Dr. Ram Chandra Pathak vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 30113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


                                         Neutral Citation No. - 2023:AHC-LKO:71899
 
								                 Reserved
 
Case :- WRIT - A No. - 4705 of 2023
 

 
Petitioner :- Dr. Ram Chandra Pathak
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Sugar Industries And Cane Development And 2 Others
 
Counsel for Petitioner :- Raj Kumar Pandey,Kapil Misra
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Utsav Mishra
 

 
Hon'ble Manish Mathur,J.

1. Heard Mr. S.C. Misra learned Senior Counsel assisted by Mr. Raj Kumar Pandey, learned counsel for petitioner, learned State Counsel for opposite parties 1 to 3 and Mr. Gaurav Mehrotra learned counsel assisted by Mr. Utsav Mishra & Abhinit Jaiswal learned counsel for opposite parties.

2. Petition has been filed challenging order dated 31st May 2023 passed by State Government whereby punishment of withholding five annual increments of salary with cumulative effect along with censure entry in character roll of petitioner has been awarded. Also under challenge is the disciplinary proceedings including inquiry report dated 5th April, 2021. Petitioner has also sought a direction to opposite parties to declare him selected for the post of Additional Cane Commissioner with all consequential benefits of promotion ignoring the impugned order.

3. By means of subsequent amendment, prayer for quashing proceedings of departmental promotion committee held on 24th June, 2023 has also been sought.

4. It has been submitted that while petitioner was discharging the duties of Joint Cane Commissioner, he was sent on deputation on the post of Chief Cane Development Advisor in the sugar federation and while functioning on the said post, he was required to be a member of selection committee for selection on the post of Cane Officer in the year 2016-2017 as an expert. He performed his duties and submitted his recommendation whereafter he was issued a charge sheet dated 4th June, 2020 containing six charges pertaining to complaints with regard to irregularities in the aforesaid selection.

5. It is further submitted that petitioner submitted a letter requiring relevant documents to be provided to him but even thereafter when relevant documents were not provided to him, he submitted his reply dated 6th February, 2021 whereafter inquiry report dated 5th April, 2021 was submitted finding charges 1 and 2 to be proved while exonerating petitioner with regard to charges 3,4,5 and 6. It is submitted that thereafter impugned order has been passed holding petitioner guilty of charges 1 and 2 and partially with regard to charge No.3.

6. Learned counsel for petitioner has submitted that entire disciplinary proceedings are vitiated for not adhering to the procedure indicated in Rule 7 of the U.P. Government Servants (Discipline and Appeal) Rules 1999 inasmuch as no witnesses whatsoever were examined to prove the preliminary inquiry report dated 31st July, 2017 and the vigilance report dated 20th January, 2020, which form the basis of inquiry. It has also been submitted that although the charge sheet indicates inquiry having been instituted on the basis of complaints received from various sources but neither any of the complainants nor their complaints were ever produced or proved in the inquiry proceedings.

7. It has also been submitted that petitioner has been discriminated against since he was only one of the members of the selection committee and one Dr. B.K. Yadav, Additional Commissioner (Crops) was the Chairman of the committee against whom also the same complaint was made but the central government by means of order dated 24th August, 2022 refused to initiate any disciplinary proceedings against him on the ground that alleged complaints received through various channels were not authenticated as per extant instructions and therefore action on such complaint was impermissible. It is submitted that one Tulsi Ram who was also a member of the selection committee was awarded punishment of withholding of one increment with cumulative effect along with censure entry, which was challenged in Writ A No. 3074 of 2022, which was allowed vide judgment and order dated 20th March, 2023 on the ground that charges were completely vague and did not indicate which provision was violated.

8. It has also been submitted by learned counsel for petitioner that a perusal of inquiry report will make it evident that petitioner's allegation that there was interpolation in the mark sheet allegedly submitted by petitioner was found substantiated whereafter inquiry officer himself has recommended comparison by expert and therefore there was no conclusive evidence against petitioner. It is submitted that even otherwise the punishment awarded against petitioner is disproportionate to the charges levelled against him.

9. Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with submission that violation of Rule 7 of Rules 1999 is not made out since petitioner's reply dated 25th February, 2021 clearly indicates his admission that all relevant documents were supplied to him. It is submitted that the documents and material on record also indicate admission of petitioner that a personal hearing was provided to him and since he had admitted that he was not only a part of selection committee but also made the recommendations, there was nothing further required to be proved since the reservation roster required to be followed was admittedly violated.

10. It has also been submitted that the charge that one Pradeep Kumar who admittedly appeared in the interview but was shown to be absent was also made out. Learned counsel has submitted that the fact that petitioner never raised any plea or objection about interpolation of mark sheet/tabulation chart or forgery of his signatures even in his representation filed under Rule 9(4) of the Rules of 1999 clearly point to his admission with regard to charges levelled and in view of such admission, the fact that reservation roster was not followed and the recommendations were against Article 338 of the Constitution of India were made out due to which no further examination of witnesses were required since there was no dispute regarding petitioner's recommendations. It has also been submitted that despite such a major misconduct, a lenient view has been taken by the authorities concerned themselves by awarding the punishment which has been imposed.

11. Mr. Gaurav Mehrotra learned counsel appearing for private opposite party, Viswas Kanaujia, has raised objections with regard to prayers III(A and B) with submission that said opposite party has subsequently been promoted on the post of Additional Cane Commissioner in terms of recommendations of the departmental promotion committee dated 24th June, 2023. It is submitted that the said committee and its recommendations are in consonance with U.P. Government Servants Criterion for Recommendation by Promotion Rules, 1994 as amended in 2010 whereby Rule 4 provides such promotion only on the basis of merit and not seniority. It is submitted that since as per annual confidential reports, the private opposite party was placed above petitioner in merit therefore prayers III(A and B) can not be granted. He has submitted that seniority would be aspect to be seen only when merit of the candidates is the same and since in the present case, the private opposite party was placed over and above in merit viz-a-viz petitioner, there can not be any occasion to interfere with recommendations of the promotion committee held on 24th June, 2023.

12. In the alternative, it has been submitted that even otherwise the petitioner has failed to indicate any illegality in the aforesaid recommendations of the departmental promotion committee and as to how it is not in consonance with Rules of 1994, particularly when no grounds for challenge to the departmental promotion committee have been indicated in the memorandum of petition.

13. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that while issuing charge sheet, six charges were levelled against petitioner with charge No.1 pertaining to violation of Article 338 of Constitution of India regarding reservation in public employment. The charge indicates that for the purposes of selection to the post of Cane Officer, there were seven vacancies under general quota, five vacancies under backward community quota and three under scheduled caste quota. While the general quota was rightly recommended, six persons were recommended under O.B.C. quota against five vacancies while only two persons were recommended under S.C. quota of three vacancies.

14. Charge No.2 pertained to complaint made by one scheduled caste candidate, namely Pradeep Kumar with allegation that he was shown absent even though he had participated in the interview and with regard to which his writ petition is pending before this Court. The charge also indicates that certificates of selected candidates were never verified. We are not concerned with charges 3,4,5 and 6 which were held not to be proved in inquiry proceedings.

15. In his reply dated 6th February, 2021, petitioner has taken a specific plea that final recommendation/tabulation chart is not in his hand writing and in fact there are interpolations and over writing therein and therefore plea was taken that recommendations finally made by the committee was not as per his recommendations. Regarding charge No.2, petitioner has clearly stated that it was not in course of his duties to indicate candidates present or absent.

16. The inquiry report thereafter was submitted on 5th April, 2021 finding charges 1 and 2 proved with regard to violation of Article 338 of Constitution of India as well as allegation levelled by Pradeep Kumar. The impugned order has also been passed imposing penalty upon petitioner on the ground that as per evidence and admission of petitioner, his complicity can not be denied.

Fallacies in the inquiry report

17. Regarding the inquiry report, it is quite evident that petitioner has been found guilty of charges 1 and 2 while he has been exonerated with regard to charges 3,4,5 and 6. The inquiry report has rejected plea taken by petitioner primarily on the ground that the final recommendations/tabulation chart which were the basis of merit list contained signatures of all members of selection committee including petitioner and in case petitioner gained knowledge regarding forgery of his signatures, then it was his duty to have brought it to the attention of the concerned authority and failure to do so clearly indicates his complicity in the recommendations. The inquiry report also states that petitioner in his reply did not indicate as to whether such interpolation was present at the time when he affixed his signatures on the tabulation chart or were imposed later on and therefore deeming petitioner's guilt, violation of Article 338 of Constitution of India was found established.

18. It is however relevant to notice that while concluding the inquiry report, inquiry officer has found the plea of petitioner of interpolation to be established to such an extant that he recommended forensic examination/ hand writing expert examination with regard to signatures of petitioner on the tabulation chart prior to taking any final decision regarding charge No.1.

19. In the considered opinion of this Court, once the inquiry officer himself found petitioner's plea to be established to such an extant that recommendation for expert/ forensic examination of petitioner's signatures on the tabulation chart was made, then it can not be said that he had reached any final subjective satisfaction with regard to petitioner's guilt about charge No.1. The said statement in the concluding portions of inquiry report clearly indicated confusion in the mind of inquiry officer and therefore there was no occasion for him to have found charge No.1 established against petitioner. On the contrary, such a recommendation is contradictory to the establishment of guilt of petitioner regarding charge No.1.

20. With regard to charge No.2, it is evident from a perusal of inquiry report that inquiry officer has not at all adverted to petitioner's plea that it was not within the realm of his duties to indicate presence or absence of candidates. On the contrary charge No.2 has been found established against petitioner only on the ground that recommendations violated Article 338 of Constitution of India, which even otherwise have nothing to do with charge levelled against petitioner. In fact the inquiry report does not indicate any finding at all with regard to charge No.2, which has been found established only on account of establishment of charge No.1 although both the charges were quite different.

21. The aforesaid aspects clearly indicate the fact that inquiry officer had not conclusively established guilt of petitioner either with regard to charge No.1 or even with regard to charge No.2. No material whatsoever has been adverted to by the inquiry officer to indicate proving of either of the aforesaid charges.

Fallacies in the impugned order

22. Vide impugned order, punishment as indicated herein above has been imposed upon petitioner. A perusal of impugned order will indicate that petitioner has been found guilty of charges levelled against him only on the ground that as per material on record, his complicity and involvement can not be denied. The disciplinary authority has also placed burden of proof upon petitioner with the indication that petitioner was unable to produce any evidence to disprove charges levelled against him and therefore violation of Article 338 of Constitution of India was found established.

23. Regarding the concept of inquiry proceedings culminating in punishment order, Hon'ble the Supreme Court has elucidated the law in the cases of Roop Singh Negi versus Punjab National bank and others MANU/SC/8456/2008:(2009) 1 SCC (L & S) 398 and State of Uttar Pradesh and others versus Saroj Kumar Sinha reported in (2010) 2 SCC 772. The relevant portion of Roop Singh Negi (supra) is as follows:

"Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.

The relevant portion of Saroj Kumar Sinha (surpa) is as follows :

"27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge."

"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."

24. Upon applicability of aforesaid judgments in the present facts and circumstances of the case, it is evident that neither the inquiry officer nor the disciplinary authority have adverted to any material on record which would indicate complicity of petitioner regarding charges levelled against him. As indicated herein above, the inquiry officer did not record any subjective satisfaction regarding involvement of petitioner about charge No.1 since he himself recommended final orders to be passed only after expert/forensic examination of petitioner's signatures.

25. The disciplinary authority on the other hand has found charges against petitioner established only on the ground that petitioner failed to produce any evidence to disprove the charges. Clearly neither the inquiry nor the punishment order have been passed in consonance with judgments of Hon'ble Supreme Court indicated herein above. There is no subjective satisfaction of either of the authorities regarding definitive involvement of petitioner regarding charges levelled against him, on the basis of any material adduced during inquiry proceedings. Although the charge sheet indicates initiation of inquiry proceedings on the basis of complaint received from various sources, neither any complainant nor any complaint appears to have been produced during the inquiry proceedings for petitioner to cross examine or rebut. The nature of inquiry proceedings being clearly quasi judicial, it was incumbent upon the disciplinary authority to have adverted to material on record which proved the petitioner's complicity in the charges levelled against him. On the contrary, disciplinary authority has placed entire burden of proof on the petitioner. Such a course of action is clearly vitiated since it is not in accordance with norms of inquiry indicated by Hon'ble Supreme Court.

Discrimination

26. Another factor which weighs heavily in favour of petitioner is the aspect of discrimination inasmuch as same allegations were levelled not only against petitioner but the entire selection committee comprising the Chairman, Dr. B.K. Yadav and other members including one Mr. Tulsi Ram and the petitioner. In the case of Dr. B.K. Yadav, the Chairman of selection committee the central government vide order dated 24th August, 2022 refused to initiate action against him on the ground that genuineness of complaint was not authenticated from the complainant as per extant instructions due to which action on such complaint was impermissible. The proposed disciplinary inquiry proceedings against the said person was thereafter closed.

27. Once the Chairman of selection committee had been exonerated from the allegations on a ground which went to the root of the matter, in the considered opinion of this Court, action taken against petitioner on the same charges and allegations would clearly amount to discrimination.

28. On the aspect of discrimination, Hon'ble Supreme Court in the case of State of U.P. and others versus Rajpal Singh (2010) 5 SCC 783 has held as follows:-

"5. Though, on principle the ratio in aforesaid cases would ordinarily apply, but in the case in hand, the High Court appears to have considered the nature of charges levelled against the five employees who stood charged on account of the incident that happened on the same day and then the High Court came to the conclusion that since the gravity of charges was the same, it was not open for the disciplinary authority to impose different punishments for different delinquents. The reasoning given by the High Court cannot be faulted with since the State is not able to indicate as to any difference in the delinquency of these employees.

6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution."

29. The aforesaid proposition has thereafter been reiterated in the case of Rajendra Yadav versus State of M.P and others, (2013) 3 SCC 73. The relevant portion is as follows:-

"9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences."

30. In the considered opinion of this Court, in view of exoneration of Chairman of the selection committee while imposing punishment upon petitioner for the same charges and allegations, the aspect of discrimination as enunciated by Supreme Court in the aforesaid judgments is clearly applicable.

31. It is also a relevant factor that one Mr. Tulsi Ram who was also a member of the selection committee and was awarded punishment of withholding one increment with cumulative effect along with censure entry challenged the same in Writ A No. 3074 of 2022, which has been allowed vide judgment and order dated 20th March, 2023. The opposite parties have neither indicated whether the aforesaid judgment has been set aside by any appellate court, nor any distinguishing feature regarding its applicability.

32. Another aspect requiring consideration is of disproportionate punishment. It is the case of opposite parties that petitioner made recommendations regarding selection on the post of Cane Officer, which were contrary to Article 338 of Constitution of India. It is not a case of opposite parties that petitioner had any role in issuance of appointment letters to the selected candidates. Even otherwise the only major charge levelled against petitioner regarding violation of Article 338 of Constitution of India is of a single recommendation being made over and above the vacancy pertaining to OBC quota. In the considered opinion of this Court, only a recommendation had been made by the selection committee of which petitioner was one of the members. A recommendation even against law may not be construed to be a misconduct, unless specifically indicated in the service rules, particularly since such recommendations are not binding in nature and it is for the appointing authority to adhere to or reject the same. The opposite parties have not been able to indicate any service regulation pertaining to petitioner whereby such a recommendation, even if assumed to be against law, can be held to be a misconduct requiring imposition of such punishment.

33. Learned State Counsel has adverted to judgment rendered by Supreme Court in the case of State of U.P. versus Rajit Singh, 2022 SCC Online SC 341 to submit that doctrine of equality would not be applicable where other officers involved in an incident have been exonerated since misconduct is required to be considered as per role of each individual officer in the light of their duties of office and where charges against individual concerned are held to be proved in a departmental inquiry since there can not be any claim of negative equality.

34. So far as aforesaid judgment is concerned, it is quite evident that opposite parties have failed to make out the distinguishing feature as indicated in the said judgment of Rajit Singh (supra). Neither the inquiry report nor the impugned punishment order have adverted to any individual role of petitioner regarding allegations levelled against him and his role even with respect to same misconduct in the light of his duties of office have also not been distinguished. As has been indicated herein above, the conduct of inquiry itself indicates that the inquiry officer himself was unable to reach any subjective satisfaction regarding involvement of petitioner in the allegations levelled against him. With due respect, in the considered opinion of this Court, the aforesaid judgment would be inapplicable in the present facts and circumstances of the case.

35. In view of aforesaid discussion, it is apparent that the impugned orders are not in consonance with law.

36. As per material on record, it is also evident that a departmental promotion committee has in the meantime been held on 24th June, 2023 whereafter the opposite party No.4 has been promoted on the post of Additional Cane Commissioner with non consideration of petitioner due to impugned order. Considering the fact that this Court has found not only the inquiry report but also the punishment order to be vitiated in law the impugned order dated 31st May, 2023 is consequently quashed by issuance of writ in the nature of Certiorari. A writ in the nature of Mandamus is issued to the opposite parties to hold a review D.P.C. for consideration for promotion on the post of Additional Cane Commissioner, Department of Sugar Industries and Cane Development considering the petitioner for the same along with opposite party No.4, ignoring the impugned order dated 31st May, 2023.

37. In view of aforesaid directions, there is no occasion for this Court to quash the Departmental Promotion Committee proceedings held on 24.06.2023 which even otherwise would be subject to the Review Departmental Promotion Committee recommendations.

38. Resultantly the petition succeeds and is allowed. Parties to bear their own cost.

Order Date:-31.10.2023

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