Allahabad High Court
Dharmendra Singh Chaudhary vs State Of U.P. Thru Prin.Secy. Housing & ... on 6 January, 2020
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20 Case :- SERVICE SINGLE No. - 30702 of 2018 Petitioner :- Dharmendra Singh Chaudhary Respondent :- State Of U.P. Thru Prin.Secy. Housing & Urban Planning & Anr Counsel for Petitioner :- Hemendra Pratap Counsel for Respondent :- C.S.C.,Naveen Chandra Upadhyay Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel as well as Sri N.C. Upadhyay, learned counsel appearing for respondent No.2.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 13.07.2018 and 4.10.18 consequential order passed by the O.P. No.2 on the said basis order of recovery contained in Annexure No.1 & 2 to the writ petition.
(b) Issue a writ, order or direction in the nature of certiorari quashing the impugned order passed by the O.P. No.2 of date 28.08.2014 contained in Annex.3 to this writ petition.
(c) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties, to continue to pay the petitioner, the pension each month as being paid to him on the basis of grant of 1st A.C.P. grade pay Rs.7600.00, on his retirement in superannuation from 1st Jan. 2009 as if the Impugned order of date 13.07.2018, being never passed and given effect to.
(d) Any other writ, order or directions as considered just and equitable in favour of the petitioner may also kindly be issued and the petitioner be allowed the cost of the writ petition."
3. The case set forth by the petitioner in the writ petition is that while the petitioner was working under the respondent No.2 as Executive Engineer, he had been issued with a charge-sheet dated 23.4.2004. The inquiry dragged on and the petitioner retired on attaining the age of superannuation on 31.12.2008. Subsequent to his retirement, the petitioner has been served with a punishment order dated 28.8.2014, a copy of which is Annexure-3 to the writ petition, by which he has been imposed with a penalty of recovery of Rs.16,714.33. Through the subsequent order dated 13.7.2018, a copy of which is Annexure-1 to the writ petition, the benefit of assured career promotion (hereinafter referred to as the A.C.P.) which was granted to the petitioner through order dated 15.2.2015 with effect from 1.12.2008, has also been withdrawn. Through another order dated 4.10.2018, a copy of which is Annexure-2 to the writ petition, the petitioner has been called upon to refund/pay an amount of Rs.2,21,602/- on account of the excess pension and gratuity paid to him due to grant of A.C.P.
4. Learned counsel for the petitioner contends that there was no occasion for the respondents to have dragged on the inquiry for a period of almost 10 years and the same would be patently vitiated taking into consideration the law laid down by the Apex Court in the case of P.V. Mahadevan vs. M.D., T.N. Housing Board reported in 2005 SCC (L&S) 861. It is also contended that the petitioner was entitled for grant of 1st A.C.P. at Rs.7,600/- which has been granted to him through the order dated 15.10.2015 with effect from 1.12.2008 and consequently there was no occasion for the respondents to withdraw the same. It is also contended that when the pension and other retiral dues of the petitioner were fixed on the basis of the said A.C.P. that had been granted to him and there was no fraud or representation on the part of the petitioner, consequently there was no occasion for the respondents to have issued the impugned order dated 4.10.2018 requiring the petitioner to refund the said amount.
5. On merits, learned counsel for the petitioner contends that after the respondents had continued with the inquiry subsequent to the retirement of the petitioner also, the inquiry report was served upon the petitioner through letter dated 27.9.2006, a copy of which is part of Annexure-10 to the petition. The petitioner had submitted a detailed reply dated 22.3.2007 in pursuance to the show cause notice which is part of Annexure-10 to the writ petition (Page-56). The disciplinary authority while proceeding to pass the impugned order dated 28.7.2014, though has referred to the said reply of the petitioner being submitted in paragraph 2 of the punishment order yet has not considered the same in its entirety, rather after only referring to the same, has imposed the penalty of recovery of Rs.16,714.33 against the petitioner. Based on the said punishment order, the subsequent order dated 13.7.2018 has also been passed indicating that as the petitioner has been given the benefit of the A.C.P. through the order dated 15.2.2015 with effect from 1.12.2008 and on the said date the inquiry was pending, consequently there cannot be any occasion for giving the benefit of A.C.P. to the petitioner and the said benefit has also been withdrawn. Subsequently, the order dated 4.10.2018 has been passed indicating that as the petitioner has been granted the higher pension and other retiral benefits on the basis of the said A.C.P. which has been withdrawn, as such he has been required to refund the same. It is contended that once the punishment order itself is patently vitiated in the eyes of law having not considered the reply of the petitioner dated 22.3.2007, consequently all the consequential orders flowing out of the said punishment order become patently vitiated in the eyes of law and merit to the quashed and set-aside.
6. On the other hand, learned Standing Counsel, on the basis of averments contained in the counter affidavit, has argued that the order dated 28.8.2014 is perfectly justified in the eyes of law and once in the inquiry the petitioner has been held guilty of having caused the loss to the exchequer, consequently the said recovery of Rs.16,714.33 has been directed to be made from the petitioner. As regards the order dated 13.7.2018, it is contended that the petitioner would not be entitled for grant of A.C.P. with effect from 1.12.2008 as he was admittedly under inquiry and once the petitioner has been visited with the penalty dated 28.8.2014, consequently the A.C.P. which had been granted to the petitioner through order dated 15.10.2015 with effect from 1.12.2008 has been withdrawn and subsequent thereto as the retiral dues of the petitioner have been calculated after considering the A.C.P. that had been granted to the petitioner and the petitioner not having found to be entitled for grant of A.C.P., as such the order dated 4.10.2018 has been passed requiring the petitioner to refund the excess amount. It is contended that the petitioner has been punished after a full fledged inquiry and there is no illegality or infirmity in the same, as such the present petition deserves to be dismissed.
7. Sri N.C. Upadhyay, learned counsel appearing for respondent No.2 has also adopted the arguments of the learned Standing Counsel.
8. Heard learned counsel for the parties and perused the record.
9. From the arguments as canvassed by the contesting parties and perusal of record, it comes out that the petitioner retired after attaining the age of superannuation on 31.12.2008. The petitioner had been issued with a charge-sheet dated 23.4.2004 during his service period. The inquiry continued which resulted in an inquiry report in which Charge No.1 has been found to be proved. The petitioner through letter dated 27.9.2006 was asked to submit his reply to the inquiry report. A detailed reply to the said inquiry report was submitted by the petitioner on 22.3.2007. A perusal of the said reply would indicate that various grounds have been taken by the petitioner as to why the inquiry held against him is vitiated in the eyes of law including the ground that no date, time and place of inquiry has been fixed and the inquiry being patently vitiated on account of delay in conducting the same taking into consideration the law laid down by the Apex Court in the case of P.V. Mahadevan (supra). However, the disciplinary authority in the impugned order dated 28.8.2014 has only cursorily referred to the petitioner having submitted his reply to the show cause notice but has not gone into the grounds that had been taken by the petitioner as to why the inquiry held against the petitioner is vitiated in the eyes of law. It is a settled proposition of law that when a reply is submitted by the delinquent employee against the inquiry report, the disciplinary is required to discuss the same and consider each and every aspect of the said reply. In the present case, once the petitioner, as already indicated above, had submitted his reply indicating that there is gross delay in conclusion of the inquiry against him and there being no date, time and place of inquiry fixed in the inquiry conducted against the petitioner, consequently it was in the fitness of things that the disciplinary authority should have gone into the said aspects of the matter and the other grounds taken by the petitioner and there was no occasion for the disciplinary authority to have not referred to and to have not considered the grounds taken by the petitioner in his detailed reply submitted against the inquiry report. However, this aspect of the matter is lacking in the order of the disciplinary authority dated 28.8.2014 whereby rendering it patently vitiated on this ground alone.
10. Accordingly, taking into consideration the aforesaid discussion, the writ petition is partly allowed. A writ of certiorari is issued quashing the impugned order dated 28.8.2014 (Annexure-3 to the writ petition). The disciplinary authority is directed to pass a reasoned and speaking order after considering the reply of the petitioner dated 22.3.2007. Let such order be passed by the disciplinary authority within a period of three months from the date of receipt of a certified copy of this order. The orders dated 13.7.2018 and 4.10.2018 would be subject to the order to be passed by the disciplinary authority, as referred to above.
Order Date :- 6.1.2020 Rakesh (Abdul Moin, J.)