State Of U.P. Thru. Addl. Chief ... vs Rakesh Rai
2023 Latest Caselaw 4135 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- WRIT - A No. - 1249 of 2023
 

 
Petitioner :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Govt. U.P. Civil Secrt. Lko. And Another
 
Respondent :- Rakesh Rai
 
Counsel for Petitioner :- C.S.C.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Pratul Kumar Srivastava, learned Standing Counsel for the State-appellant.

2. The petitioner-State of U.P. has filed the instant writ petition challenging the order dated 06.07.2022 passed by the State Public Service Tribunal, allowing the claim petition which was filed by the respondent challenging the punishment order dated 14.07.2020 whereby the pension payable to him was ordered to be reduced by 10%.

3. Briefly stated, the facts of the case are that the respondent was appointed to the post of Fire Station Second Officer on 02.12.1982 and thereafter he was promoted to the post of Fire Station Officer on 26.05.1990 and Chief Fire Officer on 29.07.2010. After attaining the age of superannuation, the respondent retired from service on 31.03.2019. Under the U.P. (Regulation of Building Operations) Act, 1958 and U.P. Urban Planning and Development Act, 1973, the Director of the Fire Service is a competent authority to issue no objection certificate.

4. In the year 2010, some applications had been submitted to the Director, Fire Service Headquarter, Lucknow for obtaining no objection certificates.

5. The Director instructed the respondent to inspect the properties and issue no objection certificate. In compliance of the aforesaid direction, the respondent inspected the sites and submitted reports and he proposed for grant of provisional no objection certificate. The no objection certificate issued by the respondent were examined by the Director, Fire Service, who found that the same had been issued in accordance with the provisions of the National Building Code, 2005.

6. On 19.08.2011, a First Information Report was lodged against the respondent regarding issuance of no objection certificate in an unauthorized manner. The Investigating Officer submitted final report after investigating the matter. Thereafter, the Deputy Inspector General of Police sought an opinion from the Joint Director Prosecution, who gave his opinion that the respondent was not guilty of the charges levelled against him and thereafter the final report submitted by the Investigating Officer was accepted by the competent court by means of an order dated 22.12.2013.

7. After submission of the final report by the police, a departmental proceeding was initiated against the respondent on 16.12.2013. The Inspector General of Police, Lucknow inflicted an adverse entry and withheld the respondent's integrity on the same charges.

8. The respondent submitted a representation dated 21.04.2014 against the adverse entry and when the representation remained undisposed off, he filed Claim Petition No. 1656 of 2014, which was allowed by means of a judgment and order dated 28.05.2015, whereby the punishment order dated 27.03.2014 was quashed with a direction that adverse entry shall not be treated as adverse for the purposes of crossing of the efficiency bar and other service.

9. On 23.05.2016, another charge sheet was issued against the respondent on the same set of charges. The respondent filed his reply on 04.06.2016 and a supplementary reply on 10.07.2016.

10. The respondent submitted a representation requesting for the proceedings to be dropped as he had already been punished by awarding an adverse entry for the same charges and when his representation was not disposed off, he filed claim petition No. 80 of 2018 for quashing the disciplinary proceedings.

11. The Tribunal disposed off the claim petition by means of order dated 20.03.2018 directing the opposite party no. 1 to dispose off the representation of the respondent.

12. The respondent's representation was rejected by means of the order dated 30.08.2019 on the ground that the criminal case was finalized on 22.12.2013 whereas the departmental proceedings had been initiated on 16.12.2013.

13. The respondent filed Writ Petition No. 31703 (S/S) of 2019 and this Court passed an interim order stating that since the respondent had already retired from service on 31.03.2019, if the departmental inquiry is conducted against him, the competent authority/inquiry officer shall make sure as to whether re-inquiry was permissible in a case where an employee had already been exonerated.

14. The Inquiry Officer proceeded with the inquiry without passing any order in furtherance of the order dated 19.11.2019 passed in the Writ Petition No. 31703 (S/S) of 2019 holding that the re-inquiry was permissible. On 27.12.2019 a show cause notice was issued to the respondent, to which he submitted a reply on 06.02.2020. Again a show cause notice was issued on 25.02.2020 along with a copy of the inquiry report dated 19.11.2019, which was replied by the respondent on 08.03.2020.

15. The Tribunal held that the power for issuing no objection certificate vested in the Director of Fire Service and the respondent had acted on the directions issued by the Director Fire Service. Although the Director had been examined by the Inquiry Officer, he had stated that several years had passed since his retirement and he did not remember about the orders passed and directions issued thereof his service. He further stated that he was suffering from some neurological problem.

16. The Tribunal allowed the claim petition filed by the respondent holding that he had acted in compliance of the directions issued by the Director of Fire Service and he had not acted with any ill motive. The Tribunal further held that for the same charges the respondent has already been punished by awarding an adverse entry and withholding his integrity and the Government Order dated 22.04.2015 provided that once a matter stood closed finally, an employee cannot be proceeded with penal proceedings again for the same charge.

17. Sri Pratul Kumar Srivastava, learned Standing Counsel has submitted that the Tribunal has erred in allowing the claim petition as the respondent had issued the no objection certificate without any authority. He has further submitted that the earlier adverse entries were given to the respondent not by way of punishment but same had been recorded in the Annual Confidential Report. He has submitted that the acquittal of the respondent in the criminal case would have no bearing on the disciplinary proceedings.

18. We have considered the facts and circumstances of the case and the submissions made by the learned Standing Counsel.

19. The allegation against the respondent was that he had acted without authority in issuing the no objection certificate.

20. The respondent had given an explanation that he had acted under the directions of the Director Fire Service. He had inspected the sites as per his directions and had prepared proposed no objection certificate, which were approved by the Director.

21. Inquiry Officer had examined the Director as a witness who stated that he did not remember anything as the matter was old and he was suffering from some neurological problem. Thus, the charges against the applicant were not proved by the Director yet the Inquiry Officer held the respondent guilty of the aforesaid charge without taking into consideration the statement of the then Director and that of the respondent.

22. In view of the aforesaid discussion, we do not find any reason to interfere with the judgment and order dated 06.07.2022 passed by the Tribunal setting aside the punishment order dated 14.07.2020 whereby a deduction of 10% was ordered to be made from pension payable to the respondent and a direction was issued for payment of all consequential benefits to the respondent.

23. The writ petition lacks merit and the same is, accordingly, dismissed.

(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

Order Date :- 9.2.2023

Pradeep/-