# Keshav Das Head Constable PNO842580177 v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 767
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-14
- **Case number:** Writ - A No. 3031 of 2021
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/keshav-das-head-constable-pno842580177-v-state-of-u-p-ors-50904
- **Pages:** 11

## Headnote

A. Service Law - Disciplinary Proceedings
- Procedural Irregularities - Petitioner, a
Head Constable, challenged his dismissal from
service
for
alleged
robbery,
arguing
procedural lapses in the disciplinary process
- Held, the disciplinary authority's reliance
on
a
preliminary
enquiry
to
justify
punishment, despite the enquiry officer's
finding that charges were not proved, was
untenable - Issuance of a second show
cause notice (10.06.2019) proposing a
harsher
penalty
(dismissal)
without
statutory backing under Rule 14 of the U.P.
Police
Officers
of
Subordinate
Rank
(Punishment and Appeal) Rules, 1991, and
without reasoned disagreement with the
enquiry
report,
rendered
the
process
arbitrary
-
Dismissal
order
dated
19.03.2020 and appellate/revisional orders
(20.08.2020,
30.12.2020)
quashed
for
violating procedural fairness. (Paras 14, 16,
17, 19, 20, 22, 32)
B. Service Law - Departmental Enquiry Vs
Criminal Trial - Impact of Acquittal -
Charges in the departmental enquiry mirrored
those in a criminal case (robbery under Section
392, 120B IPC), relying on the same evidence
and witnesses - Petitioner was acquitted in the
criminal trial (31.07.2023) with the court
disbelieving the complainant's evidence and
initiating proceedings under Section 344 Cr.P.C.
for false testimony - Held, where charges,
evidence, and witnesses are identical, and the
criminal court finds the prosecution's case
disproved,
allowing
contrary
findings
in
departmental
proceedings
is
unjust
and
oppressive, as per *G.M. Tank Vs St. of
Gujarat* - Enquiry officer's finding of unproven
charges further invalidated the disciplinary
authority's decision to impose punishment.
(Paras 7, 14, 18, 26, 28, 30)

C. Service Law - Scope of Judicial Review
- Disciplinary Proceedings - Courts under
Article 226 do not reappreciate evidence but can
intervene
if
the
disciplinary
process
is
procedurally flawed or arbitrary - Held, the
enquiry officer's recommendation of punishment
(reversion to basic pay) despite unproven
charges, and the disciplinary authority's reliance
on a preliminary enquiry without independent
reasons, constituted arbitrary exercise of
discretion
-
The
absence
of
statutory
provision for a second show cause notice to
escalate punishment, coupled with mechanical
affirmation by appellate/revisional authorities,
warranted interference - Matter remitted to
the disciplinary authority for reconsideration
based on the enquiry report. (Paras 10, 19,
23, 32, 34)

Writ Petition Allowed - Dismissal Order,
Appellate/Revisional Orders, and Show
Cause Notices Quashed - Matter Remitted
for Reconsideration.

List of Cases cited:

## Text

2 All. Keshav Das Head Constable PNO-842580177 Vs. State of U.P. & Ors.
767

20. Let this order be communicated to
the Director of Education (Secondary)
Prayagraj, U.P. by Registrar (Compliance)
within a week.
----------
(2024) 2 ILRA 767
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ - A No. 3031 of 2021

Keshav
Das
Head
Constable
PNO842580177 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Maurya, Sri Manish Kumar
Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary Proceedings
- Procedural Irregularities - Petitioner, a
Head Constable, challenged his dismissal from
service
for
alleged
robbery,
arguing
procedural lapses in the disciplinary process
- Held, the disciplinary authority's reliance
on
a
preliminary
enquiry
to
justify
punishment, despite the enquiry officer's
finding that charges were not proved, was
untenable - Issuance of a second show
cause notice (10.06.2019) proposing a
harsher
penalty
(dismissal)
without
statutory backing under Rule 14 of the U.P.
Police
Officers
of
Subordinate
Rank
(Punishment and Appeal) Rules, 1991, and
without reasoned disagreement with the
enquiry
report,
rendered
the
process
arbitrary
-
Dismissal
order
dated
19.03.2020 and appellate/revisional orders
(20.08.2020,
30.12.2020)
quashed
for
violating procedural fairness. (Paras 14, 16,
17, 19, 20, 22, 32)
B. Service Law - Departmental Enquiry Vs
Criminal Trial - Impact of Acquittal -
Charges in the departmental enquiry mirrored
those in a criminal case (robbery under Section
392, 120B IPC), relying on the same evidence
and witnesses - Petitioner was acquitted in the
criminal trial (31.07.2023) with the court
disbelieving the complainant's evidence and
initiating proceedings under Section 344 Cr.P.C.
for false testimony - Held, where charges,
evidence, and witnesses are identical, and the
criminal court finds the prosecution's case
disproved,
allowing
contrary
findings
in
departmental
proceedings
is
unjust
and
oppressive, as per *G.M. Tank Vs St. of
Gujarat* - Enquiry officer's finding of unproven
charges further invalidated the disciplinary
authority's decision to impose punishment.
(Paras 7, 14, 18, 26, 28, 30)

C. Service Law - Scope of Judicial Review
- Disciplinary Proceedings - Courts under
Article 226 do not reappreciate evidence but can
intervene
if
the
disciplinary
process
is
procedurally flawed or arbitrary - Held, the
enquiry officer's recommendation of punishment
(reversion to basic pay) despite unproven
charges, and the disciplinary authority's reliance
on a preliminary enquiry without independent
reasons, constituted arbitrary exercise of
discretion
-
The
absence
of
statutory
provision for a second show cause notice to
escalate punishment, coupled with mechanical
affirmation by appellate/revisional authorities,
warranted interference - Matter remitted to
the disciplinary authority for reconsideration
based on the enquiry report. (Paras 10, 19,
23, 32, 34)

Writ Petition Allowed - Dismissal Order,
Appellate/Revisional Orders, and Show
Cause Notices Quashed - Matter Remitted
for Reconsideration.

List of Cases cited:

1. U.O.I. & ors. Vs Subrata Nath, Civil Appeal
Nos.
7939-7940
of
2022
(decided
on
23.11.2022)

2. St. of U.P. Vs Kharak Singh, (2008) 8 SCC
236
768 INDIAN LAW REPORTS ALLAHABAD SERIES
3. G.M. Tank Vs St. of Gujarat & ors., (2006) 5
SCC 446

4. State Bank of Hyderabad & anr. Vs P. Kata
Rao, (2008) 15 SCC 657

5. Ram Lal Vs St. of Raj. & ors., Civil Appeal No.
7935 of 2023 (decided on 04.12.2023)

6. State Bank of India Vs A.G.D. Reddy, (2023)
11 Scale 530

7.
United
Bank
of
India
Vs
Biswanath
Bhattacharjee, (2022) 13 SCC 329

8. Deputy Inspector General of Police Vs S.
Samuthiram, (2013) 1 SCC 598

9. Vijayee Singh Vs St. of U.P., (1990) 3 SCC
190

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

1. Heard Sri Sanjay Maurya, learned
counsel
for
the
petitioner
and
Sri
P.K.Srivastava, learned Additional Chief
Standing Counsel for the Stat respondents. .

2. The petitioner is aggrieved by the
order of disciplinary authority imposing
major penalty of dismissal from service
vide order dated 19th March, 2020 and
appellate order dated 20th August, 2020.

3. It is submitted that on the point of
findings returned in the enquiry officer's
report bringing home the charge against the
petitioner regarding alleged incident where
one Kanhaiya Lal was robbed by the
petitioner of Rs. 4 lacs and odd that he was
carrying in pocket. Except for the statement
of his friend, namely Bobby @ Gopal
Sharma who accompanied him, there was
no other evidence available to the enquiry
officer, intrinsic enough, on the touchstone
of
principles
of
preponderance
of
probability, to hold petitioner guilty of the
charge.

4. It is next submitted that charges the
were levelled against petitioner were same
as alleged in the first information report
lodged by the victim Kanhaiya Lal five
days after the alleged incident.

5. It is also submitted that except the
statment of Kanhaya Lal , the main victim
and Gopal Sharma his friend no other
statement got recorded by the Inquiry
Officer so as to corroborate charge leveled
in the chargesheet, inasmuch as Gopal
Sharma showed his innocence regarding
alleged loot conducted upon complainant
Kanhiya Lal for a specific sum of Rs. 4 lacs
and odd.

6. Besides above, the argument
advanced by learned counsel for the
petitioner is that second show cause notice
that was issued on 30.12.2018 based upon
the enquiry report, was in respect of
proposed punishment for reverting the
petitioner to the basic pay of the pay-scale
as admissible to the post of constable. The
petitioner did question the enquiry report,
but his reply was keeping in mind the
proposed punishment, however, instead of
awarding punishment of reversion, a harsh
penalty of termination from service has got
awarded by the disciplinary authority,
which according to him is an arbitrary
exercise of power that too without
assigning any special reason as to why the
authority acted contrary to its earlier show
cause notice. He submits that there was no
further show cause notice issued to him for
change in the proposed punishment and
departmental appeal was decided in a
routine manner affirming the decision of
the
disciplinary
authority
without
considering this aspect of the matter.

7. Learned Advocate appearing for
the petitioner has further argued before this
2 All. Keshav Das Head Constable PNO-842580177 Vs. State of U.P. & Ors.
769
Court that since charge levelled in the
departmental enqury was based upon the
allegations made in the first information
report, the departmental enquiry ought to
have awaited for the outcome of the
criminal trial but instead, it proceeded on
its own relying upon the statements of
those very persons whose testimony was to
be recorded in the criminal trial. He
submits that the trial court virtually
disbelieved the statements made as it did
not find there to be sufficient evidence in
support of charge, and thus gave him a
clean chit by acquitting him in the criminal
case vide final judgment and order dated
31st July, 2023 and even directed for
proceeding against Nagesh @ Kanhaiya ,
the main complainant to be proceeded with
under Section 344 of the Cr.P.C., 1973.

8. Learned Standing Counsel on the
contrary has argued that merely because
accused has been acquitted in criminal trial,
he could not be said to deserve automatic
exoneration in the departmental enquiry as
well. He submits that principle that
evidence be such that guilt is proved to the
hilt as required in criminal law, is not
attracted in the disciplinary proceedings
and enquiry officer is not required to
go for such a sound and strict proof
of evidence. He submits that the
principle
of
'preponderance
of
probability' is the guiding principle
in matters of departmental enquiry
and enquiry officer after evaluating
and appreciating evidence before it,
can conclude that charges were made
out to hold delinquent employee
guilty.

9. Learned Additional Chief Standing
Counsel has cited many authorities on the
point of interference by this Court in matter
of disciplinary proceedings.

10. Having heard learned counsel for
the respective parties and their arguments
raised across the bar and having perused
the records, I find there to be no quarrel
regading scope of interference in the matter
of departmental enquiry but the issue is
whether prescribed procedure has been
followed or not. The law is also well
settled that while exercising jurisdiction
under Article 226 of the Constitution of this
Court
would
not
ordinarily
go
for
appreciation of evidence recorded by
enquiry officer and wherever the question
arises as to evaluation/appreciation and
assessment of evidence it will not be done
by either court or tribunal. This Court will
certainly not act like an appellate authority
to form a different view by reappreciating
evidence. The enquiry officer of course,
would
be
examining
only
evidence
produced before it and the statement of
witnesses. While it is true that the
departmental enquiry could have been
deferred in view of regulations 498 of of
the U.P. Police Regulation to wait for the
outcome of criminal trial but in case if
departmental enquiry has proceeded with, it
cannot be said to be bad on this count
alone. Very recently the Supreme Court in
the case of Union of India and Others v.
Subrata Nath (Civil Appeal Nos. 79397940 of 2022) decided on 23.11.2022 has
taken this view and speaking for bench,
Justice Hima Kohli summed up legal
position as under:

"22. To sum up the legal position,
being fact finding authorities, both the
Disciplinary Authority and the Appellate
Authority are vested with the exclusive
power to examine the evidence forming
part of the inquiry report. On finding the
evidence to be adequate and reliable
during the departmental inquiry, the
Disciplinary Authority has the discretion to
770 INDIAN LAW REPORTS ALLAHABAD SERIES
impose appropriate punishment on the
delinquent employee keeping in mind the
gravity of the misconduct. However, in
exercise of powers of judicial review, the
High Court or for that matter, the Tribunal
cannot
ordinarily
reappreciate
the
evidence to arrive at its own conclusion in
respect of the penalty imposed unless and
until the punishment imposed is so
disproportionate to the offence that it
would shock the conscience of the High
Court/Tribunal or is found to be flawed for
other reasons, as enumerated in P.
Gunasekaran (supra). If the punishment
imposed on the delinquent employee is such
that shocks the conscience of the High
Court
or
the
Tribunal,
then
the
Disciplinary/Appellate Authority may be
called upon to re-consider the penalty
imposed.
Only
in
exceptional
circumstances,
which
need
to
be
mentioned, should the High Court/Tribunal
decide to impose appropriate punishment
by itself, on offering cogent reasons
therefor."

11. Thus in the event findings are not
perverse, only area open for interference
would be where issue is relating to
procedure whether followed or not during
departmental enquiry and in the process of
finalization of a disciplinary proceeding.

12. Supreme Court in the case of
State of U.P. v. Kharak Singh (2008) 8
SCC 236 vide paragraphs 18 and 19 have
held thus:

"18) Another infirmity in the
report of the enquiry officer is that he
concluded the enquiry holding that all the
charges
have
been
proved
and
he
recommended
for
dismissal
of
the
delinquent
from
service.
The
last
paragraph of his report dated 16.11.1985
reads as under:-

"During the course of above
inquiry, such facts have come into light
from which it is proved that the employee
who has doubtful character and does not
obey the order, does not have the right to
continue in the government service and it is
recommended to dismiss him from the
service with immediate effect."(emphasis
supplied)

Though there is no specific bar in
offering views by the enquiry officer, in the
case on hand, the enquiry officer exceeded
his limit by saying that the officer has no
right to continue in the government service
and he has to be dismissed from service
with immediate effect.

19). As pointed out above,
awarding appropriate punishment is the
exclusive jurisdiction of the punishing
/disciplinary authority and it depends upon
the nature and gravity of the proved
charge/charges
and
other
attended
circumstances. It is clear from the
materials, the officer, who inspected and
noted the shortfall of trees, himself
conducted the enquiry, arrived at a
conclusion holding the charges proved and
also
strongly
recommended
severe
punishment of dismissal from service. The
entire action and the course adopted by the
enquiry officer cannot be accepted and is
contrary to the well-known principles
enunciated by this Court."

13. Thus the enquiry officer could not
have proposed a punishment and, so to that
extent, enquiry report is liable to be held
bad.

14. Now coming to the enquiry report
on the question of guilt being proved, I find
that enquiry report was sought in respect of
the charges that were levelled in the
2 All. Keshav Das Head Constable PNO-842580177 Vs. State of U.P. & Ors.
771
chargesheet, which was based upon the
same allegations as contained in the first
information report regarding robbering of
Kanhaiya Lal Mishra for Rs. 4,25,000/- on
the fateful day i.e. 17.12.2016. Besides the
fact that petitioner stood finally acquitted in
the criminal trial in the matter of offence
punishable under Section 392 and 120B of
IPC in connection with criminal case no.
422 of 2016, I find that in the departmental
enquiry as charges were not proved. After
holding detailed deliberation upon charges
and the oral statements recorded by the
enquiry officer during course of the
enquiry, the enquiry report categorically
records
that
the
statements
of
the
departmental
witnesses
and
charged
constables that they gave in their defence,
nothing intrinsic as concrete and relevant
facts has come out from which it can be
held that charged officials were guilty of
the charges. The finding part of the enquiry
report is reproduced hereunder:

"निर्ागीय
कायदिािी
के
मध्य
अनर्योजन पक्ष के बयानात एिीं आरोपीगण
आरनक्षयोीं द्वारा अपने बचाि पक्ष के सानक्षयोीं से
नजरि में नकये गये प्रश्नोत्तर से कोई निशेष एिीं
ऐसा ठोस/ लार्दायक तथ् दृनिगोचर निी हुआ
िै, नजससे स्पि िो सके नक आरोपीगण
मु०आ०प्रो०/ आरक्षीगण के उक्त कृत्य के
अनुकूल िो।"

15. From further reading of the
enquiry
report,
I
find
that
in
the
penultimate paragraph of the report , the
enquiry officer has simply referred to the
various dates when the first information
report was got registered, when the varies
of registration of the first information
report, arrest of the delinquent employee
and then his release and consequential
absence from the duty. Further in the
concluding part of the enquiry report which
is final finding which can be said instead of
holding the petitioner to be guilty of
charges, the only opinion has been
expressed by the enquiry officer that
petitioner deserved to be reverted to the
basic pay on the admissible post for three
years and no payment of salary for the
period they had remained absent from the
duty on the principle of 'no work no pay'.
The relevant conclusion part of the enquiry
report is reproduced hereunder:

"ननष्कषदैंः-

इस
प्रकार
सम्पूणद
निर्ागीय
कायदिािी से म पीठासीन अनधकारी आरोपी
आरक्षीगण 1. आरक्षी चालक 030680946
मुकेश कुमार, यूपी 100 जनपद आगरा, 2.
आरक्षी 2778/112623050 र्ानूप्रताप नसींि
पुनलस
लाइन्स
आगरा
3.
एचसी
340/842580177 केशि देि पतदमान ननयुक्तक्त
थाना टूण्डला, जनपद नफरोजाबाद, 4. आरक्षी
चालक 065020035 अशोक कुमार, यूपी 100
आगरा, िाल मथुरा को उ०प्र० अधीनस्थ श्रेणी के
अराजपनत्रत पुनलस अनधकाररयोीं/कमदचाररयोीं की
(दण्ड एिीं अपील) ननयमािली 1991 के ननयम
14 के उपननयम 4 में िनणदत दीर्द शक्तक्तयोीं के
अनुरूप 03 िषद के नलए ननम्नतर िेतनमान पर
अिनत करने एिीं िे० काीं० 340 केशि देि
नदनाींक 22.12.16 से 22 नदिस 21 र्ण्टा, (कुल
23 नदिस) आरक्षी 2778 र्ानु प्रताप नसींि
नदनाींक 22.12.16 से 26 नदन 01 र्ण्टा 40 नमनट
(कुल
27
नदिस)
तथा
आरक्षी
चालक
065020035 अशोक कुमार नदनाींक 23.12.16 से
89 नदिस 06 र्ण्टा 30 नमनट (कुल 90 नदिस)
गैर िानजर िोने के 'काम निी तो दाम निी' के
नसर्द्ान्त पर नबना िेतन अिकाश स्वीकृत नकये
जाने का दण्ड प्रस्तानित करता हूँ।"

16. Thus, it is very much clear that
charges could not be brought home by the
enquiry officer, however agreeing with
772 INDIAN LAW REPORTS ALLAHABAD SERIES
recommendation made by the enquiry
officer in his report for the punishment, the
said punishment in the nature of reversion
of three years to the basic pay of post was
agreeing by the disciplinary authority and
accordingly show cause notice was issued.
Reason
to
agreeing
with
proposed
punishment of enquiry officer has been
disclosed to be the findings arrived in the
preliminary enquiry report held in the
matter prior to issuance of chargesheet.
Even though, the petitioner submitted his
reply to the show cause notice which was
detailed reply, however in one line, it was
held to be not satisfactory and the
disciplinary authority has proceeded to
refuse punishment by decision taken on
10.06.2019 on same day show cause notice
was issued to which again petitioner had
replied and then reply was rejected and
final punishment dismissal from service
was ordered on 19th March, 2020.

17. Looking to the finding part of the
enquiry report, I am not able to sustain the
show cause notice not only the subsequent
one but even the earlier one. Once findings
could not bring home the charges in the
final enquiry report, the disciplinary
authority could have ordered either for
fresh enquiry or it could have recorded the
reasons to disagree with report, but
disagreeing with report on the ground that
there was preliminary enquiry holding
petitioner guilty is absolutely untenable.
Preliminary fact finding enquiry is always a
summary enquiry which lays basis for full
fledged enquiry for the major penalty if the
disciplinary authority so decides and the
moment a final enquiry comes after holding
detailed enquiry, preliminary fact finding
enquiry becomes absolutely insignificant
and irrelevant. Thus, even the first show
cause notice for proposed punishment is
not sustainable for want of valid reasons.

18. I may also here consider the case
of the petitioner from the point of view that
charges of alleged robbery by the police
officers in conspiracy against victim was
pure criminal charge, which required strict
proof under criminal law . The evidence
that could have been led in the criminal
trial by the prosecution in the form of oral
testimonies were the same as in the
departmental enquiry. Petitioner has been
acquitted in the criminal trial and even in
the
departmental
enquiry
also
after
examining those witnesses, crucial of them
was the Gopal Sharma @ Bobby who
denied about money robbery in his
statement and even recovery of Rs.
20,000/- that was shown from him was in
the absence of any independent witness and
so offence of robbery could not be proved.
In total circumspect of events that have
taken place with lodging of the first
information report, then criminal trial and
also departmental proceedings I find,
except for the witness Gopal Sharma who
was the only eye witness account, there
was no intrinsic material to establish the
charge and even this eye witness account
did not corroborate the incident.

19. Some evidence was led in
departmental enquiry and enquiry officer
was not able to bring home the charge.
Thus
in
my
considered
view,
the
disciplinary authority was not justified in
issuing
show
cause
notice
without
recording its independent reasons for
disagreeing with findings on charges
recorded in enquiry report in which
petitioner was not found guilty. The first
show cause notice, therefore, was not
sustainable. The appellate authority and
revisional authorities have proceeded to
affirm order of disciplinary authority
without holding all those aspects of the
matter as discussed in the judgment.
2 All. Keshav Das Head Constable PNO-842580177 Vs. State of U.P. & Ors.
773

20. There is no such finding returned
in the order dated 10.06.2019 to justify the
action of respondent disciplinary authority
to revise punishment to the prejudice of the
petitioner and resultant second show cause
notice. In my considered view, therefore,
the second show cause notice dated
10.06.2019 stands vitiated. The penultimate
paragraph of the order in which view has
been expressed regarding reply of the
petitioner to be not found satisfactory and
then to consider imposition of higher
degree
of
punishment
is
reproduced
hereunder:

" मेरे द्वारा इनके स्पिीकरण एिीं
पत्रािली पर उपलब्ध अनर्लेखोीं का सम्यक रूप
से अिलोकन नकया गया तो पाया नक तथा पुनैंः
पत्रािली का अिलोकन करने पर मेरे द्वारा इस
ननष्कषद पर पहुींचा गया, नजस प्रकार का
आपरानधक कृत्य इनके द्वारा नकया गया उसके
नलए प्रस्तानित दण्ड अपयादप्त िै, नजस कारण
इनके द्वारा स्पिीकरण पर नबना गुण-दोष पर
निचार नकये िी ननगदत नकया गया कारण बताओ
नोनटस ननरस्त नकये जाने एिीं सेिा से पदच्युत
नकये जाने का पुनैंः कारण बताओ नोनटस ननगदत
नकये जाने का ननणदय नलया गया िै।

अतैंः (पीएनओ नीं० - 112623050)
आरक्षी 2778/1791 र्ानूप्रताप नसींि, थाना-
एत्माद्दौला, जनपद आगरा के स्पिीकरण पर
नबना कोई गुण दोष पर निचार नकये िी इनके
उक्त कृत्य के नलये उ०प्र० अधीनस्थ श्रेणी के
पुनलस
अनधकाररयोीं
(दण्ड
एिीं
अपील)
ननयमािली 1991 के ननयम - 14(1) के सपनठत
ननयम 4(1)(क) के उप-खण्ड (3) के अऩ्तगदत
तीन िषद के नलये आरक्षी के पद के न्यूनतम
िेतनमान पर प्रत्यािनतदत नकये जाने का कारण
बताओ नोनटस नदनाींक-30.12.2018 को ननरस्त
नकया जाता िै तथा इनके उक्त कृत्य के नलये
इनको सेिा से पदच्युत नकये जाने का कारण
बताओ नोनटस अलग से पाररत नकया जायेगा।"

21. Thus, there is no independent
finding for revising the punishment and yet
the
appellate
authority
has
acted
mechanically in the matter and so also
revisional authority while affirming the
order passed by the disciplinary authority,
whereas it was required to examine
correctness
in
the
approach
of
the
disciplinary authority concerned in the
matter of imposition of punishment. The
authority to issue second show cause notice
was itself to be seen with reference to
provision through which it could have
traced
administrative
power
for
this
purpose . It is necessary to go into relevant
provision as contained under of U.P Police
Officers of Subordinate Rank (Punishment
and Appeal) Rules, 1991. Rule 14 of Rules,
1991 reads as under:

"14. Procedure for conducting
departmental proceedings.- (1) Subject to
the provisions contained in these Rules.
The departmental proceedings in the cases
referred to in sub-rule (1) of Rule 5 against
the Police Officers may be conducted in
accordance with the procedure laid down
in Appendix I.

(2)
Notwithstanding
anything
contained in sub-rule (1) punishments in
cases referred to in sub-rule (2) of Rule 5
may be imposed after informing the Police
Officer in writing of the action proposed to
be taken against him and of the imputations
of act or omission on which it is proposed
to be taken and giving him a reasonable
opportunity of making such representation
as he may wish to make against the
proposal.

(3) The charged Police Officer
shall not be represented by Counsel in any
proceedings instituted under these rules."

22. From a bare reading of the
aforesaid provisions, it is clear that once a
774 INDIAN LAW REPORTS ALLAHABAD SERIES
show cause notice has been issued , there is
no further provision to issue a second show
cause for imposing higher degree of
punishment.

23. Coming to the argument advanced
by learned Standing Counsel and the
judgments cited by him, I do not find there
to be any doubt to form a view regarding
proposition of law laid down by the
Supreme Court in the matter of scope of
interference by this Court in departmental
proceedings under Article 226 of the
Constitution,
but
question
remains
regarding arbitrariness if detected in the
exercise for discretion by authority and that
too
a
discretionary
exercise
without
applying
procedure
prescribed
and
rendering of due application of mind. If
such an action is sustained in law, it would
lead to miscarriage of justice. This Court in
exercise of equitable jurisdiction under
Article 226 of the Constitution of India,
therefore, will certainly not hesitate in
interfering in matter of such exercise of
discretion by the authority which is
arbitrary or at whims. Wade and Forsyth in
their celebrated work "Administrative Law"
refer to the everlasting Halsbury's principle
on administrative law qua exercise of
discretion and quotes Coke's words " For
discretion is a science or understanding to
discern between falsity and truth, between
wrong and right, between shadows and
substance, between equity and colourable
glosses and pretences, and not to do
according to their wills and private
affections; for as one saith, talis discretio
discretionem confundit." (Administrative
Law Wade & Forsyth 10th Edition P. 294)

24. The State authorities while acting
under statutory rules have to be very
careful in exercising their discretion and
every of their actions must be well
informed one and well fortified within the
four corners of procedure prescribed under
the relevant rules. And I find the orders
impugned to fail on the above test.

25. Now coming to the issue of
penalty in the departmental enquiry, I find
that in matters of departmental enquiry
where the charges are same as in case of
criminal trial and evidence led is also same,
there has been departure from the settle
principle of law that even in cases of
acquittal, departmental enquiry may go on.

26. Discussing various authorities on
the point in the case of G.M. Tank v. State
of Gujarat and Others (2006) 5 SCC 446,
Supreme Court has very categorically held
that where witnesses were examined as in
the criminal case and the criminal court
held that after examination of such
witnesses that prosecution failed to prove
the guilt beyond reasonable doubt and
acquitted the accused by way of judicial
pronouncement, it would be unjust and
unfair and rather oppressive to allow
contrary
findings
recorded
by
the
departmental proceeding, to stand. Vide
paragraph 30 of the judgment, the Court
held thus:

30. The judgments relied on by
the learned counsel appearing for the
respondents are distinguishable on facts
and on law. In this case, the departmental
proceedings and the criminal case are
based on identical and similar set of facts
and the charge in a departmental case
against the appellant and the charge before
the criminal court are one and the same. It
is true that the nature of charge in the
departmental proceedings and in the
criminal case is grave. The nature of the
case launched against the appellant on the
basis of evidence and material collected
2 All. Keshav Das Head Constable PNO-842580177 Vs. State of U.P. & Ors.
775
against
him
during
enquiry
and
investigation and as reflected in the
charge-sheet, factors mentioned are one
and the same. In other words, charges,
evidence, witnesses and circumstances are
one and the same. In the present case,
criminal and departmental proceedings
have already noticed or granted on the
same set of facts, namely, raid conducted at
the appellant's residence, recovery of
articles
therefrom.
The
Investigating
Officer
Mr
V.B.
Raval
and
other
departmental witnesses were the only
witnesses examined by the enquiry officer
who by relying upon their statement came
to the conclusion that the charges were
established against the appellant. The same
witnesses were examined in the criminal
case and the criminal court on the
examination came to the conclusion that
the prosecution has not proved the guilt
alleged against the appellant beyond any
reasonable
doubt
and
acquitted
the
appellant by its judicial pronouncement
with the finding that the charge has not
been proved. It is also to be noticed that the
judicial pronouncement was made after a
regular trial and on hot contest. Under
these circumstances, it would be unjust and
unfair and rather oppressive to allow the
findings recorded in the departmental
proceedings to stand.

27. The above authority has further
been relied upon by the Supreme Court in
the case of State Bank of Hyderabad and
Another v. P.Kata Rao (2008) 15 SCC
657, wherein the appeal was filed by the
State Bank of Hyderabad against the
judgment of the division bench of Andhra
Pradesh High Court which upheld the
judgment of the Single Judge in which
learned Single Judge allowed writ petition
against order of dismissal from service.
Learned Single Judge while deciding the
matter and directing for notice had
observed that findings in criminal trial may
not be binding but required reconsideration.
Supreme Court in SLP filed by State Bank
of Hyderabad referred the judgment in
G.M.Tank case and affirmed this view of
the High Court.

28. Very recently in the case of Ram
Lal v. State of Rajasthan and Others
being in Civil Appeal No. 7935 of 2023
(arising out of SLP © No. 33423 of 2018)
decided on 4th December, 2023, the Court
observed that where the charges in criminal
trial , the departmental proceedings based
upon the same allegations and same
evidence the case is liable to be led as
criminal
case
in
the
departmental
proceeding the matter acquire different
dimension. Discussing legal position, Vide
paragraphs 11,12, and 13, the Court held
thus:

"11. We have examined both the
questions independently. We are conscious
of the fact that a writ court's power to
review the order of the Disciplinary
Authority is very limited. The scope of
enquiry is only to examine whether the
decision-making process is legitimate.
[See State Bank of India v. A.G.D. Reddy,
2023 : INSC : 766 : (2023) 11 Scale 530].
As part of that exercise, the courts
exercising power of judicial review are
entitled to consider whether the findings of
the Disciplinary Authority have ignored
material evidence and if it so finds, courts
are not powerless to interfere. [See United
Bank of India v. Biswanath Bhattacharjee,
(2022) 13 SCC 329: 2022 : INSC : 117]

12. We are also conscious of the
fact that mere acquittal by a criminal court
will not confer on the employee a right to
claim any benefit, including reinstatement.
776 INDIAN LAW REPORTS ALLAHABAD SERIES
(See Deputy Inspector General of Police v.
S. Samuthiram, (2013) 1 SCC 598).

13. However, if the charges in the
departmental enquiry and the criminal
court are identical or similar, and if the
evidence, witnesses and circumstances are
one and the same, then the matter acquires
a different dimension. If the court in
judicial review concludes that the acquittal
in the criminal proceeding was after full
consideration of the prosecution evidence
and that the prosecution miserably failed to
prove the charge, the Court in judicial
review can grant redress in certain
circumstances. The court will be entitled to
exercise its discretion and grant relief, if it
concludes that allowing the findings in the
disciplinary proceedings to stand will be
unjust, unfair and oppressive. Each case
will turn on its own facts. [See G.M.
Tank v. State of Gujarat, (2006) 5 SCC
446, State Bank of Hyderabad v. P. Kata
Rao,
(2008)
15
SCC
657
and
S.
Samuthiram (supra)]"

29. Further discussing disciplinary
proceedings in respect of the case in hand,
the
Court
discussed
the
prosecution
witnesses testimony led in the departmental
proceedings and then also discussed the
effect of acquittal in the criminal case and
the ultimate findings returned by the trial
judge and then held that in the face of
findings returned on the charges, the
departmental disciplinary proceedings and
the orders passed therein could not be
sustained in law. Vide paragraph 28, 29 and
30, the Court held thus:

28. Expressions like "benefit of
doubt" and "honorably acquitted", used in
judgments are not to be understood as
magic incantations. A court of law will not
be carried away by the mere use of such
terminology. In the present case, the
Appellate Judge has recorded that Exh. P3, the original marksheet carries the date
of birth as 21.04.1972 and the same has
also
been
proved
by
the
witnesses
examined on behalf of the prosecution. The
conclusion that the acquittal in the criminal
proceeding was after full consideration of
the prosecution evidence and that the
prosecution miserably failed to prove the
charge can only be arrived at after a
reading of the judgment in its entirety. The
court in judicial review is obliged to
examine the substance of the judgment and
not go by the form of expression used.

29. We are satisfied that the
findings of the appellate judge in the
criminal case clearly indicate that the
charge against the appellant was not just,
"not proved" - in fact the charge even stood
"disproved" by the very prosecution
evidence. As held by this Court, a fact is
said to be "disproved" when, after
considering the matters before it, the court
either believes that it does not exist or
considers its non-existence so probable that
a
prudent
man
ought,
under
the
circumstances of the particular case, to act
upon the supposition that it does not exist.
A fact is said to be "not proved" when it is
neither "proved" nor "disproved" [See
Vijayee Singh v. State of U.P., (1990) 3
SCC 190].

 30. We are additionally satisfied
that in the teeth of the finding of the
appellate
Judge,
the
disciplinary
proceedings and the orders passed thereon
cannot be allowed to stand. The charges
were not just similar but identical and the
evidence, witnesses and circumstances
were all the same. This is a case where in
exercise of our discretion, we quash the
orders of the disciplinary authority and the
appellate authority as allowing them to
stand will be unjust, unfair and oppressive.
2 All. Mahendra Nath Sharma Vs. State of U.P. & Ors.
777
This case is very similar to the
situation that arose in G.M. Tank (supra).

30. In so far as criminal trial is
concerned in respect of present petitioner
being sessions trial no. 381 of 2018 not
only
the
accused
persons
including
petitioner were acquitted giving them
benefit of doubt but the Court has
proceeded for institution of a case under
Section 344 of the Cr.P.C. against
complainant Nagesh @ Kanhaiya. The
proceedings under Section 344 are to be
instituted against a person who gives false
evidence. The entire criminal case got
instituted against petitioner and other
persons only on the complaint of one
Kanhaiya Lal and so also on that basis
disciplinary proceeding was instituted. In
the criminal trial, the Court having rejected
all false evidence led by the prosecution
witness Nagesh @ Kanhaiya directed for
issuance of notice to him vide judgment
dated 31st July 2023 Enquiry Officer in the
departmental proceeding has also found
charges not proved against the petitioner.
Thus there was no occasion for the
disciplinary authority to have issued notice
for major penalty.

31. Having not discussed anything on
facts to justify disagreement with findings
arrived
in
the
enquiry
report,
the
disciplinary authority is not justified in
taking the view that petitioner deserved
punishment of dismissal/termination even
without charges being proved. Thus, I am
not able to sustain show cause notices
issued to the petitioner on 30.12.2018 and
10.06.2019 and so also the final order of
punishment.

32. In view of the above, writ petition
succeeds and is allowed . The order of
dismissal dated 19th March, 2020, and the
appellate authority and revisional order
dated 20.08.2020 and 30.12.2020 as well as
first and second show cause notices issued
on 30.12.2018 and 10.06.2019 respectively
are hereby quashed.

33. Consequences to follow.

34. The disciplinary authority is
directed to reconsider the matter to take
decision afresh on the basis of enquiry
report, if it so wishes and desires.
----------
(2024) 2 ILRA 777
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 4338 of 2019

Mahendra Nath Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashutosh Tripathi

Counsel for the Respondents:
C.S.C., Sri Girijesh Kumar Tripathi (Addl.
C.S.C.), Sri O.P. Singh (Sr. Advocate), Sri
Sushil Kumar Rao

A. Service Law - Disciplinary Proceedings
Post-Retirement - Lack of Jurisdiction -
Petitioner,
a
retired
Senior
Warehouse
Superintendent, challenged the order dated
12.05.2010
imposing
a
recovery
of
Rs.
12,60,586/- from his post-retirement benefits
for alleged negligence, and the appellate order
dated 13.06.2019 - Held, under the U.P. St.
Warehousing Corporation Staff Regulations,
1961, there is no provision akin to Regulation
351-A of the Civil Service Regulations allowing
continuation of disciplinary proceedings against
a retired employee - The employer's disciplinary