Ashok Kumar, Asst. ... vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 2136 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 188 of 2022
 

 
Appellant :- Ashok Kumar, Asst. Eng.(Civil)/Incharge Deputy Dirct. (Const.) Man.Pari.Basti (In Wria 2012 of 2022)
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. of Agriculture, Civil Secrt. Lko. and others
 
Counsel for Appellant :- Prathama Singh,Anand Mani Tripathi,Pal Singh Yadav
 
Counsel for Respondent :- C.S.C.,Naresh Chandra Mehrotra
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Shri A.M. Tripathi, learned counsel representing the appellant-petitioner and Shri Naresh Chandra Mehrotra, learned counsel representing the Rajya Krishi Utpadan Mandi Parishad (herein after referred to as 'Mandi Parishad').

2. By means of this intra-court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952, the appellant-petitioner seeks to impeach the judgement and order dated 08.04.2022 passed by the learned Single Judge whereby the Writ A No. 2012 of 2022 filed by the appellant-petitioner has been dismissed.

3. At this juncture, itself we may indicate that the aforesaid Writ A No. 2012 of 2022 was filed by the appellant-petitioner challenging the order dated 31.03.2022 passed by the Deputy Director (Administration & Marketing) who is the Inquiry Officer, conducting the inquiry against the appellant-petitioner. By the said order dated 31.03.2022, the Inquiry Officer has summoned the proprietor of one M/s Star Construction who is the complainant, on the basis of which the disciplinary proceedings against the appellant-petitioner were instituted. By the said order dated 31.03.2022, the complainant has thus been required to make his oral submission/deposition in the course of inquiry being conducted against the appellant-petitioner.

4. Before considering the submission of the learned counsel representing the respective parties, we may note certain facts which are essential for the purposes of appropriate decision of the issues involved in this special appeal.

5. The appellant-petitioner is posted as Incharge Deputy Director (Construction). He was placed under suspension in respect of certain charges and a disciplinary inquiry was instituted in which he was issued a chargesheet. He is said to have submitted reply to the chargesheet and the Inquiry Officer is also said to have proceeded in the inquiry and submitted his report dated 29.10.2021. The said report was sent by the Inquiry Officer to the appellant-petitioner vide his letter dated 09.11.2021 requiring him to submit his representation/reply to the inquiry report. The appellant-petitioner is said to have furnished the reply to the said letter/show cause notice dated 09.11.2021 by means of the letter/reply dated 11.09.2021. After submission of the reply by the appellant-petitioner to the show cause notice dated 09.11.2021, a letter dated 24-12-2021 on behalf of the disciplinary authority was written to the complainant/M/s Star Construction by the Marketing Officer requiring him to be present before the disciplinary authority on 27.12.2021 for personal hearing and deposition.

6. The said letter dated 24.12.2021 came to be subject matter of challenge by the petitioner in Writ A No. 36 of 2022 and the learned Single Judge by means of the order dated 15.02.2022 quashed the letter/communication dated 24.12.2021 and directed the disciplinary authority to proceed in accordance with law and finalize the disciplinary proceedings expeditiously, preferably, within a period of two months. After the said judgement and order, it appears that a general Executive Circular was issued by the Director of the Mandi Parishad on 14.03.2022 containing directions to strictly follow the provisions contained in Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (herein after referred to as "Rules 1999") which are applicable in the case of Mandi Parishad as well, specifically Rule 7 (vii) of the Rules 1999. After issuance of the said general Circular dated 14.03.2022, the disciplinary authority in this case issued a letter/order dated 26.03.2022 whereby the inquiry proceedings pending against the appellant-petitioner were remitted back to the Inquiry Officer namely, Deputy Director (Administration & Marketing) with a direction to conduct the inquiry from the stage as provided under Rule 7 (vii) of the Rules 1999.

7. Pursuant to this order dated 26.03.2022, the order dated 31.03.2022 which was under challenge before the learned Single Judge in the writ petition was issued. As noted above by the said order dated 31.03.2022, the Inquiry Officer has required the proprietor of M/s Star Construction, who is the complainant, to be present during the course of inquiry and make his oral deposition in terms of the provisions contained in Rule 7 (vii) of the Rules 1999.

8. It is this order/communication dated 31.03.2022 which was under challenge before the learned Single Judge in the writ petition wherein the order under appeal, dated 08.04.2022 has been passed.

9. Submission of learned counsel appearing for the appellant-petitioner is that the judgement and order under this appeal, whereby the writ petition filed by the appellant-petitioner has been dismissed, is not tenable for the reason that the learned Single Judge has not correctly appreciated the entire scheme of the Rules 1999 and the provisions contained in the said Rules inasmuch as that once the inquiry report was submitted and the delinquent officer had also submitted his reply to the show cause notice, it was not open to the disciplinary authority to remit the matter back to the Inquiry Officer for ensuring purported compliance of Rule 7 (vii) of the Rules 1999.

10. Drawing attention of the Court to Rule 7 (9) of the Rules 1999, learned counsel for the appellant-petitioner has submitted that on submission of the inquiry report before the disciplinary authority, the disciplinary authority has the discretion to remit the case for re-inquiry to the same or any other Inquiry Officer. However, such remittance is permissible only for the reasons to be recorded and not otherwise, that too, such reasons are to be under intimation to the charged Government employee.

11. He has also submitted that under Rule 9 (4) of the Rules 1999, once the disciplinary authority decides to take action on the inquiry report instead of remitting the matter back to the Inquiry Officer in terms of Rule 9 (1) of the Rules 1999, the only course available/open to the disciplinary authority is that he can either exonerate the delinquent officer or he can pass any of the penalties specified under Rule 3 of the Rules 1999. However, before inflicting the penalty specified in Rule 3 of the Rules 1999, the delinquent officer has to be given a copy of the inquiry report his findings to be recorded under Sub Rule 2 of the Rules 1999.

12. Submission, thus is that once the inquiry proceedings had reached the stage of Sub Rule 4 (9) of the Rules 1999 any recourse taken by the disciplinary authority under Rule 9 (1) of the Rules 1999 is impermissible for the reason that the Clock cannot be turned back. Further submission of learned counsel for the appellant-petitioner is that even if the disciplinary authority was of the opinion that the matter needs to be remitted to the Inquiry Officer, in terms of the requirement of Rule 9 (1) of the Rules 1999 he ought to have recorded his reasons in writing and in absence of such reasons available in the order dated 26.03.2021, the remittance of the inquiry back to the Inquiry Officer is impermissible being vitiated and in contradiction with the provisions contained in Rule 9 (1) of the Rules 1999.

13. It has also been stated by the learned counsel for the appellant-petitioner that if we peruse the inquiry report it is abundantly clear that Rule 7 (vii) of the Rules 1999 were followed inasmuch as opportunity of oral hearing was provided to all concerned and hence, in the wake of the Inquiry Officer having followed Rule 7 (vii) of the Rules 1999 while conducting the inquiry earlier, the remittance by the disciplinary authority of the inquiry again to the Inquiry Officer for following the Rule 7 (vii) is impermissible.

14. On the other hand, Shri Naresh Chandra Mehrotra, learned counsel representing the Mandi Parishad has submitted that if we peruse the inquiry report submitted by the Inquiry Officer in this case, it clearly reveals that no oral evidence was recorded by the Inquiry Officer. He has further submitted that the charges against the delinquent officer i.e. the appellant-petitioner are very serious in nature and without recording any oral evidence, findings were returned by the Inquiry Officer and the disciplinary authority while noticing such deficiency in the inquiry report has thus passed the order dated 26.03.2022 remitting the inquiry back to the Inquiry Officer for conducting inquiry after ensuring the compliance of the Rule 7 (vii) of the Rules 1999.

15. His submission is that there is no illegality in the order dated 26.03.2022 passed by the disciplinary authority and hence, the learned Single Judge by means of the order under appeal has rightly refused to entertain the writ petition and has thus, lawfully dismissed the writ petition filed by the appellant-petitioner.

16. We have given our serious consideration to the rival submissions made by the learned counsel representing the respective parties and have also perused the records available before us on the special appeal.

17. The bone of contention between the parties in this case is the order dated 26.03.2022. If we peruse the said order, we find that it has been issued by the Director of Mandi Parishad who admittedly is the disciplinary authority in respect of disciplinary matters relating to the appellant-petitioner. The order dated 26.03.2022 further reveals that by the earlier Circular issued by the Mandi Parishad on 14.03.2022 it was directed that the provisions contained in Rule 7 (vii) of the Rules 1999 should be mandatorily followed in all disciplinary proceedings and where the provisions of the said Rules have not been followed in the disciplinary inquiry, such inquiry should be remitted back to the Inquiry Officer.

18. Thus, what we find is that the order dated 26.03.2022 does contain reason and the reason is that in terms of the Circular issued on 14.03.2022 if in a particular inquiry, the provisions of Rule 7 (vii) of the Rules 1999 have not been followed, such inquiry is to be remitted back to the Inquiry Officer for conducting inquiry again by following the provisions contained in Rule 7 (vii) of the Rules 1999.

19. When we consider the said reason indicated in the order dated 26.03.2022 passed by the Director of Mandi Parishad in the light of what has been recited in the inquiry report by the Inquiry Officer, what we find is that the inquiry report has been submitted without examining even a single witness in respect of some of the charges orally. Rule 7 (vii) of the Rules 1999 clearly mandates that in case the charged officer denies the charges, the Inquiry Officer has to proceed to call the witnesses and record their oral evidence in presence of the charged Government servant. It also mandates that in a situation where oral statement of a witness is recorded in presence of the charged Government servant, such delinquent officer is to be given opportunity to cross-examine such witness. The provisions contained under Rule 7 (vii) of the Rules 1999 are thus binding for the reason that in the opening sentence it contains the word "shall". The exact phrase used in Rule 7 (vii) is "Inquiry Officer shall proceed to call the witnesses".

20. Thus, there cannot be any escape by the Inquiry Officer not to summon the witnesses for recording their oral evidence. In case, the notice to such witnesses is issued and he does not turn up, the situation may be different. In case responding to such a notice issued under Rule 7 (vii), the witness does turn up and records his evidence, in that eventuality in terms of provisions contained in the said Rules itself the charged Government servant has to be given an opportunity to cross-examine him. Thus, in our considered opinion, the provisions contained in Rule 7 (vii) of the Rules 1999 are the repository of the well celebrated principle of natural justice which not only takes care of the concerns of the employer and its right to conduct disciplinary proceedings but also the interest of the charged delinquent officer inasmuch as in the event of oral statement of the witness being recorded, the delinquent officer has to be given opportunity to cross-examine. The Circular which is general in nature, dated 14.03.2022 appears to be a remedial measure taken by the Director of Mandi Parishad so as to ensure that the inquiry proceedings are conducted strictly in terms of Rule 7 (vii) of the Rules 1999.

21. The order dated 26.03.2022 passed in the present case in respect of the appellant-petitioner specifically makes a mention of Rule 7 (vii) of the Rules 1999 and as such, we do not find ourselves in agreement to the submissions made by learned counsel representing the appellant-petitioner that the order dated 26.03.2022 does not contain any reason.

22. The other submission made by the learned counsel representing the appellant-petitioner is that once the inquiry proceedings had reached the stage of Rule 9 (4) of the Rules 1999, the Clock cannot be turned back and no action as envisaged in Rule 9 (1) is permissible. The said submission, in our considered opinion, is also not tenable for the reason that the very basic principles to be followed in the case of disciplinary proceedings are not only to protect the interest of the charged officer but also to protect the right of the employer to draw, conduct and conclude disciplinary proceedings in case any misdemeanor or misconduct is reported against its employee. It does not make any difference that the disciplinary proceedings in this case had reached to the stage of Rule 9 (4) of the Rules 1999 inasmuch as that after submission of the inquiry report, the appellant-petitioner was given show cause notice to which he has also replied. If even after submission of the reply filed by the petitioner, the disciplinary authority notices some major flaw (which in this case as is apparent from the perusal of the inquiry report itself), in our considered opinion, it is always open to the disciplinary authority to take corrective and remedial measures so that the provisions and the scheme contained therein are strictly followed under the Rules 1999.

23. For this reasons, we are unable to accept the submissions made by learned counsel representing the appellant-petitioner in this regard.

24. Over and above all, we may also observe that by passing the order dated 26.03.2022 and by issuing the communication dated 31.03.2022, no prejudice of any kind is going to be caused to the delinquent officer. In case the witnesses responds to the communication dated 31.03.2022 and he makes his oral deposition, the appellant-petitioner will have the opportunity to cross-examine him and put forth his defence vis-a-vis the statement which may be made by the witness/complainant. This will be in complete consonance with the provisions contained in the Rules, 1999.

25. Learned counsel for the appellant-petitioner has lastly relied upon the judgement of Hon'ble Supreme Court in the case of Punjab National Bank and others Vs. Kunj Behari Misra reported in (1998) 7 SCC 84. Placing reliance on the paragraph No. 19 of the said judgment, it has been submitted by the learned counsel for the appellant-petitioner that once the disciplinary authority differs with inquiry report, the charged officer must have an opportunity to represent before the disciplinary authority.

26. We have perused the observations made by Hon'ble Supreme Court in paragraph No. 19 in the case of Punjab National Bank (supra). We find that the Hon'ble Supreme Court in the said case has opined that before the disciplinary authority differs with the Inquiry Officer's report and while recording a finding of guilt, imposes punishment on the charged officer, in such a situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment is imposed. In this respect, we may observe that no such stage in the disciplinary proceedings has arrived as yet sofaras the disciplinary proceedings against the appellant-petitioner are concerned. Accordingly, the aforesaid judgement in the case of Punjab National Bank (supra) does not come to the rescue of the appellant-petitioner.

27. For the reasons aforesaid, we do not see any reason to interfere in the judgement and order dated 08.04.2022 passed by the learned Single Judge which is under appeal herein. The special appeal being devoid of merit, is hereby dismissed.

28. No costs.

Order Date :- 6.5.2022

Jaswant