Allahabad High Court
State Of U.P. Thru. Addl. Chief ... vs Vijay Pratap Yadav And Another on 22 December, 2022
Bench: Devendra Kumar Upadhyaya, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- WRIT - A No. - 8773 of 2022
Petitioner :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Civil Secrt. Lko. And Others
Respondent :- Vijay Pratap Yadav And Another
Counsel for Petitioner :- C.S.C.
Counsel for Respondent :- Ramesh Singh,Shikhar Anand
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Lavania,J.
These proceedings under Article 226 of the Constitution of India have been instituted by the petitioners-State authorities challenging the judgment and order dated 06.07.2022 passed by U.P State Public Services Tribunal in Claim Petition No.1406 of 2021 which was filed by the respondent no.1 challenging the order of punishment dated 19.07.2021 whereby he was reverted to his basic pay and his integrity was described to be doubtful. The Tribunal has allowed the claim petition and has set-aside the order of punishment dated 19.07.2021.
Submission of learned counsel for the petitioners is that learned Tribunal without appreciating the evidence available on record of the inquiry has interfered in the findings recorded by the disciplinary authority and has in fact substituted its own finding to the findings which had led the appointing authority to pass the order of punishment. Learned State counsel has, thus, stated that it was not open to learned Tribunal to have substituted its own finding, which vitiates the judgment and order under challenge herein.
On the other hand, Sri Ramesh Singh, learned counsel for respondent no.1 has categorically submitted that in fact charge levelled against the respondent no.1 was not proved during the inquiry and in the aforesaid view of the matter, the findings recorded by learned Tribunal are not liable to be interfered with. His further submission is that the so far as the charge based on the alleged involvement of the respondent no.1 in the criminal case relating to forfeiture or recovery of foreign currency is concerned, the matter was investigated by the Investigating Agency and a final closure report has been submitted. It has further been argued by learned counsel for respondent no.1 that the judgment and order passed by the Tribunal need not be interfered with.
We have considered the rival submissions made by learned counsel representing the respective parties and have also perused the record available before us on this petition.
The departmental proceedings were initiated against the respondent no.1 by issuing a charge sheet on 27.08.2019 which contained the allegation relating to some recovery/forfeiture of foreign currency, namely, Saudi Riyad and accordingly a criminal case, namely, Case Crime No. 0134 of 2019, under Sections 394/506 IPC and Section 7/13 (1 (d) of Prevention of Corruption Act was lodged against the respondent no.1. Allegation against the respondent no.1 was also that he had obtained signature on a plain paper from the person from whom he had recovered the foreign currency. The departmental proceedings on the basis of said charges were conducted, however learned Tribunal has returned a categorical finding that the respondent no.1 was not given opportunity to cross examine the witness which is mandatory in terms of the provisions contained in Rule 7 (vii) of U.P. Government Servant (Discipline and Appeal) Rules, 1999.
As a matter of fact, if learned Tribunal has found that Rule 7 (vii) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 while conducting inquiry has not been followed, it cannot be said that the Tribunal has substituted its own finding. Such a fact would be apparent from a bare perusal of the inquiry proceedings.
In the aforesaid view of the matter, we do not agree with the submissions made by learned counsel for the petitioners that the Tribunal has substituted its own finding by upsetting the finding recorded by the disciplinary/appointing authority while passing the order of punishment. However, we also notice that learned Tribunal while setting aside the order of punishment dated 19.07.2021 has made it open to the petitioners-State authorities to pass some other appropriate order if they are so advised.
To the aforesaid observation made and the liberty granted by the Tribunal, we may state that it is well settled principle of law that in the matters of departmental inquiry, if the ultimate order of punishment is set aside on a finding that for some reason of procedural lapses the departmental proceedings were vitiated, the right of employer to re-conduct the inquiry from the stage inquiry was found to be vitiated, cannot be curtailed.
In the instant case, the Tribunal has found the inquiry to be vitiated for the reason that the respondent no.1 (charged officer) was not given opportunity of cross examining the witnesses in terms of the provisions contained in Rule 7 (vii) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 and accordingly, in view of the aforesaid settled principle, opportunity ought to have been given to the State authorities-petitioners to re-conduct the inquiry from the said stage i.e. from the stage of providing opportunity to the respondent no.1 to cross examine the witnesses.
In view of the aforesaid, we modify the order dated 06.07.2022 passed by U.P State Public Services Tribunal in Claim Petition No.1406 of 2021 by providing that it shall be open to the State authorities-petitioners to re-conduct the inquiry from the stage it was found to be vitiated by learned Tribunal i.e from the stage of permitting the respondent no.1 to cross examine the witnesses and accordingly to conclude the same.
If the State authorities-petitioners are so advised, the inquiry shall be re-conducted in view of the aforesaid observations and shall be completed within a maximum period of three months from today. We further observe that the order dated 06.07.2022 passed by the Tribunal is modified only to the aforesaid extent which would mean that as a consequence of the order passed by the Tribunal, the respondent no.1 shall be entitled to the pay to be fixed in terms of the pay scale to which he would have been entitled had the punishment order dated 19.07.2021 not been passed, however, this fixation of pay shall be subject to final outcome of the inquiry, if it is re-conducted in terms of this order.
The petition is disposed of finally in the aforesaid terms.
There will be no order as to costs.
Order Date :- 22.12.2022
Renu/-
