Om Prakash vs State Of U.P.Through Principal ...
2023 Latest Caselaw 12679 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 24
 

 
Case :- WRIT - A No. - 7980 of 2010
 

 
Petitioner :- Om Prakash
 
Respondent :- State Of U.P.Through Principal Secy. Home Dept.Lucknow And Ors
 
Counsel for Petitioner :- A.M.Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Neeraj Tiwari,J.

Heard Sri Anurag Tripathi, Advocate holding brief of Sri A.M. Tripathi, learned counsel for the petitioner and Smt. Kalpana Shukla, learned Standing Counsel for the State-respondents.

Present petition has been filed for quashing the impugned order dated 17.3.2010 passed by opposite party no.5.

Brief facts of the case are that petitioner was initially appointed as Constable on 22.11.1982 and posted at District Lalitpur. Thereafter, petitioner was terminated from service on 28.11.1987 on the ground of absence from duty. Against which, petitioner has preferred an appeal before the Deputy Inspector General of Police, which was also rejected vide order dated 31.5.1988. Against the said order, he has approached this Court by filing Service Single No. 2630 of 1990, which was partly allowed vide order dated 22.5.2008 by quashing the impugned orders dated 28.11.1987 & 31.5.1988 with direction to respondents for de novo enquiry proceedings, which shall be completed preferably within a period of six months from the date of certified copy of this order is produced before the disciplinary authority. Thereafter, petitioner has been reinstated in service and after reinstatement, he has been served show cause notice dated 16.11.2009. Petitioner has also submitted reply to the show cause notice on 30.11.2009. He next submitted that Court has fixed the time for six months to conduct enquiry, but in the present case, show cause notice was issued on 16.11.2009 i.e. much after the time given by this Court. He further submitted that earlier time extension was also filed and same was extended for three months.

Learned counsel for the petitioner has assailed the impugned order on two grounds; firstly enquiry has not been completed in accordance with rules and secondly it has not been completed within the time given by this Court vide order dated 22.5.2008, therefore, impugned order is bad and liable to be set aside.

In support of his contention, he has placed reliance upon the Full Bench judgment of this Court in the case of Abhishek Prabhakar Awasthi vs. New India Assurance Company Limited and others reported in 2014 (6) ADJ (LB) (FB).

Learned Standing Counsel has vehemently opposed and submitted that in compliance of order of this Court dated 22.5.2008, it was decided to proceed for de novo enquiry proceeding for minor penalty. Accordingly show cause notice dated 16.11.2009 was issued to petitioner and after considering his reply dated 30.11.2009, minor penalty of detention of one increment for 1 year has been awarded. Further, his absence for 111 days has been treated as leave without pay relying upon the dictum of 'No Work No Pay", therefore, order is absolutely in accordance with law. He also submitted that judgment of Full Bench of this Court in the case of Abhishek Prabhakar Awasthi (supra) is also of the view that in case enquiry has not been completed within time that cannot be only ground for quashing of the impugned order of punishment and Court is required to see under which condition order has been passed and further prejudice, if any, cause to petitioner, therefore, there is no illegality or perversity in the impugned order and petition is liable to be dismissed.

Being confronted by the Court, learned counsel for the petitioner could not demonstrate that which rule or law has been violated while conducting the de novo enquiry proceedings and further any prejudice cause to him due to non completion of deno enquiry proceedings within the time given by this Court.

I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. Facts of the case are undisputed. From perusal of the record, it was found that for initiating de novo enquiry proceedings for minor penalty, show cause notice was issued on 16.11.2009 and reply of petitioner dated 30.11.2009 was also considered, therefore, there is no violation of rule. Further, petitioner could also not demonstrate any prejudice cause to him due to non completion of de novo enquiry proceedings within the time given by this Court vide order dated 22.5.2008.

I have also perused the full bench judgment of this court in the case of Abhishek Prabhakar Awasthi (supra) in which Court has framed two issues and same is quoted hereinbelow:-

"(a) Whether if an inquiry proceeding is not concluded within a time frame fixed by a court and concluded thereafter, without seeking extension from the Court then on the said ground the entire inquiry proceeding as well as punishment order passed, is vitiated in view of the judgment in the case of P.N. Srivastava; and

(b) Whether the law as laid down by a Division Bench of this Court in the case of P.N. Srivastava that if an inquiry proceeding is not concluded within a time frame as fixed by a Court, it stands vitiated is still a good law in view of the judgment rendered by the Supreme Court in the case of Suresh Chandra as well as a judgment dated 27.07.2009 of a Division Bench of this Court in Writ Petition No. 1056 (SB) of 2009 (Union of India and others Vs. Satendra Kumar Sahai and another)."

In paragraph 19 of the said judgment, Court has answered both the issues framed above, which is quoted hereinbelow:-

"19. In view of the above discussion, we now proceed to answer the questions which have been referred to the Full Bench.

(A) Question No. (a): We hold that if an enquiry is not concluded within the time which has been fixed by the Court, it is open to the employer to seek an extension of time by making an appropriate application to the court setting out the reasons for the delay in the conclusion of the enquiry. In such an event, it is for the court to consider whether time should be extended, based on the facts and circumstances of the case. However, where there is a stipulation of time by the Court, it will not be open to the employer to disregard that stipulation and an extension of time must be sought;

(B) Question No. (b): The judgment of the Supreme Court in the case of Suresh Chandra (supra) as well as the judgment of the Division Bench of this Court in the case of Satyendra Kumar Sahai (supra) clearly indicate that a mere delay on the part of the employer in concluding a disciplinary enquiry will not ipso facto nullify the entire proceedings in every case. The court which has fixed a stipulation of time has jurisdiction to extend the time and it is open to the court, while exercising that jurisdiction, to consider whether the delay has been satisfactorily explained. The court can suitably extend time for conclusion of the enquiry either in a proceeding instituted by the employee challenging the enquiry on the ground that it was not completed within the stipulated period or even upon an independent application moved by the employer. The court has the inherent jurisdiction to grant an extension of time, the original stipulation of time having been fixed by the court itself. Such an extension of time has to be considered in the interests of justice balancing both the need for expeditious conclusion of the enquiry in the interests of fairness and an honest administration. In an appropriate case, it would be open to the Court to extend time suo motu in order to ensure that a serious charge of misconduct does not go unpunished leading to a serious detriment to the public interest. The court has sufficient powers to grant an extension of time both before and after the period stipulated by the court has come to an end."

From perusal of the question framed by the Court as well as answer given in paragraph 19 of the said judgment, it is apparently clear that there is no hard and fast rule in such cases. So far as present case is concerned, no doubt department has taken lenient view and decided to proceed to conduct disciplinary enquiry only for minor penalty and accordingly show cause notice was issued on 16.11.2009 and after considering the reply of petitioner dated 30.11.2019, it was completed with a minor penalty and further salary of 111 days has not been given to him relying upon the dictum of 'No Work No Pay". The same is not challenged by the petitioner, which clearly shows that petitioner was absent from duty, which is contrary to rules. From perusal of the record, it is also clear that no prejudice cause to him in delay of de novo proceedings so initiated by department as same has been concluded in favour of petitioner awarding him minor penalty in place of dismissal from service.

Therefore, under such facts and circumstances as well as law laid down by this Court, I found no illegality or perversity in the impugned order. Writ petition lacks merit and is, accordingly, dismissed. No order as to costs.

At this stage, learned counsel for the petitioner submitted that Government Order dated 30.6.1993 provides that in case any minor penalty is given, same shall losts its effect after five years, therefore, direction may be issued to respondents not to consider the minor penalty so awarded to petitioner while considering the case of petitioner for next promotion.

Needless to say that it is incumbent on the part of respondents to take care of Government Order dated 30.6.1993, while considering the case of petitioner for next promotion.

Order Date :- 25.4.2023

Junaid