Shiv Narain Tripathi vs State Of U.P. And 2 Ors.
2019 Latest Caselaw 5145 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										AFR
 
Judgment Reserved on 21 May 2019
 
Judgment Delivered on  29 May 2019
 
Court No. - 6
 

 
Case :- WRIT - A No. - 5545 of 2018
 

 
Petitioner :- Shiv Narain Tripathi
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Girish Chandra Shukla,Ashok Kumar Mishra,Mr. Ashok Khare,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,C.S.C.,M.N. Singh,V.P. Varshney
 

 
Hon'ble Yashwant Varma,J.

Heard Sri Ashok Khare learned Senior Counsel in support of the petition, Sri V.P. Varshney learned counsel appearing for the Commission and Dr. D.K. Tiwari, the learned Additional Chief Standing Counsel for the State.

This writ petition impugns the order dated 02 February 2018 passed by the State Government forfeiting the retiral benefits of the petitioner to the extent of loss caused to the State Government in exercise of powers conferred by Regulation 351B of the Civil Services Regulations as applicable in the State of U.P [hereinafter referred to as "the CSR"]. The order further retains the gratuity and leave encashment benefits liable to be disbursed in favour of the petitioner to recover the alleged pecuniary loss caused to the State Government. The petition seeks consequential reliefs for release of the entire pensionary benefits, gratuity and leave encashment. A further direction is sought commanding the respondents to release the arrears of salary and the subsistence allowance for the period 04 December 1999 to 29 May 2003 as also for the period 12 December 2007 to 31 December 2010.

The facts that may be noticed and would be relevant for a decision being rendered on this writ petition are as follows. The petition was originally appointed as an Assistant Engineer in the Minor Irrigation Department of the State. On 02 July 1982 he was promoted as an Executive Engineer. It was while functioning as such that the State Government passed an order of dismissal on 04 July 2010 and further directed recoveries to be effected from the movable and immovable properties of the petitioner. This decision of the State Government was assailed by the petitioner by way of Writ Petition No. 8299 of 2010. The said petition was allowed by a Division Bench of the Court in the following terms: -

"After going through the record, we are satisfied that the departmental enquiry was not conducted in accordance with U.P. Government Servant (Punishment & Appeal) Rules 1999. The enquiry officer did not fix any dates, to examine the material and witnesses in support of charges to establish the guilt. No witness was examined to prove the charges. His assessment on each of the charge was only based on his own inspections and his own satisfaction without recording any reason or reasoning for the same. Absolutely no reasons have been given in finding that the charges were proved. The charges in the main and supplementary charge sheet have been mixed up to compound the amount of embezzlement. Inspite of the advice given by UPPSC to fix accountability the enquiry officer, alleged to be a rival of the petitioner for promotion, the disciplinary authority insisted upon recovering the entire amount from the petitioner. The petitioner's detailed reply to the charges was not considered at all.

In the circumstances, we set aside the order dated 4.1.2010 passed by the State Government (Annexure-14 to the writ petition) and direct that the authorities will conduct fresh enquiry from the stage of serving/supply of charge sheet to the petitioner. The petitioner will have opportunity to submit reply to the charge sheet including to the allegations that he has taken away most of the records. The petitioner undertakes to cooperate in the enquiry, and not to seek any unnecessary adjournment. The departmental enquiry may be concluded within a period of six months. We do not propose to pass any order with regard to reinstatement of the petitioner and his reinstatement and back wages shall be subject to the result of the enquiry.

The writ petition is allowed with the aforesaid directions/observations."

Pursuant to the liberty granted by the Court for a fresh enquiry being conducted and commenced from the stage of service of the charge sheet, the State Government is stated to have appointed an Enquiry Officer and recommenced the disciplinary proceedings. In September 2010 the petitioner was served with a charge sheet as well as a supplementary charge sheet. He is stated to have submitted his reply on 15 October 2010. During the pendency of the disciplinary proceedings, the petitioner attained the age of superannuation on 31 December 2010. Since the enquiry proceedings were pending and had not attained finality within the time stipulated in the judgment rendered by the Court, he instituted proceedings in contempt before this Court. Notices on this contempt petition are stated to have been issued on 13 January 2011. The petitioner was served with an enquiry report thereafter on 13 February 2011. He is stated to have submitted detailed objections to the findings recorded therein. On 11 March 2011 the State Government communicated its decision to the petitioner that based on the findings recorded in the enquiry report he was found guilty of charge Nos. 22 and 23 as well as supplementary charge No.1. The petitioner furnished his detailed objections to the notice so issued.

Since the petitioner had already superannuated in December 2010 and was not even being paid provisional pension, he preferred another writ petition before this Court being Writ Petition No. 44343 of 2011. On that writ petition on 05 August 2011 the Division Bench passed an order directing the respondents to ensure payment of provisional pension and other permissible retiral benefits in the interim or to show cause. It was further observed that as the enquiry report had already been submitted, it would be open for the Disciplinary Authority to pass final orders in accordance with law. Since the disciplinary proceedings were not concluded even thereafter, the petitioner instituted yet another contempt petition which was registered as Contempt Application No. 187 of 2011. Upon notices being issued, an affidavit of compliance dated 21 December 2011 was filed in that petition bringing on record an order dated 5 December 2011 purporting to be the final order passed on the culmination of the disciplinary proceedings.

By the order of 05 December 2011 the State Government yet again took a decision to forfeit the entire pension, gratuity and leave encashment benefits payable to the petitioner. This order was assailed by the petitioner by way of Writ Petition No. 2160 of 2012. On 12 January 2012 as an interim measure, the Court directed the respondents to pay a provisional pension to the petitioner in accordance with the rules commencing from the date of his retirement. That writ petition was ultimately allowed on 11 April 2017 and the impugned order dated 05 December 2011 was quashed. The Division Bench while allowing the writ petitioner noted the factual position in the following terms:

"Sri Khare, learned Senior Counsel for the petitioner submitted that the impugned order dated 5.12.2011 is completely a non-speaking order, it neither deals with the charges nor deals with the finding of the Inquiry Officer nor deals with the material on the basis of which Enquiry Officer recorded his findings nor the Disciplinary Authority considered his explanation against the two show cause notices referred to above. He submitted that not a word has been mentioned about the reply submitted by the petitioner and after simply recording the facts leading to the conclusion of the inquiry and issuance of the show cause notice, impugned punishment has been awarded after having obtained the approval from the U.P. Public Service Commission.

It was in this context that the original records from the Commission were summoned to see as to whether the Disciplinary Authority had earlier recorded any detailed consideration of the inquiry report and the two replies submitted by the petitioner. From the original records produced from the Commission we find that the reference made to the Commission was verbatim the same as the punishment order except the last paragraph in which request was made to the Commission to tender its approval on the proposed punishment. The said communication to the Principal Secretary is dated 29.04.2011. It appears that after receiving reminders the Commission recorded its approval and thereafter the impugned order of punishment was issued.

In view of the above Sri Khare, learned Senior Counsel submitted that the punishment order can not be sustained being a non-speaking order and without application of mind by the Disciplinary Authority. He also submitted that withholding of Leave Encashment by the impugned order is also contrary to the relevant service rules relating to awarding of punishment.

Be that as it may, since we are convinced that there is failure of application of mind by the Disciplinary Authority by imposing the impugned punishment, while setting aside the same we leave it open to the Disciplinary authority to pass a fresh order after considering the entire material before it relating to the inquiry and the reply submitted by the petitioner. While passing the fresh order the Disciplinary Authority shall take into consideration as to whether the punishment imposed is in accordance with the applicable services rules relating to awarding punishment. Thereafter the matter may be again referred to the Commission for its approval in accordance to laws in case any punishment is proposed." (emphasis supplied)

The operative directions as framed by the Division Bench are extracted hereinbelow: -

"We accordingly allow this petition and quash the impugned punishment order dated 5.12.2011 (Annexure 13 to the writ petition). We further leave it open to the respondents to take a fresh decision in accordance to law and in the light of the observations made in this order.

We also find that there is an interim order operating in this petition dated 12.01.2012 which provided that the petitioner would be entitled to be paid provisional pension calculated on the basis of last pay drawn in accordance with the Rules beginning from the date of his retirement. This interim arrangement would continue till fresh decision is taken in the matter of the petitioner as directed above. Rest of the amount which have been withheld would not be released and will also be subject to the final decision taken by the concerned respondent."

Since the issue of finalisation of disciplinary measures was not concluded in accordance with the directions made by the Court in its final judgment of 11 April 2017, the petitioner instituted contempt petition being Contempt Application (Civil) No. 3358 of 2017. In that contempt petition on 22 November 2017, the Court was apprised by the respondents that a three member Committee [hereinafter referred to as "the Committee"] had been constituted to ascertain the losses caused to the State on account of the acts of misconduct committed by the petitioner and that based upon its findings, final orders would be passed. Ultimately and on 02 February 2018 the impugned order came to be made by the respondents.

The impugned order principally rests on a report submitted by the Committee said to have been constituted by the State Government. It has principally found that the petitioner by his acts of misconduct caused pecuniary loss to the State Government to the extent of Rs. 50,48,945/-. It refers to the fact that an amount of Rs. 14,75,303/ already stood retained against the gratuity and leave encashment benefits payable to the petitioner. The balance amount of Rs. 35,73,642/- was forfeited against the pensionary benefits payable to the petitioner with the respondents invoking the powers conferred by Regulation 351 B of the CSR.

The Court deems it apposite to extract the following findings and conclusions as recorded in the order impugned:-

"7- mDr fjV ;kfpdk esa ek0 mPp U;k;ky; }kjk ikfjr fu.kZ; fnukad 11-04-2017 ds vuqikyu esa 'kklu ds dk;kZy; Kki fnukad 29-08-2017 }kjk izdj.k dk ijh{k.k djus ,oa Jh f=ikBh ds mij lafLFkr vkjksiksa es fufgr 'kkldh; {kfr dk vkadyu djus ds fy, f=&lnL;h; lfefr xfBr djrs gq, izdj.k dk ijh{k.k djds viuh laaLrqfr miyC/k djk;s tkus ds funZs'k lfefr dks fn;s x;sA lfefr }kjk viuh vk[;k 'kklu dks fnukad 15-11-207 dks miyC/k djk;h x;hA

8- lfefr }kjk eq[; vkjksi i= ds 26 vkjksiksa ,oa 05 vuqiwjd vkjksiksa dk miyC/k lk{;ksa ,oa vfHkys[kksa ds vk/kkj ij ijh{k.k djrs gq;s ijh{k.kksijkUr izdj.k esa dqy #0& 50]48]945-00 dh 'kkldh; {kfr fufgr ik;h x;h gSA lfefr }kjk ;g Hkh mYys[k fd;k x;k gS fd iwoZ esa 'kklu }kjk tkjh n.Mkns'k fnukad 05-12-2011 dh dk;kZy; fVIi.kh] tks lcaf/kr i=koyh ds i`"B & 122 ij vafdr dh x;h gS] ds vuqlkj Jh f=ikBh ds fo#) xfBr 26 ewy vkjksiksa esa ls vkjksi la[;k & 2]4]5]6]7]8]9] 10]11]12]14]17]18]20]22]23]24 rFkk 25 ,oa vuqiwjd vkjksi la[;k & 1 Jh f=ikBh ij fl) ik;k x;k gSA ftlds lkis{k dqy /kujkf'k #0 & 48]69]341-00 dh 'kkldh; {kfr n'kkZ;h x;hA lfefr }kjk bu vkjksiks esas fufgr mDr /kujkf'k #0& 48]69]341-00 dk fofHkUu izdkjks से ;ksx djus dk Hkh iz;kl fd;k x;k] ysfdu {kfr dh mDr /kujkf'k dk v{kj'k% feyku ugh gks ldkA

lfefr }kjk fd;s x;s ijh{k.k ds vk/kkj ij lfefr }kjk ;g laLrqfr dh x;h gS fd lk{;ksa ,oa vfHkys[kks ds vk/kkj ij Jh f=ikBh ds mij orZeku ijh{k.k es fl) ik;s x;s vkjksikas ds vUrxZar fufgr /kujkf'k #0& 50]48]945-00 dh 'kkldh; {kfr dh olwyh gsrq lSYQ Lihfdax vkns'k fuxZr fd;k tkuk mfpr gksxkA

9- lfefr }kjk miyC/k djk;h x;h ijh{k.k vk[;k esa fufgr 'kkldh; {kfr dh /kujkf'k ds lkis{k 'kklu Lrj ij ijh{k.kksijkUr izLrkfor n.M ij 'kklu ds i= fnukad 21-12-2017 rFkk vuqLekjd i= fnukad 25-01-2018 ,oa i= fnukad 01-02-2018 }kjk yksd lsok vk;ksx dh lgefr gsrq vuqjks/k fd;k x;kA

10- mDr ds dze essa yksd lsok vk;ksx ds i= fnukad 02-2-2018 Jh ,l0 ,u0 f=ikBh] rRdkyhu vf/k'kklh vfHk;ark] y?kq flapkbZ [k.M] fetkZiqj lEizfr ¼lsokfuo`RRk½ ds }kjk vius dk;Zdky es cjrh x;h xEHkhj foRrh; vfu;feRrvksa ds QyLo#i 'kkldh; {kfr dh /kujkf'k #0& 50]48]945-00 dh olwyh Jh f=ikBh dks ns; vkuqrksf"kd ¼xzsP;qVh½ dh /kujkf'k #0& 8,96,753.00 ¼vkB yk[k fN;kuos gtkj lkr lkS frjiu½ o ns; vodk'k udnhdj.k dh /kujkf'k #0 & 5]78]550-00 ¼ikap yk[k vBgRRkj gtkj ikap lkS ipkl ek=½ bl izdkj dqy /kujkf'k #0& 14]75]303-00 jksds tkus QyLo#i vo'ks"k 'kkldh; {kfr dh /kujkf'k #0& 35]73]642-00 dh izfriwfrZ ds fy, lh0 ,l0 vkj0 ds vuqPNsn & 351 ch dh O;oLFkkuqlkj mudh isa'ku ls fu;ekuqlkj dVkSrh fd;s tkus ds izLrkfor n.M ij yksd lsok vk;ksx dh lgefr iznku dh x;h gSA

11- vr% mijksDr mfYyf[kr rF;ksa rFkk ek0 mPp U;k;ky; eas ;ksftr iz'uxr fjV ;kfpdk la[;k& [email protected] 2012] f'ko ukjk;.k f=ikBh cuke mRrj izns'k jkT; o vU; esa ek0 mPPk U;k;ky; }kjk ikfjr fu.kZ; fnukad 11-04-2017 ds vuqikyu esa Jh ,l0 ,u0 f=ikBh ds fo#) iwoZ ikfjr n.Mkns'k lEcU/kh dk;kZy; Kki la[;k & [email protected]&2&2011&[email protected]¼13½@2010] fnukad 05-12-2011 dks 'kklu ds dk;kZy; Kki la[;k& [email protected]&2&2017&[email protected]¼06½@2012] fnukad 14-11-2017 }kjk fujLr fd;k tk pqdk gS rFkk izdj.k esa 'kklu dss dk;kZy; Kki fnukad & 29-08-2017 }kjk xfBr f=&lnL;h; lfefr }kjk miyC/k djk;h x;h ijh{k.k vk[;k fnukad 15-11-2017 ds vkyksd esa 'kklu Lrj ij lk{;kas ,oa vfHkys[kksa ds vk/kkj ij fd;s x;s ijh{k.kksijkUr Jh ,l0 ,u0 f=ikBh] rRdkyhu vf/k'kklh vfHk;ark] y?kq flapkbZ [k.M] fetkZiqj lEizfr ¼lsokfuo`Rr½ ds }kjk vius dk;Zdky esa cjrh x;h xEHkhj foRrh; vfu;feRrvksa ds QyLo#i 'kkldh; {kfr dh /kujkf'k #0&50]48]945-00 ¼'kklu ds dk;kZy; Kki fnukad 29-8-2017 }kjk xfBr f=&lnL;h; lfefr }kjk vkjksiokj vakdfyr {kfr dk fooj.k layXu½ dh olwyh Jh f=ikBh dks ns; vkuqrksf"kd ¼xzsP;qVh½ dh /kujkf'k #0& 8]96]753-00 ¼vkB yk[k fN;kuos gtkj lkr lkS frjiu½ o ns; vodk'k udnhdj.k dh /kujkf'k #0&5]78]550-00 ¼ikap yk[k vBgRrj ikap lkS ipkl ek=½ bl izdkj dqy /kujkf'k #0& 14]75]303-00 dks jksds tkus ds QyLo#i vo'ks"k 'kkldh; {kfr dh /kujkf'k #0& 35]73]642-00 dh izfriwfrZ ds fy, lh0 ,l0 vkj0 ds vuqPNsn & 351 ch dh O;oLFkkuqlkj mudh isa'ku ls fu;ekuqlkj dVkSrh fd;s tkus dh Jh jkT;iky lg"kZ Lohd`fr iznku djrs gSA

layXud& ;FkksDrA"

As is evident from the above extracts, the impugned order rests solely on the findings as recorded by the Committee and the losses as ascertained by it. This aspect assumes significance since the Division Bench which had lastly allowed the writ petition of the petitioner had granted liberty to the Disciplinary Authority to pass fresh orders after considering the entire material gathered in the course of the enquiry proceedings. Regard must also be had to the fact that the Court had found that the Disciplinary Authority had completely failed to apply its mind while imposing punishment. It had also taken note of the contention addressed at the behest of the petitioner that the impugned order of punishment was contrary to the relevant service rules. It also noticed that while passing the order of punishment, the Disciplinary Authority had failed to either allude to or consider the reply which had been submitted by the petitioner in response to the show cause notices issued. It was in that backdrop that it had specifically observed that the Disciplinary Authority, while being accorded liberty to pass fresh orders, would take into consideration the reply as furnished by the petitioner as well as deal with the challenge raised to the order of punishment to the extent that it was asserted to be contrary to the rules relating to award of punishment.

The Court while hearing this petition on 15 May 2019 found, prima facie, that the order impugned, ex facie, did not appear to be in accordance with the directions as framed by the Division Bench. This Court was constrained to notice this aspect since the impugned order on its plain reading failed to establish that the Disciplinary Authority conferred any consideration on the objections as raised or the replies submitted by the petitioner. All that the State Government appeared to have done post the writ petition being allowed on 11 April 2017 was to refer the entire matter to be examined by a Committee. As is manifest from the recitals appearing in paragraph-8 of the impugned order referred to above, it appeared that even this Committee did not independently evaluate or assess the objections taken by the petitioner to the findings of guilt or the detailed replies which were furnished by him in response to the show cause notices issued. The Committee appeared to have merely undertaken an exercise to quantify the loss stated to have been caused to public exchequer based upon the findings of guilt as recorded in the enquiry report.

Prior to the passing of the order impugned, the State Government is stated to have transmitted the relevant record to the Commission for its advice. The Commission also appeared to have failed to notice the fundamental flaws with which the impugned order suffered. Noticing the above, the Court on 15 May 2019 passed the following order:-

"Heard Sri Ashok Khare, learned Senior Counsel in support of this writ petition, Dr. Devendra Kumar Tiwari, learned Additional Chief Standing Counsel and Sri V.P. Varshney learned counsel for the Commission.

Presently and on a prima facie consideration of the submissions advanced, this Court finds itself unable to sustain the conclusions as recorded in paragraph 8 and on the basis of which the punishment has come to be imposed upon the petitioner. It is presently not established that the exercise as undertaken by the Disciplinary Authority is in accord with the spirit of the decision rendered inter partes by the Division Bench earlier.

The Court would also request Sri Varshney to address submissions on the nature of the power which the Commission exercises while according approval as also the basis on which it was justified to approve the procedure as adopted and which ultimately led to the recordal of the conclusions in paragraph 8 of the impugned order.

Sri Varshney, learned counsel for the Commission prays for liberty to produce the relevant record.

Include in the additional cause list of 21 May 2019. "

Sri Varshney learned counsel representing the Commission had produced the relevant record for the perusal of the Court. From the record it transpires that on 21 December 2017 a communication was addressed to the Commission seeking its advise with respect to the proposed action of recovery of a sum of Rs. 50,48,945/- from the leave encashment benefits and pensionary dues payable to the petitioner. On 18 January 2018, the Commission tendered its advise to the State Government apprising it that the proposed recovery of pecuniary loss was not in accordance with the provisions of Regulation 351B of the CSR which mandated that recovery from pensionary dues would ordinarily not be made at a rate exceeding 1/3rd of the gross pension sanctioned. While the matter stood thus, the State Government addressed a communication dated 25 January 2018 again requesting it to accord approval to the proposed punishment. Appended alongwith this communication were extracts of a note sheet, presumably of the record maintained by the State Government, running from pages 135 to 169. The examination of the note sheet also establishes that the opinion of the Government was founded solely upon the report of the Committee. Even the note sheet does not establish any independent evaluation of the facts by the Disciplinary Authority. The note sheet after tracing the history of the litigation and the findings of the Committee proposed that approval to the punishment be obtained from the Principal Secretary and the Hon'ble Minister of the concerned Department and papers forwarded to the Commission for further action. Upon the proposal being approved by the concerned Principal Secretary and the Hon'ble Minister, the papers were forwarded to the Public Service Commission under the cover of the letter of 25 January 2018. On 30 January 2018 the Principal Secretary in the State Government addressed a communication to the Commission apprising it of the need to expedite the entire matter in light of the fact that the case was likely to come up before the High Court on 05 February 2018. This letter appears to have been addressed in light of the contempt petition which had been instituted by the petitioner and on which a learned Judge had on 12 October 2017, 22 November 2017 and lastly on 01 December 2017 required the respondents to expedite the entire matter since the petitioner had retired as far back as in 2010 and the dispute had not seen resolution till that date. On 01 February 2018 the Commission again drew the attention of the State Government to the provisions of Regulation 351 B of the CSR. The Public Service Commission ultimately on 02 February 2018 tendered its advise in the following terms-

(a). Retention and forfeiture of gratuity and leave encashment benefits.

(b). Recovery of balance amount of the pecuniary loss caused to the State Government from the pensionary dues payable to the petitioner in accordance with the provision of Regulation 351B.

Pursuant to the advice and approval so tendered by the Commission, the impugned order came to be passed.

Sri Khare, learned Senior Counsel who has appeared in support of the petition, has assailed the impugned action vehemently contending that the respondents have abjectly failed to follow the procedure which was mandated in terms of the judgment rendered by the Division Bench while allowing the writ petition preferred by the petitioner. He contended that the respondents have all over again failed to either notice or consider the responses submitted by the petitioner to the show cause notices which were issued to him. Sri Khare submits that yet again there has been a complete non application of mind to the objections which were taken by the petitioner not only to the findings as recorded by the Enquiry Officer but also to the legal objections which were taken to the punishment which was ultimately imposed. Sri Khare contends that the manner in which the order impugned has come to be passed, ex facie, evidences a clear abdication of the obligation which stood placed upon the Disciplinary Authority. According to Sri Khare the Disciplinary Authority has not applied its mind and has merely adopted the quantification of loss as made by the Committee. In support of his submissions Sri Khare placed reliance on the following principles as laid down by a Division Bench of the Court in Committee of Managment Attarra Post Graduate College Vs. Vice Chancellor, Bundelkhand University And Another1:-

"20. The next question that may be considered is whether the Vice Chancellor could appoint the Enquiry Committee for investigation and finding out the fact. We have already pointed out that the general rule is that a quasi judicial tribunal becomes functus officio as soon as it makes a decision relating to a particular matter. It cannot, therefore, review its decision unless so empowered. This does not, however, mean that in the absence of statutory provisions, it is powerless to exercise those powers which are inherent in every judicial tribunal, e.g.-

(a) to reopen an ex parte proceedings, --not on the ground that a party failed to appear,-- but on the ground that a decision was reached behind the back of a necessary party.

(b). to ratify its own mistake, which was committed overlooking a change in the law or misrepresentation of relevant facts.

21. The principle that any statutory power, if specifically vested in certain person, must be exercised by that very person and no other, applies to quasi judicial power.

22. For the above proposition, reference may be made to a decision in Barnard V. National Dock Labour Board, 1953 1 AIIER 1113. It was held:

The power..... on the local board was a judicial or quasi judicial function and the local board had no power to delegate it or subsequently to ratify a decision by a person to whom the power of suspension had been improperly delegated and, therefore, the suspension of the Plaintiffs by the port manager, was a nullity; the court had power in their discretion to make a declaration relating to the validity of the decision of a statutory tribunal; and in the circumstances would grant the Plaintiff a declaration that their suspension was wrongful and a nullity.

23. In Vine v. National Dock Labour Board 1656 3 AIIER 939 the same view was taken by the House of Lords when it held that the Plaintiff's purported dismissal was a nullity since the local board had no power to delegate its disciplinary functions.

24. It was suggested that the Enquiry Committee appointed by the Vice Chancellor included a representative or a nominee of the Committee of Management also did if the Committee did not choose to send its nominee, the Committee could not contend either that the constitution of the Committee was illegal or that the power could not be delegated for making enquiry about the affairs of the College which led to the termination of the services of Respondent No.2. We do not find any merit in this submission."

Sri Khare also took strong exception to the manner in which the Commission proceeded to accord its approval to the proposed order of punishment. According to Sri Khare the Commission has clearly failed to exercise the constitutional obligation that stood placed upon it by virtue of Article 320(3) of the Constitution. Sri Khare contended that consultation with the Commission must be interpreted to mean effective consultation and necessarily supposes due application of mind by the Commission. He submitted that by virtue of the constitutional position of eminence which has been accorded to the Commission, it was incumbent upon it to examine and ensure that the directions issued by the Court had been adhered to. In view of the above Sri Khare submitted that the impugned order as well as the proceedings as initiated against the petitioner were liable to be quashed in toto.

Sri Varshney while accepting that the Commission was under an obligation to go through the entire enquiry proceedings, examine the nature of punishment, gravity of the charge and other allied aspects, contended that ultimately the role of the Commission is only advisory in character. According to Sri Varshney the Commission conferred due consideration on the entire matter and it was in that backdrop that it had drawn the attention of the State Government to the provisions of Regulation 351 B of the CSR.

Sri Tiwari addressing submissions on behalf of the State respondents drew the attention of the Court to the detailed report submitted by the Committee and asserted that huge pecuniary loss had been caused to the State Government on account of various acts of misconduct which had been committed by the petitioner and that consequently the impugned orders were not liable to be interfered with. He contended that the State Government had proceeded in the matter with due application of mind and on the advise as tendered by the Commission.

Before proceeding to deal with the rival submissions noted above, it become pertinent to note that neither Sri Varshney nor the Additional Chief Standing Counsel were able to justify the procedure as followed by the respondents when viewed in light of the unambiguous directions framed by the Court in its judgment rendered on the earlier petition filed by the petitioner. The learned Additional Chief Standing Counsel in fact candidly admitted that the documents were scrutinized by the Committee alone and it was that Committee which formulated the punishment proposed. It is in that backdrop that the Court then proceeds to deal with the validity of the impugned order.

As noted above, the impugned order ex facie establishes a complete and abject abdication of the duty cast and obligation placed upon the Disciplinary Authority. The Court in its final judgment rendered on 11 April 2017 had in clear and unequivocal terms commanded the Disciplinary Authority to revisit the entire matter after considering the entire material including the reply submitted by the petitioner. Neither the impugned order nor the record placed before the Court to which its attention was drawn by learned counsels for the respondents establishes any application of mind by the Disciplinary Authority to the directions as framed by the Court in the earlier round of litigation. In the earlier writ petition two principal objections appear to have been urged for the consideration of the Court. It was firstly urged that the Disciplinary Authority had failed to consider the explanation as tendered by the petitioner against the findings of guilt as recorded by the Enquiry Officer. It was also urged that the nature of punishments which were imposed clearly did not have legal sanction and were contrary to the relevant service rules. The Court had in those proceedings also summoned the records of the Commission and found that the entire proceeding undertaken suffered from the vice of non-application of mind. As is manifestly clear from a reading of paragraph-8 of the impugned order, the Committee which was constituted by the Disciplinary Authority merely undertook an exercise to quantify the pecuniary loss allegedly caused to the State Government. It commenced the exercise of computation based upon the report of the Enquiry Officer entering findings of guilt against the petitioner. It essentially proceeded assuming the correctness of the findings of guilt as recorded and completely ignored the objections preferred by the petitioner to that report. All that it thereafter proceeded to do was to compute the loss caused to the State Government. Neither the Committee nor the Disciplinary Authority have either noticed, referred to or considered the explanation as tendered by the petitioner. In fact and as is evident from the impugned order the proceedings were taken to conclusion based solely on the presumption that the findings of guilt were correct and were not assailed. Additionally, neither the Committee nor the Disciplinary Authority have alluded to the legal objection which was taken by the petitioner and observed also by the Court in its earlier judgment when it noted the submission of the petitioner that the punishments were contrary to the statutory rules. The petitioner had vehemently contended that forfeiture of gratuity and leave encashment was beyond the scope of the rules applicable. It was urged that the action of forfeiture clearly did not have sanction in law. Far from referring to the legal challenge that was raised by the petitioner, the respondents have failed to even notice the same. There has thus been a manifest failure on the part of the respondents to abide by the directions issued by this Court.

On a more fundamental plane, this Court is constrained to observe that the obligation to consider the challenge raised by the petitioner to the proposed punishment ultimately rested on the Disciplinary Authority. The command of the Court was for this authority to revisit the entire proceedings, evaluate the response of the petitioner, take into consideration the objections taken to the findings of guilt as well as the jurisdiction to impose the punishments in question and thereafter frame a decision. There has, however, as the facts noticed above would establish, a manifest abdication of authority by the Disciplinary Authority. As the record placed before the Court establishes, the matter has been processed and dealt with as any other routine decision at the level of the State Government. The Committee was entrusted with the task of quantifying the loss caused. It proceeded on the presumption that the findings of guilt as recorded by the Enquiry Officer were final and were neither liable to be re evaluated nor the objections of the petitioner to those findings required to be considered. The findings of this Committee which also framed the proposed order of punishment was approved by the concerned Principal Secretary, the Hon'ble Minister of the department and a host of other officers in the hierarchy. The respondents clearly did not bear in mind that the issue principally was of disciplinary action which mandated firstly that the Disciplinary Authority himself would reappraise the entire matter. This more so in light of the directions issued by the Court. Learned counsels for the respondents did not draw the attention of the Court to any part of the record which may have established or evidenced an application of mind by the Disciplinary Authority. Assuming for the sake of argument that the Disciplinary Authority could have constituted a Committee to undertake a preliminary fact finding exercise or even arrive at a tentative opinion with regard to the correctness of guilt and assessment of loss caused, that did not absolve the Disciplinary Authority from its obligation and duty to appraise the entire issue himself. While a Committee may be formed to elicit and gather facts as part of a preparatory exercise, it cannot assume the character or metamorphose into the decision-making authority itself. The power to ultimately assess and decide must be of the authority statutorily mandated to exercise that function. In the facts of the present case there has been a lamentable renunciation and abandonment of power by the Disciplinary Authority. It is in view of the above that the Court finds considerable force in the submission of Sri Khare that there was an evident and manifest abdication of power by the Disciplinary Authority and a complete failure to abide by the directions framed by the Court. The order impugned is clearly rendered unsustainable on this ground also.

This chapter cannot close without a consideration of the role discharged by the Commission. Under the constitutional scheme, the Commission by virtue of its position of eminence manned by members and officers of distinction and repute in their own respective fields is obliged to tender considered advise to the appropriate Government. That is the inherent mandate of Article 320(3). This provision appears to have been placed in the Constitution to enable respective Governments to have the benefit of the considered and sage advise of the Public Service Commission. Our founding fathers envisioned the Commission to be an organisation of independence, impartiality and integrity. The constituent members of the Commission have been recognised to be in the position of constitutional trustees. The Commission was constituted and founded with the objective of creating an independent institution comprised of members of repute recognised as having achieved excellence in their chosen fields to enable it to act objectively in the discharge of its functions.

While it is true that the advise of the Commission is neither binding on respective Governments nor is it envisaged to sit in appeal over decisions taken by the appropriate government, at the same time the requirement of consultation cannot be recognised to have been placed by the framers of the Constitution without any purpose at all. The fact that the Commission is obliged to scrutinize the entire record, the nature of the charges leveled against the officer, the validity of the findings of guilt as also to examine the question of adequacy of the ultimate punishment was not disputed by Sri Varshney.

Article 320 (3) of the Constitution appears to have been placed in order to enable the respective governments to have the benefit of the prudent, informed and considered opinion and advise of the Commission as well as to act as a safeguard in the sense of the proposed action of the government being evaluated independently. While the advise of the Commission may not be binding on the government, Article 320 (3) does appear to be a measure of oversight, a fair and impartial evaluation of the proposed action from a legal standpoint. The obligation so placed upon the Commission thus cannot be viewed as being either superfluous or a mere formality. It is these principles underlying Article 320 (3) of the Constitution which must inform and permeate the discharge of its constitutional obligation.

The Court in the facts of the present case is impelled to observe that the apparent illegality in the procedure adopted by the State should not have escaped the scrutiny of the Commission. The failure on the part of the State to abide by the procedure as mandated under the decision rendered by this Court inter partes was stark and evident. The Court would have expected the Commission to have been more circumspect and cautious before proceeding to accord approval to the impugned order of punishment. It is the hope of this Court that the Commission would bear these observations in mind while discharging its functions as envisaged under Article 320 (3).

This aspect assumes added significance in light of the present petition being the seventh foray of the petitioner before the High Court. The disciplinary proceedings initiated and the punishments imposed have been interdicted by the High Court on three earlier occasions. There was thus a manifest obligation on the respondents to ensure that a quietus was rendered to the entire controversy in accordance with the directions issued by the High Court. This the respondents have abjectly failed to bear in mind. For all the aforesaid reasons, the Court finds itself unable to sustain the impugned order.

The writ petition is accordingly allowed. The impugned order dated 02 February 2018 is hereby quashed. The matter shall in consequence stand remitted to the first respondent who will take a decision afresh in light of the observations made hereinabove and strictly in accordance with the directions contained in the judgment rendered inter partes on Writ-A No. 2160 of 2012. Since the matter has lingered right from 2010 and the petitioner also superannuated nine years ago, the Court commands the first respondent to take a fresh decision in accordance with law and not later than within a month from the date of presentation of a certified copy of this order. The interim arrangement which was made by the Court in its earlier decision with respect to the payment of provisional pension to the petitioner shall continue till a fresh decision is taken by the respondents.

Order Date :- 29.5.2019/faraz