Allahabad High Court
Alok Prakash Saxena vs Superintending Engineer And 2 ... on 5 April, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- WRIT - A No. - 28502 of 2015
Petitioner :- Alok Prakash Saxena
Respondent :- Superintending Engineer And 2 Others
Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Petitioner has approached this Court challenging the order dated 08.04.2015 passed by respondent no.1 Superintending Engineer, Nalkoop Mandal, Kanpur, whereby petitioner is dismissed from service. Learned counsel for petitioner submits that his inquiry was conducted by the Chief Engineer as is clear from the inquiry report dated 08.06.2012 and 23.08.2012. He claims that the same is in violation of Rule 7(i) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as Rules of 1999) which provides that the disciplinary authority may himself inquired into the charges or appoint an authority subordinate to him as inquiry officer to inquire into the charges and in the present case an officer senior to the disciplinary authority has been appointed as inquiry officer, therefore, the impugned order is vitiated. Reliance is placed upon the judgment in Laxmi Narayan Tripathi vs. Deputy Director (Fisheies), Basti; 2007(3) ADJ 64. R..elevant portion of paragraph 12 of the same reads as follows:
"Now comes the question whether in imposing various punishments, the respondents have adopted a valid procedure consistent with the principles of natural justice as well as Rule 7 of the 1999 Rules. In my view the answer is in negative and the punishment order can also not sustain. From a perusal of Rule 7(i) it is apparent that the disciplinary authority may himself enquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to enquire into the charges. The disciplinary authority is also defined under Rule 6 providing that appointing authority of a government servant shall be his disciplinary authority. However, under third proviso, the appointing authority in respect to Group C & D employees may be any authority subordinate to the appointing authority provided such power has been delegated by the government by a notified order but such authority can impose punishment other than dismissal or removal. The petitioner has said in para-7 of the writ petition that his appointing authority is Director (Fisheries) U.P. Lucknow, respondent No. 2, in reply whereof the respondents in para-6 of the counter affidavit have said that the Deputy Director (Fisheries) has been authorized to impose punishment and, therefore, he is the authority competent to impose the aforesaid punishment. In para-10 of the rejoinder affidavit, the petitioner has denied that the Deputy Director is the appointing authority. However, the parties have not placed before this Court either the alleged order of delegation of power or the appointment letter of the petitioner to show as to who actually appointed him on the post of Senior Clerk. Therefore, in the absence of relevant material I am inclined to hold that even if the contention of the petitioner is accepted that his appointing authority is Director, the Deputy Director (Fisheries) appears to have been delegated power under Rule 6 (third proviso) who could have impose punishments other than dismissal or removal. I am fortified in coming to this conclusion for the reason that in para-2 (Kha) of the counter affidavit, the respondents themselves have stated that the enquiry officer in the case of the petitioner was appointed by the Director (Fisheries) U.P. Lucknow vide his letter dated 30th October 2000 whereby the Deputy Director (Fisheries) Faizabad was appointed as enquiry officer. Under the Rules, the enquiry officer could have been appointed by the disciplinary authority, i.e., appointing authority or the authority to whom power is delegated under Rule 6. Where Director has appointed enquiry officer, it leads to the conclusion that he was the disciplinary authority, i.e., the appointing authority. The enquiry has been conducted by the Deputy Director (Fisheries) Faizabad. Under Rule 7(1) of 1999 Rules, the disciplinary authority could have appointed the enquiry officer who must be an authority subordinate to him. It is then inconceivable that the enquiry could have been conducted by an authority of coordinate rank and the punishment order could be passed by another officer of the same rank. In the present case, the respondents have said that the enquiry officer Deputy Director (Fisheries) Faizabad conducted enquiry and submitted enquiry report whereupon the Deputy Director (Fisheries) Basti passed the impugned order of punishment. It is impermissible under the Rules and the proceeding obviously cannot be said to be consistent with the procedure prescribed under 1999 Rules, therefore, are vitiated in law. The rules framing authority in providing that the disciplinary authority may appoint an enquiry officer who should be an authority subordinate to him must be well aware of the fact that the finding of the enquiry officer is not binding upon the disciplinary authority and it is always open to the disciplinary authority to accept or take a different view than that of the enquiry officer. Where the enquiry is conducted by an officer of equal or higher rank and the disciplinary authority is of a coordinate or subordinate rank, in the administrative hierarchy and propriety, it is improbable and difficult for such an authority to take a view different then that of enquiry officer, if there is no difference in the status or if the enquiry officer is of higher rank. Therefore, a valid procedural caution has been maintained under the Rules itself providing that the disciplinary authority may appoint enquiry officer subordinate in rank to the disciplinary authority. It neither can be said nor has been argued or pleaded by the respondents that the Deputy Director (Fisheries) Faizabad was an authority subordinate to the Deputy Director (Fisheries) Basti. Therefore the entire enquiry and the order of punishment passed by respondent No. 1 pursuant to the enquiry report submitted by the Deputy Director (Fisheries) Faizabad is unsustainable. The proceedings cannot be said to be consistent with the procedure prescribed under the Rules."
Thus, from the aforesaid judgment and the perusal of the Rule 7(i) of the Rules of 1999, aforesaid inquiry should have been conducted by the disciplinary authority himself or by persons subordinate to him. In the present case the inquiry is conducted by an authority superior to the disciplinary authority which is in violation of Rule 7(i), thus, the impugned order is set aside. Consequences to follow. However, it shall be open for the disciplinary authority to proceed with inquiry from the stage of charge-sheet.
With the aforesaid direction, writ petition is allowed.
[Vivek Chaudhary,J.]
Order Date :- 5.4.2023
M.S. Ansari
