JUDGMENT D.R. Chaudhary, J.
1. The petitioner, Bhagwant Prasad Arya, was awarded minor penalty of "censure" vide order dated 28.3.1989/30.3.1989 (Annexure-3) passed by the Superintendent of Police, Jaunpur (for short S.P.); his representation/appeal against the order aforesaid was dismissed vide order dated 8.2.1990- (Annexure-4) passed by the Deputy Inspector General of Police, Varanasi (for short D.I.G.); further by order dated 27.11.1987 passed by S.P., Jaunpur a penalty of 'Censure' was imposed; his representation/appeal has been rejected by D.I.G., Varanasi. By the aforesaid orders the petitioner has been awarded adverse entries of 'Censure' for the years 1986 and 1987 which is under challenge in the writ petition.
2. The facts emerging out of the pleadings, in brief, are that the petitioner is a confirmed Sub-Inspector of Police (Civil) and has completed ten years of service as such without flaw; he was posted as S.O. incharge of police station Deenapur, district Varanasi on 4.2.86 where he continued up to 6.8.86; the S.P., Jaunpur served a show cause notice dated 1.11.88 (Annexure-1) upon the petitioner requiring him to explain as to why and adverse entry be not recorded for your negligence in execution of arrest warrant dated 29.9.84 issued under National Security Act; petitioner submitted his reply dated 14.3.89 (Annexure-2); the Superintendent of Police, Jaunpur to whom enquiry was transferred by the Deputy Inspector General of Police (for short D.I.G.), Varanasi, passed the impugned order dated 30.3.89 (Annexure-3) awarding adverse entry of Censure against the petitioner; representation filed by the petitioner under Para 514 of the Police Regulation was also rejected by the D.I.G., Varanasi, Range Varanasi by his order dated 8.2.90 (Annexure-4). The other show cause notice dated 27.11.87 (Annexure-5) was also issued by the S.P., Jaunpur for alleged act or omission by the petitioner during the period he was posted as S.O., P.S. Pakarhi, district Ballia. The petitioner was required to show cause as to why an adverse remark be not recorded in his C.R. for not registering the case under Section 379 I.P.C. and under Sections 4/18 of the Forest Act, the petitioner submitted his reply dated 9.3.88 vide Annexure 6 to the writ petition; the S.P., Jaunpur passed the impugned order dated 24.3.88 (Annexure-7) imposing penalty of Censure which was confirmed by the DIG., Varanasi, Range Varanasi vide his order dated 2.4.89; the revision application (Anncxurc-9) filed by the petitioner is not being decided despite reminder dated 1.1.90 (Annexure-10 to the writ petition); it is asserted that the orders passed by the S.P., Jaunpur and D.I.G., Varanasi, Range Varanasi are wholly illegal, without jurisdiction and suffers from violation of principle of natural justice and as such deserves to the set aside; the petitioner represented his case to the higher authorities for considering his case for promotion it remained undecided due to the adverse entries awarded pursuant to the two aforesaid orders, the petitioner was reverted from the post of S.O. incharge to the post of Sub-Inspector; the petitioner has put in by now 23 years of service as Sub-Inspector and there is no adverse entry throughout except the adverse entries under challenge in the present writ petition; non-consideration of the case of the petitioner for promotion is wholly arbitrary and tainted with malice,
3. The respondents have filed counter affidavit wherein the factual aspect of the case has not been disputed, the petitioner has filed rejoinder affidavit.
4. I have perused the record and heard learned Counsel for the parties who have also filed written arguments.
5. The questions for consideration arc as follows :
(i) Whether the charge of misconduct is made against the petitioner in view of the material available on record;
(ii) Whether the impugned orders suffer from the error of jurisdiction; and
(iii) Whether the petition deserves to be dismissed on the ground of alternative remedy.
6. To examine the first question it is necessary to refer the show cause notices aforementioned. At first instance I take up the show cause notice dated 1.11.89. The charge set out in the show cause notice is that the petitioner was negligent for not having arrested one Sarnath pursuant to the order dated 29.9.84 issued under National Security Act, I have also perused the reply submitted by the petitioner to the aforesaid show cause notice; the petitioner in his reply has stated that the detention order dated 29,9.84 came to his notice in the meeting called upon by the S.S.P., Varanasi in July, 1986; he then tried to search out the order of detention which was found in old records and after having searched out the detention order the petitioner proceeded to arrest the warrantee on 5.7.86, 12.7.86, 16.7.86 and 18.7.86 which is evident from the General Diary. The warrantee, however, could not be arrested in the raids laid by the petitioner on the aforesaid dates. It is further stated by the petitioner that he has been picked up in order to save his pre-prcdecessors who could not execute the arrest warrant for long two years; the explanation submitted by the petitioner has not been disputed by the respondents either in the counter affidavit or in the written statements. Further no ill motive or bad intention has been alleged against the petitioner. It has also not been alleged that the petitioner is habitual negligent in performance of duties. The Apex Court in Union of India and Ors. v. J. Ahmed, AIR 1979 SC 1022, has confronted with the case containing the similar facts and circumstances and has held as under:
".........there may be negligence in performance of duty and a lapse in performance of duty or error of Judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless .the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high..........."
7. I have carefully examined the show cause notice and the orders passed by the S.P., Jaunpur and DIG., Varanasi, Range Varanasi in the light of the decision aforementioned and I am of the view that the charge of misconduct is not made out against the petitioner and as such the penalty of adverse remarks is not sustainable.
8. I have also examined the other show cause notice dated 27.11.87 and the reply submitted by the petitioner. In the show cause notice the allegation is that the petitioner has not registered a case under Section 379 IPC and Sections 4/18 of the Forest Act for extraneous consideration. The petitioner has stated in his reply that there was a dispute between the two real brothers with regard to the ownership and share in the trees which were cut down by one party. On having received the complaint from one brother the petitioner proceeded with investigation and inspected the wood and it was found that no green trees were cut down; the dispute regarding share in the wood is between the complainant and his brother Shiv Charan Singh; the statement of Block Pramukh Dhruv Singh, Indrajit Singh, Pradhan, Subhash Singh and Gram Pradhan Chandra Vali Singh, all residents of the same police station Pakarhi, district Ballia, were recorded; the statement of the complainant Shiv Shanker Singh and his brother Shiv Charan Singh was also recorded; in the investigation it was also found that Shiv Charan Singh was not taking the wood with intention to cause loss to his brother. The petitioner came to the conclusion that no case of theft under Section 379 IPC and Sections 4/8 of the Forest Act was made out. The facts contained in the reply to the show cause notice have not been disputed by the respondents. I have carefully examined the show cause notice and the reply submitted by the petitioner and in my view it appears a case of an error of judgment. The allegation of extraneous consideration is not found proved from the record. Thus, no misconduct is made out for the act or omission on the part of the petitioner as has been held by the Apex Court in case of Union of India (supra).
9. With regard to the next question whether the S.P., Jaunpur has jurisdiction to decide the case and award penalty. It appears from the record that enquiry was transferred to S.P., Jaunpur. With regard to act or omission alleged to have been committed by the petitioner while he was posted at police station Deenapur, district Varanasi and police station Pakarhi, district Ballia. No doubt U.P. Police Regulation provides for the transfer of enquiry to the S.P. other than district where the act or omission has taken place. It is also provided under Regulation 479 that S.P. has authority and jurisdiction to punish the Sub-Inspector temporarily or permanently subordinate to him. In the present case as it appears that the enquiry was transferred to the S.P., Jaunpur but not the case. The S.P., Jaunpur instead of submitting enquiry report himself decided the case imposing the penalty. It is also evident from the record that both the show cause notices were issued by the S.P., Jaunpur. Learned Standing Counsel failed to submit account as to why the S.P., Jaunpur was picked up to decide the cases even though act or omission took place in other districts. It is argued for the petitioner that disciplinary authority is the S.P. of the district where the act or omission took place and therefore, the adverse remarks awarded by the S.P., Jaunpur is wholly without jurisdiction. The learned Standing Counsel on other hand has submitted that the penalty awarded by the S.P. is justified, learned Counsel for the petitioner also submitted that the impugned orders are tainted with malice. Even though no material to support his submission is placed on record' the submission of learned Counsel for the petitioner cannot be thrown out in view of the facts and circumstances aforementioned.
10. Learned Standing Counsel vehemently argued that the petitioner has alternative remedy before the U.P. Police Service Tribunal which he has availed of and as such this writ petition is not maintainable and deserves to be dismissed on the ground of alternative remedy. It is stated in Paragraph 15 of the writ petition that against the adverse entries for the years 1986 and 1987 aforementioned he filed reference before the U.P. Public Service Tribunal under the wrong legal advice. The aforesaid references arc still pending. In reply to this contention of the learned Standing Counsel, learned Counsel for the petitioner submitted that the petitioner as by now has completed 23 years of service as Sub-Inspector and there is nothing against the petitioner except the aforesaid two adverse entries awarded for the years 1986 and1987 but his case for promotion has not been considered by the department till date. It is next submitted by the learned Counsel for the petitioner that the order being without jurisdiction can be challenged invoking the jurisdiction under Article 226 of the Constitution and the writ petition is maintainable. To support his submission he has relied upon the decision reported in the case of Turf Properties Ltd. v. Corporation of Calcutta, AIR 1957 Calcutta 431 (Vol. 44 C 118 July) and Bachhitar Singh v. State of Punjab and another, AIR 1963 SC 395 (V 50 C 49). It is further submitted by the learned Counsel for the petitioner that there is an illegality in the decision making process and that being so the order impugned becomes patently without jurisdiction and as such the writ petition under Article 226 of the Constitution in maintainable as held by the Apex Court in the case of Union of India v. Upendra Singh, 1994 (3) SCC 357.
11. Apart from the legal aspect of the matter the fact cannot be overlooked that the petitioner has not been promoted though he has put in 23 years of service as confirmed Sub-Inspector by now. A Government employee is entitled to the benefit of promotion and if he fulfills the criterion laid down under the Rules. Learned Standing Counsel argued that due to the aforesaid two adverse entries petitioner's case has not been considered for promotion. Admittedly, there is no other adverse entry against the petitioner except the aforesaid two entries. The cases before the Tribunal awaiting decision and this petition is also pending for decision since 1990. This Court has entertained the writ petition and has called for counter affidavit from the respondents who have filed the same, therefore, at this stage the submission of the learned Standing Counsel that the writ petition deserves to be dismissed on the ground of alternative remedy cannot be accepted. The other aspect of the matter is that in case the submission of the learned Standing Counsel is accepted the petitioner will further suffer and in that case the petitioner has to wait for his promotion and other service benefits for uncounted period i.e., till the date of the decision of the references before the Tribunal. In my view the submission of the learned Standing Counsel that the writ petition deserves to be dismissed on the ground of alternative remedy, deserves to be rejected.
12. It is evident from the record that no disciplinary enquiry has been conducted in accordance with Rules 6 and 14 and Appendix 1. The submission of the learned Counsel for the petitioner is that petitioner has not been afforded full opportunity of hearing in as much as neither his statement was recorded nor he was allowed to produce witnesses in defence; the petitioner was also not allowed to cross-examine the witnesses whose statement were recorded behind his back and in that view of the matter the impugned orders suffer from violation of principle of natural justice. In the present case, a minor penalty of 'Censure' was awarded to the petitioner. The petitioner was served with a show cause notice to which he submitted his reply. The show cause notice and the reply have been discussed herein above. The respondents have not placed on record the material with regard to enquiry held wherein the statements of witnesses, if any, were recorded. However, in view of the discussions herein above this question need not be gone into.
13. In view of the discussion aforementioned, I am of the view that the adverse entries of Censure for the years 1986 and 1987 awarded against the petitioner pursuant to the impugned orders is unsustainable in law. In the result, the writ petition succeeds and is allowed. The adverse entries for the year 1986 and 1987 are expunged. The respondents shall consider the case of the petitioner for promotion in accordance with law and shall provide other service benefits within six weeks hence.