Allahabad High Court
Sanjay vs State Of U.P. Thru. Addl. Chief/Prin. ... on 22 May, 2023
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:35536-DB Court No. - 1 Case :- SPECIAL APPEAL No. - 247 of 2023 Appellant :- Sanjay Respondent :- State Of U.P. Thru. Addl. Chief/Prin. Secy. Public Works Deptt. U.P. Govt. Lko. Counsel for Appellant :- Utsav Mishra,Gaurav Mehrotra Counsel for Respondent :- C.S.C. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Om Prakash Shukla,J.
1. Heard Sri Gaurav Mehrotra and Sri Utsav Mishra, learned counsel for appellant-petitioner and learned State counsel representing the respondents-State-authorities.
2. On our request, Sri Madan Mohan Pandey, learned Additional Advocate General has also addressed the Court on behalf of the State-authorities.
3. This intra-court appeal filed under Chapter VIII Rule 5 of the Rules of the Court assails the order dated 21.04.2023, passed by learned Single Judge, whereby Writ-A No.17734 of 2019 instituted by the appellant-petitioner challenging the order of punishment dated 03.06.2019, has been dismissed.
4. We may note, at this juncture, that by means of the order of punishment dated 03.06.2019, three punishments were inflicted upon the appellant-petitioner, namely, (1) stoppage of one increment for two years, (2) censure and (3) recovery of an amount of Rs. 8,27,155/-.
5. The appellant-petitioner seeks to impeach the order dated 21.04.2023, passed by the learned Single Judge which is under appeal herein as also the order of punishment dated 03.06.2019 on the following grounds:
(a) That responsibility for loss of some quantity of bitumen has been fixed during the course of departmental proceedings against the appellant-petitioner on the basis of Government Order dated 04.01.2011 which will operate prospectively and will have no application in the instant case for the reason that the incident in relation to which the appellant-petitioner was subjected to departmental proceedings pertained to the year 2006.
(b) The appellant-petitioner has been subjected to hostile discrimination, inasmuch as in the matters of departmental proceedings at least against two officers of the same department, who also held the post equivalent to the post which the appellant-petitioner held at the relevant point of time, were exonerated on the ground that the Government order dated 04.01.2011 will have prospective application, however, the said legal issue as canvassed by the appellant-petitioner both before the Inquiry Officer and disciplinary authority has not been taken into consideration.
(c) The inquiry report is no report in the eyes of law for the reason that the Inquiry Officer has not applied even a bit of his mind to the facts and circumstances of the case as also to the material and documents available on the departmental proceedings. In his submission, learned counsel for the appellant-petitioner in this regard has stated that except for quoting the charge from the charge sheet, reply of the appellant-petitioner, comments of the Presenting Officer and the reply given by the appellant-petitioner to the comments of the Presenting Officer during the course of inquiry, the Inquiry Officer has not considered any document or material, as is apparent from a bare perusal of the inquiry report, and has straightway jumped to his conclusion without any discussion, much less any consideration.
(d) The State-authorities have, in fact, made the appellant-petitioner scapegoat for the reason that in relation to the incident which is said to have occurred in the year 2006, earlier departmental proceedings were instituted against the Junior Engineer, Storekeeper and the Assistant Engineer concerned. In respect of the Junior Engineer and Storekeeper, the departmental proceedings resulted in finding of guilt against these two officers, however, before final punishment could be inflicted, the Junior Engineer and the Storekeeper had died. So far as the Assistant Engineer is concerned, in the departmental proceedings he was exonerated and according to learned counsel for appellant-petitioner, in this situation the departmental proceedings were instituted against him in the year 2014 i.e. after a lapse of period of eight years only to make the appellant-petitioner a scapegoat and to deny him the benefit of promotion to the post of Chief Engineer, Level-I. In this regard, our attention has been drawn to the fact that the punishment order was passed on 03.06.2019 when the Departmental Promotion Committee was held in the month of June, 2019 for consideration of the case of the appellant-petitioner for promotion to the post of Chief Engineer, Level-I.
(e) The conclusions of Inquiry Officer are based purely on presumption for the reason that the quantity of bitumen brought to the Store could not be established in absence of 'Consignee Receipt Certificate' which was to be procured by the department/Presenting Officer from the supplier of bitumen, namely, Hindustan Petroleum Corporation.
(f) In the departmental proceedings it has been recorded, as is apparent from a perusal of the inquiry report, that the Presenting Officer has made a statement that the said 'Consignee Receipt Certificate' could not be obtained from the supplier and, thus, in his submission, Sri Mehrotra, learned counsel for appellant-petitioner has submitted that in absence of said certificate, since the quantity of bitumen brought in the store could not be ascertained, as such assessment of loss also could not be ascertained, however, the Inquiry Officer has drawn his conclusion in absence of this very crucial document.
(g) Lastly, argument of learned counsel for appellant-petitioner is that learned Single Judge while considering the writ petition wherein a challenge was made to the punishment order dated 03.06.2019 has not considered the aforesaid aspects of the matter and accordingly the order under appeal herein is not sustainable.
6. On the other hand, learned State counsel has argued that while conducting the inquiry, the provisions contained in U.P. Government Servant (Discipline and Appeal) Rules, 1999 were followed and the conclusions drawn by the Inquiry Officer as also by the Disciplinary Authority are based on the material and documents available on record. He has also argued that so far as the case of the appellant-petitioner based on the prospective operation of the Government Order dated 04.01.2011 is concerned, Sri Shailendra Tripathi and Sri Haribansh Singh, the other two Executive Engineers, in respect of some other departmental inquiry were exonerated not on the ground that in their cases the Government Order dated 04.01.2011 was not applicable but on other grounds. He has also argued that because of lack of supervision by the appellant-petitioner who at the relevant point of time was posted as Executive Engineer, he cannot escape his liability for the loss of bitumen which had occurred in the year 2006. Regarding victimization of the appellant-petitioner as argued by Sri Gaurav Mehrotra, learned State counsel has submitted that the inquiry proceedings were conducted against him considering the loss which had occurred to the State Exchequer because of loss of bitumen for which the appellant-petitioner was also responsible along with other officers of the department. In his submission, learned State counsel has argued that this special appeal deserves to be dismissed at its threshold.
7. We have considered the competing arguments and submissions made by learned counsel representing the respective parties and have also perused the records available before us on this special appeal.
8. It is not in dispute that the incident in relation to which departmental proceedings were instituted against the appellant-petitioner pertains to the year 2006. It is also not in dispute that initially no proceedings were drawn against him; rather the Junior Engineer, the Assistant Engineer and the Storekeeper were subjected to departmental proceedings for the alleged loss to the Government which is said to have occurred in the year 2006 on account of loss of bitumen. Learned State counsel has also not disputed that so far as the Assistant Engineer is concerned, in the departmental proceedings, he was exonerated and as far as the Junior Engineer and the Storekeeper are concerned, though in the departmental proceedings they were found guilty, however before punishment order could be inflicted upon them, they died. The fact that in relation to the incident which had occurred in the year 2006, departmental proceedings were initiated after eight years in the year 2014, has also not been denied by the learned State counsel.
9. Having noticed the facts as aforesaid, we now proceed to consider the purport of the Government Order dated 04.01.2011 and its impact so far as the departmental proceedings initiated against the appellant-petitioner is concerned.
10. The State Government has issued the said Government Order dated 04.01.2011 for the purposes of determining the responsibility for loss to the Government in the stores of the Public Works Department. According to the said Government Order, responsibility has to be fixed upon the Junior Engineer in case he is the physical custodian of the material in the store and responsibility of the Storekeeper has also to be fixed. Liability to the extent of 15% of the total loss has also to be fixed by the said Government Order dated 04.01.2011 upon the Executive Engineer.
11. In the writ petition a specific case was taken by the appellant-petitioner in para-30, wherein it was stated that in similar circumstances, it was held by the State in the case of departmental proceedings initiated against two other Executive Engineers, namely, Sri Shailendra Tripathi and Sri Haribansh Singh, that no responsibility of loss could be fixed upon them keeping in view the prospective operation of the Government Order dated 04.01.20211. Para-30 of the writ petition is extracted herein below:-
"30. That the liability of the petitioner for the alleged loss was determined on the basis of government order dated 04.01.2011 but the department itself in the matters of Sri Haribansh Singh and Sri Shailendra Tripathi has held that the government order dated 04.01.2011 was not applicable to those matters which took place prior to 04.01.2011 and in the present matter also, the subject matter of the charge sheet was related to August and September, 2006 i.e. a period prior to 04.01.2011 as such the government order dated 04.01.2011 could not have been the basis for punishing the petitioner but a discriminatory attitude was adopted by the opposite party and the petitioner was awarded the impugned punishment on the basis of government order dated 04.01.2011 only. The true copies of the orders dated 11.07.2016 and 11.06.2013 passed in the matters of Sarvasri Shailendra Tripathi and Haribansh Singh are cumulatively being annexed herewith as Annexure No.7 to this writ petition."
12. Reply to the averments made in para-30 of the writ petition was given by learned State authorities in paragraph-46 of the counter affidavit, wherein the aforesaid facts regarding Sri Shailendra Tripathi have not been denied, however, in respect of Sri Haribansh Singh, it has been stated that his case was different than the case of the appellant-petitioner. Paragraph-46 of the counter affidavit filed by the State-authorities in the proceedings of writ petition is extracted hereinbelow:-
"46. That the contents of para 30 of the writ petition as stated are misconceived hence denied. In reply thereto reiterating the averments made in preceding paras of this affidavit it is submitted that the disciplinary proceeding had been initiated against the petitioner on 07.04.2014 as such the proportionate punishment has been imposed against the petitioner as per the government order dated 04.01.2011 which is/was in existence. It is also submitted that the charge levelled against the petitioner has been found proved as such the disciplinary authority after due consideration of the materials available on record rightly imposed the punishment of Rs.8,27,155/- along with Censure Entry along with stoppage of one increment temporarily for one year of the petitioner. It is further submitted that the case of Sri Haribansh Singh is different from the case of the petitioner as such the government order dated 04.01.2011 has not been applied in the case of Sri Haribansh Singh due to the reason, no government loss occurred during the tenure of Sri Haribansh Singh whereas in the case of the petitioner loss was caused to the Government during the tenure of the petitioner."
13. It is, thus, not in dispute that the fact that the Government Order dated 04.01.2011 was made applicable prospectively in the case of another Executive Engineer, Sri Shailendra Tripathi was not denied by the State-authorities. In respect of Sri Haribansh Singh also, what all can be gathered from the counter affidavit filed by the State-authorities is that though in certain respects, his case may have been different than the case of the appellant-petitioner, however, the fact remains that no responsibility was fixed on Sri Haribansh Singh on the basis of Government Order dated 04.01.2011 treating this Government Order to be applicable prospectively.
14. It is settled principle of law that two similarly circumstanced employees even in the matter of departmental inquiry cannot be discriminated. If the view of the State Government in the case of departmental proceedings against Sri Shailendra Tripathi and Sri Haribansh Singh was that the Government Order dated 04.01.2011 shall operate prospectively, that is to say, the incident which occurred prior to issuance of said Government Order dated 04.01.2011 will not be covered by it, the same view ought to have been formed by the State-authorities while conducting the departmental proceedings against the appellant-petitioner as well.
15. It is also to be noticed that the appellant-petitioner in his reply submitted to the Inquiry Officer as also in his comments submitted before the Disciplinary Authority, had categorically taken the plea that since the Government Order dated 04.01.2011 is operative prospectively, as such the same will not cover any incident which is said to have occurred prior to the date of issuance of Government Order. However, neither the Inquiry Officer nor the Disciplinary Authority have considered the said aspect, though in his reply the appellant-petitioner has cited the cases of Sri Shailendra Tripathi and Sri Haribansh Singh, the two other Executive Engineers in respect of whom the Government Order dated 04.01.2011 was treated to operate prospectively. Such an action on the part of the State authorities is clearly not only arbitrary but is discriminatory as well, hence we can safely observe that the same is violative of Article 14 of the Constitution of India.
16. As far as the other submissions made by learned counsel for appellant-petitioner are concerned, we have no hesitation to say, after perusing the inquiry report, that the Inquiry Officer has not applied his mind at all to the facts and circumstances as also to the evidence, documents and other material available in the inquiry proceedings. A perusal of the inquiry report submitted by the Inquiry Officer, dated 17.12.2015 would clearly reveal that the same appears to be an exercise in "cut and paste". The Inquiry Officer after noticing the proceedings in the initial paragraphs of the said inquiry report, has copied verbatim the charge, reply submitted by the appellant-petitioner to the charge sheet, comments of the Presenting Officer and thereafter the reply submitted by the appellant-petitioner to the said comments. However, the Inquiry Officer has not considered, much less evaluated, the evidence, documents and material available on the inquiry proceedings. He rather has jumped straightway to his conclusions and such a course, in our opinion, adopted by the Inquiry Officer, cannot be sustained.
17. It is needless to say that the departmental proceedings conducted against the government officer/employee are quasi judicial in nature. Any quasi judicial authority is expected to arrive its conclusion only after consideration of all the materials available before it and after its evaluation. In absence of any consideration or evaluation of material and evidences available before the Inquiry Officer, if any inquiry report is submitted, the same, in our opinion, cannot be made the basis of taking any decision by the Disciplinary Authority.
18. We have also perused the punishment order dated 03.06.2019 passed by the Disciplinary Authority. However, the said order is also completely non-speaking in the sense that the Disciplinary Authority has also not considered and evaluated the material and evidences available on the inquiry. The Disciplinary Authority has only stated, after quoting the charge, reply of the appellant-petitioner and the conclusions drawn by the Inquiry Officer, that he is unable to deviate from the view taken by the Inquiry Officer. However, the punishment order is completely bereft of any discussion or consideration or evaluation of the materials and evidences available on the inquiry report. In our opinion, such a punishment order is alien to the settled legal principles governing the departmental proceedings and accordingly, the same is not liable to be sustained.
19. It is also worthwhile to note that though during the course of inquiry, the Inquiry Officer himself had required the Presenting Officer to obtain the 'Consignee Receipt Certificate' from the supplier of the bitumen, namely, Hindustan Petroleum Corporation, however, the Presenting Officer could not obtain the said certificate. It has clearly been recorded in the inquiry report wherein the inquiry proceedings have been extracted, that in absence of 'Consignee Receipt Certificate' from the supplier i.e. Hindustan Petroleum Corporation, it will not be possible to determine the quantity of bitumen which was received in the store. In such a situation, in our opinion, the said document i.e. 'Consignee Receipt Certificate' was one of the most crucial document to bring home the guilt against the appellant-petitioner. However, despite noticing its significance to prove the charge, the Inquiry Officer has jumped to the conclusion of guilt of the appellant-petitioner even though the said document was not brought on record of the inquiry proceeding.
20. Having regard to the manner in which the inquiry report in this case was presented and the manner in which the Disciplinary Authority has passed the order of punishment, we requested learned Additional Advocate General, Sri Madan Mohan Pandey to assist us after going through the same. Sri Pandey has very fairly shared the concerns of the Court to the effect that on the basis of inquiry report submitted in this case, no guilt can be proved. He also agrees that the Inquiry Officer ought to have not only discussed and considered the evidences, material and documents available on the inquiry but he ought to have weighed the materials while determining the facts on the basis of evaluation of such materials.
21. On our request, Sri Pandey has assured that he will apprise all concerned in the State Government to ensure that the departmental proceedings against erring officers/employees are conducted in accordance with law, especially in accordance with the provisions contained in U.P. Government Servant (Discipline and Appeal) Rules, 1999. We appreciate the indulgence of Sri Pandey and the gesture shown by him in this matter.
22. When we peruse the order passed by learned Single Judge which is under appeal before us, we find that all the aforesaid aspects of the matter appear to have lost sight of the learned Single Judge.
23. Accordingly, the special appeal is allowed and the order dated 21.04.2023, passed by learned Single Judge in Writ-A No.17734 of 2019 is hereby set-aside. We also quash the order of punishment dated 03.06.2019, passed by the State Government.
24. However, having regard to the fact that the allegation in this case is that of loss to the State Government, we provide that it will be open to the State Government to initiate departmental proceedings against the appellant-petitioner afresh from the stage of furnishing the inquiry report. If the State Government decides to initiate departmental proceedings afresh, the same shall be concluded within a period of three months from today.
25. Learned Additional Advocate General, Sri M.M.Pandey is requested to apprise all concerned authorities of this order.
26. Office shall provide a certified copy of this order to Sri Pandey free of charge. However, learned counsel for the appellant-petitioner shall be provided a certified copy of this order on payment of usual charges.
27. Costs made easy.
Order Date :- 22.5.2023 Renu/-