High Court · 2025

1. Heard Sri Larensh Sankhwar, petitioner in person and Sri P.K. Srivastava, learned Additional Chief Standing Counsel.

2. By means of these above two petitions filed under Article 226 of the Constitution, petitioner has questioned the order passed by the disciplinary authority dated 27.03.2019 imposing penalty in the nature of dismissal from service, the order passed by appellant authority dated 20.08.2019 affirming the order of punishment and so also the order dated 24.02.2020 passed by the authority dismissing the revision petition and also the order dated 19.05.2022 passed by the Additional Chief Secretary, Home (Police) Department U.P. Shasan, District Lucknow rejecting further review petition.

3. Petitioner has raised following substitution while questioning the orders impugned: i. Despite the fact that petitioner was placed under suspension vide order dated 11.09.2017 and was attached to Police Lines, Kanpur Dehat, he was not paid any subsistence allowance. ii. In the absence of subsistence allowance, petitioner had no source of finance to approach the disciplinary authority to file his reply to the charge sheet and further to participate in the oral enquiry. iii. Petitioner was never served with any notice by the departmental enquiry officer at any point of time so as to invite him to participated in the domestic enquiry. iv. After receiving the show cause notice dated 11.02.2019 on 12/13.02.2019, since petitioner was suffering from acute diabetes having the marking index of 700, he could not submit reply to the show cause notice, inasmuch as the petitioner having not been paid subsistence allowance, he had not enough financial means to travel to disciplinary authority's office and family was also faced with acute financial crisis. v. Since petitioner's participation is lacking in the departmental enquiry, inasmuch as, subsistence allowance was not paid, the entire departmental enquiry and consequential disciplinary proceeding was void per judgment of Supreme Court. vi. Upon the legal principles as to the rights and powers vested with the enquiry officer the enquiry officer, could not have proposed the punishment of dismissal from service and yet he proposed this punishment by submitting enquiry report on 14.01.2019 upon which the show cause notice was issued with the proposed punishment of dismissal from service and hence the disciplinary authority also did not apply its independent mind as to the correctness of the report submitted by the enquiry officer regarding proposed punishment. Thus, the enquiry report stood vitiated in law. vii. Quantum of punishment is also disproportionate to the charge leveled and also leading to the previous service records which according to petitioner has remained unblemished.

4. Meeting the above submissions, learned Additional Chief Standing Counsel has sought to defend the order for the reason that petitioner did not report to Police Lines, Kanpur Dehat while he was attached to the Police Lines under the order of suspension and hence petitioner was taken to have absconded. It is further submitted that the enquiry officer submitted a detailed report in which it has come to be categorically recorded that preliminary fact finding report was served upon the petitioner through messenger on 30.03.2017 and further he was required to submit reply to the charge sheet vide notices dated 14.04.2018, 20.06.2018, 20.06.2018 and 27.06.2017 which were duly served upon him through messenger as well as through registered post and yet he chose not to reply the same.

5. It is also contended by learned Additional Chief Standing Counsel that in the event petitioner did not participate in the oral enquiry, he was only to be blaimed and as per rules enquiry officer had no other option but to conclude enquiry, may be ex parte, and submit report.

6. In the given facts and circumstances of the case regarding the show cause notice learned Additional Chief Standing Counsel submits that if the delinquent employee is not submitting reply to the show cause notice, the disciplinary authority cannot be faulted in accepting the enquiry report of the enquiry officer bringing home the charge and resultantly awarding punishment.

7. On the ex parte enquiry report, learned Additional Chief Standing Counsel submitted that the petitioner having not reported to the Police Lines, Kanpur Dehat, had shown a grave misconduct on his part in the matter by not participating in departmental enquiry deliberately even though he had received all notices he is to blame himself. It is submitted that even if he was suffering from any particular disease at the time he received second show cause notice, he ought to have applied for time. It is argued that if he had time to file appeal and revision, it cannot be said that petitioner had not enough financial means to participate in disciplinary proceedings.

8. On the last legal point argued regarding punishment recommended by the enquiry officer, learned Additional Chief Standing Counsel submits that disciplinary authority has applied its independent mind and even if the enquiry officer had recommended punishment, it cannot be taken to have vitiated the entire disciplinary proceeding.

9. On the question of application of legal principle as enunciated in the judgment of the Supreme Court, learned Additional Chief Standing Counsel submits that the Courts do not lay down theories of law and therefore, judgment has to be applied in the setting of facts of a case. In support of his argument, learned Standing Counsel has relied upon following authorities: (i). In the case of Bharat Petroleum Corporation Ltd. and another v. N.R. Vairamani and another; 2004 (8) SCC 579, the Supreme Court placing reliance on the observations made on the question of law but in the case of London Graving Dock Corporation Ltd. v. Horton; 1951 AC 737 p. 761 has observed that "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes..............." (ii). In yet another judgment in the case of Oriental Insurance Corporation Ltd. v. Smt. Raj Kumari and others; AIR 2008 SC 403, the Supreme Court vide paragraph 11 has held that "11. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent........." (iii). Relying upon the above two judgments, a concurrent Bench of this Court in the case of Sandeep Kumar Pandey v. State of U.P. through Principal Secretary Nagar Vikas Vibhag and another in Service Single No.- 14055 of 2021 decided on 8th July, 2021 has formulated points for consideration of judgments as a binding precedent as under:- "(a) The ratio of any decision has to be understood in the background of the facts of that case; (b) A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision; (c) The Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed; (d) Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context; (e) An additional or different fact may make a world of difference between conclusions in two cases; (f) Disposal of cases by blindly placing reliance on a decision is not proper; (g) Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect."

10. Learned Additional Chief Standing Counsel submits that looking to the facts and circumstances of the present case and the conduct of the petitioner, this petition deserves to be dismissed.

11. Having heard the petitioner in person and learned Standing Counsel for the State respondents and having perused the records, I find it to be an admitted fact position that petitioner was served with several notices as recitals contained in the enquiry report do reflect that petitioner was not only served with preliminary fact finding enquiry report but even subsequently notices were also served upon him at his address through messenger. In the entire writ petition there is no whisper about this fact stated in enquiry report to be false as such or that he did not receive those particular notices on particular dates. All that has been pleaded in the entire writ petition is that the petitioner since was not paid the subsistence allowance, therefore, the entire disciplinary proceedings stood vitiated. Since the petitioner is appearing in person, upon a pointed query being made, he could not satisfy the Court as to why he did not participate in the enquiry or if in the event he was not able to participate due to financial crisis in the family why did he not apply for the time to be given to submit reply or why he did not report for duty at Police Lines, Kanpur Dehat.

12. In so far as the show cause notice is concerned, it is admitted to the petitioner that he did receive, however, he did not submit reply thereof, only for the reason that he was suffering from diabetes.

13. In my considered view, any person suffering from diabetes unless stands hospitalized for some treatment it cannot be taken to be such a severe condition to restrain a person from submitting reply more especially when the petitioner had enough means and time to file appeal and revision. There is nothing on record to demonstrate that petitioner was hospitalized during the period in question rather statement has been made before the Court while arguing the matter that he himself received the show cause notice while at home.

14. In such circumstances, therefore, the submissions advanced by learned Additional Chief Standing Counsel do hold merits that petitioner himself is to be blamed for not participating in the disciplinary proceedings.

15. The only point that arises now for consideration of this Court, as to whether the enquiry officer was justified in proposing and recommending a punishment of dismissal from service. Looking to the enquiry report, I find that very categorically enquiry officer has made recommendation for dismissal of petitioner from service. The operative portion of the enquiry report is reproduced hereunder: "अततः आररोपपी आरकपी 261 ललाररेन्श ससंखवलार पपु्ቔ स्व० परशपुरलाम ननिवलासपी मसं०निसं० 78 नቛኌवरेदपीनिगर निनौबस्तला कलानिपपुर निगर करो उ०्ቚ० अधपीनिस्थ शरेणपी करे पपुललस अलधकलाररयय/कमरचलाररयय ककी (दण्ड एवसं अपपील) ननियमलावलपी 1991 करे अन्तगरत ननियम 14(1) क(1) करे अन्तगरत वनणरत दण्ड करे अनिपुसलार सरेवला सरे पदच्यपुत (नडसनमस) नकयरे जलानिरे कला दण्ड ्ቚस्तलानवत नकयला जलातला हहै।"

16. In order to appreciate the argument advanced by the petitioner, I proceed to examine the show cause notice. The disciplinary authority has quoted the proposed punishment of the dismissal from service made by the enquiry officer and on that basis he had issued a show cause notice to the petitioner as to why he may not be dismissed from service. Relevant part of the show cause notice issued by the disciplinary authority dated 27.03.2019 is reproduced herein under: "पपीठलासपीनि अलधकलारपी/अपर पपुललस अधपीकक, कलानिपपुर दरेहलात शपी अनिनूप कपुमलार ቛኌलारला उ्ሹ नवभलागपीय कलायरवलाहपी करो आगरे बढलातरे हहए ननिधलारररत ्ቚनቅኌयलाओसं करे तहत पनूणर कर अपनिपी फलाइनन्डसंग (उपलानन्तकला) आख्यला नदनिलासंनकत 16-01-2019 ्ቚरेनषित ककी गयपी, लजसमम आरकपी ललाररेन्स ससंखवलार करो पपुललस जहैसरे अनिपुशलालसत बल मम रहकर डनूटपी करे दनौरलानि घरोर अनिपुशलासनिहपीनितला बरततरे हहए आरकपी अलखलरेश कपुमलार पर सरकलारपी शኚᮌ तलानि दरेनिरे तथला धमककी दरेनिरे कला दरोषिपी पलायला गयला। पपीठलासपीनि अलधकलारपी ቛኌलारला आरकपी (ननिलनमबत) ललाररेन्स ससंखवलार करो सरेवला सरे पदच्यपुत (नडसनमस) नकयरे जलानिरे कला दण्ड ्ቚस्तलानवत नकयला गयला। उपररो्ሹ ्ቚस्तपुत ककी गई फलाइनन्डसंग एवसं प्ቔलावलपी पर उपलब्ध सम्ቇ सलाቌኚयय इत्यलानद कला पररशपीलनि नकयरे जलानिरे करे उपरलासंत ्ቚस्तलानवत दण्ड सरे सहमत हरोतरे हहए आररोनपत आरकपी (ननिलनमबत) ललाररेन्स ससंखवलार करो कलारण बतलाओ निरोनटस ससंख्यलातः पपीएफ-15/2017 नदनिलासंकतः 11-02-2019 मय फलाइनन्डसंग सनहत इस ननिदरश करे सलाथ ननिगरत नकयला गयला, नक निरोनटस मय फलाइनन्डसंग ककी ्ቚनत ्ቚलाप करकरे अपनिला लललखत स्पषपीकरण 15 नदवस करे अन्दर ्ቚस्तपुत करम, नक क्यय नि उपररो्ሹ आररोपय कला दरोषिपी मलानितरे हहए उ०्ቚ०अधपीनिस्थ शरेणपी करे पपुललस अलधकलाररयय/कमरचलाररयय ककी (दण्ड एवसं अपपील) ननियमलावलपी-1991 करे ननियम 4(1) (क) (1) करे अन्तगरत आरकपी पद सरे पदच्यपुत (नडसनमस) नकयरे जलानिरे करे आदरेश पलाररत कर नदयरे जलायम।"

17. From the perusal of the last part of the enquiry report dated 14.01.2019 and thee relevant part of the show cause notice issued by the disciplinary authority dated 27.03.2015, it is apparent that the disciplinary authority did not apply its independent mind as to whether looking to the charges leveled and the findings returned by the enquiry officer, did petitioner deserve this maximum punishment. The disciplinary authority on the contrary I find, has reproduced the finding part as the proposed punishment part in the show cause notice issued to petitioner.

18. Accordingly, such a show cause notice issued by the disciplinary authority cannot be said to be an independent decision of the disciplinary authority qua the proposed punishment in the report submitted by enquiry officer. Such an approach of the disciplinary authority cannot be countenanced. It has become relevant to reproduced rule 14(1) of U.P. Police Officers of the Subordinate Rank (Discipline and Appeal) Rules, 1991 and also the appendix part thereof which provides for procedure to hold an enquiry in the event major penalty. "Rule 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 procedure laid down in Appendix-I" "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 it is 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 I 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 whim. 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 charged 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."

19. From a bare reading of aforesaid provision, it is clear that the enquiry officer is only to enquire into the charges, evaluate and assess the evidence on record both by the departmental authority as well as the delinquent employee and then it is to record findings of fact and to arrive at a conclusion whether the charges could be brought home or not. Procedure prescribed to initiate and conclude disciplinary proceedings must be shortly adhered to. It is well settled legal position that when a thing is required to be done under statute and rules, that must be done in that manner alone (Tata Chemicals Limited v. Commissioner of Customs (Preventive), Jamnagar, (2015) 11 SCC 628 and (2022) 8 SCC 713, Krishna Rai (dead) through Legal Representatives and Others v. Banaras Hindu University through Registrar and others).

20. The provisions do provide for the enquiry officer to recommend punishment but by a separate order and not as a concluding part of enquiry report.

21. In this view of the matter, the punishment proposed by the enquiry officer under his enquiry report dated 14.01.2019 and the 14.01.2019 enquiry report stands vitiated in law.

22. It is settled principle of law that when a proceeding is held to be void for whatever reason, then all consequential actions would automatically get rendered void. Accordingly, the order of punishment imposed upon the petitioner dated 27.03.2019, the appellate order dated 20.08.2019 and the revisional order dated 24.02.2020 deserve to be set aside. The matter, therefore, requires to be remitted at the stage of enquiry.

23. In view of the above, these petitions succeed and are allowed. The order dated 27.03.2019, enquiry report dated 14.01.2019, order passed by the disciplinary authority dated 27.03.2019, the appellate authority's order dated 20.08.2019 and that of the order of revisional authority dated 24.02.2020 are quashed. The matter is remitted to the stage of enquiry.

24. This time petitioner is directed to submit reply within a period of four weeks from the date of issuance of certified copy of this order.

25. Accordingly, following directions are issued: i.) The disciplinary authority shall appoint a new enquiry officer in the matter of charge sheet issued to the petitioner on 14.03.2018 within a period of two weeks from the date of certified copy of this order. ii.) Soon after new enquiry officer is appointed, the petitioner shall be communicated a date to submit reply and petitioner shall be submitting his reply within a period of two weeks. The newly appointed departmental enquiry officer shall hold an enquiry and conclude the same by giving opportunity of participation and personal hearing to the petitioner within a further period of one month. iii.) After the departmental enquiry is concluded,disciplinary authority shall proceed to pass final order in the matter in full compliance of principles of natural justice as well as procedure prescribed under the U.P. Subordinate Rank Police Officers (Punishment and Appeal) Rules, 1991 within a further period of 30 days. iv.) Petitioner shall be participating in every stage of the proceedings and in the event petitioner fails to participate this time, disciplinary authority shall proceed ex parte and pass final order.

26. As a consequence to the above, the status of the petitioner is restored with the respondent establishment Police Force as a suspended Constable. The entire subsistence allowance to which the petitioner otherwise would have been entitled, if in service, as on date, shall be paid to him within a maximum period of 30 days of production of certified copy of this order by the concerned competent authority and petitioner shall continue to receive subsistence allowance till final orders are passed by the disciplinary authority. Order Date :- 1.5.2025 IrfanUddin IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad

1. Heard Sri Larensh Sankhwar, petitioner in person and Sri P.K. Srivastava, learned Additional Chief Standing Counsel.

2. By means of these above two petitions filed under Article 226 of the Constitution, petitioner has questioned the order passed by the disciplinary authority dated 27.03.2019 imposing penalty in the nature of dismissal from service, the order passed by appellant authority dated 20.08.2019 affirming the order of punishment and so also the order dated 24.02.2020 passed by the authority dismissing the revision petition and also the order dated 19.05.2022 passed by the Additional Chief Secretary, Home (Police) Department U.P. Shasan, District Lucknow rejecting further review petition.

3. Petitioner has raised following substitution while questioning the orders impugned: i. Despite the fact that petitioner was placed under suspension vide order dated 11.09.2017 and was attached to Police Lines, Kanpur Dehat, he was not paid any subsistence allowance. ii. In the absence of subsistence allowance, petitioner had no source of finance to approach the disciplinary authority to file his reply to the charge sheet and further to participate in the oral enquiry. iii. Petitioner was never served with any notice by the departmental enquiry officer at any point of time so as to invite him to participated in the domestic enquiry. iv. After receiving the show cause notice dated 11.02.2019 on 12/13.02.2019, since petitioner was suffering from acute diabetes having the marking index of 700, he could not submit reply to the show cause notice, inasmuch as the petitioner having not been paid subsistence allowance, he had not enough financial means to travel to disciplinary authority's office and family was also faced with acute financial crisis. v. Since petitioner's participation is lacking in the departmental enquiry, inasmuch as, subsistence allowance was not paid, the entire departmental enquiry and consequential disciplinary proceeding was void per judgment of Supreme Court. vi. Upon the legal principles as to the rights and powers vested with the enquiry officer the enquiry officer, could not have proposed the punishment of dismissal from service and yet he proposed this punishment by submitting enquiry report on 14.01.2019 upon which the show cause notice was issued with the proposed punishment of dismissal from service and hence the disciplinary authority also did not apply its independent mind as to the correctness of the report submitted by the enquiry officer regarding proposed punishment. Thus, the enquiry report stood vitiated in law. vii. Quantum of punishment is also disproportionate to the charge leveled and also leading to the previous service records which according to petitioner has remained unblemished.

4. Meeting the above submissions, learned Additional Chief Standing Counsel has sought to defend the order for the reason that petitioner did not report to Police Lines, Kanpur Dehat while he was attached to the Police Lines under the order of suspension and hence petitioner was taken to have absconded. It is further submitted that the enquiry officer submitted a detailed report in which it has come to be categorically recorded that preliminary fact finding report was served upon the petitioner through messenger on 30.03.2017 and further he was required to submit reply to the charge sheet vide notices dated 14.04.2018, 20.06.2018, 20.06.2018 and 27.06.2017 which were duly served upon him through messenger as well as through registered post and yet he chose not to reply the same.

5. It is also contended by learned Additional Chief Standing Counsel that in the event petitioner did not participate in the oral enquiry, he was only to be blaimed and as per rules enquiry officer had no other option but to conclude enquiry, may be ex parte, and submit report.

6. In the given facts and circumstances of the case regarding the show cause notice learned Additional Chief Standing Counsel submits that if the delinquent employee is not submitting reply to the show cause notice, the disciplinary authority cannot be faulted in accepting the enquiry report of the enquiry officer bringing home the charge and resultantly awarding punishment.

7. On the ex parte enquiry report, learned Additional Chief Standing Counsel submitted that the petitioner having not reported to the Police Lines, Kanpur Dehat, had shown a grave misconduct on his part in the matter by not participating in departmental enquiry deliberately even though he had received all notices he is to blame himself. It is submitted that even if he was suffering from any particular disease at the time he received second show cause notice, he ought to have applied for time. It is argued that if he had time to file appeal and revision, it cannot be said that petitioner had not enough financial means to participate in disciplinary proceedings.

8. On the last legal point argued regarding punishment recommended by the enquiry officer, learned Additional Chief Standing Counsel submits that disciplinary authority has applied its independent mind and even if the enquiry officer had recommended punishment, it cannot be taken to have vitiated the entire disciplinary proceeding.

9. On the question of application of legal principle as enunciated in the judgment of the Supreme Court, learned Additional Chief Standing Counsel submits that the Courts do not lay down theories of law and therefore, judgment has to be applied in the setting of facts of a case. In support of his argument, learned Standing Counsel has relied upon following authorities: (i). In the case of Bharat Petroleum Corporation Ltd. and another v. N.R. Vairamani and another; 2004 (8) SCC 579, the Supreme Court placing reliance on the observations made on the question of law but in the case of London Graving Dock Corporation Ltd. v. Horton; 1951 AC 737 p. 761 has observed that "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes..............." (ii). In yet another judgment in the case of Oriental Insurance Corporation Ltd. v. Smt. Raj Kumari and others; AIR 2008 SC 403, the Supreme Court vide paragraph 11 has held that "11. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent........." (iii). Relying upon the above two judgments, a concurrent Bench of this Court in the case of Sandeep Kumar Pandey v. State of U.P. through Principal Secretary Nagar Vikas Vibhag and another in Service Single No.- 14055 of 2021 decided on 8th July, 2021 has formulated points for consideration of judgments as a binding precedent as under:- "(a) The ratio of any decision has to be understood in the background of the facts of that case; (b) A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision; (c) The Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed; (d) Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context; (e) An additional or different fact may make a world of difference between conclusions in two cases; (f) Disposal of cases by blindly placing reliance on a decision is not proper; (g) Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect."

10. Learned Additional Chief Standing Counsel submits that looking to the facts and circumstances of the present case and the conduct of the petitioner, this petition deserves to be dismissed.

11. Having heard the petitioner in person and learned Standing Counsel for the State respondents and having perused the records, I find it to be an admitted fact position that petitioner was served with several notices as recitals contained in the enquiry report do reflect that petitioner was not only served with preliminary fact finding enquiry report but even subsequently notices were also served upon him at his address through messenger. In the entire writ petition there is no whisper about this fact stated in enquiry report to be false as such or that he did not receive those particular notices on particular dates. All that has been pleaded in the entire writ petition is that the petitioner since was not paid the subsistence allowance, therefore, the entire disciplinary proceedings stood vitiated. Since the petitioner is appearing in person, upon a pointed query being made, he could not satisfy the Court as to why he did not participate in the enquiry or if in the event he was not able to participate due to financial crisis in the family why did he not apply for the time to be given to submit reply or why he did not report for duty at Police Lines, Kanpur Dehat.

12. In so far as the show cause notice is concerned, it is admitted to the petitioner that he did receive, however, he did not submit reply thereof, only for the reason that he was suffering from diabetes.

13. In my considered view, any person suffering from diabetes unless stands hospitalized for some treatment it cannot be taken to be such a severe condition to restrain a person from submitting reply more especially when the petitioner had enough means and time to file appeal and revision. There is nothing on record to demonstrate that petitioner was hospitalized during the period in question rather statement has been made before the Court while arguing the matter that he himself received the show cause notice while at home.

14. In such circumstances, therefore, the submissions advanced by learned Additional Chief Standing Counsel do hold merits that petitioner himself is to be blamed for not participating in the disciplinary proceedings.

15. The only point that arises now for consideration of this Court, as to whether the enquiry officer was justified in proposing and recommending a punishment of dismissal from service. Looking to the enquiry report, I find that very categorically enquiry officer has made recommendation for dismissal of petitioner from service. The operative portion of the enquiry report is reproduced hereunder: "अततः आररोपपी आरकपी 261 ललाररेन्श ससंखवलार पपु्ቔ स्व० परशपुरलाम ननिवलासपी मसं०निसं० 78 नቛኌवरेदपीनिगर निनौबस्तला कलानिपपुर निगर करो उ०्ቚ० अधपीनिस्थ शरेणपी करे पपुललस अलधकलाररयय/कमरचलाररयय ककी (दण्ड एवसं अपपील) ननियमलावलपी 1991 करे अन्तगरत ननियम 14(1) क(1) करे अन्तगरत वनणरत दण्ड करे अनिपुसलार सरेवला सरे पदच्यपुत (नडसनमस) नकयरे जलानिरे कला दण्ड ्ቚस्तलानवत नकयला जलातला हहै।"

16. In order to appreciate the argument advanced by the petitioner, I proceed to examine the show cause notice. The disciplinary authority has quoted the proposed punishment of the dismissal from service made by the enquiry officer and on that basis he had issued a show cause notice to the petitioner as to why he may not be dismissed from service. Relevant part of the show cause notice issued by the disciplinary authority dated 27.03.2019 is reproduced herein under: "पपीठलासपीनि अलधकलारपी/अपर पपुललस अधपीकक, कलानिपपुर दरेहलात शपी अनिनूप कपुमलार ቛኌलारला उ्ሹ नवभलागपीय कलायरवलाहपी करो आगरे बढलातरे हहए ननिधलारररत ्ቚनቅኌयलाओसं करे तहत पनूणर कर अपनिपी फलाइनन्डसंग (उपलानन्तकला) आख्यला नदनिलासंनकत 16-01-2019 ्ቚरेनषित ककी गयपी, लजसमम आरकपी ललाररेन्स ससंखवलार करो पपुललस जहैसरे अनिपुशलालसत बल मम रहकर डनूटपी करे दनौरलानि घरोर अनिपुशलासनिहपीनितला बरततरे हहए आरकपी अलखलरेश कपुमलार पर सरकलारपी शኚᮌ तलानि दरेनिरे तथला धमककी दरेनिरे कला दरोषिपी पलायला गयला। पपीठलासपीनि अलधकलारपी ቛኌलारला आरकपी (ननिलनमबत) ललाररेन्स ससंखवलार करो सरेवला सरे पदच्यपुत (नडसनमस) नकयरे जलानिरे कला दण्ड ्ቚस्तलानवत नकयला गयला। उपररो्ሹ ्ቚस्तपुत ककी गई फलाइनन्डसंग एवसं प्ቔलावलपी पर उपलब्ध सम्ቇ सलाቌኚयय इत्यलानद कला पररशपीलनि नकयरे जलानिरे करे उपरलासंत ्ቚस्तलानवत दण्ड सरे सहमत हरोतरे हहए आररोनपत आरकपी (ननिलनमबत) ललाररेन्स ससंखवलार करो कलारण बतलाओ निरोनटस ससंख्यलातः पपीएफ-15/2017 नदनिलासंकतः 11-02-2019 मय फलाइनन्डसंग सनहत इस ननिदरश करे सलाथ ननिगरत नकयला गयला, नक निरोनटस मय फलाइनन्डसंग ककी ्ቚनत ्ቚलाप करकरे अपनिला लललखत स्पषपीकरण 15 नदवस करे अन्दर ्ቚस्तपुत करम, नक क्यय नि उपररो्ሹ आररोपय कला दरोषिपी मलानितरे हहए उ०्ቚ०अधपीनिस्थ शरेणपी करे पपुललस अलधकलाररयय/कमरचलाररयय ककी (दण्ड एवसं अपपील) ननियमलावलपी-1991 करे ननियम 4(1) (क) (1) करे अन्तगरत आरकपी पद सरे पदच्यपुत (नडसनमस) नकयरे जलानिरे करे आदरेश पलाररत कर नदयरे जलायम।"

17. From the perusal of the last part of the enquiry report dated 14.01.2019 and thee relevant part of the show cause notice issued by the disciplinary authority dated 27.03.2015, it is apparent that the disciplinary authority did not apply its independent mind as to whether looking to the charges leveled and the findings returned by the enquiry officer, did petitioner deserve this maximum punishment. The disciplinary authority on the contrary I find, has reproduced the finding part as the proposed punishment part in the show cause notice issued to petitioner.

18. Accordingly, such a show cause notice issued by the disciplinary authority cannot be said to be an independent decision of the disciplinary authority qua the proposed punishment in the report submitted by enquiry officer. Such an approach of the disciplinary authority cannot be countenanced. It has become relevant to reproduced rule 14(1) of U.P. Police Officers of the Subordinate Rank (Discipline and Appeal) Rules, 1991 and also the appendix part thereof which provides for procedure to hold an enquiry in the event major penalty. "Rule 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 procedure laid down in Appendix-I" "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 it is 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 I 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 whim. 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 charged 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."

19. From a bare reading of aforesaid provision, it is clear that the enquiry officer is only to enquire into the charges, evaluate and assess the evidence on record both by the departmental authority as well as the delinquent employee and then it is to record findings of fact and to arrive at a conclusion whether the charges could be brought home or not. Procedure prescribed to initiate and conclude disciplinary proceedings must be shortly adhered to. It is well settled legal position that when a thing is required to be done under statute and rules, that must be done in that manner alone (Tata Chemicals Limited v. Commissioner of Customs (Preventive), Jamnagar, (2015) 11 SCC 628 and (2022) 8 SCC 713, Krishna Rai (dead) through Legal Representatives and Others v. Banaras Hindu University through Registrar and others).

20. The provisions do provide for the enquiry officer to recommend punishment but by a separate order and not as a concluding part of enquiry report.

21. In this view of the matter, the punishment proposed by the enquiry officer under his enquiry report dated 14.01.2019 and the 14.01.2019 enquiry report stands vitiated in law.

22. It is settled principle of law that when a proceeding is held to be void for whatever reason, then all consequential actions would automatically get rendered void. Accordingly, the order of punishment imposed upon the petitioner dated 27.03.2019, the appellate order dated 20.08.2019 and the revisional order dated 24.02.2020 deserve to be set aside. The matter, therefore, requires to be remitted at the stage of enquiry.

23. In view of the above, these petitions succeed and are allowed. The order dated 27.03.2019, enquiry report dated 14.01.2019, order passed by the disciplinary authority dated 27.03.2019, the appellate authority's order dated 20.08.2019 and that of the order of revisional authority dated 24.02.2020 are quashed. The matter is remitted to the stage of enquiry.

24. This time petitioner is directed to submit reply within a period of four weeks from the date of issuance of certified copy of this order.

25. Accordingly, following directions are issued: i.) The disciplinary authority shall appoint a new enquiry officer in the matter of charge sheet issued to the petitioner on 14.03.2018 within a period of two weeks from the date of certified copy of this order. ii.) Soon after new enquiry officer is appointed, the petitioner shall be communicated a date to submit reply and petitioner shall be submitting his reply within a period of two weeks. The newly appointed departmental enquiry officer shall hold an enquiry and conclude the same by giving opportunity of participation and personal hearing to the petitioner within a further period of one month. iii.) After the departmental enquiry is concluded,disciplinary authority shall proceed to pass final order in the matter in full compliance of principles of natural justice as well as procedure prescribed under the U.P. Subordinate Rank Police Officers (Punishment and Appeal) Rules, 1991 within a further period of 30 days. iv.) Petitioner shall be participating in every stage of the proceedings and in the event petitioner fails to participate this time, disciplinary authority shall proceed ex parte and pass final order.

26. As a consequence to the above, the status of the petitioner is restored with the respondent establishment Police Force as a suspended Constable. The entire subsistence allowance to which the petitioner otherwise would have been entitled, if in service, as on date, shall be paid to him within a maximum period of 30 days of production of certified copy of this order by the concerned competent authority and petitioner shall continue to receive subsistence allowance till final orders are passed by the disciplinary authority. Order Date :- 1.5.2025 IrfanUddin IRFAN UDDIN SIDDIKI High Court of Judicature at Allahabad