Sanjay Misra, J.@mdashThe petitoner seeks quashing of the judgment and order of U.P. State Public Services Tribunal Lucknow, the order dated
28.2.1996 passed by the Inspector General of P.A.C. Kanpur Sector Kanpur and the order dated 6.9.1995 passed by the Commandant 42nd
Bn. P.A.C. Naini Allahabad. The petitioner was dismissed from service. His appeal was rejected and his claim petition before the tribunal was also
dismissed.
2. Before the tribunal the petitioner had raised various grounds while assailing the order of dismissal and rejection of his appeal. The Tribunal while
considering the submission of the petitioner, to the effect, that all departmental proceedings which have been taken against the petitioner without
complying with the provision of para 1 of Regulation 486 of the U.P. Police Regulations are vitiated and the consequent punishment order is illegal
and without jurisdiction, has held that the provisions of para 1 of Regulation 486 were not attracted to the present case and the proceedings taken
against the petitioner by virtue of para III of Regulation 486 were rightly taken and therefore, the enquiry was conducted under the provisions of
U.P. Subordinate Police Officers (Punishment and Appeal) Rules, 1991. The finding of the Tribunal on this ground has been assailed by learned
Counsel for the petitioner in this writ petition. Para 1 of Regulation 486 of the Regulation is quoted here under:
486 (I), Every information received by the police relating the commission of a cognizable offence by a police officer shall be dealt with in the first
place under Chapter XIV (now chapter XII), Criminal Procedure Code, according to law, a case under the appropriate section being registered in
the police station concerned provided that -
(1) if the information is received, in the first instance, by a Magistrate and forwarded by the District Magistrate to the police, no case will be
registered by the police;
(2) if the information is received, in the first instance by the police, the report required by Section 157, Criminal Procedure Code, shall be
forwarded to the District Magistrate, and when forwarding it the Superintendent of Police shall note on it with his own hand what steps are being
taken as regards investigation or the reasons for refraining from investigation.
(3) Unless investigation is refused by the Superintendent of Police u/s 157(1)(b) , Criminal Procedure Code and not ordered by the District
Magistrate u/s 159 or unless the District Magistrate orders a magisterial inquiry u/s 159 investigation u/s 159 Criminal Procedure Code shall be
made by a police officer selected by the Superintendent of Police and higher in rank than the officer charged;
(4) On the conclusion of the investigation and before the report required by Section 173, Criminal Procedure code, is prepared the question
whether the officer charged should or should not be sent for trial shall be decided by the Superintendent of Police. Provided that before an officer
whose dismissal would require the concurrence of the Deputy Inspector General under paragraph 479 is sent for trial by the Superintendent of
Police , the concurrence of the Deputy Inspector General must be obtained;
(5) The charge sheet or final report u/s 173, or Section 169, Criminal Procedure Code, as the case may be, shall be sent to the District Magistrate;
if the Superintendent of Police or the Deputy Inspector General had decided against a prosecution, a note by the Superintendent of Police giving
the reasons for this decision shall be endorsed on, or attached to the final report;
(6) When the reason for not instituting a prosecution is that the charge is believed to be baseless, no further action will be necessary; if the charge is
believed to be true and a prosecution is not undertaken owing to the evidence being considered insufficient or for any other reasons the
Superintendent may, when the final report u/s 173, Criminal Procedure Code, has been accepted by the District Magistrate; take departmental
action as held down in paragraph 490.
3. From a perusal of above it is seen that para 1 (6) contemplates that departmental action can be taken only after final report u/s 173 Cr.P.C. has
been accepted by the District Magistrate. It is contended that mandatory provision of para 1 has to be complied with otherwise any departmental
enquiry or order of dismissal would become illegal. It is stated that upon the allegations made against the petitioner, an offence u/s 7(c) of the U.P.
P.A.C. Act, 1948 has been prima facie made out since the essential ingredients that there was gross insubordination or insolence during execution
of official duties is alleged. It is therefore, stated that if an offence u/s 7 (c) of the U.P.P.A.C. Act is prima facie made out, then mandatory
procedure prescribed under para 1 of Regulation 486 of the Police Regulations has to be followed. Learned Counsel for the petitioner submits that
such procedure was not followed in the present case and therefore, entire proceedings are liable to be held illegal and set aside. The Tribunal while
considering the aforesaid submission has concluded that the charge against the petitioner did not relate to any offence during discharge of his official
duties or execution of his official duty in as much as the charge relates to the petitioner''s conduct in the officer''s mess after duty hours when the
petitoner had gone to have his night meal. It has concluded that the procedure under para 1 of Regulation 486 of the Police Regulation would not
be applicable.
4. Para III of Regulation 486 provides that when the Superintendent of Police decides to take action for an offence committed u/s 7 of the
U.P.P.A.C. Act, which he considers unnecessary at that stage to report to the District Magistrate under para II, he can cause to be made a
departmental enquiry to test the truth of the information regarding the alleged offence. Upon conclusion of this enquiry the Superintendent of Police
will decide whether further action is necessary for trying the charged officer departmentally or to move the District Magistrate for taking cognizance
of the case under the provisions of Code of Criminal Procedure. While considering the aforesaid provisions the Tribunal has held that the enquiry
contemplated is evidently a preliminary enquiry for the purpose of satisfaction of the Superintendent of Police to enable him to reach a decision on
the question as to whether the matter should be dropped or should be proceeded further. On the basis of this preliminary enquiry the
Superintendent of Police has to form his opinion with respect to proceedings against the officer either under para II of Regulation 486 or under
para (1) of the said Regulation .In the present case since the offence alleged against the petitioner did not relate to an offence during discharge or
execution of his duties the submission of learned Counsel for the petitioner, that once the alleged offence u/s 7 (c) of the U.P.P.A.C. Act has been
prima facie found to have been committed then the mandatory provisions of para 1 of Regulation 486 of the Regulations has to be complied with,
cannot be accepted. The Tribunal has rightly held that the Superintendent of Police can in his opinion get the matter enquired into by a Senior
Officer to test the truth of the charge. It is only thereafter that he can form an opinion as to whether the matter requires to be proceeded with or
dropped. In case he decides to move the District Magistrate to take cognizance of the case under the Criminal Procedure Code then he shall
forward a report in writing to the District Magistrate under Para II of 486 of the Regulations. Para II reads as under:
II. When information of the Commission by a police officer of a non-cognizable offence ( including an offence u/s 29 of the Police Act) is given in
the first instance to the police, the Superintendent of Police may, if he sees reason to take action, either (a) proceed departmentally as laid down
under head III of this paragraph and in paragraph 490- or (b) as an alternative to, or at any stage of the departmental proceedings, forward a
report in writing to the District Magistrate with a request that he will take cognizance of the offence u/s 190(1) (b), Criminal Procedure Code;
provided that reports against Police Officers of having committed non-cognizable offences will (when made to the police and unless there are
special reasons for desiring a magisterial inquiry or formal police investigation under the Code) ordinarily be inquired into departmentally and will
not ordinarily and then only if be referred to the District Magistrate until departmental inquiry is complete, a criminal prosecution is desired.
On receiving information either by means of a report in writing from the Superintendent of Police as laid down above, or otherwise as laid down in
Section 190(1)(a) and (c). Criminal Procedure Code, of the Commission by a Police Officer of a non-cognizable offence, the District Magistrate
may, subject to the general provisions of Chapter XV ( now Chapter XIII) part. B Criminal Procedure Code:
a) proceed with the case under Chapter XVII (now Chapter XVI) Criminal Procedure Code;
b) order an inquiry by a Magistrate or an investigation by the police u/s 202, Criminal Procedure Code; or an investigation by the police u/s
155(2);
c) decline to proceed u/s 203, Criminal Procedure Code, If an investigation by the police is ordered, it would be made u/s 155(3), Criminal
Procedure Code by an officer selected by the Superintendent of Police and higher in rank that the officer charged and all further proceedings will
be exactly as laid down for cognizable cases in paragraph 486(1) (4) (5) and (6) above.
If no investigation by the police is ordered and the District Magistrate after or without magisterial inquiry, declines to proceed criminally with the
case, the Superintendent of Police will decide, in accordance with the principles set forth in paragraph 486 (1) (6) above and subject to the orders
contained in paragraph 494 whether departmental proceedings under paragraph 490 are required.
5. However if upon the report of the preliminary enquiry the Superintendent of Police decides not to move the District Magistrate , he can decide
to proceed against the charged officer by ordering a departmental trial under para III of Regulation 486 of the Regulations. Para III of Regulation
486 is quoted here under:
When a Superintendent of Police sees reasons to take action on information given to him, or on his own knowledge or suspicion, that a police
officer subordinate to him has committed an offence u/s 7 of the Police Act or a non-cognizable offence including an offence u/s 29 of the Police
Act) of which he considers it unnecessary at that stage to forward a report in writing to the District Magistrate under Rule 11 above, he will make
or cause to be made by an officer senior in rank to the officer charges, a departmental enquiry sufficient to test the truth of the charge. On the
conclusion of this inquiry he will decide whether officer charged should be departmentally tried , or whether the district Magistrate should be
moved to take cognizance of the case under the Criminal Procedure Code ; provided that before the District Magistrate is moved by the
Superintendent of Police to proceed criminally with a case u/s 29 of the Police Act or other non cognizable section of the law against an inspector
or sub-inspector , the concurrence of the Deputy Inspector General must be obtained. Prosecution u/s 29 should rarely be instituted and only when
offence can not be adequately dealt with u/s 7.
6. In the present case admittedly the offence alleged against the petitoner was committed when he was off duty and it did not disclose any
cognizable offence hence action taken under para III by the Superintendent of Police by ordering departmental proceedings under Rule 14(1) of
the Rules of 1991 cannot be said to be illegal.
7. The second ground argued before the Tribunal was that extraneous material has been taken into consideration while passing the order of
dismissal without giving any opportunity to make representation against the said consideration/material. The Tribunal while considering this ground
found that the previous conduct and history of service of the petitioner was mentioned by the enquiry officer although the same was neither
mentioned in the charge sheet nor in the show cause notice. The Tribunal after going through the record has found that the petitoner had taken
defence before the enquiry officer as also before the disciplinary authority to the effect that he had a good and excellent record and his higher
authorities had appreciated and recommended him for his exemplary work. The Tribunal found that the enquiry officer and disciplinary authority
considered this plea of the petitoner and it was negated on the basis of petitioner''s previous history and conduct. Therefore, the Tribunal held that
such consideration by the enquiry officer and the disciplinary authority could not be said to be for the purpose of determination of quantum and
nature of punishment nor for the purpose of proving the charges levelled against the petitoner. Having recorded the said finding the Tribunal
concluded that it cannot be said that any extraneous material was used for holding the petitoner guilty of the charges or for the purpose of
determining the quantum and nature of punishment. No illegality can be found in the said finding of the Tribunal.
8. Learned Counsel for the petitioner has contended that the preliminary enquiry report was not supplied to the petitoner and therefore he was
handicapped in submitting his reply to the charge sheet. He has placed reliance on a decision of the Hon''ble Supreme court in the case of
Kashinath Dikshita Vs. Union of India (UOI)and Others, and in the case of State of Uttar Pradesh Vs. Mohd. Sharif (Dead) through Lrs.,
Reliance was placed on paragraph No. 3 which is quoted as under:
3. After hearing counsel appearing for the State, we are satisfied that both the appeal Court and the High Court were right in holding that the
plaintiff had no reasonable opportunity of defending himself against the charges levelled against him and he was prejudiced in the matter of his
defence, Only two aspects need be mentioned in this connection. Admittedly , in the charge sheet that was framed and served upon the plaintiff no
particulars with regard to the date and time of his alleged misconduct of having entered government forest situated in P. C. Thatia District
Farrukhabad and hunting a bull in that forest and thereby injured the feeling of one community by taking advantage of his service and rank, were
not mentioned . Not only these, where particulars with regard to date and time of the incident not given but even the location of the incident in the
vast forest was not indicated with sufficient particularity. In the absence of these plaintiff was obviously prejudiced in the matter of his defence at
the enquiry. Secondly , it was not disputed before us that a preliminary inquiry had preceded the disciplinary inquiry and during the preliminary
inquiry statements of witnesses were recorded but copies of these statements were not furnished to him at the time of the disciplinary inquiry. Even
the request of the plaintiff to inspect the file pertaining to disciplinary inquiry was also rejected. In the face of these facts which are not disputed it
seems to us very clear that both the first appeal Court and the High Court were right in coming to the conclusion that the plaintiff was denied
reasonable opportunity to defend himself at the disciplinary inquiry; it cannot be gainsaid that in the absence of necessary particulars and statement
of witnesses he was prejudiced in the matter of his defence. Having regard to the aforesaid admitted position, it is difficult to accept the contention
urged by the counsel for the appellant that the view taken by the trial court should be accepted by us. We are satisfied that the dismissal order has
been rightly held to be illegal, void and inoperative. Since the plaintiff has died during the pendency of the proceedings the only relief that would be
available to the legal heirs of the deceased is the payment of arrears of salary and other emoluments payable to the deceased.
9. In the present case the facts are totally different. The petitioner was served the charge sheet giving the date, place and time of the misconduct.
The charge against the petitoner was specific and the evidence to be relied against the petitoner was also disclosed. Therefore, even if it is
accepted that Preliminary Enquiry Report was not supplied, its non-supply could not be said to have handicapped the petitioner in replying to the
charge sheet. The Hon''ble Supreme Court in the case of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., has held as quoted here
under ;-
Para 30.
(i) ****
(ii) ****
(iii) ***
(iv) ****
(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the
employee and what relief should be granted to him in such cases. The answering to this question has to be relative to the punishment awarded.
When the employee is dismissed or removed from service and the enquiry is set aside because the report is not furnished to him, in some cases the
non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment
awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual.
The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to
indicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact , prejudice
has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each
case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to
permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to
stretching the concept of justice to illogical and exasperating limits. It amounts to an ''unnatural expansion of justice'' which in itself is antithetical to
justice.
10. The above law on the theory of reasonable opportunity and principles of Natural justice laid down by the Hon''ble Supreme Court is clearly
applicable in the facts and circumstances of the present case. Upon a Preliminary Enquiry a charge sheet was made against the petitioner. Copy of
the charge sheet has been filed as Annexure-1 to the Writ Petition. A perusal indicates that the charges are specific. They give the time, date ,
place and imputation categorically. The witnesses to be relied upon are also detailed therein. The witness cited at serial No. 11 was for proving the
Preliminary Enquiry . The petitoner was informed of the charges and evidence to be relied upon in great detail. Each witness cited was for proving
specific incident and the same was also detailed against his name. It cannot be said that the petitioner was in any way not informed of the charges
and evidence which he had to meet in his defence. In the case of MDECII (Supra) the Hon''ble Supreme Court has clearly laid down that if non-
supply of Enquiry Report results in prejudice to the employee then the enquiry can be set aside. However, in case non supply of report would
make no difference to the ultimate punishment then whether prejudice has been caused is to be considered on the facts and circumstances of each
case. It is to be noted that the aforesaid case related to non-supply of enquiry report. In the present case enquiry report was supplied. It is the
allegation of non-suply of the Preliminary Enquiry Report that is being argued. It has not been shown as to how the petitoner was prejudiced in his
defence due to alleged non-supply of Preliminary Enquiry Report. The facts of this case and those in the case of State of U.P. v. Mohd. Sharif
(Supra) are totally different.
11. The petitoner has raised the ground of not having been given proper and reasonable opportunity of hearing and defence. While considering the
aforesaid grounds the Tribunal has found that the petitioner was supplied with all the documents including preliminary enquiry report, general diary,
medical report etc. During enquiry the petitoner was given opportunity to cross examine the witness and also to lead his evidence in the form of
witnesses. The statement of all the witnesses was given to the petitoner. The enquiry report was furnished to the petitioner along with show cause
notice and the petitoner had submitted his detailed reply. At that stage the petitoner had not raised any objection regarding non-supply of
documents or denial of reasonable opportunity before the enquiry officer. The Tribunal has held that disciplinary authority considered the entire
evidence and explanation of the petitioner while recording its findings, as such no illegality or perversity was found either in the proceedings before
the enquiry officer or before the disciplinary authority . The Tribunal also found that the petitioner could not point out any document which was not
supplied to him due to which his allegations that he was prejudiced by non-supply of documents can be upheld. The Tribunal found that the
petitoner had inspected documents himself and that he was not handicapped in either giving his reply to the show cause or in his defence before the
enquiry officer. Apart from making allegation that the petitoner was not given reasonable opportunity of hearing and defence the petitoner has
admitted his participation in the Enquiry proceedings. He submitted documents in his defence and produced seven defence witnesses . It therefore,
cannot be said that the principles of natural justice were violated during the enquiry proceedings. The petitoner has replied to the show cause
notice. The disciplinary authority while passing the impugned order has considered each and every ground raised by the petitoner and has recorded
his findings and conclusions on the basis of evidence led by the parties. The findings of fact recorded by the Disciplinary Authority were the basis
for his arriving at his conclusion for awarding punishment to the petitioner. A perusal of the order dated 6.9.1995 indicates that the authority has
considered the explanation of the petitoner and given his reasons for concurring with the findings of the Enquiry Officer. No error can be found in
the enquiry proceedings nor in the decision making process of the Disciplinary Authority.
12. On the submission of the petitoner to the effect that he had not taken liquor, which fact is corroborated by the medical evidence and the
statement of doctor, it has been found that the medical examination was done after more than six hours of the incident and the Tribunal has held
that evidence with respect to the misconduct led before the enquiry officer in the form of statement of eyewitnesses cannot be disbelieved only on
the basis that the medical examination done after six hours of the incident did not find evidence of liquor . It has therefore, been concluded by the
Tribunal that the petitioner''s misbehavior with persons in the mess was sufficiently proved by the eye witnesses and therefore, the said misconduct
stood conclusively proved . The findings recorded by the Enquiry Officer have been accepted by the Disciplinary Authority and confirmed by the
Appellate Authority. Findings of fact recorded by the Authorities were based on evidence led by the parties. The petitoner was given full
opportunity of hearing and leading his evidence. The proceedings were held in accordance with the procedure contemplated in Rule 14(1) of the
Rules 1991.
13. In the case of B.C. Chaturvedi v. Union of India and Ors. reported in 1996 SCC (L&S) 80 the Hon''ble Supreme Court has held as quoted
hereunder:
Judicial review is not an appeal from a decision of the manner in which the decision is made. Power of judicial review is meant to ensure that the
individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of law. When an
inquiry is conducted on charges of misconduct by a public servant, the Court/ Tribunal is concerned to determine whether the enquiry was held by
a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the
authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But the finding must
be based on some evidence.
Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority
accepts that evidence and conclusion receives support there from the disciplinary authority is entitled to hold that the delinquent officer is guilty of
the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its
own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer
in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or
finding reached by the disciplinary authority is based on no evidence. In the conclusion or finding be such as no reasonable person would have ever
reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of reach
case.
The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the
evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant.
Adequacy of evidence or reliability of evidence cannot he permitted to be canvassed before the Court/ Tribunal. In Union of India v. H.C. Goel
this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from
patent error on the face of the record or based on no evidence at all, a writ of certiorari could he issued.
14. In view of the facts and circumstances of this case no error can be found in the decision making process. The findings and conclusion of the
authorities are based on evidence. The principles of natural justice have been followed and the petitioner has been given full opportunity to defend
himself. The Disciplinary Authority and the Appellate Authority have considered the evidence on record and have arrived at a conclusion which
cannot be said to be perverse or to suffer from any error. This Court would therefore, not interfere in exercise of its jurisdiction under Article 226
of the Constitution of India.
15. For the reasons stated above, no illegality can be found in the judgment and order of the Tribunal or in the impugned orders dated 28.2.1996
and 6.9.1995. This writ petition lacks merit and is therefore, dismissed. No order is passed as to costs.
