Allahabad High Court
State Of U.P. Through Prin. Secy. Tax & ... vs Rakesh Kant Sama & Another on 17 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1811
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 3 Case :- SERVICE BENCH No. - 1341 of 2014 Petitioner :- State Of U.P. Through Prin. Secy. Tax & Registration Lko. & Respondent :- Rakesh Kant Sama & Another Counsel for Petitioner :- C.S.C. Counsel for Respondent :- C.S.C.,Anurag Srivastava,Dr.L.P.Misra,Prafulla Tiwari Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Pankaj Nath, learned Additional Chief Standing counsel, Sri Prafulla Tiwari, Advocate holding brief of Dr. L.P. Misra, learned counsel for respondent No. 1 and perused the record.
Sri Pankaj Nath, learned Additional Chief Standing Counsel while challenging the impugned judgment passed by Tribunal submitted that respondent No. 1/Sri Rakesh Kant Sam was appointed on the post of Entertainment Tax Officer Grade-II on 03.01.1983 and subsequently was promoted to the post of Entertainment Tax Officer Grade-I in the year 1989. On 01.06.1996 the respondent no.1 was further promoted on the post of District Entertainment Tax Officer. While working as District Entertainment Tax Officer, Aligarh, the respondent no.1 was placed under suspension vide order dated 01.06.2009 and thereafter a charge-sheet dated 21.08.2009 was served upon him, leveling three charges.
On 31.12.2009, respondent No. 1 submitted a detailed reply denying all the charges leveled on him. After conducting enquiry, the Enquiry Officer submitted the enquiry report dated 29.01.2011 wherein the charges leveled against respondent No. 1 were found to be proved.
On 09.02.2011, a show cause notice along with enquiry report dated 29.01.2011 was served upon respondent No. 1 to which he submitted the reply on 04.03.2011.
By order dated 24.08.2012 the Disciplinary Authority has passed the punishment order thereby the integrity of respondent No. 1 was held to be doubtful and three yearly increments were stopped permanently.
Aggrieved by the punishment order dated 24.08.2012, respondent No. 1 preferred an appeal on 19.09.2012 before the State Government, which was rejected vide order dated 14.01.2013.
Thereafter, respondent No. 1 filed a Claim Petition No. 104 of 2013 before the State Public Service Tribunal, U.P. (in short ''Tribunal) challenging the punishment order dated 24.08.2012 and appellate order dated 14.01.2013.
The claim petition was allowed vide order dated 11.02.2014 passed by the Tribunal on the ground that there is a procedural defect in enquiry proceedings and the punishment of holding the integrity doubtful is not provided under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (in short Rules, 1999).
The petitioners/State Government has filed the present writ petition for quashing the impugned judgment and order dated 11.02.2014 passed by the Tribunal in Claim Petition No. 104/2013.
Learned State Counsel for the petitioners submitted that there was neither any violation of the principles of natural justice nor was there any procedural irregularity in conducting the disciplinary proceedings and in case if the Tribunal was of the opinion that there was violation of the principles of natural justice or any procedural irregularity then the Tribunal ought to have remanded back the matter to the disciplinary authority for proceeding afresh from the stage it found the enquiry proceedings to be defective. In support of his argument, learned State counsel placed reliance on the following decisions of Ho'ble Supreme Court:-
1. Chairman, LIC Vs. A. Masilmani, 2013 (6) SCC 530
2. U.P. Rajyakiya Nirman Nigam Vs. Vijay Kumarshukal, 2018 (36) L.C.D. 2038.
Learned State counsel further submitted that in the case of the respondent No. 1, the enquiry report relied upon is of Sri V.K. Srivastava, Deputy Commissioner (Enquiry Oficer) as is evident from a bare perusal of the charge-sheet dated 21.08.2009 and the Enquiry Officer prepared his report on the basis of the same as well as other documents mentioned in the charge sheet. The enquiry report dated 28.01.2011 was provided to the respondent no.1, to which he submitted his reply and thereafter the order of punishment was passed. There is no violation of principles of natural justice in not providing the report of Joint Committee dated 07.09.2011 and report of Deputy Commissioner Trade Tax dated 12.06.2012, which were subsequent to submission of enquiry report dated 29.01.2011, as the said reports are not the reports under U.P. Government Servant (Discipline and Appeal) Rules, 1999 (in short "Rules 1999").
Further submitted that the allegations mentioned in the charge sheet and the facts/details of the proceedings of the recovery case of Cinema Owner are entirely different in nature and as such, no benefit could be extended to respondent no. 1 on the basis of the judgment and order passed in the case of Cinema Owner. Thus, the Tribunal erred in law and fact both. So the present writ petition deserves to be allowed.
In rebuttal, the learned counsel for respondent No. 1 submitted that since the disciplinary proceedings were based on the report of one Sri Amrit Pal Singh, which report has been held to be illegal by the court in the judgment dated 08.02.2013 passed in Writ Tax No. 585 of 2013 and action had been directed to be taken against the said Sri Amrit Pal Singh by this Court in the judgment passed in the writ petition filed by the Cinema Owner against the order of recovery, as such, no useful purpose would be served by remanding back the matter for proceedings afresh, in the enquiry from the stage of the defect was found especially when respondent no. 1 has already retired from service. It is submitted that the disciplinary proceedings in question were in fact was based on any report of the Sri Amrit Pal Singh whose name has been mentioned in the judgment and order dated 08.07.2013, passed in the writ petition filed by the Cinema Owner.
Further submitted that the respondent No. 1 has already attained the age of superannuation on 30.09.2015 and all the post retiral dues has been paid to him including the payment of monthly pension regularly and the matter should not be remanded for holding inquiry afresh. In this regard he has placed reliance on the following judgments:-
1. Allahabad Bank and others Vs. Krishna Narayan Tewari, 2017 (2) SCC 308.
2. Management of Karur Vysys Bank Limited Vs. S. Balakrishnan, 2016 (12) SCC 221
3. Fida Husain and others Vs. Moradabad Development Authority and another, 2011 (12) SCC 615
4. Punjab National Bank and others Vs. Kunj Behari, 1998 (7) SCC 84.
It has also been submitted by learned counsel for respondent No. 1 that this Court has already adjudicated the case finally and has given its finding after summoning the records particularly with respect to charges leveled against the respondent No. 1 in the charge-sheet in the parallel proceedings initiated against the Cinema Owner on the basis of report of Sri Amrit Pal Singh and, therefore, remand of matter would be an empty formality and would amount to sitting over the findings recorded by this Court in judgment and order dated 08.07.2013 which has been affirmed by the Hon'ble Apex Court vide judgment and order dated 09.05.2014 followed by dismissal of Review Petition No. 1513 of 2015 filed by the State Government for reviewing the judgment and order dated 09.05.2014 vide judgment and order dated 14.07.2015.
On the issue of violation of principles of natural justice the learned counsel for the respondent no.1 submitted that a bare perusal of punishment order dated 24.08.2012 would show that the punishing authority while which imposing the punishment and passing the order dated 24.08.2012 considered the report dated 07.09.2011 of Joint Committee and report dated 12.06.2012 of Sri S. N. Singh Gautam, Deputy commissioner Entrainment Tax, and recorded the findings that there was overwriting on the report dated 17.01.2001.
Obtaining reports subsequent to submission of enquiry report is alien to the procedure provided under the 1999 Rules and non providing the same before passing the order of punishment, after taking into consideration the same, is contrary to the principles of natural justice.
Finding of overwriting does not stand in view of the findings recorded by the court in the judgment dated 08.07.2013. Thus, the Tribunal rightly passed the order dated 11.12.2014 and the same is not liable to be interfered by this Court. The relevant portion of the order dated 24.08.2012 is quoted below for ready reference.
"मेरे द्वारा आरोपी अधिकारी पर लगाए गए आरोप, उसके द्वारा प्रस्तुत उत्तर, जाँच अधिकारी द्वारा आरोप सिद्ध होने के सम्बन्ध में निकाले गए निष्कर्ष, सिद्ध आरोपों के सम्बन्ध में आरोपी अधिकारी द्वारा प्रस्तुत उत्तर दिनांक ०४.०३.२०११, संयुक्त समिति व् श्री गौतम द्वारा परीक्षोपरांत निकले गए निष्कर्ष तथा पत्रावली पर उपलब्ध अन्य सुसंगत अभिलेखों का अध्ययन किया गया और पाया गया की सिनेमा स्वामी द्वारा अतिरिक्त २२५ वर्ग गज जमीन क्रय करके नया मानचित्र अलीगढ विकास प्राधिकरण से अनुमोदित कराकर सिनेमा निर्माण किये जाने विषयक लगाया गया आरोप संख्या - ०१ आरोपी अधिकारी पर सिद्ध नहीं होता है | आरोप संख्या - ०२ एवं ०३ के सम्बन्ध में राजशव निरीक्षक एवं तहसीलदार कोल की आख्या दिनांक १७.०१.२००१ में ओवर रइटिंग कर दिनांक ०७.०१.२००१ किया जाना पाया गया | उक्त की पुष्टि विधि विज्ञानं प्रयोगशाला की रिपोर्ट दिनांक २३.०९.२००९ से होती है, साथ ही जिला मजिस्ट्रेट अलीगढ के आदेश दिनांक १०.०७.२००९ में भी बैकडेटिंग मानते हुए सिनेमा स्वामी के विरुद्ध रु० ३,७८,४५,१४१.६३ मनोरंजन कर रु १,९२,९०,४७५.७७ व्याज वसूली के आदेश पारित किये गए | इस प्रकार आरोपी अधिकारी पर लगाए गए आरोप संख्या-०२ एवं ०३ आरोपी अधिकारी पर पूर्ण रूप से सिद्ध पाए जाते है |"
Therefore, no case for remanding the matter to the disciplinary authority is made out and the writ petition preferred by the State Government deserves to be dismissed with a direction that the respondent No. 1 be promoted notionally w.e.f. 10.07.2012 with all consequential benefits.
We have heard learned counsel for parties and perused the record.
From the reading of the judgment passed by the Tribunal, the position which culled out is that the Tribunal interfered in the order dated 24.08.2012 and 14.01.2013 on account of procedural irregularities committed by the disciplinary authority in the inquiry proceedings and the facts related to initiation of disciplinary proceedings against the respondent no.1 as well as the judgment dated 08.07.2013 passed by this Court.
If on account of procedural irregularities in conducting the domestic/disciplinary enquiry the order is set aside, then in that event, the matter should be remanded to the disciplinary authority for proceeding from the stage enquiry is found to be defective, as held by Hon'ble the Apex Court in the case of Chairman, LIC Vs. A. Masilmani, 2013 (6) SCC 530:-
"9. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: Managing Director, ECIL, Hyderabad etc.etc. v. B. Karunakar etc.etc. AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls & Ors., (2002) 10 SCC 293; U.P. State Spinning C. Ltd. v. R.S. Pandey & Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex-Inspector AIR 2009 SC 161).
10. The second question involved herein, is also no longer res integra.
Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/ magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. (Vide:State of U.P. V. Brahm Datt Sharma & Anr., AIR 1987 SC 943; Stateof Madhya Pradesh V. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government Prohibition & Excise Department Vs. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh Vs. N. Radhakishan, AIR 1998 SC 1833; M. V. Bijlani Vs. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. V. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. V. Pradash Chandra Mirdha, AIR 2012 SC 2250)."
In the case of U.P. Rajyakiya Nirman Nigam Vs. Vijay Kumarshukal, 2018 (36) L.C.D. 2038, this Court held as under:-
"In the case of Chairman Life Insurance Corporation of India and others Vs. A. Masilamani, 2013 (6) SCC 530, Hon'ble the Apex Court in paragraph Nos. 17 & 18 has held as under:-
"The second question involved herein, is also no longer res integra.
Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. (Vide: State of U.P. V. Brahm Datt Sharma & Anr., AIR 1987 SC 943; Stateof Madhya Pradesh V. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government Prohibition & Excise Department Vs. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh Vs. N. Radhakishan, AIR 1998 SC 1833; M. V. Bijlani Vs. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. V. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. V. Pradash Chandra Mirdha, AIR 2012 SC 2250)."
"Further a Division Bench of this Court in the case of Union Of India & Ors. Vs. Ram Nagina Yadav, 2015 (33) LCD 2691, in paragraph Nos, 8, 10 & 11 has held as under:-
"8. In fact, the submission of the learned counsel appearing on behalf of the appellants is that if there was a breach of the principles of natural justice, the appropriate order to pass would have been to direct that the proceedings be conducted from the stage at which the breach had occurred. We find merit in that contention. The order of the disciplinary authority dated 4 May 2006 differing with the report of the Enquiry Officer was passed without complying with the elementary principles of natural justice which require that the respondent be given a notice explaining the reasons for disagreeing and to allow him to respond thereto. The learned Single Judge has in the concluding part of his judgment in para 33 adverted to this aspect. However, we find from the record that the learned Single Judge has thereafter proceeded to inquire into the merits of the allegations. The learned Single Judge has also entered a finding in paragraph 32 that the inquiry report was not supplied to the respondent but the same was furnished to him alongwith the punishment order and that the respondent did not have any occasion to see the report or to give any reply to the finding before he was punished. This is evidently not with reference to the report of the inquiry which ultimately led to the removal from service. The learned counsel appearing on behalf of the respondent has also fairly accepted that this finding in paragraph 32 of the judgment of the learned Single Judge relates to an earlier stage of the inquiry which was the subject matter of the judgment of a learned Single Judge of this Court dated 4 March 2005.
10. Accordingly, while the order of removal from service and in consequence the order of appellate and revisional authorities would have to be set aside, it would be proper to grant an opportunity to the disciplinary authority to conclude the disciplinary proceedings from the stage at which the violation of the principles of natural justice had occurred.
11. For these reasons, we issue the following directions:
"(i) The order of removal which has been passed against the respondent on 14 August 2007 and 23 February 2007 and the orders of the appellate and revisional authorities are quashed and set aside;
(ii) The disciplinary authority shall proceed to conclude the proceedings from the stage at which the breach of the principles of natural justice had occurred. In view thereof, if the disciplinary authority proposes to disagree with the enquiry report submitted by the Enquiry Officer, J.P.L. Srivastava exonerating the respondent, the disciplinary authority would be at liberty to issue a notice to the respondent indicating its reasons for disagreement by allowing the respondent an opportunity to submit his objections thereto;
(iii) The disciplinary authority shall pass fresh orders in accordance with law no later than within a period of three months from the date of receipt of a certified copy of this order after complying with the principles of natural justice; and
(iv) The issue of back wages and consequential benefits if any, payable to the respondent shall abide by the result of the disciplinary proceedings which shall be concluded within the period stipulated above."
However, in certain circumstances, if the punishment order is set aside on the ground that there is irregularity in conducting the disciplinary proceedings then in that circumstances, the matter should not be remanded back to the Punishing Authority to decide afresh as held by Hon'ble the Apex Court in the case(s)of :-
1. Allahabad Bank and others Vs. Krishna Narayan Tewari, 2017 (2) SCC 308.
2. Management of Karur Vysys Bank Limited Vs. S. Balakrishnan, 2016 (12) SCC 221
3. Fida Husain and others Vs. Moradabad Development Authority and another, 2011 (12) SCC 615
4. Punjab National Bank and others Vs. Kunj Behari, 1998 (7) SCC 84.
Reverting to the facts of the case, from the record it appears that the grounds on which punishment was awarded to respondent No. 1 are related to the fats on which tax exemption was withdrawn by order dated 10.07.2009, which was given to the District cinema owner (Grand Sujit Comlex) as well as recovery certificate for recovery of Rs. 5,71,35,671/- issued on 13.082012 and aggrieved by the same order, a writ petition (Writ Tax No. 585 of 2013) was filed by cinema Owner, which was allowed vide order dated 08.07.2013, relevant portion reads as under :-
"13. Learned counsel for the petitioner submits that the entire proceedings were initiated on the malafides of Shri Amrit Pal Singh, the then Asstt. Entertainment Tax Commissioner, Aligarh. He had made illegal demand from the petitioner and when such demands were not satisfied the entire proceedings were initiated without sanction of the District Magistrate. The documents were sent to the forensic laboratory without the permission of the District Magistrate. The queries made by him were replied by the forensic laboratory on which proceedings were initiated without realising that under Rule 3 of the U.P. Cinematograph Rules, 1951 there was no requirement of any report to be submitted for the purposes of permission to construct cinema hall. The Asstt. Entertainment Tax Commissioner did not explain as to how the Executive Engineer, Prantiya Khand, Public Works Department could have sanctioned building plan on 4.1.2001 and that the District Magistrate gave permission on 8.1.2001, if the reports were allegedly obtained on 17.1.2001 and were backdated to 7.1.2001.
14. There was no allegations against the Executive Engineer, PWD and the District Magistrate of having backdated their sanction and permission. He submits that if there were any such fault, action should have been taken against the petitioner, within reasonable time. The respondents should not have waited for 8 years after the exemption was allowed and the petitioner availed the entire exemption.
15. Learned Standing Counsel submits that as soon as the manipulation of the documents were noticed, the Astt. Entertainment Tax Commissioner sent records to the forensic laboratory and after he was satisfied that the site was inspected on 17.1.2001, which was later than the permission, given by the District Magistrate, the show cause notice was given to which the petitioner did not submit satisfactory explanation. The exemption was taken by playing fraud and thus entire amount of entertainment tax in pursuance to the scheme has been withdrawn and recovery was initiated, after adding interest to the amount, which could not have been availed by the petitioner as exemption.
16. Rule 3 of the U.P. Cinematograph Rules, 1951 provides for application for constructing a building. The Rule is quoted as below:-
"3. Application for constructing a building- (1) A person desirous of constructing a permanent building to be used for cinematograph exhibition shall submit an application specifying the site on which the proposed building is to be constructed together with a plan and specifications thereof to the officer authorised in this behalf by Government.
(2) The plan mentioned in the aforesaid sub-rule shall contain the elevations and sections of the buildings, the proposed electrical installations, arrangements for ventilation, sanitation and parking of vehicles and the position of the premises in relation to adjacent premises and public through fares on which the building abuts, within a radius of one furlong.
(3) The licensing Authority may, if it is satisfied that the site plans and specifications fully conform to the rules, grant to the applicant a certificate signifying his approval thereto. The period within which the construction shall be completed shall also be stated in the certificate."
17. Rule 3 quoted as above as well as the Government orders dated 11.8.2000 and 9.1.2001 do not provide for any site inspection. The inspection of the site is only for the purposes of finding out whether the land is owned by the person, who has applied for permission and is not within 75 mtrs. of any recognised public school, 25 bedded hospital or civil or criminal court. It is not denied that the petitioner has applied for permission and on which the Addl. District Magistrate (Finance and Revenue) had directed the Sub Divisional Magistrate to submit his report vide his letter dated 6.1.2001. There appears to be some overwriting on letters '0' preceding '7' in the report of the Revenue Inspector, Kol and the officer, who forwarded the same to the Sub Divisional Magistrate. We have, however, on examining the record do not find that there is any overwriting on date 07/1/2001, put under signature of Sub Divisional Magistrate, Koal, who had forwarded the report to the Addl. District Magistrate (Finance & Revenue).
18. In the present case we find that question of overwriting on the date of the report of the Revenue Inspector is not relevant both on the ground that no such inspection is mandatory under Rule 3 or under the notification and further that the permission was granted by the District Magistrate on 8.1.2001. The order granting permission by the District Magistrate on 8.1.2001 is also singed by the Asstt. Entertainment Tax Commissioner, Aligarh and the Addl. District Magistrate. Both the Asstt. Entertainment Tax Commissioner and the District Magistrate have clearly put the date 8.1.2001 below their signatures. In the impugned order nothing has been said about date of the permission and as to how the permission could be granted by the District Magistrate on 8.1.2001, if the inspection of the site was made on 17.1.2001. In the enquiry findings was also recorded that there could be no explanation as to how the District Magistrate granted permission on 8.1.2001 on the report of the Sub Divisional Magistrate, if it was submitted on 17.1.2001. The State Government found everything in order except some overwriting, which did not require any explanation at all as the relevant order is the order of permission and not the order by which any inspection of the site was made by the revenue official.
19. In the impugned order passed by the District Magistrate he has nowhere explained as to how his predecessor could have given permission on 8.1.2001 on report submitted on 17.1.2001. Infact he has not questioned the permission given by his predecessor and the date of the permission at all. The entire case appears to have been based on the report of the Asstt. Entertainment Tax Commissioner against whom malafides have been alleged by the petitioner.
20. For the aforesaid reasons, we find that entire initiation of the proceedings against the petitioner was with malafide intentions for withdrawing exemption. The District Magistrate was falsely prompted by a manipulated report generated by the Asstt. Entertainment Tax Commissioner, Aligarh, who acted on his own in calling for report from the forensic laboratory on the questions prepared by him and the documents, which were sought to be examined. If the Asstt. Entertainment Tax Commissioner was concerned about the backdating of the document, he should also have sent the order of permission signed by his predecessor and the District Magistrate on 8.1.2001 for examination by the forensic laboratory. "
The said order was challenged by the State of U.P. by filing a Special leave Petition before the Hon'ble Supreme Court, which was dismissed by order dated 09.05.2014, quoted as under:-
"The Special Leave petition is dismissed on the ground of delay as well as on merits."
As per the above quoted portion of the rjudgment dated 08.07.2013, affirmed by the Hon'ble Apex Court, particularly paras 17 to 19 of the judgment dated 08.07.2013, the finding of overwriting recorded by the punishing authority in order dated 24.08.2012 affirmed by appellate authority in its order dated 14.01.2013, is unsustainable.
On the issue of procedural inquiry, we find from the record, particularly punishment order dated 24.08.2012 and 14.01.2013, passed by appellate authority that the report dated 07.09.2011 of Joint Committee and report dated 12.06.2012 of Deputy commissioner Entertainment Tax, Sri S.N. Singh Gautam which were obtained after submission of enquiry report dated 29.01.201, were considered and copies of the same were not provided to respondent No. 1 for seeking reply. The procedure adopted by thecompetent /disciplinary authority in taking the additional reports is not provided under the 1999 Rule. As per 1999 Rules the disciplinary authority after submission of enquiry report was required to proceed as per Rule 9 of 1999 Rules.
In view of the same, we hold that disciplinary authority failed to act as per the procedure prescribed under the 1999 rules and violated the principles of natural justice.
Taking into consideration the aforesaid facts including the fact that charges leveled on the respondent No. 1 and Cinema Onwers are broadly identical in nature, based on the report of Sri Amrit Pal Singh and finding recorded by us, we are of the view the order of Tribunal dated 11.02.2014 is not liable to be interfered and there should be an empty formality to remand the matter to the Punishing Authority to initiate the disciplinary proceedings against the respondent No. 1 from the stage where the irregularity has been committed.
In the case of Ashok Kumar Sonkar Vs. Union of India and others, 2007 (4) SCC 54, Hon'ble the Apex Court held as under:-
"28. A court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard. "
In the case of Fida Husain and others Vs. Moradabad Development Authority and another, 2011 (12) SCC 615, Hon'ble Apex Court held as under:-
"27) Having regard to the submissions urged on behalf of the appellants in so far as not considering the application for substitution of the L.Rs. of deceased appellants, we would have remitted the matter back to the High Court to give an opportunity to the appellants herein, who are the legal representatives of some of the deceased appellants to afford an opportunity of hearing and decide the appeals on merits. That, however, would only be a formality because having regard to the law laid down by this Court in Gafar's case, the High Court is bound to follow that decision, since the notification for acquiring the lands in respect of the villages are one and the same."
In the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise Guahati and others, 2015 (8) SCC 519, Hon'ble Apex Court held as under:-
"Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco (supra).
To recapitulate the events, the appellant was accorded certain benefits under Notification dated July 08, 1999. This Notification stands nullified by Section 154 of the Act of 2003, which has been given retrospective effect. The legal consequence of the aforesaid statutory provision is that the amount with which the appellant was benefitted under the aforesaid Notification becomes refundable. Even after the notice is issued, the appellant cannot take any plea to retain the said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco (supra). Likewise, even the officer who passed the order has no choice but to follow the dicta in R.C. Tobacco (supra). It is important to note that as far as quantification of the amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and we are of the firm opinion that the case stands covered by 'useless formality theory'.
In Escorts Farms Ltd. (Previously known as M/s Escorts Farms (Ramgarh) Ltd.) v. Commissioner, Kumaon Division, Nainital, U.P. & Ors. [24], this Court, while reiterating the position that rules of natural justice are to be followed for doing substantial justice, held that, at the same time, it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. It was so explained in the following terms:
"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India." Therefore, on the facts of this case, we are of the opinion that non- issuance of notice before sending communication dated June 23, 2003 has not resulted in any prejudice to the appellant and it may not be feasible to direct the respondents to take fresh action after issuing notice as that would be a mere formality."
Considering the aforesaid as well as the fact that respondent has already retired after attaining the age of superannuation on 30.09.2015 and all the post retiral dues has been paid to him including monthly pension regularly, we are of the view that it will be a futile exercise to remand the matter to the Punishing Authority to conduct a fresh inquiry form the stage where the irregularity has been committed during the course of inquiry.
For the forgoing reasons, we do not find any illegality or infirmity in the impugned order dated 11.02.2014.
In the result, writ petition, lacks merit and is dismissed.
(Saurabh Lavania, J.) (Anil Kumar, J.) Order Date :- 17-10-2019 Ravi/