Allahabad High Court
Rakesh Kumar Rai vs State Of U.P. Thru. Prin. Secy. ... on 19 October, 2022
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7
Case :- WRIT - A No. - 6844 of 2022
Petitioner :- Rakesh Kumar Rai
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Dairy Development, Lko. And 3 Others
Counsel for Petitioner :- Sudeep Kumar,Avdhesh Kumar Pandey
Counsel for Respondent :- C.S.C.,Shanker Lal,Sunil Kumar Singh
Hon'ble Rajnish Kumar,J.
Heard Sri Sudeep Kumar, learned counsel for the petitioner, learned Standing Counsel and Sri Sunil Kumar Singh, learned counsel for the respondent nos.3 and 4.
This writ petition has been filed challenging the punishment order dated 28.07.2022 alongwith the order of approval dated 28.01.2021.
The contentions of learned counsel for the petitioner have been recorded in the order dated 14.10.2022, which is extracted below:
"Supplementary affidavit filed by the petitioner is taken on record.
Shri Sunil Kumar Singh, Advocate has filed his 'Vakalatnama' on behalf of respondent no.3 and 4, which is taken on record.
Sri Sudeep Kumar, learned counsel for the petitioner submits that on the basis of charge sheet dated 22.04.2015 the punishment order dated 31.07.2019 was passed reverting the petitioner on the minimum of the pay scale of Rs.8000-13,500/-. The said order was assailed by the petitioner in writ petition No.25527 of 2019; Rakesh Kumar Rai Versus State of U.P. and others. The said order was set aside on the ground that Dr.Sudhir M.Bobde, who had initially recommended the punishment acting as Disciplinary Authority/Appointing Authority and Registrar, both had approved the punishment order as Registrar. While quashing the said order, the liberty was granted to proceed a fresh in accordance with law and the prescribed Regulations by means of judgment and order dated 18.09.2019. Pursuant thereto the respondents passed a fresh order of punishment dated 10.06.2021 restoring the earlier punishment order dated 31.07.2019, which could not have been done. The petitioner had assailed the said order in writ petition Service Single No.18844 of 2021. After filing of the writ petition the said order was withdrawn and a fresh order dated 09.09.2021 was passed. On being produced the same before the court, the writ petition was got dismissed as not pressed with liberty to file a fresh by the petitioner by means of the order dated 13.09.2021. Thereafter the petitioner had challenged the order dated 09.09.2021 in writ petition No.23353 of 2021; Rakesh Kumar Rai Versus State of U.P. and others. In the said writ petition, on the request of learned counsel for the respondents no.3 and 4 time was granted for instructions on 21.10.2021 and as submitted the said writ petition is still pending. In the meantime the respondent no.3 has passed a fresh order of punishment dated 28.07.2022 with the same punishment and made it applicable w.e.f. 21.08.2021 the date on which approval on the punishment was granted.
Further submission of learned counsel for the petitioner is that the impugned order has been passed without affording any opportunity to the petitioner in accordance with the Regulations as amended on 29.01.2021, according to which the punishment order has been passed. He further submits that the impugned order has been passed on the basis of inquiry report, in which only one charge of negligence was found proved against the petitioner, but without issuing any show cause notice, recording disagreement with the inquiry report, the punishment order has been passed by framing a fresh charge in the show cause notice, on which no inquiry has been held.The submission is that in case a fresh charge was to be framed, a fresh charge sheet should have been issued and after conducting inquiry in accordance with law and affording opportunity to the petitioner the action could have been taken. He relies on a judgment of Hon'ble Supreme Court in the case of M.V.Bijlani Versus Union of India and others; (2006) 5 SCC 88. He further submits that the impugned order has been passed after recalling earlier order dated 09.09.2021, whereas there is no power of recall of the punishment order by the authority who has passed the order, therefore also the order could not have been passed.
On the basis of above, learned counsel for the petitioner submits that the impugned order is not tenable as it has been passed in utter violation of the Rules and the principles of natural justice in as much as it is a harassment of the petitioner by passing repeated orders without following the due procedure of law.
Shri Sunil Kumar Singh, learned counsel for opposite parties no.3 and 4 could not dispute the legal submissions of learned counsel for the petitioner at this stage. However, he seeks 24 hours time to seek instructions in the matter.
Time as prayed for is allowed.
As prayed list on 19th of October 2022 in top ten cases alongwith writ petition No.23353 (SS) of 2021."
While recording the aforesaid contention, this Court had granted time to learned counsel for the respondent nos. 3 and 4 for seeking instructions.
Learned counsel for the respondent nos. 3 and 4, on the basis of instructions, submitted that charge mentioned in the show cause notice is not a separate charge but it is a charge which was levelled in the charge sheet and charge has been framed on the basis of the findings recorded by the enquiry officer. However, he does not dispute that enquiry has not been held afresh as per the liberty granted by this Court by means of the order dated 18.09.2009 passed in Writ Petition Service Single No.25527 of 2019(Rakesh Kumar Rai versus State of U.P.) and submitted that the impugned order may be quashed and liberty may be granted to proceed afresh in accordance with law and the prescribed regulations.
Learned counsel for the petitioner has no objection to the above, however he submits that the amount of recovery may be directed to be refunded to the petitioner.
Having considered the submission of learned counsel for the parties and gone through the record and appreciating the consent of learned counsel for the respondent nos. 3 and 4,the writ petition is partly allowed and the impugned orders dated 28.01.2021 and 28.07.2022 contained in Annexure Nos.1 and 2 to the writ petition are hereby quashed with all consequential service benefits with liberty to proceed afresh in accordance with law and the prescribed regulations.
The amount of recovery, if any, made from the salary of the petitioner under the impugned orders shall be refunded to the petitioner forthwith. No order as to costs.
Order Date :- 19.10.2022/Akanksha
