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TMI Blog2015 (3) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... and order of the Commander. The required number of constables were not posted at the camp nor were the followers. In the aforesaid admitted position, the revisional authority, took a different view, that despite non availability of the followers and the assignment of cooking work, the petitioner being a constable should have been alert while performing his duties even while he was cooking the food. Therefore, the revisional authority opined that at the time of attack the petitioner was negligent in performance of his duties. The revisional authority, finally concluded, that considering the overall facts and circumstances and the conduct of the constables posted at the camp, the petitioner being a constable and deputed for the protection of the camp was negligent in performance of duty because at the time of the attack the petitioner and the other constables had escaped, consequently, the naxalites were successful in destroying the Government property and looting the arms and armaments. The impugned order would reflect that the revisional authority had drawn inference on the same material and facts, but the revisional authority had taken distinct and different view from that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 stain gun and 192 cartridges, destroyed the Government property after putting it on fire. The petitioner failed to discharge his duty as per the Rules prescribed in the Margdarshak Niyamawali. The incident according to the respondents took place due to dereliction of duty by the petitioner. The petitioner replied to the charge mentioning, therein, that the police force was not adequate at that point of time as required under the Rules, no follower was posted at the Camp, due to which the petitioner had to cook the meals. On the date of the incident only two Head constables and seven constables were posted at the camp against the required strength of 11 constables. On the said date, the Santry saw 40 to 50 labourers coming towards the camp. The Santry could not understand the motive of the naxalites disguised as labourers, therefore, the Santri did not alert the others nor made any signal or indication of imminent danger. According to the petitioner, the incharge of the camp, who is the Platoon Commander, barely visited the camp and resided at the Chauki, whereas, it was the duty of the Platoon Commander to stay at the camp. Due to the non availability of follower, the mess arrang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishment cannot be awarded to a co-delinquent for the same incident, the order of the disciplinary authority was set aside, directing that a minor penalty, as awarded to constable Sanjai Kumar Rai, could be imposed upon the petitioner, if so desired by the disciplinary authority. Sanjai Kumar Rai was awarded censure entry for the same allegations. 4. After a lapse of more than 9 months, the second respondent, Inspector General of Police (P.A.C.), Eastern Zone, U.P., Lucknow in exercise of power under Rule 23 of the 1991 Rules issued a notice on 9 September 2009 calling upon the petitioner to show-cause as to why the appellate order may not be revised. The revisional authority opined that there was no illegality or infirmity in conducting the disciplinary proceedings, and sufficient material was available on record to establish the charge. The responsibility and allegation in respect of Constable Sanjai Kumar Rai was different from that of the petitioner. 5. The petitioner aggrieved by the show-cause notice, approached this Court in writ jurisdiction (Writ Petition No. 57699 of 2009, which was dismissed on 5 November 2009 directing the petitioner to file a reply to the notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve re-appreciated the evidence to arrive at a conclusion which was different from that of the appellate authority. If two views were possible, the view taken by the appellate authority would prevail, which could not have been substituted by the revisional authority. 10. The revisional jurisdiction as provided under Rule 23 is extracted: Rule 23-- (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 superior authority next to the authority which has rejected his appeal within three months from the date of rejection of appeal as mentioned below: (a) ................ (b) ................ (c) ................ On such an application, the powers of revision may be exercised only when, in consequence 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 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 ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court reversed. The appeal is thus a removal of a cause from an inferior Court/authority to a superior Court/authority for the purpose of testing the soundness of the decision of the inferior Court. The appeal is a continuation of a proceeding. 13. The revisional authority, may at any time, on its own motion or on the application of any aggrieved person, call for and examine the records relating to the appeal for the purpose of satisfying itself as to the legality or propriety of such order or to the regularity of such procedure and may pass order in respect thereto as it may deem fit. 14. In order to embark upon an enquiry to find out the ambit and scope of the revisional power under Rule 23, extent, scope, ambit and meaning of the terms legality or propriety and regularity, correctness, legality or propriety will have to be determined. 15. A Constitution Bench in Hindustan Petroleum Corporation Limited v. Dilbahar Singh, (2014) 9 SCC 78, was called upon to answer a reference regarding the scope and ambit of the revisional powers of the High Court under various Rent Control Acts. The Supreme Court had the occasion to determine the extent, scope and ambit of the meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence or overlooking and ignoring the material evidence altogether or suffers from perversity or any such finding has resulted in gross miscarriage of justice. But the revisional power is not as wide as that of the appellate authority or such power is coextensive with that of the appellate authority or that the concluded finding of fact recorded by the original authority or the appellate authority can be interfered with by the revisional authority by reappreciating evidence because the revisional authority is not in agreement with the finding of fact recorded by the authority below. Revisional authority cannot reverse the finding of fact merely because on reappreciation of the evidence it has a different view on the findings of fact. 18. I have considered the proposition of law regarding the scope, extent and ambit of appeal and revision . 19. Applying the law in the facts of the case in hand, it is evident that the revisional authority on reappreciating the material available on record, the evidences and statements of the delinquent officials had not recorded as to how the findings of the appellate authority was illegal or improper. The revisional authority had noted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n , discussed herein above, would not permit the revisional authority to re-appreciate the evidences to come to a different conclusion, save and except, when the revisional authority records a categorical finding regarding the legality and propriety of such order under revision. In my view the revisional authority had exceeded his jurisdiction by taking upon himself the role of a second authority of appeal which is not permissible under the Rules. 21. It is not disputed by the respondents that constable Sanjai Kumar Rai was also assigned the work of cooking. At the time of the incident he also acted in the same manner as the petitioner, however, a minor penalty was imposed upon Sanjai Kumar Rai, whereas, the petitioner was awarded a major penalty. In respect of other constables, no punishment was imposed upon constable Meraj Ahmad, Rajnath Verma and the Company Commander. 22. Learned counsel for the petitioner informed that the termination order of constable Bal Bachan and Head constable Rajnath has been set aside by this Court in writ jurisdiction and the writ petition of other constables are still pending. 23. Regarding quantum of punishment in cases where the co-delinqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her different departmental enquiries. 24. The allegation against the petitioner is primarily of a general nature of not defending the camp at the time of the naxal attack. The appellate authority had noted the background in which the petitioner alongwith other constables acted at the relevant time. The guard strength was inadequate, seven guards against eleven, of which two guards, including the petitioner, were assigned the work of a cook. The Commander was not available when approximately fifty naxals attacked the camp. In these circumstances the first reaction of the guards was to take shelter to save their lives. The appellate authority in these circumstances and on considering the material, evidence and statements of the guards was of the view that the petitioner was wrongly held guilty by the Disciplinary Authority. The penalty awarded to other constables, in the admitted circumstances, was far lesser. The revisional authority failed to record as to how the charges of misconduct was not identical to that of Sanjai Kumar Rai or the petitioner was foisted with more serious charges. In this background the revisional authority exceeded his jurisdiction in interfering with pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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