Raj Deo Ram vs State Of U.P Thru Prin Secy ...
2023 Latest Caselaw 21729 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:53855
 
Court No. - 7
 
Case :- WRIT - A No. - 34254 of 2018
 
Petitioner :- Raj Deo Ram
 
Respondent :- State Of U.P Thru Prin Secy Horticulture And Food And Ors
 
Counsel for Petitioner :- Mohd.Ateeq Khan
 
Counsel for Respondent :- C.S.C,Dwijendra Mishra
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondents no. 1 & 2 and Shri Dwijendra Mishra, learned counsel for the respondents no. 3 and 4.

2. Under challenge is the order dated 22.11.2018, a copy of which is annexure 1 to the petition, whereby the petitioner has been reverted to the post of Assistant Manager and has been transferred to District Bareilly in the Office of District Horticulture Officer / District Manager, Bareilly.

3. The contention of learned counsel for the petitioner is that the petitioner had been promoted on regular basis as Manager vide the order dated 02.08.2010, a copy of which is annexure 4 to the petition.

4. He contends that reversion is a major penalty as specified in Chapter 7 Clause 87(1)(da) of the U.P. State Horticultural Cooperative Marketing Federation Employees Service Regulation, 1995 (hereinafter referred to as the Regulations 1995). Clause 87(4)(ka) proviso provides that no punishment under Clause 87(1)(da) can be imposed without initiation of due proceedings and approval of appropriate authority.

5. Placing reliance on Clause 88 of the Regulation 1995 the contention is that Clause 88 categorically provides for disciplinary proceedings against an employee which, as per Clause 88(1) (ka) can only be initiated by means of a charge-sheet.

6. The specific legal argument of learned counsel for the petitioner is that prior to passing of the order impugned whereby the petitioner has been reverted and thereafter transferred, no chargesheet meaning thereby no disciplinary proceedings were ever initiated against the petitioner and consequently the order of reversion is void ab initio.

7. Responding to the said arguments, the argument of Shri Dwijendra Mishra, learned counsel appearing for the respondents no. 3 and 4 is that there are serious charges against the petitioner including embezzlement and consequently after issue of a show cause notice to him, the impugned order has been passed. A specific averment to the said effect has been made in paragraph 13 of the counter affidavit.

8. However Shri Mishra, fairly states that prior to passing of order impugned, by which the petitioner has been reverted, no chargesheet has been issued which averment also does not find place in any of the paragraphs of the counter affidavit filed on behalf of the respondent no. 3.

9. Heard learned counsel for the parties and perused the record.

10. From perusal of record it emerges that by means of the order impugned dated 22.11.2018 the petitioner has been reverted as Assistant Manager and transferred to District Bareilly. It is admitted by the respondents that the petitioner had been promoted vide the order dated 02.08.2010 as Manager and consequently the order impugned dated 22.10.2018 is itself indicative of the fact that the petitioner has been reverted and thereafter transferred to Bareilly.

11. This Court had passed a detailed order on 29.11.2018, which for the sake of convenience is reproduced below:

"Heard learned counsel for the petitioner, learned Standing counsel on behalf of the respondent Nos.1 and 2.

Sri Dwijendra Mishra, learned Advocate has filed Vakalatnama on behalf of the respondent Nos.3 and 4, the same may be taken on record.

Brief fact of the case is that the petitioner was granted appointment on the post of Assistant Manager on 1.7.1994. Taking into account the satisfactory work and conduct of the petitioner, he was granted promotion on the post of Manager vide order dated 2.8.2010.

On certain allegation, the petitioner was issued a show-cause notice and vide order dated 23.10.2018, he has been reverted from the post of Manager to the post of the post of Assistant Manager as well as he was transferred from District Lucknow to District Bareilly vide order dated 22.11.2018, which is impugned in the writ petition.

Assailing the impugned order dated 22.11.2018, submission of the learned counsel for the petitioner is that under Regulation 88, there is a full fledged procedure prescribed for initiation of disciplinary proceeding and to award punishment to the employees of the department. He submits that in the case of the petitioner, at no point of time, disciplinary proceeding was initiated nor the petitioner was afforded opportunity of hearing prior to passing of the impugned order, therefore, the order being violative of principles of natural justice, is not sustainable in law.

On a pointed query made that there is a provision of statutory appeal against the impugned order, learned counsel for the petitioner pointed out that under Regulation 90, appeal has been provided but if the order is in violation of Principles of Natural Justice then alternative remedy would not be a bar in exercising jurisdiction under Article 226 of the Constitution of India. He placed reliance upon a judgment rendered in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others [1998 (8) SCC 1]. He further pointed out that the appeal is provided against the order passed under Sub-clause (a) to (d) of Regulation 87. The order of punishment to the petitioner has been provided under Sub-clause (e), therefore, no appeal lies against the said provision.

On the other hand Sri Dwijendra Mishra, learned Advocate on behalf of the respondent Nos.3 and 4 submitted that there is no malice intention of the respondents in awarding punishment to the petitioner of reversion in rank and transfer from District Lucknow to District Bareilly, therefore, no interference is required at this stage.

After having heard the rival contentions of the learned counsel for the parties, I perused the material on record.

On perusal of Regulation 87, it is apparent that there is a full fledged procedure to initiate disciplinary proceeding against the employee if there is certain serious charge of misconduct. It is the admitted case of the parties that against the petitioner, no disciplinary proceeding was initiated. It is further recorded that the punishment to the petitioner has been awarded under Regulation 87 (e) and on perusal of the appeal under Regulation 90, the appeal lies only against the punishment awarded under Sub-clause (a) to (d). In view of the provisions contained under Regulation 87 and 90, no appeal lies against the order of punishment awarded to the petitioner inasmuch as if it is assumed that there is a provision of appeal, the order of punishment is based on violation of principles of natural justice, therefore, in view of the settled proposition of law in the case of Whirlpool Corporation (Supra), the statutory appeal is not a bar and the writ petition can be entertained directly.

Therefore, prima-facie case has been made out by the petitioner for the grant of interim order.

Accordingly, learned counsel for the respondents are allowed three weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within one week thereafter.

List immediately after expiry of the aforesaid period on 7.1.2019.

Till the next date of listing, the effect and operation of the impugned order to the extent of the transfer of the petitioner from District Lucknow to District Bareilly shall remain stayed."

12. From perusal of the order passed by the writ court it emerges that this Court was prima facie of the view that in terms of the Regulations, there is a full fledged procedure prescribed to initiate disciplinary proceedings against employees concerned.

13. A perusal of the Regulation, 1995 would indicate that in terms of Clause 87(1) (da) "reversion" is one of the penalty prescribed. Clause 87(4)(ka) proviso provides that no penalty as prescribed under clause 87(1)(da) can be imposed without due proceedings. Clause 88 categorically provides that disciplinary proceedings in terms of Clause 88(1)(da) of the Regulations 19954 are to be initiated with issuance of a chargesheet.

14. In the counter affidavit which has been filed by the respondents no. 3 and 4 it clearly emerges, from a perusal of the paragraph 13 of the counter affidavit that it is only a show cause notice and various other notices that have been issued to the petitioner calling for his explanation and thus admittedly no charge-sheet was ever issued to the petitioner prior to passing of the order impugned by which the petitioner has been reverted.

15. Suffice to say that once the Regulation 1995 prescribes a procedure for imposition of major penalty, in this case reversion, and admittedly the petitioner has been visited with a penalty of reversion, consequently the imposition of penalty of reversion without issuance of charge-sheet cannot be countenanced in any manner and would also be unsustainable in the eyes of law.

16. Accordingly, the writ petition is allowed. The order impugned dated 22.10.2018, a copy of which is annexure 1 to the petition, is quashed.

17. Consequences to follow.

18. However, it would be open for the respondents to proceed against the petitioner in accordance with law.

Order Date :- 11.8.2023

J.K. Dinkar