# Jang Bahadur Singh v. U.P. Public Service Tribunal, Lucknow and others

- **Citation:** (2004) 1 ILRA 66
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-10-13
- **Case number:** Civil Misc. Writ Petition No.14829 of 2000
- **Bench:** A.K. Yog, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jang-bahadur-singh-v-u-p-public-service-tribunal-lucknow-and-others-40283
- **Pages:** 6

## Headnote

Constitution of India, Article 226-Service
Law-departmental
proceedings-should
not normally be interfered-grounds of
interference-identified.

Held- Paras 8 and 12

In the light of the aforesaid observation
of the Supreme Court, it is quite obvious
that the High Court has no power to
appreciate the evidence and reach its
own contra conclusions. The interference
of the Court under Article 226 of the
Constitution of India is possible only if it
is found that the proceedings against the
delinquent have been held in a manner
inconsistent with the Rules of natural
justice or in violation of statutory Rules
prescribing the mode of inquiry or where
the conclusions or findings recorded by
the authority is based on no evidence.

It is a settled view enunciated in several
Judgments of the Supreme Court that in
departmental proceedings, insofar as
imposition of penalty or punishment is
concerned, unless the punishment or
penalty imposed by the disciplinary or
appellate
authority
is
either
impermissible or such that it shocks the
conscience of the Court, it should not
normally
be
interfered
with
or
substituted by its own opinion and either
impose
some
other
punishment
or
penalty or direct the authority to impose
a
particular
nature
or
category
of
punishment of its choice. This view finds
formation in the case law of The
Regional
Manager
&
Disciplinary
Authority,
State
Bank
of
India,
Hyderabad
and
another
Vs.
S.
Mohammad Gaffar reported in J.T. 2002
(6) S.C., page 157.
Case law discussed:
AIR 1994 SC 215
1999 (f) Service Law Reporter 528
1996 (i)SSC page 82 (All)
JT 1995 (8) SC 65
JT 2002 (6) SC 157

## Text

http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
66
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No.14829 of 2000

Jang Bahadur Singh

...Petitioner
Versus
U.P. Public Service Tribunal, Lucknow
and others

 ...Respondents

Counsel for the Petitioner:
Sri N.L. Srivastava

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Service
Law-departmental
proceedings-should
not normally be interfered-grounds of
interference-identified.

Held- Paras 8 and 12

In the light of the aforesaid observation
of the Supreme Court, it is quite obvious
that the High Court has no power to
appreciate the evidence and reach its
own contra conclusions. The interference
of the Court under Article 226 of the
Constitution of India is possible only if it
is found that the proceedings against the
delinquent have been held in a manner
inconsistent with the Rules of natural
justice or in violation of statutory Rules
prescribing the mode of inquiry or where
the conclusions or findings recorded by
the authority is based on no evidence.

It is a settled view enunciated in several
Judgments of the Supreme Court that in
departmental proceedings, insofar as
imposition of penalty or punishment is
concerned, unless the punishment or
penalty imposed by the disciplinary or
appellate
authority
is
either
impermissible or such that it shocks the
conscience of the Court, it should not
normally
be
interfered
with
or
substituted by its own opinion and either
impose
some
other
punishment
or
penalty or direct the authority to impose
a
particular
nature
or
category
of
punishment of its choice. This view finds
formation in the case law of The
Regional
Manager
&
Disciplinary
Authority,
State
Bank
of
India,
Hyderabad
and
another
Vs.
S.
Mohammad Gaffar reported in J.T. 2002
(6) S.C., page 157.
Case law discussed:
AIR 1994 SC 215
1999 (f) Service Law Reporter 528
1996 (i)SSC page 82 (All)
JT 1995 (8) SC 65
JT 2002 (6) SC 157

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. The petitioner, a constable in
Civil Police, has challenged the impugned
orders dated 22.5.1992 (Annexure-17)
and 31.8.1992 (Annexure-18), passed by
respondents
no.
4
&
3
(Senior
Superintendent of Police, Agra and
Deputy Inspector General of Police, Agra
Range
respectively)
and
also
the
Judgment and Order dated 17.1.2000
(Annexure-19) passed by respondent no.1,
U.P. Public Service Tribunal Under
Article 226 of the Constitution of India
and has prayed for issuance of a writ in
the nature of certiorari to quash the same.

2. In short facts of the case disclosed
in the petition are that the petitioner in the
year 1987 was transferred from district
Allahabad to district Agra. While posted
at Agra, he took ten day's casual leaver
on 5.7.1990 to come to his village in
district Varanasi to see his ailing wife. He
had to report back on duty at Agra on
17.7.1990, but he made request for
extension of leave and could join the
duties at the Police Lines, Agra on
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67
22.8.1990. Thereafter on 18.9.1990, he
applied and took casual leave of 14 days
with effect from 19.9.1990 for coming to
his village to see his ailing mother. As
disclosed in para-6 of the petition, the
petitioner on this occasion also extended
his leave on account of his own illness
and could join his duties at Agra only on
1.9.1991
after
about
ten
months.
Thereafter on 14.1.1992, he took earned
leave of seven days and came to his
village home where he stayed till the date
when his services were dismissed by the
impugned order after the disciplinary
inquiry, passed by respondent no.4,
Senior Superintendent of Police, Agra. It
is stated in para-7 of the petition that after
he came to his village on seven days
earned leave, he sustained fracture of his
leg bone and that made him confined to
bed. Meanwhile, he received charge sheet
dated 25.1.1992. In the disciplinary
inquiry under Section 7 of the Police Act,
he was asked to explain those charges
which pertained to his unauthorised
absence from duty for 36 days, i.e., from
16.7.1990 to 22.8.1990 and 324 days, i.e.,
from
4.10.1990
to
1.9.1991.
The
petitioner has further contended that he
could not submit his reply to the charge
sheet on account of his confinement to
bed and he had been seeking time to
submit the same through different request
letters sent to the Inquiry Officer,
respondent no.5. Meanwhile, he received
letters dated 9.2.1992, 18.2.1992 and
13.3.1992 (Annexures-7, 9 & 11) from
the Inquiry Officer reminding him to
submit his explanation and to present his
defence at the inquiry, which, in case of
his failure, could proceed ex parte. He
thereafter received a show cause notice
dated 16.4.1992 (Annexure-13) from
respondent no.4 directing him to show
cause within eight days before the
punishing
authority
(Senior
Superintendent of Police, Agra). To this
show cause also, as stated in para 17 of
the petition, the petitioner by sending a
letter expressed his inability to appear and
explain on account of his illness.
Thereafter on 30.5.1992, the petitioner
received his order of dismissal dated
22.5.1992 (Annexure 17). After receipt of
this dismissal order, the petitioner filed
appeal which was also dismissed by the
impugned
order
dated
31.8.1992
(Annexure 18) of respondent no. 3,
Deputy Inspector General of Police, Agra
Range.

3. It is contended that the petitioner
could not attend to the inquiry instituted
against him on account of his illness and
he was deprived of opportunity of making
his defence before the Inquiry Officer.
There is violation of principle of natural
justice committed by respondent no. 4.
The punishment of dismissal from service
is extremely disproportionate to the
misconduct with which the delinquent
was charged. While dealing with the
claim petition of the delinquent, the
respondent no. 1, U.P. Public Service
Tribunal did not consider all these points
and the claim petition was dismissed.

4. The aforesaid petition has been
contested and counter affidavit has been
filed on behalf of respondent nos. 2 to 5.
It is contended in the counter affidavit
that the impugned orders including the
judgment of the Tribunal have been
passed on justified grounds and they do
not call for any interference. The
petitioner had not sustained such injury,
which could make him so serious as to
call for his complete confinement to bed
for such a long period. The entire efforts
of the petitioner have been towards
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
68
avoiding the disciplinary proceedings. He
was given sufficient opportunity and was
afforded every possible occasion to
present his defence and meet the inquiry,
but he deliberately avoided and did not
participate. The whole conduct of inquiry
and findings recorded against him by
Inquiry Officer and the consequent order
of
the
punishment
passed
by
the
punishing authority are fully justified.

5. In reply to the counter affidavit,
the petitioner also filed rejoinder affidavit.
While reiterating the contentions made in
the petition, it has been again disputed by
the petitioner that he deliberately avoided
participation
in
the
disciplinary
proceedings.

6. We have heard the learned
counsel for the parties at length and have
also perused the records of the case.

Learned counsel for the petitioner
has contended that the disciplinary
inquiry proceedings under Section 7 of
the Police Act against the petitioner have
been done behind his back and, therefore,
there is complete violation of principle of
natural justice as no opportunity to meet
the charges have been afforded to the
delinquent. In this context, it is noticeable
that the petitioner himself admits the
service of charge sheet upon him and has
stated in the petition that he could not go
to attend to the inquiry in spite of the
reminders
of
the
Inquiry
Officer
(Annexure-7, 9 & 11) which had been
received
by
him
through
special
messenger asking him to appear before
the
Inquiry
Officer
to
submit
his
reply/defence and to cross examine the
witnesses who were to be produced from
the side of prosecution. In this context the
excuses which have been taken by the
petitioner in the petition are that he could
not go to attend to the proceedings of
inquiry because of his illness and
consequent confinement to bed. In the
impugned report of inquiry as well as in
the punishment order, it is not mentioned
that any justification or excuse was ever
advanced by the petitioner to the Inquiry
Officer for his absence or for not
submitting his explanation to the charges
served upon him. The appellate order
passed by the Deputy Inspector General
of Police, Agra Range (Annexure-18)
shows that the petitioner, if at all, was ill
and confined to his bed it was incumbent
upon him under the provision of Police
Regulation that he should have attended
the local police hospital of the district and
he should have sent the information of his
illness and the ongoing treatment through
the Superintendent of Police of that
district to the Senior Superintendent of
Police, Agra. It is also clear from the said
appellate order that no document was
made available by the petitioner to the
office of Senior Superintendent of Police,
respondent no.4 about the cause of his
non
appearance
before
the
inquiry
proceedings, which had to be ultimately
concluded in absentia. It was in the back
ground of aforesaid facts that the Tribunal
vide
its
impugned
judgment
dated
17.1.2000 (Annexure-11) has recorded the
findings that the petitioner failed to
submit any medical certificate during
entire proceedings of inquiry to show that
he was actually down with fracture of his
leg at his village home/hospital and he
was thus deprived of presenting his
defence before the Inquiry Officer or
before the punishing authority.

7. Since the impugned order of
punishment and that of the appellate
authority have recorded factual findings
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about the absence of the petitioner at the
inquiry leading the Inquiry Officer to
conclude it ex parte, we are constrained to
hold that acting in writ jurisdiction, it
would not be proper to reverse those
factual
findings
recorded
by
the
departmental authorities or the Tribunal.
In this context the case law of Union of
India and another Vs. B.C. Chaturvedi,
J.T., 1995 (8) S.C. page 65 has been
relied upon from the side of the
respondents. The Apex Court has laid
down the following principles :-

"Judicial review is not an appeal
from a decision but a review of the
matter in which the decision is made.
Power of judicial review is meant to
ensure that the individual receives fair
treatment and not to ensure that the
conclusion which the authority reaches
is necessarily correct in the eye of the
court. When an inquiry is conducted on
charges of misconduct by a public
servant, the Court/Tribunal is concerned
to determine whether the inquiry was
held by a competent officer or whether
rules of natural justice are complied
with.
Whether
the
findings
or
conclusions are based on some evidence,
the authority entrusted with the power to
hold inquiry has jurisdiction, power and
authority to reach a finding of fact or
conclusion. But that finding must be
based on some evidence. Neither the
technical rules of Evidence Act nor of
proof of fact or evidence as defined
therein, apply to disciplinary proceeding.
When the authority accepts that evidence
and
conclusion
receives
support
therefrom, the disciplinary authority is
entitled to hold that the delinquent
officer is guilty of the charge. The
Court/Tribunal in its power of judicial
review does not act as appellate authority
to re-appreciate the evidence and to
arrive at its own independent findings on
the evidence. The Court/Tribunal may
interfere where the authority held the
proceedings
against
the
delinquent
officer in a manner inconsistent with the
rules of natural justice or in violation of
statutory rules prescribing the mode of
inquiry or where the conclusion or
finding reached by the disciplinary
authority is based on no evidence. If the
conclusion or finding be such as no
reasonable person would have ever
reached,
the
Court/Tribunal
may
interfere with the conclusion or the
finding, and mould the relief so as to
make it appropriate to the facts of each
case.
The disciplinary authority is the sole
judge
of
facts.
Where
appeal
is
presented, the appellate authority has
coextensive power to re-appreciate the
evidence or the nature of punishment. In
a disciplinary inquiry the strict proof of
legal evidence and findings on that
evidence are not relevant. Adequacy of
evidence or reliability of evidence cannot
be permitted to be canvassed before the
Court/Tribunal."

8. In the light of the aforesaid
observation of the Supreme Court, it is
quite obvious that the High Court has no
power to appreciate the evidence and
reach its own contra conclusions. The
interference of the Court under Article
226 of the Constitution of India is
possible only if it is found that the
proceedings against the delinquent have
been held in a manner inconsistent with
the Rules of natural justice or in violation
of statutory Rules prescribing the mode of
inquiry or where the conclusions or
findings recorded by the authority is
based on no evidence.
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9. In the present case, the
proceedings of the inquiry and final
pronouncement
of
the
award
of
punishment if have been made ex parte,
the reasons for the same recorded in those
impugned orders and findings cannot be
further scrutinized on facts by us.
Therefore, the contention of the petitioner
that he was not afforded opportunity to
present his defence in the inquiry and
present
his
explanation
before
the
punishing authority, has absolutely no
strength.

10. The learned counsel for the
petitioner relying upon the case law of
Union of India and others Vs. Giriraj
Sharma A.I.R. 1994 S.C. page 215,
Chiranji Lal Vs. The Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Gurgaon 1999 (7) Services Law Reporter
page 528 and Messrs Jai Maakali
Aluminum Metal Works, Agra Vs. Sri
Tilak Raj and others reported in 1996 (1)
E. S. C. page 82 (All.) has contended that
the punishment of dismissal awarded to
the
petitioner
was
shockingly
disproportionate and the authorities were
not
justified
in
awarding
such
punishment. This Court under Article 226
of the Constitution of India, would be
fully justified in interfering the quantum
of punishment.

11. As we have seen the charges for
which the petitioner has been tried, he
being a member of disciplined force, is
said to have unauthorisedly absented from
duty on two occasions. Once from
16.7.1990 to 22.8.1990 for 36 days and
then on a subsequent occasion from
4.10.1990 to 1.9.1991 for 324 days. These
charges are said to have been fully
established against the petitioner. As a
member of police force, the petitioner is
supposed to maintain the standards of
discipline and if he does not stick to the
strict discipline and absents himself
without obtaining prior sanction from the
authorities, it would definitely constitute a
misconduct
of
grievous
in
nature
warranting his dismissal from service.
The misconduct has not a precise
definition of its own. Its reflection receive
its connotation from the context, the
delinquency in its performance and its
effect on the discipline and the nature of
duty. Such misconduct may involve
improper or wrong behaviour, forbidden
act, a transgression of established and
definite rule of action or code of conduct.
The police service is obviously a
disciplined service and it requires to
maintain strict standard of such discipline.
Laxity in this behalf erodes established
norms of the service causing serious
effects in the maintenance of law and
order.

12. It is a settled view enunciated in
several Judgments of the Supreme Court
that in departmental proceedings, insofar
as imposition of penalty or punishment is
concerned, unless the punishment or
penalty imposed by the disciplinary or
appellate authority is either impermissible
or such that it shocks the conscience of
the Court, it should not normally be
interfered with or substituted by its own
opinion and either impose some other
punishment or penalty or direct the
authority to impose a particular nature or
category of punishment of its choice. This
view finds formation in the case law of
The Regional Manager & Disciplinary
Authority,
State
Bank
of
India,
Hyderabad
and
another
Vs.
S.
Mohammad Gaffar reported in J.T. 2002
(6) S.C., page 157.
http:\\allahabadhighcourt.nic.in
1 All] M/s Raebareli Flour Mills Pvt. Ltd. V. State of U.P. and others
71
13. In B.C. Chaturvedi's case
(supra) also the Hon'ble Apex Court in its
majority view has held as below: -

"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
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."

14. Since the long unjustified
absence of the petitioner from duty on
two occasions as detailed above, have
been found by the disciplinary authorities
as misconduct of very grave nature, we,
while sitting in writ jurisdiction do not
feel inclined to interfere with the quantum
of punishment awarded to him in the
present matter.

15. In the aforesaid view of the
matter, the impugned orders of the
disciplinary authorities (Annexures-17 &
18) and the Judgment of respondent no.1
(Annexure-19) confirming the inquiry
report
and
consequent
award
of
punishment against the petitioner, do not
warrant any interference in the present
writ petition, which must fail for want of
merits.

The petition is hereby dismissed with
no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.9.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No.1059 of 1987

M/s Raebareli Flour Mills Pvt. Ltd.

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

Counsel for the Petitioner:
Sri Bharatji Agarwal

Counsel for the Respondents:
S.C.

U.P. Trade Tax, Section 4 A-petitioner a
company-claiming exemption of sales
tax-given to new units- on basis of a
G.O.-whether trial production amounts
to actual date of production- held, no.

Held- Para 10 & 11

In para-14 of the counter affidavit, it is
stated that application under Section 4-A
was rejected because the petitioner was
not found to be a new unit as defined in
the relevant definition in Section 4-A.
Among the condition of eligibility for
exemption was the condition that the
unit started production on or after
1.10.1982. It is alleged that since the
production
was
started
before
1.10.1982, the petitioner was not eligible