Allahabad High Court
State Of U.P. Thru. Prin. Secy. Deptt. Of ... vs Harikesh Mani Tripathi on 20 December, 2022
Bench: Devendra Kumar Upadhyaya, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 309 of 2022 Appellant :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And 3 Others Respondent :- Harikesh Mani Tripathi Counsel for Appellant :- C.S.C. Counsel for Respondent :- Ramesh Kumar Srivastava Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Lavania,J.
Order on C.M.Application No.1 of 2022 (Application for Condonation of Delay).
Having regard the facts stated in the affidavit filed in support of the application seeking condonation of delay, we are satisfied that delay in filing the appeal has sufficiently been explained.
Accordingly, the application is allowed. The delay in filing the appeal is hereby condoned.
Order on Appeal.
By means of this special appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952, the appellants have challenged the order dated 05.09.2022 passed by the Writ Court in Writ- A No. 19922 of 2017 (Harikesh Mani Tripathi vs. State of U.P. & Others).
The brief facts of the case, which are required for disposal of this appeal, are that the petitioner-respondent/Harikesh Mani Tripathi was posted as Constable in PAC, 35th Battalion and he remained absent from duty w.e.f. 18.07.2003 to 25.09.2003 i.e. for about 69 days without their being any sanctioned leave in this regard, for which, he was charge sheeted on 29.08.2003 with the allegation that he had committed misconduct on account of absence without sanctioned leave. The charge-sheet was issued under Rule 14(1) of Uttar Pradesh Police Officials of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the "Rules of 1991").
The Inquiry Officer, appointed to hold the inquiry under Rule 14 of the Rules 1991, submitted his report on 13.01.2004 before the Disciplinary Authority with recommendation to award the punishment of removal from service. However, the Disciplinary Authority remanded the matter to the Inquiry Officer to conduct the inquiry afresh. Accordingly, a fresh inquiry report was submitted by the Inquiry Officer on 03.07.2004 thereby he recommended petitioner-respondent's dismissal from service. Thereafter, the petitioner-respondent was dismissed from service by means of order dated 26.08.2004 passed by the respondent No.4/Commandant, 35th Battalion, PAC, Lucknow. The petitioner-respondent preferred the departmental appeal on 21.02.2005 before the respondent No.2-Inspector General of Police, PAC, which was dismissed by means of the order dated 18.07.2005 on the ground of limitation.
Being aggrieved by the aforesaid orders, the petitioner-respondent filed a Claim Petition No. 365 of 2009, which was allowed vide order dated 03.03.2015 and the order of dismissal as also the order rejecting the appeal were set aside. The operative portion of the same on reproduction reads as under:-
"The Claim Petition succeeds. The impugned orders dated 28.08.2004 (anx no-1) appellate order dated 18.07.2005 (anx no-2) revisional order dated 19.11.2005 (anx no-3) and order dated 09.05.2008 (anx no-4) are quashed. The opp. parties are directed to reinstate the petitioner in suspension for the purposes of reinquiry only and re-inquiry be initiated from the stage of issuance of show cause notice according to law and to be completed within three months from the date of receipt of copy of this judgment/order. The petitioner shall be under obligation to co-operate in the inquiry any time consumed by the petitioner shall be extended from the period prescribed by this tribunal the consequential service benefits and back wages shall be decided by the appointing authority according to final outcome of the inquiry."
Pursuant to the order of Tribunal dated 03.03.2015, a show cause notice was issued to the petitioner-respondent on 23.07.2015 requiring him to furnish explanation as to why he should not be reduced to lowest of the pay scale for a period of three years. To the said show cause notice, the petitioner-respondent submitted his reply indicating therein that he remained absent on account of serious illness and requested not to pass any order of punishment against him. Thereafter, the Appointing Authority/ respondent No.4 awarded the punishment of reduction to the lowest pay scale for three years on 06.08.2015.
Being aggrieved by the order dated 06.08.2015, the petitioner-respondent preferred an appeal, which was partly allowed vide order dated 28.10.2016 by the respondent No.3/Deputy Inspector General of Police, PAC, Lucknow thereby reducing the punishment with placing the petitioner-respondent to the lowest of pay scale for one year. Thereafter, the petitioner-respondent filed the revision against the appellate order dated 28.10.2016, which was rejected on 15.07.2017.
Challenging the orders dated 28.10.2016, 04.11.2016, 01.07.2017 and 15.07.2017, Writ- A No. 19922 of 2017 was filed before this Court with the prayer that the respondents be directed to pay the salary and allowances to the petitioner-respondent alongwith admissible interest thereon. Before the Writ Court, counter affidavit was filed.
The Writ Court, after considering the submissions of the learned counsel for the parties and taking note of the pleadings on record including the facts related to petitioner-respondent's absence from duty w.e.f. 18.07.2003 to 25.09.2003 i.e. for about 69 days' as also the judgment of the Hon'ble Apex Court passed in the case of Chennai Metropolitant water supply and sewerage baord and otehrs Vs. T.T. Murali Babu, 2014 (4) SCC 108, wherein, the Hon'ble Apex Court observed that for awarding punishment on the ground of unauthorized absence from duty, the Disciplinary Authority is required/under obligation to prove that the absence was willful and in absence of such a finding, the absence will not amount to mis-conduct as also the principles pertaining to holding the regular inquiry, interfered in the orders impugned and directed the State authorities-Appellants herein to treat the period during which the petitioner-respondent was absent from duty for grant of all service benefits with a further direction to the effect that the petitioner-respondent shall be entitled to receive the back wages during the period he was terminated till he was reinstated.
It would be apt to note here that the Writ Court was cautious enough regarding the principles settled in relation to interference in the order of punishment on account of procedural irregularity and after considering the facts of the case, this Court did not permit the State authorities-Appellants to pass the order afresh after holding re-enquiry. In this regard, relevant observations of the Writ Court are available in paragraph 33 of the judgment under appeal, which on reproduction reads as under:-
"33. Ordinarily this Court would have again remanded the matter back to the disciplinary authority to pass a fresh order considering the fact that the defense of the petitioner was rejected without giving any reasons and also that the order denying back wages is in fact in order of punishment which could not have been passed in the manner, it has been passed, but looking into the fact that the matter pertains to 2003 and it has already been remanded twice, once by the disciplinary authority himself and secondly by the U.P. Public services tribunal, and all the facts are on record, and considering the entire factual matrix this Court is of the considered view that the order of punishment is patently illegal and arbitrary and accordingly quashed. Considering the duration of time for a Period of nearly 12 years the petitioner was out of service from the date of his dismissal to the date of his reinstatement and since then he is fighting for vindication of his rights and considering that the order of punishment is being set aside on merits as well as being arbitrary, equities would be balanced by providing that the petitioner would entitled to full back wages from the date of termination till his reinstatement and the period he was on leave is also directed to be regularised as spent on duty for all service benefits."
While pressing the present appeal, Sri Ranvijay Singh, learned Additional Chief Standing Counsel appearing for State authorities-appellants stated that the Writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India ought not to have interfered in the findings of fact recorded by the Inquiry Officer and duly considered by the Disciplinary Authority and thereafter by the Appellate Authority and subsequently by the Revisional Authority and in doing so, it erred in law.
Further submission is that the petitioner-respondent is a member of Police Force and his absence from duty for about 70 days, that too, without there being any permission or leave in this regard, is a mis-conduct and the authorities of the State took a lenient view in awarding the punishment of reducing the petitioner-respondent to the minimum of pay scale for the period of one year.
It is also argued that if the Writ Court was of the view that the disciplinary proceedings were not conducted as per the procedure prescribed and the law settled on the issue of holding a regular inquiry, the Writ Court ought to have remanded the matter back to the Disciplinary Authority to hold the inquiry afresh and pass an appropriate order in accordance with law. In these circumstances, interference is required in the judgment, under appeal, dated 05.09.2022.
Per contra, Sri Ramesh Kumar Srivastava, learned counsel for the petitioner-respondent stated that the order of the Writ Court dated 05.09.2022 is not liable to be interfered with by this Court in this Intra-Court Appeal.
Further submission is that the Claim Petition No. 365 of 2009 of the petitioner-respondent was filed against the order of punishment dated 28.08.2004, 18.07.2005 and 19.11.2005, which was allowed with liberty to State authorities-appellants to initiate the proceedings from the stage of issuance of show cause notice in accordance with law. In compliance of the order of the Tribunal dated 03.03.2015, a show cause notice was issued, to which, the petitioner-respondent submitted his reply thereby specifically stating that he was absent from duty on account of serious illness w.e.f. 18.07.2003 to 25.09.2003 for a total of 69 days. He stated that he had gone to his hometown in Siddharthnagar Gram Karea where he fell ill and was diagnosed with jaundice. During his illness, he was under treatment in District Hospital, Khalilabad, Sant Kabir Nagar and the medical certificate dated 19.09.2003 was issued by the Medical Officer, PHC Khalilabad, Sant Kabir Nagar, whereby, it was certified that the petitioner-respondent was advised rest w.e.f. 18.07.2003 to 19.09.2003 and he was medically fit to resume his duties from 20.09.2003.
He submitted that the facts related to petitioner-respondent's absence on account of illness were not considered by any of the authorities while passing the orders in true perspective, though, as per the law settled on the issue, the authority concerned ought to have considered the facts indicated in the reply and thereafter should have passed a reasoned order for the reason that from the said order the concerned authority or Court shall ascertain that the same was passed after due application of mind. It is also a settled principle of law that the reasons for conclusions are necessary.
Further submission is that during a regular inquiry under Rule 14(1) of the Rules of 1991, proper opportunity, as required, was not provided. In this regard, findings recorded by the Writ Court in paragraph 16 of the impugned order dated 03.05.2022 that "a perusal of the detailed impugned order of punishment dated 08.09.2015 would indicate that no date, time and place was fixed for the said inquiry" needs to be noticed.
On the aforesaid aspects of the case, it is apt to refer the judgment dated 28.11.2018 passed in Writ Petition No. 34093 (S/B) of 2018 (State of U.P. v. Deepak Kumar) wherein, a Division Bench of this Court observed as under:-
"It is settled by the catena of judgments that it is the duty of Enquiry Officer to hold ''Regular Enquiry'. Regular enquiry means that after reply to the charge-sheet the Enquiry Officer must record oral evidence with an opportunity to the delinquent employee to cross-examine the witnesses and thereafter opportunity should be given to the delinquent employee to adduce his evidence in defence. The opportunity of personal hearing should also be given/awarded to the delinquent employee. Even if the charged employee does not participate/co-operate in the enquiry, it shall be incumbent upon the Enquiry Officer to proceed ex-parte by recording oral evidence. For regular enquiry, it is incumbent upon the Enquiry Officer to fix date, time and place for examination and cross-examination of witnesses for the purposes of proving of charges and documents, relied upon and opportunity to delinquent employee should also be given to produce his witness by fixing date, time and place. After completion of enquiry the Enquiry Officer is required to submit its report, stating therein all the relevant facts, evidence and statement of findings on each charge and reasons thereof, and thereafter, prior to imposing any punishment, the copy of the report should be provided to charged officer for the purposes of submission of his reply on the same. The punishment order should be reasoned and speaking and must be passed after considering entire material on record. (vide: Jagdish Prasad Vs. State of U.P. 1990 (8) LCD 486; Avatar Singh Vs. State of U.P. 1998 (16) LCD 199; Town Area Committee, Jalalabad Vs. Jagdish Prasad 1979 Vol. I SCC 60; Managing Director, U.P. Welfare Housing Corporation Vs. Vijay Narain Bajpai 1980 Vol. 3 SCC 459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651; Chandrama Tewari Vs. Union of India and others AIR 1998 SC 117; Anil Kumar Vs. Presiding Officer and others AIR 1985 SC 1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories 2003 (21) LCD 610; Roop Singh Negi Vs. Punjab National Bank and others (2009) 2 SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015 (33) LCD 836; Moti Ram Vs. State of U.P. and others 2013 (31) LCD 1319; Kaptan Singh Vs. State of U.P. and others 2014 (4) ALJ 440."
Regarding recording of reasons by the authority concerned in its order, this Court in the judgment dated 13.03.2019 passed in Special Appeal No. 175 of 2005 (C/M Distt Cooperative Bank Ltd v. U.P. Cooperative Institutinal Service Board And Anors) observed as under:-
"As per settled principle, the reasons should be recorded in the order having civil consequence.
The recording of reasons are necessary. It is well known that "conclusions" and "reasons" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion.
In Breen Vs. Amalgamated Engg. Union, reported in 1971(1) AIIER 1148, it was held that the giving of reasons is one of the fundamentals of good administration.
In Alexander Machinery (Dudley) Ltd.Vs. Crabtress, reported in 1974(4) IRC 120 (NIRC) it was observed that "failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at.
In Union of India Vs. Mohan Lal Kapoor (1973) 2 SCC 836, as under:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached."
The Apex Court in the case of Uma Charan Vs. State of Madhya Pradesh & Anr. AIR 1981 SC 1915 said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable."
The Hon'ble Supreme Court of India in the case of S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, has explained that reasons are necessary links between the facts and the findings recorded in the administrative orders, which visit a party with evil civil consequences. In absence of reasons such an order cannot be permitted to stand.
The Hon'ble Supreme Court of India in the case of Raj Kishore Jha v. State of Bihar and others, (2003) 11 SCC 519, has held that reasons are the heartbeat of every conclusion and without the same, it becomes lifeless.
In Mc Dermott International Inc. Vs. Burn Standard Co. Ltd. & Ors. (2006) 11 SCC 181 Apex Court referring to Bachawat's Law of Arbitration and Conciliation, 4th Edn., pp. 855-56 in para 56 said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions..."
The Apex Court in Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. (2010) 9 SCC 496 referring to the judgment in Mohan Lal Capoor (supra) in para 23 said:
"Such reasons must disclose how mind was applied to the subject-matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two."
The Apex Court also in Competition Commission of India Vs. Steel Authority of India Ltd. & Anr. JT 2010 (10) SC 26 in para 68 referring to the judgment in the case of Gurdial Singh Fijji (supra) said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision."
Considered the submissions advanced by the learned counsels for the parties and perused the records.
It is to be noted that there is no indication in the orders passed by the authorities that the absence of the petitioner-respondent was willful, which, as per the judgment of the Hon'ble Apex Court in the case of Chennai Metropolitant (supra) is required to be observed by the Disciplinary Authority.
It is also noticeable that the order of punishment and other orders before the Writ Court were in fact were unsustainable in law, as in the instant case, the proper opportunity was not provided to the petitioner-respondent during enquiry and the reason of serious illness, duly certified by the Government Doctor, was not considered by the authorities of the State while passing the orders impugned before the Writ Court, as such, the petitioner-respondent in an illegal manner was restrained from performing his duties and being so, he is entitled to all the service benefits including the pay for the period in which he could not perform his duties on account of illegal orders passed by the State authorities.
At this stage, this Court feels it appropriate to refer to the judgments of the Hon'ble Apex Court passed in the case of Hindustan Tin Works (P) Ltd. vs. Employees of M/s Hindustan Tin Works Pvt. Ltd. And Others reported in (1979) 2 SCC 80; Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya and Others; reported in (2013) 10 SCC 324 and Bharat Sanchar Nigam Limited vs. Bhurumal; reported in 2014 (7) SCC 177 as also the judgment dated 23.09.2022 passed in Civil Appeal No. 6890 of 2022 (Jeetubha Khansangji Jadeja vs. Kutchh District Panchayat).
From the facts indicated above it is apparent that:-
(i) The petitioner-respondent was initially punished vide order dated 26.08.2004 and the appeal and revision filed against the order of punishment were dismissed. Thereafter, being aggrieved, the Claim Petition No. 365 of 2009 was filed which was allowed vide order dated 03.03.2015.
(ii) In compliance of the order of the Tribunal dated 03.03.2015, a show cause notice dated 23.07.2015 was issued, to which, the petitioner-respondent submitted his reply specifically indicating therein the ground of his absence from duties without sanctioned leave w.e.f. 18.07.2003 to 25.09.2003.
(iii) The plea of serious illness for not joining the duties in relation to which, the charge sheet was issued, was taken by the petitioner-respondent before the Inquiry Officer, as appears from the inquiry report which is on record of the present special appeal at page 124 and was also before the Writ Court as Annexure No. 14 to the writ petition.
(iv) The ground of illness taken by the petitioner-respondent to explain as to why he could not perform his duties w.e.f. 18.07.2003 to 25.09.2033 was not considered while recording the findings by the Enquiry Officer in the enquiry report dated 03.07.2004. It further appears from the enquiry report that the procedure prescribed for holding the "Regular Enquiry" as explained by this Court as also by the Hob'ble Apex Court and was taken note of by the Division Bench of this Court in the judgment passed in the case of Deepak Kumar (supra), relevant portion of which has been quoted hereinabove, was not followed.
(v) The Disciplinary Authority as also the Appellate Authority and Revisional Authority failed to take into account the plea of serious illness duly supported by a certificate issued by the Government Doctor, while passing the respective orders.
(vi) The Discipinary Authority as also other authorities have not recorded a specific finding that the absence of petitioner-respondent was willfull.
Thus, the orders impugned before the Writ Court, in our considered opinion, were unjustified and being so, this Court is of the view that in an illegal manner, the petitioner-respondent was not allowed to perform his duties.
The aforesaid aspect of the case as appears from the judgment under appeal, has duly been taken note of by the Writ Court.
In view of the aforesaid, we are of the veiw that the petitioner-respondent is entitled to the reliefs provided by the Writ Court. As such we are not inclined to interfere in the judgemnt and order passed by the Writ Court dated 05.09.2022. The appeal is accordingly dismissed.
Order Date :- 20.12.2022 Arun/-