Ajay Kumar vs State Of U.P.Thru ...
2021 Latest Caselaw 3225 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 

 
Case :- SERVICE SINGLE No. - 242 of 2020
 

 
Petitioner :- Ajay Kumar
 
Respondent :- State Of U.P.Thru Prin.Secy.Public Works Deptt.Lko & Anr.
 
Counsel for Petitioner :- Shiv Nath Goswami,Meenakshi Singh Parihar,Sunit Kumar Mishra,Syed Mohd. Arshad Rizvi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Dhari Singh,J.

1. Heard Sri H.G.S. Parihar, learned Senior Advocate assisted by Sri S.M.A. Rizvi, learned Counsel appearing on behalf of the petitioner and Sri Ashwani Kumar Ojha, learned Counsel appearing on behalf of the State.

2. The petitioner has approached this Court challenging the order dated 16.07.2018 by which the Principal Secretary, Public Works Department, Lucknow has awarded censure entry to the petitioner and the order dated 31.10.2019 whereby the review application preferred against the punishment order dated 16.07.2018 has been rejected.

3. Brief facts of the case are that initially the petitioner was selected and appointed on the post of Assistant Engineer in the year 1997 through Public Service Commission. Vide order dated 22.10.2007, he was promoted to the post of Executive Engineer. The petitioner was the pairokar of a Claim Petition No.1327 of 2010; Munish Kumar vs State of U.P. which was pending adjudication before the State Public Services Tribunal, Lucknow. After concluding the hearing, the Tribunal had reserved the judgment. On 04.08.2017, a show cause notice was served upon the petitioner with the charges that the petitioner has not provided the certified copy of the judgment and order dated 11.11.2016 passed by the Tribunal in the case of Munish Kumar within time and, therefore, the limitation of six months prescribed for filing review was expired. The applicant Munish Kumar has also filed contempt petition for non compliance of the order of the Tribunal as a result of which the Government had faced very uneasy and uncomfortable situation. The petitioner has committed gross negligence and apathetic towards duties and not discharging his duties and responsibilities according to his post. The petitioner had submitted his reply on 07.12.2017. After considering the reply and material available on record, vide order dated 16.07.2018, the respondent no.1 awarded censure entry to the petitioner. Against the order of censure entry, the petitioner preferred review application, which has also been rejected vide impugned order dated 31.10.2019 under Rule 14 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (in short "1999 Rules"). Hence this writ petition.

4. Submission of learned Counsel for the petitioner is that while issuing show cause notice, no Government Order with regard to doing effective pairvi of the cases was mentioned but while passing the impugned order dated 16.07.2018, the respondent no.1 has mentioned the Government Order dated 18.02.2014 and, therefore, the petitioner has not submitted any explanation with regard to the said Government Order. The claimant Munish Kumar has sent a copy of the judgment dated 11.11.2016 to the Principal Secretary, Public works Department, Government of U.P., Lucknow along with an application dated 01.12.2016 through registered post. Hence, the show cause notice was issued to the petitioner only in order to take ground for extension of time for making compliance of the judgment and order dated 11.11.2016. The petitioner has been punished without assigning any proper reason and also without providing any opportunity of hearing. The impugned order dated 16.07.2018 as well as the order dated 31.10.2019 are non-speaking and unreasoned order as nothing has been considered while passing the orders.

5. Learned Counsel for the petitioner has further submitted that after hearing the parties, the Tribunal had reserved the judgment but no date and time for delivery of judgment was fixed and, therefore, the petitioner had no knowledge about the judgment prior to 03.08.2017. The petitioner after getting the information with regard to the delivery of judgment dated 11.11.2016, immediately sent letter to the respondent no.1, therefore, there is no negligence on the part of the petitioner. The petitioner while filing the review application has explained the reasons for not communicating the judgment and order dated 11.11.2016 prior to 03.08.2017 and also for non-compliance of the instructions of the Government Order dated 18.02.2014 but the same has not been considered by the respondent no.1 while passing the impugned order and passed the impugned order illegally and arbitrarily only in order to save skin from the contempt proceedings.

6. Learned Counsel for the petitioner has also invited the attention of this Court towards the application filed by the respondent no.1 for extension of six months time, which reads as under;

"That the certified copy of the judgment dated 11.11.2016 has been received in the office of the aforesaid party on 03.08.2017 by the Executive Engineer, Construction Division-I, PWD, Raebareli hence six months time allowed by this Hon'ble Tribunal is liable to be treated w.e.f. 03.08.2017."

7. Learned Counsel appearing on behalf of the petitioner has contended that the petitioner has been awarded censure entry only in order to protect himself from the contempt proceedings initiated by the claimant Munish Kumar for non compliance of the judgment and order dated 11.11.2016. Hence, the impugned order dated 16.07.2018 and the order dated 31.10.2019 passed by the reviewing authority are liable to be quashed and the writ petition is liable to be allowed.

8. Per contra, learned Counsel appearing on behalf of the State has raised a preliminary objection towards the maintainability of the writ petition on the ground of availability of alternative remedy under Section 4 of the U.P. Public Services Tribunal Act, 1976 against the impugned order. He has further submitted that without available the alternative remedy, the petitioner has directly approached this Court and, therefore, the instant writ petition is liable to be dismissed on the ground of availability of alternative remedy. In support of his submissions, learned Counsel for the petitioner has placed reliance in the case of U.P. Jal Nigam and another Vs,. Nareshwar Sahai Mathur and another; (1995) 1 SCC 21.

9. Learned Counsel appearing on behalf of the State has further submitted that it is the duty of the petitioner to get the information of the delivery of judgment of the Tribunal and communicate the department within time for its compliance but the petitioner has failed to do so and, therefore, the impugned order awarding censure entry to the petitioner has rightly been passed by the respondent no.1. Both the orders have been passed by the respondents after considering the entire facts and circumstances of the case and the grounds taken by the petitioner in the reply of show cause notice and the review application. The writ petition is devoid by merit and is liable to be dismissed.

10. In reply to the maintainability of the writ petition, learned Counsel for the petitioner has submitted that it is a settled law that the alternative remedy would not operate as a bar where the writ petition seeks enforcement of any of the fundamental rights, where there is violation of principles of natural justice or where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. In support of his submissions, learned Counsel has invited the attention of this Court towards para 14 and 20 of the judgment of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others; (1998) 8 SCC 1. Para 14 and 20 reads as under:

"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."

11. I have considered the submissions of learned Counsel for the parties and perused the pleadings exchanged between the parties.

12. To adjudicate the present case, it would be appropriate to reproduce the relevant portion of the impugned punishment order dated 16.07.2018, which is as follows:

"3& Jh vt; dqekj] vf/k'kklh vfHk;Urk] fuekZ.k [k.M&1] yksd fuekZ.k foHkkx] jk;cjsyh ls 'kklu ds dk;kZy; Kki fnukad 04-08-2017 }kjk ekaxs x;s Li"Vhdj.k] Jh vt; dqekj }kjk izLrqr Li"Vhdj.k ,oa miyC/k leLr lqlaxr vfHkys[kksa ds ifj'khyuksijkUr ;g ik;k x;k fd ek0 U;k;ky;ksa esa oknksa dh izHkkoh iSjoh gsrq 'kklukns'k la0&[email protected]&13&14&14 ¼tujy½@2014] fnukad 18-02-14 esa Li"V funsZ'k fuxZr fd;s x;s gS fd ek0 vf/[email protected] U;k;ky; esa izR;sd dk;Z fnol dks foHkkx ls lEcfU/kr funsZ'k ;[email protected] ;kfpdk dh izfr;ka izkIr djus rFkk ek0 U;k;ky; }kjk ikfjr vkns'kksa dh fnu&izfrfnu dh tkudkjh foHkkx o 'kklu dks miyC/k djkus gsrq lgk;d vfHk;[email protected] vfHk;URkk Lrj ds vf/kdkjh dks jksLVj ds vuqlkj M~;wVh yxk;h tk;A iSjksdkj dk ;g nkf;Ro gksxk fd os oknksa dh lquokbZ dh frfFk dks ek0 U;k;ky; esa Lo;a mifLFkr jgs rFkk ek0 U;k;ky; ds vkns'kksa o lquokbZ dh vxyh frfFk ls foHkkxk/;{[email protected]'kklu dks voxr djkuk lqfuf'pr djsxsaA 'kklukns'k fnukad 18-02-2014 dh mDr O;oLFkk ls Li"V gS fd vf/k'kklh vfHk;Urk dk ;g mRrjnkf;Ro Fkk fd os [k.M ls lEcfU/kr lHkh U;k;ky; [email protected] dh iSjoh vkfn dh Lo;a leh{kk dj ek0 U;k;ky;ksa ds vkns'kksa ds lEcU/k esa le;kURkxZr vko';d dk;Zokgh lqfuf'pr djkrsA iz'uxr izdj.k esa ek0 vf/kdj.k }kjk ikfjr vkns'k fnukad 11-11-2016 dh izfr izkIr djus esa Jh vt; dqekj] vf/k'kklh vfHk;Urk] fuekZ.k [k.M&1] yksd fuekZ.k foHkkx] jk;cjsyh }kjk dksbZ dk;Zokgh ugha dh x;h] ftlls ;g fl) gksrk gS fd muds }kjk oknksa dh iSjoh esa dksbZ #fp ugha yh x;h] tks muds inh; nkf;Roksa ds fuoZgu esa f'kfFkyrk dk |ksrd gSA mDr ds n`f"Vxr Jh vt; dqekj dk Li"Vhdj.k lUrks"ktud ugha ik;k x;kA"

13. The relevant portion of the order dated 31.10.2019 by which the review application of the petitioner was rejected is reproduced below for ready reference:

"5& Jh vt; dqekj }kjk n.Mkns'k fnukad 16-07-2018 ds fo#) izLrqr iqufoZpkj izkFkZuk&[email protected];kosnu ds ifj'khyu ls Li"V gS fd ek0 U;k;ky;ksa esa oknksa dh izHkkoh iSjoh gsrq 'kklukns'k fnukad 18-02-2014 esa Li"V funsZ'k gS fd ek0 vf/[email protected] U;k;ky; esa izR;sd dk;Z fnol dks foHkkx ls lacaf/kr funsZ'k ;[email protected] ;kfpdk dh izfr;ka izkIr djus] ek0 U;k;ky; }kjk ikfjr vkns'kksa dh fnu&izfrfnu dh tkudkjh foHkkx o 'kklu dks miyC/k djkus gsrq lgk;d vfHk;[email protected] vfHk;Urk Lrj ds vf/kdkjh dks jksLVj ds vuqlkj M~;wVh yxk;h tk;A iSjksdkj dk ;g nkf;Ro gksxk fd os oknksa dh lquokbZ dh frfFk dks ek0 U;k;ky; esa Lo;a mifLFkr jgsa rFkk ek0 U;k;ky; ds vkns'k o vxyh frfFk ls foHkkxk/;{[email protected]'kklu dks voxr djkuk lqfuf'pr djsaxsA

mDr O;oLFkk ds vkyksd esa Jh vt; dqekj dk ;g dFku ekU; ugha gS fd funsZ'k ;kfpdk la[;k&[email protected] equh'k dqekj cuke m0iz0 jkT; esa ikfjr fu.kZ; fnukad 11-11-2016 dh izfr 'kklu dks miyC/k djkus dk nkf;Ro izLrqrdrkZ vf/kdkjh dk gSA izdj.k esa cgl ds mijkURk fu.kZ; lqjf{kr fd;s tkus ds i'pkr dksbZ frfFk fu/kkZfjr u fd;s tkus ds laca/k esa Li"V djuk gS fd iSjksdkj dk ;g nkf;Ro Fkk fd og izLrqrdrkZ vf/kdkjh ds lEidZ esa jgrs gq, izdj.k dh vn~;ru fLFkfr Kkr djrs] tks iSjksdkj }kjk ugha fd;k x;k ,oa Jh vt; dqekj }kjk Hkh vuqJo.k ugha fd;k x;kA iqufoZpkj izkFkZuk i= esa iqu% mUgha rF;ksa dk mYys[k fd;k x;k tks buds }kjk m0iz0 ljdkjh lsod¼vuq'kklu ,oa vihy½ fu;ekoyh&1999 ds fu;e&10¼2½ esa ekaxs x;s Li"Vhdj.k ds mRrj esa izLRkqr fd;k x;k gSA Jh vt; dqekj }kjk izLrqr iqufoZpkj izkFkZuk&i= esa ,slk dksbZ uohu rF;@lk{; izLRkqr ugha fd;k x;k gS] ftlls iwoZ fu.khZr n.M ls fopyu dk vkSfpR; LFkkfir gksrk gksA"

14. The petitioner was appointed on the post of Assistant Engineer in the year 1997 and later on, he was promoted to the post of Executive Engineer. While working on the post of Executive Engineer, he was doing pairvi of a case bearing Claim Petition No.1327 of 2010: Munish Kumar Vs. State of U.P. before the State Public Service Tribunal, Lucknow. The judgment of the case was reserved. The petitioner was served with a show cause notice seeking explanation on the following charges:

Þek0 vf/kdj.k ds mDRk fu.kZ; fnukad 11&11&2016 dh izfr vR;Ur foYkEc ls Jh vt; dqekj] vf/k'kklh vfHk;URkk] fuekZ.k [k.M&1] yksd fuekZ.k foHkkx] jk;cjsyh ds i= fnukad 03&08&2017 }kjk 'kklu dks miyC/k djk;h xbZ ijURkq rc rd iqutkZap gsrq ek0 vf/kdj.k }kjk iznku dh xbZ 06 ekg dh le;kof/k O;rhr gks pqdh FkhA blh e/; ;kph }kjk ek0 vf/kdj.k ds vkns'kksa ds vuqikyu ds lEcU/k eaas voekuuk okn la0&[email protected]] equh'k dqekj cuke Jh lnkdkUr] vij eq[; lfpo] yksd fuekZ.k foHkkx] m0iz0 'kklu ;ksftr dj nh xbZ] ftlls 'kklu dks vR;Ur vleatliw.kZ ,oa vlgt fLFkfr dk lkeuk djuk iM+ jgk gSA bl izdkj Jh vt; dqekj }kjk 'kkldh; dk;kZsa ,oa nkf;Roksa ds izfr ?kksj ykijokgh ,oa mnklhurk cjrh xbZ vkSj vius in ds vuq#i drZO;ksa ,oa nkf;Roksa dk fuoZgu ugha fd;k gS] tks m0iz0 jkT; deZpkjh vkpj.k fu;ekoyh&1956 ds fu;e&3 dk Li"V mYya?ku gSAß

15. The petitioner had submitted his detailed reply on 07.12.2017 and in the said reply, the petitioner has specifically submitted that when he was received information from the State Government on 03.08.2017 with regard to the judgment and order dated 11.11.2016, the petitioner without any further delay submitted the certified copy of the said order to the department concerned. Learned Counsel for the State has failed to point out that any loss caused to the Government for non-supplying the judgment and order dated 11.11.2016 prior to 03.08.2017. It is not in dispute that after hearing the parties, the Tribunal had reserved the judgment without fixing any date and time for delivery of judgment and, therefore, the explanation submitted by the petitioner for not providing the judgment and order of the Tribunal prior to 03.08.2017 is justified.

16. So far as the maintainability of the writ petition is concerned, in view of the law laid down by Hon'ble Supreme Court in the case of Whirlpool Corporation's (supra), the writ petition is maintainable.

17. After perused of the impugned orders quoted above and the discussions made hereinabove, I am of the opinion that the impugned orders have not been passed after considering the grounds taken by the petitioners. Hence, the punishment order dated 16.07.2018 and the order dated 31.10.2019 passed by the reviewing authority are set aside.

18. Accordingly, the writ petition is allowed.

Order Date :- 9.3.2021

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