B. Amit Sthalekar, J. - (1.) THE appellant before us has filed a writ petition No. 38200 of 2013 challenging the order dated 29.1.2013 cancelling the earlier penalty order dated 15.7.2012, the notice dated 30.1.2013 to show -cause as to why the penalty of dismissal be not imposed, the charge -sheet dated 12.6.2013, and the order dated 12.12.2012 by which his departmental appeal against the earlier order of punishment dated 15.7.2012 was set aside. We have heard Shri Satya Prakash Pandey, learned counsel appearing for the appellant and the learned standing counsel for the respondents.
(2.) THE petitioner -appellant, who was working as a constable, was charge -sheeted on 1.10.2011 and in the departmental proceedings a penalty order dated 15.7.2012 was passed awarding the punishment of reduction to the lowest of the pay scale for a period of one year. The petitioner -appellant preferred a departmental appeal before the Dy. Inspector General of Police, Kanpur Range, Kanpur who by his order dated 12.12.2012 considered the appeal and set aside the earlier punishment order dated 15.7.2012 and a direction was issued to the Superintendent of Police (Disciplinary Authority) to reconsider the matter and award penalty as per Rules. Accordingly the impugned order dated 29.1.2013 was passed by the Superintendent of Police setting aside the earlier penalty order dated 15.7.2012. Thereafter the impugned show -cause notice dated 30.1.2013 was issued to the petitioner. According to the appellant a fresh charge -sheet has been issued to him on 12.6.2013. Be that as it may, the orders under challenge in the writ petition before the learned Single Judge were the orders dated 12.12.2012 of the Dy. Inspector General of Police passed in departmental appeal, the order dated 29.1.2013 and the notice dated 30.1.2013. A preliminary objection has been raised by the learned standing counsel that the special appeal arises out of an order passed by the learned Single Judge in departmental proceeding held under the Police Officers Subordinate Rank (Punishment and Appeals) Rules, 1991 wherein an appeal against the order of the disciplinary authority lay before the Dy. Inspector General of Police; the appeal was preferred by the appellant before the Dy. Inspector General of Police; and the Dy. Inspector General of Police after considering his appeal on merits passed the order dated 12.12.2012 remitting the matter to the disciplinary authority -Superintendent of Police to pass a penalty order in accordance with the Rules which showed that the order under challenge before the writ Court was an appellate order and therefore this special appeal is not maintainable in view of the provisions of Chapter VIII Rule 5 of the High Court Rules, 1952. Chapter VIII Rule 5 of the High Court Rules, 1952 reads as under: Special Appeal. - - -An appeal shall lie to the Court from a judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its, power of Superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.
(3.) THIS rule came up for consideration before a Division Bench of this Court in the case of Shyam Behari v. State of U.P. and others, : 2005(3) AWC 2189, wherein this Court relying upon an earlier Division Bench decision in the case of Vajara Yojna Seed Farm, Kalyanpur (M/s) and others v. Presiding Officer, Labour Court U.P. Kanpur and another, : (2003) 1 UPLBEC 496, had held that in such cases special appeal is not maintainable. The Division Bench in the case of Shyam Bihari has held as follows: 8. The emphasis given by Sri Jain is that there should be strict interpretation of the appellate and revisional jurisdiction as provided for in Chapter VIII, Rule 5 of the Rules of the Court. The words used under Chapter VIII, Rule 5 of the Rules of the Court are "under any Uttar Pradesh Act or under any Central Act". When the appellate forum has been created under the rules which are framed under the Act, it cannot be said that appellate forum is not under the Act. The words used under Chapter VIII, Rule 5 of the Rules of the Court are not "by the Act" but the words are "under any Uttar Pradesh Act or under any Central Act. The State Legislature by Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962 abolished several categories of special appeal which were provided for in Letters Patent. One of the category of the appeal, which was excluded, was the category under which writ petition were filed against appellate or revisional jurisdiction. The object clearly was when one appellate or revisional authority has examined the matter and thereafter learned single Judge decided the writ petition, no special appeal be provided. We do not see any difference in the forum of appeal provided under the Rules or the Act.;