Allahabad High Court
The U.P. State Agro Industrial ... vs Ranveer Singh on 12 April, 2022
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 19 of 2022 Appellant :- The U.P. State Agro Industrial Corporation Ltd. Thru. Its Managing Director And Others Respondent :- Ranveer Singh Counsel for Appellant :- Rajeeva Kumar Sinha Counsel for Respondent :- Aditya Tewari Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Subhash Vidyarthi,J. Order on C.M. Application No.1 of 2022:
Heard Mr. Rajeeva Kumar Sinha, learned counsel for the appellants and Mr. Aditya Tewari, learned counsel representing the sole respondent.
A delay of 251 days has been reported by the office in preferring this special appeal.
A feeble attempt has been made by the learned counsel representing the respondent to oppose the application seeking condonation of delay, however, on examination of the facts narrated in the affidavit filed in support of the said application, we find that delay has sufficiently been explained.
Accordingly, application is allowed and the delay in preferring the accompanying special appeal is hereby condoned.
Order on memo of special appeal:
This intra court appeal seeks to challenge the judgment and order dated 15.07.2019, passed by learned Single Judge in Writ Petition No.1762 (SS) of 1997, whereby the writ petition has been allowed and the order dismissing the respondent from services of the appellants, dated 9.1.1997 has been set aside.
At this juncture itself, we may note that under challenge before learned Single Judge was the order dated 9.1.1997, whereby the respondent was dismissed from service and certain amount was also ordered to be recovered from him.
Submission of learned counsel appearing for the appellants is that once the final closure report by the Investigating Agency was submitted after investigation of the first information report lodged by the respondent in relation to a theft, under Section 380 I.P.C., the burden shifted on the respondent to prove that actually loss of articles in the godown was on account of theft, which the respondent during the course of departmental enquiry failed to discharge. It has thus been argued that the aforesaid aspect of the matter has not been considered by learned Single Judge while passing the judgment and order under appeal, which vitiates the same.
Mr. Sinha has further argued that once the learned Single Judge found the departmental enquiry to be vitiated on account of non-observance of principles of natural justice, learned Single Judge ought to have permitted the appellants to initiate the disciplinary proceedings afresh from the stage it was found to be vitiated and by not providing for the same, learned Single Judge appears to have erred in law.
It has also been argued on behalf of the appellants that by ordering to confer all consequential service benefits upon the respondent, treating him to be in regular service throughout till the date of superannuation, is also not warranted in the facts of the case for the reason that the admittedly after the order of dismissal, the respondent did not discharge any duties or functions which dis-entitles him to seek back wages.
On the other hand, Mr. Aditya Tewari, learned counsel appearing on behalf of the respondent vehemently opposed the prayers made in this special appeal and has submitted that once the order of dismissal has been found to be vitiated on account of illegalities committed during the course of enquiry by the appellants and no irregularity or illegality has been pointed out on the part of the respondent, the order passed by learned Single Judge for payment of back wages and other consequential benefits for the period till he attained the age of superannuation does not call for any interference by this court. He has further stated that the order of dismissal was passed in the year 1997 and the respondent at the moment is aged about 69 years and considering the long lapse of time, it would be completely iniquitous to permit the appellant to conduct the enquiry afresh from the stage it has been found to be vitiated by the learned Single Judge.
We have given our thoughtful consideration to the rival submissions made by the learned counsel representing the parties and have also perused the records available before us on this special appeal.
When we examine the judgment and order dated 15.07.2019, passed by learned Single Judge, which is under appeal herein, what we find is that the learned Single Judge has given a categorical finding that no documentary or oral evidence was ever adduced during enquiry proceedings, rather only the reply submitted by the respondent was taken into consideration, although certain other documents have also been mentioned to have been taken into consideration by the enquiry officer, but such documents were not proved during the course of enquiry by adducing any evidence or witness. Learned Single Judge has also clearly returned a finding that the allegations in respect of Charge No.1 have been found to be established only on the basis of assumptions and surmises.
Learned Single Judge has thus concluded that the charges levelled against the respondent were not proved by adducing any evidence. Relying upon a Division Bench judgment in the case of Sunil Kumar Gupta Vs. State of U.P.; Writ Petition No.451 (SB) of 2014 the learned Single Judge has opined that the order impugned in the writ petition was completely against the proposition of law as enunciated by the Division Bench of this Court in the case of Sunil Kumar Gupta (supra).
Learned Single Judge has thus unambiguously found in the judgment under appeal, dated 15.07.2019 that not only the enquiry report but also the order of dismissal do not suggest that any witness was examined by the department or any officer/official was in attendance during the course of enquiry proceedings to prove the documents which have been relied upon to inflict the punishment of dismissal from service upon the respondent.
Learned counsel for the appellant has failed to establish that the aforesaid finding recorded by learned Single Judge is in any manner against the records available on the writ petition or against the records available in the departmental proceedings. We, thus, are in complete agreement with the findings recorded by learned Single Judge in respect of the departmental proceedings and the consequential dismissal order having been found to be vitiated and bad in law.
However, two questions remains to be considered and decided. Firstly as to whether in the facts of the case it ought to have been left open to the appellants to conduct the enquiry afresh from the stage it was found vitiated and, secondly, as to whether the respondent in the facts of the case was entitled to be given all consequential benefits, including the one related to the payment of back wages.
So far as the first issue is concerned, what we noticed is that the dismissal order in this case was passed in the year 1997. The respondent immediately after passing of the dismissal order challenged the same by way of filing writ petition, which has now been decided in the year 2019. The respondent during this period has attained the age of superannuation in the year 2013 and is now aged about 69 years. In these circumstances permitting the appellants to conduct the enquiry afresh having regard to the age of respondent and also considering the fact that he has already attained the age of superannuation way back in the year 2013, in our considered opinion, would not be proper and equitous. Thus, such prayer of learned counsel for the appellants in this regard is rejected.
However, in respect of payment of back wages, what we notice is that though the dismissal order has been set aside and as a normal consequence of dismissal order having been set aside the respondent ought to have been entitled to all the back wages throughout his service period right from the date of dismissal till he attained the age of superannuation in the year 2013, it is also to be noted that during this entire period respondent has not worked or discharged his duties. Though the principle of "no work no pay" in the facts of the case will have no application, however, we at the same time cannot ignore the fact that the respondent during this period has not discharged any duties. In such a situation, we find it appropriate to modify the judgment and order dated 15.07.2019 passed by learned Single Judge by providing that the respondent shall be entitled to be paid 40 % of the back wages for the period commencing from the date of his dismissal till he attained the age of superannuation in the year 2013.
If the respondent is entitled to any other consequential benefits other than the back wages, this order shall not affect any such entitlement of the respondent and he shall be given such benefits in terms of the judgment and order dated 15.07.2019, passed by learned Singe Judge.
The special appeal is thus disposed of and the order dated 15.07.2019, passed by learned Single Judge is modified to the aforesaid extent.
There will be no order as to costs.
.
(Subhash Vidyarthi, J.) (Devendra Kumar Upadhyaya, J.) Order Date :- 12.4.2022 Ram.