Allahabad High Court
Abhay Kumar Yadav vs State Of U.P.Thru Prin.Secy.Home ... on 2 July, 2021
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 20 Case :- SERVICE SINGLE No. - 17323 of 2017 Petitioner :- Abhay Kumar Yadav Respondent :- State Of U.P.Thru Prin.Secy.Home Deptt.Civil Sectt. Lko.&Ors Counsel for Petitioner :- Amit Bose,Mohd. Shujauddin Waris Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J.
Heard Mr. Amit Bose learned Senior counsel assisted by Mr. Sankalp Dawari for the petitioner and learned State Counsel appearing on behalf of the opposite parties.
The petitioner has challenged the charge sheet dated 6th June, 2017 along with departmental proceeding instituted in pursuance thereof. Further prayer for restraining the opposite parties from conducting departmental proceedings against the petitioner in pursusance of the said charge sheet has also been sought along with a direction for payment of pay and allowances benefit from June 2017 along with arrears.
Learned counsel for petitioner submits that petitioner was initially recruited in 1998 as a constable in Provincial Arms Constabulary and while he was working at the 10th Battalion PAC Barabanki, he was subjected to disciplinary proceeding on the allegation that he had remained absent from duty for 196 days with effect from 4th August 2009 to 15th February 2010. A charge sheet was issued to him whereafter the departmental proceedings ensued resulting in his dismissal from service vide order dated 31st July 2010, which was affirmed by the appellate authority vide order dated 3rd February 2011. The said orders were challenged by the petitioner before this court in writ petition No. 6366 (S/S) of 2013, which was allowed by means of judgment and order dated 14th December 2016 with the following directions:-
" In view of the above, I am of the view that the disciplinary authority may consider this issue afresh in the light of the observations made herein above and afresh order be passed expeditiously after furnishing opportunity to the petitioner within three months from the date of the communication of this order. Needless to say that during this period, the petitioner shall be treated under suspension."
Learned counsel for petitioner submits that as is evident from the judgment and order dated 14th December 2016, liberty has been granted to the disciplinary authority to consider the issue afresh and pass necessary orders after furnishing opportunity of hearing to the petitioner within a period of three months from the date of communication of the order. It is submitted that the aforesaid judgment and order was thereafter sent through speed post on 20th January 2017 along with covering letter of the same date. It is submitted that as such, the time period prescribed by this court vide judgement and order dated 14th December 2016 expired in April 2017 but neither any fresh charge sheet was issued nor any proceedings were held by the disciplinary authority within the time frame stipulated by this court and on the contrary, the impugned charge sheet has been issued on 6th June 2017. Learned counsel for petitioner submits that no application for extension of time was filed by the opposite parties in the aforesaid writ petition and therefore the charge sheet and the disciplinary proceeding against the petitioner are violative of the directions issued by this court in the judgment and order dated 14th December 2016. Learned counsel has placed reliance on the Full Bench decision of this court in the case of Abhishek Prabhakar Awasthi Versus The New India Assurance Company Limited and others reported in (2014) 6 ALJ page 662.
Learned State Counsel appearing on behalf of the opposite parties has submitted on the basis of the counter affidavit and particularly paragraph 3(E) that after passing of the judgment and order dated 14 December 2016, decision was taken by the disciplinary authority to proceed afresh in departmental proceedings against the petitioner by issuing a charge sheet, which was accordingly issued on 6th June 2017 which was served thereafter upon the petitioner. It is further submitted that the disciplinary proceedings were delayed on account of the petitioner himself not cooperating in the enquiry proceedings since he had sought four weeks time to submit his reply vide letter dated 14th June 2017. It is submitted that due to the non cooperation of the petitioner, the enquiry proceedings could not be constituted.
Considering the material on record and submissions advanced by learned counsel for the parties, it is admitted between the parties that the earlier dismissal orders of the petitioner were challenged before this court in writ petition No.6366 (S/S) of 2013, which was allowed vide judgement and order dated 14th December 2016 in which the disciplinary authority had been directed to reconsider the matter in the light of observations made in the judgment and for passing a fresh order expeditiously after furnishing opportunity of hearing to the petitioner within three months from the date of communication of the order. It was further directed that for the said purpose, petitioner was to be treated under suspension.
In paragraph 9 of writ petition,it has been stated that a certified copy of the judgment and order dated 14th December 2016 was there after served upon the Commandant, 10th Battalion, PAC Barabanki along with a letter dated 20th January 2017. The aforesaid statement has been admitted by the opposite parties in paragraph 11 of the counter affidavit. It is thus clear that a certified copy of the judgment and order dated 14th December 2016 was served upon the competent authority in January 2017 itself. The time period indicated in the judgment and order dated 14th December 2016 has expired latest by April 2017.
In paragraph 28 of the writ petition, it has been specifically stated that the opposite parties have not sought any extension of time from this Court and therefore there was no valid or cogent reason for them not to have instituted and completed the departmental proceedings against the petitioner within the time stipulated by this court. The aforesaid statement has not been denied in paragraph 17 of the counter affidavit in which the only submissions advanced by the opposite parties are are that after passing of the judgment and order dated 14th December 2016, departmental proceedings were restarted by issuing a fresh charge sheet dated 6th June 2017. In the entire body of the counter affidavit, there is not even a whisper as to why the departmental proceedings could not have been concluded within the time frame stipulated by this Court. Absolutely no reasons whatsoever are indicated in the counter affidavit as to why the disciplinary authority could not have filed an application for extension of time in the writ petition itself in case the proceedings could not be concluded within the time frame stipulated by this Court.
The aforesaid facts make it abundantly clear that fresh disciplinary proceedings have been initiated against the petitioner by issuance of a charge sheet dated 6th June 2017 beyond the time limit prescribed by this court vide judgment and order dated 14th December 2016. It is also clear that no application has been filed by the opposite parties before this court seeking extension of time.
Full bench of this court in the case of Prabhakar Awasthi (supra) has clearly dealt with such a situation in paragraph 19 which is as follows:-
"19. These judgments of the Supreme Court consequently recognize that the delay in concluding a departmental enquiry would not ipso facto vitiate the proceedings or render it invalid or non est. The Court has to take into consideration and balance all the relevant factors. The Court must consider in that balance the need for preserving the sanctity of the administration. On the other hand, fairness towards the delinquent employee requires that disciplinary proceedings should be concluded expeditiously. Hence, the nature of the charge, its complexity and the reasons for that delay are all relevant considerations which have to be borne in mind. Where the court has stipulated a period of time within which an enquiry has to be concluded, the direction of the Court, particularly in the form of a mandamus, has to be duly observed. It would not be open to the employer to willfully disregard the fixation of a time limit as a matter of no consequence. However, the fixation of a period within which a disciplinary enquiry has to be concluded, in an order of the Court, does not deprive the court of its jurisdiction to extend time in an appropriate case having due regard to all the facts and circumstances which have been noted above. Whether the time should be extended on a consideration of the relevant circumstances is for the court to determine. In view of the above discussion, we now proceed to answer the questions which have been referred to the Full Bench.
(A) Question No. (a): We hold that 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 an extension of time must be sought;
(B) Question No. (b): The judgment of the Supreme Court in the case of Suresh Chandra (supra) as well as the judgment of the Division Bench of this Court in the case of Satyendra Kumar Sahai (supra) clearly indicate that a mere delay on the part of the employer in concluding a disciplinary enquiry will not ipso facto nullify the entire proceedings in every case. The court which has fixed a stipulation of time has jurisdiction to extend the time and it is open to the court, while exercising that jurisdiction, to consider whether the delay has been satisfactorily explained. The court can suitably extend time for conclusion of the enquiry either in a proceeding instituted by the employee challenging the enquiry on the ground that it was not completed within the stipulated period or even upon an independent application moved by the employer. The court has the inherent jurisdiction to grant an extension of time, the original stipulation of time having been fixed by the court itself. Such an extension of time has to be considered in the interests of justice balancing both the need for expeditious conclusion of the enquiry in the interests of fairness and an honest administration. In an appropriate case, it would be open to the Court to extend time suo motu in order to ensure that a serious charge of misconduct does not go unpunished leading to a serious detriment to the public interest. The court has sufficient powers to grant an extension of time both before and after the period stipulated by the court has come to an end."
Upon applicability of the aforesaid Full Bench decision in the facts and circumstances of the present case, it is apparent that the same is squarely applicable in the present case since fresh charge sheet has been issued by the opposite parties beyond the time limit stipulated by the direction of this Court and no application for extension has been filed by them in the writ petition. Such indolence on the part of opposite parties does not deserve to be condoned.
In view of the aforesaid, it is clear that charge sheet dated 6th June 2017 being against the dictum of this Court is clearly unsustainable.
Consequently, a writ in the nature of Certiorari is issued quashing the charge sheet dated 6th June 2017 issued by the opposite party No.3. Departmental proceedings initiated in pursuance to the charge sheet also stand quashed. A further writ in the nature of Mandamus is issued directing the competent authority to immediately reinstate the petitioner in service with all consequential benefits including payment of arrears of salary and allowances. Orders pertaining to same and payment thereof shall be ensured by the competent authority within a period of four months from the date a copy of this order is served upon him.
In view of aforesaid, the writ petition stands allowed.
Order Date :- 2.7.2021 prabhat