Heard Sri Rakesh Kumar Singh, learned counsel for the petitioner and Ms. Parul Bajpai, learned Standing Counsel for the State-respondents.
By means of this writ petition, the petitioner has assailed the office memo dated 01.07.2021 passed by the Additional Chief Secretary, Home Department, Government of U.P., Civil Secretariat, Lucknow, awarding special adverse entry to the petitioner.
Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.5 of the writ petition, which is the dictum of Hon'ble Apex Court rendered in re: Vijay Singh vs. State of U.P. & others reported in [2012 (2) LBESR 774 (SC) by submitting that the punishment of special adverse entry is not provided under the relevant rules known as U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (here-in-after referred to as the "Rules, 1991"), therefore, such punishment may not be awarded.
Ms. Parul Bajpai, learned Standing Counsel has submitted that so far as the allegation levelled in the punishment order is concerned, it appears prima-facie that the petitioner has committed some misconduct, however, this punishment is not prescribed under Rules, 1991. She has submitted that there is statutory modalities to deal with such punishment by preferring a representation to the Competent Authority under the relevant provisions, namely, U.P. Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 (here-in-after referred to as the "Rules, 1995").
Ms. Bajpai has further submitted that since the impugned punishment has not been awarded to the petitioner after conducting the departmental enquiry in terms of Rules, 1991, therefore, this punishment order may not be tested under the provisions of Rules, 1991.
On being confronted the learned Standing Counsel about the jurisdiction of the authority who has passed the order inasmuch as the order impugned has been passed by the Highest Authority of the Home Department i.e. the Additional Chief Secretary of the Home Department, Civil Secretariat, Lucknow against the petitioner who is serving on the post of Inspector and on account of the impugned order of punishment, the statutory remedy of the petitioner to file appeal or revision has been gone away inasmuch as against such order the petitioner would not be able to file any statutory appeal before the Appellate Authority, the learned Standing Counsel could not justify the order on this point.
The petitioner is discharging his duties as Inspector in the Police Department, his Appellate Authority would be the Deputy Inspector General of Police and his Revisional Authority would be the Inspector General of Police but against the impugned office memo dated 01.07.20201 he may not approach any of the authority i.e. the Appellate Authority or the Revisional Authority. Besides, the petitioner would have not approached any authority under the Rules,1995 for the reason that the order impugned has been passed by the Highest Authority of the Home Department of the State of U.P. Therefore, the impugned office memo dated 01.07.2021 is not only unwarranted and uncalled for being passed without having any prescription under the relevant service Rules, 1991 but has been passed by such authority against which no appeal or revision or representation can be filed before the Competent Authority. The impugned office memo dated 01.07.2021 is prima facie an order passed without jurisdiction, therefore, it may not sustain in the eyes of law.
The right of appeal or revision or statutory representation of an employee may not be curtailed/ washed off and if such inaction has been done by any of the authority, the said punishment order would be nullity in the eyes of law.
In view of the above, the writ petition succeeds and is allowed.
A writ in the nature of certiorari is issued quashing the order dated 01.07.2021, passed by the Additional Chief Secretary, Department of Home, Government of U.P., Civil Secretariat, Lucknow, which is contained as Annexure No.1 to the writ petition, being illegal, unwarranted and without jurisdictional order and also in violation of the dictum of Hon'ble Apex Court in re: Vijay Singh (supra) as the impugned punishment has not been prescribed under the Rules, 1991.
Consequences to follow.
However, it is always open to the authority/ authorities concerned to pass appropriate orders, but by following due procedure of law.
No order as to costs.
Order Date :- 18.8.2021 Suresh/ [Rajesh Singh Chauhan,J.]