Mukhya Karyapalak Adhikari ... vs Bharat Singh & Anr.
2021 Latest Caselaw 3190 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 111 of 2021
 

 
Appellant :- Mukhya Karyapalak Adhikari U.P.Khadi Gramudyog Lko & Ors.
 
Respondent :- Bharat Singh & Anr.
 
Counsel for Appellant :- Pankaj Patel
 
Counsel for Respondent :- C.S.C.,Sushil Kumar
 

 
Hon'ble Ritu Raj Awasthi,J.

Hon'ble Manish Mathur,J.

Heard Sri Pankaj Patel, learned Counsel for the appellants and Sri Sushil Kumar, learned Counsel for respondent No.1. Learned State Counsel has put in appearance on behalf of opposite party No.2.

The Special Appeal has been filed against the judgment and order dated 7.12.2020 passed in Writ Petition No. 1546 (SS) of 2020, Bharat Singh v. State of U.P. and others, whereby the punishment order dated 15.12.2009 was quashed directing the opposites parties to the writ petition to make payment of post-retiral benefits alongwith interest @ 6% from the date of superannuation of petitioner till the date of actual payment.

The Office has reported a delay of 28 days in the filing of appeal as on the date of filing. Learned counsel for the respondents does not oppose the condonation of delay in filing the appeal and as such the delay in filing the appeal is condoned.

With the consent of learned Counsel for the parties, we are disposing of the appeal at the admission stage itself.

Learned counsel for the appellants is primarily aggrieved by the direction issued by the learned Single Judge for payment of 6% interest from the date of superannuation of the petitioner/respondent No.1 i.e. 31.1.1997 till the date of actual payment. Learned Counsel for the appellants has submitted that even in case, there were some formal/procedural irregularities in the enquiry, like, non-providing of documents etc., and the enquiry conducted was defective, in which the respondent No.1 was found guilty, the department cannot be burdened with the liability to pay interest on retial benefits, even for the period for which the enquiry was continued. Learned counsel for the appellants has further submitted that the department cannot be penalized so heavily for conducting an enquiry, where the question is of loss of department's assets due to carelessness of any of its employees, such as, petitioner/respondent No.1 and as such, levying a penalty due to non-payment of retiral dues on account of pending enquiry would be detrimental to the spirit of Government Department.

Mr. Sushil Kumar, learned counsel appearing on behalf of respondent No.1 has drawn attention to the impugned judgment and order with the submission that the learned Single Judge has specifically recorded a finding that the documents mentioned in the charge sheet which were relied upon and as pleaded in the writ petition were never served upon the petitioner/respondent No.1 despite a request having been made. It is further submitted that the learned Single Judge has recorded a finding that as per the settled law, the enquiry officer was required to fix a date, time and place for the enquiry and to have informed the delinquent employee with regard to the same, but the delinquent employee was never informed of the aforesaid factors and the same was not disputed. Attention has also been drawn to the finding recorded by the learned Single Judge that the reply submitted by the delinquent employee against the show cause notice was also not dealt with by the disciplinary authority while passing the order of punishment.

It has been submitted that the respondent No.1/petitioner was never afforded personal hearing while holding disciplinary proceedings which were in contravention not only of the principles of the natural justice but also were in violation of the service laws applicable upon the petitioner/respondent No.1.

Upon perusal of the impugned judgment and order dated 7.12.2020, it is apparent that the learned Single Judge has recorded a finding that the documents which were mentioned in the charge sheet in support of the charges levelled against the delinquent employee were never served upon him despite a request having been made. The learned Single Judge has specifically recorded that the said fact was neither disputed during the course of arguments nor was denied in the counter filed on behalf of appellants/respondent Nos.2 to 6.

The learned Single Judge has further recorded that the enquiry officer never informed the delinquent employee with regard to fixation of date, time and place of the enquiry as was pleaded in the writ petition and argued, but the same was neither disputed during the course of arguments nor was denied in the counter affidavit filed to the writ petition. Similarly, the learned Single Judge has specifically recorded that the delinquent employee in his reply to the show cause notice had specifically pleaded the defects in the enquiry, but the same was not dealt with by the Disciplinary Authority while passing the order of punishment. The said fact was also not disputed during the course of arguments nor was denied in the counter affidavit.

Another ground for allowing the writ petition, as indicated in the impugned judgment, is that this Court in its judgment and order dated 24.11.2000 passed in Writ Petition No.6798 (SS) of 2020 had directed that the enquiry against the delinquent employee was to be concluded within a period of two months but was actually concluded after nine years and was thus in violation of the law laid down by the Full Bench of this Court in the case of Abhishek Prabhakar Awasthi versus New India Assurance Company and others [2014 (32) LCD 405], wherein it has been held that in case the enquiry is not completed as per the time-frame fixed by the Court, it would be open to the employer to seek extension of time by filing an appropriate application but the same was also not resorted to by the appellants.

The learned Single Judge has specifically recorded that the punishment order has been passed in complete disregard of direction of this Court with regard to time fixed, which was not open for the employer to disregard.

In view of the aforesaid factors, the learned Single Judge has concluded that the punishment order impugned in the writ petition was not only against the principles of natural justice, but also against the service laws applicable and the aforesaid Full Bench decision of this Court. It was in this background that while allowing the writ petition, the learned Single Judge has issued a direction for payment of arrears of post-retiral benefits of the petitioner/respondent No.1 alongwith 6% interest from the date of retirement of the petitioner/respondent No.1 till the date of actual payment.

Having considered the aforesaid factors, it is apparent that the findings recorded by the learned Single Judge in the judgment under challenge are not disputed by the appellants, even at the stage of appeal. The said findings of fact, as recorded by the learned Single Judge, thus, have attained finality. Once the findings of fact of the learned Single Judge with regard to disciplinary proceedings being vitiated have attained finality, there is no occasion to interfere with the judgment under challenge.

So far as grant of interest to the writ petitioner is concerned, it is relevant factor that the writ petitioner is engaged in litigation against a completely illegal order since the year 2010 and as a consequence of which, he has not been paid post-retiral benefits since the said year. Had the writ petitioner been paid the post-retiral benefits for the said period, it was but natural that after spending a portion of the same, he would have saved a part of it which naturally would have brought him a further amount in the nature of interest on such capital, but due to the existence of the punishment order, the writ petitioner was not only deprived of his capital source but also interest from savings on such capital.

Considering the aforesaid factor and in view of the provisions of the Code of Civil Procedure, 1908 and the Interest Act, 1978, we do not find any illegality or infirmity in the grant of interest to the writ petitioner by the learned Single Judge.

Consequently, we are of the opinion that the present appeal is not a fit case to grant indulgence and therefore, the appeal stands dismissed.

Order Date :- 8.3.2021

lakshman