R. K. Agrawal, J. - (1.) IN Civil Misc. Writ Petition No. 16436 of 2006, Bhoopendra Singh v. State of U. P. and others, a learned single Judge of this Court, doubting the correctness and disagreeing with the law laid down by a coordinate Bench in Civil Misc. Writ Petition No. 6525 of 2004 (SS), Deep Narayan Singh v. State of U. P. and others, decided on 2.1.2006 : 2006 (2) ESC 1036 (All) (LB). (The case has been reported in the name of Udai Pal Singh etc.etc. v. State of U. P. and others), has referred the matter to be decided by a larger Bench by formulating the following question : "Whether Rule 4 (1) (b) (iv) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991, is ultra vires the provisions of Section 7 of the U. P. Police or not and whether the law to the said extent has been correctly laid down in Deep Narayan's case (supra) or not."
(2.) THE Hon'ble Acting Chief Justice, vide order dated 22.2.2007, has been pleased to place the matter before the Division Bench. All other writ petitions have been connected with Civil Misc. Writ Petition No. 16436 of 2006, by the orders passed by the Court. Facts of Bhoopendra Singh's case : Bhoopendra Singh is a Sub Inspector in a civil police and was posted at P. S. Meghapura, Moradabad. In respect of certain plot of land situate at Vishnudham Colony, Tulapur, Bareilly, some enquiry was instituted by the Deputy Inspector General of Police, Bareilly. The Superintendent of Police (City), Bareilly conducted the enquiry and recommended for taking legal action. He had found that the petitioner had violated the provisions of the U. P. Government Servant Conduct Rules, 1956 and recommended for separate departmental proceeding and for his transfer to a far off place. The matter was referred by the Deputy Inspector General of Police, Bareilly Range, Bareilly to the Inspector General of Police, Bareilly Zone, for referring the matter to the Police Head Quarter and also the Deputy Inspector General of Police, Moradabad Range, Moradabad. The Senior Superintendent of Police, Moradabad had issued a show cause notice on 30.12.2005 calling upon the petitioner to show cause as to why a censure entry be not given. The show cause notice dated 20.12.2005 is under challenge in the present writ petition on the ground that the Lucknow Bench of this Court in the case of Deep Narayan Singh (supra), has held that minor punishment of censure entry cannot be awarded to an errant police officer and the Rule 4 (1) (b) (iv) of the U. P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "the Rules") has been declared ultra vires the provisions of Section 7 of Police Act, 1861 (hereinafter referred to as "the Act"). In all other connected matters, either censure entry has been awarded or a notice has been issued as to why censure entry be not given. Law laid down in Deep Narain Singh's case :
(3.) THE learned single Judge hearing the matter of Deep Narayan Singh (supra) and other connected matters, has formulated the following legal issues for decision : "Whether the punishment of 'censure entry' as provided under Rule 4 (1) (b) (iv) of the U. P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (for short as the 'Rules') is ultra vires the provisions of Section 7 of the Police Act, 1861 (Act No. V of 1861)." After referring to various decisions of this Court and of the Apex Court, the learned single Judge has held as follows : (i) A misconduct entry when compared to censure entry, may not be grave in nature as the meaning of this term does not necessarily imply corruption or criminal intent whereas misconduct entry would be a mere punishment, the censure entry is admittedly a penalty. Penalty is regarded to be of greater dimension as compared to punishment. A misconduct entry may be a punishment of lighter nature in comparison to censure entry, the latter seems to be of greater dimension, seriously affecting the right and interest of an employee. It is, therefore, a serious penalty as compared to a misconduct ; (ii) Censure entry is on the same footing as penalty provided in Section 7 (e) of the Act ; (iii) The punishment of censure entry being provided under the heading 'Minor Penalties' in Rule 4 of the Rules is not at all in conformity with the provisions of Section 7 of the Act. If censure entry was also considered to be a punishment of equal footing as provided in clause (e) it would have been incorporated in the section itself. Nothing prevented the Legislature from incorporating the penalty of censure entry in Section 7 of the Act ; (iv) Rule 4 (1) (b) (iv) of the Rules being in conflict with Section 7 of the Act, is ultra vires. Censure incorporated in Rule 4 (a) (b) (iv) is not in furtherance of Section 7 of the Act which authorises the State Government to frame the rules consistent with the Act ; (v) The word 'penalty' as used in Rule 4 was to the extent a substantive law and is not a mere procedure ; (vi) The rule making authority cannot assume a power to formulate the provision of censure entry which is a minor penalty and not incorporated in Section 7 of the Act by incorporating in the subordinate legislation ; and (vii) The State Government in exercise of its power under Section 46 (2) of the Act cannot frame a rule in regard to a substantive law as it can only frame rules with regard to the procedure for exercise of various powers provided by the Act. ;