Hon'ble Het Singh Yadav,J.
( By Hon'ble Rakesh Tiwari, J.) Heard learned counsel for the parties and perused the record.
Brief facts of the case are that while the petitioner was working on the post of constable at police station G.R.P. Moradabad, he proceeded on 30 days sanctioned medical leave. A complaint dated 10.7.2000 was made by one Shakhawat Hussain resident of village Dadiyal Ahatmali District Rampur to the Senior Superintendent of Police ( Railways) GRP, Moradabad stating therein that in the election of Gram Pradhan in which the wife of the petitioner was also a candidate, he actively participated in the canvassing and threatened the votes by his licensed gun. On the complaint an enquiry was conducted wherein the allegations levelled against petitioner regarding threat by use of gun were found to be baseless. However, the petitioner was found guilty of canvassing and seeking vote for his wife in elections which was unbecoming of a Government Servant under the Government Servants Conduct Rules.
A complaint appears to have thereafter been filed in the Court of Chief Judicial Magistrate, who directed for institution of a criminal case under Section 506 IPC against the petitioner. On the basis of enquiry report a show cause notice dated 8.8.2000 was issued to him requiring him to submit his explanation as to why the censure entry proposed may not be awarded to him. The petitioner submitted his explanation thereto dated 19.8.2000 denying the accusations made against him. The Punishing Authority vide order dated 13.11.2000 awarded the censure entry against the petitioner. Aggrieved by the aforesaid order dated 13.11.2000 the petitioner filed an appeal before the Appellate authority which was rejected vide order dated 29.4.2001. He then preferred revision against the appellate order, before the Inspector General of Police ( Railways), Lucknow, which was also rejected.
The petitioner then preferred Claim Petition No. 1103 of 2001, Mohd. Ayyub versus State of U.P. and others, before the State Public Services Tribunal, Lucknow ( hereinafter in brief called as the "Tribunal") which was dismissed vide judgment and order dated 23.10.2003. The relevant portion of the judgment and order dated 23.10.2003 reads thus:-
"Heard the learned counsel for the petitioner as well as the learned PO for the O.ps. at length and also perused the record of the case. From the perusal of the records and after hearing of the arguments there is only one relevant point to be discussed that is whether the petitioner was denied the reasonable opportunity of defence and is there any violation of the principle of national justice and whether there is mandatory provision to file revision u/r 23 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. It is evident from the records that the preliminary enquiry was got conducted on the complaint made against the petitioner and the allegation that he was canvassing for his wife and praying for votes for his wife was proved. The relevant portion of the enquiry report is quoted herewith:
^^vkj{kh dk esMhdy vodk'k ysdj xkao tkuk mfpr Fkk rFkk pquko okys fnu viuk oksV Mkyuk Hkh mfpr Fkk ijUrq viuh iRuh dks ftrkus gsrq pquko izpkj ,oa oksV ekaxuk vuqfpr Fkk tks xoZuesUV ljosaV dUMDV :Yl ds fu;eksa ds izfrdwy FkkA** On the basis of these findings the petitioner was served a show cause notice under Rule 14(2) of the Police Officers of Subordinate Ranks (Appeal & Punishment) Rules, 1991, to whom he submitted his reply. This proves that the petitioner was effectively associated during the course of enquiry and by issuing a show cause notice to him the petitioner was provided the opportunity to clarify his position about the incidence.The petitioner failed to prove himself as innocent. By doing canvassing for mustering votes in favour of his wife who was contesting the election on the post of Gram Pradhan of the village, the petitioner was found guilty for violating the provisions of Government Servant Conducts Rules. The petitioner was provided an adequate opportunity for defending himself, therefore, there has been no violation of the principle of natural justice. The punishing authority did not commit any legal or procedural error in passing the punishment order. Thus, the punishment order passed against the petitioner was just and legal.
The petitioner has taken plea that he filed an appeal against the impugned punishment order which has been rejected in summary manner. From the perusal of the appellate order it is very clear that appellate order is well reasoned and speaking order by which the appeal submitted by the petitioner has been rejected. The petitioner also took plea in the claim petition as well as in R.A. that he also preferred a revision against these impugned order which is still pending for disposal while the opposite parties denied this plea in the counter affidavit/written statement and made averment that the petitioner did not file any revision against the punishment and appellate order, thus, he did not avail the departmental remedy available to him and on this ground alone, the claim petition can be dismissed. In support of the plea on this point the petitioner did not produce any documentary evidence in this regard that he had submitted revision against these orders before the revisional authority. The question aroused whether the filing of appeal under the Rules, 1991 is mandatory for the delinquent. ln this regard, Rule 23 of the Rules, 1991 provides that "(1) An officer whose appeal has been rejected by any authority subordinate to the Government is entitled to submit an application for revision to the authority next in rank above by which his appeal has been rejected within the period of three months from the date of rejection of appeal. On such an application the power of revision may be exercised only when, in consequent of flagrant irregularity, there appears to have been material injustice or miscarriage of justice:
Provided that the revising authority may on its own motion call for and examine the records of any order passed in a call for and examine the records of any order passed in a appeal against which no revision has been preferred under this Rule for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit:
Provided further that no order under the first proviso shall be made except after giving the person effected a reasonable opportunity of being heard in the matter.
(2) The procedure prescribed for appeal applies also to application for revision. An application for revision an order rejecting an appeal shall be accompanied by a copy of the original order as well as the order of appellate authority."
From the perusal of these rules it is clear that this rule provides empowerment to the delinquent to file revision against the appellate order. Section 4(5) of the U.P. Public Services Tribunal Act, 1976 provides that the Tribunal shall not ordinarily admit a reference unless it is satisfied that public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievance.
Sub-Section 5 of Section 4 of the Act, 1976 further provides that " for the purpose of sub-section 5 a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred representation made by such public servant in connection with the grievance.
Provided that where no final order is made by the State Government authority officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date which such appeal was preferred or representation was made, the public servant made by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him. Thus, compliance of Section 4(5) is mandatory for the delinquent who prefers to file claim petition in the Tribunal. In this section only provision of filing appeal is mandatory. Once the petitioner preferred an appeal and after its's disposal the delinquent becomes entitled to file the claim petition. Rule 23 of the said Rules 1991 provides an additional facility to the delinquent, if he wishes he can file revision. For the purpose of Section 4(5) the filing of the revision is mandatory. Thus, the petitioner in the instant case deemed to have availed the departmental remedy as provided in Section 4(5) and (5) of the Act, 1976.
On the basis of the above mentioned discussion I am of the opinion that the Punishing Authority had provided an adequate opportunity of defence to the petitioner before passing the punishment order and they have not violated the cardinal principle of natural justice. Under these circumstances the impugned punishment order and the appellate order passed against the petitioner are just and legal and there are no any legal or procedural infirmity found in it, thus there is no need to intervene in these orders, therefore, the claim petition is devoid of merits and deserves to be dismissed.
Order In the light of the aforementioned observations, the claim petition is hereby dismissed.
There is no order as to costs."
Aggrieved, the petitioner has filed the present writ petition for the following reliefs.
" i) Issue a writ order or direction in the nature of certiorari for quashing the impugned orders passed by the respondent nos. 4,3 and 2 dated 13.11.2000, 29.4.2001 and 23.10.2003 contained in Annexure nos. 1,2 and 3 to the writ petition;
ii) Issue a writ, order or direction in the nature of mandamus commanding/directing the respondent no.5 to pass an order on the revision petition of the petitioner;
iii) Issue any other suitable writ, order or direction in the nature as this Hon'ble Court may deem fit and proper in the circumstances of the case; and
iv) Award the cost of petition to the petitioner."
Learned counsel for the petitioner submits that in the impugned order dated 13.11.2000 passed by respondent no.4 it has been wrongly mentioned that the petitioner was Polling Agent on the day of election in the light of Enquiry report dated 25.7.2000 of S.I./Incharge of Out-Post of P.S. GRP, Rampur. He contends that in so far as the allegations taking of the petitioner and the complaint of the complainant dated 19.7.2000 to respondent no.4 by the Addl. Superintendent of Police, Rampur is concerned, the same is absolutely wrong in the light of the report dated 6.8.2000 of P.S. Tanda submitted to the Addl. Chief Judicial Magistrate, Rampur pursuant to the application under Section 156(3) Cr.P.C.
He also submits that the allegations that he threatened the voters to give their votes in favour of his wife by the petitioner is also not proved by the Enquiry Officer and contesting of election by the wife of the petitioner for the office of Gram Pradhan does not violate the provisions of Rule 5 the U.P. Government Servants Conduct Rules, 1956, hence the petitioner cannot be held guilty on the aforesaid count.
He next submits that election of the Gram Pradhan was scheduled to be held in the month of April whereas the petitioner sought one month medical leave w.e.f. 26.5.2000 but on account of indulgence of High Court and Supreme Court the said election was ordered to be held on 23.6.2000. Thus, incidentally the election was held at a time when the petitioner was availing sanctioned medical leave for which no otherwise presumption can be taken for awarding the censure entry. The complaint made against the petitioner was on account of the animosity with the complainant and the same was made with the sole motive to get him departmentally punished as his presence during the course of election was not liked by the complainant.
He further submits that as a result of censure entry the petitioner is being denied his legitimate service claims such as promotion etc. and the said censure entry is being treated as bar for future service career of the petitioner; that the Tribunal has not considered the case of the petitioner and has unreasonably limited its impugned order only on the two points i.e. (i) to the principle of natural justice and (ii) to the mandatory provisions of filing revision under Section 23 of the Police Officers of Subordinate Ranks ( Punishment and Appeal) Rules, 1991 and not considered the evidence adduced by the petitioner.
He lastly submits that in these circumstances the impugned orders dated 13.11.2000, 29.4.2001 and 23.10.2003 passed by respondent nos. 4,3 and 2 are wholly illegal, arbitrary and without justification, hence the same are liable to be quashed by this Court.
Per contra, learned counsel for the respondents while supporting the impugned orders dated 13.11.2000,29.4.2001 and 23.10.2003 submits that the petitioner being the Government servant has actively participated and worked as Agent for his wife in election who was a candidate for the post of Gram Pradhan and thus he has violated Rule 5(4) of the U.P. Government Servant's Conduct Rules as such the punishment of censure entry awarded to him is in consonance with the charge.
It is argued vehemently that petitioner was caught by the Addl. Superintendent of Police, Rampur while he was trying to maintain law, order and peace during polling and after completion of the election the petitioner was released in the evening; that all of this is supported by record and the impugned orders have been passed after affording an opportunity of hearing to the petitioner.
He lastly submits that in so far as the findings recorded by all the authorities are concerned, they are in accordance with principles of natural justice and in accordance with law, hence the writ petition deserves to be dismissed with heavy cost, hence the petitioner is not entitled to get any relief from this Court as he has violated the provisions of Government Servants' Conduct Rules.
After hearing the learned counsels for the parties and on perusal of record it is apparent that enquiry was got conducted on the complaint made against the petitioner and the allegation that he was canvassing for his wife and praying for votes for his wife was proved. The relevant portion of the enquiry report is as under:-
^^ - - - - - ftlls ;g izekf.kr gksrk gS fd vkjksih ml nkSjku esfMdy vodk'k ij jgrs gq, viuh iRuh dks iz/kku in ds fy, ftrkus dh fu;r ls ogka ij x;k vkSj mlus ogka ij 'kkafr O;oLFkk Hkax djus dh dksf'k'k dh gSA bl laca/k esa {ks=kf/kdkjh Lokj jkeiqj }kjk fnukad 12-8-2000 dks viuh tkap vk[;k ij fVIi.kh izsf"kr dh gSA ftlls ;g izekf.kr gksrk gS fd vkjksih viuh iRuh dks ftrkus dh fu;r ls pquko izpkj djus rFkk viuh ifRu ds i{k esa ernku ds fnu ,ts.V gksuk ik;k x;k gSA vkjksih vkj{kh ds fo:) mDr d`r ds fy, tkap vk[;k] lekpkj&i=] {ks=kf/kdkjh Lokj jkeiqj izek.k miyC/k gSA bl ckr ls badkj ugha fd;k tk ldrk fd vkjksih vkj{kh esfMdy vodk'k esa jgrs gq, viuh ifRu dks iz/kku in ds fy, ftrkus gsrq dk;Z fd;k gSA vkjksih vkj{kh mDr d`R; ds fy, iw.kZr;% nks"kh gSA vr% vkjksih vkj{kh }kjk izsf"kr Li"Vhdj.k esa dksbZ cy u ikrs gq, rFkk Li"Vhdj.k vlarks"ktud ikrs gq, fuxZr dkj.k crkvksa uksfVl la[;k ih&[email protected] fnukad 8-8-2000 esa izLrkfor mijksDr ifjfuUnk ys[kk vkj{kh 5259 eks- v;~;wc dh pfj= iaftdk esa vafdr fd;s tkus ds vkns'k ikfjr fd;s tkrs gSaA** On the basis of these findings the petitioner was served a show cause notice under Rule 14(2) of the Police Officers of Subordinate Ranks (Appeal & Punishment) Rules 1991 to which he submitted reply which proves that the petitioner participated in the enquiry and by issuing a show cause notice to him he was provided opportunity to clarify his position about the incidence. The petitioner has failed to support his defence or to prove himself as innocent. By doing canvassing to muster votes in favour of his wife who was contesting the election on the post of Gram Pradhan of the village and acting as her registered agent as well as has been found guilty for violating the provisions of Government Servant Conduct Rules. He was provided adequate opportunities for defending himself, therefore, there has been no violation of the principles of natural justice or fair play. The Punishing Authority does not appear to have committed any legal or procedural error in passing the punishing order, hence the same is just and legal.
In so far as the contention of learned counsel for the petitioner that the appeal has been rejected summarily by the appellate authority is concerned, suffice is to say that from perusal of the appellate order it is crystal clear that the appellate order is well reasoned and speaking order. As regards filing of revision by the petitioner and its pendency before the Revisional authority is concerned, it is again evident from the order of the Tribunal that the petitioner had not filed any revision against the punishment as well as appellate order, hence he did not avail the departmental remedy available to him and the petitioner has also failed to produce any documentary evidence in this regard that he had submitted revision against the punishment as well as appellate order before the Revisional authority. Therefore, in our considered opinion, the Tribunal has not committed any illegality or infirmity in passing the impugned order dated 23.10.2003. In all the aforesaid facts and circumstances, the impugned orders are just and proper, hence no interference is required by this Court. The writ petition is accordingly, dismissed. No order as to costs.
Dated 8.5.2012 CPP/-