Allahabad High Court

Shailendra Kumar Srivastava vs State Publice Services Court Lko. ... on 23 May, 2023

Bench: Devendra Kumar Upadhyaya, Om Prakash Shukla




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Neutral Citation No. - 2023:AHC-LKO:35785-DB
 
Reserved
 
Court No. - 1
 

 
Case :- WRIT - A No. - 8398 of 2022
 
Petitioner :- Shailendra Kumar Srivastava
 
Respondent :- State Publice Services Court Lko. Thru. Its Chairman And Others
 
Counsel for Petitioner :- Yogendra Kumar Singh,Rakesh Devi Prasad Kumar
 
Counsel for Respondent :- Shikhar Anand,C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Saurabh Srivastava,J.

(1) These proceedings have been instituted under Article 226 of the Constitution of India assailing the validity of an order dated 12.09.2022 passed by the U.P. State Public Services Tribunal [here-in-after referred to as 'the Tribunal'] whereby Claim Petition No. 642 of 2022 filed by the petitioner has been dismissed. At this juncture itself, we may note that by filing Claim Petition No. 642 of 2022 before the Tribunal, the petitioner had challenged the Order of Punishment dated 13.07.2021 whereby alongwith a censure entry, stoppage of increment for two years with cumulative effect was inflicted upon him.

(2) Heard Sri Yogendra Kumar Singh, learned Counsel representing the petitioner and Sri Umesh Chandra, learned Standing Counsel representing the State-authorities. Sri Gaurav Mehrotra, Advocate has been heard for U.P. Subordinate Services Selection Commission.

(3) Primary submission of the learned counsel for the petitioner impeaching the order dated 12.09.2022 passed by the Tribunal, which is under challenge herein, is that the Tribunal has failed to appreciate that during the course of disciplinary proceedings drawn against the petitioner which resulted in the punishment order dated 13.07.2021, the provisions contained in Rule 9(2) of Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 [here-in-after referred to as '1999 Rules'] were not followed inasmuch as before recording his disagreement with the findings recorded by the Inquiry Officer in the inquiry report, the Disciplinary Authority did not provide any opportunity of hearing or representing to the petitioner. His submission thus is that the course adopted by the State-authorities in the disciplinary proceedings against the petitioner was contrary to the law laid down by the Hon'ble Supreme Court in the case of Lav Nigam v. Chairman & MD, ITI Ltd. and another [2006 SCC (L&S) 1835].

(4) He has further argued that the findings recorded by the Inquiry Officer were favourarble to him, however, once the Disciplinary Authority decided to disagree with the said findings, it was incumbent upon the Disciplinary Authority to have provided the opportunity to the petitioner and by not doing so, the Disciplinary Authority has erred in law and such a course adopted by the Disciplinary Authority runs contrary to the law laid down by the Apex Court in the case of Punjab National Bank and others v. Kunj Behari Misra [(1998) 7 SCC 84].

(5) He has relied on yet another judgment of Hon'ble Supreme Court in the case of Union of India and another v. S. C. Parashar [(2006) 3 SCC 167] to impress upon the Court that since the procedure for imposition of major penalty was initiated, it could not have resulted in minor penalty and hence the order of punishment dated 13.07.2021 is vitiated which, however, has not been appreciated by the Tribunal. Sri Yogendra Kumar Singh, learned Counsel representing the petitioner has relied upon yet another judgment of this Court in the case of Suresh Kumar Singh v. State of U.P. and others delivered on 28.03.2018 [Writ-A No. 63644 of 2013]. It has, thus, been urged by the learned Counsel for the petitioner that the writ petition deserves to be allowed.

(6) Strenuously opposing the prayers made in the writ petition, Sri Umesh Chandra, learned Standing Counsel representing the State-respondents has argued that the records available before this Court on this writ petition clearly establish that the procedure as given in the 1999 Rules were strictly followed and the submission made by the learned Counsel for the petitioner based on the judgments cited by him is erroneous and in fact, the arguments are based on misreading of law laid down by Hon'ble Supreme Court in the cases of Lav Nigam (supra) and Kunj Behari Misra (supra). He has further argued that so far as the judgments in the cases of S.C.Parashar (supra) and Suresh Kumar Singh (supra) are concerned, in the facts and circumstances of the case, they do not have any application. He has thus argued that the petition deserves to be dismissed at its threshold.

(7) We have considered the competing arguments made by the learned Counsel representing the respective parties and have also perused the records available before us on this writ petition.

(8) Before delving into the submissions made by the learned Counsel for the parties, we find it appropriate to note certain facts which are essential for appropriate adjudication of the issues involved in this writ petition.

(9) On noticing certain alleged lapses on the part of the petitioner in conducting investigation of Case Crime No. 1424 of 2006 under Sections 419 and 420 I.P.C. and Sections 8, 9, 13 and 14 of Prevention of Corruption Act, 1988, Police Station Kotwali, District Azamgarh while he was posted on the post of Circle Officer, Sadar in district Azamgarh in the year 2008, a charge sheet was issued to him on 17.08.2017. The charge sheet dated 17.08.2017 contained only one charge, according to which in conducting the investigation of the aforementioned criminal case, the petitioner was indifferent, (lax) (mnklhu), negligent and arbitrary. The charge sheet took note of the primary inquiry report conducted by the Anti-Corruption Organization and accordingly charged the petitioner with the misconduct of negligence, indifference and insensitivity. In the charge sheet various documentary evidences were cited and witnesses were also cited. The petitioner was required by the said charge sheet dated 17.08.2017 to submit his reply. The petitioner submitted his reply to the charge sheet on 01.02.2018 denying the charges stating therein that the petitioner had served for a period of twenty years and his service career has been unblemished.

(10) Regarding the investigation conducted by the petitioner in respect of Case Crime No. 1424 of 2006, he stated in his reply that in the case, the then Additional Superintendent of Police Rajesh Krishna was an accused alongwith one Mohd. Shakil and ten others and the said case was registered on the basis of the recovery memo and investigation was undertaken initially by the Sub-Inspector Mubarak Ali Khan. He also stated in his reply that under the orders passed by the Superintendent of Police, the investigation of the case was handed over to one Rajendra Singh, the then Deputy Superintendent of Police, who after conducting the investigation submitted charge sheet against the accused persons, namely, Mohd. Shakil, Pawan Kumar Singh and Rajesh Bharti under Sections 419, 420 I.P.C. and under Sections 8, 9, 13 and 14 of Prevention of Corruption Act, 1988. He also stated in the reply that while conducting the investigation, the earlier Investigating Officer Rajendra Singh had recorded the statements of most of the witnesses and investigation of the case crime was at the verge of completion and thereafter it was handed over to the petitioner. In the reply, the petitioner also stated that after obtaining the prosecution sanction, he submitted a charge sheet against the accused Amit Anand Chaudhary, ASI (M) on 10.04.2018 and also against other co-accused, namely, Kamlesh Chaudhary and Amit Verma on 31.05.2008. In his reply to the show cause notice, the petitioner also stated that so far as the co-accused/Rajesh Krishna was concerned, on the basis of investigation conducted by him, no incriminating evidence was found as no money was recovered from him and the only circumstance against Rajesh Krishna was that he was found to have spoken to the co-accused Mohd. Shakil on mobile phone between 24.08.2006 and 27.08.2006. He further stated in the reply that during the course of collection of evidence, it came to light that the mobile phone of Rajesh Krishna used to be in the possession of his driver from 7 o' clock till late night and as such, no reliable evidence could be gathered which could point out his involvement in the crime. He also submitted in the reply that arrangement of stay of Rajesh Krishna by the co-accused Mohd. Shakil was also not found established on the basis of the statements of the Receptionist, Manager and Waiters of the Hotel. The petitioner also submitted that only on the basis of mobile phone, credible evidence could not be found which could point out complicity of Rajesh Krishna in the reported crime.

(11) The petitioner in his reply also stated that the report submitted by him in respect of omission of Rajesh Krishna from the charge sheet was duly examined by an officer of the level of Superintendent of Police who has accorded his concurrence with the conclusions drawn by the petitioner. In reply, it was also stated by the petitioner that so far as Rajesh Krishna is concerned, departmental proceedings were initiated against him. However, he was exonerated and he was also promoted to Indian Police Service. In view of these submissions, the petitioner prayed that he be exonerated of the charge levelled against him.

(12) The petitioner appears to have submitted a supplementary reply on 12.06.2008 reiterating his earlier stand and praying that he be exonerated of the charge.

(13) After conclusion of the inquiry, the Inquiry Officer submitted his report dated 25.10.2018. The Inquiry Officer analyzed the material available in the inquiry proceedings and did not find the charge against the petitioner to be proved, however, the said Inquiry Report was considered by the Disciplinary Authority, who by means of an order dated 31.01.2019 expressed his difference from the conclusions drawn by the Inquiry Officer and served the said order dated 31.01.2019 alongwith Inquiry Report dated 25.10.2018 upon the petitioner requiring him to submit his explanation to the same.

(14) The petitioner submitted his reply to the order/notice dated 31.01.2019 and the Inquiry Report dated 25.10.2018. The entire matter was thereafter considered by the Disciplinary Authority who by means of the order dated 13.07.2021 inflicted the punishment of censure and stoppage of increment for two years. It is this order of punishment dated 13.07.2021 which was challenged by the petitioner by instituting the Claim Petition, which has been dismissed by the Tribunal by passing the order which is under challenge herein.

(15) It is settled principle of law that so far as finding of facts recorded by the Disciplinary Authority while passing any order of punishment is concerned, ordinarily this Court, while judicially scrutinizing such an order of punishment, will not interfere in the same unless the findings are found to be perverse, that is to say the findings are not based on any evidence or material available on record. While exercising power of judicial review, the Courts are primarily concerned with the decision making process and not the decision itself. It is also equally well settled that in the matter of disciplinary proceedings the employee impeaching the punishment order has to successfully plead and establish some legal flaw in the disciplinary proceedings, that is to say he has to succeed in establishing that the disciplinary proceedings were not conducted as per the Rules governing the same.

(16) The sheet anchor of argument of learned Counsel for the petitioner Sri Yogendra Kumar Singh is that though in this case the Disciplinary Authority has differed from the conclusions drawn by the Inquiry Officer, however while doing so the petitioner has been denied opportunity of hearing which vitiates the disciplinary proceedings. In this view, the submission is that the principles of natural justice have not been followed rendering the entire proceedings and the consequential punishment order to be unlawful.

(17) Detailed procedure for conducting the disciplinary proceedings against a Government Servant is provided in 1999 Rules. Rule 7 prescribes procedure for imposing major penalties. Rule 8 thereof provides that after completing the inquiry, the Inquiry Officer shall submit his report to the Disciplinary Authority alongwith the records of the inquiry. Rules 7 and 8 of the 1999 Rules are extracted here-in-below:-

"7. Procedure for imposing major penalties - Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner:

(i) The Disciplinary Authority may himself inquiry into the charges or appoint an Authority Subordinate to him as Inquiry Officer to inquire into the charges.

(ii) The Facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite change or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority.

Provided that where the Appointing Authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.

(iii) The charge formed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet.

(iv) The charged Government Servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex-parte.

(v) The charge-sheet, along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on th charged Government Servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation.

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government Servant shall be permitted to inspect the same before the Inquiry Officer.

(vi) Where the charged Government Servant appears and admits charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.

(vii) Where the charged Government servant denies the charge the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence.

Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.

(viii) The Inquiry Officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of witnesses and production of documents) Act, 1976.

(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.

(x) Where the charged Government Servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government Servant.

(xi) The Disciplinary Authority, if it considers if necessary to do so, may by an order appoint a Government Servant or a legal practitioner to be known as "Presenting Officer" to present on its behalf the case in support of the charge.

(xii) The Government Servant may take the assistance of any other Government Servant to present the case on this behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstances of the case so permits.

Provides that the rule shall not apply in following cases:

(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge.

(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or

(iii) Where the Governor satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.

8. Submission of Inquiry Report - When the Inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority alongwith all the records of the inquiry. The inquiry report shall contain a sufficient record of brief fats, the evidence and statement of the finding on each charge and the reasons thereof. The Inquiry Officer shall not take any recommendation about the penalty."

(18) So far as action on the Inquiry Report by the Disciplinary Authority is concerned, it is provided in Rule 9 of the 1999 Rules which is also extracted here-in-below:-

"9. Action on Inquiry Report - (1) The Disciplinary Authority may, for reason to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry officer under intimation to the charged Government Servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7.

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

(3) In case the charges are not provided, the charged Government Servant shall be exonerated by the Disciplinary Authority of the charges and inform him accordingly.

(4) If the Disciplinary Authority, having regard to its finding on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government Servant, he shall give a copy of the inquiry report and his finding recorded under sub-rule (2) to the charged Government Servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall having regard to all the relevant records relating to the inquiry and representation of the charged Government Servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule3 of these and communicate the same to the charged Government Servant."

(19) The aforequoted provision of Rule 9 of the 1999 Rules clearly provides as to what needs to be done by the Disciplinary Authority once Inquiry Report is received by him. On receipt of the Inquiry Report, the Disciplinary Authority can remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the delinquent Government Servant, however while doing so the Disciplinary Authority has to record the reasons thereof in writing. Once the re-inquiry is ordered by the Disciplinary Authority, the Inquiry Officer has to proceed to hold the inquiry from such stage as may be directed by the Disciplinary Authority.

(20) Sub-Rule (2) of Rule 9 of 1999 Rules contains a provision in respect of a situation where there is disagreement with the Inquiry Officer on any charge, by the Disciplinary Authority. According to the said provision, in case the Disciplinary Authority disagrees with the findings of the Inquiry Officer he shall record its own finding thereon for the reasons to be recorded. Once the Disciplinary Authority records reason for disagreeing with the findings of the Inquiry Officer on any charge, the Disciplinary Authority shall thereafter proceed either to exonerate the delinquent officer if charges are not proved or to impose the penalties as specified in Rule 3 of 1999 Rules.

(21) It is thus incumbent upon the Disciplinary Authority in terms of Rule 9(2) of the 1999 Rules that in case of disagreement, he has to give reasons while recording his own finding. Sub-Rule (4) of Rule 9 of 1999 Rules provides that the penalty shall be imposed on the delinquent officer only once he is provided with a copy of inquiry report and the finding of the Disciplinary Authority recorded under Sub-Rule (2) of Rule 9 requiring him to submit his representation if he so desires. Thus a careful reading of Rules 9 (2) and 9(4) of the 1999 Rules as discussed here-in-above, makes it clear that in case the Disciplinary Authority does not disagree with the findings of the Inquiry Officer he shall furnish a copy of the Inquiry Report to the Delinquent Officer requiring him to submit his representation to the same and then, he will pass appropriate orders. However, in a situation where the Disciplinary Authority disagrees with the findings of the Inquiry Officer, he has to record his own finding, that too with reasons for disagreement, and thereafter he has to serve the findings and the reasons for disagreement with the findings of the Inquiry Officer to the Delinquent Officer. The requirement as given in Rules 9(2) and 9(4) of 1999 Rules is to provide adequate opportunity to the Charged Officer to rebut the findings of the Disciplinary Authority and the reasons for his disagreement. Such a course as available in Rules 9(2) and 9(4) of the 1999 Rules is in conformity with the principles of natural justice.

(22) It is to be noticed that at the stage of Rule 9 (4) of the 1999 Rules, the Disciplinary Authority has to furnish not only the Inquiry Report, but also the findings recorded by him for his disagreement with the finding of the Inquiry Officer and the reasons which might have been recorded by him for such disagreement.

(23) In view of the above legal position, we now proceed to consider as to whether the Disciplinary Authority in this case while disagreeing with the findings of the Inquiry Officer had followed the provisions of Rules 9(2) and 9(4) of 1999 Rules or not.

(24) We have already noticed that after completion of the inquiry, the Inquiry Officer had submitted the Inquiry Report under Rule 8 of the 1999 Rules whereby he had recorded a finding exonerating the petitioner of the charge levelled against him. The said Inquiry Report was submitted by the Inquiry Officer on 25.10.2018. After submission of the Inquiry Report, it was incumbent upon the Disciplinary Authority to have considered the said Inquiry Report for taking further action in terms of Rule 9 of 1999 Rules. The Disciplinary Authority on consideration of the Inquiry Report dated 25.10.2018 found himself in disagreement with the findings recorded by the Inquiry Officer and accordingly prepared a report and passed the Order (vH;kosnu) on 31.01.2019. In the said vH;kosnu, the Disciplinary Authority had recorded his disagreement with the findings recorded by the Inquiry Officer giving reasons. The Disciplinary Authority, thus, in conformity with the requirement of Rule 9 (2) of 1999 Rules while disagreeing with the findings of the Inquiry Officer contained in the Inquiry Report dated 25.10.2018 passed the order/report dated 31.01.2019 wherein he gave reasons for his disagreement. It is also to be noticed that the said order/report dated 31.01.2019 of the Disciplinary Authority was served upon the petitioner alongwith Inquiry Report dated 25.10.2018 requiring him to submit his representation to the same. It is in reply to the said order/report dated 31.01.2019 of the Disciplinary Authority that the petitioner submitted his reply and thereafter the punishment order was passed by the Disciplinary Authority on 13.07.2021. Thus, in our opinion, so far as Rules 9(2) and 9(4) of the 1999 Rules are concerned, while conducting the inquiry and passing the punishment order dated 13.07.2021, the State-authorities have complied with the same.

(25) Heavy reliance has been placed by learned Counsel appearing for the petitioner on Kunj Behari Misra (supra). The said case related to departmental enquiry in respect of an employee of Punjab & National Bank. Regulation 7 of the Service Regulations governing the discipline and appeal matters of employees of Punjab & National Bank have been quoted in the said judgment, which is extracted here-in-below:-

"7. Action on the inquiry report: (1) The Disciplinary Authority, if it is not itself the Inquiry Authority, may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for fresh or further inquiry and report and Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of regulation 6 as far as may be.

(2) The disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence n record is sufficient for the purpose.

(3) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee it shall, notwithstanding anything imposing in regulation 8, make an order imposing such penalty.

(4) If the Disciplinary Authority having regard to its findings on all or any o the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned."

(26) On a bare reading of Regulation 7 (2) as extracted in the case of Kunj Behari Misra (supra), it appears that the requirement thereof is akin to the requirement of Rule 9 (2) of the 1999 Rules. However, there is a significant difference in the Punjab & National Bank Regulations as discussed in Kunj Behari Misra (supra) and Rule 9(2) of the 1999 Rules. Sub-Rule (4) of Rule 9 of 1999 Rules clearly directs that once the Disciplinary Authority records a finding of disagreement under Sub-Rule (2) of Rule 9 he shall furnish not only a copy of the Inquiry Report submitted by the Inquiry Officer but also that of his finding recorded under Sub-Rule (2) of Rule 9 to the charged Government Servant whereas in Regulation 7 of Punjab & National bank Service Regulations, the requirement of furnishing finding of disagreement recorded by the Disciplinary Authority is not there. It is in this context that Hon'ble Supreme Court has held that once the Disciplinary Authority under Regulation 7 (2) records disagreement with the finding of the Inquiry Officer he is required to give hearing to the delinquent Officer.

(27) So far as the present case is concerned, there is a specific requirement under Rule 9 (4) of the 1999 Rules which casts a duty on the Disciplinary Authority to serve a copy of the finding of disagreement recorded by him under Sub-Rule (2) of Rule 9 of 1999 Rules alongwith Inquiry Report. In the instant case, as already narrated above, which fact is not in dispute, the finding of disagreement recorded by the Disciplinary Authority in his order/report dated 31.01.2019 was served on the petitioner alongwith Inquiry Report dated 25.10.2018. Thus there cannot be any quarrel or disagreement with the law laid down by the Hon'ble Supreme Court in the case of Kunj Behari Mishra (supra), however, what is to be noted here is that the dictum of the said judgment has been followed by the State-authorities, inasmuch as the finding of difference recorded by the Disciplinary Authority with that of the findings recorded by the Inquiry Officer which are contained in the order/report dated 31.01.2019 was served upon the petitioner before the final order of punishment was passed on 13.07.2021.

(28) As far as judgment cited by the learned Counsel for the petitioner upon Lav Nigam (supra) is concerned, we find that in the said case as well, Hon'ble Supreme Court has held that in case the Disciplinary Authority differs with the view taken by the Inquiry Officer, he is bound to give notice setting out his tentative conclusions to the charged employee and it is only after hearing the charged employee that the Disciplinary Authority would arrive at a final finding of guilt. Lav Nigam (supra) relies upon Kunj Behari Misra (supra). In para - 10 of the judgment in the case of Lav Nigam (supra) Hon'ble Supreme Court has observed as under:-

"10. The conclusion of the High Court was contrary to the consistent view taken by this Court in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed."

(29) Para - 19 of the report of Kunj Behari Misra (supra) has been extracted in Lav Nigam (supra) which reads as under:-

"The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

(30) Learned counsel for the petitioner has relied on another judgment rendered by a Co-ordinate Bench of this Court in the case of Suresh Kumar Singh (supra). The aforesaid judgment has no application to the facts of the present case for the reason that in the said case, the disciplinary proceedings were initiated under Rule 7 of 1999 Rules for imposing major penalty. However, minor penalty was imposed on the delinquent officer and the Court on the analysis of the said facts came to the conclusion that the procedure prescribed in Rule 7 of 1999 was not followed. It is not the case of the petitioner in this matter. Thus, the said judgment in our opinion does not have any application to the facts of the present case.

(31) Learned Counsel for the petitioner has drawn our attention to certain notings made by Union Public Services Commission on the file while it was consulted as per requirement of Rule 16 of 1999 Rules. On the basis of the said notings, it has been argued by learned counsel for the petitioner that in the noting, it was recorded that the proposed punishment is disproportionate to the alleged misconduct. The said notings were obtained by the petitioner under Right to Information Act, 2005 and are available on record of this writ petition at page Nos.185 to 195. At page No. 194 of this writ petition, the Commission after considering the matter has accorded its consent with the proposed punishment and hence the said submission does not come to the rescue of the petitioner.

(32) Various other facts have been pleaded by the learned Counsel for the petitioner to impress upon the Court that the charges against the petitioner were not proved. We have already observed above that the Courts while judicially scrutinizing the decision of the Disciplinary Authority in departmental proceedings will not normally upset the finding of facts unless the same is found not to be based on any evidence on record. In other words, in exercise of our jurisdiction of judicial review, it is impermissible for this Court to substitute our own findings of fact to the findings recorded by the authorities concerned in respect of punishment order.

(33) Before the Tribunal, the petitioner had also relied upon another judgment of Hon'ble Supreme Court in the case of S.C. Parashar (supra). The said case was based on Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the procedure adopted in the departmental proceedings in that case was for imposition of major penalty, but the penalty imposed upon the delinquent officer was an amalgamation of minor penalty and major penalty. In the peculiar facts situation of the said case, Hon'ble Supreme Court held that the punishment which could have been imposed upon the charged officer was reduction of pay to minimum of pay-scale for a period of three years with cumulative effect which is a major penalty. Hon'ble Supreme Court held in the said case that even in a case where procedure is followed in the departmental proceedings for imposition of a major penalty, having regard to the facts and circumstances of the case, minor penalty can also be imposed. Para - 10 of the said judgment in the case of S.C. Parashar (supra) is extracted here-in-below:-

"10. It is not in dispute that sub-Rules (iii) and (iii)(a) of Rule 11 provide for minor penalties whereas clause (v) thereof provides for major penalty. Indisputably the procedure adopted in the departmental proceeding was for imposition of a major penalty. It is trite that even in a case where the procedure followed in the departmental proceedings for imposition of a major penalty, having regard to the facts and circumstances of a case, minor penalty can also be imposed. The question is as to whether the penalty imposed by the President upon taking into consideration the report filed by the Enquiry Officer, was under clauses (iii) and (iii)(a) or clause (v) of Rule 11 of the CCS Rules."

(34) In the instant case, by the punishment order dated 13.07.2021, two penalties have been imposed upon the petitioner, namely (i) censure and (ii) stoppage of increment for two years. As defined in Rule 3 (i) of 1999 Rules, censure is a minor penalty and withholding of increment for a specified period is also a minor penalty in terms of Rule 3 (ii) of 1999 Rules. Thus, though the disciplinary proceedings were initiated for imposing major penalty, but the petitioner has been inflicted with minor penalty which is permissible in law in view of the law laid down by the Hon'ble Supreme Court in the case of S.C. Parashar (supra). In this view, reliance placed by the learned Counsel for the petitioner on the judgment in the case of S.C. Parashar (supra) does not come to his rescue in any manner.

(35) Learned Tribunal has considered all the aforesaid aspects of the matter and has concluded that the order of punishment dated 13.07.2021 did not suffer from any infirmity or illegality.

(36) For the discussions made and reasons given above, we are not persuaded to take a view other than the view taken by the Tribunal while passing the order dated 12.09.2022 which is under challenge in this writ petition.