Allahabad High Court
State Of U.P. And 2 Others vs State Public Service Tribunal And ... on 23 July, 2015
Bench: Arun Tandon, Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 9
Case :- WRIT - A No. - 40509 of 2015
Petitioner :- State Of U.P. And 2 Others
Respondent :- State Public Service Tribunal And Another
Counsel for Petitioner :- V.K. Chandel
Counsel for Respondent :- Shyam Kumar
Hon'ble Arun Tandon,J.
Hon'ble Ashwani Kumar Mishra,J.
Sri V.K. Singh, Advocate has put in appearance on behalf of respondent no.2. It is not necessary to issue notice to respondent no.1.
Heard V.K. Chandel, learned counsel for the petitioner-State and Sri V.K. Singh, learned counsel for the respondent no.2.
Learned counsel for the petitioners agree that the present writ petition may be disposed of at this stage itself without calling for any further affidavit specifically in view of the order proposed to be passed today by the Court.
Respondent no.2 who was employed in the revenue department of the State of Uttar Pradesh was proceeded with departmentally with the issuance of the charge-sheet dated 18th October, 2008 followed by the order of punishment dated 12th January,2009. Not being satisfied with the order of punishment, respondent no.2 preferred an appeal which was dismissed on 30th July, 2009. He thereafter filed claim petition no. 72 of 2010. Claim petition has been allowed under the judgment and order passed by the State Public Service Tribunal dated 3rd September, 2014. It is against this order that the present writ petition has been filed by the State.
On behalf of the State it is stated that the Tribunal under the impugned judgment and order has recorded a finding that the disciplinary proceedings had gone bad from the stage of enquiry on the ground that after reply was submitted to the charge-sheet, no date for recording of the evidence was fixed by the enquiry officer. It has also been recorded that disciplinary authority had inflicted punishment other than that proposed by the enquiry officer.
Learned counsel for the petitioner-State fairly conceded that there is nothing on record to establish that the enquiry officer had fixed a date for examining the oral or documentary evidence for the purposes of bringing home charge against the employee concerned. Therefore, nothing much could be added in respect of such finding of the Tribunal.
However, it is contended that the Tribunal was duty bound to restore the proceedings from the stage they had gone wrong. Even if the employee had retired in the meantime, provisions of Regulation 351-A of the Civil Service Regulations were attracted and it is still open to the employer to pass orders, as contemplated by Regulation 351-A of the Civil Service Regulations with the sanction of the Governor in the matter of withholding, reduction or forfeiture of the pension etc.
Learned counsel the petitioner points out that the said aspect of the matter has been ignored by the Tribunal while recording a finding that since the employee has retired, there cannot be any direction for denovo enquiry.
Sri V.K. Singh, learned counsel for respondent no.2 submits that since the petitioner did not seek any such permission from the Tribunal, this Court may not interfere against the order of the Tribunal on that ground. However, the legal position, with regard to the proceedings being restored from the stage they had gone wrong, has not been seriously doubted before us by the learned counsel for respondent no2.
We have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition.
We find that the Tribunal under the impugned judgment and order has refused to restore back the proceedings from the stage they had gone wrong on the ground that the employee concerned has retired. Tribunal has lost sight of Regulation 351-A of the Civil Service Regulations, which admittedly apply, as respondent no.2 was a government servant. In respect of a government servant power to continue the departmental enquiry on the condition stipulated by Regulation 351-A of the Civil Service Regulations and an order for withholding, reduction or forfeiture of the pension being made with the approval of the Governor being still available to the State Government, has not been taken note of by the Tribunal under the impugned judgment and order.
We may only record that since the charge-sheet had been served upon the petitioner prior to his date of retirement, there is no bar in continuation of the department proceedings with reference to Regulation 351-A of the Civil Service Regulations.
In the totality of the circumstance on record, we are of the considered opinion that the Tribunal should have restored back the proceedings from the stage they had gone bad. It should have been insisted upon the enquiry officer to fix a date for receiving documentary evidence as well as for recording of oral evidence and for conclusion of the proceedings in accordance with law at the earliest possible. It is ordered accordingly.
Let the petitioner ensure that a fresh enquiry officer is appointed, who may start the proceedings from the stage they had gone wrong. A date for recording of the evidence may be fixed by the enquiry officer and the proceedings may be concluded in accordance with the procedure prescribed. Such exercise must be completed within three months from today. The enquiry officer shall be appointed within two weeks from today. Respondent no.2 shall cooperate in the enquiry. The payment of monetary benefits to the petitioner shall depend upon the outcome of the proceedings as indicated above.
At this stage, learned counsel for respondent no.2 submits that respondent no.2 has not been paid his subsistence allowance for the period he was under suspension. In the facts of the case we direct that if any amount towards subsistence allowance is payable to respondent no.2, such payment shall be released within two weeks in accordance with the rules applicable and there should not be any complaint to this Court that such payment has not been paid to respondent no.2 within the time specified. Order of the Tribunal dated 3rd September, 2014 stands modified accordingly.
The present writ petition is allowed subject to the observations made above.
(Ashwani Kumar Mishra, J.) (Arun Tandon, J.)
Order Date :- 23.7.2015
Sushil/-
