Allahabad High Court
Shesh Narain Dubey vs State Of U.P.Thru.Addl.Chief ... on 25 March, 2021
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- SERVICE SINGLE No. - 8566 of 2021
Petitioner :- Shesh Narain Dubey
Respondent :- State Of U.P.Thru.Addl.Chief Secy. Agriculture Deptt. & Ors.
Counsel for Petitioner :- Meenakshi Singh Parihar,Divyanshu Pratap
Counsel for Respondent :- C.S.C.
Hon'ble Irshad Ali,J.
1. Heard Ms. Meenakshi Singh Parihar, learned counsel for the petitioner, learned ACSC for respondent Nos.1 to 4.
2. Ms. Pushpila Bisht, learned Advocate has today filed appearance on behalf of respondent No.5. The same may be taken on record.
3. Fact of the case is that the petitioner was selected as Sub Division Agriculture Extension Officer in Agriculture Department in the year 1990. Subsequently in year 2006 he was promoted to the post of Deputy Director.
4. Grievance of the petitioner is that in a disciplinary proceeding initiated against him, vide impugned order dated 24.02.2021, he has been awarded punishment by the disciplinary authority and in the meantime, respondent No.1 has passed the impugned order dated 17.03.2021, whereby promotion has been granted to respondent No.5.
5. Assailing the impugned orders dated 24.02.2021 and 17.03.2021, whereby punishment has been awarded to the petitioner and promotion has been granted to respondent No.5 ignoring the seniority of the petitioner, submission of learned counsel for the petitioner is that the inquiry officer has conducted the inquiry in a very haste manner violating the principles of natural justice and without providing opportunity of hearing to the petitioner to file his defence and to cross examine the witnesses.
6. She further submitted that no date, time and place was fixed while conducting the inquiry. She submitted that the disciplinary authority while passing the impugned order has nowhere considered that the inquiry officer while making inquiry has not found charges proved against the petitioner and in case the disciplinary authority was not satisfied with the inquiry report submitted by the inquiry officer, by recording reasons he would have directed for further inquiry by the same inquiry officer or by appointing another inquiry officer.
7. She next submitted that against the order of punishment awarded to the petitioner, the petitioner filed representation / appeal on 03.03.2021 before respondent No.1 but till date no order whatsoever has been passed.
8. Her last submission is that the orders impugned being violative of principles of natural justice and contrary to law are not sustainable and are liable to be set aside.
9. On the other hand, learned counsel for the respondents submitted that the representation / appeal, as alleged by the petitioner has been filed before the disciplinary authority, who has passed the impugned orders and in view of provisions contained under Rule 11 of U.P. Government Servants (Discipline and Appeal) Rules, 1999 the representation / appeal before the same authority, who has passed the order of punishment is not maintainable. They further submitted that the representation / appeal would have been filed before the higher authority next to the disciplinary authority.
10. Learned counsel for respondent No.5 submitted that the impugned orders passed by the disciplinary authority do not suffer from any infirmity or illegality and are just and valid. The disciplinary authority by recording reasons can himself record its satisfaction on the basis of charges levelled against an employee. In support of her submission, she made statement that law in this regard has been settled by Hon'ble Apex Court but could not produce even a single judgment on the point.
11. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
12. To resolve the controversy involved in the present writ petition, Rule 11 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 is being quoted below:
"11. Appeal. - (1) Except the orders passed under these rules by the Governor, the Government servant shall be entitled to appeal to the next higher authority from an order passed by the disciplinary authority.
(2) The appeal shall be addressed and submitted to the appellate authority. A Government servant preferring an appeal shall do so in his own name. The appeal shall contain all material statements and arguments relied upon by the appellant.
(3) The appeal shall not contain any intemperate language. Any appeal, which contains such language may be liable to be summarily dismissed.
(4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily."
13. On its perusal, it is evident that the representation / appeal would have been filed before the higher authority next to the disciplinary authority.
14. It is admitted case of the petitioner that the representation / appeal was filed before respondent No.1, who has passed the impugned order. The submission advanced that disciplinary authority can himself examine the inquiry report and after recording its dis-satisfaction can record its own satisfaction in regard to charges appears to be fallacious.
15. In catena of decisions, Hon'ble Supreme Court has held that in case the disciplinary authority is not satisfied with the inquiry report, he has to record reasons and can direct for re-inquiry by the same inquiry officer or by appointing another inquiry officer to inquire into the allegations levelled against an employee.
16. In view of the above, without entering into other controversies of the petition in regard to promotion ignored to the petitioner by the departmental promotion committee (DPC) law is settled in this regard that if there is any adverse to the employee, his promotion shall be considered under sealed cover proceeding and as soon as the order of punishment is set aside and charges are expunged, claim of the promotion shall be considered and entitlement of promotion shall be considered subsequently.
17. Once this is the background of the case that the petitioner has not filed his representation / appeal before the competent authority, this writ petition is finally disposed of without entering into merits of the case with a liberty to the petitioner to file an appeal before the competent authority as provided under Rule 11 of Rules of 1999 within a period of two weeks from today. In case such an appeal is filed within aforesaid period, the same shall be considered and appropriate reasoned and speaking order shall be passed within a period of six weeks from the date of production of a certified copy of this order.
Order Date :- 25.3.2021
Adarsh K Singh
