Indrapal Singh vs State Of U P And 2 Others
2019 Latest Caselaw 531 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										AFR
 
Court No. - 6
 

 
Case :- WRIT - A No. - 7976 of 2018
 

 
Petitioner :- Indrapal Singh
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Prabhakar Awasthi,Babboo Ram
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Yashwant Varma,J.

Heard Sri Prabhakar Awasthi learned counsel for the petitioner and Sri Piyush Shukla learned Additional Chief Standing Counsel for the State.

This petition impugns the order dated 11 February 2014 pursuant to which the petitioner has been subjected to a major penalty and stands reverted to the post of Survey Lekhpal in the basic scale of pay. The order of reversion passed upon culmination of disciplinary proceedings has been affirmed in appeal by the District Magistrate in terms of his order dated 16 January 2015 as well as in revision in terms of the order passed by the State on 02 February 2018. The skeletal facts which are necessary for disposal of the present writ petition are as follows.

A private complaint appears to have been made against the petitioner in respect of certain entries made in the relevant revenue record. On the basis of that complaint, a charge sheet was issued against the petitioner and he was also placed under suspension. The order of suspension passed on 09 February 2007 was challenged in  a writ petition before this Court which came to be allowed by a learned Judge on 16 August 2007. The principal ground of challenge which appears to have been addressed in that petition was with respect to the authority of the Assistant Records Officer to place the petitioner under suspension even though he had not been notified as such under the provisions of Section 49 of the U.P. Land Revenue Act 1901. The submission on behalf of the petitioner appears to have been that since the Assistant Records Officer had not been notified as the Records Officer of the area as contemplated under Section 49 of the 1901 Act, he was not entitled to either draw disciplinary proceedings or place the petitioner under suspension. This submission appears to have been conceded to by the State as a consequence of which the writ petition was allowed and the order of suspension quashed. Upon issue of the charge sheet an enquiry officer was admittedly appointed and the Naib Tehsildar who was appointed as such submitted a report on 20 June 2010 exonerating the petitioner from all the charges. The matter appears to have rested there since in the meanwhile the State had failed to notify an Assistant Records Officer who may have continued the proceedings drawn against the petitioner. On 31 December 2013 the State proceeded to notify the Assistant Records Officer who thereafter proceeded to pass the impugned order dated 11 February 2014. Although the impugned orders have been challenged on various grounds in the writ petition, learned counsel has restricted his challenge to the following ground alone. The order passed by the Assistant Records Officer is challenged principally and fundamentally on the anvil of the law as declared by the Supreme Court in Punjab National Bank v. Kunj Behari Misra [(1998) 7 SCC 84]. The submission which is addressed by Sri Awasthi is that before disagreeing with the findings returned by the enquiry officer on the individual articles of charge, the petitioner was not afforded any opportunity of hearing or to represent against the proposed action.The plea so taken stands reflected in the averments made in paragraph 33 of the writ petition.

Sri Shukla learned Additional Chief Standing Counsel has though conceding that the Assistant Records Officer did not follow the procedure as laid down in Kunj Behari Misra submitted that in light of the provisions of Rule 9 of the 1999 Rules which apply such an opportunity is not required to be afforded to the delinquent employee  since the only obligation placed in that Rule is for the Disciplinary Authority recording its own finding and reasons for disagreement. This submission is not liable to be either countenanced or accepted for the following reasons.

In Kunj Behari Misra the Supreme Court dealing with the procedure to be followed in case the Disciplinary Authority chooses to disagree with the findings returned by the enquiry officer observed thus:-

"18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] .

19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

From the principles as enunciated in that case it is evident that the right of the delinquent employee to represent against the proposed disagreement was recognised not as one flowing from the relevant statutory rules which applied there but on the principles of fair play and natural justice. The Supreme Court essentially held that since the findings of the enquiry officer  exonerating the delinquent employee is a factor which operates in his favour and to his benefit, the principles of natural justice would mandate the Disciplinary Authority affording him an opportunity to represent against the proposed action and the view which is likely to be formed by him on the enquiry report which is so submitted. This clearly appeals and appears to be in accord with the principles of natural justice since if in case the Disciplinary Authority chooses to disagree with the findings returned by the enquiry officer and to actually enter findings of guilt, the delinquent employee must be recognized to have the opportunity to represent against the course of action which is likely to be adopted by the Disciplinary Authority and to further submit before him the relevant material to establish why the findings as returned by the enquiry officer are liable to be upheld. While it is true that Rule 9 of the 1999 Rules does not specifically mirror or embody the legal position as propounded in Kunj Behari Misra this Court finds itself unable to accept the contention advanced on behalf of the State since, as noted above, the principles so enunciated have been recognised and so declared as being a facet of the principles of natural justice and not essentially flowing from a statutory rule which may be framed or apply.

As this Court reads Rule 9 it is evident that this aspect and facet of natural justice is neither expressly nor impliedly ousted.  Since there was an admitted failure on the part of the Disciplinary Authority to follow this course as mandated, the Court finds itself unable to sustain the orders impugned.

Accordingly this writ petition shall stand allowed. The impugned orders  dated 11 February 2014, 16 January 2015 and 02 February 2018 are hereby quashed and set aside. The matter in consequence shall stand remitted to the third respondent who shall now draw proceedings from the stage of the infraction which has been noticed hereinabove.

The issue of further consequential benefits shall abide by the fresh decision which the Disciplinary Authority shall now take.

Order Date :- 6.3.2019

faraz