State Of U.P. Thru. Prin. Secy. Tax ... vs Ravijesh Mathur & Another
2017 Latest Caselaw 5335 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
A.F.R.
 
Court No. - 7
 
Case :- SERVICE BENCH No. - 24399 of 2017
 
Petitioner :- State Of U.P. Thru. Prin. Secy. Tax & Registration Deptt. &
 
Respondent :- Ravijesh Mathur & Another
 
Counsel for Petitioner :- Standing Counsel
 
Counsel for Respondent :- C.S.C.,Ajey Shanker Tewari
 

 
Hon'ble Anil Kumar,J.

Hon'ble Daya Shankar Tripathi,J.

(As per Daya Shankar Tripathi,J.)

Heard Shri Satyanshu Ojha, learned Standing Counsel on behalf of the petitioner, Shri Ajay Shankar Tewari, learned counsel for the opposite party no.1 and perused the record.

By means of the present writ petition, the petitioner has challenged the impugned order dated 22.11.2016 passed by the State Public Services Tribunal, Lucknow in Claim Petition No.1468 of 2014 "Ravijesh Mathur vs. State of U. P. & Ors.".

Facts in brief of the present case are that the claimant/respondent no.1 while posted as Senior Clerk at Sahayata Kendra, Aamtanda, Bareilly has been served with a charge sheet dated 24.01.2013 to which he submitted his reply on 27.02.2013. The Enquiry Officer after conducting the domestic enquiry has exonerated the petitioner from the charges levelled against him. However, the Disciplinary Authority had disagreed with the enquiry report submitted by the Enquiry Officer and issued a show cause notice to the claimant/respondent no.1 vide letter dated 20.03.2014 under Rule 9 (2) of U. P. Government Servants (Discipline and Appeal) Rules, 1999 and the respondent no.1 submitted his explanation to the notice issued by the Disciplinary Authority. Disciplinary Authority passed the punishment order dated 11.06.2014 thereby awarding the censure entry and recovering the loss of Rs.43,969 from the respondent no.1.

Aggrieved by the punishment order dated 11.06.2014, respondent no.1 filed an appeal, dismissed by order dated 29.08.2014.

Both the orders dated 11.06.2014 as well as 29.08.2014 have been challenged by the respondent no.1 by filing Claim Petition No.1468 of 2014.

After exchange of the pleadings, by order dated 22.11.2016, the Tribunal had allowed the Claim Petition No.1468 of 2014, challenged by the petitioner by filing the present writ petition before this Court.

Shri Ajay Shankar Tewari, learned counsel for the respondent no.1 stated that in an identical circumstances, on the same set of facts, two writ petition, namely, Writ Petition Nos.21472 (SB) of 2017 and 17135 (SB) of 2017 against the claim petition which were allowed have been filed and the same were dismissed.

By order dated 12.09.2017 passed by this Court, Writ Petition No.21472 (SB) of 2017 has been dismissed, which reads as under :-

"Heard learned Standing Counsel for the State-petitioners and Shri Ajay Shanker Tiwari, learned counsel for the respondents.

It has been pointed out by the learned counsel that against similar judgment of the Tribunal of the same date, the petition filed by the State against another employee, Narendra Kumar, has since been dismissed by the order dated 1.8.2017, passed in Writ Petition No. 17135 (S/B) of 2017 [State of U.P. and others Vs. Narendra Kumar]. Copy of the said order has been placed before us. We do not find any reason to take a different view.

The present Writ Petition is dismissed for the same reasons as recorded in the order dated 1.8.2017."

By order dated 01.08.2017 passed by this Court, another Writ Petition No.17135 (SB) of 2017 has been dismissed, which reads as under :-

"1. Heard learned Standing Counsel for petitioners and Sri Ajay Shanker Tiwari, Advocate for claimant-respondent.

2. This writ petition has been filed by State of U.P. and its authorities aggrieved by judgment and order dated 23.11.2016 passed by U.P. State Public Services Tribunal (hereinafter referred to as the "Tribunal") in Claim Petition No. 1537 of 2014, allowing aforesaid claim petition and setting aside punishment order dated 11.06.2014 and appellate order dated 08.09.2014.

3. Tribunal has mainly found two substantive reasons for setting aside order of punishment. Firstly, that inquiry officer exonerated claimant-respondent from all charges but disciplinary authority instead of recording its finding on disagreement based on evidence, on his general observations held claimant-respondent guilty, particularly stating that since Government has already taken decision that there was a collective responsibility; and, secondly that the order has been passed by punishing authority in a cursory manner ignoring various grounds and issues taken by claimant-respondent in his reply to show cause notice. For this purpose Tribunal has relied on Apex Court's judgment in R.K. Mehrotra Vs. State of Bihar, 2006 SCC (L&S) 769 and G. Vallikumari Vs. Andhra Education Society and others, 2010(2) SCC 497.

4. When questioned, learned Standing Counsel could not dispute that in show cause notice the observations made by disciplinary authority are general, while disagreeing with findings of inquiry officer and it has not recorded any reason by assessing evidence available before inquiry officer but on his own personal knowledge and general observations has held claimant-respondent guilty, which cannot be said to be a finding of disagreement based on material on record.

5. Therefore, in our view, Tribunal has rightly set aside order of punishment since proceedings have been conducted in utter violation of principle of natural justice. No interference is called for.

6. Dismissed."

Shri Satyanshu Ojha , learned Standing Counsel on behalf of the petitioner did not dispute the said fact. However, he submits that in the instant matter, once the Tribunal has quashed the punishment order as well as appellate order, then in that circumstances the Tribunal should direct the punishing authority to proceed with de novo enquiry from the stage where there is no violation of principles of natural justice.

It is submitted by learned counsel for the respondent no.1 that keeping in view the above said facts, the present writ petition is liable to be dismissed as the controversy involved in the present case stands on the same footing.

We have heard learned counsel for the parties and gone through the records.

From the perusal of the record, the position which emerges out is that in the present case, the Enquiry Officer after conducting the enquiry as per procedure has exonerated the petitioner from the charges levelled against him. However, the punishing authority had disagreed with the finding given by the Enquiry Officer and thereafter, issued a show cause notice to the respondent no.1. The said action on the part of the punishing authority is contrary to the provisions as provided under Rule 9 (2) and (4) of U. P. Government Servants (Discipline and Appeal) Rules, 1999 as well as law laid down by Hon'ble the Apex Court in the case of R. K. Mehrotra vs. State of Bihar, 2006 SCC (L & S) 769 and G. Vallikumari vs. Andhra Education Society and others (2010) 2 SCC 497.

Hon'ble the Apex Court in the case of R. K. Mehrotra (Supra) held as under :-

"We are of the view that the impugned order of respondent authority imposing punishment on the applicant cannot be sustained without going into the order issue raised. Even if, we assume that Rule 55A which pertains to minor punishment was applicable and not rule 55 which relates to major punishment, nevertheless, rule 55A requires that the punishment prescribed therein cannot be passed unless the representation made pursuant to the show cause notice, has been taken into consideration before the order is passed. There is nothing in the impugned order which shows that any of the several issues raised by the applicant in his answer to the show cause notice, in fact, considered. No reason has been given by the respondent authority for holding that the charges were proved except for the ipse dixit of the disciplinary authority. The order, therefore, cannot be sustained and must be set aside."

Hon'ble the Apex Court in the case of G. Vallikumari (Supra) held as under :-

"In his order, the Chairman of the Managing Committee did refer to the allegations levelled against the appellant and representation submitted by her in the light of the findings recorded by the enquiry officer, but without even adverting to the contents of her representation and giving a semblance of indication of application of mind in the context of Rule 120 (1) (d) 9iv) of the Rules, he removal from service. Therefore, there is no escape from the conclusion that the order of punishment was passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one recognized facets of th rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned."

So, keeping in view the above said facts, the Tribunal has set aside the order of punishment dated 11.06.2014 and was also given a finding while setting aside the appellate order dated 29.08.2014 that the same is non speaking order and no reason has been assigned by the appellate authority while dismissing the petitioner's appeal and appellate authority has not given a finding that under what circumstances he disagreed with the reply submitted by the claimant. The said action is contrary to law as laid down by Hon'ble the Apex Court in the case of Navnirman Development Consultants vs. Divisional Commissioner and President District Sports Complex Executive Committee, Pune (2017) 8 SCC 603 wherein it has been held as under :-

"Be that as it may, the High Court erred in not recording any finding much less reasoned finding keeping in view the stand of the parties taken in the pleadings and the grounds of appeal. The High Court also erred in not pointing out as to why the order of the District Judge is legally sustainable calling no interference therein. If the High Court decided to embark upon the merits of the appeal then it should have recorded findings by dealing with all the issues arising in the case. It was, however, not done and hence it calls for interference by this Court."

In the present case, it is not in dispute between the parties that in an identical circumstances, on the same set of facts, two writ petition, namely, Writ Petition Nos.21472 (SB) of 2017 and 17135 (SB) of 2017 against the claim petition which were allowed have been filed and the same were dismissed and in the said matter, this Court has not given a liberty to the State to proceed with de novo enquiry.

Accordingly, keeping in view the judgment given by a Division Bench of this Court as stated above, we do not find any force to initiate the de novo enquiry in the present case, thus, the present writ petition is dismissed.

Order Date :- 11.10.2017

Mahesh