Allahabad High Court
Nagendra Narayan Mishra vs State Of U.P. And 2 Others on 17 December, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:197904 Court No. - 5 Reserved A.F.R. Case :- WRIT - A No. - 18422 of 2023 Petitioner :- Nagendra Narayan Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pankaj Tiwari,Rajan Upadhyay,Sr. Advocate Counsel for Respondent :- C.S.C. Connected with Case :- WRIT - A No. - 2255 of 2024 Petitioner :- Nagendra Narayan Mishra Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Pankaj Tiwari,Rajan Upadhyay Counsel for Respondent :- C.S.C. Hon'ble J.J. Munir,J.
1. This judgment will decide the present writ petition and connected Writ-A No.2255 of 2024. Since affidavits have been exchanged in Writ-A No.18422 of 2023, the said petition will be treated as the leading petition and facts noticed from the pleadings there.
2. The petitioner substantially seeks to challenge an order dated 04.09.2023 passed by the State Government, punishing him with the award of a censure after disciplinary proceedings. He also challenges the result of the Departmental Promotion Committee held on 05.09.2023, by which respondent No.3, an Officer junior to him, has been promoted to the post of a Chief Development Officer/ Joint Development Commissioner/ Joint Commissioner. The petitioner further prays that a mandamus be issued by this Court, ordering the State Government, represented by the Principal Secretary, Rural Development and the Commissioner, Rural Development, to consider the petitioner's name for promotion before the third respondent and others junior to him.
3. In the connected writ petition, the petitioner challenges an order passed by the State Government dated 04.10.2023, rejecting a representation made by the petitioner against the order dated 04.09.2023, impugned in the leading petition. This petition has, therefore, been heard on the basis of affidavits exchanged in the leading petition.
4. The petitioner is an officer in the Provincial Civil Service of the State. He belongs to the 1994 Batch. He joined service as a Block Development Officer on 11.12.1997. The petitioner says that he is the topper of the 1994 Batch. At the time this petition was presented, the petitioner was working as the Deputy Commissioner, National Livelihood Mission, Pratapgarh. The petitioner stands at Sr. No.1 of the 1994 Batch in the seniority list of the Provincial Development Service Cadre. A seniority list was issued in the year 2012, where the petitioner's name figures at Sr. No.289. He says that he has an exceptionally good service record and never awarded any adverse entry, except the one in the month of February, 2002, which the petitioner has represented against to the State Government. The representation was said to be pending until time when the leading petition was instituted, but this representation now stands decided and, in any case, does not survive the order dated 04.10.2023, impugned in the connected petition.
5. While the petitioner was stationed at Pratapgarh, he was placed under suspension pending inquiry vide order dated 29.11.2022. The suspension order says that the petitioner, while posted as the Deputy Commissioner (Self-Employment), Pratapgarh, inspected the community toilet at Village Kewaradih on 17.06.2022. On the basis of his inspection report, in place of Smt. Sita Devi, some other volunteer from the Self-Assistance Group was selected to look after the community toilet. In consequence, Writ-C No.4333 of 2022, Stri Mahila Swayam Sahayata Samooh through its President v. State of U.P. and others, was instituted before the Lucknow Bench of this Court. It is then remarked that the petitioner had not submitted his report regarding the community toilet based on records, on account of which the State Government was placed in an uncomfortable position before this Court. For the said happening, the petitioner was found prima facie guilty. It is remarked in the suspension order that for the petitioner not discharging his duties with responsibility, the Government's image was tarnished. The order goes on to say that on this allegation, disciplinary proceedings are contemplated, pending which the petitioner has been placed under suspension. There was nothing else said in the suspension order, except the allegations indicated.
6. The petitioner says that he had carried out his inspection on 17.05.2022, acting on complaints received in his office and made his report after inspection based on an objective assessment of the situation that prevailed on the spot. His report is one dated 17.05.2022. The petitioner has made a reference to three orders, that were made in Writ-C No.4333 of 2022 by the Lucknow Bench of this Court. These are orders dated 13.07.2023, 27.07.2022 and 01.08.2022. It is pointed out that vide order dated 13.07.2022, this Court directed the Additional Chief Secretary to file his personal affidavit, but since he did not put in his affidavit, he was directed to appear in person vide order dated 27.07.2022. Upon his appearance before this Court by the Additional Chief Secretary orders were made regarding maintenance of toilet in rural areas, particularly highlighting the security of women, where toilets for men and women had to constructed at some distance, as the orders would show.
7. The petitioner challenged the suspension order before the Lucknow Bench of this Court by means of Writ-A No.8333 of 2022, wherein the Court, vide order dated 22.12.2022, stayed the petitioner's suspension. In compliance, the petitioner was reinstated in service vide order dated 12.01.2023, but not paid his salary. When Writ-A No.8333 of 2022 came up before the Court, it appears that the Court disposed of the writ petition, declining to interfere with the suspension order, but with a direction to the Inquiry Officer to complete the inquiry within a period of three months from the date the petitioner received a copy of the charge-sheet along with relevant documents relied upon in support of the charge. This direction was issued because the petitioner asserts that he was not given a copy of the charge-sheet in all this while. The petitioner says that he appeared before the Mission Director, U.P. Rural Livelihood Mission, Gomti Nagar, Lucknow on 26.06.2023 and requested him to furnish a copy of the charge-sheet as ordered by this Court. The Mission Director expressed his inability as a copy of the charge-sheet was not available with his office. In this regard, the Mission Director addressed a letter dated 28.04.2023 to the Additional Chief Secretary, Rural Development, Government of U.P., requesting that a copy of the charge-sheet be made available to him, so that the order of this Court to furnish a copy of the charge-sheet to the petitioner, could be complied with.
8. It is the petitioner's case that despite the aforesaid letter addressed by the Mission Director, the Additional Chief Secretary did not cause a copy of the charge-sheet to be furnished to the petitioner, compelling him to approach the Mission Director once again. The Joint Managing Director addressed a letter dated 18.05.2023 to the Additional Chief Secretary, requesting him to provide a copy of the charge-sheet for the purpose of providing it to the petitioner. A copy of the charge-sheet was ultimately served upon the petitioner on 15.05.2023. He asserts that a reply to it was submitted within a month i.e. on 14.06.2023. It is then said that in compliance with the directions of this Court carried in the order dated 24.04.2023 passed in Writ-A No.8333 of 2022, the respondents were bound to conclude the inquiry within a period of three months from 15.05.2023 i.e. by 15.08.2023, but they did not do so. The petitioner was nevertheless served with a copy of the inquiry report on 08.08.2023, where the Inquiry Officer found the petitioner not guilty on the other charges, except Charge Nos.3 and 5. The petitioner submitted his objections to the inquiry report on 11.08.2023.
9. It is said by the petitioner that as regard Charge No.3, the misconduct, subject matter of the charge, had already been dealt with by the respondents and the petitioner awarded an adverse entry, against which he had preferred a representation, which was not disposed of. So far as Charge No.5 was concerned, it related to payment of travel allowance to employees of the department from June, 2020 to July, 2021. It is said by the petitioner that he was posted at the particular station, to which the charge relates, on 16.08.2021. He could, therefore, never be held responsible for payment of travel allowance to employees prior to his joining station. It is the petitioner's case that he had approached the Chief Development Officer and the Mission Director, who suggested seeking a clarification in the matter from the Mission Director. The petitioner wrote successive letters dated 08.08.2022, 06.09.2022 and 26.11.2022, requesting the Mission Director to issue a clarification as to the manner in which payment of travel allowance was to be made, inasmuch as the officer posted at the station between June, 2020 to July, 2021 had already retired or transferred to a different station. No clarification in this regard, according to the petitioner, was received from the Mission Director. In consequence, travel allowance payable to employees for the period June, 2020 to July, 2021 could not be released.
10. It is emphasized in this regard that there is a circular issued by the Chief Development Officer dated 28.05.2022, which requires certification under signatures of the officer posted at the station when the travel by employee/ employees was undertaken, for payment of the allowance claimed. It is this requirement, which prevented the petitioner from releasing the travel allowance claimed for the period in question without the signatures of the officer posted at the relevant time or a clarification in this regard being issued by the Mission Director.
11. It is particularly emphasized that on one hand the disciplinary proceeding were not brought to an end, and on the other, the Commissioner, Rural Development issued a letter dated 19.07.2023, informing all officers of the cadre that a Departmental Promotion Committee to consider promotion of officers on vacant posts during the recruitment year 2022-23 shall be held and records of officers considered eligible for promotion had been summoned. It is pleaded that officers at Sr. Nos.1-12 of the list annexed to the letter dated 19.07.2023 issued by the Commissioner, Rural Development are officers of the 1993 Batch and those placed at Sr. Nos.13-26 belong to the 1994 Batch (the petitioner's batch). The petitioner, being the topper of his Batch, his name finds place at Item No.13 of the said list. The petitioner emphasizes that his eligibility is reflected from the list appended to the letter dated 19.07.2023, but says that the respondents are trying to harm the petitioner by not concluding the disciplinary proceedings, inasmuch the petitioner is the senior most officer of his Batch and there being no adverse entry in his service record, the petitioner was entitled to be considered for promotion to the next higher post, certainly before his juniors.
12. The petitioner made a detailed representation to the Additional Chief Secretary on 11.08.2023, requesting that the inquiry proceedings be dropped looking to the frivolous nature of the charges against him. No order was made on the said representation by the Additional Chief Secretary. It is said that the order dated 29.11.2022, by which proceedings were initiated against the petitioner and the charges that figure in the charge-sheet show the flimsy nature thereof and further indicate that these were brought with a view to harass the petitioner.
13. The petitioner, apprehending a non-consideration of his case for promotion, instituted Writ-A No.15117 of 2023, which was taken up on 12.09.2023. Since, there was a strike by members of the Bar on that day, no one appeared on the petitioner's behalf. This Court, however, disposed of the writ petition aforesaid vide order dated 12.09.2023, directing the competent Authority to decide the petitioner's representation dated 11.08.2023 (addressed to the Additional Chief Secretary), in accordance with law within a period of three weeks from the date of receipt of a certified copy of the order made by this Court. The petitioner was directed to serve a copy of the representation dated 11.08.2023 again, along with a certified copy of the order passed by this Court. In compliance with the order dated 12.09.2023 passed by this Court, the petitioner moved a detailed representation to the Principal Secretary, Rural Development, Lucknow (the competent Authority), bringing to his notice the order of this Court. In compliance with the orders of this Court dated 12.09.2023 passed in Writ-A No.15117 of 2023, the State Government passed orders dated 04.09.2023, punishing the petitioner with the award of a censure and disposing of the disciplinary proceedings.
14. Aggrieved by the order dated 04.09.2023, the petitioner has instituted the present writ petition. The connected writ petition has been instituted against the order dated 04.10.2023 passed by the State Government, rejecting the petitioner's representation dated 08.09.2023 preferred against the order dated 04.09.2023 to the State Government.
15. Notice of motion in the leading petition was issued on 02.11.2023. A counter affidavit on behalf of respondent Nos.1 and 2 was filed on 30.01.2024, to which the petitioner has filed a rejoinder on 09.05.2024. This petition was admitted to hearing on 02.07.2024, which proceeded forthwith. The matter was heard further on 05.07.2024 and finally on 23.07.2024, when judgment was reserved.
16. Heard Mr. Ramesh Upadhyay, learned Senior Advocate assisted by Mr. Rajan Upadhyay and Mr. Pankaj Tiwari, learned Counsel in support of this petition and the learned Standing Counsel on behalf of the State.
17. It is submitted by Mr. Ramesh Upadhyay, learned Senior Advocate that the petitioner, while holding the position of the Deputy Commissioner, National Livelihood Mission, Pratapgarh, had conducted an on-spot inquiry on 17.06.2022 regarding the maintenance of public toilets. The Principal Secretary, Rural Development had issued a circular dated 15.07.2020, saying that maintenance of public toilets should be done through a self-help group, for which requisite orders may be made by the Gram Panchayat. While conducting the inquiry as aforesaid, the Block Development Officer of the concerned Block informed the petitioner that there was no record regarding maintenance of community toilets available in his office. The petitioner, therefore, recommended that maintenance of public toilets be done through resolution of the Gaon Sabha passed in an open meeting, as directed by the Principal Secretary. In the meantime, Writ-C No.4333 of 2022, questioning the allotment of public toilets, was filed before the Lucknow Bench of this Court and the Division Bench vide their Lordships' order dated 13.07.2022 directed the Additional Chief Secretary to file his personal affidavit, scheduling the case for 27.07.2022. As the Additional Chief Secretary did not file his personal affidavit by the date fixed, the Division Bench summoned him. This piqued the Additional Chief Secretary into ensuring the petitioner's suspension from service vide order dated 27.11.2022, which specifically mentions that as a result of the petitioner's report, the State Government faced an awkward position before the Court, for which the petitioner was prima facie to blame.
18. The Inquiry Officer found Charge No.3 proved and Charge No.5 partially proved against the petitioner. The petitioner filed his detailed objections to the inquiry report. In his objections, the petitioner said that he had mentioned reasons for the delay in the feeding of data in the computer and that was primarily on account of the strike by contract employees. It was also mentioned that the average feeding of data in the entire State was 50% and it was 63% in District Pratapgarh. It was also said by the petitioner in his objection that he had been given an adverse entry already and a second punishment for the same allegation cannot be awarded. This was regarding Charge No.3. In relation to Charge No.5, it was said that the matters relating to travel allowance, antedated the petitioner's posting at Pratapgarh. Despite repeated requests by him to the Chief Development Officer, regarding the matter of payment of travel allowance to employees of the Department, which related to a period of time before he joined, the Chief Development Officer asked the petitioner to seek a clarification from the Mission Director. The petitioner did seek clarifications through several letters, but none was forthcoming either from the Chief Development Officer or the Mission Director. This resulted in delay in the payment of travel allowance to some of the employees, which relates to a period of time before the petitioner joined his post at Pratapgarh. It is in the last submitted by Mr. Ramesh Upadhyay that the only reason given in the impugned order is that the delinquent officer's reply was not satisfactory. This reasoning, according to Mr. Upadhyay, is absolutely cryptic and in breach of Rule 10(2) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (for short, 'the Rules of 1999'), which provides that where a penalty is imposed, reason thereof shall be given. It is, particularly, urged by Mr. Upadhyay that the Departmental Promotion Committee was scheduled to meet on 05.09.2023 and the impugned order was passed mala fide with a view to harm the petitioner, so that he would become ineligible for consideration. It is also pointed out by the learned Senior Advocate that the promotion order dated 24.05.2024, filed as Annexure No.2 to the supplementary affidavit dated 23.07.2024, shows that persons junior to the petitioner have been promoted in the higher scale and on the higher post, leaving out the petitioner.
19. The learned Standing Counsel, on the other hand, submits that the order of punishment has been passed after going through the entire procedure of inquiry required to be made in a major penalty matter, even though what has been awarded to the petitioner is a minor penalty. This could be done by just issuing the petitioner with a show cause notice and nothing more. He submits that the jurisdiction of this Court does not extend to scrutinizing the correctness of the decision made by the Disciplinary Authority, but the fairness of procedure. There is nothing unfair about the procedure adopted in holding the disciplinary inquiry or in passing the order impugned based on the inquiry report, which too has been done after furnishing the petitioner a copy of the inquiry report. The petitioner's reply to the inquiry report too has been considered.
20. We have carefully considered the submissions advanced on behalf of the parties by learned Counsel and perused the record.
21. The charges, on the foot of which this inquiry has proceeded, carries seven charges. The copy of the charge-sheet filed along with the petition, for some reason, is a truncated document, where all charges, otherwise reflected from the record, are not there. That, however, does not make much difference because in the inquiry report dated 27.07.2022, all the seven charges have been set out verbatim. Out of the seven charges, Charges Nos.1, 2, 4 and 6 were held not proved, whereas Charge No.3 proved and Charge No.5 partially proved. No finding was recorded on Charge No.7 on ground that the matter was being examined by the Additional Chief Secretary and also the subject of a writ petition before the Lucknow Bench of this Court. The impugned order of punishment dated 04.09.2023, that has been passed, is, therefore, founded on whatever culpability, has been determined for the petitioner on the basis of conclusions recorded by the Inquiry Officer, vis-a-vis Charges Nos.3 and 5. Charge No.3 reads:
"आरोप संख्या-3 शासन के निर्देशानुसार आई०सी०डी०एस० के अन्तर्गत स्वयं सहायता समूहों द्वारा आई०सी०डी०एस० केन्द्रों पर ड्राई राशन पहुॅचाने / वितरण का कार्य किया जा रहा है। जनपद प्रतापगढ़ में माह अक्टूबर, 2020 तक कुल 1155 स्वयं सहायता समूहों के सापेक्ष मात्र 02 स्वयं सहायता समूहों के बैंक डिटेल्स दिनांक 11 फरवरी, 2022 तक पोर्टल पर फीड करते हुए वेरिफाई किया गया है। आप द्वारा आई०सी०डी०एस० योजनान्तर्गत ड्राई राशन वितरण जैसे महत्वपूर्ण योजना का क्रियान्वयन ससमय सम्पादित नहीं कराया गया। आपके शिथिल रवैये के प्रति शासन के पत्र संख्या आर-20 / 38-1-2022-3508 / 2022 दिनांक 11.02.2022 द्वारा प्रतिकूल प्रविष्टि निर्गत की गयी जिसके लिए आप दोषी है। माह अगस्त 2021 में स्वयं सहायता समूह से जुड़ी महिलाओं द्वारा ड्राई राशन वितरित किया गया था, उनके पारिश्रमिक की धनराशि के भुगतान हेतु पोर्टल पर वितरण की रिपोर्ट की फीडिंग 63 प्रतिशत पायी गयी। योजना के क्रियान्वयन में आपके द्वारा अपेक्षित रूचि नहीं ली जा रही है, जिसके लिए प्रथम दृष्टया आप दोषी हैं।"
22. Likewise, Charge No.5 runs as follows:
"आरोप संख्या-5 राष्ट्रीय ग्रामीण आजीविका मिशन के अन्तर्गत डी०एम०एम०/ बी०एम०एम० सहित कुल 74 कर्मचारियों की यात्रा-भत्ता भुगतान सम्बन्धी पत्रावली कार्यालय में दिनांक 09.05.2022 को प्रस्तुत की गयी। प्रस्तुत पत्रावली में उक्त तिथि को पाया गया कि अधिकांश यात्रा-भत्ता सम्बन्धी मॉग पत्र खण्ड विकास अधिकारी द्वारा सत्यापित नही है/ सहायक विकास अधिकारी के हस्ताक्षर है / सचिव द्वारा सहायक विकास अधिकारी के रूप में हस्ताक्षर किया गया है/ मांगपत्र मूल रूप में न होकर छायाप्रतियां है जो वित्तीय मामलों में स्वीकार्य नही है, जबकि लेखाकार द्वारा राष्ट्रीय ग्रामीण आजीविका मिशन के अन्तर्गत एफ०एल०टी०ए० मद के भुगतान सम्बन्धी बिन्दुओं पर स्थिति स्पष्ट किये जाने का उल्लेख किया गया है। इसके उपरान्त दिनांक 28.05.2022 को 41 कर्मचारियों के टी०ए० हेतु पत्रावली प्रस्तुत की गयी। परीक्षण करने पर पत्रावली उल्लिखित बिन्दुओं के सापेक्ष नहीं पायी गयी । यथा:- खण्ड विकास अधिकारी मान्धाता एवं कुण्डा का हस्ताक्षर फॉर करके किया गया है। सभी टी०ए० मांगपत्र की छायाप्रतियां संलग्न की गयी है। कोई भी मांग पत्र लेखाकार एवं उपायुक्त स्वतः रोजगार द्वारा सत्यापित नही किया गया है। राष्ट्रीय ग्रामीण आजीविका मिशन के अन्तर्गत विकास खण्ड स्तर पर कार्यरत मिशन प्रबन्धकों ने अपने प्रार्थनापत्र दिनांक 05.08.2022द्वारा अवगत कराया गया है कि उनका यात्रा भत्ता माह जून, 2020 से तथा पूर्व में चलायी गयी ड्राईवों के संचालन में होने वाले व्यय का समायोजन लम्बित है। तत्क्रम में मुख्य विकास अधिकारी, प्रतापगढ़ के पत्र संख्या 302 दिनांक 28.05.2022 के माध्यम से 'कारण बताओ नोटिस' निर्गत किया गया एवं पत्र संख्या 744 दिनांक 06.09.2022 के माध्यम 'चेतावनी' निर्गत की गयी जिसका आपके द्वारा उत्तर नही दिया गया, इस प्रकार पर्यवेक्षणीय / पदीय दायित्वों का निर्वहन नही किये जाने के लिए प्रथम दृष्टया आप दोषी है।"
23. While it is true that in any quasi judicial proceedings or administrative proceedings, charges are not required to be framed with the formality expected and forthcoming in a Court of law, but the charge should nevertheless be definitive in its terms and convey the essentials of the act or omission, on the basis of which misconduct is alleged. It should be fairly ascertainable by the delinquent as to what is the allegation against him with sufficient particulars indicated to enable him to effectively answer it. In this context while some sense may be made of Charge No.3, this is not the case with Charge No.5. Charge No.5, as would be evident, carries a jumble of allegations and hardly reads like a charge. It reads more like a part from an essay. Vague and mixed up allegations of the kind, that Charge No.5 is, would certainly prejudice any delinquent as it would have done the petitioner in effectively defending himself. Nevertheless, the petitioner has answered the charges and an inquiry report submitted.
24. There is one singular flaw, so far as the impugned order goes, and that is, its cryptic nature and the absence of reasons. At the end of a long-winded description of the two Charges, Nos.3 and 5, of which the petitioner has been held guilty, his defence, the opinion of the Inquiry Officer and the objections of the petitioner, all that is said by the Disciplinary Authority, is an abrupt conclusion sans reasons, that reads:
"जांच आख्या एवं अन्य सुसंगत अभिलेखों में वर्णित तथ्यों के आलोक में परीक्षणोपरान्त अपचारी अधिकारी द्वारा उपलब्ध कराये गये उपरोक्त उत्तर को संतोषजनक नहीं पाया गया। अतः सम्यक् विचारोपरान्त डॉ० एन०एन० मिश्रा, उपायुक्त (स्वतः रोजगार), जनपद-प्रतापगढ़ को 'परिनिन्दा' का दण्ड देते हुए उनके विरूद्ध संस्थित अनुशासनिक कार्यवाही को समाप्त किये जाने के आदेश एतद्द्वारा श्री राज्यपाल प्रदान करती हैं। उक्त दण्ड मा० उच्च न्यायालय, इलाहाबाद में योजित रिट याचिका संख्या-4333/ 2022 स्त्री महिला स्वयं सहायता समूह बनाम उ०प्र० राज्य व अन्य में पारित होने वाले अंतिम निर्णय के अधीन होगा।"
25. There is absolutely nothing to show as to what reasons have prevailed with the Disciplinary Authority on the basis of evidence on record to reach the conclusions that he did. It is, therefore, difficult to judge the validity of the order impugned, testing it on principles by which its validity may be assessed. The imperative of furnishing reasons in an order, that is quasi judicial in nature, or even administrative, if it determines rights of parties and has civil consequences, cannot be underestimated, much less discounted.
26. In Mahabir Prasad Santosh Kumar v. State of U.P. and others, (1970) 1 SCC 764, the necessity to give reasons for an authority acting in a quasi judicial capacity or even an executive authority, whose decision would affect rights of parties was emphasized by the Supreme Court in the following words:
"6. From the materials on the record it cannot be determined as to who considered the appeal addressed to the State Government, and what was considered by the authority exercising power on behalf of the State Government. The practice of the executive authority dismissing statutory appeals against orders which prima facie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law. This Court had occasion to protest against this practice in several decisions: see Madhya Pradesh Industries Ltd. v. Union of India [(1966) 1 SCR 466] (per Subba Rao, J.); Bhagat Raja v. Union of India [(1967) 3 SCR 302] ; State of M.P. v. Seth Narsinghdas Jankidas Mehta [ CA No. 621 of 1966, decided on April 29, 1969] ; State of Gujarat v. Patel Raghav Natha [ CA No. 723 of 1966, decided on April 21, 1969] ; and Prag Das Umar Vaishya v. Union of India [ CA No. 657 of 1965, decided on August 17, 1967] . The power of the District Magistrate was quasi-judicial: exercise of the power of the State Government was subject to the supervisory power of the High Court under Article 227 of the Constitution and of the appellate power of this Court under Article 136 of the Constitution. The High Court and this Court would be placed under a great disadvantage if no reasons are given, and the appeal is dismissed without recording and communicating any reasons.
7. Opportunity to a party interested in the dispute to present his case on questions of law as well as fact, ascertainment of facts from materials before the Tribunal after disclosing the materials to the party against whom it is intended to use them, and adjudication by a reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found, are attributes of even a quasi-judicial determination. It must appear not merely that the authority entrusted with quasi-judicial authority has reached a conclusion on the problem before him: it must appear that he has reached a conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process leading from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the Appellate Authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just."
27. Tested on the anvil of well settled principles about what may be considered a valid order of punishment passed by a Disciplinary Authority, the impugned order cannot be sustained because it is utterly cryptic and laconic. We hold accordingly.
28. So far as the findings of the Inquiry Officer on Charges Nos.3 and 5 are concerned, it would be appropriate to consider each of them separately to find out if there is any perversity or manifest illegality about them. In holding the petitioner guilty on Charge No.3, the Inquiry Officer has recorded the following finding:
"शासन के निर्देशानुसार आई०सी०डी०एस० के अन्तर्गत स्वयं सहायता समूहों द्वारा आई०सी०डी०एस० केन्द्रों पर ड्राई राशन पहुॅचाने / वितरण का कार्य किया जा रहा है। जनपद प्रतापगढ़ में माह अक्टूबर, 2020 तक कुल 1155 स्वयं सहायता समूहों के सापेक्ष मात्र 02 स्वयं सहायता समूहों के बैंक डिटेल्स दिनांक 11 फरवरी, 2022 तक पोर्टल पर फीड करते हुए वेरिफाई किया गया है। अपचारी अधिकारी द्वारा आई०सी०डी०एस० योजनान्तर्गत ड्राई राशन वितरण जैसे महत्वपूर्ण योजना का क्रियान्वयन ससमय सम्पादित नहीं कराया गया। इसी प्रकार स्वयं सहायता समूह से जुड़ी महिलाओं द्वारा वितरित किये गये ड्राई राशन के सापेक्ष पारिश्रमिक धनराशि के भुगतान हेतु बैंक खाते का डिटेल्स पोर्टल पर अपलोड / वेरीफाई कर, उच्च स्तर से निर्दिष्ट किये जाने के बाद भी अपचारी अधिकारी द्वारा अपेक्षित रूचि नहीं ली गयी, जिससे योजना के क्रियान्वयन में विलम्ब होना प्रतीत होता है जिसके लिए अपर मुख्य सचिव, ग्राम्य विकास अनुभाग-1, उ०प्र० शासन के आदेश संख्या आर - 20 / 38-1-2022-3508 / 2022 दिनांक 11.02.2022 द्वारा अपचारी अधिकारी को प्रतिकूल प्रविष्टि निर्गत की गई है।
अपचारी अधिकारी द्वारा अपने उत्तर / स्पष्टीकरण में यह उल्लेख किया गया है कि माह अक्टूबर 2020 के सापेक्ष 11 फरवरी, 2022 तक 1155 स्वयं सहायता समूहों की मैपिंग के सापेक्ष 958 समूहों की मैंपिग़ की गई थी तथा मात्र 02 स्वयं सहायता समूहों के बैंक डिटेल्स पोर्टल पर फीड करते हुए वेरीफाई किया गया है तथा शेष 197 समूहों की मैपिंग एवं 1153 समूहों के बैंक डिटेल्स पोर्टल पर फीड करने के सम्बन्ध में तकनीकी समस्या का कारण बताते हुए प्रतिरक्षा साक्ष्य - 18 एवं 18 / 1 संलग्न किया है।
अपचारी अधिकारी द्वारा ड्राई राशन वितरण योजना का कार्य कर रहे स्वयं सहायता समूहों की पोर्टल पर निर्धारित अवधि में मैपिंग एवं उनके बैंक खाते पोर्टल पर अपलोड करते हुए वेरीफाई करने में पर्याप्त रूचि नहीं लिया जाना प्रतीत होता है, जिसके कारण से ऐसी स्थिति उत्पन्न हुई। अपचारी अधिकारी द्वारा अपने बचाव में ड्राई राशन वितरित करने व स्वयं सहायता समूहों के बैंक खातों का डिटेल्स पोर्टल पर अपलोड / वेरीफाई करते हुए अद्यतन स्थिति से भी अवगत कराने हेतु कोई साक्ष्य भी नहीं प्रस्तुत किया गया है।
इस प्रकरण पर अपर मुख्य सचिव, ग्राम्य विकास अनुभाग-1, उ0प्र0 शासन के आदेश संख्या आर-20 / 38-1-2022-3508 / 2022 दिनांक 11.02.2022 द्वारा दी गई प्रतिकूल प्रविष्टि एवं अपचारी अधिकारी द्वारा अपने बचाव में अद्यतन स्थिति से भी अवगत कराने हेतु कोई साक्ष्य भी नहीं प्रस्तुत किया गया है, जिससे अपचारी अधिकारी को उक्त आरोप के सम्बन्ध में दोष मुक्त किये जाने पर विचार किया जा सके।
अतः आरोप संख्या-3 अपचारी अधिकारी के ऊपर सिद्ध पाया गया।"
29. The learned Senior Counsel for the petitioner urged that an inquiry had already been held in respect of the subject matter of Charge No.3 and an adverse entry awarded to the petitioner, against which his representation is pending before the Principal Secretary. The submission is that on the same charge, another adverse entry (the censure) could not have been awarded. In the counter affidavit filed on behalf of respondent Nos.1 and 2, the stand taken in paragraph No.10 is that due to lack of interest shown by the petitioner in the verification and uploading of the mapped self-help groups engaged in important tasks, like dry ration distribution under the Integrated Child Development Scheme (for short, 'ICDS') and bank accounts of such groups on the portal meant for the purpose, the progress of the scheme remained very slow. It is then said that for this laxity, an adverse entry was awarded to the petitioner. The stand in paragraph No.10 of the counter affidavit further is that an adverse entry is a negative evaluation of the employee's work, which does not fall into the category of punishment, whereas the censure now awarded for the same omission/ misconduct is a measure of punishment awarded in disciplinary proceedings.
30. This Court may say that the contention of the respondents during hearing, which is in accord with their stand in the counter affidavit, is well founded.
31. An adverse entry is a general evaluation of an employee's work and performance, which is invariably entered in his Annual Confidential Report (for, 'the ACR'). It is certainly not a punishment meted out after disciplinary proceedings. By contrast, a censure is a punishment, that is awarded after disciplinary proceedings. It is quite possible that for the same act/ omission/ laxity, the employee may be given an adverse remark in his ACR and then charge-sheeting the employee for the same omission/ misconduct, disciplinary proceedings may be initiated, where the punishment of censure may be awarded, like any other.
32. It may be true that for the same imputed omission, the petitioner has been awarded an adverse entry in his ACR and then proceeded with by the respondents in their disciplinary jurisdiction, where after holding inquiry, on the basis of the report submitted, the Disciplinary Authority has awarded a censure. This is not a case of the petitioner being punished twice or proceeded with against twice for the same misconduct. The contention of the learned Senior Advocate on this point, therefore, is not tenable.
33. The next point urged by the learned Senior Advocate for the petitioner is that the findings holding the petitioner guilty of Charge No.3 is based on a perverse view of the evidence, one recorded without consideration of relevant material, and, rather, consideration of irrelevant material. The findings are manifestly illegal. Charge No.3 has two parts to it. The first is that out of 1155 self-help groups associated with the ICDS in District Pratapgarh and engaged in the work of delivering ration to the ICDS Centres or distribution of that ration, two of these groups alone had their bank details posted on the portal after verification up to 11.02.2022. The petitioner was charged of being guilty of not ensuring timely distribution of dry ration under the ICDS. Under the second part of the charge, the substance of imputation against the petitioner is that he did not post the bank account details of women volunteers associated with the self-help groups involved in the distribution of dry ration on the portal by ensuring its uploading and verification, which was essential to ensure payment of due wages to these volunteers.
34. The charge goes that despite the petitioner being directed by higher officials to undertake posting of all these volunteer details, he did not take any interest, leading to a delay in the implementation of the ICDS and further that for the said delay, the petitioner has been awarded an adverse entry in his ACR. The petitioner in his reply to the said charge has taken a categorical plea that in the initial stages of implementation of the scheme, there were teething problems encountered. It was his defence that compared to October, 2020, in February, 2022, 958 of the self-help groups out of 1155 had been mapped and the bank account details of two of them fed on the portal and verified. The mapping of the remainder of 197 self-help groups and posting of bank account details of the 1153 remaining could not be done due to technical problems in feeding the data on the portal. Steps were taken for the removal of difficulties. Some delay occurred at the level of the District Mission Management Unit that lay outside the petitioner's control. On his part, the petitioner harnessing all his strength contacted the headquarters and coordinated with them to surmount the technical difficulties encountered in feeding the relevant data. He never delayed uploading the data, but on account of the computer application's technical problems, the delay occurred, which too was dealt with and the data feeding completed.
35. It is also the petitioner's defence that from time to time guidance was sought from the State Level functionaries through VC/ workshops in order to enable the petitioner to overcome the difficulties faced. The petitioner undertook his duties for the implementation of the scheme in right earnest from the beginning, but there was slow progress in implementation at the early stages. Relevant evidence, demonstrating the petitioner's efforts to ensure early feeding of data surmounting difficulties is mentioned in the petitioner's reply by reference. The petitioner also emphasized that whereas in District Pratapgarh, in consequence of the petitioner's efforts, the feeding of data relating to self-help groups and their volunteers was 63%, in the rest of the State it was just 50%. The petitioner claimed that he was in no manner negligent or lax in the performance of his duties.
36. A perusal of the findings recorded by the Inquiry Officer on Charge No.3 betrays a rather cryptic and a priori approach. The Inquiry Officer has, without assigning reasons with reference to any evidence, remarked that the petitioner did not show sufficient interest in mapping or uploading the bank account details after verification on the portal relating to self-help groups engaged in the distribution of dry ration under the scheme. It is then casually remarked that the petitioner has not produced any evidence in support of his defence. Also, the Inquiry Officer has taken into consideration the fact that for the same lapse relating to delay in posting of bank account details of self-help groups and volunteers etc., the petitioner has been awarded an adverse entry. Now, the fact has been completely ignored, which the petitioner asserted and the respondents did not deny that the maximum feeding of data, i.e. 63%, was done in the District of Pratapgarh, whereas in the rest of the State, it was 50%. If that were ignored also, the technical glitches in the operation of the computer application necessary to upload data on the web portal was a defence that has not at all been considered by the Inquiry Officer. He has just glossed it over. To the contrary, he has taken into consideration the fact that for the same omission and misconduct, the petitioner has been awarded an adverse entry, ignoring evidence that the petitioner apparently offered to show that he made efforts to get over technical problems in the application necessary to upload details of self-help groups, volunteers etc., besides mapping of the said groups during the early stages of the scheme. It is apparently a case where relevant evidence has been ignored and at least one irrelevant evidence, that is the adverse entry taken into consideration. It is true that adverse entry and censure for the same act or omission can be awarded, but it is equally true that an adverse entry written in the ACR is not relevant material at all to return a finding based on the same omission in disciplinary proceedings. The findings of the Inquiry Officer are, therefore, based on ignorance of material evidence and taking into consideration of irrelevant material, besides being cryptic. The same cannot be sustained.
37. Now, to turn to Charge No.5, of which the petitioner has been held partially guilty. The crux of the matter is that files relating to travel allowance reimbursement of 74 employees working under the NRLM scheme were found full of financial objections when presented by the petitioner to the Chief Development Officer on 09.05.2022 for approval. These objections were like non-verification of the travel allowance bills by the concerned Block Development Officer or in some of these, a Secretary signing for the Additional Development Officer, or the travel allowance claim form not being there in original, but a photostat copy. The petitioner's defence is that these files were all complete and relate to the period between June, 2020 to August, 2021, whereas the petitioner joined the post on 16.08.2021. The responsibility for any deficiencies in these papers are to be blamed on the incumbent officers of the time. Nevertheless, the petitioner got the objections removed when pointed out and presented these papers to the Chief Development Officer. It was held by the Inquiry Officer that the petitioner did not scrutinize the travel allowance claim papers before presenting them for administrative approval to the Chief Development Officer on 09.05.2022. The petitioner had inspected the papers. He could have got the objections removed at his level. The remark of the Inquiry Officer is that the petitioner did not take appropriate measures to present the TA Claim papers before the Chief Development Officer after due adherence to financial rules. The inference drawn is that the petitioner's act in presenting these defective papers for financial approval of the TA Bills shows slackness in supervision on his part.
38. This Court must remark that the Inquiry Officer did not at all the examine the petitioner's principal contention that the papers relating to the TA claims of 24 employees related to a period of time when his predecessors in office were there, who had got the records completed. It is they who would be answerable. This case with reference to the material on record ought have been examined by the Inquiry Officer. Quite apart, the matter, that is subject of the charge, is indeed too trivial to be classed a charge. There are things in the course of discharge of official functions that may not show the best of performance by the officer, but would not constitute his omissions or actions into service misconduct of any kind. There are matters in official business, where some slackness or some failure may be no more than wear and tear of service. As already remarked, for such matters the petitioner may be rated poor in his ACR for the relevant year, if the competent Authority in the establishment feels so, but would not render his omission always a misconduct to be punished in the disciplinary jurisdiction; not even by a censure.
39. On a wholesome perspective of the matter, both Charges Nos.3 and 5 are no more than lapses of performance, short of what can be called misconduct. These could have led to an adverse ACR entry and did result in one against which the petitioner's representation is pending. Nevertheless, to treat such kind of lapses in the discharge of official duties a misconduct and proceed in their disciplinary jurisdiction seems to be a misplaced and manifestly illegal invocation by the respondents. Also, resort to proceedings for misconduct in their disciplinary jurisdiction by the respondents against the petitioner, where apparently no more than some lapses of performance are exhibited, would constitute malice in law, if not in fact.
40. The distinction between malice in law and malice in fact has been adumbrated by the Supreme Court in S.R. Venkataraman v. Union of India and another, (1979) 2 SCC 491 in the context of an order of premature retirement passed against a public servant under clause (j)(i) of Rule 56 of the Fundamental Rules thus:
"5. We have made a mention of the plea of malice which the appellant had taken in her writ petition. Although she made an allegation of malice against V.D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976. It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is however, quite different. Viscount Haldane described it as follows in Shearer v. Shields [(1914) AC 808, 813] :
"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."
Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause."
41. The distinction is also noticed in State of A.P. and others v. Goverdhanlal Pitti, (2003) 4 SCC 739, where it is observed:
"12. The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others". (See Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989.)"
42. Similarly, the principle about what constitutes perverse finding has been explained by the Supreme Court in Neelam Gupta and others v. Rajendra Kumar Gupta and another, 2024 SCC OnLine SC 2824, which reads:
"15. That apart, a scanning of the impugned judgment would reveal that the High Court has picked up certain crucial perversities that infected the judgments of the courts below. In Stroud's Judicial Dictionary of Words & Phrases, 4th Edn., the expression 'perverse' has been defined thus:--
"Perverse. - A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
In the decision in Arulvelu v. State Rep. by Public Prosecutor, (2009) 10 SCC 206 this Court held that 'perverse finding' would mean a finding which is not only against the weight of evidence but is altogether against the evidence itself.
In the decision in General Manager (P), Punjab & Sind Bank v. Daya Singh, (2010) 11 SCC 233, this Court held perverse finding as one which is based on no evidence or one that no reasonable person would arrive at. Furthermore, it was held that unless it is found that some relevant evidence had not been considered or that certain inadmissible material had been taken into consideration the finding could not be said to be perverse."
43. This Court is, therefore, of opinion that the impugned order dated 04.09.2023, awarding censure to the petitioner, cannot be sustained.
44. Now, so far as the petitioner's claim to promotion is concerned, it is evident from paragraph No.13 of the counter affidavit that since he was awarded the punishment of censure a day before the Selection Committee meeting was held on 05.09.2023, he was found unfit and not recommended for promotion. Therefore, in consequence of the order of punishment being quashed, the petitioner would be entitled to a consideration for promotion by the Selection Committee to be promptly convened and subject to the outcome of their recommendations, the petitioner entitled to seniority, if promoted to the next higher cadre with effect from the date that juniors to him have been promoted. No financial benefits, of course, would accrue to the petitioner prior to the time that he is actually promoted to the next higher cadre.
45. So far as the order impugned in the other writ petition is concerned, it is an order passed by the State Government on a representation preferred by the petitioner against the order, awarding censure. The said representation, in fact, did not lie as the impugned order was passed by the State Government themselves. Once, the impugned order dated 04.09.2023 is quashed, no further orders would be required to be made as regards the order impugned in the connected writ petition, rejecting the petitioner's representation.
46. In the result, Writ-A No.18422 of 2023 succeeds and is allowed. The impugned order dated 04.09.2023 passed by the State Government is hereby quashed. The petitioner shall be entitled to a consideration for promotion to the next higher post by a Selection Committee to be convened within a period of two months next of the receipt of a certified copy of this order, with a declaration of the result to follow within a week, and subject to the outcome of their recommendations, the petitioner entitled to seniority, if promoted to the next higher cadre with effect from the date that juniors to him have been promoted. No financial benefits, of course, would accrue to the petitioner prior to the time that he is actually promoted to the next higher cadre.
47. So far as Writ-A No.2255 of 2024 is concerned, the same is consigned to record.
48. There shall be no order as to costs.
Order Date :- 17.12.2024 Anoop (J.J. Munir) Judge