Allahabad High Court
Anoop Kumar Pradhan vs State Of U.P. Thru. Its Addl. Chief Secy. ... on 8 May, 2024
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:35700 Court No. - 6 Case :- WRIT - A No. - 1362 of 2023 Petitioner :- Anoop Kumar Pradhan Respondent :- State Of U.P. Thru. Its Addl. Chief Secy. Prin. Secy. State Tax Lko. And 3 Others Counsel for Petitioner :- Utsav Mishra,Gaurav Mehrotra Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J.
1. Heard Sri Utsav Mishra, learned counsel for the petitioner, and Sri Aniruddh Singh, learned Standing Counsel for the respondents.
2. Under challenge is the order dated 19.12.2022, a copy of which is Annexure-1 to the writ petition, whereby the petitioner has been imposed a punishment order which is an amalgam of major and minor penalty.
3. The contention of learned counsel for the petitioner is that the petitioner while working on the post of Joint Commissioner (Trade Tax) was issued a charge sheet dated 12.12.2017 containing three charges following by a supplementary charge sheet dated 04.08.2021 containing two charges. The disciplinary proceedings were conducted against the petitioner in accordance with the U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 'Rules, 1999'). An inquiry report dated 26.03.2018, a copy of which is Annexure-8 to the petition, was submitted with respect to the first charge sheet in which the petitioner was exonerated of all the three charges. Thereafter, another inquiry report dated 13.01.2022, a copy of which is Annexure-23 to the petition, was submitted with respect to the supplementary charge sheet. Although, the supplementary charge sheet pertains to two charges yet the first charge was split into five sub-charges of which one was found partly proved against the petitioner while for the other four sub-charges, the petitioner was exonerated. Likewise, the petitioner was also exonerated of the second charge as levelled in the supplementary charge sheet dated 04.08.2021. Thereafter, instead of the Disciplinary Authority proceeding on the basis of the inquiry report dated 13.01.2022 the Inquiry Officer on his own accord submitted a second inquiry report dated 30.03.2022, a copy of which is Annexure-18 to the petition, whereby both the charges have been found proved.
4. The Disciplinary Authority vide the order impugned dated 19.12.2022 after considering the second inquiry report dated 30.03.2022 and also indicating that subsequent to submission of the inquiry report dated 13.01.2022 the Inquiry Officer has again submitted the inquiry report dated 30.03.2022, has proceeded to pass the impugned order of punishment whereby imposing a penalty of withholding of five increments permanently, recovery of Rs.1,45,00,000/- as well as awarding of censure entry.
5. The argument of learned counsel for the petitioner is that after the Inquiry Officer had submitted the inquiry report dated 13.01.2022 with respect to the supplementary charge sheet, he became 'functus officio' inasmuch, by no stretch of imagination legally could he have submitted a second inquiry report dated 30.03.2022. The further argument is that after submission of the inquiry report dated 13.01.2022, the only option open for the Disciplinary Authority was as provided under Rule 9 of the Rules, 1999 i.e. to either remit the case for re-enquiry to the same or any other Inquiry Officer or in case the Disciplinary Authority disagreed with the finding of the Inquiry Officer on any charge he would record his own finding thereon or in case the charges were not proved, the petitioner should have been exonerated by the Disciplinary Authority.
6. The argument is that the Disciplinary Authority at the first instance did not resort to any of the action as is provided in Rule 9 of the Rules, 1999 rather the Inquiry Officer on his own accord has submitted the second inquiry report dated 30.03.2022 and the Disciplinary Authority has been persuaded to pass the impugned order of punishment simply based on the second inquiry report dated 30.03.2022 which, as the Inquiry Officer had become 'functus officio' after submission of the inquiry report dated 13.01.2022, could not have been submitted by him and consequently no reliance could have been placed by the Disciplinary Authority on the said inquiry report and as such there cannot be any occasion for passing of the impugned punishment order dated 19.12.2022.
7. In this regard, reliance has been placed on the Division Bench judgment of this Court in the case of Radhey Shyam Mishra vs. State of U.P. and others -MANU/UP/1063/2012 as well as the judgment of the Hon'ble Apex Court in the case of State Bank of India and others vs. S.N. Goyal - (2008) 8 SCC 92.
8. On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit argues that once the Inquiry Officer had submitted the second inquiry report dated 30.03.2022 consequently there was no occasion for considering the earlier inquiry report dated 13.01.2022 and as such the Disciplinary Authority has proceeded to pass the impugned order of punishment after finding that the charges levelled against the petitioner in the second supplementary charge sheet have been proved.
9. Having heard learned counsels for the contesting parties and having perused the records, it emerges that the petitioner while working on the post of Joint Commissioner (Trade Tax) had been issued with a charge sheet dated 12.12.2017 followed by a supplementary charge sheet dated 04.08.2021. With regard to the first charge sheet, the inquiry report dated 26.03.2018 was submitted whereby the petitioner was exonerated of all the charges. Thereafter, the second inquiry report dated 13.01.2022 was submitted with respect to the supplementary charge sheet in which the Inquiry Officer divided the charge no.1 into five parts of which one part was partly proved while the other parts were not proved. The petitioner was exonerated of the second charge as levelled in the supplementary charge sheet dated 26.03.2018. Instead of Disciplinary Authority taking action in terms of powers vested in him under Rule 9 of the Rules, 1999 on the basis of the inquiry report dated 13.01.2022 the Inquiry Officer on his own accord submitted the second inquiry report dated 30.03.2022 in which both the charges were found proved. The Disciplinary Authority thereafter proceeded to pass the order impugned dated 19.12.2022 whereby three punishments have been imposed upon the petitioner. The earlier inquiry report dated 13.01.2022 has been disregarded by the Disciplinary Authority by indicating that the Inquiry Officer on his own accord has submitted a revised inquiry report dated 30.03.2022.
10. The question to be considered is that when the Inquiry Officer had already submitted inquiry report dated 13.01.2022 could he validly submit another inquiry report dated 30.03.2022.
11. In this regard, the Division Bench of this Court in the case of Radhey Shyam Mishra (supra) has held that after submission of an inquiry report, the Enquiry Officer becomes functus officio. For the sake of convenience, the relevant observations are reproduced below:-
"..After submission of enquiry report, the Enquiry Officer becomes functus officio nor he was having any authority to get any evidence adduced either on behalf of the petitioner or on behalf of the department.... Any action taken by the Enquiry Officer after submission of Enquiry Report would not cover up the irregularities committed nor would protect the Enquiry Report....For the aforesaid reasons, we find that the enquiry conducted by the Enquiry Officer in the instant case is not sustainable and consequently the order of punishment also cannot be upheld."
12. Likewise, the Apex Court in the case of S.N. Goyal (supra) has considered the definition of 'functus officio' and the effect of 'functus officio' by observing as under:-
"25. The learned counsel for respondent contended that the Appointing Authority became functus officio once he passed the order dated 18.1.1995 agreeing with the penalty proposed by the Disciplinary Authority and cannot thereafter revise/review/modify the said order. Reliance was placed on the English decision Re : VGM Holdings Ltd, reported in 1941 (3) All. ER page 417 wherein it was held that once a Judge has made an order which has been passed and entered, he becomes functus officio and cannot thereafter vary the terms of his order and only a higher court, tribunal can vary it. What is significant is that decision does not say that the Judge becomes functus officio when he passes the order, but only when the order passed is 'entered'. The term 'entering judgment' in English Law refers to the procedure in civil courts in which a judgment is formally recorded by court after it has been given.
26. It is true that once an Authority exercising quasi judicial power, takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage, an Authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyar's Advance Law Lexicon (3rd Edition, Vol.2 Pages 1946-47) gives the following illustrative definition of the term 'functus officio' :
"Thus a Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision."
27. Black's Law Dictionary (Sixth Edition Page 673) gives its meaning as follows :
"Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority".
13. From perusal of the Division Bench judgment in the case of Radhey Shyam Mishra (supra) and the Apex Court judgment in the case of S.N. Goyal (supra), it clearly emerges that once an authority is entrusted the power to do a particular thing and that thing is done then the authority becomes functus officio.
14. In the instant case also, once the inquiry had been vested with the Inquiry Officer and an inquiry report had in fact been submitted on 13.01.2022 consequently the Inquiry Officer, after submission of the inquiry report, became 'functus officio' as such there was no occasion for submission of the second inquiry report dated 30.03.2022 on the basis of which the impugned punishment order has been passed against the petitioner.
15. At this stage it would also be relevant to mention that Rule 9 of the Rules 1999 indicates the complete procedure after submission of the inquiry report which provides that the Disciplinary Authority may for reasons to be recorded in writing either remit the case for re-inquiry to the same or other Inquiry Officer; the Disciplinary Authority if he disagrees with the findings of the Inquiry Officer on any charge record its own findings thereon for reasons to be recorded and in case the charges are not proved, the charged government servant shall be exonerated.
16. Incidentally, the Disciplinary Authority has failed to follow the provisions of Rule 9 of the Rules, 1999 after submission of the inquiry report dated 13.01.2022 whereby he has permitted the submission of the second inquiry report dated 30.03.2022 which was clearly uncalled for and is also against the Rules, 1999 as well as the principles of law as laid down by the Division Bench judgment of this Court in the case of Radhey Shyam Mishra (supra) and the Apex Court judgment in the case of S.N. Goyal (supra).
17. Keeping in view the aforesaid discussion, the writ petition is allowed. The order impugned dated 19.12.2022, a copy of which is Annexure-1 to the petition, is quashed. The matter is remitted to the Disciplinary Authority to pass a fresh order after considering the inquiry report dated 13.01.2022.
18. Let a decision be taken in this regard within a period of six weeks from the date of receipt of a certified copy of this order.
19. Consequences to follow.
Order Date :- 8.5.2024 A. Katiyar