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State of U.P. Thru Prin. Secy v/s Chashamveer Singh & Another

    Service Bench No. 22530 of 2017

    Decided On, 30 November 2018

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE ANIL KUMAR & THE HONOURABLE MRS. JUSTICE REKHA DIKSHIT

    For the Petitioner: Standing Counsel. For the Respondents: Mohd Nasir, C.S.C, Mohd Yasin, Advocate.



Judgment Text

Rekha Dikshit, J.

1. Heard Shri Pankaj Patel, learned Additional Chief Standing Counsel for the petitioners and Mohd. Yasin, learned counsel for the respondent no.1.

By means of the present writ petition, the petitioners have challenged the judgment and order dated 01.10.2014 passed by the State Public Services Tribunal, Lucknow (hereinafter referred to as ''Tribunal') in Claim Petition No.1354 of 2012; Chashamveer Singh v. State of U.P. & Others, order dated 22.03.2017 passed in Review Petition No.49 of 2015 in Re: Claim Petition No.1354 of 2012.

Facts, in brief, of the present case as submitted by learned counsel for the petitioners are that the respondent no.1- Chashamveer Singh was Constable in ''A' DAL of Battalion and in the year 2009 at the relevant time was deputed for Naxalite Duty in District Sonebhadra and while posted there in the night of 09.12.2009, he was absent during night counting. Shri K.S. Maurya, In-charge ''A' DAL reported his absence through his detailed report to Commandant 45th Battalion PAC Aligarh through his letter dated 11.12.2009, upon which after considering the said report the Enquiry was entrusted to Shivirpal, 45th Battalion, PAC, Aligarh.

Accordingly the Enquiry Report was submitted on 05.03.2010 to the commandant. In the said enquiry on the basis of statement of witnesses and documentary evidence the Enquiry Officer found the respondent no.1 to be guilty of unauthorized absence from duty, for not getting medical treatment as p

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er rules and for not informing the higher authorities. On 31.03.2010, on the basis of Enquiry Report, the Commandant/Senior Superintendent of Police, Aligarh directed to hold a regular departmental proceedings in accordance with the provisions of Rule 14 (1) of the U.P Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 and appointed Deputy Commandant, 45th Battalion, PAC Aligarh.

The Enquiry Officer vide letter dated 07.04.2010 served the charge sheet along with enquiry report dated 05.03.2010 upon respondent no.1 which was received by respondent no.1 on the same day i.e. 07.04.2010. In the charge sheet 8 witnesses were mentioned as prosecution witness. During the enquiry proceedings, the statement of witness recorded together with the findings based thereon as also the documentary evidences dated 21.05.2010, his conclusions as also the proposed punishment of dismissal from service together with no pay for unauthorized absence of two days i.e. 09.12.2009 and 10.12.2009 and no salary for the period w.e.f. 12.12.2009 to 20.02.2010 i.e. 71 days on the principle of ''No Work No Pay' was sent and also provided to the respondent no.1.

Show cause notices dated 28.05.2010 were issued to respondent no.1, which were received by him on 29.05.2010 and he replied on 22.06.2010. The Disciplinary Authority dismissed the respondent no.1 vide order dated 30.06.2010 against which an appeal was preferred, which was dismissed on 16.06.2011 and a revision was preferred and the same was also dismissed on 30.11.2011.

In the aforesaid background, the respondent no.1 filed a Claim Petition No.1354 of 2012, which was allowed vide impugned judgement and order dated 01.10.2004 relying on the judgement of the Supreme Court in the cases of State of Uttaranchal & Others v. Khandak Singh; (2008) 2 SCC (L&S) 698 and Raj Kumar Mehrotra v. State of Bihar & Others 2006 SCC (L&S) 679, relevant portion of the same reads as under:

“Language”

No reason has been given by the respondent authority for holding that the charges were proved except for the ipse dixit of the disciplinary authority. The order, therefore, cannot be sustained and must be and is set aside.

“Language”

Shri Pankaj Patel, learned Additional Chief Standing Counsel for the petitioners has challenged the impugned judgment on the following grounds:

(1) The respondent no.1 was a habitual absentee and not once but he had been awarded several times the punishment for his unauthorized absence from duties and the petitioners were justified in drawing adverse inference and doubting the medical prescriptions presented by the claimant-respondent no.1 to be just an alibi and after thought just to escape the charge of unauthorized absence and not due to any forced circumstances since in accordance with the provisions of Paragraph nos. 381, 382 and 383 of the Police Regulations, Appendix No.-V it has been specifically provided that in case if any police officer/employee gets ill then he shall give the information regarding his illness to the place of his Posting/Competent Authority through the concerned Superintendent of Police.

(2) Similar is the position with regard to the objections regarding of making recommendations made by the Enquiry Officer. Thus, although the learned Tribunal itself observed that although there was provision for making recommendations regarding punishment etc. by the Enquiry Officer but the same was to be done on the separate sheet and not in the enquiry report itself.

(3) The learned Tribunal erred in law in not remanding the matter to the Disciplinary Authority for taking decision afresh and instead in directing for reinstatement of claimant-respondent no.1 in service with all consequential benefits.

Mohd. Yasin, learned counsel for the respondent no.1 while supporting the impugned judgement has categorically submitted that the Tribunal has rightly set aside the punishment order as it was not commensurate to the alleged charge against the respondent no.1. More so in view of the fact that he explained his absence due to illness through medical certificates but still he was awarded major punishment of dismissal from service.

We have heard learned counsel for the parties and gone through the record.

A core argument put forth on behalf of the State relates to the recommendation of punishment in the enquiry report in which context Rule 14 (1) of the U.P Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991, which is as follows:

"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) .... (3)...

APPENDIX--I PROCEDURE RELATING TO THE CONDUCT OF DEPARTMENTAL PROCEEDINGS AGAINST POLICE OFFICER [See RULE 14(1)] Upon institution of a formal enquiry such police officer against whom the enquiry has been instituted shall be informed in writing of the grounds on which was proposed to take action and shall be afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be used in the form of a definite charge or charges as in Form-1 appended to these Rules which shall be communicated to the charged police officer and which shall be so clear and precise as to give sufficient indication to the charged police officer, of the facts and circumstances against him. He shall be required, within a reasonable time, to put in, in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the Inquiry Officer so directs an oral enquiry shall be held in respect of such of the allegation as are not admitted. At that enquiry such oral evidence will be recorded as the Inquiry Officer considers necessary. The charge police officer shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish:

Provided that the Inquiry Officer may for sufficient reasons to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged police officer."

As per above stated proviso, Enquiry Officer can always make a recommendation regarding the punishment separately in his enquiry report.

Now the question which is to be considered as to what meaning should be attributed to the word ''Separately'. The word ''Separate' as defined in Black Law Dictionary reads as follows:

"Separate:- Adj. (Of Liability, cause of action, etc.) individual; distinct; particular; disconnected."

Thus, anything which is distinct or disconnected shall be treated as separate. In the present case the recommendation of punishment is certainly disconnected from the enquiry report and is apparently distinct, therefore, it can very well be treated within the ambit of word ''separately'.

A legal assumption and the influence which can be drawn from the word ''Separate' reasonably appears that it does not form part of the enquiry report mentioning of the same in a separate sheet does not make much of the difference.

In the instant case, perusal of the enquiry report shows that the recommendation of the punishment has been separately dealt with in a separate paragraph and it cannot be read as part of the finding of the enquiry. Thus, the argument on the learned Additional Chief Standing Counsel on behalf of the State does not appear to be tenable.

The next point to be considered is that what is the meaning of "speaking order" and in what manner impugned order is to be passed.

A "speaking order" means an order speaking for itself. To put it simply, every order must contain reasons in support of it.

Giving of reasons in support of an order is considered to be the third principle of natural justice. According to this, a party has a right to know not only the result of the enquiry but also the reasons in support of the decision.

If the statute requires recording of reasons, then it is the statutory requirement and, therefore, there is no scope for further enquiry. But even when the statute does not impose such an obligation, it is necessary for the quasi-judicial authority to record reasons, as it is the only visible safeguard against possible injustice and arbitrariness and affords protection to the person adversely affected. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision, whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.

Reasons behind giving speaking order is that if the order passed by the adjudicating authority is subject to appeal or revision, the appellate or revisional court will not be in a position to understand what weighed with the authority and whether the grounds on which the order was passed were relevant, existent and correct and the exercise of the right of appeal would be futile. In CIT v. Walchand Co. (P) Ltd. AIR 1967 SC 1435, Hon'ble the Apex Court observed, "The practice of recording a decision without reasons in support cannot but be deprecated."

In S. N. Mukherjee v. Union of India (1990) 4 SCC 594, the Hon'ble Apex Court observed that except in cases where the requirement of recording reasons has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions must record reasons in support of their decisions.

No particular form of recording of reasons is necessary. It is enough if the adjudicating authority records reasons which are proper, relevant, germane, intelligible and deals with arguments advanced, points raised and conclusions recorded in support of the order or action taken.

In R. v. Deputy Industrial Injuries Commissioner ex parte Moore (1965) I QB 456, Diplock J held as under:

"The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but that he must take into account any material which, as a matter of reason, has some probative value?. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue: The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his."

Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of a sound system of judicial review. Reasoned decision is not only for the purpose of showing the citizen receiving justice, but also a valid discipline for the tribunal/authority itself. Hence, statement of reasons is one of the essentials of justice.

In nutshell, behind recording of reasons,

(a) the party aggrieved has the opportunity to demonstrate before the appellate or revisional court that the reasons which persuaded the authority to reject his case were erroneous;

(b) the obligation to record reasons operates as a deterrent against possible arbitrary action by executive authority invested with judicial power;

(c) it gives satisfaction to the party against whom the order is made.

In the view of the above position in respect to the speaking order, we have examined the order of punishment dated 30.06.2010 passed by the Senior Superintendent of Police/Commandant, 45th Battalion, P.A.C., Aligarh/Punishing Authority.

Perusal of the punishment order dated 30.06.2010 do indicate that satisfactory reason required by the ordinary sense of justice has not been given by the Disciplinary Authority. A reasoned and speaking order is a healthy discipline of all those, who exercise power over others and in such situation it becomes almost imperative upon the authorities to pass a reasoned and speaking order specially when it adversely affects the interest of other persons.

In the result, the special appeal is allowed and the judgment and order dated 01.10.2014 passed by the Tribunal in Claim Petition No.1354 of 2012; Chashamveer Singh v. State of U.P. & Others, order dated 22.03.2017 passed in Review Petition No.49 of 2015 in Re: Claim Petition No.1354 of 2012, appellate order dated 16.06.2011, revisional order dated 30.11.2011 and orders dated 30.06.2010 passed by the Disciplinary Authority/Senior Superintendent of Police/Commandant, 45th Battalion, P.A.C., Aligarh are set aside. The matter is remanded back to the Disciplinary Authority/Senior Superintendent of Police/Commandant, 45th Battalion, P.A.C., Aligarh to pass fresh punishment order in accordance with law. So far as the salary and other consequential benefits is concerned, the same shall be subject to outcome of the Disciplinary Authority.

There is no order as to costs.
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