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Sunder Singh Chandel v. State Of U.P. And Others - WRIT - A No. 3916 of 2006 [2006] RD-AH 21339 (18 December 2006)


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                                                                                Court No. 38

Civil Misc. Writ Petition No. 3916 of 2006

Sunder Singh Chandel


State of U.P. and others.

Hon'ble V.K. Shukla,J.

Sunder Singh Chandel had been performing and discharging his duty as Police Constable in U.P. Police Force. One Smt. Jagrani alias Vindeshwari made a complaint that she is legally wedded wife of  petitioner and has got three children of the said wed lock, and petitioner instead of staying with her and looking after her children, has  married  one Bitana. On the said complaint being made, preliminary inquiry was got  conducted and thereafter, proceedings under Rule 14 (1) of U.P. Subordinate Service Police Officers/ Employees (Punishment and Appeal) Rules, 1991 was undertaken. Charge sheet was issued to the petitioner on 31.1.2003, to which petitioner submitted his reply. When inquiry was initiated, some shortcoming were found in the preliminary inquiry, which was conducted and on 24.9.2003 on certain ground again preliminary enquiry was directed to be made. Again preliminary inquiry was conducted, report was submitted and proceedings under Rules 14 (1) of U.P. Subordinate Service Police Officers / Employees (Punishment and Appeal) Rules, 1991 was undertaken on 27.7.2004. Petitioner pursuant to the said charge sheet, submitted his reply.  Inquiry Officer after making inquiry, submitted his report on 4.8.2005. After said report had been submitted, show cause notice was issued to the petitioner. Petitioner in his turn submitted reply to the said show cause notice and thereafter, order of dismissal was passed. Against the said order, petitioner preferred Civil Misc. Writ Petition No. 69604 of 2005 before this court and this court relegated  petitioner to the remedy of appeal. Thereafter, appeal in question has been decided. At this juncture present writ petition has been filed.

Counter affidavit has been filed disputing the statements of fact mentioned in the writ petition and to the said counter affidavit, rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit.

Dr. Madhu Tandon, learned counsel for the petitioner contended with vehemence that in the present case entire action, which has been undertaken against  petitioner is unsustainable, inasmuch as, on earlier occasion, on the same set of charges, inquiry had been undertaken and therein petitioner  had been exonerated, then second inquiry on the same set of fact and charges is not at all  permissible and sustainable, as such entire proceedings are without jurisdiction. It has also been submitted that theory of second marriage is incorrect theory and unnecessary  conclusions have been drawn without there being any material in support of the same, as such writ petition deserves to be allowed.  

Learned Standing Counsel on the other hand contended that misconceived submission has been made on behalf of the petitioner and petitioner had never been exonerated of the said charge and  further finding of fact has been returned qua performance of second marriage, which is neither perverse, nor unreasonable, as such no interference is warranted, and writ petition deserves to be dismissed.

First arguments, advanced by Dr. Madhu Tandon  that petitioner was exonerated of the charge and second enquiry on the same fact and same charge has been undertaken is being  adverted to. Record in question reveals that after complaint was made, Senior Superintendent  of Police, Kanpur Nagar on 13.9.2001 directed the Circle Officer, namely Ram Abhilakh to hold preliminary inquiry. Preliminary inquiry was got conducted and based on the same, proceedings under Rule 14 (1) of U.P. Subordinate Service Police Officers / Employees (Punishment and Appeal) Rules, 1991 was initiated on 31.1.2003. While said  regular inquiry was being conducted, various shortcoming were noted in the preliminary inquiry and report was submitted on 24.9.2003, recommending for preliminary enquiry on certain facts. Thereafter, again on certain point, preliminary inquiry was got conducted and again  preliminary enquiry report was submitted on 25.3.2004, then based on said  recommendation proceedings were undertaken by issuing charge sheet on 27.7.2004. Petitioner on 18.8.2004 was informed of the date fixed 26.8.2004. On 26.8.2004, Shailendra Singh, Mijaji Lal, Lal Singh and Jagrani appeared and their statement was recorded, but petitioner absented himself. Thereafter date was fixed for 10.9.2004, for  evidence of P. Ram, Assistant Commandant , but on the said date, in spite  of information, petitioner was not present and even P. Ram was not present. Next date fixed was 30.9.2004, and petitioner was duly informed of said date on 26.9.2004, but on the said date petitioner did not present himself, and statement of P. Ram was got recorded. Thereafter as petitioner had gone for training in between 27.9.2004 to 7.10.2004, petitioner requested that he be permitted to cross examine witness. Request of petitioner was accepted, and 13.12.2004 was date fixed for cross-examination. Exhaustive Cross examination has been done, qua the witnesses, by the petitioner. On 15.2.2005, evidence of petitioner and his witness, Karan Singh and Malkhan Singh was got recorded. Thus full fledged opportunity has been provided to the petitioner, and thereafter conclusions have been drawn, qua contacting of second marriage, during the life time of first wife, which is misconduct as per U.P. Government Servant Conduct Rules.  At no point of time in regular departmental proceedings under under Rule 14 (1) of U.P. Subordinate Service Police Officers / Employees (Punishment and Appeal) Rule, 1991, petitioner had ever been exonerated of the charges. Totally wrong and incorrect argument has been advanced that on  same set of fact and on the same charges, second inquiry has been conducted. The fact of the matter is that, at no point of time, any inquiry had been concluded and petitioner had been exonerated of the charges. The judgment reported in (2003) 3 UPLBEC 2463 Ram Nath Singh Versus State of U.P. and others will not come to the rescue of  petitioner, inasmuch as, in the said case categorical finding had been returned that petitioner had been exonerated of the alleged charges at the earlier stage and then on same  set of charge, second inquiry was not legally permissible. Here there is nothing on record to suggest that petitioner has ever been exonerated of the charges,  as such first argument lacks substance.

Much emphasis has also been made on the fact that Smt. Jagrani alias Vindeshwari  is not at all wife of  petitioner and she has been set up by his brother with whom petitioner has litigation. In this case categorical finding of fact had been returned that Smt. Jagrani alias Vindeshwari is the first wife and  there are three children of the said wed lock. This court in its authority under Article 226 of the Constitution of India cannot act as a Appellate Forum and re-appreciate the evidence. Hon'ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India 1995 (6) SCC 749, has taken the view, that disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline, and are vested with the discretion to impose appropriate punishment keeping in view the magnitude and gravity of misconduct, and the High Court, while exercising power of judicial review cannot  normally substitute its own conclusion on penalty and impose some other penalty. Hon'ble Apex Court in the case of Uday Singh (Supra) 1997 SC 2286, regarding re-appreciation of evidence has taken the view that Court has no power to trench on the jurisdiction to appreciate evidence and arrive at its own conclusion. Judicial review is not an appeal from a decision, but review of the manner in which decision has been made. It is meant to ensure that delinquent receives fair treatment and not to ensure that the conclusion which the authority has reached is necessarily correct in view of the Court. Hon'ble Apex Court in the case of Rai Bareilly Khetriya Gramin Bank Vs. Bhola Nath Singh 1997(3) SCC 657, deprecated the High Court for examining the evidence as it was a Court of first appeal, while proceeding to reverse the finding of Enquiry Officer and accepted by disciplinary authority, and cautioned that power of judicial review is to be exercised within the parameters provided for i.e. to correct errors of law or procedural errors leading to manifest injustice or violation of principle of natural justice, and said power is  not a kin to adjudication of case on merits as an appellate authority. Hon'ble Apex Court in the case of R.S. Saini Vs. State of Punjab 1999(8) SCC 90, has ruled that Court while exercising writ jurisdiction will not reverse finding of the esquiring authority on the ground that evidence adduced before it was insufficient, if there is some evidence to reasonably support the conclusion of esquiring authority, it is not at all function of Court to review the evidence and to arrive at its own finding. The inquiring authority is the sole judge of fact so long as there is some legal evidence to substantiate the finding and adequacy and reliability of evidence is not a matter to be canvassed before the Court in writ proceedings.

Decision making process  adopted in the resent case cannot be terned to be unreasonable and arbitrary. Once factum of marriage has been established and first wife is living, then contacting of second marriage is clearly misconduct, and once said fact has been made foundation and basis, then in this background order of dispensing with the service and its affirmance in appeal, warrants no interference, writ petition is dismissed.

No orders as to cost..

Dt. 18.12.2006



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