Brijesh Kumar, J. - (1.) Only a short question arises for consideration in this writ petition. It appears that after departmental proceedings the petitioner was given punishment of dismissal by the disciplinary authority. The petitioner preferred an appeal against the order of dismissal which was, though, allowed but it was provided by the appellate order that proceedings shall take place afresh from the stage of the defence in the enquiry. The petitioner challenged the order of the appellate authority directing to start the disciplinary proceedings afresh from the particular stage. The claim petition was, however, dismissed by the U.P. Public Services Tribunal and the review petition filed against that order also met the same fate.
(2.) Learned counsel for the petitioner has submitted that the relevant provision of the Police Regulations conferring appellate power, does not specifically confer the power to remand a matter, therefore, the appellate authority could only uphold, set aside or modify the order passed by the disciplinary authority. Unless there is specific provision for remand of the matter the appellate authority cannot pass that order. However, it has been conceded that in cases when the order of Punishment is set aside because of some technical lacuna or on the ground that the principles of natural justice have not been complied with it is open to hold a fresh enquiry in the matter but ascot mug, to the teamed counsel for the petitioner, this decision can only be taken by the disciplinary authority and not by the appellate authority According to petitioner, after the order of dismissal was set aside by the appellate authority, it was still open for the disciplinary authority to take decision in the matter as to whether a fresh enquiry could legally be initiated and should be initiated or not but this cannot be done by the appellate authority.
(3.) On a perusal of the appellate order it appears that the appellate authority has not dealt with the matter on merits but has observed that the petitioner had himself made certain entries in the General Diary, dated April 28, 1981 which were relevant on the merits but were not taken into account by the punishing authority. At one place it has also been observed that the defence plea of the petitioner has not been adequately perused. In this view of the matter that the defence plea of the petitioner was ignored while passing the order of punishment the appellate authority thought it fit that the punishing authority may consider that aspect of the matter and then pass the order. The relevant part of the order of the appellate authority reads as follows : "Proceedings against the appellate will be taken afresh from the defence stage and the appellant will be called upon to lead his full defence which will be taken into consideration for a fair decision. The appellant will be allowed to cross-examine the prosecution witnesses of these proceedings if he so desires.";