State Of U.P. Thru. The Prin. ... vs Sheesh Pal & Anr.
2019 Latest Caselaw 5415 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 3
 

 
Case :- SERVICE BENCH No. - 16547 of 2019
 

 
Petitioner :- State Of U.P. Thru. The Prin. Secy., P.W.D., Lucknow & Anr.
 
Respondent :- Sheesh Pal & Anr.
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Hon'ble Saurabh Lavania,J.

Heard learned Additional Chief Standing Counsel Sri Pankaj Khare for the petitioners and perused the record.

By means of present writ petition, petitioners has challenged the judgement and order dated 10.5.2018 passed by State Public Services Tribunal in Claim Petiton No.2269 of 2016 (Sheesh Pal Vs. State of U.P. and another).

This is a case of an employee who had attained the age of superannuation on 30.5.2006 and is in second round of litigation in relation to the disciplinary proceedings initiated vide charge-sheet dated 22.12.2004.

Facts, in brief, of the present case are that initially respondent no.1/ Sheesh Pal was appointed on the post of Assistant Engineer and subsequently, in the year 1985 he was promoted to the post of Executive Engineer and later in the year 2000, he was promoted to the post of Superintending Engineer. While respondent no.1 was working on the post of Superintending Engineer, he was placed under suspension vide order dated 24.9.2004 in contemplation of the disciplinary proceedings. After suspension a chargesheet dated 22.12.2004 was served upon the respondent no.1 containing two charges. After receiving the chargesheet, respondent no.1 has submitted his reply to the charge-sheet and in the disciplinary proceedings which were initiated against him; charge no.1was not found proved and charge no.2 was found partly proved. Thereafter by order dated 10.5.2006 passed by petitioner no.1,punishment of reversion from the post of Superintending Engineer to Executive Engineer was awarded to respondent no.1.The punishment to the respondent no.1 was awarded just before the date of superannuation i.e. 30.5.2006

The order dated 10.5.2006 passed by petitioner no.1 was challenged by filing Writ Petition No.No.823 (SB) of 2006 (Sheesh Pal Vs. State of U.P. and others), which was disposed of by means of order dated 12.12.2011, the same reads as under:-

"Petitioner's case is that when the punishing authority is in disagreement with the findings of enquiry report, the reasons should be assigned and the delinquent officer should be issued a show cause notice giving reasons for disagreement and also he should be provided opportunity of hearing, which has not been done in this case. The said action on the part of disciplinary authority is totally unwarranted and against the settled proposition of law that if the disciplinary authority disagrees with the enquiry report submitted by the enquiry officer then it shall be necessary for the disciplinary authority to serve a notice specifying therein the points of disagreement with the enquiry officer and opportunity of hearing should also be provided. Thereafter, again fresh show cause notice should be issued explaining therein the reasons for disagreement with the enquiry officer after considering the reply submitted by the delinquent employee. Denial of these procedural formalities shall amount to denial of reasonable opportunity to defend the cause, hence violative of Article 14 of the Constitution of India ( See Punjab National Bank and others Vs. Kunj Behari Mishra, AIR 1998 SC 2713, Yoginath D. Bagde Vs. State of Maharashtra and another AIR 1999 SC 3734 and Teerath Singh Vs. Learned State Public Services Tribunal, Lucknow and others 2010(6) ALJ 604).

For the foregoing reasons, the order impugned is palpably wrong and is hereby quashed. It is open for the authority concerned to proceed in accordance with law.

Thus, the writ petition is disposed of."

Pursuant to order dated 12.12.2011 passed by this Court, petitioner no.1 passed an order dated 13.3.2012 and set aside the impugned order dated 10.5.2006 and called the explanation of respondent no.1. After receiving the order dated 13.3.2012 , petitioner submitted his reply on 15.4.2012 (tentative one) and prayed for opportunity of personal hearing and also requested for cross examination.

As no heed was paid to the aforesaid, so the respondent no.1 submitted another representation on 9.12.2012 for giving opportunity of hearing and providing documents. Without providing documents which were demanded by respondent no.1, a date was fixed for personal hearing on 26.10.2012.

On the said date respondent no.1 appeared for personal hearing and submitted his written statement.

Thereafter on 5.6.2013, petitioner no.1 issued a show cause notice directing respondent no.1 to submit his supplementary reply within 15 days to which he submitted the same on 28.6.2013, denying the charges levelled against him.

On 23.9.2016, petitioner no.1 passed punishment order by which the recovery of 5% from pension has been imposed against respondent no.1.

The order dated 23.9.2016 was challenged by the respondent no.1 in Claim Petition no. 2269 of 2016 (Sheesh Pal Vs. State of U.P. and another) which was allowed by judgement and order dated 10.5.2018. The order dated 10.5.2018 is under challenge in the present writ petition.

Learned counsel for the petitioners while challenging the order dated 10.5.2018 ( Annexure no.1 to the writ petition) submits that the order dated 23.9.2016 was passed by the petitioner no.1 keeping in view gravity of misconduct of the respondent no.1 and after giving ample opportunity to him so there is no justification on the part of Tribunal to set aside the same.

He further submits that as per Regulation 351-A of the CSR the enquiry officer had given opportunity of hearing to respondent no.1 to represent his case and the opportunity was given as per Rules prevailing and respondent no.1 had availed the said opportunity so there is no illegality or infirmity in the order dated 23.9.2016 as such the Tribunal has wrongly set aside the same, so the impugned order dated 10.5.2018 passed by Tribunal is liable to be set aside.

We have heard learned counsel for the petitioners and gone through the record.

As per undisputed facts of the case, initially the punishment order dated 10.5.2016 was passed by petitioner no.1 which was challenged by filing Writ Petition No.823 (SB) of 2006 and this Court allowed it by order dated 12.12.2011 the relevant portion of the same reads as under:-

"Thereafter, again fresh show cause notice should be issued explaining therein the reasons for disagreement with the enquiry officer after considering the reply submitted by the delinquent employee. Denial of these procedural formalities shall amount to denial of reasonable opportunity to defend the cause, hence violative of Article 14 of the Constitution of India ( See Punjab National Bank and others Vs. Kunj Behari Mishra, AIR 1998 SC 2713, Yoginath D. Bagde Vs. State of Maharashtra and another AIR 1999 SC 3734 and Teerath Singh Vs. Learned State Public Services Tribunal, Lucknow and others 2010(6) ALJ 604)."

From the perusal of impugned order dated 23.9.2016 the position which emerge out is that said order is non-speaking order and no reason whatsoever has been assigned by the punishing authority/ petitioner no.1 that on what ground he dis-agree with the replies dated 15.4.2012, 24.4.2013 and 28.6.2013 submitted by the respondent no.1 to the show cause notices dated 13.3.2012 and 5.6.2013 rather the pleadings and grounds which were taken by respondent no.1 in response to show cause notices have not been dealt with on one hand and on the other hand on the said issue impugned order is non-speaking and no reason has been assigned. The relevant portion of the order of punishment dated 23.09.2016 is quoted below:-

"???????? ?????? ??? ????? ???????? ?? ??????????????? ?????? ??????? ?????? ???? ???????????? ????????? ?? ?????? ??????? ? ???? ?? ???? ???????? ?????????? ????? ???? ?? ???? ???????? ???? ?? | ?? ?????? ???? ?????? ?? ??????? ????? ??? ????? ???? ???????? ???? ??? | ???? ???????? ?????? ?? ???????? ???? ?????? ?? ????? ?? ?% ?? ????? ????? ?????? ?? ???? ???? ?? ??? ?? ????? ??? ?? ???????? ???? ??? ???? ?? ???? ?????? -??. ? ?/?? ??-??--?? (???)/??,?????? ??.?.???? ?????? ?????? ???? ???? ?? ????? ????? ??? ,?? ???? ???? ?????? -?. ??. ??./??-?/????-?? ?????? ??.??.???? ?? ?????? ?? ?????? ???? ??? |

??? ???? ???????? ?????????? ???? ?????? ,???????? ??????? ??????? (???????? ) ??????????? ,????? -????? ?????, ??. ??. ??. ????? ?? ????? ?? ?% ?? ????? ????? ?????? ?? ???? ???? ?? ??? ?????? ???? ??? ???? ??????? ???????? ????? ?????? -???/??-??-??-?? (???)/??,?????? ??.?.???? ?????? ?? -???? ????????? ????????? ?????? ???? ???? ?? ???? ?????? ???? ??|"

It is well settled law that an order passed by an authority should be a reasoned one and the objection taken by a person should be dealt with because reasons are like a live wire which connect the mind of the decision making authority and the decision given by him and if this wire/link is broken i.e. to say no reasons are given in the impugned order then it will not be possible to know as what was going in the mind of the decision making authority on the basis of which he has come to the conclusion and passed the impugned order.

Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the later before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. The inscrutable face of the sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance.

The requirement of recording reasons is also in accordance with the principles of natural justice as a person against whom the impugned decision is taken should know that under what circumstances such order has been passed and as in the present case, the impugned orders are non-speaking orders and no reason whatsoever has been assigned by the opposite parties while passing the same, so the same is violative of principles of natural justice, arbitrary in nature and cannot be sustained.

In this regard , the Tribunal after taking into consideration the material on record and placing reliance on the judgments of Hon'ble Apex Court on the issue of requirement of recording reasons, interfered in the order dated 23.09.2016 and allowed the claim petition vide impugned judgment and order dated 10.05.2018.

In the case of Raj Kumar Mehrotra Vs.State of Bihar and ohters, 2006 SCC( L&S) 679 Hon'ble Apex Court has held as under:-

"Without going into other issues raised, we are of the view that the impugned order of the respondent authority imposing punishment on the appellant cannot be sustained. Even if we assume that Rule 55-A which pertains to minor punishment was applicable and not Rule 55 which relates to major punishment , nevertheless Rule 55-A 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 appellant in his answer to the show-cause notice were, 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 and is set aside."

In the case of Union of India Vs. Mohan Lal Kapoor (1973) 2 SCC 836 the Hon'ble Apex Court has held as under:-

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi- judicial. The should reveal a rational nexus between the facts considered and the conclusions reached."

In the case of G. Valli Kumar Vs. Andhra Education Society, 2010 (2) SCC 497, the Hon'ble Apex Court has held as under:-

"that 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 of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned."

We find from record which includes replies submitted by the respondent no.1 and order dated 23.09.2016, relevant portion of which is quoted above, that the order dated 23.9.2016 is non-speaking order as well as in contravention to the directions given by this Court in the order dated 12.12.2011 passed in Writ Petition no.823(SB) of 2006 and accordingly we are of the view that the same has been rightly set aside by the Tribunal and the findings in the impugned order dated 10.5.2018 are perfectly valid and need no interference.

The next argument raised by learned counsel for the petitioners/ State that adequate opportunity was provided to respondent no.1, as per Regulation 351-A of the CSR and during the disciplinary proceedings/enquiry proceedings, concerned officer had given opportunity of hearing to respondent no.1 to represent his case, as per Rules, is not correct because from the material on record and the pleas taken by respondent no.1 in Claim Petition in para 4.12 and 4.13 on the issue of providing adequate opportunity of hearing and providing relevant documents have not been denied by the petitioners in the counter affidavit ( Para-10), which was filed by the petitioners before the Tribunal.

It has been categorically pleaded and stated by the respondent no.1 that after quashing of the punishment order dated 10.5.2006 by this Court vide order dated 12.12.2011 in Writ Petition No.823(SB) of 2006 , petitioner no.1 passed an order dated 13.03.2012, setting aside the order dated 10.5.2006 calling explanation from respondent no.1. In response to the order/ letter dated 13.3.2012, respondent no.1 submitted his reply on 15.4.2012 denying the charges mentioned therein and demanded relevant documents mentioned in the order/ letter dated 13.3.2012, which were not supplied, and also requested for personal hearing and opportunity of cross examination, the same was not provided and only a date for personal hearing was fixed on 26.10.2012. On the said date, respondent appeared for personal hearing and submitted his written statement . Thereafter a show cause notice dated 5.6.2013 was issued to respondent no.1 for giving supplementary reply to which he submitted his supplementary reply on 18.6.2013.Thereafter impugned punishment order 23.9.2016 was passed by petitioner no.1.

So in view of the aforesaid, we are of the view that the proceedings after the judgement dated 12.12.2011 against respondent no.1 were empty formalities rather the same were in contravention to the direction given by this Court in Writ Petition no. 823 (SB) of 2006 vide judgment dated 12.12.2011 and also the same were in violation of principles of natural justice.

The Apex Court in the case of M/s. East India Commercial Co. Ltd. Calcutta and another vs. Collector of Customs, Calcutta (AIR 1962 SC 1893), has held as under :

"Under Art. 215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercise jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working : otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer.

So the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction."

For the foregoing reasons, we do not find any illegality or infirmity in the judgment and order dated 10.5.2018 passed by State Public Services Tribunal in Claim Petition no.2269 of 2016 (Sheesh Pal Vs. State of U.P. and another).

In the result, the writ petition lacks merit and is dismissed.

.

(Saurabh Lavania,J.) (Anil Kumar,J.)

Order Date :- 1.7.2019

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