Allahabad High Court
State Of U.P.Thru.Prin.Secy.Deptt.Of ... vs Ram Prakash Singh & Anr. on 19 October, 2019
Bench: Pankaj Kumar Jaiswal, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- SERVICE BENCH No. - 28859 of 2019 Petitioner :- State Of U.P.Thru.Prin.Secy.Deptt.Of Panchayati Raj Lucknow Respondent :- Ram Prakash Singh & Anr. Counsel for Petitioner :- C.S.C. Counsel for Respondent :- C.S.C. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Irshad Ali,J.
1) Heard Sri Ashutosh Singh, learned Additional Chief Standing Counsel for the petitioner-State.
2) By means of the present writ petition, the petitioner is challenging the order dated 12.11.2018 passed by respondent No.2-U.P. State Public Service Tribunal, Lucknow in Claim Petition No.471 of 2016; Ram Prakash Singh Vs. State of U.P., whereby the order of punishment dated 24.03.2015 has been set-aside with a direction to pay the entire consequential service benefits.
3) Brief fact of the case is that the respondent No.2 was selected and appointed on the post of Junior Engineer in Panchayti Raj Department in the year 1973. He was granted promotion on the post of Assistant Engineer in the year 2002 and on attaining the age of superannuation, he retired from service on 31.07.2010. While posting at Jila Panchayat Anushravan Kosthak, Lucknow he was placed under suspension vide order dated 12.04.2006. The respondent No.1 filed a writ petition before this Court which was numbered as Writ Petition No.27271 of 2006, wherein the order of suspension was stayed. The respondent No.1 was served with a charge sheet on 24.08.2006. He moved an application on 02.03.2007 requesting therein that some time be granted to submit reply and thereafter, vide letter dated 02.01.2008, he submitted reply of the charges denying the allegations levelled against him in the charge sheet and requested for providing opportunity of personal hearing, which was not provided to him. Vide letter dated 17.02.2009, a show cause notice was issued to respondent No.1 to submit his explanation and in pursuance thereof, he submitted reply to the same on 11.06.2009, wherein he stated that he has no information in regard to conclusion of the inquiry and thereafter, he retired from service on 31.07.2010. The respondent No.1 was served with an order dated 26.07.2010 on 02.08.2010, whereby he was dismissed from service. Against the order of punishment dated 26.07.2010, he filed claim petition No.1563 of 2010, which was allowed vide order dated 23.01.2014 setting aside the order of punishment i.e. dismissal from service dated 26.07.2010 and liberty was provided to the appellant to conclude the disciplinary proceeding within three months. Copy of the order passed by the Tribunal was served upon respondent No.1 and thereafter, the Commissioner, Gorakhpur Division, Gorakhpur was appointed as Inquiry Officer under the order of the State Government.
4) After coming to know in regard to appointment of inquiry office, the respondent No.1 on 23.05.2014 requested that he has not received the letter dated 10.04.2014 and he has retired from service on 31.07.2010, therefore, under Regulation 351-A of Civil Service Regulations, after expiry of four years, no inquiry proceeding can be initiated against him. Vide letter dated 05.06.2014, the respondent No.1 was directed to submit his reply to the charge sheet, then the respondent No.1 sent a letter on 13.06.2014 to the inquiry officer stating therein that the time stipulated by the learned Tribunal has expired for conclusion of inquiry, thus, the inquiry proceeding cannot be permitted to continue against him.
5) An order was passed on 16.10.2014 directing to initiate disciplinary proceeding against respondent No.1 in exercise of power under Regulation 351-A of the Civil Service Regulations and thereafter, no information whatsoever was provided to the respondent No.1 and directly an order of punishment dated 24.03.2015 was passed, whereby 5% amount was deducted from the pension of the respondent No.1 for a period of five years with the direction to recover Rs.10.520 Lacs from the retiral dues payable to the respondent No.1.
6) As per impugned order, the inquiry officer submitted its report on 15.09.2014, wherein the charges levelled against respondent No.4 were found to be proved.
7) The order dated 24.03.2015 challenged in Claim Petition No.471 of 2016 before the U.P. State Public Service Tribunal was allowed vide order dated 12.11.2018 setting aside the order of punishment with the entire consequential service benefits within a period of three months from the date of receipt of certified copy of the order.
8) The submission advanced before the U.P. State Public Service Tribunal on behalf of respondent No.1 was that the inquiry report was not supplied to him nor he was provided opportunity to file representation before the disciplinary authority against the inquiry report. Thus, the impugned order passed relying upon the inquiry report is vitiated in law.
9) He next submitted that the inquiry officer has not completed the inquiry proceeding as per provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999.
10) His further submission is that at earlier point of time, Claim Petition No.1563 of 2010 was filed against the order of punishment, which was allowed with the direction to initiate fresh inquiry and to conclude the same within a period of three months vide order dated 23.01.2014.
11) The submission of learned counsel for respondent No.1 before the tribunal was that the disciplinary authority exceeded its jurisdiction in not completing the inquiry within time stipulated by the learned Tribunal and no application for extension of time was filed before learned Tribunal.
12) In support of his submissions, he placed reliance upon a judgment in the case of P.N. Srivastava Vs. State of U.P.; 1999 (7) LCD 24 and in the case of Abhishek Prabhakar Awasthi Vs. New India Insurance Co. Ltd.; Writ Petition No.7179 (SS) of 2009 decided on 04.12.2013.
13) He next submitted that in the present proceeding, one officer Sri Baliram was also found to be involved but he was not awarded the punishment. Thus, the submission is that the exercise of power by the disciplinary authority is discriminatory and violative of Article 14 of the Constitution of India. In support of his submission, he placed reliance upon a judgment of Hon'ble Supreme Court in the case of Life Insurance Corporation of India and others Vs. Triveni Sharan Mishra; (2014) 10 SCC 346.
14) Per contra, learned counsel for the petitioner-respondent filed written submission, wherein the ground was taken that on the basis of report submitted by T.A.C., the charge sheet was issued on 24.08.2006 and the Commissioner, Gorakhpur Division, Gorakhpur was appointed as inquiry officer to conclude the inquiry proceeding and on consideration of the inquiry report, the order of punishment was passed on 26.07.2010 and in accordance with the provisions contained under the T.A.C Manual Clause 259(b), direction was issued for recovery of Rs.10.520 Lacs from the retiral dues of respondent No.1 and 5% deduction from his pension for a period of five years and the U.P. State Public Service Commission has also accorded approval vide order dated 05.01.2015.
15) In view of the above, submission of petitioner-respondent before the learned Tribunal was that the order dated 24.03.2015 does not suffer from any infirmity or illegality and is a just and valid order.
16) Taking into consideration the submission advanced by learned counsel for the parties, learned tribunal has recorded the following finding:
"6- ;kph dh vksj ls iz'uxr n.Mkns'k dks vikLr fd;s tkus gsrq eq[; rdZ ;g izLrqr fd;k x;k fd ;kph dks vk{ksfir n.Mkns'k ikfjr djus ds iwoZ m0 iz0 ljdkjh deZpkjh ¼n.M ,oa vihy½ fu;ekoyh 1999 ds fu;e 9¼4½ ds vUrxZr vH;kosnu dk volj iznku ugh fd;k x;k vkSj u gh izdj.k esa fu;ekoyh] 1999 ds fu;e&7¼vii½ ds vuqlkj tkap dk;Zokgh lEikfnr dh x;h gSA lEiw.kZ dk;Zokgh uSlfxZd U;k; ds fl}kar ds foijhr dkfjr dh x;h gS bl dkj.k n.Mkns'k vikLr ;ksX; gSA foi{kh dh vksj ls ;kph ds dFku dk [k.Mu djrs gq, dgk x;k fd leLr dk;Zokgh fu;ekuqlkj lEikfnr dh x;h gS ftlesa dksbZ izfdz;kRed =qfV ugha gqbZ gS vkSj u gh fdlh fu;e o fof/k dk mYYka?ku gqvk gS] bl dkj.k ;kfpdk [kkfjt ;ksX; gSA 7- ge yksxksa us mHk;i{k dh vksj ls izLrqr fd;s x;s rdZ ds vkyksd esa vfHkys[k dk voyksdu fd;kA ;kph us ;kfpdk ds izLrj&4-35 esa bl RkF; dk mYYks[k fd;k gS fd& **That through the order dated 24.03.2015, the applicant found out that the enquiry officer had submitted the enquiry report on 15.09.2014 and had held the applicant guilty for all the charges but copy of the enquiry report was never served upon the applicant and he was never called upon to submit his objection against the enquiry report as such the enquiry report dated 15.09.2014 was and extraneous material and on that basis no punishment could have been imposed upon the applicant.** foi{kh us mDr vfHkdFku ds lECkU/k eas fyf[kr dFku ds izLrj&12 esa ;g mYYks[k fd;k gS fd& ** ;g fd ;kfpdk ds izLrj 4-34 o 4-35 ds dFku vfHkys[kh; gksus ds dkj.k fookfnr ugha gSA** bl izdkj fyf[kr dFku esa mfYyf[kr rF; ls ;g Li"V gS fd foi{kh }kjk ;kph dks tkap vk[;k dh izfrfyfi iznRRk djrs gq, vH;kosnu dk volj iznku ugha fd;k x;k tks m0iz0 ljdkjh deZpkjh ¼n.M ,oa vihy½ fu;ekoyh 1999 ds fu;e&9¼4½ dk Li"V mYYka?ku gS tSlk fd fu;eokyh] 1999 ds fu;e&9¼4½ esa ;g izkfo/kku gS fd& **Action on Inquiry Report:-
9.(4) If the Disciplinary Authority, having regard to its findings on all or any charges is of the opinion that any penalty specified in rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government Servant, if any, and subject to the provisions of rule 16 of these rules, pass a reasoned order imposing on or more penalties mentioned in rule 3 of these rules and communicate the same to the charged Government servant.** bl izdkj mDr izkfo/kku ds vuqlkj ;g vkKkid gS fd fdlh ljdkjh lsod ij n.Mkns'k vf/kjksfir djus ds iwoZ vuq'kklfud vf/kdkjh mls tkWp vk[;k dh izfr miyC/k djkrs gq, vH;kosnu dk volj iznku djsxkA n.Mkns'k fnukad 24-03-2015 ¼layXud&,&12½ ds izLrj&4 esa vuq'kklfud vf/kdkjh us bl RkF; dk mYys[k fd;k gS fd& ** vipkjh Jh jke izdkj flag ij yxk;s x;s vkjksi] vipkjh dk mRRkj ,oa ek0 vf/kdj.k ds vkns'k fnukad 23-01-2014 ds vuqikyu esa tkWp vf/kdkjh dh tkWp vk[;k fnukad 15-9-2014 dk lkjka'k fuEuor gSA** bl izdkj mDr rF; ds voyksdu ls ;g LFkkfir gksrk gS fd izdj.k esa m0iz0 ljdkjh deZpkjh ¼n.M ,oa vihy½ fu;ekoyh 1999 ds fu;e&7¼vii½ ds vuqlkj tkWp dk;Zokgh lEikfnr ugha dh x;h gSA 8- iz'uxr izdj.k esa ;kph dks iwoZ esa fnukad 26-07-2010 dks o`gn n.M ls nf.Mr djrs gq, lsok ls inP;qr fd;k x;k Fkk ftlds fo:} ;kph us funsZ'k ;kfpdk la[;k&1563@2010 ;ksftr dh tks fnukad 23-01-2014 dks Lohdkj gqbZ rFkk vf/kdj.k }kjk ;g vkns'k ikfjr fd;k x;k fd& **The reference petition is allowed. The impugned order of dismissal dated 26.07.2010 contained in Annexure A-9 is hereby quashed. The opposite parties are directed to initiate inquiry proceeding afte the stage of submission of reply to the charge sheet within three weeks from teh date of receipt of certified copy of the judgment and concluded the smae within further next three months. The opposite parties will take decision with regard to consequential benefits according to outcome of re-inquiry. There is no order as to costs.** bl izdkj mDr funsZ'k ;kfpdk esa ikfjr fu.kZ; ds vuqlkj foi{kh dks izdj.k esa 3 lIrkg ds vUnj tkWo vk[;k ¼initiate) djus dk volj iznku djrs gq, mlds ckn 3 ekg ds vUnj tkWp dk;Zokgh lEikfnr djus gsrq funsZf'kr fd;k FkkA bl izdkj izdj.k esa iqu% tkWp dk;Zokgh ebZ] 2014 rd iw.kZ gks tkuh pkfg, Fkh tcfd n.Mkns'k fnukad 24-03-2015 dks ikfjr fd;k x;k ftlesa mfYYkf[kr rF; ds vuqlkj tkWp vf/kdkjh }kjk fnukad 15-09-2014 dks tkWp vk[;k izsf"kr dh x;h ftldh ;kph dks izfr Hkh miyC/k ugha djk;h x;h] ftlls lkfcr gS fd foi{kh }kjk tkap dk;Zokgh U;k;ky; }kjk fu/kkZfjr le; lhek ds mijkUr lEikfnr dh x;h gS] bruk gh ugha foi{kh us tkWp dk;Zokgh lEikfnr djus gsrq fu;r dh x;h vof/k dks c<+kus gsrq U;k;ky; esa dksbZ izkFkZuk i= izLrqr Hkh ugha fd;k gSA ekuuh; mPp U;k;ky; dh iw.kZ ihB us vfHk"ks[k izHkkdj voLFkh cuke U;w bf.M;k ba';ksjasl dEiuh fyfeVsM vkfn fuf.kZr fnukad 04-12-2013 esa ;g O;oLFkk nh gS fd& **If an enquiry is not concluded within the time which has been fixed by the court, it is open to the employer to seek an extension of time by making an appropriate application to the court setting out the reasons for the delay in the conclusion of the enquiry. In such an event, it is for the court to consider whether time should be extended, based on the facts and circumstances of the case. However, where there is a stipulation of time by the Court, it will not be open to the employer to disregard that stipulation and anextension of time must be sought.'' blh izdkj ek0 mPp U;k;ky; bykgkckn us ih0,u0JhokLro cuke LVsV vkWQ ;w0ih0 vkfn 1999 ¼17½ ,y0lh0Mh0 24 ds ekeys esa ;g O;oLFkk nh gS fd ;fn vipkjh lsod dks n.Mkns'k] U;k;ky; }kjk tkWp dk;Zokgh gsrq nh x;h vof/k ds mijkUr lEiUu tkap vk[;k ds vk/kkj ij ikfjr fd;k tkrk gS fd rks ,slk n.Mkns'k vikLr ;ksX; gSA ge yksxksa dh jk; esa ekuuh; mPp U;k;ky; }kjk nh x;h O;oLFkk izLrqr izdj.k esa iw.kZ :i ls ykxw gksrh gS D;ksafd izdj.k esa foi{kh dks tkap dk;Zokgh lEikfnr djus gsrq tks vof/k fu/kkZfjr dh x;h Fkh ml vof/k esa tkap dk;Zokgh lEiUu ugh dh x;h vkSj u gh tkap dk;Zokgh lEiUu djus ds fy, U;k;ky; esa le; lhek c<+k;s tkus gsrq dksbZ izkFkZuk&Ik= izLrqr fd;k x;k] ,slk ifjfLFkfr esa n.Mkns'k vikLr ;ksX; gSA 9- ;kph dk ;g Hkh dFku gS fd blh izdj.k esa ,d vU; vf/kdkjh Jh cfyjke dks dksbZ n.M ugha fn;k x;k tcfd ;kph dks o`gn~ n.M ls nf.Mr fd;k x;k tks HksnHkko iw.kZ gSA ;kph us bl lEcU/k esa ;kfpdk ds izLrj& 4-46 esa ;g vfHkdFku fd;k gS fd& **That the action of the respondent is discriminatory also as one officer Sri Bali Ram, was also a delinquent in the same matter but he was exonerated and no punishment was imposed upon him whereas the applicant was punished with major punishment. A true copy of the order dated 27.11.2009 is being annexed herewith as Annexure No.A-15 to this reference appliation.** mDr dFku ds lEcU/k esa foi{kh us vius fyf[kr dFku ds iSjk&19 esa ;g dFku fd;k gS fd& ** ;g fd ;kfpdk ds izLrj 4-46 ds dFku vfHkys[kh; gksus ds dkj.k fookfnr ugha gSA** ;kph }kjk Jh cfyjke] rRdkyhu vij eq[; vf/kdkjh] ftyk iapk;r] dq'khuxj ds lEcU/k esa izeq[k lfpo] mRRkj izns'k 'kklu] iapk;rh jkt foHkkx }kjk fuxZr dk;kZy; Kki fnukad 27-11-2009 ¼layXud&,&15½ dh Nk;kizfr nkf[ky dh gS ftlesa mfYYkf[kr rF; ds vuqlkj Jh cfyjke ds fo:} izpfyr vuq'kklfud dk;Zokgh fcuk fdlh n.M ds lekIr dh x;h gS] ,slh ifjfLFkfr esa foi{kh }kjk ;kph dks o`gn~ n.M ls nf.Mr fd;k tkuk HksnHkkoiw.kZ gSA bl dkj.k ekuuh; loksZPp U;k;ky; }kjk L.I.C Vs. Triveni Sharan Mishra 2008 (2) SCC 74 and 2014 (10) SCC 346, ds ekeys esa nh x;h O;OkLFkk ds vk/kkj ij iz'uxr n.Mkns'k vikLr ;ksX; gSA 10- bl izdkj izLrqr ekeys ds leLr rF;ksa ,oa ifjfLFkfr;ksa dks n`f"Vxr j[krs gq,] ftldk foospu Åij fd;k x;k gS fd vk/kkj ij vk{ksfir n.Mkns'k uSlfxZd U;k; ds fl}kar dk mYYka?ku djrs gq, ;kph dks fcuk vH;kosnu dk volj iznku fd;s ikfjr fd;k x;k gS tks voS/k gksus ds vk/kkj ij vikLr rFkk ;kfpdk Lohdkj ;ksX; ik;h tkrh gSA vkns'k ;kph dh ;kfpdk Lohdkj dh tkrh gS rFkk iz'uxr n.Mkns'k fnukad 24-03-2015 ¼layXud&,&12½ vikLr fd;k tkrk gSA ;kph leLr ikfj.kkfed lsok ykHk tks iz'uxr n.Mkns'k ds vk/kkj ij jksds x;s gSa dks] izkIr djus dk vf/kdkjh gksxkA foi{kh bl vkns'k ,oa fu.kZ; dk vuqikyu fu.kZ; dh izekf.kr izfr izkIr gksus ds] ;Fkk lEHko] 3 ekg ds vUnj djuk lqfuf'pr djsaA"
17) We have considered the submissions advanced by learned counsel for the petitioner and perused the material on record.
18) On perusal of the order passed by the U.P. State Public Service Tribunal, it is reflected that the averment made in paragraph 4.35 in the claim petition that the inquiry report was submitted by the inquiry officer on 15.09.2014 holding the applicant - respondent No.1 to be guilty for all the charges but copy of the inquiry report was never served upon the applicant-respondent No.1 and he was never called upon to submit objection against the inquiry report. The reply to the statement of fact made in the aforesaid claim petition was replied in the written submission in paragraph No.12 stating therein that the statement of fact made in paragraph No.434 and 435 of the claim petition pertains to the matter of record, hence, it is not disputed and on that basis, the learned tribunal has recorded that the said act of the applicant-respondent is contrary to the provisions contained under Rule 9(4) of U.P. Government Servant (Discipline and Appeal) Rules, 1999.
19) We have examined the provisions contained under Rule 9(4) of Rules of 1999, wherein it has been provided as under:
Action on Inquiry Report:-
9.(4) If the Disciplinary Authority, having regard to its findings on all or any charges is of the opinion that any penalty specified in rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government Servant, if any, and subject to the provisions of rule 16 of these rules, pass a reasoned order imposing on or more penalties mentioned in rule 3 of these rules and communicate the same to the charged Government servant.**
20) In view of the provisions contained under Rule 9(4) of the Rules of 1999 and the averment made in the claim petition in paragraph No.4.35 and the reply in the written submission in paragraph No.12, the learned tribunal has committed no error in holding the order to be illegal and setting aside the same.
21) In our opinion, the learned tribunal has not committed any error in holding that the order is illegal on the score of non supply of inquiry report to the applicant- respondent No.1.
22) While considering the second submission of the applicant-respondent No.1, the learned tribunal has taken notice of the order passed in Claim Petition No.1563 of 2010 dated 23.01.2014 and thereafter, considering the same came to the conclusion that without moving an application for extension of time, the conclusion of proceeding beyond the time limit prescribed by the tribunal is not permissible in law and the case relied upon by learned counsel for the applicant-respondent No.1 was duly considered and held that the order under challenge is not sustainable in law.
23) We have considered the finding recorded on the point referred herein above and carefully examined the order passed by the tribunal on 23.01.2014 and the judgment relied upon in the case of Abhishek Prabhakar Awasthi (Supra) and came to the conclusion that the finding returned does not suffer from any infirmity or illegality.
24) In regard to the finding returned that non award of punishment to one employee Sri Baliram is a discrimination amongst the applicant-respondent No.1 and Sri Baliram, which is not disputed by the petitioner-respondent. In support of his submissions, he placed reliance upon a judgment in the case of Life Insurance Corporation of India and others Vs. Triveni Sharan Mishra (Supra), which was duly considered and by recording cogent reasons it was held that the order is not liable to be sustained due to non consideration of aforesaid aspect of the matter.
25) In view of the above, we find that there is no error in the order passed by the learned tribunal. While considering the claim setup by the parties, the learned tribunal has considered each and every aspect of the matter and by recording cogent reasons has passed the order under challenge in the present writ petition. Therefore, we decline to interfere in the impugned order.
26) The writ petition lacks merit and is hereby dismissed.
[Irshad Ali, J.] [Pankaj Kumar Jaiswal, J.] Order Date :- 19.10.2019 Adarsh K Singh