Allahabad High Court
State Of U.P. Thru. Addl.Chief Secy. ... vs Krishna Gopal And Anr. on 24 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:56332-DB A.F.R. RESERVED Court No. - 1 Case :- WRIT - A No. - 19467 of 2021 Petitioner :- State Of U.P. Thru. Addl.Chief Secy. Home Lko. And Ors. Respondent :- Krishna Gopal And Anr. Counsel for Petitioner :- C.S.C. Counsel for Respondent :- Shikhar Anand,Karunanidhi Yadav,Raj Bahadur Singh Yadav Hon'ble Attau Rahman Masoodi,J.
Hon'ble Om Prakash Shukla,J.
(Per Om Prakash Shukla, J.) A. INTRODUCTION (1) This writ petition has been filed by the State authorities, questioning the judgment and order dated 09.03.2021 passed by the State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal"), whereby Claim Petition No. 701 of 2018 preferred by the claimant/respondent no.1 was allowed by quashing the order of dismissal dated 21.09.2001 as well as appellate order dated 21.03.2018 and further the learned Tribunal directed the petitioners/State authorities to grant the following relief to the respondent No.1:-
I. the claimant/respondent no.1 shall be reinstated in service with immediate effect;
II. since claimant/respondent no.1, in para-6 of his explanation, had mentioned that he got medical treatment from Government Hospital w.e.f. 12.09.2000 to 19.09.2000, therefore, the competent authority, on the basis of medical documents furnished by the claimant/respondent no.1, shall pass speaking and reasoned order in case medical leave for the aforesaid period shall be granted to claimant/respondent no.1;
III. the claimant/respondent no.1 has not worked w.e.f. 22.11.2000 to 20.09.2001 and w.e.f. 21.09.2001 till 09.03.2021 (the date when the Tribunal passed the order), therefore, the claimant/respondent no.1 would not be entitled to get salary and allowances for the aforesaid period on the principle of 'No Work No Pay', however, the aforesaid period shall be reckoned as regular services of the claimant/respondent No.1 for the purposes of pension only; and IV. the whole direction shall be complied with within three months from the date of receipt of a certified copy of this order"
B. FACTUAL MATRIX (2) The records of the present writ reveal that the respondent no.1-Krishna Gopal, while posted as Lansk Nayak (Constable No. 53557) in 'B' Company, 45th Battalion, P.A.C., Aligarh, unauthorizedly absented himself from 12.09.2000 at 20 hours to 19.09.2000 at 11:30 hours. As he was absent from duties for 7 days 11 hours and 30 minutes without permission. Further on 19.11.2000, he was granted leave for two days, however, even after expiry of leave of two days, he did not report back for duties. Thus, a preliminary inquiry was instituted against him, wherein the Assistant Commandant-II, 45th Battalion P.A.C., Aligarh, after conducting the preliminary enquiry, recommended for initiating regular disciplinary proceedings under Rule 14 (1) of the Uttar Pradesh Police Officers of Sub-ordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 'Rules, 1991') against the respondent no.1 vide report dated 01.04.2001. Thereafter, final disciplinary proceedings against the respondent no.1 was instituted and the Deputy Commandant, 45th Battalion, P.A.C., Aligarh was assigned the duty to conduct the disciplinary proceedings in the matter against the respondent no.1.
(3) Resultantly, a charge-sheet dated 05.07.2001 was issued to the respondent No.1, levelling charges of his unauthorized absence from duty during the period from (i) 12.09.2000 to 19.09.2000 and (ii) with effect from 22.11.2019 to onward.
(4) According to the petitioners, when special messenger went to serve the aforesaid charge-sheet to respondent no.1, he was not found in his house and his father refused to receive the same and as such, on 07.07.2001, the aforesaid charge-sheet was pasted outside the house of the respondent no.1 in the presence of two witnesses, namely, Shiv Ram Singh and Kailash Babu. Thereafter, the aforesaid charge-sheet dated 05.07.2001 was also sent through registered post on 10.07.2001 but even then, the respondent no.1 had neither reported to the Enquiry Officer nor submitted any his reply to the charge-sheet dated 05.07.2001. In this background, the Enquiry Officer had proceeded ex parte against the respondent no.1. Thereafter, the Enquiry Officer, after adopting due process, conducted the enquiry and submitted its report dated 18.08.2001 to the Disciplinary Authority, recommending that (i) the respondent no.1 shall not be paid salary for the period of unauthorized absent i.e. w.e.f. 12.09.2000 to 19.09.2000 and w.e.f. 22.11.2000 to onward on the principle of 'No Work No Pay'; and (ii) the respondent no.1 be dismissed from service.
(5) The Disciplinary Authority, on receipt of the enquiry report dated 18.08.2001, issued a show cause notice dated 24.08.2001 to the respondent no.1 enclosing a copy of the enquiry report. The respondent no. 1 had allegedly come forward this time and tendered his reply dated 31.08.2001 to the show cause notice dated 24.08.2001, stating therein that he was under medical treatment w.e.f. 12.09.2000 to 19.09.2000 at Government Hospital, Etawah and medical certificate in this regard was annexed with the reply to show cause notice; and for the period w.e.f. 22.11.2000 to onward, he was staying in residence of Zamanatgir, namely, Mr. Prashuram Ojha and Mr. Ramashankar Yadav situated in village and post Karri, P.S. Chaubiya, District Etawah under protection of Article 496/497 of the Police Regulation.
(6) The Disciplinary Authority did not accept the explanation of the respondent no.1 and held the respondent guilty and imposed a punishment of dismissal vide order dated 21.09.2001, against which, the respondent no.1 preferred an appeal, which was however rejected vide order dated 23.05.2002 on the ground that his appeal was barred by limitation. Thereafter, the respondent no.1 preferred revision, which was also rejected vide order dated 17.10.2002.
(7) Feeling aggrieved by the aforesaid order of dismissal dated 21.09.2001, appellate order dated 23.05.2002 and revision order dated 17.10.2002, the respondent no.1 preferred Claim Petition No. 793 of 2015 before the Tribunal. The learned Tribunal, vide order dated 24.11.2017, allowed the claim petition partly; quashed the appellate order dated 23.05.2002 as well as revision order dated 17.10.2002; and further directed the appellate authority to decide the appeal afresh on merit by a speaking and reasoned order within three months from the date of receipt of a certified copy of the order and the decision so taken should be communicated to the respondent no.1 immediately.
(8) In compliance of the aforesaid judgment and order dated 24.11.2017, the appellate authority considered the appeal of the respondent no.1 afresh and dismissed the same vide order dated 21.03.2018, which was served upon the respondent no.1 on 27.03.2018.
(9) Dissatisfied with the appellate order dated 21.03.2018, the respondent no.1 preferred Claim Petition No. 701 of 2018 before the Tribunal. The learned Tribunal, noting the facts and circumstances of the case and also placing reliance upon the decisions of the Apex Court in Raj Kumar Mehrotra Vs. Government of Bihar and others : 2006 SCC (L&S) 679, Union of India Vs. Mohan Lal Kapoor : (1973) 2 SCC 836, Kranti Association (P) Ltd. Vs. Masood Ahmad Khan and others : (2010) 9 SCC 510, G. Valli Kumar Vs. Andhra Education Society : 2010 (2) SCC 947, Ram Chandra Vs. Union of India and others : 1986 (53) F.L.R. 1991 (SC), Krishna Kant B. Parmar Vs. Union of India and others : (2012) 3 SCC 178, D.K. Yadav Vs. J.M.A. Industries Ltd. : 1993 (3) SCC 259, Depot Manager, A.P.S.R.T.C. and another Vs. Surendra : 2008 AIR SCW 5446, allowed the claim petition; quashed the order of dismissal dated 21.09.2001 and appellate order dated 21.03.2018; and a slew of direction as stated hereinabove in paragraph-1 was also issued by the Tribunal. It is this order dated 09.03.2021, which has been challenged in the instant writ petition.
C. SUBMISSIONS (10) Heard learned Standing Counsel representing the petitioners/ State and Shri Karunanidhi Yadav, learned Counsel representing the respondent no.1/claimant.
(11) Assailing the impugned judgment/order dated 09.03.2021 passed by the learned Tribunal, learned Standing Counsel representing the petitioners/State has submitted that the learned Tribunal, while passing the impugned order, has erred in arriving to the conclusion that the claimant/respondent no.1 was not afforded an opportunity of hearing in the enquiry proceedings and the enquiry officer had submitted an ex parte report. According to the Ld. Standing counsel, the claimant/respondent no.1 himself had refused to endorse acknowledgment on the letter/notice on 25.07.2001 and as such the charge-sheet was duly served upon him by pasting of the same on his front doors of his permanent residences. According to him, despite service of the charge-sheet by pasting the same in the presence of two witnesses through special messenger at the main door of the permanent residence of the claimant/respondent no.1, he did not deliberately participate in the enquiry proceedings nor he turned up to attend his duties nor even informed the reason behind his unauthorized absence to the authorities. He submits that since the respondent no.1 deliberately absented himself from his duties and he did not participate in the enquiry, therefore, having no other option left, the Disciplinary Authority has rightly passed the order of dismissal dated 21.09.2001 in accordance with law and there is no infirmity or illegality in the order of dismissal.
(12) Learned Standing Counsel representing the petitioners has further submitted that the learned Tribunal has erred in appreciating the statement of the claimant/respondent no.1 made in paras 6 and 7 of his reply to the show cause notice that he was under treatment of Dr. M. Singhal in the District Hospital, Etawa during the period 13.09.2000 to 17.09.2000 i.e. for five days. According to him, the story of medical treatment is an afterthought and the learned Tribunal has failed to appreciate the fact that there is nothing on record to substantiate the said claim of the claimant/respondent no.1. According to the Ld. Standing counsel, his contention is further fortified by the fact that the respondent No.1 has himself not able to justify his unauthorized absence since 22.11.2000 till the passing of the order of dismissal dated 21.09.2001.
(13) Elaborating his submissions further, the learned Standing Counsel representing the petitioners has drawn our attention to the judgment and order dated 24.11.2017 passed by the learned Tribunal in Claim Petition No. 793 of 2015 filed by the respondent no.1 earlier and has submitted that the learned Tribunal, while passing the order dated 24.11.2017, did not interfere with the order of punishment/dismissal dated 21.09.2021 nor quashed the same and merely the claim petition preferred by the petitioner was partly allowed by quashing the appellate order as it was passed only on the ground of limitation and not on merit and as such, the learned Tribunal directed the appellate authority to pass the order on merit. Therefore, it was not proper for the learned Tribunal while passing the impugned judgment and order dated 09.03.2021 to revisit its earlier judgment and order dated 24.11.2017 by quashing the order of dismissal dated 21.09.2021.
(14) Learned Standing Counsel has also drawn our attention to the conduct of the respondent no.1 and has submitted that earlier in connection with a maar-peet committed by the respondent no.1 with a Constable driver at Post Atrauli, District Aligarh, respondent no.1 was placed under suspension and an inquiry was initiated against him and after due inquiry, punishment order dated 29.08.2000 was also passed against the respondent no.1, imposing punishment equivalent to 30 days salary along with leave without pay for 9 days on account of the fact that he remained unauthorized absent for the period 01.07.2000 to 09.07.2000. On 14.07.2000, the claimant/respondent no.1 was again suspended by the Commandant, 45th Battalion, P.A.C., Aligarh in respect of Case Crime No. 6224420000216, under Section 6 (Kha) of the P.A.C. Act registered at Police Station Tappal, District Aligarh, which is still pending in the Court of Additional District Judge, Room No. 19, District Aligarh. According to the Ld. Standing Counsel, the respondent No.1 is a habitual absentee and has engaged himself in activities unbecoming of a person in uniform and therefore, the conduct of the respondent no.1 is not fit to be in the disciplined force like Provincial Armed Constabulary (P.A.C.).
(15) Placing reliance upon the judgment of the Apex Court in Managing Director, ECIL versus B. Karunakaran : 1994 SCC Suppl (2) 391 and State of U.P. and another Vs. Manmohan Nath Sinha and another : (2010) 8 SCC 310, learned Standing Counsel has submitted that the punishment order is detailed, well-reasoned and specific and as such, it does not suffer from any infirmity and even if the learned Tribunal noticed some technical defects in the enquiry report, it could have very well remanded the matter to the disciplinary authority with liberty to proceed from the stage the defects has been noticed by it. However, according to him , the learned Tribunal, while allowing the claim petition, has erred in not remanding the matter to the disciplinary authority from the stage the defects has been noticed by it. Therefore, the impugned judgment and order passed by the learned Tribunal is liable to be set-aside.
(16) Per contra, learned Counsel representing the respondent no.1 has opposed the aforesaid submissions of the learned State Counsel and has submitted that the charge sheet was not personally served to the claimant/respondent no.1, therefore, the learned Tribunal had rightly given a finding that the order of punishment has been passed in utter violation of principle of natural justice.
(17) Learned Counsel for the respondent no.1 has further submitted that the allegation of absent w.e.f. 12.09.2000 to 19.09.2000 and again since 21.11.2000 onward was not willful but is bona fide, therefore, it does not qualify to be termed as a misconduct. To substantiate this submission, learned Counsel has submitted that for the period 12.09.2000 to 19.09.2000, a medical certificate of Government Hospital Etawah was submitted to the Commandant, 45th Battalion, P.A.C., Etawah where he was posted and the same was also in his official record. So far as absent for the period of 22.11.2000 onward, respondent no.1 was staying in residence of Zamanatgir Parashuram Ojha and Ramashankar Yadav of village and post Karri, Police Station Chaubiya, District Etawah under Para 496 and 497 of the Police Regulation vide letter of the respondent no.1 dated 26.11.2000, letter of Commandant, 45th Battalion, PAC, Etawah dated 20.12.2000, letter of Zamanatgir dated 10.01.2001 and letter of Commandant dated 20.06.2001 contained in Annexures No. 10 to 14, respectively, to the claim petition. Thus, it has been submitted that, since disciplinary authority has failed to examine the aforesaid facts while conducting the departmental enquiry even though the aforesaid facts have been mentioned by the respondent no.1 in paras 6-7 of his reply to the show cause notice, the whole disciplinary proceeding was vitiated. Moreso, the disciplinary authority has failed to prove that the absence of the respondent no.1 is willful, hence the absence of the respondent no.1 for the aforesaid period cannot be said to be misconduct. In support of this submission, he has placed reliance upon the judgment of the Apex Court in Karushnakant B. Parmar Vs. Union of India and another: (2012) 3 SCC 178.
(18) Learned Counsel for the respondent no.1 has further submitted that the Enquiry Officer, in its ex parte report dated 18.08.2001, has recommended the disciplinary authority for dismissal of the respondent no.1 from service and also stopping the salary for the period of absent from duty on the principle of 'No Work No Pay'. Learned Counsel has drawn our attention to the decision of the Apex Court in State of Uttaranchal Vs. Kharak Singh : (2008) 8 SCC 236 and has argued that the Enquiry Officer cannot make recommendation for imposing of a particular punishment as it is for the punishing/disciplinary authority to impose appropriate punishment and the Enquiry Officer has no role in awarding punishment as it is merely a recommending authority. Therefore, according to the learned Counsel for the respondent No.1, the very recommendation of the proposed punishment by the Enquiry Officer is contrary to law. The learned Tribunal, after going through the record, has rightly observed that the punishment order dated 21.09.2001 has been passed to the respondent no.1 on the basis of the recommendation of the enquiry officer and while passing the punishment order dated 2109.2021, the disciplinary authority had not applied its mind.
(19) Learned Counsel for the respondent no.1 has next submitted that the respondent no.1 was dismissed from service vide punishment order dated 21.09.2001 merely because of his absence from duty w.e.f. 12.09.2001 to 19.09.2001 i.e. 7 days 11 hours and 30 minute and w.e.f. 22.11.2000 onward on placing reliance upon the recommendation of the Enquiry Officer. Thus, the punishment of dismissal dated 21.09.2001 for the aforesaid period is too excessive and cannot be said to be proportionate to the charges levelled against the respondent no.1. In support of his submission, he relied upon the judgment of the Apex Court in Chairman-cum-Managing Director, Coal India Limited and another Vs. Mukul Kumar Choudhuri and others : (2009) 15 SCC 620.
(20) Placing reliance upon the decision of the Apex Court in Nirmala J. Jhala Vs. State of Gujarat : (2013) 4 SCC 301, learned Counsel for the petitioner has submitted that in Nirmala J. Jhala (Supra), the Apex Court has held that evidence recorded in preliminary enquiry cannot be used in regular enquiry as delinquent is not associated with it and opportunity to cross-examine persons examined in preliminary enquiry is not given, therefore, using such evidence violates principles of natural justice. He submits that in the instant case, preliminary enquiry officer and witness no.8 of the final enquiry is the same person and in the final enquiry, opportunity to cross-examine witness no.8/preliminary enquiry officer was not provided to the respondent no.1, therefore, the Enquiry Officer's report, finding the guilt of the respondent no.1 on placing reliance upon the witness no.8/preliminary enquiry, violates the principle of natural justice.
(21) It is, thus, submission of the respondent no.1 that the learned Tribunal has rightly allowed the claim petition preferred by the respondent no.1 vide impugned order.
D. ANALYSIS AND FINDING (22) Having regard to the rival submissions advanced by the parties and going through the record available before this Court in the instant writ petition, it is required to be noted that the learned Tribunal has quashed the order of punishment/dismissal passed by the Disciplinary Authority on the ground that the same was in breach of principles of natural justice, inasmuch as, the respondent no.1 was not afforded personal hearing during the course of preliminary enquiry; charge-sheet was not properly served upon the respondent no.1; enquiry officer had submitted its enquiry report ex parte; enquiry officer submitted its report on merely placing reliance upon the recommendation of the preliminary enquiry officer; the preliminary enquiry officer was made as witness in the final enquiry; the enquiry officer while submitting its report, had not made its recommendation separately in terms of Appendix-I to the Rules, 1991; the Disciplinary Authority had passed the order of punishment merely placing reliance on the recommendation of the enquiry officer and did not consider the reply of the respondent no.1 furnished by him to the show cause notice.
(23) It is to be noted that the respondent no.1/delinquent was facing the departmental inquiry with respect to a charge of unauthorized absence from duty. Therefore, the learned Tribunal ought to have remitted the matter back to the Disciplinary Authority to conduct the inquiry from the point that it stood vitiated.
(24) The Apex Court in the case of State of Uttar Pradesh and Ors. Vs. Rajit Singh : 2022 SCC Online SC 341, while considering its earlier decision in the case of Chairman, Life Insurance Corporation of India and Ors. Vs. A. Masilamani, (2013) 6 SCC 530, has held in paragraph-15 as under :-
"15. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the 5 delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/ Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India v. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:--
"16. 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 case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30])."
(emphasis supplied) D. CONCLUSION (25) Applying the law laid down by the Apex Court in the aforesaid decisions to the facts of the case on hand, we are of the firm view that as the order of dismissal has been quashed by the Tribunal on the ground that the same was in breach of principles of natural justice apart from other defects in the enquiry proceedings, the Tribunal ought to have remitted the case concerned to the Disciplinary Authority to conduct the inquiry from the point that it stood vitiated and to conclude the same after furnishing the charge-sheet to the delinquent employee and to give opportunity to the delinquent to submit his comments on the charge-sheet.
(26) In view of the above and for the reasons stated above, present writ petition is allowed partly. The impugned judgment and order dated 09.03.2021 passed by the learned Tribunal, punishment order dated 21.09.2001 passed by the Disciplinary Authority as well as the Appellate Order dated 21.03.2018 are hereby quashed and set-aside. However, as the enquiry is found to be vitiated and is found to be in violation of the principles of natural justice in as much as it is alleged that apart from other defects in the enquiry, charge-sheet was not served upon the respondent no.1/delinquent employee and no opportunity to defend himself by the Enquiry Officer was afforded by the Enquiry Officer, we remand the matter to the Disciplinary Authority to conduct a fresh enquiry from the stage it stood vitiated, i.e., serve charge-sheet to the respondent no.1 and to proceed further with the enquiry after furnishing all the necessary documents mentioned in the charge sheet and after following due principles of natural justice. Since, the issue relates to the year 2000, the aforesaid exercise shall be completed expeditiously, preferably within a period of six months from today.
(Om Prakash Shukla, J.) (Attau Rahman Masoodi, J.)
Order Date :- 24th August, 2023
Ajit/-