Narendra Kumar Agnihotri vs State Of U.P. Thru' Secy. Ministry ...
2017 Latest Caselaw 7765 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 14.11.2017
 
                                                        Delivered on 7.12,2017
 
Court No. - 35
 

 
Case :- WRIT - A No. - 23907 of 2008
 

 
Petitioner :- Narendra Kumar Agnihotri
 
Respondent :- State Of U.P. Thru' Secy. Ministry Of Homes & Others
 
Counsel for Petitioner :- Hitesh Pachori
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Siddharth,J.

(Delivered by Hon. Siddharth, J.)

The above noted writ petition has been filed by the petitioner praying for quashing of the punishment order dated 12.12.2007 passed by the respondent no.1 and for a direction to the respondents to pay the arrears of his salary forthwith and continue to pay his post retiral benefits according to payscale of Rs. 10,000-15,000/-.

The brief facts of the case are that while being posted as prosecution officer in C.B.C.I.D, Lucknow went on leave on 22.1.2002 to his home district, Etah, where he fell ill and could join his duties on 2.3.2002. On account of dispute between the petitioner and his brother-in-law, Ramesh Kumar Sharma regarding family partition, latter made false complaint against the petitioner alleging participation in the election of Smt. Rama Agnihotri, his wife .

The preliminary inquiry report dated 5.6.2002 found the allegations against the petitioner false, fabricated and baseless. In September, 2003 the Joint Director of Prosecution, Agra Region, Agra also submitted his report stating that the allegations against the petitioner are false and incorrect.

However, Joint Director of Prosecution, Kanpur Region, Kanpur was appointed inquiry officer by the Disciplinary Authority to conduct disciplinary inquiry against the petitioner for violating code of conduct as per U.P. State Government Servant Conduct Rule, 1956 (hereinafter referred to as the Rules of 1956).

The following charges were framed against the petitioner :-

vkjksi la[;k&1

vkt vki o"kZ 2002 esa vijk/k la[;k vijk/k vuqla/kku foHkkx m0iz0] y[kuÅ esa vfHk;kstu vf/kdkjh ds in ij jkT; ljdkj ds v/khu fu;qDr Fks] rc vki fnukad 22-1-02 dks fnol ds Lohd`r vkdfLed vodk'k ij ,Vk x, vkSj rnqijkUr fnukad 25-1-02 ls 15 fnolh; fpfdRlk vodk'k izkFkZuk i= vijk/k vuqla/kku foHkkx dks izsf"kr fd;k] tc fd rRle; 330 fo/kku lHkk {ks= lksjksa] ,Vk ls dkaxzsl vkbZ dh fo/kku lHkk pquko esa izR;k'kh ,oa viuh iRuh Jherhjek vfXugks=h ds pquko izpkj dk pquko ds fnuksa esa ,Vk esa ekStwn jgdj ukekadu ds ifj.kke vkus rd lapkyu djrs jgsA bl izdkj vkius m0iz0 ljdkjh deZpkjh vkpj.k fu;ekoyh 1956 ds fu;e 5 ¼4½ dk mya?ku fd;kA

vkjksi la[;k 2&

of.kZr vodk'k dh vof/k esa vki fnukad 28-1-02 dks Jh vkj0ds0 'kekZ ¼lgh uke Jh vkj0ds0 flag½ fjVfuax vkQhlj 330 fo/kku lHkk {ks= lksjksa ds le{k izrhd vkoaVu ds le; viuh iRuh Jherh jek vfXugks=h dkaxzsl vkbZ izR;k'kh 330 fo/kku lHkk {ks= lksjksa ds lkFk mifLFkr jgs vkSj mUgsa lg;ksx fn;kA bl izdkj vkius muds pquko laca/kh dk;kZs esa gLr{ksi djrs gq, vius izHkko dk iz;ksx fd;k rFkk izrhd vkcaVu esa muds i{k esa fgLlk fy;k vkSj m0iz0 ljdkjh deZpkjh vkpj.k fu;ekoyh 1955 ds fu;e 5 ¼4½ dk mya?ku fd;kA

Petitioner submitted his reply to the charge sheet and a full fledged departmental inquiry was conducted against him and an inquiry report dated 9.8.2003 was submitted by the Inquiry Officer, Joint Director Prosecution, Agra Region, Agra. In the inquiry report, the Inquiry Officer recorded the finding that the petitioner has not been found guilty of violation of Rule 5(4) of the Rules of 1956, as per Charge No.1 in the charge sheet. However he was found guilty of Charge No.2, since he was present with his wife in the office of Returning Officer, Vidhan Sabha Elections, Soron, Etah with his wife Smt. Rama Agnihotri, when symbols were being allotted to the contesting candidates for Vidhan Sabha Elections. The inquiry officer proposed punishment of "warning" to the petitioner for being found guilty of charge no.2.

The aforesaid report was again examined by the Joint Director of Prosecution, Kanpur Region, Kanpur and he recorded his finding that earlier inquiry officer only found the presence of the petitioner with his wife before the Returning Officer to be proved, but that allegation was not proved by any photograph, videography, tape etc., and the complainant never appeared before the inquiry officer to prove charge No.2 by submitting himself to cross-examination which proves that Charge No.2 was also false.

The Joint Director Prosecution, Kanpur Region, Kanpur, submitted his report to Joint Director (Law), Directorate of Prosecution U.P. Lucknow, who, forwarded his report on 23.8.2006 to the respondent no.1, the disciplinary authority. However, respondent no.1 did not agreed to part of the report regarding Charge No.2, which did not found petitioner guilty of presence before the Returning Officer on 28.1.2002 along with his wife at Soron, Etah. He issued a notice to the petitioner to show cause against his objection to the findings recorded by the Inquiry Officer regarding Charge No.2 and the petitioner submitted his detailed objection dated 6.11.2006, before the respondent no.1. By the impugned order 12.12.2007, respondent no.1 has directed to downgrade the petitioner to lowest stage of his payscale permanently from the payscale Rs. 10,000- 15,200 to Rs. 8000-13500, hence petitioner has filed this writ petition against the impugned order of punishment.

Counter affidavit has been filed on behalf of the respondents stating that the complainant, Shri Ravish Sharma, advocate, candidate of B.S.P., stated that petitioner was present with his wife before the Returning Officer. The State Government sought the report from the District Magistrate, Etah, who informed vide fax letter that on 28.1.2002 at the time of allotment of symbols, the petitioner was present in the election office. The petitioner was on medical leave and he overstayed leave by fifteen days without any information and he joined only on 4.3.2002 along with medical fitness certificate and requested for three days earned leave from 22.1.2002 to 24.1.2002 and from 25.1.2002 to 2.3.2002. He had requested for 37 days medical leave. During the leave period he was at Etah organising election campaign of his wife.The second charge against the petitioner was regarding his presence before the Returning Officer along with his wife on 28.1.2002 at Soron, Etah. Before passing the impugned order petitioner was given notice and opportunity of hearing regarding disagreement with findings on Charge No.2, by the disciplinary authority and after considering his reply he was rightly punished.

Petitioner has filed rejoinder affidavit denying the averments in the counter affidavit.

We have heard Shri Hitesh Pachori, learned counsel for the petitioner and learned Standing appearing for respondents.

The first arguments raised by the learned counsel for the petitioner is that the Disciplinary Authority issued show cause notice dated 22.8.2006 to the petitioner to show cause as to why the finding regarding Charge No.2, which has not been found proved by the Inquiry Officer, should not be reversed since the Disciplinary Authority is not agreeing to the findings recorded by the Inquiry Officer. In response to the show cause notice dated 22.8.2006 petitioner had submitted his parawise reply on 6.11.2006 to the show cause notice replying every objections raised.Some of his objection on translation are,

1.Before leaving the headquarters, for taking leave he had submitted his application to the Legal Adviser, C.B.C.I.D. Lucknow.

2.The finding of my presence with my wife in the room of Returning Office was recorded on the statement of the then Returning Officer Shri R.K. Singh. This finding is against the material on record and the documentary evidence, because Shri R.K. Singh has stated in his statement and also in his report to the Collector Etah that the petitioner was present in election office in Collectorate and not in his room.In the departmental proceedings, he had submitted prescription of the doctor and his advice for rest. In oral evidence the submission of Shri Vinod Kumar Upadhaya was recorded in whose house he lived in Agra for treatment . Oral evidences of Shri Ashok Kumar Sharma and Rameshwar Dayal Sharma, who was the younger brother of the complainant Shri Ravish Sharma, proved that from 25.1.2002 to 2.3.2002 the petitioner lived at Agra and during the election he never went to Etah headquarter or in the election constituency of his wife. There was no evidence of my stay at Etah except the statement of Shri R.K. Singh, Returning Officer.

3. The respondent no.6, who is his brother-in-law of the petitioner and was involved in family dispute of partition of property, has made false complaint against him. In the departmental inquiry. Shri Ravish Sharma did not submitted himself for cross examination before the inquiry officer,therefore, his evidence cannot be relied upon by the disciplinary authority for proof of charge against him, since the basis of the entire inquiry was the complaint made by the complainant, Shri Ravish Sharma, against the petitioner. Further only Returning Officer, Shri R.K. Singh, stated in his examination in chief that petitioner was present with his wife before him but in the cross examination he did not remembered having seen the petitioner with his wife at that time. He also admitted in the cross examination that he never knew the petitioner, therefore, second charge was wrongly found to have been proved by the punishing authority .

Learned counsel for the petitioner submits that none of the objections raised by the petitioner in his objections dated 6.11.2006 have been considered by the disciplinary authority and he has only given the history of the entire inquiry proceedings against the petitioner and has drawn his one sided conclusion and has also recorded findings on the basis presumptions.

Learned counsel for the respondent has replied that disciplinary authority has considered the entire case history of the petitioner and has considered every ground raised by the petitioner in his objection.

The court has perused the objection dated 6.11.2006 of the petitioner which is detailed objection consisting of nine paragraphs and main points raised therein have been summarised above as argued by the petitioner in his arguments.

The main argument of the petitioner is that a complainant Shri Ravish Sharma, Advocate who was his brother-in-law (Sala) and who had family dispute regarding partition of the property with his wife, was the complainant in the departmental inquiry. His statement was recorded but he never submitted himself for cross examination by the defence.Therefore the basis of the entire charges against the petitioner, complaint of Shri Ravish Kumar Sharma, Advocate was not proved in the departmental inquiry. The statement of Shri Ravish Kumar Sharma, Advocate in the absence of his cross examination was not required to be read in evidence.Further in the cross-examination, Shri R.K. Singh, Returning Officer, also refused to recognise the petitioner and stated that he has never seen him before.

This objection was taken by the petitioner in paragraph-3 of his objection to the show cause notice and this does not finds any consideration in the punishment order dated 12.12.2007, passed by the respondent no.1 .The respondent no.1 certainly gave a second show cause notice to the petitioner against the findings of the Inquiry Officer regarding disagreement of the findings on charge No.2 who exonerated the petitioner from both the charges, since disciplinary authority was not agreeable to his exoneration of charge no.2.Mere giving of notice was not sufficient he was also required to consider the objection raised by the petitioner to the second show cause notice while passing punishment order against him.

The compliance of Article 14 of the Constitution of India is not a mere ritual to be performed only by issuing show cause notice, inviting objections and then passing arbitrary orders without considering objections. The "reason" is "soul" of every judicial or quasi judicial order passed either by judicial or quasi judicial authority. In the absence of consideration and "recording of reason" in the order, the order passed by the authority, judicial or quasi judicial, fails on the touchstone of Article 14 of the Constitution.

Therefore, it is concluded that the punishment order dated 12.12.2007 passed by the respondent no.1 is not in accordance with law and has been passed without considering objections raised by the petitioner to second show cause notice.

Punishment order dated 12.12.2007 passed by the respondent no.1 is quashed.

Since petitioner has retired from the service on 31.1.2008, therefore, no useful purpose would be served to permit the disciplinary authority to proceed against the petitioner afresh. Even otherwise, it would be empty formality in the absence of the evidence of the complainant proving his complaint against the petitioner.

The petitioner shall be entitled to get difference of arrears amount deducted from his pay on account of deduction made therein in pursuance of the punishment order and his post retiral dues shall be recalculated and paid to him accordingly along with 7 % interest as per judgment in the case of Abati Bezbaruuah V. Depury Director General, Geological Survey of India, (2003) 3 SCC:AIR 2003 SC 1817:2003 AIR SCW 1266, wherein the apex court held that interest is a compensation for forbearance from detention of money and that interest being awarded to a party only for being kept out of the money which ought to have been paid to him.

In Secretary, Irrigation Department, Government of Orrisa V. G.C. Roy, AIR 1992 SC 732: 1992 AIR SCW 389: (1992) 1 SCC 508, the Constitution Bench of the apex court observed that a person deprived of use of money to which he is legitimately entitled as of right, to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages.

The writ petition is allowed. No costs.

OrderDate :- 7.12.2017

Atul kr. sri.