Umesh Kumar Sinha vs State Of U.P. And Others
2021 Latest Caselaw 11194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 

 
Case :- WRIT - A No. - 5636 of 2012
 

 
Petitioner :- Umesh Kumar Sinha
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Ajay Bhanot,Kartikeya Saran,Shashank Shekhar Mishra
 
Counsel for Respondent :- C.S.C.,K.S. Kushwaha,Nisheeth Yadav
 

 
Hon'ble Ashwani Kumar Mishra,J.

Petitioner at the relevant point of time was the Senior Clerk in the Office of District Non Formal Education Officer, Varanasi. The Joint Director of Education vide the first impugned order dated 03.12.1997 has held that petitioner is substantively appointed Senior Clerk and was temporarily promoted to the post of Senior Assistant, in a local arrangement, and since disciplinary action is proposed to be initiated against him as such he is being sent back to his substantive post of Senior Clerk. The second order under challenge is an order of suspension passed against the petitioner on 22.01.1998, by the Joint Director of Education, which records that since disciplinary action on serious charges is contemplated, therefore, he is being placed under suspension.

It is after a gap of 13 long years that a charge-sheet has been issued to petitioner on 12.10.2011, leveling five charges against the petitioner, which is the third order under challenge. The charge-sheet is assailed on the ground that neither any material in support of the charges exists nor any disciplinary enquiry would be permissible in absence of such material. It is also urged that the delay of thirteen years in initiation of disciplinary action is not explained and in the facts and circumstances is wholly arbitrary. It is also contended that for a period of thirteen years during which petitioner was placed under suspension even subsistence allowance was not paid to him which renders the entire disciplinary action unsustainable. Sri Kartikeya Saran, learned counsel appearing for the petitioner places reliance upon a judgment of the Supreme Court in P. V. Mahadevan Vs. MD, T. N. Housing Board, (2005) 6 SCC 636, as also a Division Bench Judgment of this Court in Special Appeal Defective No. 202 of 2021 (Neelu Dwivedi Vs. Artificial Limbs Manufacturing Corporation of India and ors.) to submit that unexplained delay in issuance of charge-sheet would vitiate the charge-sheet and it is liable to be quashed.

Sri Shailendra Singh, learned Standing Counsel on the other hand contends that charges against the petitioner are extremely serious and for ascertaining the cause of delay in issuance of charge-sheet an enquiry by a three member enquiry committee has been constituted. It is also contended that delay was occasioned in issuing the charge-sheet on account of inter district communication between different officers since the charges related to a period when petitioner was posted at Bahraich whereas he was in fact serving at Varanasi when disciplinary action was initiated. Documents from different offices had to be collected which contributed to the delay. Reliance is placed upon a judgment of the Supreme Court in U.P. Cooperative Federation Ltd. and others Vs. L. P. Rai, (2007) 7 SCC 81, as also the judgment of this Court in Dinesh Kumar Bhardwaj Vs. State Bank of India Thru Regional Manager and others (Writ Petition No.39036 of 2012) to defend the impugned action. A prayer is also made to allow the respondents to proceed with the enquiry in view of the seriousness of charges levelled.

In reply Sri Kartikeya Saran, learned counsel for the petitioner states that no material in support of the charges are shown to exists on record and, therefore, the allegation made against the petitioner in the charge-sheet are unsustainable for the mere reason that no material in support of such charges exists on record. It is pointed out that even the subsistence allowance has been paid to petitioner only in the year 2016 after eighteen years at the rate of salary admissible as per Forth Pay Commission report notwithstanding the fact that Fifth Pay Commission report got enforced on 01.01.1996. With reference to the affidavits filed by the Officers before this Court it is urged that respondents admit that original records are not in existence and, therefore, holding of disciplinary enquiry would otherwise be an abuse of the authority vested in the employer. It is contended that petitioner has been sufficiently punished for no fault of his and, therefore, the disciplinary enquiry initiated against him be set aside particularly as he has otherwise attained the age of superannuation and the petitioner be allowed service and retiral benefits as per his entitlement in law.

While entertaining the writ petition this Court passed following order on 01.02.2012:-

"Learned Standing counsel has accepted notice on behalf of respondents nos. 1 to 8. He prays for and is accorded six weeks time to file counter affidavit. Rejoinder affidavit may be filed within next two weeks.

List thereafter.

It has been contended on behalf of petitioner that in the present case petitioner has been placed under suspension vide order dated 27.01.1998 and for all these years while he has been continuing under suspension subsistence allowance has not been paid to him. Petitioner has contended that he has complied with the term and condition of the suspension order. Petitioner has further contended that respondents have maintained complete silence in respect of holding of disciplinary proceedings and now charge sheet in question has been issued to the petitioner dated 12.10.2011. Petitioner at this juncture has rushed to this Court contending therein that such in ordinate delay in initiating disciplinary proceedings has not been satisfactorily explained as to why charge sheet in question has been belatedly issued and on this score disciplinary proceeding at this juncture are liable to be dropped.

Petitioner has placed reliance on the judgment of Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh and other reported in 1990 (Supp.) SCC 738 and submits that it would be unfair to permit the departmental enquiry to proceed at this late stage as charge sheet in question has been issued after 13 years and charges in question are of the year 1996-97 respectively .

Primafacie arguments advanced appears to have some substance and requires consideration by this Court.

Consequently, till the next date of listing no further action shall be taken pursuant to charge sheet in question and while filing counter affidavit specific details shall be furnished explaining inordinate delay in holding of the enquiry."

Recently, after hearing the learned counsel for the parties the Court proceeded to pass following orders on 02.08.2021:-

"Petitioner was placed under suspension in the year 1998, whereas chargesheet has been served upon him in the year 2011. Contention is that excessive delay in service of chargesheet is arbitrary in the facts of the present case. It is also contended that petitioner has attained the age of superannuation in the year 2015 and all his retiral benefits are withheld.

Affidavits have been exchanged between the parties.

It would be appropriate to call upon the respondents to produce relevant records, on the next date fixed.

List on 18.8.2021."

When the matter was taken up next following orders were passed on 26.08.2021:-

"Heard learned counsel for the parties.

Facts of the writ petition reflects a sorry state of affairs. Petitioner, a clerk, came to be suspended in 1998, a charge-sheet was supplied in 2011.

It is urged that in support of the charges no documents/evidence was supplied. Petitioner retired in 2015.

This Court had directed the respondents to produce the records, however, the respondents have not responded.

In view thereof, the Court is constrained to direct the first respondent-Secretary, Basic Education to file his personal affidavit, as to what, action he proposes against the delinquent employees including the disciplinary authority.

On the next date, the sixth respondent shall appear along with the records of the case to show cause.

It is clarified that in the event of the affidavit is not being filed by the first respondent, the first respondent shall also appear on the next date fixed.

List this case on 17 September 2021."

Again when the matter was taken up following orders were passed on 17.09.2021:-

"From the contents of the affidavit tendered today as well as the submissions addressed by learned counsels, the following issues emerge.

The challenge to the charge-sheet of 12 October 2011 was originally based on the disciplinary proceedings having been initiated with inordinate delay. This since admittedly the petitioner had come to be suspended on 27 January 1998 and the chargesheet came to be issued almost 3 years thereafter. When the writ petition was initially entertained on 01 February 2012, taking notice of the aforesaid contention the Court had provided that no further action would be taken pursuant to the chargesheet in question. That interim restraint continues to operate till date. It is in the aforesaid backdrop that the Court would have to evaluate the contention that the chargesheet is liable to be quashed on account of inordinate delay.

Secondly, admittedly the petitioner attained the age of superannuation in 2015 during the pendency of the present writ petition. The issue which consequently arises is whether the proceedings which were initiated in terms of the charge-sheet can possibly be continued. This essentially since it is contended that in the absence of any sanction as envisaged under Regulation 351-A of the Civil Service Regulations having been obtained, proceedings cannot be continued.

Lastly the Court notes the contents of paragraph 10 of the personal affidavit of the first respondent who states that for want of original records, the inquiry proceedings could not be completed. It is in the aforesaid backdrop that Sri Kartikeya Saran contends that continuance of proceedings based on the impugned charge-sheet would be an exercise in futility since as per the respondents themselves, no records exist based on which the charges as levelled may be established. Since the principal questions which arise stand duly enumerated, this matter shall stand posted for final disposal on 29 September 2021.

As jointly prayed, include in the additional cause list of 29 September 2021. The personal presence of the sixth respondent is dispensed with."

Affidavits have been filed by the respondents in response to the above orders which shall be dealt with later.

So far as order dated 03.12.1997 is concerned it records that petitioner substantively holds the post of Senior Clerk and only under internal arrangement he has been allowed to officiate on the post of Senior Assistant purely on temporary basis. This order is challenged on the ground that Joint Director of Education had no jurisdiction to pass it and that the competent authority in that regard was the Additional Director.

The order whereby the petitioner was permitted to officiate temporarily on the promoted post of Senior Assistant although is not filed but from the materials produced on record it is apparent that petitioner was neither promoted to the post of Senior Assistant nor any proceedings as per relevant service rules were undertaken before allowing the petitioner to temporarily hold the promoted post. The findings in the order dated 03.12.1997 that petitioner was only permitted to officiate as an internal arrangement is also not shown to be perverse or arbitrary. Entitlement to continue on the promoted post can arise only if promotion is accorded substantively by following the procedure laid in the rules. Such a right can be claimed only if the competent authority passes an order of promotion after complying with the provisions contained in the recruitment rules itself. There is noting on record to show that petitioner was promoted in any such exercise. Mere officiation on a higher post in such circumstances would not vest any right in petitioner to claim continuance on such post. Order dated 03.12.1997 merely allows the petitioner to continue on his substantive post. Such an order would merit no interference particularly when the basis of right to higher post is not substantiated in connosence with the requirement of law.

So far as the order of suspension is concerned it is apparent that neither any charges were specified therein nor the disciplinary enquiry was initiated at that stage. The charge-sheet ultimately has been issued to petitioner after thirteen years on 12.10.2011. The charges against the petitioner are as under:-

(i) that petitioner instead of making purchases as per the recommendation of the State Level Committee has got the purchases made unauthorisedely, with the approval of District Magistrate, Bahraich for his personal vested interest. In support of this charge the respondents proposed to rely upon a letter of the Secretary Basic Shiksha Parishad as also the approval of the District Magistrate dated 02.06.1996 and the letter of Director of Education dated 04.11.1995.

(ii) that petitioner instead of ensuring purchase @ 2725 per Center allowed purchase in excess of the aforesaid amount causing financial loss to the tune of Rs. 40 lakhs. The letter of the Secretary and Director, Basic referred to and relied upon in the first charge has again been relied.

(iii) the third charge is that despite specific directions the petitioner ordered purchase of unwarranted materials like teacher attendance register, T.C. Book, Hindi Alphabet Chart, Hindi Gini Chart, A.B.C.D. Chart, Hindi Table Chart, Sanitation Chart, Carbon Box, Plastic Bucket, Glass, Mug etc. In addition to it the petitioner also caused loss by unauthorisedly placing orders for purchase of football, volleyball, net and other sports goods.

(iv) the petitioner ordered purchase of material over and above rates settled in the contract causing loss to the tune of Rs.11,92,745/-.

(v) the last charge is that petitioner indulged in purchase of materials contrary to the departmental directions and, thereby, has violated the orders of the senior authorities.

The charge-sheet has been issued to the petitioner only in the year 2011 after placing him under suspension in 1998.

Pursuant to the orders passed in the writ petition calling upon the respondents to explain this inordinate delay two affidavits have been filed by the respondents, which are worth referring to at this stage. The first affidavit is dated 09.09.2021 and is sworn by the Joint Director of Education, Varanasi, region Varanasi in which correspondence made between different officers for initiating disciplinary action against the petitioner and for providing materials on the basis of which the charge-sheet would be issued is referred to in paragraph nos.6 to 9. Para 10 of the affidavit refers to a communication of the Joint Director of Education, Varanasi to the Joint Director of Education, Faizabad requesting for providing relevant records for the purpose of holding enquiry. Similar communication for securing records appears to to have been made between different officers which are referred to in paragraph nos. 11 to 14. None of the paragraph in this affidavit conveys the reason or justification for the delay occasioned in issuance of charge-sheet to the petitioner. This affidavit also refers to the reply of the petitioner to the charge-sheet dated 22.10.2011, in which the petitioner submitted his interim reply to the charge-sheet and demanded legible and certified copies of the materials which were proposed to be relied upon for the purposes of holding disciplinary enquiry. The list of witnesses to be relied upon were also submitted by the petitioner. The second affidavit is of the Secretary Basic Education. Para 9 to 11 of this affidavit are of relevance and consequently are reproduced hereinafter:-

"9. That after 6 years from the suspension of the petitioner vide order dated 27.1.1998 passed by the Joint Director of Education, Varanasi Region, Varanasi, the then Joint Director of Education, Varanai Region, Varanasi vide letter dated 8.1.2004 has requested the Joint Director of Education, Faizabad Region, Faizabad to provide the original records with regard to charges levelled against the petitioner.

10. That after calling for the report in the event of reinstatement of the petitioner by order dated 13.04.2009 of Directorate, the Joint Director of Education, Varanasi Region, Varanasi vide his letter dated 25.06.2009 has informed the Directorate that for want of original records relating to the charges, the enquiry proceeding could not be completed. 

11. That the Joint Director of Education, Varanasi Region, Varanasi vide letter dated 4.8.2011 annexing the copy of letter of petitioner dated 7.7.2011 has directed the District Basic Education Officer, Varnasi for payment of subsistence allowance to the petitioner. Thereafter, letter dated 9.8.2011 was sent to the District Basic Shiksha Adhikari, Bahraich requesting therein for sending the LPC and service book of the petitioner and in the event of non receiving the same, the District Basic Education Officer, Varanasi vide letter dated 15.10.2011 has informed the Joint Director of Education, Varanasi Region, Varanasi that for want of LPC and Service book, the payment of subsistence allowance to the petitioner is not possible."

What exactly was the reason for not taking steps to issue charge-sheet between 1998 to 2004 is left unanswered. Delay of further five years between 2004 to 2009 is also not explained. From the materials that have been brought on record it is apparent that the original records were either not in possession of the authorities who issued the charge-sheet to the petitioner nor such records have been provided by the office where the acts constituting misconduct are alleged to have been performed by the petitioner. There is absolutely no reason disclosed in any of the affidavit as to on what basis the charges were levelled against the petitioner when the original records itself were neither traced nor were ever placed before the competent authority who formed the opinion or sanctioned the issuance of charge-sheet to the petitioner.

Though it is the right of the employer to conduct disciplinary action against its employee and the Courts are usually reluctant to interfere with such rights but it must be observed that such right is not absolute. Where the employer is the State it is expected to act a model employer and due care and caution is expected to be exercised by the relevant authority while dealing with conduct of disciplinary action against its employees. Merely because the employer is the State it would not mean that the government servant can be placed under suspension for an indefinite period even without initiating disciplinary action, as is the case in hand.

In P. V. Mahadevan (Supra) the Supreme Court was faced with the case of a similar kind and after it was found that no material was placed to justify the inordinate delay of more than ten years the Supreme Court quashed the charge memo by observing as under in paragraph nos. 8 to 12 of the judgment:-

"Our attention was also drawn to the counter affidavit filed by the respondent-Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-1995.

Section 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 Tamil Nadu Act No. 17 of 1961 read thus :

"118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year.

119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf."

Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994-1995. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give some explanation for the delay.

Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.

We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefit shall be disbursed within three months from this date. No costs."

The Division Bench of this Court in Neelu Dwivedi (Supra) similarly has examined the law on the subject and after elaborately discussing the judgments on the point proceeded to quash the charge-sheet on the ground that the initiation of disciplinary action was highly belated and no justification or material was brought on record to explain such inordinate delay.

Initiation of enquiry after such long lapse of time not only causes extreme prejudice to the employee but otherwise goes contrary to the interest of administration as also larger public interest inasmuch as the Government servant under the threat of such proceedings or their victimization would not be willing to perform even just duties unless such arbitrary action is met with strong disapproval by the Courts. So far as the judgment relied upon by learned Standing Counsel in the case of U.P. Cooperative Federation Ltd. and others (Supra) is concerned the Supreme Court observed as under in para 5, which is reproduced hereinafter:-

"Ms. Rachana Srivastava, learned counsel for the appellant, has submitted that the High Court having come to a finding that no proper enquiry was held as the respondent was not given opportunity to defend himself and the enquiry suffered from procedural irregularities, should have given liberty to the appellant to hold a fresh enquiry against the respondent in accordance with law. However, by the impugned order, the right of the appellant to hold a fresh enquiry has been foreclosed. Learned counsel for the respondent has submitted that L.P. Rai (respondent) has since retired from service and it will not be proper at this stage to hold a fresh enquiry against him. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the charges levelled against the employee are not of a minor or trivial nature and, therefore, it will not be proper to foreclose the right of the employer to hold a fresh enquiry only on the ground that the employee has since retired from service. In this view of the matter, the order passed by the High Court requires to be modified. It is accordingly clarified that it will be open to the appellant-employer to hold a fresh enquiry against L.P. Rai (respondent) in accordance with rules. Having regard to the fact that the respondent has already retired from service, it is directed that if the appellant chooses to hold a fresh enquiry, it must do so expeditiously, preferably within a period of four months from the date on which a certified copy of this judgment is issued by the office. A decision on the question of promotion of the respondent employee shall be taken after the conclusion of the enquiry."

The aforesaid observation of the Court is in the context of the facts of that case and cannot be construed as laying down any principle contrary to what is held in P.V. Mahadevan (Supra) and Neelu Dwivedi (Supra). This is more so as holding of enquiry itself would be difficult in the facts of this case in absence of availability of original records. The other judgment relied upon by learned Standing Counsel in the case of Dinesh Kumar Bhardwaj (Supra) is also distinguishable on facts inasmuch as the delay in departmental enquiry was explained in that case due to pendency of criminal case which is not the case here.

It would also be worth noticing the argument of Sri Kartikeya Saran that disciplinary proceedings are also liable to be quashed on account of denial of subsistence allowance for nearly eighteen years. the State in its counter affidavit has clearly admitted that the subsistence allowance was paid to the petitioner for the first time on 24.06.2016, which is after eighteen years of the initiation of disciplinary action. The routine explanation that petitioner had not submitted certificate that he was not employed elsewhere has been strongly objected by the petitioner by repeatedly furnishing materials before the competent authority to show that such materials were placed on record. No material otherwise has been brought on record to show that petitioner was gainfully employed elsewhere. Unexplained delay in initiation of disciplinary enquiry as also denial of subsistence allowance for a period of eighteen years has rendered the entire proceeding open to challenge on the ground of apparent arbitrariness. In U.P. State Textile Corporation Ltd. Vs. P.C. Chaturvedi and others, (2005) 8 SCC 211, the effect of non payment of subsistence allowance came to be examined by the Supreme Court and it has been observed that in the event non-payment of subsistence allowance has caused prejudice to the employee the action of the employer itself would be open to challenge on such grounds. The petitioner has stated that on account of non payment of subsistence allowance for eighteen years he had to suffer gravely and  had to sell his personal belongings to ensure his basis survivals. Sri Kartikeya Saran states that this has otherwise compromised the availability of the petitioner to effectively contest the proceedings and establish petitioner's innocence.

As has already been observed above the initiation of the disciplinary enquiry in the present case is after thirteen years and even the materials on the basis of which the charges are proposed to be established are apparently not available. Merely by stating that an enquiry committee has been constituted to look into these aspects the State would be not justified in prolonging the suffering of petitioner, any further, by allowing the respondents to proceed with the enquiry. Even the charges in the charge-sheet are based upon certain letters of the higher authorities without there being any examination of original bills or other materials which alone can constitute the basis for the charge-sheet. Merely stating that huge financial losses are caused to the State would not suffice unless the charges are even prima facie supported by any credible material placed before the court.

Having considered the respective submissions and upon examination of materials brought on record this Court finds that absolutely no reasons have been placed on record by the respondents to explain the inordinate delay of thirteen years in initiation of the disciplinary enquiry against the petitioner. The petitioner otherwise has attained the age of superannuation in the year 2015. In the totality of circumstances as also for the reasons recorded above, the writ petition is liable to succeed and is allowed. The charge-sheet issued to petitioner as also the order of suspension and its continuance for a period of thirteen years without any justification are quashed. The petitioner shall be entitled to payment of salary for the period he remained under suspension along with continuity and other service benefits. The retiral benefits which are found due and payable to petitioner in terms of his entitlement as per above shall also be worked out and paid to him within a period of four months, failing which the petitioner would be entitled to interest @ 8% per annum. It shall however be open for the respondents to recover the amount of interest from the salary of the officer found responsible for not ensuring release of the retiral benefits in terms of the aforesaid direction. The writ petition is accordingly allowed.

Order Date :- 6.10.2021/Abhishek Singh