# Nidhi Singh v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 909
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-23
- **Case number:** Writ A No. 3583 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nidhi-singh-v-state-of-u-p-ors-48609
- **Pages:** 12

## Headnote

A. Service Law - Suspension Order - The
Court has noticed that prima facie the petitioner
has been found guilty of a forged Baramadagi
on which her signatures have been appended,
which is an admitted position and also for
criminal conspiracy by preparing forged and
wrong documents showing an alive person
dead. Therefore, in view of the aforesaid facts
and circumstances, the Court does not find any
illegality or infirmity in the order of suspension.
(Para 12)

B. Practice & Procedure - quashing of
charge sheet - The law on this point is that
the Courts should not stay/quash the
disciplinary proceedings nor they should
go into the correctness or otherwise the
charges leveled in the charge-sheet and
the
departmental
inquiry
should
be
allowed to continue uninterrupted to
come to its natural conclusion. The
tribunal or the Court cannot take over the
910 INDIAN LAW REPORTS ALLAHABAD SERIES
functions of the disciplinary authority. It
can interfere only if the charges framed
are contrary to law or if no misconduct or
other irregularity alleged can be said to
have been made out.(Para 15 & 16)
Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

5 All. Nidhi Singh Vs. State of U.P. & Ors.
909
distinguishable from the facts of the present
case.

17. The interim orders in the case of
Vikram Singh and Ram Kumar (Supra)
relied upon by the learned counsel for the
petitioner are not binding upon this Court.

18. In the case of Vishnu Traders
Vs. State of Haryana, reported in 1995
Suppl (1) SCC 461, the Apex Court has
observed as under:-

"In the matters of interlocutory
orders, principle of binding precedent
cannot be said to apply. However, the need
for consistency approach and uniformity in
the
exercise
of
judicial
discretion
respecting
similar
causes
and
the
desirability to eliminate occasions for
grievance
of
discriminatory
treatment
requires that all similar matters should
receive similar treatment except where
factual differences require a different
treatment so that there is an assurance of
consistency, uniformity, predictability and
certainty of judicial approach."

19. Similar view has been taken by
this Court in Smt. Rampati Jaiswal Vs.
State of U.P., reported in AIR 1997 All.
170.

20. Lastly, this Court finds substance
in the submission made by the learned
Standing Counsel that this second writ
petition filed for nearly the same relief
cannot be entertained by this Court. For
same relief, second writ petition is not
maintainable. The proper remedy available
to the petitioner was to file a recall
application in his earlier writ petition
referred to above or to file a Special Appeal
against the judgment and order passed in
the said writ petition.

21. The present writ petition is devoid
of merits, and, accordingly, dismissed.

22. There shall be no order as to costs.
----------
(2022)05ILR A909
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 3583 of 2022

Nidhi Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nripendra Kumar Dwivedi, Sri Prasanna
Dwivedi

Counsel for the Respondents:
C.S.C., Sri Asim Mukherjee (S.C.)

A. Service Law - Suspension Order - The
Court has noticed that prima facie the petitioner
has been found guilty of a forged Baramadagi
on which her signatures have been appended,
which is an admitted position and also for
criminal conspiracy by preparing forged and
wrong documents showing an alive person
dead. Therefore, in view of the aforesaid facts
and circumstances, the Court does not find any
illegality or infirmity in the order of suspension.
(Para 12)

B. Practice & Procedure - quashing of
charge sheet - The law on this point is that
the Courts should not stay/quash the
disciplinary proceedings nor they should
go into the correctness or otherwise the
charges leveled in the charge-sheet and
the
departmental
inquiry
should
be
allowed to continue uninterrupted to
come to its natural conclusion. The
tribunal or the Court cannot take over the
910 INDIAN LAW REPORTS ALLAHABAD SERIES
functions of the disciplinary authority. It
can interfere only if the charges framed
are contrary to law or if no misconduct or
other irregularity alleged can be said to
have been made out.(Para 15 & 16)
Writ Petition Rejected. (E-10)

List of Cases cited:

1. State of Orissa & anr. Vs Sangram Keshari
Mishra & anr. (2010) 13 SCC 311

2. Secretary, Ministry of Defence & ors.. Vs
Prabhash Chandra Mishra (2012) 11 SCC
565

3. Allahabad Bank & anr. Vs Deepak kumar
Bhola (1997) 4 SCC 1

4. St. of Orissa Vs Bimal kumar Mohanti (1994)
4 SCC 125

5. Capt. M. Paul Anthony Vs Bharat Gold Mines
Ltd. & anr. (1999) 3 SCC 697

6. St. of U.P. Vs Shri Brahm Datt Sharma & anr.
AIR 1987 SC 943

7. St. of H.P. Vs B.C. Thakur 1994 SCC (L&S)

8. U.O.I. Vs Ashok Kacker 1995 Supp (1) SCC
180

9. Secretary to Government, Prohibition &
Excise Department Vs L. Srinivasan (1996) 3
SCC 157

10. U.O.I. & ors.. Vs Upendra Singh (1994) 3
Supreme Court Cases 357

11. U.O.I. & anr. Vs Kunisetty Satyanarayana
(2006) 12 SCC 28
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Nripendra Kumar
Dwivedi, learned counsel for the petitioner
and Mr. Asim Mukherjee, learned Standing
Counsel for the State-respondents.

2. By means of the present writ
petition, the petitioner has prayed for
quashing the charge-sheet dated 24th
August, 2021 issued by respondent no.4
(Annexure No.6 to the writ petition) and
the order dated 31st October, 2021 passed
by respondent no.2 (Annexure No.7 to this
writ petition), whereby he has been placed
under suspension pending departmental
inquiry. Further the petitioner has prayed
that a direction be issued to respondents not
to
proceed
with
the
departmental
proceedings pursuant to the charge-sheet
dated 24th August, 2021 issued by
respondent no.4.

3. It is the case of the petitioner that
when the petitioner was posted at Police
Station-Adampur, District Amroha, a first
information report has been lodged by one
Roop Kishore, which has been registered as
Crime No. 0051 of 2019 under Sections
363, 366 I.P.C. and Sections 7/8 POCSO
Act, at Police Station-Adampur, District
Jyotibaphuley Nagar. The investigation of
the said case was handed over to one Arif
Mohammad, Sub-Inspector. Mr. Arif after
recording the statements of the informant
and witnesses submitted charge sheet no.
107 of 2029 dated 15th May, 2019 against
Horam and Harphool under Sections 363,
366 I.P.C. and Sections 7/8 POCSO Act.
The aforesaid case committed to the Court
of Special Judge, POCSO ACT, III,
Amroha, which was numbered as Session
Trial No. 21 of 2019. The investigation of
aforesaid Crime No. 0051 of 2019 was
transferred to one Ashok Sharma, Inspector
on 28th May, 2019, who submitted the
charge sheet no. 107A of 2020 on 19th
March, 2020. against Roop Kishor, Suresh
and Devendra under Sections 302, 201 and
120B I.P.C. Thereafter the investigation
was transferred to one Pankaj Sharma,
Inspector who submitted his report on 12th
5 All. Nidhi Singh Vs. State of U.P. & Ors.
911
August, 2020 thereafter the case was
converted under Sections 363, 366 I.P.C.
and Sections 7/8 POCSO Act after deleting
Sections 302, 201 and 120B I.P.C. After
framing the charge and examination of
witnesses, the trial court has acquitted the
persons, namely, Horam and Harphool
against whom charge sheet no.107 of 2019
was submitted, in Session trial no. 21 of
2019 vide order dated 19th January, 2021.
On the basis of charge-sheet no.107A of
2020 dated 19th March, 2020, the case was
committed to court of Sessions Judge,
Amroha, which has been numbered as
Sessions Trial No. 354 of 2020 and charges
were framed against Roop Kishore, Suresh
and Devendra for the offence punishable
under Sections 302, 201 and 120B I.P.C.
and further a Session Trial being Session
Trial No. 403 of 2020 was registered in
which charges were framed against one
Suresh for the offence punishable under
Section 3/25 Arms Act. Both the Sessions
Trial being Sessions Trial No. 354 of 2020
and Session Trial No. 403 of 2020 have
been tried together and the session trial no.
354 of 2020 was treated to be the leading
case.

4. Further, it is the case of the
petitioner that after considering the facts
and evidences adduced during trial, the
Sessions Court has acquitted all the
accused persons from all the charges vide
judgment and order dated 31st March, 2021
and further the Sessions Judge, Amroha
forwarded a letter dated 31st March, 2021
to the Superintendent of Police, Amroha,
Additional Director General of Police,
Bareilly Region, Bareilly and Director
General of Police, U.P. at Lucknow to
initiate departmental proceedings against
Inspector Ashok Sharma and those police
personnel whose signatures were found
over the Fard Baramdagi.

5. Pursuant to the above letter of the
Sessions Judge, Amroha, Inspector Ashok
Sharma was suspended vide order dated 7th
August, 2020 and proceedings under Rule
14 (1) of U.P. Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991 was initiated and vide
order dated 21st November, 2020, the
enquiry was allotted to Mr. Vijay Kumar
Rana,
Circle
Officer,
Amroha,
who
submitted his report on 24th March, 2021.
On the basis of said report, order dated 21st
November, 2020 was cancelled and again a
detailed enquiry was allotted to the
Additional
Superintendent
of
Police,
Amroha
i.e.
respondent
no.3,
who
submitted his preliminary enquiry, wherein
Sub-Inspector
Vinod
Kumar
Tyagi
(retired), Sub-Inspector Rakesh Kumar,
Sub-Inspector Arif Mohammad, ConstableKrishnaveer, Constable-Aniruddha Singh,
Constable-Deepak
Kumar,
Female
Constable
Apeksha
Tomar,
Female
Constable-Nidhi Singh (applicant herein),
Amroha along with Inspector Ashok
Sharma were found guilty of submitting
charge-sheet on the basis of fake evidence.
Respondent no.3 submitted his report on
8th June, 2021 before the Superintendent of
Police, Amroha i.e. respondent no.2. On the
basis of the said preliminary enquiry report
of respondent no.3, Presiding Officer,
Circle Officer, Amroha i.e. respondent no.
4 issued a charge sheet dated 24th August,
2021 for departmental proceedings under
Rule 14 (1) of U.P. Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 1991. After issuing the
charge-sheet dated 8th June, 2021, the
petitioner has been suspended and attached
to the Police Lines, Amroha by respondent
no.2. The said charge-sheet was served
upon the petitioner in the month of
September, 2021. Subsequently, one Suresh
has lodged a first information report on
912 INDIAN LAW REPORTS ALLAHABAD SERIES
23th October, 2021 against 11 persons,
namely,
Ashok
Kumar
(Inspector),
Mohammad Arif (Sub-Inspector), Rakesh
Kumar (Sub-Inspector), Manoj Kumar
(Sub-Inspector), Vinod Kumar Tyagi (SubInspector), Bhupendra Singh (Constablecum-Driver),
Krishnaveer
singh
(Constable),
Aniruddha
(Constable),
Deepak
Kumar
(Constable),
Apeksha
Tomar (Women Constable) and Nidh Singh
(Women Constable) (applicant herein),
which has been registered as Case Crime
No. 0286 of 2021 under Sections 120-B,
193, 194, 342, 344 I.P.C., Police StationAdampur, District-Amroha. In the said
case, the petitioner has been granted
anticipatory bail from this Court vide order
dated 8th February, 2022 a copy of which
has been enclosed as Annexure-9 to the
writ petition.

6. Challenging the impugned chargesheet and order of suspension, learned
counsel for the petitioner has made
following submissions:

i. The Sub-Inspector Mr. Arif
Mohammad remained as Investigating
Officer since 20th February, 2019 to 27th
May, 2019 and he has submitted ChargeSheet No. 107 of 2019 in Crime No. 0051
of 2019 under Sections 363, 366 I.P.C. and
Sections 7/8 POCSO Act and on 28th May,
2019, the investigation of the aforesaid
crime was transferred to Ashok Sharma
(Inspector), who has submitted ChargeSheet No. 107A of 2020, under Sections
302, 201, 120B I.P.C. and Sections 3/25
Arms Act on 19th March, 2020. The entire
investigation of the aforesaid crime goes to
Ashok Kumar (Inspector), therefore, the
petitioner being women constable, has no
concern with the investigation of the
aforesaid crime at any point of time except
that
recovery
memo
showing
the
Baramadagi of clothes, shoes and alakatla,
bears her signatures, hence the entire
proceedings
including
the
impugned
charge-sheet are liable to be quashed by
this Court.

ii. The act of respondents by not
adopting proper procedure for conducting
enquiry
is
misconceived
and
not
sustainable in the eyes of law.

On the cumulative strength of the
aforesaid, learned counsel for the petitioner
submits that the impugned charge-sheet
dated 24th August, 2021 issued against the
petitioner is illegal, unwarranted and
against the evidence on record, therefore,
the same is liable to be quashed by this
Court.

7. On the other-hand, learned
Standing Counsel for the State-respondents
submits that the charges so levelled against
the petitioner cannot be examined at this
stage, inasmuch as the explanation and
documents relied upon by the petitioner can
be a defence in the departmental inquiry, as
during departmental inquiry, the petitioner
will have ample opportunity to prove her
innocence (Reference the judgment of the
Apex Court in the case of State of Orrisa
& Another VS. Sangram Keshari Mishra
& Another, reported in (2010) 13 SCC
311). Apart from the above, learned
Standing Counsel for the State-respondents
submits that ordinarily a writ petition does
not lie against a charge-sheet or showcause notice for the reason that it does not
give rise to any cause of action. It does not
amount to an adverse order which affects
the right of any party unless the same has
been issued by a person who has no
jurisdiction
to
do
so
(Reference-the
judgment of the Apex Court in the case of
Secretary, Ministry of Defence & Others
5 All. Nidhi Singh Vs. State of U.P. & Ors.
913
VS. Prabhash Chandra Mishra reported
in (2012) 11 SCC, 565). In view of the
aforesaid, learned Standing Counsel for the
State-respondents
submits
that
no
interference is called for by this Court in
exercise of powers under Article 226 of the
Constitution of India. Hence, the present
writ petition is liable to be dismissed.

8. This Court has considered the
submissions made by the learned counsel
for the parties and has carefully scanned the
records of the present writ petition
specifically the laws laid down by the Apex
Court on the aforesaid aspect.

9. From the records of the present writ
petition, it is established that while
deciding the Sessions Trial No. 354 of
2020 along with Session Trial No. 403 of
2020 vide judgment and order dated 31st
March, 2021, the Sessions Judge, Amroha
has found that prima facie the Police
personnels along with Inspector Ashok
Sharma were responsible for making a
forged baramadagi of clothes, shoes and
alakatla of Km. Kamlesh for showing her
to be dead, when as matter of fact she is
alive, therefore, he wrote a letter dated 31st
March, 2021 to the Superintendent of
Police,
Amroha,
Additional
Director
General of Police, Bareilly Region, Bareilly
and Director General of Police, U.P. at
Lucknow
to
initiate
departmental
proceedings
against
Inspector
Ashok
Sharma and those police personnel whose
signatures were found over the Fard
Baramdagi. Pursuant to the above letter,
proceedings were initiated and vide order
dated 21st November, 2020, the enquiry
was allotted to Mr. Vijay Kumar Rana,
Circle Officer, Amroha, who submitted his
report on 24th March, 2021. On the basis of
said report, again a detailed enquiry was
allotted to the Additional Superintendent of
Police, Amroha i.e. respondent no.3, who
submitted his preliminary enquiry, wherein
Sub-Inspector
Vinod
Kumar
Tyagi
(retired), Sub-Inspector Rakesh Kumar,
Sub-Inspector Arif Mohammad, ConstableKrishnaveer, Constable-Aniruddha Singh,
Constable-Deepak
Kumar,
Female
Constable
Apeksha
Tomar,
Female
Constable-Nidhi Singh (applicant herein),
Amroha along with Inspector Ashok
Sharma were found guilty of submitting
charge-sheet on the basis of fake evidence.
Respondent no.3 submitted his report on
8th June, 2021 before the Superintendent of
Police, Amroha i.e. respondent no.2. On the
basis of the said preliminary enquiry report
of respondent no.3, Presiding Officer,
Circle Officer, Amroha i.e. respondent no.
4 issued a charge sheet dated 24th August,
2021. It is not disputed by the learned
counsel for the petitioner that on the
Baramadagi, petitioner has not appended
her signatures. Therefore, this Court finds
that the petitioner is prima facie guilty of
forged Baramdagi along with other Police
personnels. As such, the ground taken by
the learned counsel for the petitioner that
she has no concern with the investigation of
the aforesaid crime as also the respondent
authority has not adopted proper procedure
in conducting preliminary enquiry, have no
legs to stand and the same are liable to be
rejected.

10. With respect to challenge made by
the learned counsel for the petitioner to the
order of suspension, this Court has referred
following case laws as settled by the Apex
Court, which are relevant for deciding the
same:

The Apex Court in the case of
Allahabad
Bank
And
Another
vs
Deepak Kumar Bhola reported in
(1997) 4 SCC 1, in paragraph-11 has
held as follows:
914 INDIAN LAW REPORTS ALLAHABAD SERIES

"We are unable to agree with the
contention of learned counsel for the
respondent
that
there
has
been
no
application of mind or the objective
consideration of the facts by the appellant
before it passed the orders of suspension.
As already observed, the very fact that the
investigation was conducted by the C.B.I
which resulted in the filing of a chargesheet, alleging various offences having
been committed by the respondent, was
sufficient for the appellant to conclude that
pending
prosecution
the
respondent
should be suspended. It would be indeed
inconceivable that a bank should allow an
employee to continue to remain on duty
when he is facing serious charges of
corruption
and
mis-appropriation
of
money. Allowing such a employee to
remain in the seat would result in giving
him further opportunity to indulge in the
acts for which he was being prosecuted.
Under the circumstances, it was the
bounden duty of the appellant to have
taken recourse to the provisions of clause
19.3 of the First Bipartite Settlement,
1966. The mere fact that nearly 10 years
have elapsed since the charge-sheet was
filed. can also be no ground for allowing
the respondent to come back to duty on a
sensitive post in the bank, unless he is
exonerated of the charge.

In our opinion, the High Court
was not justified in quashing the orders of
suspension. We, accordingly, allow this
appeal, set-aside the impugned judgment of
the Allahabad High Court and dismiss the
Writ Petition No. 6118/1988 which had
been filed by the respondent. There will,
however, be no order as to costs."

In the case of State of Orrisa
VS. Bimal Kumar Mohanti, reported in
(1994) 4 SCC 125, the the Apex Court inter
alia, held that the suspension pending
enquiry is not an order of punishment and it
is a procedural suspension inasmuch as the
delinquent is refrained to avail further
opportunity to perpetrate the alleged
misconduct or to remove the impression
among the members of service that
dereliction of duty or conduct unbecoming
of a Government servant would pay fruits
and the offending employee could get away
even pending enquiry without impediment
or to prevent an opportunity to such an
employee
to
scuttle
the
enquiry
or
investigation or to win over the witnesses.
The
Apex
Court
also
specifically
observed that each case of suspension
must be considered depending upon the
nature of allegations, gravity of the
situation and the indelible impact that
creates
on
the
service
for
the
continuance of the delinquent employee
in
service
pending
enquiry
or
contemplated enquiry or investigation
and the suspension must be a step in aid
to the ultimate result of the inquiry or
investigation.

(Emphasis added)

The Apex Court in the case of
Capt. M. Paul Anthony Vs. Bharat Gold
Mines Ltd. & Another reported (1999) 3
SCC 697, in paragraph 29, has opined as
follows:

"Exercise of right to suspend an
employee may be justified on facts of a
particular case. Instances, however, are
not rare where officers have been found to
be afflicted by "suspension syndrome" and
the employees have been found to be placed
under suspension just for nothing. It is their
irritability rather than the employee's
trivial lapse which has often resulted in
suspension. Suspension notwithstanding,
5 All. Nidhi Singh Vs. State of U.P. & Ors.
915
non-payment of Subsistence Allowance is
an inhuman act which has an unpropitious
effect on the life of an employee. When the
employee is placed under suspension, he is
demobilised and the salary is also paid to
him at a reduced rate under the nick name
of 'Subsistence Allowance', so that the
employee may sustain himself. This Court,
in O.P. Gupta Vs. Union of India & Others,
(1987) 4 SCC 328 made the following
observations with regard to Subsistence
Allowance :

"An order of suspension of a
government servant does not put an end to
his service under the government. He
continues to be a member of the service in
spite of the order of suspension. The real
effect of suspension as explained by this
Court in Khem Chand Vs. Union of India,
is that he continues to be a member of the
government service but is not permitted to
work and further during the period of
suspension he is paid only some allowance
-- generally called subsistence allowance -
- which is normally less than the salary
instead of the pay and allowances he
would have been entitled to if he had not
been suspended. There is no doubt that an
order
of
suspension,
unless
the
departmental inquiry is concluded within
a reasonable time, affects a government
servant injuriously. The very expression
'subsistence allowance' has an undeniable
penal
significance.
The
dictionary
meaning of the word 'Subsist' as given in
Shorter Oxford English Dictionary, Vol.II
at p. 2171 is "to remain alive as on food;
to continue to exist". "Subsistence"
means -- means of supporting life,
especially a minimum livelihood."

(Emphasis
supplied)
If,
therefore, even that amount is not paid,
then the very object of paying the reduced
salary to the employee during the period
of suspension would be frustrated. The act
of non-payment of Subsistence Allowance
can be likened to slow-poisoning as the
employee, if not permitted to sustain
himself on account of non-payment of
Subsistence Allowance, would gradually
starve himself to death."

11 . As already noticed above the
petitioner is posted as Constable and
working in a disciplined force like Police
Department of the State of U.P. I am of the
considered opinion that a member of a
disciplined force must strictly follow the
executive orders or circulars or instructions
issued by the department or by the higher
authority of the department as those
executive orders etc. are as good as service
condition. As a matter of fact such
executive intimation/order has been issued
to maintain the discipline in the force
directing to keep the appearance and
uniform befitting for the members of
disciplined force. Further, police force has
to be a disciplined force and being a law
enforcing agency, it is necessary that such
force must have secular image which
strengthen the countenance of national
integration.

12. This Court has also noticed that
prima facie the petitioner has been found
guilty of a forged Baramadagi on which her
signatures have been appended, which is an
admitted position and also for criminal
conspiracy by preparing forged and wrong
documents showing an alive person,
namely, Km. Kamlesh as dead. One Suresh
has lodged a first information report against
11
police
personnels
including
the
petitioner which has been registered as
Case crime No. 0286 of 2021 under
Sections 120B, 193, 194, 342, 344 I.P.C.
Therefore, in view of the settled legal
916 INDIAN LAW REPORTS ALLAHABAD SERIES
positions by the Apex Court referred to
herein-above and facts and circumstances
of the case, this Court finds no illegality or
infirmity in the order of suspension dated
31st October, 2021 passed by respondent
no.2.

13. So far as challenge made by the
learned counsel for the petitioner to the
impugned charge-sheet is concerned, it is
necessary for this Court to refer following
laws laid down by the Apex Court on the
aspect:

In State of U.P. vs. Shri Brahm
Datt Sharma and another [reported in
AIR 1987 SC 943), the Apex Court has held
that when a show-cause notice was issued
to a government servant under the statutory
provisions calling upon him to show cause,
ordinarily the government servant must
place
his
case
before
the
authority
concerned by showing cause and the courts
should be reluctant to interfere with the
notice at that stage unless the notice is
shown to have been issued palpably
without any authority of law. The purpose
of issuing show cause is to afford
opportunity of hearing to the government
servant and once cause is shown it is open
to the Government to consider the matter in
the light of the facts and submissions
placed by the government servant and only
thereafter a final decision in the matter
could be taken. Interference by the Court
before that stage would be premature.

The Apex Court in the case of
State of H.P. Vs. B.C. Thakur reported in
1994 SCC (L&S), in paragraph nos. 3 and 4
has held as follows:

"( 3 ) HAVING heard learned
counsel for the parties, we are satisfied that
in the facts and circumstances of the case, the
impugned order of the Tribunal quashing the
order of respondents suspension does not call
for any interference, even though the other
part of the Tribunals order quashing the
charge-sheet issued to the respondent cannot
be sustained. The quashing of the chargesheet by the Tribunal is not on the ground
of want of authority to issue the chargesheet or any other inherent defect therein.
This being so, the question of going into the
merits of the charges, which are yet to be
investigated
in
the
departmental
proceedings, did not arise for consideration
or adjudication by the Tribunal at this stage.
This being so, the Tribunals order quashing
the charge-sheet as well, on reaching the
conclusion that the suspension order had to
be set aside, is unwarranted. The respondent
had been under suspension for nearly two
years on the date of the Tribunals order and
another year has elapsed since then. Setting
aside the suspension order in this situation,
particularly when no substantial progress in
the disciplinary proceedings has been made
as yet, does not, therefore, call for any
interference.

(4)
CONSEQUENTLY,
the
appeal is partly allowed to the extent that
the Tribunals order quashing the chargesheet issued to the respondent is set aside
while the challenge to the quashing of the
suspension order dated 10-5-1990 is
rejected. No costs."

The Apex Court in the case of
Union of India Vs. Ashok Kacker reported
in 1995 Supp (1) SCC 180, while hearing a
matter where the employee had challenged
the charge sheet, clearly held that the
Tribunal entertained the application at a
premature stage. It was observed as follows
:-

".........In our opinion, this was
not the stage at which the Tribunal ought
5 All. Nidhi Singh Vs. State of U.P. & Ors.
917
to have entertained such an application
for quashing the charge-sheet and the
appropriate course for the respondent to
adopt is to file his reply to the chargesheet and invite the decision of the
disciplinary authority thereon. This being
the stage at which the respondent had
rushed to the Tribunal, we do not consider
it necessary to require the Tribunal at this
stage to examine any other point which
may be available to the respondent or
which may have been raised by him."

Again in the case of Secretary to
Government,
Prohibition
&
Excise
Department Vs. L. Srinivasan, reported
in (1996) 3 SCC 157, the Apex Court setaside the order of the Tribunal by which the
departmental enquiry and the charge-sheet
were quashed on the ground of delay in
initiation of the disciplinary proceedings
and it was observed as follows :-

"Order dated 12.11.1993 in Nos.
Nos. 1702 of 1993 and 2206 of 1993 of the
Tamil
Nadu
Administrative
Tribunal,
Madras is in question before us. The
respondent while working as Assistant
Section Officer, Home, Prohibition and
Excise Department had been placed under
suspension. Departmental inquiry is in
process. We are informed that charge-sheet
was laid for prosecution for the offences of
embezzlement and fabrication of false
records etc. and that the offences and the
trial of the case is pending.

The Tribunal had set aside the
departmental enquiry and quashed the
charge on the ground of delay in initiation
of disciplinary proceedings. In the nature
of the charge, it would take a long time to
detect embezzlement and fabrication of
false records which should be done in
secrecy. It is not necessary to go into the
merits and record any finding on the
charge levelled against the charged officer
since any finding recorded by this Court
would gravely prejudice the case of the
parties at the enquiry and also at the trial.
Therefore, we desist from expressing any
opinion on merit or recording any of the
contentions raised by the counsel on either
side.
Suffice
it
to
state
that
the
Administrative Tribunal has committed
grossest error in its exercise of the judicial
review. The member of the Administrative
Tribunal appears to have no knowledge of
the jurisprudence of the service law and
exercised power as if he is an appellate
forum dehors the limitation of judicial
review. This is one such instance where a
member had exceeded his power of
judicial review in quashing the suspension
order and charges even at the threshold.
We are coming across such orders
frequently putting heavy pressure on this
Court to examine each case in detail. It is
high time that it is remedied." (emphasis
supplied)."

The Apex Court in re:- State of
Orrisa and another vs. Sangram Keshari
Misra and another [reported in (2010) 13
Supreme Court Cases 311] in para 10 has
opined as under:-

"10. Though there appears to be
some merit in the said contentions of the
first respondent, it is unnecessary to
examine
the
correctness
of
these
contentions as normally a charge-sheet is
not quashed prior to the conducting of the
enquiry on the ground that the facts stated
in the charge are erroneous. It is well
settled that the correctness or truth of the
charge is the function of the disciplinary
authority (vide Union of India v. Upendra
Singh1 SCC p. 362, para 6). Therefore we
918 INDIAN LAW REPORTS ALLAHABAD SERIES
reject the contention that the charge ought
to have been quashed without reserving to
the State to proceed in accordance with
law."

The Hon'ble Apex Court in re:-
Union of India and others vs. Upendra
Singh [reported in (1994) 3 Supreme Court
Cases 357] in para 6 has held as under:-

"6. In the case of charges framed
in a disciplinary inquiry the tribunal or
court can interfere only if on the charges
framed
(read
with
imputation
or
particulars of the charges, if any) no
misconduct or other irregularity alleged
can be said to have been made out or the
charges framed are contrary to any law. At
this stage, the tribunal has no jurisdiction
to go into the correctness or truth of the
charges. The tribunal cannot take over the
functions of the disciplinary authority.
The truth or otherwise of the charges is a
matter for the disciplinary authority to go
into. Indeed, even after the conclusion of
the disciplinary proceedings, if the matter
comes to court or tribunal, they have no
jurisdiction to look into the truth of the
charges or into the correctness of the
findings recorded by the disciplinary
authority or the appellate authority as the
case may be. The function of the
court/tribunal is one of judicial review, the
parameters of which are repeatedly laid
down by this Court. It would be sufficient
to quote the decision in H.B. Gandhi,
Excise and Taxation Officer-cum-Assessing
Authority, Karnal v. Gopi Nath & Sons5.
The
Bench
comprising
M.N.
Venkatachaliah, J. (as he then was) and
A.M. Ahmadi, J., affirmed the principle
thus : (SCC p. 317, para 8)

"Judicial review, it is trite, is not
directed against the decision but is
confined to the decision-making process.
Judicial review cannot extend to the
examination
of
the
correctness
or
reasonableness of a decision as a matter
of fact. The purpose of judicial review is to
ensure that the individual receives fair
treatment and not to ensure that the
authority after according fair treatment
reaches, on a matter which it is authorised
by law to decide, a conclusion which is
correct in the eyes of the Court. Judicial
review is not an appeal from a decision but
a review of the manner in which the
decision is made. It will be erroneous 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 Apex Court in the case of
Secretary, Ministry of Defence and
others vs. Prabhash Chandra Mirdha
[reported in (2012) 11 Supreme Court
Cases 565] in para nos. 10 to 12 has opined
as follows:

"11.
Ordinarily
a
writ
application
does
not
lie
against
a
chargesheet or show cause notice for the
reason that it does not give rise to any
cause of action. It does not amount to an
adverse order which affects the right of
any party unless the same has been issued
by
a
person
having
no
jurisdiction/competence to do so. A writ
lies when some right of a party is
infringed. In fact, chargesheet does not
infringe the right of a party. It is only
when
a
final
order
imposing
the
punishment
or
otherwise
adversely
affecting a party is passed, it may have a
grievance and cause of action. Thus, a
chargesheet or show cause notice in
disciplinary
proceedings
should
not
ordinarily be quashed by the Court. (Vide
5 All. Nidhi Singh Vs. State of U.P. & Ors.
919
: State of U.P. Vs. Brahm Datt Sharma,
AIR 1987 SC 943; Executive Engineer,
Bihar State Housing Board Vs. Ramesh
Kumar Singh & Others, (1996) 1 SCC 327;
Ulagappa & Ors. v. Div. Commr., Mysore
& Ors., AIR 2000 SC 3603 (2); Special
Director & Anr. Vs. Mohd. Ghulam Ghouse
& Another , AIR 2004 SC 1467; and Union
of
India
&
Another
Vs.
Kunisetty
Satyanarayana, AIR 2007 SC 906).

12. In State of Orissa & Anr. v.
Sangram Keshari Misra & Anr., (2010) 13
SCC 311, this Court held that normally a
chargesheet is not quashed prior to the
conclusion of the enquiry on the ground
that the facts stated in the charge are
erroneous for the reason that correctness
or truth of the charge is the function of the
disciplinary authority. (See also: Union of
India & Ors., (1994) 3 SCC 357).

13. Thus, the law on the issue can
be
summarised
to
the
effect
that
chargesheet cannot generally be a subject
matter of challenge as it does not adversely
affect the rights of the delinquent unless it
is established that the same has been issued
by an authority not competent to initiate the
disciplinary
proceedings.
Neither
the
disciplinary
proceedings
nor
the
chargesheet be quashed at an initial stage
as it would be a premature stage to deal
with the issues. Proceedings are not liable
to be quashed on the grounds that
proceedings had been initiated at a belated
stage or could not be concluded in a
reasonable period unless the delay creates
prejudice to the delinquent employee.
Gravity of alleged misconduct is a relevant
factor to be taken into consideration while
quashing the proceedings."

In the case of Union of India
and
another
Vs.
Kunisetty
Satyanarayana, reported in (2006) 12
SCC 28, Hon'ble the Supreme Court has
held as under:-

"Writ
jurisdiction
is
discretionary jurisdiction and hence
such discretion under Article 226 should
not ordinarily be exercised by quashing
a show-cause notice or charge sheet."

14. It was, therefore, emphasized by
the Apex Court that even by way of final
order the departmental enquiry or the
charge-sheet could not have been quashed.
Thus, what could not have been done even
at the final stage certainly could not have
been done by way of any interim measure
by the Tribunal.

15. The law on this point is that the
Courts
are,
therefore,
not
to
grant
stay/quash the disciplinary proceedings nor
they should go into the correctness or
otherwise of the charges leveled in the
charge-sheet and the departmental inquiry
should
be
allowed
to
continue
uninterrupted to come to its natural
conclusion

16. In the case of charges framed in a
disciplinary enquiry, the tribunal or Court
can interfere only if on the charges framed
(read with imputation or particulars of the
charges, if any) no misconduct or other
irregularity alleged can be said to have
been made out or the charges framed are
contrary to any law. The tribunal or the
Court cannot take over the functions of the
disciplinary
authority.
The
truth
or
otherwise of the charge is a matter for the
disciplinary authority to go into. Indeed,
even
after
the
conclusion
of
their
disciplinary proceedings, if the matter
comes to court or tribunal, they have no
jurisdiction to look into the truth of the
920 INDIAN LAW REPORTS ALLAHABAD SERIES
charges or into the correctness of the
findings recorded by the disciplinary
authority or the appellate authority as the
case may be.

17. From the aforesaid legal
positions, it is clear that in some very rare
and exceptional cases the High Court can
quash a charge-sheet or show-cause
notice if it is found to be wholly without
jurisdiction or for some other reason if it
is wholly illegal. However, ordinarily the
High Court should not interfere in such a
matter.

18. In view of the aforesaid settled
legal positions of the Apex Court which
have been referred to above, this Court
does not find any illegality or infirmity in
the impugned charge-sheet dated 24th
August, 2021 passed by respondent no.4
so as to warrant any interference by this
Court in exercise of powers under Article
226 of the Constitution of India.

19. The present writ petition being
devoid of merits and is accordingly
dismissed.

20. However, it is provided that the
departmental inquiry be initiated against
the petitioner and brought to its logical
end, strictly in accordance with law, at
the earliest possible preferably within a
period of three months from the date of
production of a certified copy of this
order before the disciplinary authority.
----------
(2022)05ILR A920
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.
Rera Appeal No. 1 of 2022
connected with other cases

Air Force Naval Housing Board Air Force
Station, New Delhi & Ors. ...Petitioner
Versus
U.P. Real Estate Regulatory Authority
Regional Office, G.B. Nagar & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri Ashish Kumar Singh, Sri Ajay Kumar
Singh

Counsel for the Respondents:
Sri Wasim Masood, Sri Nar Singh, Sri Anil
Tiwari

(A) Civil Law - Real Estate (Regulation
and Development) Act, 2016 - Sections
2(zk) , 2(zg),4,4(2) ,4(2)(l)(D) ,43(5)
,44,58 & 84 - appeal - Uttar Pradesh Real
Estate
Regulatory
Authority
-
The
Societies Registration Act, 1860 - Section3
- Uttar Pradesh Real Estate (Regulation
and Development) Rules, 2016 - Rule 5 -
The
Real
Estate
(Regulation
and
Development) Bill, 2013 - Section 2(zf)
,38(5) , The Consumer Protection Act,
1986 - Section 2(m) ,The Real Estate
(Regulation and Development) Bill, 2015 -
Section 2(zk) - 'promoter' - The General
Clauses Act (10 of 1897) - Section 3(42) ,
The Income Tax Act (43 of 1961) - Section
2(31) , The Standards of Weights and
Measures Act, (60 of 1976) - Finance Act
(No.2) (21 of 1998) - Section 87 (k) ,
Competition Act, 2002 - Section 2(l) , The
Prevention
of
Money-Laundering
Act,
2002 - Section 2(s) - "person" -
appellants bound to comply the statutory
provision of Section 43(5) of the Act, 2016
- pre-deposit, as envisaged under Section
43(5) of Act, 2016, in no circumstances
can be said to be onerous, or in violation
of
Article
14
or
19(1)(g)
of
the
Constitution of India - law is settled as far
as mandatory compliance of Section 43(5)
of Act, 2016 is concerned in view of the
judgment of Apex Court in the case of M/s
Newtech Promoters and Developers Pvt.