# Noor Ahmad v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 576
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-29
- **Case number:** Writ A No. 11877 of 2011
- **Bench:** Vivek Kumar Birla, Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/noor-ahmad-v-state-of-u-p-ors-51699
- **Pages:** 12

## Headnote

Service Law - U.P. Police - Disciplinary
proceedings - Judicial review - Scope.
Constable found in police uniform in drunken St.
at
public
place
-
Medical
examination
immediately conducted - Report certifying
intoxication proved in enquiry - Full opportunity
afforded to petitioner but he failed to participate
- Held, no procedural defect or violation of
natural justice - In writ jurisdiction, Court
cannot re-appreciate evidence or interfere with
findings of fact where enquiry conducted in
accordance with law. (Paras 22-23)

Service Law - Discipline in Police Force -
Consumption of alcohol while in uniform -
Gravity
of
misconduct
-
Punishment
of
dismissal.
Being
a
member
of
disciplined
force,
consumption of liquor in uniform at public place
tarnishes image of department - Such act
constitutes gross misconduct - Punishment of
dismissal neither disproportionate nor shocks
conscience - Judicial review limited only to
decision-making process, not to adequacy or
proportionality of punishment. (Paras 14-15,
19-20, 23)

Laches - Delay in challenging disciplinary
orders.
Dismissal order dated 10.08.1989; appeal
rejected on 24.12.1994; revision rejected on
25.04.1997; claim petition filed after six years
dismissed for delay; writ petition filed in 2011
with laches of more than 7 years - Explanation
offered not convincing - Held, petitioner guilty
of gross delay and laches, disentitling him to
discretionary relief under Article 226. (Paras 37, 22)

Held : No infirmity in disciplinary proceedings -
Dismissal order justified - Petition devoid of
merit - Dismissed. (Para 23)
Writ Petition Dismissed.

CASE LAW DISCUSSED-

## Text

_Characters 0–39,829 of 40,839. This is a partial read: ask again with offset=39829 for what follows._

576 INDIAN LAW REPORTS ALLAHABAD SERIES
Waghmare, Social Welfare Officer who
sent the proposal before the Labour Court
that he did not utter a single word as to
whether the said supplementary list was
ever
called
for
by
the
department
concerned or not. Thus applying the basic
principle of rule of evidence which
requires a party alleging fraud to give
particulars of the fraud and having found
no such particulars, the Industrial Court
came
to
the
conclusion
that
the
respondent could not be held guilty of
fraud. The said finding of the Industrial
Court has been accepted by the High
Court. Mr. Bhasme though contended that
the fraud in question was played in
collusion with the Social Welfare Officer
and 2 other employees of the Board and
action against the said 2 employees of the
Board has been taken, but by that itself we
are unable to accept the argument of Mr.
Bhasme that there is material to support
the contention of the Board that the
appellant had also contributed to making
the misrepresentation at the time of
applying for the job with the Board. In the
absence of any such particulars being
mentioned in the show- cause notice or at
the trial, attributing some overt act to the
respondent, we do not think the Board can
infer that the respondent had a role to
play in sending a fraudulent list solely on
the basis of the presumption that since the
respondent got a job by the said proposal,
the said list is a fraudulent one. It was the
duty of the Board to have specifically
produced the material to prove that the
respondent himself had the knowledge of
such a fraud and he knowingly or in
collusion with other officials indulged in
this fraud. Since there is no such material
on record, on the facts of the instant case,
the Industrial Court and the High Court
have come to the right conclusion that the
alleged fraud has not been established by
the appellants, hence, this is not a fit case
in which interference is called for. This
appeal, therefore, fails and the same is
dismissed."
(emphasis supplied)

21. In view of above the only
exception in matters of such appointment is
where incumbent himself is found guilty or
part of conspiracy as may be alleged by the
department
in
getting
selection
and
appointment however, where it is all done
by
management
and
beneficiary
of
selection has not been responsible, such
harsh action should not be taken after more
than ten years of regular service.

22. In view of above, writ petition
succeeds and is allowed. The order dated
25.4.2023 passed by Joint Director of
Education
(Secondary
Education)
Azamgarh Region, Azamgarh as well as
order dated 14.7.2023 passed by District
Inspector of Schools, Azamgarh are hereby
quashed. Respondents are directed to pass
order afresh in the light of observations
made hereinabove. Appropriate order shall
be passed within thirty days from the date
of certified copy of this order.

23. Thus this petition stands allowed
in above terms with no order as to cost.
----------
(2024) 3 ILRA 576
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2024
BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

Writ A No. 11877 of 2011

Noor Ahmad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
3 All. Noor Ahmad Vs. State of U.P. & Ors.
577
Counsel for the Petitioner:
Sri Gulab Chandra

Counsel for the Respondents:
C.S.C.

Service Law - U.P. Police - Disciplinary
proceedings - Judicial review - Scope.
Constable found in police uniform in drunken St.
at
public
place
-
Medical
examination
immediately conducted - Report certifying
intoxication proved in enquiry - Full opportunity
afforded to petitioner but he failed to participate
- Held, no procedural defect or violation of
natural justice - In writ jurisdiction, Court
cannot re-appreciate evidence or interfere with
findings of fact where enquiry conducted in
accordance with law. (Paras 22-23)

Service Law - Discipline in Police Force -
Consumption of alcohol while in uniform -
Gravity
of
misconduct
-
Punishment
of
dismissal.
Being
a
member
of
disciplined
force,
consumption of liquor in uniform at public place
tarnishes image of department - Such act
constitutes gross misconduct - Punishment of
dismissal neither disproportionate nor shocks
conscience - Judicial review limited only to
decision-making process, not to adequacy or
proportionality of punishment. (Paras 14-15,
19-20, 23)

Laches - Delay in challenging disciplinary
orders.
Dismissal order dated 10.08.1989; appeal
rejected on 24.12.1994; revision rejected on
25.04.1997; claim petition filed after six years
dismissed for delay; writ petition filed in 2011
with laches of more than 7 years - Explanation
offered not convincing - Held, petitioner guilty
of gross delay and laches, disentitling him to
discretionary relief under Article 226. (Paras 37, 22)

Held : No infirmity in disciplinary proceedings -
Dismissal order justified - Petition devoid of
merit - Dismissed. (Para 23)
Writ Petition Dismissed.

CASE LAW DISCUSSED-
1. Mahipal Vs St. of U.P. & ors., 2018 (4) ADJ
258

2. Satya Prakash Singh Vs St. of U.P. & ors.
(Writ - A No. 61116 of 2011)

3. Samar Bahadur Singh Vs St. of U.P. & ors.,
(2011) 9 SCC 94

4. U.O.I. Vs P. Gunasekaran, (2015) 2 SCC 610

5. U.O.I. & ors. Vs Constable Sunil Kumar, AIR
2023 SC 554

6. Ex CT/GD Om Prakash Vs U.O.I. & ors.,
W.P.(C) No.1883 of 2010 (Delhi High Court)

7. Ex-Constable/Dvr Mukesh Kumar Raigar Vs
U.O.I. & ors., 2023 SCC OnLine SC 27

8.
Deputy
General
Manager
(Appellate
Authority) Vs Ajai Kumar Srivastava, (2021) 2
SCC 612

9. Indian Oil Corporation Ltd. Vs Ajit Kumar
Singh, AIR 2023 SC 2388

(Delivered by Hon'ble Vivek Kumar Birla,
J.)

1. Heard Shri Gulab Chandra, learned
counsel for the petitioner and Shri Krishna
Kumar Singh, learned Standing Counsel for
the State-respondents.

2. By means of the present writ
petition, the petitioner is seeking quashing
of the order dated 10.08.1989 passed by
Senior Superintendent of Police, Meerut as
well as the order dated 24.12.1994 passed
by the Deputy Inspector General of Police
and the order dated 25.04.1997 passed by
the Inspector General of Police and the
order dated 22.10.2003 passed by the
Tribunal in Claim Petition No.709 of 2003.

3. Stamp reporter has reported laches
of 7 years and 29 days in filing present
578 INDIAN LAW REPORTS ALLAHABAD SERIES
petition on the date of reporting on
18.02.2011.

4. To explain the delay learned
counsel for the petitioner has drawn our
attention to paragraph nos. 2 and 14 to 37.
The grounds for explaining the laches of 7
years and 29 days is that after decision of
the Tribunal dated 22.10.2003, petitioner
reached Allahabad on 01.01.2004 where
some imposter met him at Allahabad
Railway Station and took him to Advocate
Shri
Suresh
Swaroop
Saxena,
who
ultimately promised to file a petition and
take all relevant papers along with
expenses
and
get
his
signature
on
Vakalatnama and some other watermark
papers on 01.01.2004 and Shri Suresh
Swaroop Saxena also gave his landline
number. The petitioner thereafter waited for
six months. Thereafter on 04.08.2004 he
was informed that a counter affidavit was
called for. Subsequently, on 06.12.2004 it
was informed that no counter affidavit was
filed. Thereafter, the petitioner came to
Allahabad
on
08.07.2005
for
filing
rejoinder affidavit and expenses were also
given. It is stated that the petitioner was in
continuous touch with Shri Saxena and he
always assured him that he need not to
worry about the case and the case would
come on his turn for hearing. Thereafter
after waiting long time on 18.12.2010 he
tried to contact with Shri Saxena, then
some lady in the house of Shri Saxena took
the phone and said that Shri Saxena is no
more. Thereafter,
petitioner came to
Allahabad on 20.12.2010 and contacted the
family of Shri Saxena and tried to find out
records of his case, but the same cannot be
found. Thereafter, he contacted the present
counsel, who made enquiries and found
that no such petition was filed in the name
of the petitioner, namely, Noor Mohammad
either in the Allahabad High Court or in the
Lucknow Bench of the Allahabad. The
petitioner, therefore, engaged the present
counsel and handed over all the relevant
papers after obtaining fresh certified copy
of
the
order
dated
22.10.2003
and
thereafter the present petition was filed by
Shri Gulab Chandra, learned counsel.

5. Submission of the learned counsel
for the petitioner is that there is no
deliberate delay on the part of the petitioner
and such huge delay is liable to be
condoned.

6. Although, the explanation so
submitted seems to be faultless, however,
we are not impressed as the petitioner, who
was working as Constable in civil police
was dismissed from service is undisputedly
a literate person and in case the alleged
petition was filed by the earlier counsel, he
neither tried to take copy of the petition,
nor copy of the counter affidavit or copy of
the rejoinder affidavit filed in such petition
for long seven years. Further, he not even
cared to ask the number of the writ petition
allegedly filed at his instance from the
counsel for all such long more than 7 years,
therefore, we are not convinced with the
explanation so submitted.

7. We have also noticed that Claim
Petition no.709 of 2003 filed by the
petitioner before the Tribunal was also not
within one year of limitation as against the
order dated 25.04.1997 the claim petition
was filed after six years on 13.08.2003.

8. However, in view of the fact
that present petition is pending for the last
13 years and affidavits have also been
exchanged, we proceed to consider the case
on merits.

9. Submission of the learned counsel
for the petitioner is that charge against the
3 All. Noor Ahmad Vs. State of U.P. & Ors.
579
petitioner was that on 05.12.1986 he was
found lying in police uniform in a drunken
state at Hapur Bus Stand and was taken to
the police station and thereafter his medical
examination
was
conducted. As
per
medical report, he was in a drunken state.
Thereafter, a preliminary enquiry was
conducted; witnesses were examined and in
the preliminary enquiry the charges were
found to be proved that he was found lying
in a drunken state in police uniform at
Hapur Bus Stand and he tarnished the
image of the Police Department, therefore,
inquiry was directed to be conducted.

10. It is submitted that in the regular
inquiry, the petitioner filed an application
dated 14.11.1998 for examining the doctor
concerned, who alleged to have issued the
medical certificate, but his application was
not considered. Thereafter, the petitioner
moved
another
application
dated
28.11.1988
before
the
Senior
Superintendent of Police, Meerut for
deputing another Presiding Officer but this
application was also not considered.
Submission of the learned counsel for the
petitioner is that Enquiry Officer has not
afforded proper opportunity of hearing to
the petitioner, nor he appreciated the
explanation submitted by him; he also did
not record any cogent finding of facts and
submitted
final enquiry
report
dated
05.06.1989 before Disciplinary Authority.
On the aforesaid report, a show cause
notice was issued to him on 19.06.1989, to
which petitioner submitted his explanation
on 19.07.1989 through Reserve Inspector
(R.I.) but the said explanation was ignored.
Thereafter, the Senior Superintendent of
Police without giving any notice for oral
evidence, dismissed the petitioner from
service by the impugned order dated
10.08.1989, which is in contravention of
Service Rules. Against the said order dated
10.08.1989, the petitioner preferred an
appeal before the Deputy Inspector General
of Police, which was rejected in a most
mechanical manner without application of
mind
on
24.12.1994. Thereafter, the
petitioner preferred a Revision before the
Inspector General of Police, which was
rejected on 25.04.1997. Thereafter, the
petitioner approached the Tribunal by filing
Claim Petition No.709 of 2003, which was
rejected by the Tribunal vide order dated
22.10.2003 on the ground of latches.

11. Further submission of the learned
counsel for the petitioner is that prescribed
procedure has not been followed in the
proceedings against the petitioner and the
petitioner has been illegally dismissed from
service. He submits that the alleged
misconduct does not warrant any major
penalty under the provision of U.P. Police
Subordinate
Officer
(Punishment
and
Appeals)
Rules,
1991.
Submission,
therefore, is that the impugned orders are
liable to be quashed.

12. Per contra, learned Standing
Counsel
for
the
State-Respondent
submitted that due procedure as applicable
for conducting enquiry was conducted and
the petitioner was afforded full opportunity
of hearing and it is a case of gross
misconduct where the petitioner was found
lying at Hapur Bus Stand in a drunken state
in police uniform. The petitioner being a
Constable is a member of disciplined force
has committed gross misconduct and has
rightly been dismissed from service.
Learned
Standing
Counsel
further
submitted that there are huge laches in
approaching
the
Tribunal,
therefore,
Tribunal has rightly dismissed the Claim
Petition filed by the petitioner being time
barred and orders of Disciplinary Authority
are also in accordance with law warranting
580 INDIAN LAW REPORTS ALLAHABAD SERIES
no interference. Submission, therefore, is
that the writ petition is liable to be
dismissed.

13. We have considered the rival
submissions and perused the records.

14. Before proceeding further it
would be appropriate to take note of the
law as settled by Hon'ble Apex Court in
respect of judicial review in disciplinary
proceedings particularly in a case where
member of disciplined force was found
intoxicated. One of us (Vivek Kumar Birla,
J.) has considered the law in almost
identical facts of the case in Mahipal vs.
State of U.P. and Others, 2018 (4) ADJ
258 relating to U.P. Police Officers of
Subordinate
Rank
(Punishment
and
Appeal) Rules, 1991, where the petitioner
was found to have consumed liquor; his
medical examination was conducted and
thereafter, he was dismissed from service.
Paragraph 10 whereof is quoted as under:-

"10. I have considered identical
submissions in another matter being Writ-A
No. 61116 of 2011 (Satya Prakash Singh vs.
State
of
UP
and
others).
Relevant
paragraphs whereof are quoted as under:

"The submission of the learned
counsel for the petitioner is that the
petitioner was not medically examined and
his blood and urine test was not carried out
to ascertain that he had taken liquor or not.
He submits that the punishment of
dismissal from service is excessive. He
further submits that there was no eye
witness of the incident.

A perusal of record clearly
indicates that a finding of fact has been
recorded that an incident had taken place
and the petitioner had indulged in scuffle,
while he was under intoxication. All these
findings of fact cannot be looked into under
Article 226 of the Constitution of India.
However, even a glance over the enquiry
report
clearly
demonstrates
that
the
incident that had taken place is not in
dispute and the petitioner had tried to
certify the question of intoxication by
saying that he was under treatment of a
Homoeopathic doctor and was having
medicines containing alcohol and that he
had consumed medicine in a little excessive
quantity. The medical examination of the
petitioner was carried out at the Primary
Health Centre, Gangapur, Varanasi and the
doctor had certified that foul smelling was
coming from the petitioner and he was also
injured. Dr. B.N. Shukla who was treating
the petitioner and was produced by the
petitioner had stated that smell of alcohol
exists
about
10
-15
minutes
after
consumption of medicines. Undisputedly, it
cannot be said that such medicine was
taken by the petitioner on the spot of the
incident whereas he was also taken to the
Primary Health Centre and in between
considerable time must have expired but
still foul smell was coming from the mouth
of the petitioner, which according to his
own witness Dr. B.N. Shukla, Homoeopath,
smell should not come after 10 -15 minutes,
even if the version of the petitioner is taken
to be correct that he had consumed
homoeopathic medicine and was smelling
foul for this reason.

Under any circumstances, I do
not find that the findings recorded by the
enquiry officer are so perverse in nature
which may warrant interference by this
Court. The petitioner is a member of
disciplined force and as such for such
misconduct I do not find that any
interference to the quantum of punishment
is required by this Court. Reference may be
made in this regard to a judgment rendered
by the Hon'ble Apex Court in the case of
Samar Bahadur Singh Vs. State of U.P. and
3 All. Noor Ahmad Vs. State of U.P. & Ors.
581
others 2011 (9) SCC 94 wherein a
constable was found guilty of consuming
liquor, the Hon'ble Apex Court refused to
interfere. A reference may also be made to
a judgment in the case of Union of India
Vs. P. Gunasekaran 2015 (2) SCC 610.
Paragraphs 19, 20 and 21 of the judgment
in the case of P. Gunasekaran supra are
quoted as under:

"19. The disciplinary authority,
on scanning the inquiry report and having
accepted it, after discussing the available
and admissible evidence on the charge, and
the Central Administrative Tribunal having
endorsed the view of the disciplinary
authority, it was not at all open to the High
Court to reappreciate the evidence in
exercise of its jurisdiction under Articles
226/227 of the Constitution of India.

20. Equally, it was not open to the
High Court, in exercise of its jurisdiction
under Article 226/227 of the Constitution of
India, to go into the proportionality of
punishment so long as the punishment does
not shock the conscience of the court. In the
instant case, the disciplinary authority has
come to the conclusion that the respondent
lacked integrity. No doubt, there are no
measurable standards as to what is
integrity in service jurisprudence but
certainly there are indicators for such
assessment. Integrity according to Oxford
dictionary is "moral uprightness; honesty".
It takes in its sweep, probity, innocence,
trustfulness,
openness,
sincerity,
blamelessness,
immaculacy,
rectitude,
uprightness, virtuousness, righteousness,
goodness, cleanness, decency, honour,
reputation,
nobility,
irreproachability,
purity, respectability, genuineness, moral
excellence etc. In short, it depicts sterling
character with firm adherence to a code of
moral values.

21. The impugned conduct of the
respondent working as Deputy Office
Superintendent in a sensitive department of
Central
Excise,
according
to
the
disciplinary authority, reflected lack of
integrity warranting discontinuance in
service. That view has been endorsed by
the Central Administrative Tribunal also.
Thereafter, it is not open to the High Court
to go into the proportionality of punishment
or substitute the same with a lesser or
different punishment. These aspects have
been discussed at quite length by this Court
in
several
decisions
including
B.C.
Chaturvedi v. Union of India and others,
1995 (6) SCC 749, Union of India and
another v. G. Ganayutham, 1997 (7) SCC
463, Om Kumar and others v. Union of
India, 2001 (2) SCC 386, Coimbatore
District Central Cooperative Bank v.
Coimbatore District Central Cooperative
Bank Employees Association and another,
2007 (4) SCC 669, Coal India Limited and
another v. Mukul Kumar Choudhuri and
others, 2009 (15) SCC 620 and the recent
one in Chennai Metropolitan Water Supply
(supra)."

Relevant paragraphs 5, 6 and 8
of the judgement in Samar Bahadur Singh
(supra) are quoted as under:

"5. Counsel appearing for the
Appellant has submitted before us that a
criminal case was also instituted for the
aforesaid incident in which he was
acquitted
and
therefore,
in
the
departmental proceeding also which was
initiated he should also have been
acquitted and the same should have been
allowed to be ended in his favour. He
further submits that in any case it has come
in evidence that the Appellant was advised
to take medicine which he had taken and,
therefore, there was some smell of liquor
from the medicine when a medical check-up
was done. Relying on the same, counsel
submits that the entire charge is concocted
and therefore, he is required to be held not
582 INDIAN LAW REPORTS ALLAHABAD SERIES
guilty of the charge. The next submission of
the counsel appearing for the Appellant is
that the punishment given to the Appellant
is disproportionate to the charges levelled
against him.

6. We have considered all the
aforesaid submissions in the light of the
records that are available with us. The
medical report which is placed on record
indicates that the Appellant had consumed
alcohol, but he was not intoxicated. The
Appellant
was
missing
from
the
headquarters on 27.10.1991 from the
morning and he was caught in the case
registered under Section 392I.P.C. in the
evening. The Appellant wishes to make a
defence that he was advised to take
medicine but the prescription which is
placed in the departmental proceedings
does not indicate that any medicine was
prescribed
in
that
prescription.
The
Appellant was arrested in the criminal case
in connection with stealing of a bottle of
foreign liquor and even during that time he
had consumed alcohol prior to the incident.
These facts have been brought out in the
inquiry proceedings initiated against him in
which the Appellant did not participate.
Therefore, whatever allegations have been
brought against him, have been proved by
placing cogent materials on record, which
go unrebutted due to his absence in the
proceedings.
We
also
find
that
the
Appellant has been charged on the ground
of negligence, dereliction of duty and
consuming liquor. The aforesaid facts are
found
proved
in
the
departmental
proceedings.

8. Now, the issue is whether
punishment awarded to the Appellant is
disproportionate to the offence alleged. The
Appellant belongs to a disciplinary force
and the members of such a force is required
to maintain discipline and to act in a
befitting manner in public. Instead of that,
he was found under the influence of liquor
and then indulged himself in an offence. Be
that as it may, we are not inclined to
interfere with the satisfaction arrived at by
the disciplinary authority that in the
present case punishment of dismissal from
service is called for. The punishment
awarded, in our considered opinion, cannot
be said to be shocking to our conscience
and, therefore, the aforesaid punishment
awarded
does
not
call
for
any
interference."

15. In Union of India and Others vs.
Constable Sunil Kumar, AIR 2023 SC
554 wherein the C.R.P.F. personnel was
found to have consumed liquor while on
government duty and threatened the senior
officer. While upholding the dismissal and
considering the argument that penalty of
dismissal
was
disproportionate
to
wrong/misconduct committed, order of
dismissal was found to be justified and it
was held that such penalty of dismissal
cannot be said to be disproportionate and/or
strikingly disproportionately to the gravity
of the wrong and under the circumstances
of the case order of Division Bench
interfering in the order of penalty of
dismissal
imposed
and
ordering
reinstatement of the respondent. Paragraphs
6.1, 6.2, 6.3 whereof are quoted as under:-

"6.1 While holding that the
penalty of dismissal can be said to be
disproportionate to the gravity of the
wrong, what is weighed with the Division
Bench of the High Court is that as the
respondent was found to be in a state of
intoxication when not on duty and
considering Section 10, he is deemed to
have committed a less heinous offence.
Whether a member of the force has
committed a heinous offence or a less
heinous offence as per Sections 9 and 10 of
3 All. Noor Ahmad Vs. State of U.P. & Ors.
583
the CRPF Act, 1949 would have bearing on
inflicting the punishment as provided under
Sections 9 and 10 but has no relevance on
the disciplinary proceedings/departmental
enquiry for the act of indiscipline and/or
insubordination. In the case of Surinder
Kumar (supra), it is observed that even in a
case when a CRPF personnel was awarded
imprisonment under Section 10(n) for an
offence which though less heinous, he can
be dismissed from service, if it is found to
be prejudicial to good order and discipline
of CRPF. Under the circumstances, the
reasoning given by the High Court that as
the
respondent
is
deemed
to
have
committed a less heinous offence, the order
of penalty of dismissal can be said to be
disproportionate is not required to be
accepted.

6.2 Even otherwise, the Division
Bench of the High Court has materially
erred in interfering with the order of
penalty of dismissal passed on proved
charges and misconduct of indiscipline and
insubordination and giving threats to the
superior of dire consequences on the
ground that the same is disproportionate to
the gravity of the wrong. In the case of
Surinder Kumar (supra) while considering
the power of judicial review of the High
Court in interfering with the punishment of
dismissal, it is observed and held by this
Court after considering the earlier decision
in the case of Union of India Vs. R.K.
Sharma; (2001) 9 SCC 592 that in exercise
of powers of judicial review interfering
with the punishment of dismissal on the
ground that it was disproportionate, the
punishment
should
not
be
merely
disproportionate but should be strikingly
disproportionate. As observed and held that
only in an extreme case, where on the face
of it there is perversity or irrationality, there
can be judicial review under Article 226 or
227 or under Article 32 of the Constitution.

6.3 Applying the law laid down
by this Court in the aforesaid decision(s) to
the facts of the case on hand, it cannot be
said that the punishment of dismissal can
be said to be strikingly disproportionate
warranting the interference of the High
Court in exercise of powers under Article
226 of the Constitution of India. In the facts
and circumstances of the case and on the
charges and misconduct of indiscipline and
insubordination proved, the CRPF being a
disciplined force, the order of penalty of
dismissal was justified and it cannot be said
to be disproportionate and/or strikingly
disproportionate to the gravity of the
wrong. Under the circumstances also, the
Division Bench of the High Court has
committed
a
very
serious
error
in
interfering with the order of penalty of
dismissal
imposed
and
ordering
reinstatement of the respondent."

16. Relying upon the aforesaid
judgments Honourable Division Bench of
the Delhi High Court in Writ Petition C)
No.1883 of 2010 (Ex CT/GD Om
Prakash vs. Union of India and Others)
under
similar
charges
upheld
the
punishment of dismissal observing that the
member of police force is expected to be
highly disciplined and cannot be permitted
to do away with such like activities.

17. A reference may also be made to
the judgment of Hon'ble apex Court in ExConstable/Dvr Mukesh Kumar Raigar
vs. Union of India and Others, 2023 SCC
OnLine SC 27. Paragraphs 12 and 13
whereof reads as under:-

"12. Again, a three-judge
Bench in case of Deputy General Manager
(Appellate Authority) & Ors. vs. Ajai
Kumar
Srivastava,
circumscribing
the
power
of
judicial
review
by
the
constitutional courts held as under:
584 INDIAN LAW REPORTS ALLAHABAD SERIES

"24. It is thus settled that the
power
of
judicial
review,
of
the
constitutional courts, is an evaluation of the
decision-making process and not the merits
of the decision itself. It is to ensure fairness
in treatment and not to ensure fairness of
conclusion.
The
court/tribunal
may
interfere in the proceedings held against the
delinquent if it is, in any manner,
inconsistent with the rules of natural justice
or in violation of the statutory rules
prescribing the mode of enquiry 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 or where the conclusions upon
consideration of the evidence reached by
the disciplinary authority are perverse or
suffer from patent error on the face of
record or based on no evidence at all, a writ
of certiorari could be issued. To sum up, the
scope of judicial review cannot be extended
to the examination of correctness or
reasonableness of a decision of authority as
a matter of fact.

25. xxxxxxx

26. xxxxxxx

27.xxxxxxxx

28. The constitutional court while
exercising its jurisdiction of judicial review
under Article 226 or Article 136 of the
Constitution would not interfere with the
findings
of
fact
arrived
at
in
the
departmental enquiry proceedings except in
a case of mala fides or perversity i.e. where
there is no evidence to support a finding or
where a finding is such that no man acting
reasonably and with objectivity could have
arrived at those findings and so long as
there is some evidence to support the
conclusion arrived at by the departmental
authority, the same has to be sustained."

13. In view of the afore-stated
legal position, we are of the opinion that
the Division Bench of the High Court had
rightly set aside the order passed by the
Single
Bench,
which
had
wrongly
interfered with the order of removal passed
by the respondent authorities against the
petitioner. The petitioner having been found
to have committed gross misconduct right
at the threshold of entering into disciplined
force like CISF, and the respondent
authorities having passed the order of his
removal from service after following due
process of law and without actuated by
malafides, the court is not inclined to
exercise its limited jurisdiction under
Article 136 of the Constitution."

18. The law regarding the scope of
judicial review by the constitutional courts
was again considered in the case of Indian
Oil Corporation and Ors. Vs. Ajit
Kumar Singh and Anr., AIR 2023 SC
2388. Relevant extract whereof reads as
under:-

".......The views expressed by
this Court on the scope of judicial review in
Deputy
General
Manager
(Appellate
Authority) vs. Ajai Kumar Srivastava 1 ,
are extracted below:

"24. It is thus settled that the
power
of
judicial
review,
of
the
constitutional courts, is evaluation of the
decision-making process and not the merits
of the decision itself. It is to ensure fairness
in treatment and not to ensure fairness of
conclusion.
The
court/tribunal
may
interfere in the proceedings held against the
delinquent if it is, in any manner,
inconsistent with the rules of natural justice
or in violation of the statutory rules
prescribing the mode of enquiry or where
the conclusion or finding reached by the
disciplinary authority is based on no
evidence.
3 All. Noor Ahmad Vs. State of U.P. & Ors.
585

If the conclusion or finding be
such as no reasonable person would have
ever reached or where the conclusions upon
consideration of the evidence reached by
the disciplinary authority are perverse or
suffer from patent error on the face of
record or based on no evidence at all, a writ
of certiorari could be issued. To sum up, the
scope of judicial review cannot be extended
to the examination of correctness or
reasonableness of a decision of authority as
a matter of fact.

25-27 xx xx xx

28. The constitutional court while
exercising its jurisdiction of judicial review
under Article 226 or Article 136 of the
Constitution would not interfere with the
findings
of
fact
arrived
at
in
the
departmental enquiry proceedings except in
a case of mala fides or perversity i.e. where
there is no evidence to support a finding or
where a finding is such that no man acting
reasonably and with objectivity could have
arrived at those findings and so long as
there is some evidence to support the
conclusion arrived at by the departmental
authority, the same has to be sustained ."
(emphasis supplied)

19. Reference may also be made
to the judgment of Hon'ble Apex Court in
the case of Union of India and Others vs.
P. Gunasekaran, (2015) 2 SCC 610
wherein it was held that once the finding of
fact recorded by the disciplinary authority
has been affirmed by the Tribunal, it was
not open to the High Court, in exercise of
its jurisdiction under Article 226/227 of the
Constitution of India, to go into the
proportionality of punishment so long as
the punishment does not shock the
conscience of the Court. Paragraphs 12, 13,
20, 21 and 24 of the judgment are quoted as
under:-

"12. Despite the well-settled
position, it is painfully disturbing to note
that the High Court has acted as an
appellate authority in the disciplinary
proceedings,
re-appreciating
even
the
evidence before the enquiry officer. The
finding on Charge no. I was accepted by
the disciplinary authority and was also
endorsed by the Central Administrative
Tribunal. In disciplinary proceedings, the
High Court is not and cannot act as a
second court of first appeal. The High
Court, in exercise of its powers under
Article 226/227 of the Constitution of
India, shall not venture into reappreciation
of the evidence.

The High Court can only see
whether:

a. the enquiry is held by a
competent authority;

b.
the
enquiry
is
held
according to the procedure prescribed in
that behalf;

c. there is violation of the
principles of natural justice in conducting
the proceedings;

d. the authorities have disabled
themselves from reaching a fair conclusion
by some considerations extraneous to the
evidence and merits of the case;

e. the authorities have allowed
themselves to be influenced by irrelevant or
extraneous considerations;

f. the conclusion, on the very face
of it, is so wholly arbitrary and capricious
that no reasonable person could ever have
arrived at such conclusion;

g. the disciplinary authority had
erroneously failed to admit the admissible
and material evidence;

h. the disciplinary authority had
erroneously admitted inadmissible evidence
which influenced the finding;

i. the finding of fact is based on
no evidence.
586 INDIAN LAW REPORTS ALLAHABAD SERIES

Under Article 226/227 of the
Constitution of India, the High Court shall
not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions
in the enquiry, in case the same has been
conducted in accordance with law;

(iii). go into the adequacy of the
evidence;

(iv). go into the reliability of the
evidence;

(v). interfere, if there be some
legal evidence on which findings can be
based.

(vi). correct the error of fact
however grave it may appear to be; (vii). go
into the proportionality of punishment
unless it shocks its conscience."

20. On perusal of the above quoted
law it is, therefore, now well settled
position that the High Court shall only look
into the aspect as to whether the enquiry
was conducted as per procedure; the High
Court shall not reappreciated the evidence;
the High Court shall not interfere with the
conclusion in the enquiry, in case the same
has been conducted in accordance with
law; the High Court shall not go into the
adequacy of the evidence; the High Court
shall not go into the reliability of the
evidence; the High Court shall not
interfere, if there be some legal evidence on
which the findings can be based; the High
Court shall not correct the error of facts,
however grave it may appear to be; the
High
Court
shall
not
go
into
the
proportionality of punishment unless it
shocks its conscience.

21. We need not burden our judgment
by making reference to other case law
wherein such settled principles of law have
been reiterated.

22. Now, reverting back to to the facts
of the present case we may recollect that
charge on the petitioner was that on
05.12.1986 at about 3:40 pm he was found
lying in police uniform in a drunken state at
Hapur Bus Stand near Tanga Stand. Perusal
of inquiry report would clearly reflect that
he was granted full opportunity of hearing
by fixing dates for the purpose of
submitting his reply for producing evidence
and witnesses in his favour. It has also
clearly come on record that when he was
found
in
a
drunken
state
he
was
immediately taken to the police station and
immediately
thereafter
his
medical
examination was conducted. Dr. S.N.
Sharma in his report has clearly written that
he has consumed alcohol and is under deep
intoxication. This report was supplied to
him. The witnesses on behalf of the
Department were examined. The petitioner
was not present on several dates. It has
further been mentioned in the enquiry
report that after conclusion of the evident
of the prosecution side on 29.04.1989
special messenger was sent to the resident
of the delinquent employee that statement
of prosecution witnesses are over and he
may produce any witness or submit
statement
in
his
defence.
This
communication was duly served upon him,
however, he did not appear before the
Disciplinary Authority thereafter impugned
order of dismissal from service dated
10.08.1989 was passed by the Senior
Superintendent
of
Police,
Meerut.
Representation filed by the petitioner
against the said order was also rejected by
the Deputy Inspector General of Police on
24.12.1994. Thereafter, petitioner filed
revision which was also rejected vide
impugned order dated 25.04.1997 passed
by the Inspector General of Police.
Subsequently, the petitioner approached the
State Public Services Tribunal challenging
3 All. Gulab Dutt Dubey Vs. State of U.P. & Ors.
587
the aforesaid orders. The Tribunal recorded
that no claim petition was filed before the
Tribunal within one year and there was
delay of about six years in filing the claim
petition, therefore, the same was dismissed
on the ground of delay at the admission
stage itself. So far as the present petition is
concerned, the Stamp Reporter has reported
laches of 7 years and 29 days in filing the
present petition on the date of reporting on
18.02.2011. The explanation submitted by
the petitioner has already been considered
by the Court on the sole ground that the
petiton was pending for last about 13 years.

23. In this background of the case we
find that there was no procedural defect in
conducting the enquiry; finding of facts
have been recorded that the petitioner was
found lying in police uniform in a drunken
state at Hapur Bus Stand near Tanga Stand
and Doctor has also certifying the same.
The petitioner in spite of sufficient notice
has not come forward during enquiry
proceeding to dislodge the prosecution
case. He was also given opportunity of
hearing by the disciplinary authority,
however, he did not come forward to show
cause written or oral. We, therefore, do not
find any legal infirmity in the entire
procedure.
----------
(2024) 3 ILRA 587
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2024
BEFORE
THE HON'BLE MANISH KUMAR, J.

Writ A No. 12479 of 2021

Gulab Dutt Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amarendra Pratap Singh

Counsel for the Respondents:
C.S.C.

Service Law - Constitution of India,1950 -
Article 311(2)(a) -Dismissal on conviction in
criminal case - Requirement of considering
conduct.

Dismissal of petitioner, a Lekhpal, solely on
ground of conviction under Sections 302 and
506(2) IPC - Disciplinary authority failed to
consider conduct leading to conviction - Mere
conviction not sufficient to impose major penalty
- Order of dismissal unsustainable. (Paras 1013)