, the Hon'ble Supreme Court has
clearly and categorically ruled that "---
whether the employees should or should
not continue in their office during the
period of inquiry is a matter to be
assessed by the concerned authority and
ordinarily, the Court should not interfere
with the orders of suspension unless they
are passed mala fide and without there
being even a prima facie evidence on
record connecting the employees with the
misconduct in question."

7. In the instant case, there is no
material on record to come to the
conclusion that the impugned order of
suspension was passed malafide. So far as
the requirement of prima facie evidence
on record connecting the appellant with
the misconduct is concerned, the appellant
has admitted the charge of begin absent
from duty without leave, it cannot be
concluded that it is case of lack of prima
facie evidence on record connecting the
appellant with the alleged misconduct.

8. In these circumstances, there was
no occasion for interference with the
assessment of the relevant authority in the
matter of placing the appellant under
suspension during the period of inquiry
against
him.
It
would
have
been
appropriate
to
allow
the
order
of
suspension of the appellant to operate
during the pendency of disciplinary
enquiry against him.

9. However, the magnanimity and
mercy extended to the petitioner by the
learned single Judge in exercise of the
special and extraordinary jurisdiction
under Article 226 of the Constitution of
India need not be disturbed for the reason
that the direction of the learned single
Judge for keeping the suspension of the
appellant in abeyance has not been
challenged by the State and appears to
have been acquiesced by it.

10. So far as the attack on the
impugned order regarding direction to
continue the enquiry and bring the same
to its logical end in accordance with law
is concerned, the Court is of the opinion
that the direction of the learned single
Judge
in
the
impugned
order
and
judgement is perfect, specially in view of
the fact that factum of absence from duty
without leave is admitted by the appellant.
It suffers from no infirmity, muchless
legal, warranting interference in this intracourt appeal under Chapter VIII Rule 5 of
the Rules of Court, 1952. Indeed, the
appeal
is
frivolous,
vexatious
and
amounts to gross abuse of the process of
law.

11. Thus, the appeal is dismissed
with
costs,
which
is
quantified
at
Rs.1500/-. The costs shall be deposited by
the appellant with the Superintendent of
Police, Auraiya within a month, failing
which the costs may be realised from the
petitioner from his salary.
2All] Dr. Gaurav Khanna V. Secretary, Kamla Nehru Memorial Hospital and others
189
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-7

By the Court

1.
 The petitioner passed his
M.B.B.S. examination in 1998 from Moti
Lal Nehru Medical College, Allahabad.
After completing his internship, he was
enrolled for house job at Kamla Nehru
Memorial Hospital, Allahabad (in brief
KNMH). He worked as House Surgeon in
the Department of Radiation & Oncology
from 06.01.2000 to 31.12.2000. He
qualified in the primary examination
conducted by the National Board of
Examinations (Ministry of Health &
Family Welfare, Government of India)
New Delhi, the respondent no. 3 (in brief
NBE) in July 2000. on 20.11.2000 an
advertisement
was
published
in
newspaper
Amar
Ujala
inviting
applications for admission to Diplomate
of National Board (DNB course) in
Radiotherapy
for
the
session
2001.
Petitioner applied and appeared in the
objective written test on 12.12.2000 and
was successful. Thereafter, on 13.12.2000
he appeared in interview. There were two
seats in DNB course in Radiotherapy and
the petitioner was the only candidate who
had applied for Radiotherapy DNB
courses. According to the guidelines
framed by KNMH on 9.12.2000 for
selection of DNB candidate, a candidate
must obtain 50% marks for qualifying in
theory examination and he must secure
50% marks in clinical viva/interview. It