State Of U.P.Thru Prin.Secy.Lok ... vs Atul Maheshwari And Anr.
2023 Latest Caselaw 15625 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Neutral Citation No. - 2023:AHC-LKO:34911-DB
 
Court No. - 1
 

 
Case :- WRIT - A No. - 23220 of 2020
 

 
Petitioner :- State Of U.P.Thru Prin.Secy.Lok Nirman Vibhag Lko And Ors.
 
Respondent :- Atul Maheshwari And Anr.
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- Mukul Misra,Ninnie Shrivastava
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

(1) Heard the learned State Counsel representing the petitioners-State-authorities and Ms. Ninnie Srivastava, learned counsel representing the respondent no.1-claimant.

(2) Under challenge in this petition filed under Article 226 of the Constitution of India is the judgment and order dated 18.11.2019 passed by the State Public Services Tribunal, Lucknow whereby Claim Petition No.590 of 2017 filed by the respondent no.1-claimant has been allowed and the order of punishment dated 08.11.2016 and consequential order dated 05.10.2017 passed on review application preferred by the respondent no.1-claimant have been quashed.

(3) At this juncture itself, we may indicate that by means of the punishment order dated 08.11.2016 the respondent no.1-claimant was inflicted with a punishment of censure coupled with stoppage of two increments for two years.

(4) Submission of the learned State Counsel representing the petitioners-State authorities is that the learned Tribunal has not correctly appreciated the facts and circumstances of the case and has, in fact, recorded a vague finding that the enquiry conducted against the respondent no.1-claimant was flawed. However, the Tribunal has failed to point out as to what is the irregularity or flaw in the enquiry proceedings. In this view, submission is that the judgment of the learned Tribunal which is under challenge herein, is not sustainable.

(5) On the other hand Ms. Ninnie Srivastava, learned counsel representing the respondent no.1-claimant has argued that in the facts and circumstances of the case the judgment passed by the learned Tribunal does warrant any interference by this Court in this case for the reason that a clear finding has been recorded by the learned Tribunal to the effect that the enquiry conducted against the respondent no.1-claimant was not in conformity with the requirement of Section 9(2) of U.P. Government Servant (Discipline and Appeal) Rules,1999 (here-in-after referred to as 'the Rules, 1999'). She has further argued strenuously that as a matter of fact, the charges against the respondent no.1-claimant were not proved and the enquiry officer has submitted his report only on the basis of the charge-sheet and reply submitted it by the respondent no.1-claimant. In her submission, she has stated that such a course adopted by the State-authorities while conducting the departmental proceedings against the respondent no.1-claimant cannot be sustained for the reason that the charges were not proved. Drawing our attention to the order dated 17.12.2015 whereby the Disciplinary Authority has disagreed with the findings recorded by the enquiry officer in respect of certain charges, it has been argued by her that the said reasons are not specific and do not conform to the provisions contained in Rule 9(2) of the Rules, 1999. It has also been argued and submitted by her that the respondent no.1-claimant has since retired and even the judgment of the learned Tribunal which is under challenge herein has been complied with. In this view, submission on behalf of the respondent no.1-claimant is that at this juncture no interference in the judgment and order passed by the learned Tribunal is warranted .

(6) We have given our thoughtful consideration to the rival submissions made by the learned counsel appearing for the respective parties and have also perused the records available before us on this writ petition.

(7) While working on the post of Executive Engineer in the Public Works Department, State Highways Division-1, Allahabad, a charge-sheet was issued to the respondent no.1-claimant on 26.02.2015 which contained seven charges. The respondent no.1-claimant submitted reply to the said charge-sheet on 01.06.2015 and thereafter the enquiry officer submitted his enquiry report on 10.09.2015. Out of the seven charges, the enquiry officer, however, found only charge no.2 partially proved and in respect of charge nos.1 and 3 to 7 the enquiry officer exonerated the respondent no.1-claimant.

(8) However, disagreeing with the aforesaid enquiry report dated 10.09.2015 submitted by the enquiry officer, the Disciplinary Authority issued a letter on 17.12.2015 wherein the Disciplinary Authority recorded his disagreement in respect of the findings recorded by the enquiry officer concerning charge no.3, 4 and 6.

(9) The respondent no.1-claimant furnished his reply to the said letter dated 17.12.2015 on 08.01.2016 and the Disciplinary Authority after considering the said reply passed the order of punishment on 08.11.2016 whereby, as observed above, punishment of censure and stoppage of two increments for two years were inflicted upon the respondent no.1-claimant.

(10) It is well settled principle of law that while judicially scrutinizing any disciplinary matter, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India is primarily concerned with the decision making process. It is admitted by the petitioners-State authorities that out of seven charges levelled against the respondent no.1-claimant vide charge sheet dated 26.02.2015 only charge no.2 was found partially proved. The Disciplinary Authority, however, by means of the letter dated 17.12.2015 recorded his disagreement so far as the findings recorded by the enquiry officer in respect of the charge nos.3, 4 and 6 are concerned.

(11) We, first of all, need to examine as to whether the said reasons as are contained in the letter dated 15.12.2015 issued by the Disciplinary Authority, are in conformity with the requirement Rule 9(2) of the Rules, 1999. Rule 9(2) is quoted herein below:

"(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Officer on any charge, record its own findings thereon for reasons to be recorded."

(12) As per the aforequoted Rule 9(2) of the Rules, 1999 if the Disciplinary Authority disagrees with the findings recorded by the enquiry officer on any charge, he is under legal obligation to record his own finding thereon for the reasons to be recorded. If we examine the letter dated 15.12.2015 issued by the Disciplinary Authority allegedly recording the reasons for disagreement with the findings recorded by the enquiry officer in his enquiry report dated 10.09.2015 in respect of charges no.3, 4 and 6, what we find is that so far as the charge no.6 is concerned, the Disciplinary Authority has not recorded any reason for disagreement whatsoever. In respect of charges no.3 and 4 as well, the reasons assigned by the Disciplinary Authority for disagreement with the enquiry officer's report are absolutely vague and as such they do not conform to the requirement of Rule 9(2) of the Rules, 1999 wherein it has been made obligatory on the part of the Disciplinary Authority that in case of disagreement the Disciplinary Authority shall record its own finding by giving reasons which are to be recorded.

(13) Unless and until while disagreeing with the findings recorded by the enquiry officer, the Disciplinary Authority records reasons and gives his own finding, it will not be possible for the delinquent officer to submit adequate and appropriate reply to the disagreement which may be expressed by the Disciplinary Authority. Thus, the requirement of Rule 9(2) of the Rules, 1999, in fact, are a step in the direction of meeting the requirement of principles of natural justice.

(14) In absence of any specific reasons and findings for disagreement to be recorded by the Disciplinary Authority, the delinquent officer will never know as to what went on in the mind of the Disciplinary Authority while disagreeing with the findings recorded by the enquiry officer which will result in not give adequate opportunity to the delinquent officer to submit his reply. In this view our conclusion is that in such a situation it cannot be said that the requirement of principles of natural justice have been met.

(15) From a perusal of the enquiry report, we further notice that it clearly shows that the enquiry officer did not conduct the oral enquiry in the sense that after fixing a date of oral enquiry, documents relied upon in the charge-sheet against the respondent no.1-claimant were not proved. We also note that as per the law laid down in the case of Radhey Kant Khare vs. U.P. Co-operative Sugar Factories Federation Ltd., reported in 2003 (21) LCD 610, after a chargesheet is given to the employee, an oral enquiry is must, whether the employee requests for it or not. The said judgment further lays down that a notice should thus be issued to charged employee indicating the date, time and place of the enquiry and further that on the said date the oral and documentary evidence against the employee should first be led in his presence. In absence of proof of documents during the course of oral enquiry to be conducted in presence of the delinquent officer, merely on the basis of reply submitted by the delinquent officer and the contents of the charge sheet, in our opinion, charges cannot be proved.

(16) Learned Tribunal while examining the matter has clearly given a finding that during the course of enquiry no oral enquiry was held for the reason that the documents relied upon by the department against the respondent no.1-claimant for bringing home the guilt of the respondent no.1-claimant were not proved. There is nothing on record contrary to the said findings recorded by the Tribunal.

(17) Thus, on the basis of such flawed enquiry, the punishment inflicted upon the respondent no.1-claimant cannot be permitted to be sustained. We further reiterate that the order/letter passed/issued by the Disciplinary Authority on 17.12.2015 wherein allegedly he had expressed that disagreement with findings recorded by the enquiry officer in relation to charges no.3, 4 and 6 is not in conformity with the requirement of Rule 9(2) of the Rules, 1999.

(18) At this juncture, learned counsel for the petitioners-State-authorities has submitted that in case some flaw has been found in the departmental proceedings, it is incumbent to grant liberty to the State-authorities to initiate the disciplinary proceedings afresh from the stage it has been found to be defective. He, thus, prayed that such a liberty be granted to the State in this case as well.

(19) We have considered the said prayer made by the learned State Counsel representing the petitioners-State-authorities, however, we decline the prayer for the reason that the respondent no.1-claimant has already retired and further that the order which was under challenge in this petition passed by the U.P. State Services Tribunal, Lucknow has already been complied with.

(20) For the reasons aforesaid, we do not find any illegality or infirmity with the order passed by the learned Tribunal. Accordingly, the writ petition being devoid of merit, is hereby dismissed.

(21) There will be no order as to costs.

(Om Prakash Shukla, J.) (D. K .Upadhyaya, J.)

Order Date :- 18.5.2023

akhilesh/