State Of U.P. Thru. Addl. Chief ... vs Rajesh Kumar Singh
2021 Latest Caselaw 8088 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SERVICE BENCH No. - 14895 of 2021
 

 
Petitioner :- State Of U.P. Thru. Addl. Chief Secy. Lok Nirman Vibhag
 
Respondent :- Rajesh Kumar Singh
 
Counsel for Petitioner :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Ajai Kumar Srivastava-I,J.

Heard leaned State Counsel appearing for the petitioner.

These proceedings under Article 226 of the Constitution of India have been instituted challenging the judgment and order dated 30.08.2019 passed by U.P. State Public Services Tribunal in Claim Petition No.2401 of 2018 whereby the punishment order dated 12.10.2011 and the order on review dated 17.12.2018 have been set aside and the Tribunal has further directed that if any service benefits to the respondent have been withheld on account of the aforesaid punishment order, the respondent shall be entitled to the same.

A charge-sheet dated 03.05.2006 was served upon the respondent which contained four charges in respect of the period of posting of the sole respondent as Assistant Engineer, Construction Division, Public Works Department, Bansi, District-Sidharth Nagar. The charges contained in the said charge-sheet dated 03.05.2006 pertain to the posting of respondent during the period between 23.02.1995 to 29.07.1999. Thus, in respect of the certain alleged misconduct against the respondent said to have been committed by him from the year 1995 till 1999, a charge-sheet was served upon the respondent only in the year 2006 that is after expiry of a period of about seven years. The first charge against the respondent as is borne out from a perusal of the charge-sheet dated 03.05.2006 is in respect of the alleged reduction of the crust of a road known as "Jignihwa Chetiya Ashokwa Marg". Charge no.2 as contained in the said charge-sheet related to the alleged reduction of crust on the same road though in respect of the separate work contract, similarly charge no.3 related to the same road and according to which in the spot inspection it was found that painting work on the road was found to be substandard. The fourth and the last charge was general in nature and the respondent was alleged to have contravened the provisions of Rule 3 of U. P. Government Servant Conduct Rules, 1956.

The respondent submitted his reply to the charge-sheet on 10.11.2009 whereby he denied the charges and stated that the respondent did not constitute the contract in relation to the works as mentioned in the charge-sheet. He has further stated that, as a matter of fact, the contract was constituted by his predecessor one Shri R. K. Singh and not by him and as such the respondent cannot be said to have misconducted in any manner. In respect of charge no.3, it was stated by the respondent that since the painting work was not got done by him as such he is not responsible for any alleged loss to the Government. Denying all the charges, the respondent has further stated in his reply that in view of the facts of the case that the respondent cannot be said to have misconducted himself or has contravened the provisions of Rule 3 of U.P. Government Servant Conduct Rules, 1956.

It appears from the perusal of the record available before this Court that on the reply submitted by the respondent to the charge-sheet, the Presenting Officer representing the Department submitted some written submissions and thereafter without fixing any date, time and place for any oral enquiry, the Enquiry Officer proceeded to finalize the enquiry at his end and thus he submitted the enquiry report dated 27.11.2006. On the basis of the said enquiry report dated 27.11.2006 out of three substantive charges, the respondent was found guilty of the first two charges and in respect of third charge, it was opined by the enquiry officer that since the charge does not mention as to the percentage extent of the loss relating to the alleged substandard painting, this charge thus could not be ascertained.

Based on the aforesaid enquiry report dated 27.11.2006 the disciplinary authority vide his order dated 12.10.2011 passed the punishment order whereby recovery of Rs.20351/- was ordered against the respondent and further the respondent was censored and such censor entry was ordered to be kept in annual confidential report of the respondent pertaining to the year 2011-12.

The respondent filed a review petition before the State Government challenging the punishment order dated 12.10.2011, however, the said review petition was also rejected by the State Government on 17.12.2018.

Challenging the aforesaid two orders, namely, the order of punishment dated 12.10.2011 and the order passed on review by the State Government on 17.12.2018, the respondent preferred a claim petition before U.P. State Public Services Tribunal which after giving opportunity to the State considered the matter and vide impugned judgment and order dated 30.08.2019 allowed the claim petition while quashing the punishment order dated 12.10.2011 as also the order passed on review petition on 17.12.2018.

State-petitioner has, thus, come in this writ petition challenging the aforesaid orders dated 12.10.2011 and 17.12.2018.

A perusal of the impugned judgment and order passed by U.P. State Public Services Tribunal would reveal that the Tribunal while allowing the claim petition preferred by the respondent has given adequate and appropriate reasons. When we examine the said judgment in the light of the submissions made by the learned counsel representing the State-petitioner and also in the light of the documents available before us in this writ petition, what we notice is that the Enquiry Officer after receiving reply to the charge-sheet and the written submission of the Presenting Officer representing the Department, did not conduct the enquiry any further in any manner whatsoever. From the records available before us, it is clear that the Enquiry Officer did not fix any date, time and place for conducting oral enquiry, neither did the Enquiry Officer examine any witness which could have been produced by the department to prove its case.

The Tribunal citing various judgments of this Court including the judgment in the case of Radhekant Khare vs. U.P. Cooperative Sugar Factories Federation Ltd., reported in [2003 (21) LCD 610] has opined that if in the enquiry no date, time and place is fixed, the entire enquiry gets vitiated. The Tribunal has further gave a finding that the written submission submitted by the Presenting Officer was not provided to the respondent during the course of the enquiry though the same has been relied upon both by the Enquiry Officer as also by the disciplinary authority. Thus, non-supply of the said written submissions submitted by the Presenting Officer of the Department seriously prejudices the case of the respondent.

The Tribunal thus giving detailed reasons and discussing the matter appropriately has reached to a conclusion that the enquiry conducted against the respondent on the basis of which punishment order was passed was not lawful and any punishment order based on such unlawful and illegal enquiry could not be permitted to be sustained.

We notice yet another aspect of the matter in this case which relates to enquiry having been conducted on the basis of old and stale charges. The enquiry officer, in his report, has clearly opined in respect of charge no.3 on account of delay it was not possible for the departmental authorities to ascertain the loss on account of alleged substandard painting work of the road. It is needless to observe that in case any misconduct is noticed the enquiry ought to be instituted by the employer at the earliest. In the present case, there has been delay of about 7-9 years as from the charge-sheet dated 03.05.2006 itself it is clear that the misconduct reported against the respondent was for a period when he was posted as Assistant Engineer in Bansi, District Sidharthnagar in the year 1995-99.

For the aforesaid reasons, we do not find any illegality in the judgment and order passed by U.P. Public Services Tribunal. The writ petition, thus, being devoid of merit, is hereby dismissed.

Order Date :- 16.7.2021

akhilesh/