The Director U.P.Council Sugar ... vs Bal Govind Dixit And Another
2021 Latest Caselaw 7181 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 18.06.2021
 
Delivered on 07.07.2021
 

 

 
Court No. - 4
 
Case :- SERVICE BENCH No. - 23933 of 2019
 
Petitioner :- The Director U.P.Council Sugar Cane Research,And Ors.
 
Respondent :- Bal Govind Dixit And Another
 
Counsel for Petitioner :- Anil Srivastava
 
Counsel for Respondent :- Girish Kr.Dwivedi
 

 
Hon'ble Rajan Roy,J.

Hon'ble Saurabh Lavania,J.

(Per-Saurabh Lavania,J.)

Heard.

By means of this writ petition, a challenge has been made to the order dated 12th October, 2018, passed by the U.P. State Public Services Tribunal, Indira Bhawan, Lucknow (hereinafter referred to as "Tribunal") in Claim Petition No. 247 of 2016 (Bal Govind Dixit v. State of U.P. and others) as also the order dated 16th May, 2019 passed by the Tribunal in Review Petition No. 09 of 2019.

Relevant brief facts of the case are that vide charge-sheet dated 26.08.2014, a disciplinary proceeding was initiated against the claimant-respondent No. 1, who has retired on attaining the age of superannuation on 30.06.2016, while he was holding the post of Accountants Officer in the Office of petitioner No. 1- U.P. Council Sugar Cane Research at District- Shahjahanpur. In relation to financial irregularities committed by the claimant-respondent No. 1, the charge-sheet was issued and served upon him. As appears, the disciplinary proceeding was initiated for awarding major punishment.

For conducting the enquiry into the matter, a 6 Member Enquiry Committee (in short "Enquiry Committee") was constituted by the petitioner No. 1. The Enquiry Committee conducted an enquiry and submitted its report. Thereafter, a show cause notice dated 04.03.2015 was issued by the Disciplinary Authority. The claimant-respondent No. 1 submitted his reply dated 17.03.2015 to the said show-cause notice. After the reply to the show-cause notice by the claimant-respondent, the Disciplinary Authority passed the order of punishment dated 22.01.2016, whereby claimant-respondent No. 1 was reverted from the post of Accounts Officer to the post of Assistant Accounts Officer and recovery of Rs. 59,989.20 was also ordered. As per petitioner, prior to passing of final order, an opportunity of personal hearing was provided by the Disciplinary Authority to the claimant-respondent.

Being aggrieved by the order of punishment dated 22.01.2016, the claimant-respondent No. 1 approached the Tribunal, wherein petitioners herein contested the matter by filing the affidavits in response to the claim petition. Before the Tribunal, assailing the order of punishment, the claimant-respondent No. 1 broadly asserted that the order in issue is vitiated on the ground of violation of principles of natural justice, as appears from the record, including the order of Tribunal, vis that the Enquiry Committee constituted for conducting an enquiry against him is vitiated on account of the fact that enquiry was conducted by a 6 Member Committee consisting of junior to him. It is also stated that enquiry was not held as per procedure prescribed for holding regular enquiry, as in the enquiry, no witness was examined. No date, time and place was fixed, as required under law for holding regular enquiry. After hearing the parties' counsel and considering the material available on record, the Tribunal allowed the claim petition with the following observations:-

"8- i=koyh dk voyksdu djus ls ;g Li"V gksrk gS fd ;kph ds fo:) foHkkxh; dk;Zokgh djus ds fy;s ,d vf/kdkjh dks tkap vf/kdkjh ukfer ugh fd;k x;k gS cfYd Ng vf/kdkfj;ksa dh tkap lfefr cuk dj foHkkxh; tkap djk;h x;h gS vkSj mDr lfefr essa ;kph ls dfu"B lgk;d ys[kkdkj dks Hkh tkap lfefr dk lnL; cuk;k x;k gSA vuq'kklfud izkf/kdkjh }kjk dh x;h ;g dk;Zokgh mRRkj izns'k xUuk 'kks/k ifj"kn lsok fu;ekoyh ds fu;e&18&4 dk Li"V mYya?ku gS ftlesa fuEuor~ izkfo/kku gS&

**tgka dgha bl ckr dk fo'okl gks fd dksbZ deZpkjh nqjkpj.k xzLr gS rks n.Mkf/kdkjh mldh tkap gsrq ,d tkap vf/kdkjh ukekafdr dj ldrk gS tks lacaf/kr dEkZpkjh ds vkpj.k dh tkap djsxkA**

9- mi;qZDr fu;ekoyh ds fu;e&23 esa ;g Hkh izkfo/kku gS fd ftu ekeyksa esa dksbZ Li"V izkfo/kku bu fu;eksa esa ugh fn;k x;k vFkok ftu ekeyksa esa ifj"kn ds vkns'k o funsZ'k ugh gS] ,sls lHkh ekeyksa esa ifj"kn dh lsok esa fu;qDr deZpkfj;ksa ij ogh fu;e rFkk izkfo/kku ykxw gksaxs tks mRRkj izns'k ljdkj ds deZpkfj;ksa ij le;≤ ij ykxw jgsaxsA mDr ds n`f"Vxr vuq'kklfud izkf/kdkjh dh ;g dk;Zokgh m0iz0 ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh 1999 ds fu;e 7¼1½ dk mYYka?ku gSA ftlesa fuEuor~ izkfo/kku gS&

"The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges."

mi;qZDr ls Li"V gS fd iz'uxr foHkkxh; dk;Zokgh dks iw.kZ :i ls lEikfnr djus gsrq ,d tkap vf/kdkjh fu;qDr djuk pkfg;s Fkk] pwafd foHkkxh; tkap dk;Zokgh ,d v)Z U;kf;d izfdz;k gksrh gS ftleaas tkap vf/kdkjh dks LorU= :i ls viuk foosd iz;ksx djuk gksrk gSA iz'uxr ekeys esa ;g Hkh Li"V gksrk gS fd Ng lnL;h; lfefr esa dfu"B ,oa v/khuLFk deZpkjh ¼lgk;d ys[kkdkj½ dks lnL; cuk;k x;k gSA ;g LFkkfir fof/k O;oLFkk gS fd dfUk"B vf/[email protected] vius ls ofj"B vf/[email protected] dh tkap ugh dj ldrk gS vkSj u gh ,slh fdlh tkap lfefr dk lnL; cuk;k tk ldrk gSA ,slh fLFkfr esa ;kph dh foHkkxh; tkap dks djus gsrq cuk;h x;h Ng lnL;h; lfefr fu;efo:) gSA

10- iz'uxr tkap dk;Zokgh dks xq.k&nks"k ds vk/kkj ij ijh{k.k djus ls Li"V gksrk gS fd ;kph dks vkjksi i= dk tokc nsus ds fy;s vko';d vfHkys[k miyC/k ugh djk;s x;sA ;kph }kjk vfHkys[kksa dh ekax tokc nsus gsrq vius i= fnukad 01-09-2019 ,oa 12-09-2014 ds }kjk dh x;h ysfdu mUgs laxr vfHkys[k miyC/k ugh djk;s x;s vkSj ;kph }kjk fcuk laxr vfHkys[kksa ds gh viuk tokc izLrqr fd;k x;kA ,slh fLFkfr esa tkap lfefr dk ;g d`R; mRRkj izns'k ds vkns'k la[;k&[email protected]@[email protected]@[email protected]&1&2015 fnukad 22 vizSy] 2015 ds izLrj&4¼3½¼4½ dk Li"V mYya?ku gSA mDr 'kklukns'k fnukad 22 viSzy] 2015 esa Li"V mfYYkf[kr gS fd vkjksi i= ds lkFk izklafxd vfHkys[[email protected]{; Hkh vipkjh dkfeZd dks miyC/k djk;k tk;sA ;fn vkjksi i= ds lkFk vfHkys[[email protected]{;ksa dh izfr;ka nsuk ;qfDrlaxr dkj.kksa ls lEHko u gks ik jgk gks rks ,slh fLFkfr esa vipkjh dkfeZd dks vfHkys[kksa ds fujh{k.k dk volj iznku fd;k tk;sA blds fy, tkap vf/kdkjh frfFk] le; rFkk LFkku fu/kkZfjr djsxk rFkk vfHkys[kksa dks ns[kus dh Lora=rk lqfuf'pr djsxkA

11- foHkkxh; dk;Zokgh ds ekeyksa dk fu;ekuqlkj fuLrkj.k djus gsrq mi;qZDr 'kklukns'k fnukad 22 viSzy] 2015 esa Li"V fn'kk&funsZ'k fn;s x;s gS ysfdu iz'uxr foHkkxh; dk;Zokgh esa mu vkns'kksa ,oa funsZ'kksa dk vuqikyu tkap lfefr }kjk ugh fd;k x;k gSA ;kph us vius Åij yxk;s x;s vkjksiksa dks vLohdkj fd;k FkkA tkap lfefr dk ;g dRkZO; Fkk fd og m0iz0 ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh 1999 ds fu;e 7 (VII) esa fu/kkZfjr izfdz;k ds vuqlkj ekSf[kd tkap djrs] ;kph dks lkf{k;ksa ls izfrijh{k.k djus dk volj iznku djrs rFkk vfHkys[kksa dh iqf"V Hkh lkf{k;ksa ls ,oa ;kph ls djkrs ysfdu iz'uxr ekeys esa tkap lfefr }kjk u rks dksbZ ekSf[kd tkap dh x;h vkSj u gh ekSf[kd tkap gsrq frfFk le; o LFkku fu/kkZfjr fd;k x;k vkSj u gh ;kph dks lkf{k;ksa ls ijh{[email protected] ijh{k.k djus dk volj iznku fd;k x;kA ,slh fLFkfr esa iz'uxr ekeys esa tkap lfefr }kjk ek0 mPp U;k;ky; bykgkckn dh fMohtu cSap jk/ks dkUr [kjs cuke m0iz0 dkWijsfVo lwxj QSDVjht QsMjs'ku fy0 2003 ¼21½ ,y0lh0Mh0 i`"B 610 esa vo/kkfjr O;oLFkk dk vuqikyu ugha fd;k x;k gS] tks bl izdkj gS&

"After a chargesheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence vide A.C.C.Ltd. v. Their Workmen (1963)11 LLJ 396 (SC)."

12- blh izdkj :i flag usxh cuke iatkc us'kuy cSad o vU; ¼2009½ 2 ,l0lh0lh0 570 esa ek0 mPpre U;k;ky; }kjk ;g vo/kkfjr fd;k x;k gS fd fdlh ds nks"k ds laca/k esa iz;ksx fd;s tk jgs vfHkys[kksa dks fl} djk;k tkuk vko';d gS ftlls lk{; tks fof/kd :i ls vuqeU; gks] lkf{k;ksa ds vk/kkj ij fu.kZ; fy;k tk lds] ek= vfHkys[kh; lk{; gh i;kZIr ugh gSA vfHkys[kh; lk{;ksa ds va'kks dks Hkh lkf{k;ksa ls izfrijh{k.k ds mijkar fl} djk;k tkuk vR;Ur vko';d gSA

blh rjg LVsV vkQ mRRkjkapy o vU; cuke [kM+d flag ¼2008½ 2 ,y ,.M ,l ,l lhlh 698 esa ek0 ,isDl U;k;ky; us fuEufyf[kr fl}kUr izfrikfnr fd;k gS&

"The enquiry must be conducted bonafide and care must be taken that it does not become mere formalities, and in an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and given on opportunity to him to cross examine witnesses of the employer."

mRRkj izns'k jkT; o vU; cuke ljkst dqekj fLkUgk flfoy vihy la[;k&[email protected] ¼2010½ 1 SCC (L&S) 675 esa ek0 loksZPPk U;k;ky; }kjk fuEuor~ fof/k O;oLFkk vo/kkfjr dh x;h gS&

"That in the departmental inquiry the principles of natural justice should be complied with and failure on the part of the Inquiry officer to fix any date for conducting inquiry and failure to examine the witnesses in support of the charges leveled, vitiates the entire proceedings for their being in violation of the rules of natural justice and mandatory rules- The U.P. Government Servants (Discipline and Appeal) Rules, 1999."

13- ek0 mPp U;k;ky; bykgkckn dh fMohtu cSap }kjk eksrh jke cuke m0iz0 jkT; o vU; ¼2013½ ¼31½ ,ylhMh 1319 esa foHkkxh; tkap esa ekSf[kd tkap dh egRork dks izfrikfnr djrs gq, ;g vo/kkfjr fd;k gS fd tc ljdkjh deZpkjh dks vkjksi i= fn;k tk;s rks lquok;h dk i;kZIr volj tkap ds le; fn;k tk;sA iz'uxr ekeys esa tkap lfefr }kjk ;kph dks lquok;h dk i;kZIr volj iznku ugha fd;k x;k gSA ;k;wc [kkWu uwj [kkWu iBku cuke egkjk"Vª jkT; o vU; ,0vkbZ0vkj0 2013 ,l0lh0 58 esa ek0 lqizhe dksVZ }kjk ;g fl)kUr izfrikfnr fd;k x;k gS fd izfrijh{k.k uSlfxZd U;k; ds fl)kUr dk ,d vifjgk;Z vax gS vkSj ,d O;fDr ds ihB ihNs ls vfHkdFkuksa dk vfHkfyf[kr djuk ,oa mldksa izfrijh{k.k dk ekSdk u nsuk] ekU; ugh gSA

ek0 lqizhe dksVZ }kjk LVsV vkQ ;w0ih0 o vU; cuke ljkst dqekj flUgk ¼2010½ 2 ,l0lh0lh0 772 esa fuEuor~ fof/kd O;oLFkk vo/kkfjr fd;k gSa&

"An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

14- i=koyh dk voyksdu djus ls ;g Hkh Li"V gksrk gS fd iz'uxr ekeys esa rhu vf/kdkfj;ksa dks vkjksfir fd;k x;k Fkk ftlesa ls ,d vf/kdkjh dks dsoy pfj= iaftdk esa izfrdwy izfof"V nks osru o`f} jksdrs gq, nh x;h gS tcfd ;kph dks ys[kkf/kdkjh ds orZeku in ls lgk;d ys[kkf/kdkjh ds in ij inkour djrs gq, mlds osru ls /kujkf'k :0 59]989-20 dh olwyh fd;s tkus dk n.M iznku fd;k x;kA ,d gh nks"k ds laca/k esa nks deZpkfj;ksa dks fHkUu&fHkUu n.M ;k dfe;ksa ls T;knk n.M ugh fn;k tk ldrk gSA ek0 loksZPp U;k;ky; }kjk VkVk bathfu;fjax ,.M yksdkseksfVo dks0 fy0 cuke ftrsUnz izlkn flag o vU; 2002 lqizhe dksVZ dslst ¼,y ,.M ,l½ 909 esa fuEufyf[kr O;OkLFkk nh x;h gS&

"Since as many as three workmen on almost identical charges were found guilty of misconduct in connection with the same incident, though in separate proceedings, and one was punished with only one month's suspension, and the other was ultimately reinstated in view of the findings recorded by the Labour Court and affirmed by the High Court and the Supreme Court, it would be denial of justice to the appellant if he alone is singled out for punishment by way of dismissal from service."

"15- i=koyh dk voyksdu djus ls ;g Li"V gksrk gS fd ;kph dks nwf"kr tkap vk[;k ds vk/kkj ij nf.Mr fd;k x;k gSA iz'uxr ekeys esa ;kph ds fo:} tkap djus gsrq Ng lnL;h; tkap lfefr xfBr dh x;h ftlesa ;kph ls dfu"B vf/[email protected] dks j[kk x;k] tks fu;e fo:} gSA ;kph dks tkap ds nkSjku lquok;h dk i;kZIr volj iznku ugh fd;k x;k gSA tkap lfefr }kjk izdj.k esa ekSf[kd tkap ugh dh x;h gSA tkap gsrq frfFk] le; o LFkku fu/kkZfjr ugh fd;k x;k gSA ;kph dks lkf{k;ksa ls izfrijh{k.k dk volj iznku ugh fd;k x;k gS rFkk vfHkys[kksa dh iqf"V Hkh lkf{k;ksa ls ugh djk;h x;h gSA ,slh fLFkfr esa uSlfxZd U;k; ds fl}kUrksa dk vuqikyu iz'uxr ekeys esa ugh gqvk gSA ;kph ds tokc ds vk/kkj ij tkap lfefr }kjk tkap vk[;k izLrqr dj nh x;h gSA iz'uxr ekeys esa ;g Hkh Li"V gqvk gS fd vkjksiksa esa lafyIr vU; deZpkfj;ksa dks de n.M ls nf.Mr fd;k x;k gS tcfd ;kph dks dBksj n.M fn;k x;k gSA ,slh fLFkfr esa iz'uxr ekeys esa 'kklu ds vkns'k la[;k&[email protected]@[email protected]@[email protected]&1&2015 fnukad 22 viSzy] 2015] mRRkj izns'k ljdkjh lsod vuq'kklu ,oa vihy fu;ekoyh 1999 ds izkfo/kkuksa dk ,oa ek0 loksZPPk U;k;ky; ,oa ek0 mPPk U;k;ky; }kjk vo/kkfjr fl}kUrksa dk vuqikyu ugh gqvk gSA ,slh fLFkfr esa nwf"kr tkap lfefr dh nwf"kr tkap ds vk/kkj ij fn;k x;k n.M dkuwu dh n`f"V esa fof/kd ugh ekuk tk ldrk gSA ;kph lsok ls fnukad 30-06-2016 dks lsokfuo`RRk gks pqdk gSA ,slh fLFkfr esa ge iqu% bl ekeys esa fjekbUM djus dh vko';drk ugh le>rs gSA vr% n.Mkns'k fnukad 22-01-2016 fujLr fd;s tkus ;ksX; gSA"

vkns'k

;kph dh funsZ'k ;kfpdk Lohdkj dh tkrh gSA vkns'k fnukad 22-01-2016 fujLr fd;k tkrk gSA ;kph lHkh lsok laca/kh ikfj.kkfed ykHk bl vkns'k dh izekf.kr izfr izkIr djus ds rhu ekg ds vUnj izkIr djsxk tks iz'uxr vkns'k fnukad 22-01-2016 ls jksds x;s gSA

mHk;i{k viuk&viuk okn O;; Lo;a ogu djsaxsA"

The Tribunal vide order dated 12th October, 2018 quashed the order of punishment dated 22.01.2016 and directed the opposite parties before it to provide all service benefits to the claimant-respondent No. 1 within three months from the date of production of a copy of the order. However, the Tribunal, keeping in view the fact that claimant-respondent No. 1 has already attained the age of superannuation on 30.06.2016, declined to remand the matter for holding enquiry afresh. The Tribunal, while allowing the claim petition, after considering relevant record as also relevant Rules, observed as under:-

(i) The Enquiry Committee was constituted in violation of Rules. While recording this finding, the Tribunal considered Rule 18(4) and Rule 23 of U.P. Council for Sugarcane Research (Service Recruitment) Rules (in short "Rules") as also Rule 7 of U.P. Government Servants (Discipline and Appeal) Rules, 1999 (in short "Rules, 1999"). In this regard, the Tribunal also observed that as per Rules, only one Enquiry Officer ought to have been appointed in place of a Enquiry Committee to conduct the enquiry against claimant-respondent No. 1.

(ii) Junior to the claimant-respondent No. 1 was made member of the Enquiry Committee, as such the enquiry is vitiated.

(iii) During Enquiry, no date, time and place was fixed to hold oral enquiry. While recording this finding, the Tribunal take note of sub Rule 7 of Rule 7 of the Rules, 1999.

A Review Petition was filed by the petitioner for reviewing the order dated 12th October, 2018 passed by the Tribunal, which was dismissed vide order dated 16th May, 2019.

Assailing the orders dated 12th October, 2018 & 16th May, 2019, Sri Anil Srivastava, learned counsel for the petitioner submitted that in the matter in issue, a 6 Member Committee was constituted for holding an enquiry against claimant-respondent No. 1 and proper enquiry was conducted as required under Rules of U.P. Council for Sugarcane Research. The relevant Rules as pointed out by the counsel for the petitioner on reproduction read as under:-

"18&4 tgkW dgha bl ckr dk fo'okl gks fd dksbZ deZpkjh nqjkpj.kxzLr gS rks n.Mkf/kdkjh mldh tkWp gsrq ,d tkWp vf/kdkjh ukekafdr dj ldrk gS tks lEcfU/kr deZpkjh ds vkpj.k dh tkWp djsxkA

18&5 ,sls vkns'k gksus ij tkWp vf/kdkjh lEcfU/kr deZpkjh dk Li"Vhdj.k vkjksiksa ds lanHkZ esa ekaxsxkA bl gsrq tkWp vf/kdkjh tks mfpr le>s mrus fnu dk le; fn;k tk;sxk rFkk deZpkjh fu/kkZfjr vof/k esa viuk Li"Vhdj.k nsxkA

18&6 deZpkjh ds Li"Vhdj.k izkIr gks tkus ds ckn tkWp vf/kdkjh n.Mkf/kdkjh dks viuh tkWp ,oa laLrqfr izLrqr djsxkA ;fn n.Mkf/kdkjh dh n`f"V esa LIk"Vhdj.k larks"ktud izrhr gks rks dksbZ vfxze dk;Zokgh ugha dh tk;sxh rFkk ekeyk ogha lekIr dj fn;k tk;sxkA

18&7 ;fn tkWp ds vk/kkj ij Li"Vhdj.k larks"ktud ugh ik;k tk; vFkok fu/kkZfjr vof/k eas deZpkjh }kjk dksbZ Li"Vhdj.k izLrqr ugh fd;k tk; rks n.Mkf/kdkjh vkjksiksa dh xq:rk dks ns[krs gq;s&

¼v½ deZpkjh dks psrkouh ns ldrs gSa vFkok

¼c½ tkWp vf/kdkjh dks funsZ'k ns ldrs gS fd deZpkjh ds fo:} vkjksi i= izlkfjr fd;k tk;sA

18&8 tkp vf/kdkjh deZpkjh dks fyf[kr vkjksi&i= nsrs le; vkjksiksa dk LIk"Vhdj.k gsrq de ls de 15 fnu dk le; nsaxsA

18&9 vkjksiksa dh lR;rk Kkr djus gsrq tkWp vf/kdkjh tkWp gsrq tSlk fd vko';d le>sa] fdlh Hkh lEcfU/kr O;fDr ;k fjdkMZ dh lgk;rk ysus rFkk vkjksfir deZpkjh dks ;fn deZpkjh ,slk pkgsa rks O;fDrxr lquokbZ rFkk lk{;ksa dk ijh{k.k djus dk volj nsaxsA

18&10 tkWp iw.kZ gksus ds ckn tkWp vf/kdkjh viuh fjiksVZ n.Mkf/kdkjh dks izLrqr djsaxs blds ckn ekeys ls lEcfU/kr miyC/k leLr rF;ksa dks ns[kdj izLrj 18&2 esa mfYyf[kr n.Mkf/kdkjh izko/kkukuqlkj n.M nsus gsrq dEkZpkjh ds izLrkfor n.Mksa dk mYYks[k djrs gq;s ,d fyf[kr uksfVl nsaxs ftldk mRRkj nsus gsrq deZpkjh dks de ls de nks lIrkg dk le; fn;k tk;sxkA deZpkjh ;fn pkgsa rks n.Mkf/kdkjh mls O;fDrxr lquokbZ dk volj Hkh nsaxsA blds ckn n.Mkf/kdkjh deZpkjh ds ekeys esa vkjksiksa dh xq:rk ds vk/kkj ij vko';d n.M nsus gsrq vkns'k ikfjr djsaxsA

18&11 tkWp ds nkSjku vkjksiksa dh xEHkhjrk dks ns[krs gq;s ;fn n.Mkf/kdkjh ;g le>rs gS fd deZpkjh ds fo:) yxk;s x;s vkjksi xEHkhj izd`fr ds gSa rks deZpkjh dks lsok ls fuyfEcr djus dk vkns'k izlkfjr dj ldrs gSA ifj"kn~ dk dEkZpkjh ;fn fdlh vijk/k ds ifj.kkeLo:i vFkok fdlh vU; dkj.kksao'k tsy esa 03 fnuksa ls vf/kd dh vof/k ds fy;s cUn gks tkrk gS rks tsy esa cUn fd;s tkus dh frfFk ls gh og ifj"kn~ dh lsokvksa ls Lor% fuyfEcr ekuk tk;sxkA

18&12 ifj"kn~ dk deZpkjh tks fuyfEcr fd;k tkrk gS fuyECku dh vof/k esa ifj"kn~ ls thou fuokZg HkRRkk tks mlds vkSlr osru ds [email protected] ls vf/kd u gksxk rFkk 06 ekg dh vof/k ds mijkUr vf/kd ls vf/kd vkSlr osru ds [email protected] Hkkx rd crkSj fuokZg HkRRkk ikus dk vf/kdkjh gksxkA lkFk gh bl vof/k esa osru ls lEcfU/kr vuqikr dh /kujkf'k ij ns; vU; HkRRks bl izdkj ns; gksaxs tSlk fd fuokZg HkRRks dh /kujkf'k ek= gh ns; osru gksA"

During the course of arguments, at this stage, after considering the show cause notice dated 04.03.2015, which was issued for awarding major punishment (सेवा समाप्ति), a query was put to the counsel for the petitioners as to whether the enquiry against claimant-respondent No. 1 was conducted for awarding major punishment and in response, he replied in affirmation.

It is trite that if an enquiry is conducted to award major punishment then in the enquiry, reasonable opportunity to the delinquent is required. In inquiry i.e. regular enquiry, principles of natural justice have to be adhered.

A conjoint reading of Rule(s) 18-8 & 18-9, quoted above, of the Rules, which provides furnishing of charge sheet to delinquent and conducting the enquiry by the appointed Enquiry Officer, shows that the Enquiry Officer so appointed would conduct regular enquiry.

Further, Rule 23 of the Rules says that if there is no clear provision under this Rule then the provision of Service Rules applicable on the employee of State of U.P. would apply. In this view of the matter, we are of the view that if the Enquiry Officer so appointed is of the view that as to what procedure should be adopted in enquiry then in that event as per Rule 23 of the Rules, he is under obligation to follow the recourse as provided under Rule 7 of Rules, 1999, framed for conducting an enquiry against Government servant of State of U.P.

Procedure for holding an enquiry under Rule 7 as already settled, the Enquiry Officer is under obligation to fix date, time and place for examination of witnesses so as to prove documents and charges against the delinquent. Law in regard to holding the enquiry has now no more res-integra.

In what manner the principles of natural justice have to be followed in the departmental/disciplinary proceedings has already explained by the Apex Court as well as by this Court.

The Division Bench of this Court, after considering a catena of judgments on the issue of holding the disciplinary enquiry i.e. a regular enquiry, in the judgment dated 28.11.2018 passed in Writ Petition No.34093 (S/B) of 2018 (State of U.P. v. Deepak Kumar) has observed as under:-

"It is settled by the catena of judgments that it is the dutyof Enquiry Officer to hold ''Regular Enquiry'. Regularenquiry means that after reply to the charge-sheet theEnquiry Officer must record oral evidence with anopportunity to the delinquent employee to cross-examinethe witnesses and thereafter opportunity should be given tothe delinquent employee to adduce his evidence in defence.The opportunity of personal hearing should also begiven/awarded to the delinquent employee. Even if thecharged employee does not participate/co-operate in theenquiry, it shall be incumbent upon the Enquiry Officer toproceed ex-parte by recording oral evidence. For regularenquiry, it is incumbent upon the Enquiry Officer to fixdate, time and place for examination and cross-11S.A. No. 175 of 2005examination of witnesses for the purposes of proving ofcharges and documents, relied upon and opportunity todelinquent employee should also be given to produce hiswitness by fixing date, time and place. After completion ofenquiry the Enquiry Officer is required to submit its report,stating therein all the relevant facts, evidence andstatement of findings on each charge and reasons thereof,and thereafter, prior to imposing any punishment, the copyof the report should be provided to charged officer for thepurposes of submission of his reply on the same. Thepunishment order should be reasoned and speaking andmust be passed after considering entire material on record.(vide: Jagdish Prasad Vs. State of U.P. 1990 (8) LCD 486;Avatar Singh Vs. State of U.P. 1998 (16) LCD 199; TownArea Committee, Jalalabad Vs. Jagdish Prasad 1979 Vol. 1 SCC 60; Managing Director, U.P. Welfare HousingCorporation Vs. Vijay Narain Bajpai 1980 Vol. 3 SCC459; State of U.P. Vs. Shatrughan Lal 1998 (6) SCC 651;Chandrama Tewari Vs. Union of India and others AIR1998 SC 117; Anil Kumar Vs. Presiding Officer and othersAIR 1985 SC 1121; Radhey Kant Khare Vs. U.P. Co-operative Sugar Factories 2003 (21) LCD 610; RoopSingh Negi Vs. Punjab National Bank and others (2009) 2SCC 570; M.M. Siddiqui Vs. State of U.P. and others 2015(33) LCD 836; Moti Ram Vs. State of U.P. and others 2013(31) LCD 1319; Kaptan Singh Vs. State of U.P. and others2014 (4) ALJ 440."

Taking note of the aforesaid, including exposition of law regarding holding regular enquiry as also relevant service Rules referred above as well as the fact that counsel for the petitioner could not satisfy this Court on the issue of holding regular enquiry, as on being asked, he could not show from the record that during enquiry proceedings, date, time and place was fixed, as required under law for holding regular enquiry, we find that the finding given by the Tribunal in the order impugned dated 12th October, 2018, which is to the effect that enquiry is vitiated on account of non fixation of date, time and place for holding regular enquiry, is justified and is accordingly upheld.

The basis of the impugned order of punishment dated 22.01.2016 is the enquiry report, which is vitiated on account of violation of principles of natural justice and keeping in view the same as well as the maxim "Sublato Fundamento Cadit Opus" (a foundation being removed, the superstructure falls), we are of the view that the order of punishment has rightly been interfered by the Tribunal.

On a query being made, during the course of argument, counsel for the petitioner also failed to place any provision under the Rules before us, which could show that an Enquiry Committee can be constituted for holding an enquiry against the officer/official of the petitioner No. 1 so far as the same relates to disciplinary proceedings, but, even if this aspect is kept aside, counsel for the petitioner also failed to give any satisfactory reply to the issue raised by claimant-respondent No. 1 that one Member of the Committee was junior to claimant-respondent No. 1. It is trite that a junior cannot be appointed as an Enquiry Officer.

In view of the aforesaid, we are of the view that the Tribunal rightly interfered in the order of punishment dated 22.01.2016.

As regards the argument of counsel for the petitioner that as per exposition of law, the Tribunal ought to have remanded the matter back to the Disciplinary Authority to conduct enquiry afresh as the matter relates to embezzlement of money amounting to the tune of Rs.47 lakh and odd and in not doing so, the Tribunal erred in law and fact both, counsel for claimant-respondent No.1, in response, stated before us that this argument of counsel for the petitioner is mis-placed, misleading and incorrect as after concluding the enquiry, which is vitiated on account of non following the procedure prescribed under the law for holding disciplinary proceedings, recovery of only Rs. 59,989.20 has been ordered as punishment against claimant-respondent No.1. It is also stated that disciplinary proceedings were initiated in the year 2014 and the same was concluded vide order dated 22.01.2016, which was challenged before the Tribunal and the petitioner has already attained the age of superannuation on 30.06.2016 and now the writ petition is being heard for final disposal in June, 2021 and the amount, which has been ordered to be recovered from the petitioner is meagre and moreover, during this period, substantial amount pertaining to post retiral dues to which claimaint-respondent No. 1 is entitled under the order of the Tribunal remained with the petitioner No. 1, as such, keeping in view the entirety of the case, the matter is not liable to be remanded back to the Disciplinary Authority for holding an enquiry afresh.

It is also stated that in October, 2018 when claim petition was decided, the Tribunal after considering the age of superannuation, declined to remand the matter for holding enquiry afresh, which is justified in the facts of the case.

In addition, counsel for the side opposite also stated that for similar charge, i.e. charge related to Kisan Mela of Muzaffar Nagar, three persons including claimant-respondent No.1 were charge sheeted. The claimant-respondent No.1 has been reverted back with an order of recovery and in another case the charged official has been awarded punishment of adverse entry with withholding of two increments, as such keeping in view the same as also the fact that the petitioner has already retired and is about 65 years old as per his date of birth which is 01.07.1956, the matter be not remanded to Disciplinary Authority for holding enquiry afresh.

We have no doubt regarding the principle that if on account of procedural irregularities in conducting the domestic/disciplinary enquiry the order is set-aside, then in that event, the matter should be remanded to the Disciplinary Authority for proceeding from the stage the enquiry is found to be defective. However, in view of certain circumstances and facts of the case, the Court or Tribunal can decline to remand the matter back to the Disciplinary Authority to hold the enquiry afresh. In this case, considering the age of the petitioner i.e. 65 years, nature of punishment awarded to co-delinquent and claimant-respondent No. 1 as also the time lag, which is about more than 5 years from the date of order of punishment dated 22.01.2016, we are of the view that the remand, in the facts of the case, would be too harsh for claimant-respondent No. 1 as such, we are not inclined to interfere in the orders of the Tribunal in issue.

For the reasons aforesaid, this writ petition fails and is accordingly dismissed.

Order Date :- 07.07.2021

Arun/-