# Head Constable 92 A.P.Madan Pal Singh v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 871
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-30
- **Case number:** Civil Misc. Writ Petition No. 8843 of 2002
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/head-constable-92-a-p-madan-pal-singh-v-state-of-u-p-and-others-41706
- **Pages:** 11

## Headnote

Constitution of India Art 226-Judicial
Review-discretion
exercised
by
disciplinary
authority-under
writ
jurisdiction-limited
to
scrutiny
of
decision making process only in the light
872 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

of the settled principles of law-writ
petition against order of dismissal of
Head Constable-order passed after full
pledged
domestic
enquiry-bald
plea
regarding reasonable opportunity found
not tenable-punishment found to be
commensurate with indiscipline provedno irregularity or infirmly-writ petition
dismissed.

Held Para 44 and 45

Thus the decision by the appropriate
authority to grant or not to grant a
particular relief to a person is not open
to Judicial review by the High Court
under Article 226 of the Constitution of
India but the power of judicial review is
circumscribed to scrutiny of the decision
making process only and is to be
exercised in the light of the principles
laid down above and applying the said
principles to the facts of the present
case, I do not find any irregularity or
infirmity in the impugned orders.

No other point is pressed or argued
before me.
Case Law Discussed:
2002 (1) ESC AII 26; 1996 (5) SCC 474; 1983
(1) SCC 124; 1995 (6) SCC 749; 1997 SCC
(L&S) 90; 1998 (9) SCC 671; 1989 (2) SCC
L&S 303; 2007 (7) SCC 257; 2008 (7) SCC
580; 2010 (5) SCC 775; 1984 (3) ALL ER 935;
1982 (3) ALL ER 141; AIR 1989 SC 997; 1994
(6) SCC 651.

## Text

2 All] Head Constable 92 A.P.Madan Pal Singh V. State of U.P. and others
871
document. But after determination by
consolidation authorities the right, title of the
parties taking into consideration void
document, the entries will be corrected. After
consolidation operations are over, the
question cannot be raised or raked up before
any civil or revenue court thereafter in view
of Section 49 of U.P. Consolidation of
Holdings Act which puts a bar on the
jurisdiction of civil or revenue court not only
to adjudicate such right and title or interest
over land adjudicated by consolidation
authorities or which could have been raised
before them, but was not raised. The
jurisdiction of consolidation authorities is
thus wider than that of civil court and
revenue court."

10. In view of the legal position as
aforesaid, which has since been approved by
the Hon'ble Supreme Court in the case of
Smt. Bismillah (supra) what logically
follows is that all issues of right/title in an
agriculture holding should be raised before
the consolidation authorities once the village
is notified under Section 4 of the CH Act.
The father of the petitioner should have
therefore claimed before the consolidation
authorities that the sale deed was void
document. No such plea, which was
available, was raised before the consolidation
authorities by the father or by the petitioner
himself who was a attesting witness to the
sale deed so executed. This Court holds that
rights over the land with reference to the sale
deed in the facts of the stood closed with the
de-notification of the village and the suit as
filed for cancellation of the sale is barred by
Section 49 of the Consolidation of Holdings
Act. The order of the Consolidation
authorities treating the land in dispute to be
that the purchaser, can not be reopened in a
suit as filed by the plaintiff.

11. Counsel for the petitioner has
placed reliance in the case of Jai Singh Vs.
IInd
Additional
District
Judge,
Muzaffarnagar and others reported in 2001
(4) AWC 2826 which according to the
petitioner holds that a suit for cancellation
would lie in civil court only. In my opinion,
the judgement has no application in the facts
of present case inasmuch as it deals with the
proceedings initiated under the U.P. Z.A &
L.R. Act. As already noticed above the Full
Bench of this Court in the case of Ram Nath
(supra) has specifically held that the
jurisdiction of the consolidation authorities in
respect of right, title and interest over the
agriculture land is much wider than that of
revenue courts and civil courts.

12. Writ petition is dismissed. Interim
order is vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2010

BEFORE
THE HON'BLE ANIL KUMAR, J.

Civil Misc. Writ Petition No. 8843 of 2002

Head Constable 92 A.P Madan Pal
Singh

 ...Petitioner
Versus
State Of U.P. & others ...Respondents

Counsel for the Petitoner:
Sri Chandra Bahadur Yadav
Sri S.K.Mishra
Sri Rakesh Tripathi

Counsel for the Resapondents:
C.S.C.

Constitution of India Art 226-Judicial
Review-discretion
exercised
by
disciplinary
authority-under
writ
jurisdiction-limited
to
scrutiny
of
decision making process only in the light
872 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

of the settled principles of law-writ
petition against order of dismissal of
Head Constable-order passed after full
pledged
domestic
enquiry-bald
plea
regarding reasonable opportunity found
not tenable-punishment found to be
commensurate with indiscipline provedno irregularity or infirmly-writ petition
dismissed.

Held Para 44 and 45

Thus the decision by the appropriate
authority to grant or not to grant a
particular relief to a person is not open
to Judicial review by the High Court
under Article 226 of the Constitution of
India but the power of judicial review is
circumscribed to scrutiny of the decision
making process only and is to be
exercised in the light of the principles
laid down above and applying the said
principles to the facts of the present
case, I do not find any irregularity or
infirmity in the impugned orders.

No other point is pressed or argued
before me.
Case Law Discussed:
2002 (1) ESC AII 26; 1996 (5) SCC 474; 1983
(1) SCC 124; 1995 (6) SCC 749; 1997 SCC
(L&S) 90; 1998 (9) SCC 671; 1989 (2) SCC
L&S 303; 2007 (7) SCC 257; 2008 (7) SCC
580; 2010 (5) SCC 775; 1984 (3) ALL ER 935;
1982 (3) ALL ER 141; AIR 1989 SC 997; 1994
(6) SCC 651.

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Sri S.K. Mishra, learned
counsel for the petitioner and learned
Standing Counsel.

2. Factual matrix of the present case as
submitted by the learned counsel for the
petitioner are that the petitioner (Madan Pal
Singh)
working
as
Head
Constable
(Constable No. 92 A.P.) posted at Police
Line, Meerut under the control and
supervision
of
Uttar
Pradesh
Police
Headquarter.

3. On 18.01.2000, the petitioner
alongwith two other Constables namely Sri
Naresh Kumar and Amar Singh was
assigned the duty to take a hard-core
criminal Sri Sanjay @ Bunti son of Brij Raj
Singh from District Jail Meerut to the Court
no. 16, Patiyala House Court, New Delhi.
While they were returning from New Delhi,
on the way they stopped at Modinagar,
District Ghaziabad in order to take food in
the Hotel 'Sanjha Chulha', Modinagar,
Ghaziabad alongwith prisoner Sri Sanjay @
Bunti, who took the advantage of the said
stay and escaped away from the custody of
the petitioner.

4 In view of the said fact, a First
Information Report was lodged at police
station Modinagar under Sections 223, 224,
225, 395 and 397 I.P.C. read with Section
29 of the Police Act against him. On the
basis of which, a criminal case has been
instituted in the competent criminal court.

5. Thereafter, the petitioner was
served
with
the
charge-sheet
dated
29.02.2000 and a preliminary enquiry was
conducted by one Sri Uma Nath Singh,
Additional Superintendent of Police (Rural),
Ghaziabad, a copy of the said enquiry report
is annexed as Annexure no. 4 to the writ
petition.

6. On behalf of the petitioner a
submission is made that since the criminal
case in respect to the same incident is
pending against him, so request was made
to the authority concerned and the Inquiry
Officer to stay the disciplinary proceedings
till the decision of the criminal case. But no
heed was paid in the matter so the petitioner
submitted his reply to the charge-sheet
2 All] Head Constable 92 A.P.Madan Pal Singh V. State of U.P. and others
873
dated
29.02.2000
on
02.03.2000.
Thereafter, the Inquiry Officer conducted
the enquiry proceedings and submitted an
enquiry report dated 24.11.2000 to the
punishing authority.

7. On 24.12.2000, a show-causenotice was issued to the petitioner by the
punishing authority alongwith the enquiry
report,
he
submitted
his
reply
on
31.12.2000.
Thereafter,
Senior
Superintendent of Police, Meerut/Punishing
authority, after considering the reply
submitted by the petitioner, enquiry report
and materials on record, passed the
impugned
order
dated
13.02.2001
dismissing the petitioner from services.

8. Aggrieved by the said order of
dismissal
dated
13.02.2001,
petitioner
preferred an appeal before the Deputy
Inspector General of Police, Meerut Region,
Meerut (respondent no. 3) on 26.02.2001,
rejected by order dated 24.05.2001, against
the said order, the petitioner preferred a
revision before the Inspector General of
Police, Meerut Region, Meerut, the same
was dismissed by the impugned order dated
20.11.2001, hence the present writ petition
has been filed by the petitioner thereby
challenging the said order.

9. Learned counsel for the petitioner
while assailing the impugned orders
submits that no reasonable opportunity
whatsoever was given to the petitioner
during the course of enquiry proceedings
and the Inquiry Officer was personally
prejudiced and biased against him. Enquiry
proceedings have been conducted against
the petitioner with predetermined mind, so
the enquiry report as well as the entire
action taken thereafter are violative of the
principles of natural justice and liable to be
set aside.

10. A submission has also been made
on behalf of the petitioner that the Inquiry
Officer in his enquiry report dated
29.11.2000
had
recommended
the
punishment of dismissal, the said action on
the part of the Inquiry Officer was uncalled
for and without jurisdiction. The Inquiry
Officer
has
got
no
jurisdiction
to
recommend the punishment to be awarded
to the petitioner, thus, the enquiry report as
well as entire proceedings thereafter are
void and on the basis of same, no
punishment order can be passed against the
petitioner.

11. Learned counsel for the petitioner
also submits that the impugned order of
dismissal
passed
by
the
punishing
authority/Senior Superintendent of Police,
Meerut is non-speaking order as the same
does not specifies any reason on the basis of
which the said order has been passed.

12. Last submission made by the
learned counsel for the petitioner that in
service jurisprudence it is well established
that the punishment should be awarded in
proportion to the gravity of misconduct
committed by the delinquent and in the
present case the petitioner who has put more
than 20 years of satisfactory services, has
been dismissed from services, so the
punishment which is awarded to him does
not commensurate with misconduct, if any,
committed by him, as such the impugned
order of dismissal as well as the appellate
order and revisional order are arbitrary in
nature and liable to be set aside.

13. In support of his case, learned
counsel for the petitioner relied the
judgment reported in the case of Sri
Krishna Bhagwan Pandey Vs. U.P.
Pradhan Prabandhak Meerut Western
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Region,
Meerut
and
others,
[2002(1)E.S.C.(All.)] page 26.

14. Learned Standing Counsel on the
other hand submits that in the present case
due to sole negligence and carelessness on
the part of the petitioner in performing his
duty diligently, a hard-core criminal has
escaped from his custody. Accordingly, in
the said incident, a charge-sheet has been
issued, thereafter enquiry proceedings were
initiated in which petitioner was provided
full opportunity to defend his case and on
the basis of enquiry report submitted by the
Inquiry Officer, the order of dismissal has
been passed by the respondent no. 3,
confirmed by the appellate authority as well
as by the revisional authority respectively,
hence there is neither any illegality nor
infirmity in the impugned order under
challenge in the present case, accordingly
the writ petition lacks merit and deserves to
be dismissed.

15. I have heard learned counsel for
the parties and perused the record.

16. Undisputed facts of the present
case are that the petitioner who was
working as Head Constable and posted at
Police Lines, Meerut having Constable No.
92 A.P. and posted at Police Lines, Meerut
under the control and supervision of Uttar
Pradesh
Police
Headquarter.
On
18.01.2000, assigned the duty alongwith
two other Constables namely Naresh
Kumar and Amar Singh to take a hard-core
criminal Sri Sanjay @ Bunti son of Brij Raj
Singh from District Jail Meerut to the Court
no. 16, Patiyala House Court, New Delhi.
While they were returning from New Delhi,
in the way they stopped at Modinagar,
District Ghaziabad and to take food in the
Hotel namely 'Sanjha Chulha', Modinagar,
Ghaziabad alongwith prisoner Sri Sanjay @
Bunti, and taking the advantage of their stay
in the Hotel, the said prisoner escaped away
from their custody with the help of five
other unknown persons.

17. In the incident in question, an
F.I.R. was registered as Case Crime No. 32
of 2000 at Police Station Modinagar and the
petitioner was placed under suspension.
Thereafter, a charge-sheet dated 29.02.2000
was served on the petitioner to which he
gave his reply dated 02.03.2000. A
preliminary enquiry was also conducted by
Sri
Uma
Nath
Singh,
Additional
Superintendent of Police(Rural), Ghaziabad.

18. Further, a fulfledged domestic
enquiry was conducted by the Inquiry
Officer/Additional Superintendent of Police
(Rural) Meerut Region Meerut in which as
per material on record ample and adequate
opportunity was provided to the petitioner
by the Inquiry Officer and after conducting
the same he submitted an enquiry report
dated 29.11.2000 inter alia stating therein
that when the petitioner alongwith other two
other Constables were returning from Court
no. 16, Patiyala House Court, New Delhi
where Sri Sanjay @ Bunti son of Brij Raj
Singh resident Badi Haveli, Ghoda Pyas,
Police
Station
Atal
Band,
District
Bharatpur, Rajsthan was produced, by Bajra
Vahan at Modinagar, Ghaziabad. The
petitioner stopped at Modinagar, District
Ghaziabad for taking food in a Hotel
namely
'Sanjha
Chulha',
Modinagar,
Ghaziabad alongwith prisoner Sri Sanjay @
Bunti and taking the advantage of the said
fact, the said prisoner escaped away, with
the help of five unknown persons who got
him released from the custody of the
petitioner and took in their vehicle. The
Inquiry Officer has given a categorical
finding of fact in his enquiry report that the
said incident has taken place because the
2 All] Head Constable 92 A.P.Madan Pal Singh V. State of U.P. and others
875
petitioner
had
put
his
arms
with
carelessness. As such, the said act on the
part of the petitioner amounts to negligence,
indiscipline and carelessness, in discharging
his duties. Accordingly he is not entitled to
be retained in police services, so his
services be terminated.

19. Thereafter, a show-cause-notice
was issued to the petitioner to which he
submitted his response and after taking the
reply submitted by the petitioner, other
material documents on record as well as the
enquiry report, the order of dismissal dated
13.02.2001 has been passed by Punishing
Authority/Senior Superintendent of Police,
Meerut (respondent no. 4), confirmed by the
appellate authority as well by the revisional
authority.

20. In view of the above said fact, the
first contention raised by the learned
counsel for the petitioner that no reasonable
opportunity whatsoever has been given to
him
during
the
course
of
enquiry
proceedings is wholly incorrect and wrong
because as per the settled law, the
reasonable opportunity means as under :-

(a) an opportunity to deny guilt and
establish innocence; which a government
servant can only do if he is told what the
charges leveled against him are and the
allegations on which such charges are
based.

(b) an opportunity to defend himself
by cross examining the witnesses produced
against him and by examining himself or
any other witnesses in support of his
defence which he can effectively do if he
was supplied the copies of the documents
relied upon and the depositions of witnesses
, and finally,

(c) an opportunity to make his
representation as to why no punishment
should be inflicted on him which he can
only do if the competent authority, after the
enquiry is over tentatively proposes to
inflict one of the scheduled punishments
and communicates his tentative decision
along with a copy of the inquiry report to
the Government servant.

21. In the case of State of Tamil Nadu
Vs. Thiru K.V. Perumal and others 1996
(5) SCC 474 , Hon'ble Supreme Court has
held as under :-

"The Tribunal seems to be under the
impression
that
the
enquiry
officer/
disciplinary authority is bound to supply
each an every document that may asked for
by delinquent officer/employee. It is wrong
there. Their duty is only to supply relevant
documents and not each and every
document asked for by the delinquent
officer/ employee. In this case respondent
has asked for certain documents. The
Registrar, to whom the request was made,
called upon him to specify the relevance of
each and every document asked for by him.
The respondent did not do so. It was the
duty of the respondent to point out how
each and every documents was relevant to
the charges or to the enquiry being held
against him and whether and how their non-
supply has prejudiced his case. Equally , It
is the duty of the Tribunal to record the
finding whether any relevant documents
were supplied and whether such non-supply
has prejudiced the defendant's case."

22. In the instant case, the petitioner
has made a bald and vague statement that
the
reasonable
opportunity
was
not
provided to him and further he has not
stated that in what manner he is being
prejudiced. Moreover, the relevant materials
876 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

and documents including the copy of the
preliminary enquiry report and the enquiry
report, were supplied to the petitioner. As
such, the submission made by the learned
counsel for the petitioner that no reasonable
opportunity was given to the petitioner in
the instant case is misconceived argument
and the same is rejected having no force.

23. Next contention as raised by the
learned counsel for the petitioner that the
Inquiry Officer is prejudiced and biased
against
the
petitioner
is
wholly
misconceived and wrong as from the
documents which are on record it does not
transpires that the said allegation which is
made by the petitioner is founded on any
sound reasons and grounds. Further, in case
if the petitioner has any grievance against
the Inquiry Officer that he was personally
biased against him, then he should have
been impleaded as respondent in the writ
petition but the same has not been done in
the present case. It is needless to mention
herein that it is the settled proposition of law
that if the person/officer against whom
prejudice or bias is alleged and he is not
impleaded in personal capacity in order to
rebut the said allegation otherwise the said
allegation cannot be taken to be correct.

24. Moreover, the petitioner has failed
to establish on the basis of materials on
record that the Inquiry Officer was
prejudiced and biased against him rather the
said plea on the part of the petitioner that
the Inquiry Officer was biased and
prejudiced is incorrect and wrong and
without any foundation and specific
pleadings in the writ petition. It is relevant
to mention herein that the pleadings made in
the writ petition in this regard are vague and
bald on the basis of which it cannot be
established or proved that the Inquiry
Officer was prejudiced or biased against the
petitioner and submitted enquiry report.
Accordingly, the submission made in this
regard is rejected.

25. Next, the submission made by the
learned counsel for the petitioner that
Inquiry Officer has recommended the
punishment to be awarded to petitioner in
the enquiry report, accordingly the said
action on the part of the Inquiry Officer is
without jurisdiction and it rendered the
enquiry report and impugned orders passed
thereafter against the petitioner is incorrect
and wrong and is rejected having no force
because when the Disciplinary Authority
does not have sufficient time on hand to
hold the enquiry, he may appoint an
Inquiring Authority. Out of the same
necessity, the Inquiry Officer, also has to
perform the duties of both prosecutor and
Judge. A challenge that he acted as a
'persecutor and judge' and, therefore, the
proceedings suffered from "subject bias"
would not vitiate the proceedings.

26. In the case of Board of Trustees
of the port of Bombay Vs. Dilip Kumar
Raghavendranath Nadkarni, (1983) 1 SCC
124, the Supreme Court recognized it to be
lawful that the position of Enquiry Officer
both as a persecutor and as a judge is "rolled
into one". Thus, the challenge that it
violates the first principle of natural justice
would not be available.

27. Further, when a duty to decide
either way is required to be performed by
any person under any obligation cast upon
him for performance of the duty, the plea of
bias would not forbid performance of such
duty and unless the content of the
performance is fallacious, mere plea of bias,
without anything more, would not defeat
the performance.
2 All] Head Constable 92 A.P.Madan Pal Singh V. State of U.P. and others
877

Even otherwise in the present case
after the submission of enquiry report by
the
Inquiry
Officer,
the
punishing
authority had issued a show-cause notice
and called for a reply from the petitioner.
In response to the same, the petitioner
submitted his reply inter alia stating the
reasons for not inflicting the punishment
of dismissal is proposed in the showcause notice, further after considering the
same and other documents on record, the
punishing authority as per it's discretion
and on the basis of the materials on record
awarded
the
punishment
thereby
dismissing the petitioner from services.

28. In view of the said fact, the
submission made by the learned counsel
for the petitioner that the Inquiry Officer
has recommended the punishment has no
force and accordingly rejected.

29. Next submission made by the
learned counsel for the petitioner that the
impugned order passed by the punishing
authority
is
non-speaking
and
unreasonable order. From perusal of the
record, it is clearly borne out that the said
authority after taking into consideration
the material documents on record as well
as the enquiry report has given a
categorical finding of fact that there was
no justification or reason on the part of
the petitioner to stop in the mid-way to
take food as he had taken his food in the
Police Mess and distance from Delhi to
Meerut is 57 Kilometer only, and due to
the said sole negligence on the part of the
petitioner, the incident in question has
taken place. Further, finding was also
given by the punishing authority in the
impugned order of dismissal that the
petitioner was well aware about the fact
that the accused Sanjay @ Bunti is hardcore criminal and had a criminal history.
So, the action on the part of the petitioner
to stop in the mid-way to have food is an
action on his part which is nothing but
indiscipline
and
negligence
and
accordingly on the basis of said findings
and reasons the order of dismissal was
passed
against
the
petitioner.
Accordingly, the submission made in this
regard has got no force and is rejected.

30. Last submission made on behalf
of the petitioner is that the punishment
awarded does not commensurate with the
gravity of misconduct, if any, committed
by him does not holds the field good as it
is the sole prerogative and domain of the
punishing
authority
to
impose
the
punishment on an employee taking into
consideration the material documents and
evidence on record and misconduct
committed by him.

31. Further, in the present case, the
petitioner is an employee of a disciplinary
force and thus, he is to be maintained
discipline and perform his duties with due
diligence but in the present case and as
per material on record, the action on the
part
of
the
petitioner
amounts
to
negligence
and
carelessness
in
discharging his duties and due to this
reason the said incident took place and a
hard-core criminal namely Sanjay @
Bunti escaped away.

32. In the case of B.C. Chaturvedi
Vs. Union of India (1995) 6 SCC 749,
Hon'ble Supreme Court has held as under
:-

"18. A review of the above legal
position
would
establish
that
the
disciplinary authority, and on appeal the
appellate authority, being fact finding
authorities have exclusive power to
878 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

consider the evidence with a view to
maintain discipline. They are invested
with the discretion to impose appropriate
punishment.
Keeping
in
view
the
magnitude or gravity of the misconduct.
The
High
Court/Tribunal,
while
exercising the power of judicial review,
cannot
normally
substitute
its
own
conclusion on penalty and impose some
other penalty. If the punishment imposed
by the disciplinary authority or the
appellate authority shocks the conscience
of the High Court/Tribunal, it would
appropriately mould the relief, either
directing
the
disciplinary/appellate
authority
to
reconsider
the
penalty
imposed, or to shorten the litigation, it
may itself, in exceptional and rare cases,
impose appropriate punishment with
cogent reasons in support thereof."

33. In the case of V. Rajarathinam
Vs. State of Tamilnadu and another,
1997 SCC(L&S) 90, the Court has held as
under :-

"that if all the relevant facts and
circumstances and the evidence on record
are taken into consideration and it is
found that the evidence established
misconduct against a public servant, the
disciplinary
authority
is
perfectly
empowered to take appropriate decision
as to the nature of the findings on the
proof of guilt. Once there is a finding as
regards the proof of misconduct, what
should be the nature of the punishment to
be imposed is for the disciplinary
authority to consider."

34. In the case of State of
Karnataka and others Vs. H.Nagaraj
(1998) 9 SCC 671, Hon'ble Apex Court
after relying earlier judgment in the case
of Union of India Vs. Parma Nanda
(1989) 2 SCC (L&S), 303 held as under :-

"That it is appropriate to remember
that the power to impose penalty on a
delinquent officer is conferred on the
competent authority either by an Act of
legislature or rules made under the
proviso to Article 309 of the Constitution.
If there has been an enquiry consistent
with the rules and in accordance with
principles
of
natural
justice
what
punishment would meet the ends of
justice is a matter exclusively within the
jurisdiction of the competent authority."

35. In the case of Union of India
Vs. S.S. Ahluwalia,(2007) 7 SCC 257 the
Hon'ble Apex Court had held as under :-

"8.... The scope of judicial review in
the matter of imposition of penalty as a
result of disciplinary proceedings is very
limited. The court can interfere with the
punishment only if it finds the same to be
shockingly disproportionate to the charges
found to be proved."

36. In the case of State of
Meghalaya Vs. Mecken Singh N. Marak,
(2008) 7 SCC 580, the Hon'ble Supreme
Court had held as under :-

"The legal position is fairly well
settled that while exercising the power of
judicial review, the High Court or a
Tribunal
cannot
interfere
with
the
discretion exercise by the disciplinary
authority, and/or on appeal the appellate
authority with regard to the imposition of
punishment unless such discretion suffers
from illegality or material procedural
irregularity or that would shock the
conscience of the court/tribunal. The
exercise of discretion in imposition of
2 All] Head Constable 92 A.P.Madan Pal Singh V. State of U.P. and others
879
punishment by the disciplinary authority
or appellate authority is dependent on host
of factors such as gratuity misconduct,
past conduct, the nature of duties assigned
to the delinquent, responsibility of the
position that the delinquents holds,
previous penalty,if any, and the discipline
required
to
be
maintained
in
the
department or establishment he works.
Ordinarily the court or a tribunal would
not substitute its opinion on reappraisal of
facts."

"Secondly, the Tribunal failed to
notice that the respondent was holding an
important position as Land Reforms
Officer during the relevant period having
been conferred with various powers and
duties under the Regulations. As a Land
Reforms
Officer,
the
respondent
possessed the official authority for grant
of
occupancy
rights
under
the
Regulations. The co-delinquents were
only his subordinates and they carried out
his
instructions.
In
the
facts
and
circumstances, therefore, the respondent
and the two co-delinquents cannot be said
to have been similarly placed."

37. Recently, in the case of
Administrator Union Territory of Dadra
and Nagar Haveli Vs. Gulabhia M. Lad
(2010) 5 SCC 775, the Hon'ble Supreme
Court has held as under :-

"Para 14: The legal position is fairly
well settled that while exercising the power
of judicial review, the High Court or a
Tribunal cannot interfere with the discretion
exercise by the disciplinary authority,
and/or on appeal the appellate authority
with regard to the imposition of punishment
unless such discretion suffers from illegality
or material procedural irregularity or that
would shock the conscience of the
Court/Tribunal. The exercise of discretion
in imposition of punishment by the
disciplinary or appellate authority is
dependent of host of factor such as gravity
of misconduct, past conduct the nature of
duties assigned to delinquent, responsibility
of position that the delinquent holds,
previous penalty, if any, and the discipline
required to maintain in the department or
establishment he works. Ordinarily the
court or Tribunal would not substitute it's
opinion on reappraisal of facts."

38. In view of the above said facts, I
have no hesitation in holding that on the
facts found and conclusions recorded in
the enquiry report, the punishment of
dismissal cannot be said to be not
commensurate
with
the
indiscipline
proved against the petitioner.

39. Further, this Court while
exercising the power of judicial review
under Article 226 of the Constitution of
India does not exercise appellate powers.
It is not intended to take away from
administrative authorities the powers and
discretion properly vested in them by law
and to substitute courts as the bodies
making the decisions. Judicial review is a
protection and not a weapon.

40. In the case of Council of Civil
Service Unions (CCSU) V. Minister for
the Civil Service (1984) 3 ALL ER 935,
Lord Diplock has observed the scope of
judicial review in the following words:-

"Judicial
Review
as
I
think
developed to a stage today when, without
reiterating any analysis of the steps by
which the development has come about,
one can conveniently classify under three
heads
the
grounds
on
which
administrative action is subject to control
880 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

by judicial review. The first ground I
would
call
'illegality'
the
second
'irrationality' and the third 'procedural
impropriety".

41. Moreover, judicial review has
certain inherent limitations. It is suited
more for adjudication of disputes than for
performing administrative functions. It is
for the executive to administer the law
and the function of the judiciary is to
ensure that the Government carries out its
duty in accordance with the provisions of
the rules and statute.

42. In the case of Chief Constable
of the North Wales Police V. Evans,
(1982) 3 ALL ER 141, it was observed by
Lord Hailsham as under:-

"Purpose of judicial review is to
ensure that individual receives
fair
treatment and not to ensure that the
authority, after according fair treatment
reaches on a matter which it is authorized
by law to decide with its conclusion
which is corrected in the eyes of the
Court."

In the same case, Lord Brightman
observed that:-

"Judicial review as the words imply
is not an appeal from a decision but a
review of the manner in which a decision
was made," and held, that "it would be an
error to think that the Court sits in
judgment not only on the correctness of
the decision making process but also on
the correctness of the decision itself."

The aforesaid observations made by
the Lord Hailsham and Lord Brightman
were quoted with approval by their
Lordships of Supreme Court in State of
U.P. V. Dharmendar Prasad Singh, AIR
1989 SC 997, and while upholding that
the judicial review is directed not against
the decision, but is confined to the
examination of the decision making
process, it was held by the Supreme Court
as under:-

"When the issue raised in judicial
review is whether a decision is vitiated by
taking
into
account
irrelevant,
or
neglecting to take into account, relevant
factors or is so manifestly unreasonable
that no reasonable authority entrusted
with the power in question could
reasonable have made such a decision, the
judicial review of the decision making
process includes examination, as a matter
of law, of the relevance of the factors."

43. In the case of Tata Cellular V.
Union of India (1994) 6 SCC 651 the
Supreme Court stated that:-

"Judicial review is concerned with
reviewing not the merits of the decision in
support of which the application for
judicial review is made but the decision
making process itself," and enumerated
some broad grounds upon which an
administrative action is subject to control
by judicial review and classified them
under
the
heading
of
'illegality',
'irrationality' and 'procedural impropriety.'
In
their
supervisory
jurisdiction
as
distinguished form the appellate one, the
Courts do not themselves embark upon
rehearing of the matter but nevertheless
courts will, if called upon, act in a
supervisory capacity and see that the
decision making body acts fairly. If the
decision making body is influenced by
considerations
which
ought
not
to
influence or fails to take into account the
matters which ought to have been taken
2 All] Vinayendra Nath Upadhyay and others V. State of U.P. and others
881
into account the Courts will interfere. If
the decision making body comes to its
decision on no evidence or comes to a
finding so unreasonable that a reasonable
man could not have come to it then again
the Courts will interfere.

Further if the decision making body
goes outside its power or misconstrues the
extent of its power, then too the Courts can
interfere, and if the decision making body
acts in a bad faith or with ulterior object
which it is not authorized by law, its
decision will be set aside in supervisory
jurisdiction. A decision of a public authority
will be liable to be quashed or otherwise
dealt with by appropriate order in judicial
review proceedings, where the Courts
concludes that the decision is such that no
authority properly directing itself on the
relevant law and fact acting reasonably
could have reached it."

44. Thus the decision by the
appropriate authority to grant or not to grant
a particular relief to a person is not open to
Judicial review by the High Court under
Article 226 of the Constitution of India but
the
power
of
judicial
review
is
circumscribed to scrutiny of the decision
making process only and is to be exercised
in the light of the principles laid down
above and applying the said principles to
the facts of the present case, I do not find
any irregularity or infirmity in the impugned
orders.

45. No other point is pressed or
argued before me.

46. Accordingly, the present writ
petition lacks merit and is dismissed.

No order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2010

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE S.C. AGARWAL, J.

Criminal Misc. Writ Petition No. 9873 of 2010

Vinayendra
Nath
Upadhyay
and
others

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

Counsel for the Petitioner:
Sri Rituvendra Singh
Sri A.K. Pandey
Sri Umesh Narain Sharma
Sri V.P. Srivastava
Sri G.S.Chaturvedi

Counsel for the Respondent:
Sri A.K.Sand (A.G.A.)
Sri Vikas Sahai (A.G. A.)

Constitution of India Art. 226-Power of
writ court-single judge dealing with
embezzlement of G.P.F. Amount with
collusion
of
authorities
as
well
as
concern management of college-given
those un-desirable persons by preparing
forged record-Court expressed its great
concern-directed to lodge FIR against
those guilty persons-consequently FIR
lodged
by
competent
authority-from
allegation of FIR and other material on
record-prim-faci-cognizable
offence
disclose -no interference called farappeal dismissed.

Held Para 49

In view of the aforesaid it cannot be said
that the First Information Report and
other material on record does not
disclose any cognizable offence, and that
any ground exists either for questioning
the investigation or for staying the
arrests of any of the petitioners. We