Allahabad High Court
Suresh Chandra Srivastava S/O Lt. ... vs State Of U.P. Thru Secy. Gramya Vikas & ... on 7 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 759, 2019 (5) ALJ 4741 (2019) 6 ADJ 349 (ALL), (2019) 6 ADJ 349 (ALL)
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No.26/Reserved AFR Case :- SERVICE SINGLE No. - 2297 of 2009 Petitioner :- Suresh Chandra Srivastava S/O Lt. Kailash Nath Srivastava Respondent :- State Of U.P. Thru Secy. Gramya Vikas & Others Counsel for Petitioner :- V.K. Srivastava,Vijay Kumar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Rajnish Kumar,J.
1. The petitioner has approached this Court challenging the order dated 04.02.2009, by means of which a decision has been taken that the order dated 24.11.2001, by which the petitioner was dismissed from service would remain as it is. The petitioner has further prayed for a direction to pay the full salary to the petitioner for the period 23.08.2008 to 04.02.2009 and to reinstate him into service with all consequential service benefits w.e.f. 09.08.1996 and also to pay him salary regularly.
2. The facts, in brief, for adjudication of the case are that the petitioner was initially appointed as Junior Clerk on 01.05.1980 by the District Development Officer, Raibareily and he was posted in Block-Sataon. Thereafter he also remained posted at Block Bahadurpur, and in the office of Assistant Registrar Cooperative Societies, District Raibareily. The petitioner was transferred from Block- Sataon to the office of the Principal, Regional Institute of Rural Development Raibareily where he was assigned the work in the Account section of the institute. On 23.06.1995 a Cheque No.92-SB/25-062270 for Rs.1020/- was issued by the Principal of the institute under his signature. As per the duties assigned to the petitioner, he was required to get it encashed from the bank and bring the amount of the said cheque to the institute and to make entry of the same in their cash book. The said cheque was presented by the petitioner in the bank on 24.06.1995 but the same was not encashed as interpolation was detected in the cheque by the officer passing the said cheque and the amount was altered from Rs. 1020/- to Rs. 91020/-. Thereafter the cheque was returned by the bank to the petitioner and the petitioner after getting the same brought it to the institute and informed the Principal who cancelled the cheque. The Principal issued another cheque of the same amount on 26.06.1995, which was got encashed by the petitioner. The petitioner was transferred on 10.07.1995 from the said institute to Block-Amawan, District-Raibareily, where he joined on 17.07.1995.
3. While the petitioner was working there, a charge sheet was issued to him by the District Development Officer on 19.08.1995 levelling two charges; First regarding the attempt of embezzlement of Rs.90,000/-by making interpolation in the Cheque No. 062270 dated 23.06.1995 and the second that the petitioner did not inform full facts to the Principal and got another cheque No. 0622271 dated 26.06.1995 issued from him. The petitioner had submitted his reply to the charge sheet on 26.10.1995 denying all the charges therein. The enquiry was conducted by the Block Development Offficer-Harchandpur and the enquiry report was submitted exparte without affording any opportunity of hearing to the petitioner by fixing date, time and place for holding the enquiry and without examining any witnesses etc. The petitioner was issued a show cause notice but the enquiry report was not supplied to him and the same was supplied only when the demand was made by the petitioner. The petitioner submitted his reply to the show cause notice. Thereafter the punishment order dated 09.08.1996 was passed by means of which the petitioner was dismissed from service.
4. The petitioner preferred a claim petition No.174 of 2001, which was allowed by means of the judgment and order dated 05.09.2001 and the order of dismissal dated 09.08.1996 was quashed with all consequential service benefits. However, liberty was granted to hold the enquiry from the stage of submission of the reply to the charge sheet. In pursuance thereof, the petitioner joined on 13.09.2001.
5. In pursuance of the judgment and order dated 05.09.2001, a fresh enquiry was initiated on 31.10.2001 as per the liberty granted by the Tribunal after giving the copy of the statement of the concerned clerk to the petitioner and permitting him to make cross examinations by way of question answer only but without holding any oral enquiry. The petitioner moved an application to call the then Principal of the Institute for cross examination but no decision was taken thereon. Thereafter show cause notice dated 07.11.2011 was issued to the petitioner annexing therewith a copy of the enquiry report and other documents including the report of the Principal dated 04.07.1995, on the basis of which the enquiry was initiated against the petitioner. The petitioner submitted his reply to the show cause notice denying the allegations on 20.11.2001. Thereafter the punishment order dated 24.11.2001 was passed dismissing the petitioner from service. The petitioner preferred an appeal against the punishment order dated 24.11.2001 before the opposite party no.2 i.e. the Chief Development Officer, Raibareily on 11.12.2001. The appeal was dismissed on 03.01.2002.
6. The petitioner challenged the dismissal order dated 24.11.2001 and the order passed on the appeal dated 03.01.2002 before the State Public Service Tribunal by means of Claim Petition No.180 of 2002. The Tribunal after exchange of affidavits, heard the parties and dismissed the claim petition of the petitioner vide order dated 11.04.2005 with a direction to consider the claim of the petitioner for payment of salary for the period 09.08.1996 to 24.11.2001 by passing a reasoned and speaking order. The order was challenged by the petitioner before this Court in Writ Petition No.1192 (S/B) of 2005. The writ petition was allowed by means of the judgment and order dated 23.01.2008 and the judgment of the Tribunal dated 11.04.2005 was set aside and the punishment order dated 24.11.2001 and the order dated 03.01.2002 passed by the appellate authority were quashed with all consequential benefits. However, liberty was granted to proceed afresh in accordance with law from the stage of reply to the charge sheet keeping in view the observations made in the said judgment.
7. In compliance of the order dated 23.01.2008 passed by this Court, a letter dated 29.02.2008 was issued and served on the petitioner on 25.03.2008 asking the petitioner to submit his reply in addition to the earlier reply dated 26.10.1995. By the said letter, the petitioner was also asked to inform if he wants to say anything else in addition to the reply dated 26.10.1995 and also to submit the names of the persons whom the petitioner wants to cross examine. It appears that since the niece of the petitioner was admitted in the Apollo Hospital, New Delhi therefore he submitted his joining on 29.03.2008 and requested for time for submitting his reply. The petitioner submitted his reply on 03.06.2008 alongwith list of documents demanded by the petitioner. After getting the required documents he submitted his reply on 30.06.2008 specifically mentioning therein the names of the persons to cross examine in the enquiry but the opposite party did not call any of the witness during the enquiry. The petitioner had made a request to cross examine the Principal of the Institute and the then Chief Development Officer, Raibareily. He also requested to obtain the opinion of the handwriting expert, as the charge against the petitioner was regarding interpolation in the cheque on the ground that the same was done by someone in the Bank itself and not by the petitioner.
8. The opposite party no.3 informed to the petitioner by means of letter dated 24.07.2008 that the then District Development Officer, Raibareily Sri V.S. Tripathi is posted as Chief Development Officer, Sant Kabir Nagar, U.P. and has been informed vide letter dated 19.07.2008, but he is busy due to rush of work so it is not possible for him to come to Raibareily. Therefore, the petitioner may go to Sant Kabir Nagar and after fixing date and time with him inform to the office so that the counter clerk may also be sent with him. The District Development Officer, Raibareily issued another letter dated 25.07.2008 to the petitioner regarding the posting of the officer in the District Cooperative Bank Limited, Raebareily and asking the petitioner to inform the office about the date and time so that they may be called in the District Development Office for cross examination. The petitioner was also directed to inform about his questionnaire for cross examination and also to bring the same with him at the time of cross examination.
9. In response to the letters dated 24.07.2008 and 25.07.2008, the petitioner wrote letters to the opposite party no.3 on 31.07.2008 and 02.08.2008 mentioning therein the procedure of departmental proceedings and requested for cross examination. The opposite party no.3 issued another letter on 07.08.2008 to the petitioner stating therein that the petitioner should have cross examined the said officers at the time of issuance of the charge sheet but he has not done so and now he is asking for cross examination. He further informed the petitioner that the said officers are posted in another department and they are not able to come to the district therefore the petitioner was directed to appear before the said officers in their district with questionnaire and make their cross examination. The reply to the questionnaire sent by the said officers would be acceptable to the opposite party no.3.
10. The petitioner again wrote a letter dated 09.09.2008 disclosing therein the procedure of enquiry with a request to hold the enquiry in accordance with the rules and disciplinary proceedings. In pursuance thereof, the opposite party no.3 wrote a letter dated 03.10.2008 to the then Principal of the institute to make available the information regarding the incident on an affidavit so that the same may be made available to the petitioner. Thereafter vide letter dated 27.10.2008 the information sent by the Principal of the Institute through his letter dated 20.10.2008 was forwarded to the petitioner. In response to the letter dated 23.12.2008 of the petitioner, the petitioner was informed vide letter dated 19.01.2009 that if the petitioner is not satisfied with the reply of the then Principal, then he may contact to the Principal after preparing a questionnaire or make available the questionnaire to the opposite party no.3 so that the reply of the Principal may be obtained. The petitioner was also directed to provide appropriate assistance in the enquiry. Thereafter the opposite party no.3 passed the impugned order dated 04.02.2009 holding that the order of dismissal dated 24.11.2001 would remain effective as it is. Therefore the petitioner has approached this Court by means of the present writ petition.
11. Submission of learned counsel for the petitioner is that thrice the enquiry has been conducted by the respondents but all the times the enquiry has been conducted and the punishment order has been passed in flagrant violation of not only the Rules of the disciplinary proceedings but the principles of natural justice also. Lastly, while granting liberty by means of the order dated 23.10.2008 in Writ Petition No.1192 (S/S) of 2005 filed by the petitioner, this Court had observed to hold enquiry afresh in accordance with law from the stage of reply to the charge sheet keeping in view the observations made herein above in the judgement but the opposite parties have not held the enquiry in accordance with the law and the observations made by this Court.
12. He further submitted that it was incumbent upon the enquiry officer to call the witnesses after fixing date, time and place and informing to the delinquent employee i.e. petitioner in the present case and recording the evidence before him and affording him opportunity of cross examination but in the present case the said procedure was not followed and directly the petitioner was directed to submit an evidence and inform the officers from whom he want to cross examine and instead of calling them asked the petitioner to contact them with questionnaire and get their reply and submit the same, which is impermissible in law. The opposite parties, instead of proving the charges, asked the petitioner to disprove the charges. No reasons have been accorded as to how the charges are proved. Since the allegations were regarding interpolation in the cheque which was denied by the petitioner therefore a report of the handwriting expert was also must.
13. On the basis of above, learned counsel for the petitioner submitted that the impugned order is not sustainable and is liable to be quashed with all consequential benefits. He further submitted that the principle of 'No Work No Pay' is not applicable on the facts and circumstances of the present case and the petitioner is entitled for the arrears of salary alongwith suitable interest.
14. Per contra, learned Additional Chief Standing Counsel submitted that the persons whom the petitioner wanted to cross examine were informed and since they had showed their inability to appear therefore the petitioner was directed to prepare a questionnaire and contact them and get their reply and submit the same which would be accepted. But no effort was made by the petitioner, rather he preferred a Contempt petition no.10(c) of 2009 before this Court. Consequently, on the basis of available evidences/ departmental evidence the order dated 04.02.2009 has been passed in accordance with law. He further submitted that the petitioner has failed to show as to and what prejudice has been caused to him. The petitioner has also not challenged the findings made in the impugned order. Therefore the writ petition has been filed on mis-conceived grounds which are not tenable and the writ petition is liable to be dismissed.
15. I have considered the submission of learned counsel for the parties and perused the material available on records.
16. As borne out from the pleadings and arguments of the parties, the enquiry was conducted against the petitioner in regard to some interpolation made in the cheque which was given to him for encashing from the bank. Initially the petitioner was dismissed from service by means of the judgment and order dated 09.08.1996.The punishment order was set aside by the Tribunal by means of the order dated 05.09.2001 with liberty to the respondents to hold the enquiry afresh after affording opportunity to the petitioner in accordance with law. Thereafter also without holding enquiry in accordance with law and affording opportunity to the petitioner, he was dismissed from service by means of the order dated 24.11.2011. On being challenged before the Tribunal, the claim petition was dismissed by the Tribunal.
17. Therefore he had approached this Court by means of the Writ Petition No.1192 (S/S) of 2005, which was allowed and the judgment of the Tribunal dated 11.04.2005, punishment order dated 24.11.2001 and the appellate order dated 03.01.2002 were quashed by this Court with all consequential benefits with liberty to the respondents to hold enquiry afresh in accordance with law from the stage of reply to the charge sheet keeping in view the observations made hereinabove by way of enquiry.
18. In view of above, the enquiry against the petitioner, as per the liberty granted by this Court, was to be held in accordance with law, i.e., law relating to the disciplinary proceedings and the observations made in the judgment.
19. The relevant procedure regarding the disciplinary proceedings has been made in Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules 1999(hereinafter referred to as Rules 1999), which provides the procedure for holding the enquiry after serving the chargesheet. The relevant portion of Rule 7 is reproduced as under:-
"7. Procedure for imposing major penalties. - Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner :
(i) .........
(ii)........
(iii)......
(iv).........
(v)..........
(vi)...........
(vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence :
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi)..........
(xii)......."
20. In view of the above statutory prescription made in the Rule, after service of chargesheet and receipt of reply, the enquiry was to be held as per the liberty granted by this Court. The Enquiry Officer was required to fix date, time and place for holding the enquiry in accordance with Rules because it provides that after receipt of the reply, in case the charged employee denies the charges the enquiry officer shall proceed to call the witnesses by fixing date, time and place and recording the evidence in presence of the charged government servant who shall be given liberty to cross examine such witnesses. Thereafter the enquiry officer shall call and record the oral evidence which the charged government servant desired in his written statement to be produced in his evidence. But in the present case, as is reflected from the documents placed on record, without fixing any date, time and place or holding the enquiry, the petitioner was asked to inform as to whom he wants to cross examine. In this way, without proving the charge the respondent was required to dis-prove the charge which is not the procedure prescribed under the Rules and permissible under law.
21. In this case, the enquiry officer has adopted a novel procedure of firstly asking the petitioner to inform as to whom he wants to cross examine and thereafter asking the petitioner to contact to the said witnesses and fix the date, time and place at their place of posting so that the counter clerk may be sent for recording the cross examination. When the same was not accepted by the petitioner, the Enquiry Officer asked the petitioner to prepare a questionnaire and contact to the said witnesses and get their reply and submit the same or give it to the enquiry officer for calling the reply of the said witnesses which will be accepted by him. The procedure adopted by the enquiry officer is not prescribed under the concerned Rules and even unknown to the service jurisprudence. Therefore it is apparent on the face of the record that the enquiry has been conducted not only in flagrant violation of the discipline and appeal rules but violation of the principles of natural justice also.
22. It is also apparent from the above that the enquiry officer did not even care to see the procedure regarding the disciplinary proceedings and proceeded to hold the enquiry as per his whims and his own procedure, which is not permissible under law. He is required to hold enquiry in accordance with law, observing the principles of natural justice. This Court and the Hon'ble Supreme Court in a number of cases has held the role of the Enquiry officer and procedure to be followed in the disciplinary proceedings.
23. The respondents had placed much emphasis on paragraph 34 of counter affidavit to show that sufficient opportunity was afforded to the delinquent employees before passing the impugned order. Paragraph 34 is extracted below:
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24. It is crystal clear by the averments made in aforesaid paragraph also that the enquiry was not conducted at all in accordance with law and in conformity with the principles of natural justice, rather in a hurried manner the punishment order was passed without following the due procedure of law.
25. The Hon'ble Apex Court in the case of State of Uttar Pradesh versus Saroj Kumar Sinha:(2010) 2 SCC 772 has held that an enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator and he is not supposed to be a representative of the department. The relevant paragraphs 28, 29 and 30 are reproduced as under:
"28. An enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."
26. Similar view was taken by Hon'ble Apex Court in Union of India & Others vs. Prakash Kumar Tandon: (2009) 2 SCC 541 and also held that if the disciplinary proceedings have not been fairly conducted, an inference can be drawn that the delinquent officer was prejudiced thereby.
27. A Division Bench of this Court, in the case of Govind Lal Srivastava versus State of U.P. and others: (2005) 23 LCD 495 has held that it is cardinal principle of law that in a domestic enquiry, the charges levelled against the delinquent officer have to be proved by the department itself, that too from material on record and afford opportunity to delinquent officer to falsify or belie the case of department and detailed the procedure of enquiry. The relevant paragraphs 12 and 13 are reproduced as under:
12. It is cardinal principle of law that in a domestic enquiry the charges levelled against the delinquent officer have to be proved by the department itself, that too from the material on record and if necessary, by adducing evidence. In doing so, it is obligatory on the Enquiry Officer to give opportunity to the delinquent officer to controvert, rebut such evidence or to adduce such evidence, which may falsify or belie the case of the department. In nutshell the delinquent officer has a right to demolish the case of the department or prove his innocence, but in no case the delinquent officer is required to disprove the charges before they are put to proof by the Enquiry Officer through agency of the department. The letter issued by the erstwhile Enquiry Officer only says that the petitioner if intends to have a personal hearing, may appear on 20.10.1992 before him. It is difficult to understand as to what the Enquiry Officer meant by saying personal hearing, whether it included the right to adduce evidence, right of cross-examination and whether it also indicated that any witness would be examined on that date or documentary evidence, which is on record or the record would be looked into and in what respect personal hearing would be done. It is always essential in any proceedings where right of defence or onus of establishing a charge is involved, clear order and intimation about the date, timer or place and the purpose for which the date has been fixed, should be given by the officer, who is holding the enquiry. The delinquent would be hardly knowing as to what reply and what additional facts, he should mention before the Enquiry Officer, when charges are not being said to be proved and even before the steps being taken for proving the charges. It is only when the charges are sought to be proved that the delinquent has a right to controvert and rebut the same.
13. The procedure of domestic enquiry need not be detailed by us, but it is established principle of law that an enquiry commences when a charge-sheet is issued, a reply is required to be submitted by the delinquent officer, the delinquent is at liberty to ask for the documents in case the documents are mentioned in the charge-sheet but the copies of the same have not been annexed with the charge-sheet, or the documents, on which the charges are likely to be proved and in case copy of some documents cannot be supplied then opportunity of inspection of such documents has to be provided. Opportunity of inspection of documents should be provided in a manner so that the charged officer has free access to the record and for which date, time and place has to be fixed. It is only after the aforesaid stages are over, the reply is submitted by the delinquent officer and on receipt of the reply, if the Enquiry Officer finds that the charges are denied or in other words, they are not accepted, obligation lies upon the Enquiry Officer to proceed with the enquiry. Even mere non-submission of the reply to the charge-sheet or not asking for opportunity of producing witness or evidence would not in itself be sufficient to hold that opportunity was not availed by the delinquent, though given. The Enquiry Officer, on the date, time and place which is to be fixed by him and intimated to the delinquent officer, has to proceed with the enquiry by first asking the department to prove the charges by adducing such evidence, which may be necessary for the purpose and relying upon the documents, which may be relevant and thereafter, has to afford an opportunity to the delinquent to cross-examine the witnesses so adduced or to produce any witness or adduce any evidence in rebuttal. The delinquent officer also has a right to show to the Enquiry Officer that the evidence, which is sought to be relied upon, is either in-admissible or hearsay or could not be relied upon for any other valid reason. Of course, if Enquiry Officer, after receipt of the reply fixes date, time and place and informs the same to the delinquent for appearing and participating in the enquiry but the delinquent even then does not appear, the enquiry can be proceeded in his absence, which may though be an ex-parte enquiry but would not be vitiated on the ground that opportunity was not given or if opportunity was given the same was not availed of, by the delinquent. In a case like this were ex-parte enquiry is to be conducted, the Enquiry Officer is not still absolved of getting the charges proved from the evidence/material on record."
28. It appears that as per liberty granted by this Court, the enquiry was again conducted and Sri Govind Lal Srivastava was punished. He approached to this Court and this Court found that the enquiry was conducted in violation of principles of natural justice, therefore directed for reinstatement with full back wages. However, liberty was granted to hold enquiry afresh from the stage it has gone wrong in the case of Govind Lal Srivastava versus State of U.P. and others; (2009) 2 UPLBEC 1864.
29. The Hon'ble Apex Court in the case of State of Uttranchal and others versus Kharak Singh; (2008) 8 SCC 236 has held that the enquiries must be conducted bona fide and care must be taken to see that the inquiries do not become empty formalities. In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer and only thereafter he be asked whether he wants to lead any evidence and to give any explanation about the evidence led against him.
30. Similarly in the case of Roop Singh Negi versus Punjab National Bank 2009 (2) SCC 570, the Hon'ble Apex Court has held that the materials brought on record pointing out the guilt are required to be considered before passing the impugned order.
31. The Division Bench of this Court, after considering a number of cases, in the case of Radhey Kant Khare versus U.P. Cooperative Sugar Factories Federation Ltd.; 2003 (21) LCD 610 highlighted the importance of conducting an enquiry in a departmental proceedings and held that after a charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not.
32. In view of above, not only the Rules relating to disciplinary proceedings have not been followed but the principles of natural justice have also been flagrantly violated in the case in hand. Further it has been passed without assigning any reason and in violation of order passed by this Court.
33. The perusal of the impugned order dated 04.02.2009, by which the punishment order dated 24.11.2001 has been upheld against the judgment and order dated 23.01.2008 passed in Writ Petition No.1192 (S/B) of 2005 passed in earlier round of litigation indicates it is highly contemptuous as the same was already quashed by this Court so the same could not have been revived at all by the respondents.
34. The Hon'ble Apex Court in the case of Union of India versus Ashok Kumar Agarwal; (2013) 16 SCC 147 has held that it is not permissible for the executive to scrutinise the order of the court and the order, passed in contravention of the final order of the Tribunal which has attained finality, is a nullity. The relevant paragraphs 45,49 and 52 are reproduced as under:
"45. It is astonishing that inspite of quashing of the suspension order and direction issued by the Tribunal to reinstate the respondent, his suspension was directed to be continued, though for a period of six months, subject to review and further subject to the outcome of the challenge of the Tribunal's order before the High Court. The High Court affirmed the judgment and order of the Tribunal dismissing the case of the appellants vide impugned judgment and order dated 17.09.2012. Even then the authorities did not consider it proper to revoke the suspension order.
49. In view of the above, the aforesaid order dated 31.07.2012 in our humble opinion is nothing but a nullity being in contravention of the final order of the Tribunal which had attained finality. More so, the issue could not have been reagitated by virtue of the application of the doctrine of res judicata.
52. In view of the above, we are of the considered opinion that it was not permissible for the appellants to consider the renewal of the suspension order or to pass a fresh order without challenging the order of the Tribunal dated 01.06.2012 and such an attitude tantamounts to contempt of court and arbitrariness as it is not permissible for the executive to scrutinise the order of the court."
35. The Hon'ble Apex Court in the case of Union of India versus Mohan lal Capoor and others; 1973 (2) SCC 836 has held that the reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind was applied to the subject matter for a decision whether it was purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached.
36. Similarly, the Hon'ble Apex Court in the case of Raj Kumar Mehrotra versus State of Bihar and others; 2006 SCC (L & S) 679 has held that passing of the impugned order without assigning reasons is not sustainable and quashed the same.
37. In view of above, this Court is of the considered opinion that the impugned order is not sustainable at all in the eyes of law.
38. During pendency of the present writ petition, the petitioner has died and his heirs have been substituted and brought on record. Earlier twice the liberty was granted by this Court for holding the enquiry afresh on account of violation of the Rules of the Principles of natural justice. Therefore since the delinquent employee has also died, this Court do not find it a fit case for remanding the matter for holding the enquiry afresh.
39. Considering the overall facts and circumstances of the case, this Court is of the view that interest of substantial justice demands that the impugned punishment order is liable to be quashed with all consequential benefits of service including the remaining unpaid back wages, if any.
40. The writ petition is allowed.
41. The order dated 04.02.2009 is hereby quashed with all consequential benefits of service including the remaining unpaid back wages, if any.
42. No order as to costs.
Order Date :- 07.05.2019 (Rajnish Kumar,J.)
Akanksha