# Ex. Constable Radhey Raman Yadav v. Union of India & Ors

- **Citation:** (2022) 5 ILRA 1076
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-12
- **Case number:** Writ - A No. 72166 of 2005
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ex-constable-radhey-raman-yadav-v-union-of-india-ors-48405
- **Pages:** 6

## Headnote

Sri K.C. Sinha A.S.G.I., Sri Jitendra Prasad
Mishra, Sri Kaushik Chatterjee, Sri Kaushik
Chatterji, Sri M.P. Shukla, Sri Prem Narayan
Rai, S.C.
5 All. Ex. Constable Radhey Raman Yadav Vs. Union of India & Ors.
1077
A. Service Law - Central Reserve Police
Force Act, 194 - Sections 9, 10, 11 & 12 -
The petitioner was suspended on account of
unauthorised absent from work. The Court held
that the order of dismissal from service is
disproportionate to the offence committed by
the petitioner. Absent from work without cause
is a less heinous crime under the Act for which
punishment ought to have been a little less.
(Para 8)
Writ Petition Partly Allowed. (E-10)

List of Cases cited:-

## Text

1076 INDIAN LAW REPORTS ALLAHABAD SERIES
CPC or Section 22(3)(f) of the Act. To put
it differently an order or decision or
judgment cannot be corrected merely
because it is erroneous in law or on the
ground that a different view could have
been taken by the court/tribunal on a point
of fact or law. In any case, while exercising
the power of review, the court/tribunal
concerned cannot sit in appeal over its
judgment/decision."

34. The principles which can be
culled out from the abovenoted judgments
are:

"(i) The power of the Tribunal to
review its order/decision under Section
22(3)(f) of the Act is akin/analogous to the
power of a civil court under Section 114
read with Order 47 Rule 1 CPC.

(ii) The Tribunal can review its
decision
on
either
of
the
grounds
enumerated in Order 47 Rule 1 and not
otherwise.

(iii) The expression "any other
sufficient reason" appearing in Order 47
Rule 1 has to be interpreted in the light of
other specified grounds.

(iv) An error which is not selfevident and which can be discovered by
along process of reasoning, cannot be
treated as an error apparent on the face of
record justifying exercise of power under
Section 22(3)(f).

(v) An erroneous order/decision
cannot be corrected in the guise of exercise
of power of review.

(vi) A decision/order cannot be
reviewed under Section 22(3)(f) on the
basis of subsequent decision/judgment of a
coordinate or larger Bench of the tribunal
or of a superior court.

(vii)
While
considering
an
application for review, the tribunal must
confine its adjudication with reference to
material which was available at the time of
initial decision. The happening of some
subsequent event or development cannot be
taken note of for declaring the initial
order/decision as vitiated by an error
apparent.

(viii) Mere discovery of new or
important matter or evidence is not
sufficient ground for review. The party
seeking review has also to show that such
matter or evidence was not within its
knowledge and even after the exercise of
due diligence, the same could not be
produced before the court/tribunal earlier."

35. In view of above, no ground for
review is made out.

36.

Application
is
accordingly
rejected. to place their grievance before the
Court.
----------
(2022)05ILR A1076
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Writ - A No. 72166 of 2005

Ex. Constable Radhey Raman Yadav
 ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri M.M. Khan, Sri Mustaqeem Ahmad, Sri
Rajesh Kumar, Sri Yashodanand Shukla

Counsel for the Respondents:
Sri K.C. Sinha A.S.G.I., Sri Jitendra Prasad
Mishra, Sri Kaushik Chatterjee, Sri Kaushik
Chatterji, Sri M.P. Shukla, Sri Prem Narayan
Rai, S.C.
5 All. Ex. Constable Radhey Raman Yadav Vs. Union of India & Ors.
1077
A. Service Law - Central Reserve Police
Force Act, 194 - Sections 9, 10, 11 & 12 -
The petitioner was suspended on account of
unauthorised absent from work. The Court held
that the order of dismissal from service is
disproportionate to the offence committed by
the petitioner. Absent from work without cause
is a less heinous crime under the Act for which
punishment ought to have been a little less.
(Para 8)
Writ Petition Partly Allowed. (E-10)

List of Cases cited:-

1. Suresh Dhar Dubey Vs UOI 2018 (2) ADJ 854
(Delivered by Hon'ble Siddhartha Varma, J.)

1. Heard Sri Rajesh Kumar
assisted by Sri Yashodanand Shukla,
learned counsel for the petitioner and Sri
Jitendra Prasad Mishra, learned counsel for
the respondents.

2. This writ petition has been filed
against an order of dismissal dated
20.3.1992 and also against the orders dated
27.4.2005 and 5.9.2005 passed in the
appeal and the revision respectively. By
these orders the appeal and the revision
filed by the petitioner were also dismissed.

3. The petitioner who was working
as a Constable in the Central Reserve
Police Force eversince 1985 was always
much appreciated for his work and,
therefore, had also been awarded with
various rewards and appreciations from the
Governor, the Director General of Central
Reserve Police Force, Inspector General of
Police and the Commandant. Apart from
these awards, the petitioner was also a
recipient of various cash rewards.

4. The facts of the case are that
when the petitioner was on duty on
24.12.1991, a fellow Constable by the name
of Haidar Ali informed the petitioner about
the serious illnesses of his mother and that of
his child. Upon getting the information, the
petitioner was very upset. He tried to give an
application on 24.12.1991 for 16 days' leave.
However, no orders were passed on that
application. On the next day, it was a
Christmas holiday and no officer was
available for the granting of leave and,
therefore, on 26.12.1991, the petitioner after
writing an application and after leaving the
same in the office of the Commandant of the
Headquarter, left for his village. From his
village also, the petitioner kept writing
through post. When the petitioner re-joined
his duty on 23.1.1992, he was placed under
suspension on 24.1.1992 and thereafter he
was also served with a charge of desertion on
25.1.1992. An Enquiry Officer was appointed
and thereafter the Enquiry Officer submitted
his enquiry report upon the completion of the
enquiry. On 20.3.1992, an order of dismissal
was passed for the petitioner's unauthorized
absence. The petitioner filed an appeal and
when that was rejected on 27.4.2005, he filed
a Revision. Upon the dismissal of the
Revision on 5.9.2005, the instant writ petition
was filed.

5. Learned counsel for the petitioner
has submitted that under the Central Reserve
Police Force Act, 1949, sections 9 to 12 deal
with offences and punishments. Section 9
deals with "more heinous offences" while
section 10 deals with "less heinous offences".
Section 11 deals with minor punishments and
section 12 deals with punishments which are
ranging from dismissal to imprisonment.
Since learned counsel for the petitioner had
brought to the notice of the Court sections 9
to 12, they are being reproduced here as
under :-

"OFFENCES AND PUNISHMENTS
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
 More heinous offences.
 9. Every member of the force
who-

(a) begins, excites, causes or
conspires to cause or joins in any mutiny,
or being present at any mutiny, does not
use his utmost endeavour to suppress it, or
knowing, or having reason to believe in, the
existence of any mutiny, or of any intention
or conspiracy to mutiny or of any
conspiracy against the State does not,
without delay, give information thereof to
his superior officer; or

(b) uses, or attempts to use,
criminal force to, or commits an assault on,
his superior officer, whether on or off duty,
knowing or having or having reason to
believe him to be such; or

(c)
shamefully
abandons
or
delivers up any post or guard which is
committed to his charge, or which it is his
duty to defend; or

(d) directly or indirectly holds
correspondence with, or assists or relieves
any person in arms against the State or omits
to discover immediately to his superior
officer any such correspondence coming to
his knowledge; or who, while on active duty,-

(e) disobeys the lawful command
of his superior officer; or

(f) deserts the Force; or

(g) being a sentry, sleeps upon his
post or quits it without being regularly
relieved or without leave; or

(h) leaves his commanding officer,
or his post or party, to go

in search of plunder; or

(i) quits his guard, picquet, party or
patrol without being regularly relieved or
without leave; or

(j) uses criminal force to, or
commits an assault on, any person bringing
provisions or other necessaries to campo or
quarters, of forces a safeguard or breaks
into any house or other place for plunder,
or plunders, destroys or damages property
of any kind; or

(k) intentionally causes or spreads
a false alarm in action or in camp, garrison
or quarters; or

(l) displays cowardice in the
execution of his duty shall be punishable
with imprisonment for a term which may
extend
to
fourteen
years
or
with
imprisonment for a term which may extend
to fourteen years or with fine which may
extend to three months pay or with fine to
that extent in addition to such sentence of
transportation or imprisonment.

Less heinous offences

10. Every member of the force
who-

(a) is in a state of intoxication
when on, or after having been warned for,
any duty or on parade or on the line of
march; or

(b) strikes or attempts to force
any sentry; or

(c) being in command of a guard,
piquet or patrol, refuses to receive any
prisoner
or
person
or
person
duly
committed to his charge or without proper
authority releases any person or prisoner
placed under his charge or negligently
suffers any such prisoner or person to
escape; or

(d) being under arrest or in
confinement,
leaves
his
arrest
or
confinement, before he is set at liberty by
lawful authority; or

(e) is grossly in-subordinate or
insolent to his superior officer in the
execution of his office; or

(f) refuses to superintend or assist
in the making of any fieldwork or other
work of any description ordered to be made
either in quarters or in the field; or

(g) strikes or otherwise ill-uses
any member of the force subordinate to him
in rank or position; or
5 All. Ex. Constable Radhey Raman Yadav Vs. Union of India & Ors.
1079

(h) designedly or through neglect
injures or loses or fraudulently disposes of
his arms, clothes, tools, equipments,
ammunition or accoutrement or any such
articles entrusted to him or belonging to
any other person; or

(i)
malingers
or
feigns
or
produces disease or infirmity in himself, or
intentionally delays his cure, or aggravates
his disease or infirmity; or

(j) with intent to render himself or
any
other
person
unfit
for
service,
voluntarily causes hurt to himself or any
other person; or

(k) does not, when called upon by
his superior officer so to do or upon
ceasing to be a member of the force
forthwith deliver up, or duly account for,
all or any arms, Ammunition, stores,
accoutrements or other property issued or
supplied to him or in his custody or
possession as such member; or

(l) knowingly furnishes a false
return or report of the number or state of
any men under his command or charge or
of any money, arms ammunition, clothing,
equipments, stores or other property in his
charge, whether belonging to such men or
to the Government or to any member of or
any

(m) person attached to the force
or who through design or culpable neglect,
omit, or refuses to make or send any return
or report of the matters aforesaid; or

(n) absent himself without leave,
or without sufficient cause overstays leave
granted to him: or

(o) is guilty of any act or
omission which, though not specified in
this Act, is prejudicial to good order and
discipline: or

(p) contravenes any provision of
this Act for which no punishment is
expressly provided: or who, while not on
active duty :

(q) commits any of the offences
specified in clauses (e) to (1) (both
inclusive) of Section 9 shall be punishable
with imprisonment for a term which may
extend to one year, or with fine which may
extend to three months pay, or with both.

Minor punishments.

11. (1) The Commandant or any
other authority or officer as may be
prescribed, may, subject to any rules made
under this Act award in lieu of or in
addition to, suspension or dismissal any
one or more of the following punishments
to any member of the force whom he
considered to be guilty of disobedience,
neglect of duty, or remissness in the
discharge of any duty or of other
misconduct in his capacity as a member of
the force, that is to say :

(a) reduction in rank;

(b) fine of any amount not
exceeding one month's pay and allowances;

(c) confinement to quarters, lines
or camp for a term not exceeding one
month;

(d) confinement in the quarterguard for not more than twenty eight days
with or without punishment drill or extra
guard, fatigue or other duty; and

(e) removal from any office of
distinction or special emolument in the
force.

(2) Any punishment specified in
clause (c) or clause (b) of sub-section (1)
may be awarded by any gazetted officer
when in command of any detachment of the
force away from headquarters, provided he
is specially authorised in this behalf by the
Commandant.

(3) The Assistant Commandant, a
Company Officer or a Subordinate Officer,
not being below the rank of Subedar or
Inspector
commanding
a
separate
detachment or an outpost, or in temporary
command at the headquarters of the force,
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
may, without a formal trial, award to any
member of the force who is for the time
being subject to his authority any one or
more of the following punishments for the
commission of any petty offence against
discipline which is not otherwise provided
for in this Act or which is not of a
sufficiently
serous
nature
to
require
prosecution before a Criminal Court that is
to say :

(a) confinement for not more that
seven days in the quarter guard or such
other place as may be considered suitable,
with forfeiture of all pay and allowances
during its continuance;

(b) punishment drill, or extra
guard, fatigue or other duty, for not more
than
thirty
days,
with
or
without
confinement to quarters, lines, or camp.

(4) A Jemadar or Sub-Inspector
who is temporarily in command of a
detachment or an outpost may in like
manner and for the commission of any like
offence award to any member of the force
for the time being subject to his authority
any of the punishment specified in clause
(b) of sub-section (3) for not more than
fifteen days.

Place of imprisonment and
liability to dismissal on imprisonment

12. (1) Every person sentenced
under this Act to imprisonment may be
dismissed from the force and shall further
be liable to forfeiture of pay, allowance and
any other moneys due to him, as well as of
any medals and decorations received by
him.

(2) Every such person shall, if he
is so dismissed, be imprisoned in the
prescribed prison, but if he is not also
dismissed from the force he may if the
Court of the Commandant so directs, be
confined in the quarter guard or such other
place as the Court or the Commandant may
consider suitable."

6. Learned counsel for the petitioner
submits that since under section 10(n),
absenting without leave was considered a
less heinous offence, the petitioner should
have been given a minor punishment.
Learned counsel for the petitioner in this
regard has heavily relied upon a judgment
of this Court in Suresh Dhar Dubey vs.
Union of India & Ors. reported in 2018
(2) ADJ 854. Learned counsel for the
petitioner
further
submitted
that
the
Constable Haidar Ali, who had informed
him about the illnesses of his mother and
that of his child, was never allowed to be
produced in the enquiry, else he would
have informed the Enquiry Officer with
regard to the fact that in fact the mother and
the child of the petitioner were ill. Still
further, it has been argued by learned
counsel for the petitioner that the petitioner
had
produced
the
medical
prescriptions/certificates which went to
show that the mother and the child of the
petitioner were ill but these evidence were
not considered by the Enquiry Officer. Still
further, learned counsel for the petitioner
argued that for being absent and that too
because of the fact that there was a cause,
the petitioner's case ought to have been
considered leniently and he should not have
been punished with dismissal.

7. Learned counsel appearing for
the Central Reserve Police Force Sri
Jitendra Prasad Mishra, however, in reply
submitted that the petitioner's absenting
without any application from a disciplined
force would mean a major offence and,
therefore,
the
petitioner
was
rightly
dismissed from his service.

8.

Having
considered
the
submissions advanced by learned counsel
for the parties, the Court is of the view that
the order of dismissal from service was
5 All. State of U.P. & Ors. Vs. Raj Kumar Srivastava
1081
disproportionate to the offence committed
by the petitioner. In fact the Central
Reserve Police Force itself considers
absenting without cause to be a "less
heinous offence" and for which the
punishment also ought to have been a little
lesser. The Court also considers that the
punishment awarded to the petitioner
exceeded the offence. The punishment was,
therefore, definitely disproportionate to the
offence which was committed by the
petitioner.

9. Under such circumstances, the
order dated 20.3.1992 passed by the
Commandant,
127th
Battalion,
Central
Reserve Police Force, Allahabad, the order
dated 27.4.2005 passed by the Appellate
Authority and the order dated 5.9.2005
passed by the Revisional Authority are
quashed and are set-aside. The petitioner
could
have
been
awarded
a
minor
punishment of fine etc. in the shape of
stoppage of a few months' salary. The
petitioner shall now be reinstated in service
with all backwages. However, the wages of
three months shall not be paid to the
petitioner which stoppage shall be considered
as a fine imposed upon the petitioner.

10. The writ petition is, accordingly,
partly allowed.

16. So even if the application is
registered as complaint case even then under
process of inquiry Magistrate has ample
power to direct for investigation to be made
by police officer or by such officer as he
thinks fit. So at the stage of inquiry under
section 202 Cr.P.C. Magistrate may opt for
that.

17. Considering the entire facts and
circumstances and the legal proposition there
appears to be no necessity for interference.
The impugned order passed by the learned
Magistrate is sound and reasoned one and
does not suffer from any illegality.

18. The application U/s 482 Cr.P.C.
is devoid of merit and is hereby dismissed.
----------
(2022)05ILR A1081
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Spl. Appeal D No. 473 of 2021

State of U.P. & Ors. ...Appellants
Versus
Raj Kumar Srivastava ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Avinash Kant Tripathi

A. Service Law - The U.P. Regularisation
of Persons working on Daily Wages or
On Work Charge or On Contract in
Government Departments On Group "C"
and
Group
"D"
Posts
(Outside the
Purview of the U.P. Public Service
Commission) Rules, 2016 - Rule 2(iii),
6(3)

The respondent is seeking regularisation
under the Rules 2(iii) of 2016. The criteria
given under the said Rules requires the
respondent to be employed in a scheme or
project of the State or Government of India
sponsored programmes but also that he
should have been employed on consolidated
pay/fixed honoraria. Since the respondent is
employed on daily wage basis therefore
exclusion as envisaged in Rule 2(iii) will not
cover him and therefore he is not entitle to