Allahabad High Court
Vinod Kumar Singh vs State Of U.P. Thru. Addl. Chief ... on 9 January, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 687 of 2022
Petitioner :- Vinod Kumar Singh
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Public Works Deptt. Lko. And 3 Others
Counsel for Petitioner :- Lalta Prasad Misra,Naveen Shukla,Prafulla Tiwari
Counsel for Respondent :- C.S.C.,Shishir Jain
Hon'ble Pankaj Bhatia,J.
The present petition has been filed by the petitioner challenging the punishment order dated 17.12.2021 passed by the respondent no.4 and as contained in Annexure-1 to the writ petition.
The contention of the Counsel for the petitioner is that the petitioner was working as Unit Incharge in District Bahraich and was placed under suspension vide order dated 29.11.2019 in purported exercise of powers under para 709 of the Manual governing the service condition of the petitioner.
It is stated that the Financial Advisor was appointed as an Enquiry Officer and the Unit Incharge, State Allopathic Medical College, Bahraich was appointed as a Presenting Officer by means of the order dated 29.11.2019. It is stated that on 17.02.2020, the petitioner was served with the charge-sheet levelling as many as 11 charges against him and the petitioner was called upon to file a reply to the said charge-sheet. The petitioner filed a reply to the said charge-sheet on 16.03.2020.
It is on record that subsequent to the filing of the reply, the petitioner was called upon by the respondents and the petitioner appeared on 26.05.2020 and stated that whatever defence he has given that should be considered as reply, he further gave explanation for his conduct stating slow progress of work and also stating that in similar circumstances similar procedure, as adopted by the petitioner was also adopted in respect of certain contracts.
It is argued before this Court that subsequent to the said reply as well as the communication dated 26.05.2020, the petitioner was never informed of any inquiry being conducted and all of sudden, the inquiry report was served upon the petitioner along with show cause notice dated 02.07.2020. It is further on record that subsequent thereto, the petitioner was served with another show cause notice dated 12.11.2021 whereby the petitioner was called upon to file a reply in pursuance to the comments of the inquiry report given by the Enquiry Officer. The petitioner claims to have filed a reply to the show cause notice on 12.11.2021 whereafter the order impugned was passed imposing punishment against petitioner.
Submission of the Counsel for the petitioner is that the manner in which the disciplinary proceedings to be conducted are governed by the Rules included in U.P. Rajkiya Nirman Nigam Working Manual. He specifically placed reliance on para 703 of the said Manual which provides for suspension pending inquiry. He also placed on record para 712 of the said Manual to argue that the punishment as prescribed under para 712 can be inflicted on the employee who is found guilty. He placed special emphasis on para 709 to argue that the said para governs the manner in which the inquiry is to be held. He argues that the procedure as prescribed under para 709 was not followed, no date for inquiry was fixed nor the petitioner was ever associated with the inquiry at any point of time and thus the inquiry is bad in law and is also in violation of principles of natural justice.
The Counsel for the petitioner argues that it is incumbent upon the employer to establish the charges as levelled based upon whatever evidence is discovered during the inquiry proceedings which has also not been done in the present case as no one appeared for substantiating the report of the Enquiry Officer. He further argues that even otherwise the punishment levelled against the petitioner is beyond what is prescribed under para 712 of the Manual. He places reliance on the following judgments:
"Radha Krishan Industries vs State of Himanchal Pradesh and others; (2021) 6 SCC 771;
Commissioner of Income Tax and other vs Chhabil Dass Agarwal; (2014) 1 SCC 603;
Vijay Singh vs State of U.P. and others; (2012) 5 SCC 242;
Suresh Kumar Singh vs State of U.P. and others; (2018) 8 ADJ 527; and
Sohan Lal vs U.P. Co-operative Federation Limited and another; (2013) 6 ADJ 250"
In the light of the said, the Counsel for the petitioner argues that the impugned order suffers from the vice of principles of natural justice as well as contrary to the Rules governing the services as contained in the manual and thus, the order is liable to be set aside.
Sri Shishir Jain, learned Counsel appearing on behalf of the respondent argues that while filing a reply to the show cause notices served upon the petitioner, the petitioner never requested for providing an opportunity of hearing at the time of filing a reply to the charge-sheet, he further states that the matter as is being argued specifically with respect to non association of the petitioner during inquiry proceedings was never raised at the time of filing of reply to the show cause notice and thus, the petitioner cannot raised the said ground for the first time in the writ petition which challenges the punishment imposed against the petitioner.
Sri Shishir Jain accepts that one of the punishment inflicted by means of the order impugned is beyond what is prescribed under para 712 of the Manual.
In the light of above, he argued that the writ petition lacks merit and is liable to be dismissed.
In the light of the communication dated 26.05.2020, the Counsel for the respondent argues that the petitioner himself has stated that he does not want to say anything beyond what has been stated while submitting reply to the charge-sheet and as such, the petitioner cannot argue what are being argued at this stage.
He further argues that against the impugned order the petitioner can file an appeal as provided before the Board.
Considering the submissions made at the bar what emerges is that after the petitioner had filed a reply to the charge-sheet, denying the allegations levelled against him, it was incumbent upon the respondents to hold an inquiry strictly in accordance with the provisions of para 709 of the Manual. It was also incumbent upon the respondents to have associated with the petitioner in the proceedings before the Enquiry Officer. The report of the Enquriy Officer, which is on record, clearly demonstrates that the petitioner was never involved in the process of inquiry. There is no denial of the fact that no date was fixed by the Enquiry Officer.
The record further reveals that no evidence appreciating the charges has been shown or mentioned in the report of the Enquiry Officer or in the dismissal order. Thus, I have no hesitation in holding that the inquiry as concluded against the petitioner which led to passing of the impugned order is a clear violation of principals of natural justice.
Submission of the Counsel for the respondent that the petitioner has an alternative efficacious remedy of approaching the Board by filing an appeal, merits rejection in view of the fact that I have already come to the conclusion that proceedings are in violation of principles of natural justice, thus following the mandate of the Supreme Court rendered in the case of Whirlpool Corporation vs Registrar of Trade Marks, Mumbai and others; (1998) 8 SCC 1, the matter requires to be interfered with and the petitioner cannot be relegated to the remedy of alternative remedy. Thus on the sole reasoning that the inquiry is in violation of principal of natural justice and also clearly in violation of para 709 of the Manual, the punishment order is set aside. The matter is remanded so far as it imposes the punishment on the petitioner.
The respondent shall be at liberty to initiate and conclude the proceedings against the petitioner from the stage at which the petitioner had filed the reply to the show cause notice. It is clarified that from the stage, the petitioner had filed the reply to the show cause notice, the proceedings shall be concluded strictly in accordance with the applicable rules and all evdeavour shall be made to conclude the same within a period of four months from the date of production of certified copy of this order.
It is further clarified that no further deductions shall be made as directed in terms of the impugned order as the punishment imposed has already been set aside. The deduction made till now shall be subject to the outcome of the fresh proceedings as directed above.
Needless to say that the petitioner shall co-operate with the inquiry proceedings.
In view of above, the writ petition stands allowed.
Order Date :- 9.1.2023
akverma
