Allahabad High Court
Smt. Rashmi vs State Of U.P. And 5 Others on 31 May, 2024
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgement Reserved on 27.02.2024
Judgement Delivered on 31.05.2024
Neutral Citation No. - 2024:AHC:99529
Court No. - 35
Case :- WRIT - A No. - 12922 of 2019
Petitioner :- Smt. Rashmi
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Anand Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Prakash Padia,J.
1. Heard learned counsel for the petitioner and learned Standing counsel for the respondents.
2. The petitioner has preferred the present Writ Petition inter-alia with the following prayer:
"a) issue a writ, order or direction, including a writ in the nature of certiorari quashing the order dated 15.9.2015 passed by the respondent no. 3 (Annexure -10 to the writ petition);
b) issue a writ, order or direction in the nature of mandamus directing the respondent no.6 to pay the salary of the petitioner for the period of 1.12.2015 to 4.12.2015 for 4 days and for the period of 5.12.2015 to 14.12.2016 of 72 days and for the period of 24.4.2017 to 30.4.2017 of 7 days, total 132 days;
c) issue a writ, order or direction, including a writ in the nature of certiorari quashing the order dated 17.1.2019 passed by the respondent no.2 (Annexure - 15 to the writ petition);"
3. Facts in brief as contained in the writ petition are that the petitioner was initially appointed as Supervisor (Mukhya Sevika) in March, 1995 in the Department of Bal Vikas Seva Evam Pushtahar. In the year 2012 the petitioner was posted in District Agra under the District Programme Officer, Agra. On 28.9.2012, a meeting was organized by the District Programme Officer, Agra for the better programming and performance at District level and the news about the hot talks between the petitioner and District Programme Officer in the said meeting was published in daily newspaper on 29.8.2012. After the publication of the said news, the District Programme Officer, Agra wrote a letter dated 31.8.2012 to the Director, Bal Vikas Seva Evam Pushtahar, Lucknow, stating therein to transfer the petitioner from district Agra. Thereafter, the Director, Bal Vikas Evam Pushtahar, Lucknow suspended the petitioner on 11.09.2012. On 30.11.2012 a charge sheet was issued to the petitioner containing 4 charges, which read as follows:-
"1. Petitioner has demanded illegal money from the Anganwadi Karyakarti for the payment of arrears.
2. The petitioner has used un-parliamentary language for her superior officers.
3. The petitioner has organized the meeting of Anganwadi Karyakartis on the place other than region prescribed.
4. The petitioner has not supplied the growth chart to District Programme Officer."
4. The petitioner filed reply of the charge sheet on 24.03.2014. By a letter dated 02.03.2015, the enquiry report dated 19.2.2015 was supplied to the petitioner.
5. The Inquiry Officer in its Inquiry Report dated 19.02.2015 recorded findings for respective charges and stated therein that the Charge Nos.1 & 3 were partly proved and the Charge Nos.2 & 4 were not proved which are reproduced hereinbelow-
vkjksi la[;k 1:
" आप द्वारा अपने परिक्षेत्र में कार्यरत आंगनबाड़ी कार्यकत्रियों / सहायिकाओ से मानदेय एरियर भुगतान हेतु अनैतिक दबाव बनाकर धनराशि की वसूली की जा रही है । इस तथ्य की जानकारी दिनांक 27-28 अगस्त 2012 को जनपद स्तर पर आंगनबाड़ी कार्यकत्रियों / सहायिकाओ की खुली बैठक में आंगनबाड़ी कार्यकत्रियों / सहायिकाओ द्वारा जिला कार्यक्रम अधिकारी आगरा को दी गयी। आप उ०प्र० राज्य कर्मचारी आचरण नियमावली 1956 में निहित प्रावधान के विपरीत आचरण की दोषी है।"
foospuk:
उक्त आरोप के सापेक्ष जिला कार्यक्रम अधिकारी आगरा के पत्र संख्या 674 दिनांक 31. 08.2012 मौजूद है। निदेशालय पत्रांक-625 दिनांक 31.07.2014 के द्वारा मुख्य सेविका रश्मी सिंह के परिक्षेत्र के 05 आंगनबाड़ी कार्यकत्रियों को निदेशालय उपस्थित हो कर बयान हेतु आदेशित किया गया था, परन्तु एक भी आंगनबाड़ी निदेशालय में उपस्थित नहीं हुयी जिससे आरोप की पुष्टि नहीं हो सकी। जिला कार्यक्रम अधिकारी द्वारा साक्ष्य के रूप में दी गयी सीडी में मुख्य सेविका श्रीमती रश्मि के विरूद्ध पंजीरी के 1500.00 रू0 लेने का आरोप दिखता है। किन्तु आंगनवाड़ी कार्यकत्रियों द्वारा बयान हेतु निदेशालय में उपस्थित न होने से न तो आरोप की पुष्टि होती है एवं न ही पहचान हो पाती है कि सीडी में देखी जाने वाली कार्यकत्री वही है। इसके अतिरिक्त श्रीमती रश्मि ने ऐसा कोई साक्ष्य प्रस्तुत नहीं किया है। जिससे स्पष्ट हो सके कि इनके द्वारा अतैनिक दबाब बनाकर धनराशि की वसूली नहीं की जा रही थी । अपितु इनके द्वारा जिला कार्यक्रम अधिकारी आगरा की रिश्वतखोरी का हिन्दुस्तान समाचार पत्र में छपा समाचार साक्ष्य के रूप में प्रस्तुत किया गया है। स्पष्ट है श्रीमती रश्मि द्वारा प्रस्तुत साक्ष्य से उनके उपर लगा आरोप हटता नहीं है। इस प्रकार आरोप संख्या-1 आंशिक रूप से सिद्ध होता है।
vkjksi la[;k 2:
2. आपके द्वारा आरोप संख्या-१ में इंगित तथ्य सुनने के पश्चात लगाये गये आरोप के सम्बन्ध में समुचित उत्तर न देकर बल्कि उत्तेजित होकर उच्चाधिकारियों के विरुद्ध अमर्यादित भाषा का प्रयोग किया गया। इस प्रकार का व्यवहार शासकीय कर्मचारी से अनआपेक्षित है। पूर्व में भी आपके द्वारा इस तरह का आचरण किया गया था, जिसकी शिकायत मौखिक रूप से आंगनबाड़ी कार्यकत्रियों द्वारा जिला कार्यक्रम अधिकारी आगरा से की गयी। अतः आप अपनी त्रुटियों व आचरण में सुधार न कर उच्चाधिकारियों के विरुद्ध अमर्यादित भाषा का प्रयोग करने की दोषी है।
foospuk:
विवेचना आरोपित मुख्य सेविका द्वारा उच्चाधिकारियों एवं आंगनबाड़ी कार्यकत्रियों से अमर्यादित आचरण एवं भाषा का प्रयोग किया गया है इस संबंध में निदेशालय पत्रांक-625 दिनांक 31. 07.2014 के द्वारा मुख्य सेविका रश्मी सिंह के परिक्षेत्र के 05 आंगनबाड़ी कार्यकत्रियों को निदेशालय उपस्थित हो कर बयान हेतु आदेशित किया गया था, परन्तु एक भी आंगनबाड़ी निदेशालय में उपस्थित नहीं हुयी। जिला कार्यक्रम अधिकारी आगरा द्वारा उपलब्ध करायी गयी सीडी में जो वार्तालाप रिकार्ड है उसमें श्रीमती रश्मि द्वारा अमरियादित भाषा का प्रयोग नहीं किया है। अतः स्पष्ट है इनके उच्चाधिकारी द्वारा इनके विरूद्ध की गयी टिप्पणी सही प्रतीत नहीं होती है। अतः आरोप संख्या-02 सिद्ध नहीं होता है।
vkjksi la[;k 3:
आप अपने परिक्षेत्र की आंगनबाड़ी कार्यकत्रियों की बैठक परिक्षेत्र में न कर अन्य स्थान पर बुलाकर करती है। जबकि निर्देशानुसार आपको परिक्षेत्र में आंगनबाड़ी कार्यकत्रियों की बैठक करना एवं मुख्यालय बनाकर निवास न करने की दोषी है।
foospuk:
जिला कार्यक्रम अधिकारी आगरा द्वारा ऐसा कोई साक्ष्य प्रस्तुत नही किया गया है जिससे यह स्पष्ट हो सके कि आरोपित मुख्य सेविका अपने परिक्षेत्र में आंगनबाड़ी कार्यकत्रियों की बैठक न लेकर अन्य क्षेत्र में लेती है इस सम्बन्ध में मुख्य सेविका रश्मी द्वारा निवास के सम्बन्ध में जो साक्ष्य उपलब्ध कराया गया है। वह एक सादे पेपर पर लिखा गया है। जिसमें उन्होने श्री राजेन्द्र सिंह नगला कोर धनौली ब्लाक अकोला के मकान में फरवरी 2008 से अक्टूबर 2012 तक निवास का है। यह साक्ष्य पर्याप्त नहीं है। इस प्रकार यह आरोप संख्या-3 श्रीमती रश्मि पर आंशिक सिद्ध होता है।
vkjksi la[;k 4:
4. आपके परिक्षेत्र स्थित गहर्राकला में जिला कार्यक्रम अधिकारी आगरा द्वारा किए गये निरिक्षण के दौरान ग्रोथ चार्ट उपलब्ध नहीं पाया गया है दिनांक 18.08.2012 को आंगनबाड़ी केंद्र बल्हेरा में स्तनपान को प्रोत्साहित करने हेतु आहुत सामुदायिक बैठक में भी आप अनुपस्थित रही। इस प्रकार आप अपने कर्तव्यों एवं दायित्वों के समुचित निर्वहन न करने की दोषी है।"
foospuk:
जिला कार्यक्रम अधिकारी आगरा द्वारा आंगनबाड़ी केन्द्र गहकिला एवं गहकिला-3 की क्रमशः 25.06.2012 तथा 26.06.2012 की निरीक्षण आख्या साक्ष्य के रूप में प्रस्तुत की गयी है। दिनांक 25.06.2012 के गहकिला केन्द्र निरीक्षण आख्या में ग्रोथचार्ट का केन्द्र पर न मिलना बताया गया है जबकि 26.06.2012 के गहर्राकला केन्द्र-3 निरीक्षण आख्या में ग्रोथचार्ट उपलब्ध बताया गया। जिसमें 48 बच्चों की उपस्थिति दर्शायी गयी है। इस प्रकार यह आरोप आंशिक सिद्ध होता है। साथ ही दिनांक 18.08.2012 को आंगनबाड़ी केन्द्र बेल्हेरा में आयोजित सामुदायिक बैठक के सम्बन्ध में जिला कार्यक्रम अधिकारी आगरा द्वारा पत्र संख्या 674 दिनांक 31.08.2012 द्वारा एक तरफ आरोपित मुख्य सेविका के अनुपस्थित होने की पुष्टि की जा रही हैं दूसरी ओर निदेशालय को भेजे गये पत्र 93 दिनांक 20.05.2014 में स्पष्ट रूप से यह उल्लेख किया जा रहा है कि दिनांक 18.08.2012 को आंगनबाड़ी केन्द्र बेल्हेरा में उनके द्वारा कोई भी सामुदायिक बैठक नही की गयी। अतः आरोप संख्या 04 सिद्ध नहीं होता है।
6. The petitioner submitted his reply to the aforesaid the inquiry report on 06.04.2015. After the aforesaid reply was submitted, the respondent no.3 passed the order of punishment dated 15.09.2015. By the aforesaid order, 3 punishments were awarded to the petitioner namely (i) one increment has been stopped permanently (ii) salary of the suspension period of the petitioner was directed to be deposited in the state fund (iii) an adverse entry was made against the petitioner.
7. Aggrieved against the aforesaid order, the petitioner filed statutory Departmental Appeal on 04.12.2015 which was rejected by the Appellate Authority, i.e., respondent No.2/Special Secretary, Mahila Evam Bal Vikas Government of U.P. Lucknow vide its order dated 17.01.2019. Aggrieved against the aforesaid orders, the petitioner has preferred the present petition.
8. The learned counsel for the petitioner has drawn the attention of the Court upon the impugned order dated 15.09.2015 and submitted that while passing the impugned order, the Director, Bal Vikas Evam Pushtahar has not applied his mind and only on the basis of the enquiry report, the impugned punishment order has been passed. He further submitted that Inquiry Officer has found that charge nos.1 & 3 are partially proved, but in fact both the charges are not proved against the petitioner. Insofar as the charge no.1 is concerned it has been inquired by the Inquiry Officer that none of the Anganwadi Karyakarti has come forward to record her statement for proving the charge no.1, but since the petitioner has not submitted any evidence with regard to the demanding money by pressurizing the Anganwadi Karyakarti, as such the charge no.1 is partially proved. It is further submitted that insofar as the charge no.3 is concerned, it has been inquired that although the petitioner has submitted an evidence with regard to her residential house stating therein that the petitioner is residing in the house of Shri Rajendra Singh Nagala Kour Dhanauli Block Akola, but since all the residential details were written on the plain paper as such the same were not considered as sufficient evidence.
9. It is submitted by the learned counsel for the petitioner that without any rhyme or reason the petitioner has not been paid her salary, inspite of the fact that after impugned punishment order dated 15.09.2015, she duly joined her duties in the office of District Programme Officer, Aligarh. The petitioner was admitted in AIIMS, New Delhi on 05.12.2015 due to abdominal hysterectomy and her operation was conducted on 11.12.2015 and was discharged from AIIMS on 03.01.2016. After the operation petitioner joined her services on 15.02.2016 and submitted medical fitness certificate before District Programme Officer, Aligarh. Although the aforesaid facts were within the knowledge of District Programme Officer, Aligarh and in this regard applications were duly made by the petitioner but she was not paid her salary for the said period i.e. 15.09.2015 to 30.09.2015 (15 days), 01.10.2015 to 03.11.2015 (34 days), 01.12.2015 to 04.12.2015 (4 days) and 05.12.2015 to 14.02.2016 (72 days). It is further submitted that apart from the above, the petitioner is also not paid salary for the period i.e., 24.04.2017 to 30.04.2017 (7 days).
10. Lastly, it is submitted by the learned counsel for the petitioner that the petitioner is entitled for suspension allowances as well as salary for the aforesaid period of total 132 days.
11. On the other hand, learned Standing Counsel has submitted that after the suspension of the petitioner due opportunity was given to her and thereafter chargesheet has been issued on 30.11.2012 levelling four charges and after proper inquiry, Inquiry Report was prepared, which was duly served to the petitioner along-with the show cause notice and after considering the reply of the petitioner, the impugned punishment order has been passed.
12. It is further contended by the learned Standing Counsel that the petitioner was absent from her duties without sanctioned of leave, therefore, she is not entitled for the salary of the aforesaid period. It is further submitted by the learned Standing Counsel that the petitioner is abusing her superior Officer and charges levelled against the petitioner are serious and as such she is not entitled for any relief under Article 226 of the Constitution of India.
13. Heard learned counsel for the parties and perused the record.
14. From perusal of the record, it is clear that in the departmental proceedings initiated against the petitioner, the Inquiry Officer was appointed, who submitted his report on 19.02.2015 stating therein that the Charge Nos.1 & 3 were partly proved and Charge Nos.2 & 4 were not proved.
15. Insofar as the Charge No.1 is concerned, i.e., making unnecessary pressure upon Anganwadi workers to give money for the payment of arrears, from perusal of the findings, it is clear that no witness was present to prove the aforesaid charges levelled against the petitioner, despite this the Inquiry Officer in its report stated that the aforesaid charge was partly proved.
16. Insofar as the Charge No.3 is concerned, i.e., not holding the meeting in the proper place, from perusal of the findings, it is clear that evidence submitted by the petitioner in her defence was discarded by the Inquiry Officer only on the basis of letter written by the District Programme Officer, Agra dated 31.08.2012 and by the Director, dated 20.05.2014, held that the charge was partly proved.
17. From perusal of the record, it is clear that once it was found that the meeting was held on the proper place at the relevant time, i.e., on 26.06.2012 in which 48 Anganwadi Karyakatris were present, Charge No.3 was wrongly party proved against the petitioner.
18. It is well settled law that burden of proof always lies upon the prosecution and not upon the defence or accused. In this case, the Inquiry Officer found no evidence against the petitioner despite this, he stated that the charges levelled against the petitioner in respect of Charge Nos.1 & 3 are partly proved, it is per se illegal and liable to be set aside.
19. In a departmental proceeding, the Disciplinary Authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceedings cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. In the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-nigh impossibility to decry availability of judicial review at the instance of an affected person. In the case of Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant and Others 2001(1) SCC 182, the Hon'ble Supreme Court observed in paragraph 19 to 21 as follows:-
"19. While it is true that in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceedings cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-nigh impossibility to decry availability of judicial review at the instance of an affected person. The observations as above, however, do find some support from the decision of this Court in the case of Apparel Export Promotion Council vs A.K. Chopra, 1999(1)SCC 759.
20. It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. The judicial process itself embrances a fair and reasonable opportunity to defend though, however, we may hasten to add that the same is dependent upon the facts and circumstances of each individual case. The facts in the matter under consideration is singularly singular. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste; this is however, apart from the issue of bias which would be presently dealt with hereinafter. It is on this context, the observations of this Court in the case of Sayeedudr Rehman v. State of Bihar, 1973 (3) SCC 333 seems to be rather apposite. This Court observed:
"The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order, dated 22.04.1960, is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties."
21. Incidentally, Hidayatullah, C.J. in Channabasappa Basappa Happali v. State of Mysore, 1971(1) SCC 1, recorded the need of compliance with certain requirements in a departmental enquiry-at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence- on this state of law, a simple question arises in the contextual facts. Has this been complied with? The answer however on the factual score is an emphatic "no". "
20. It is clear that facts as narrated above, no material was found against the petitioner despite this in the Inquiry report it is stated that the Charge Nos.1 & 3 are partly proved. The aforesaid findings recorded by the Disciplinary Authority in the order is not only perverse or illegal but also shocks the judicial conciseness of this Court.
21. In the case of Narinder Mohan Arya vs. United India Insurance Co. Ltd. and others; 2006(4) SCC 713, it was held by the Hon'ble Supreme Court that it is the duty Inquiry Officer to draw his own inference or and so long as the inference drawn by him should be supported by some materials on record. The paragraph No.14 of the aforesaid judgment reads as follows:-
14. Ordinarily, we would not have rcferred to the findings of the enquiry officcr. He was entitled to draw his own inference and so long as the inference drawn by him is supported by some matcrials on record, it is well settled that a court of judicial review would not interfere therewith. We have further noticed hereinbefore marked features of this case which make this case stand apart from other cases.
22. The Hon'ble Supreme Court relied upon the judgment rendered by it in State of Assam and another vs. Mahendra Kumar Das and others; 1970(1)SCC 709 to hold that the Enquiry Officer cannot be permitted to collect any material from outside sources during the conduct of the enquiry. In the case of K.L. Tripathi vs. State of Bank of India and others; 1984(1) SCC 43, it has been observed by the Hon'ble Supreme Court that exercise of discretionary power involve two elements (i) Objective and (ii) Subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. Suspicion and presumption cannot take the place of proof even in a domestic enquiry and held that the Writ Court is entitled to interfere in the findings of the facts so recorded by the Authority in certain circumstances.
23. Even otherwise from perusal of the record, it is clear that there was no sufficient evidence available with regard to the charge Nos.1 & 3.
24. The Hon'ble Supreme Court in the case of Narinder Mohan Arya (supra) in paragraph 28 has observed thus:
" 28. Yet again in Sher Bahadur vs. Union of India and others, 2000 (7) SCC 142, this Court observed:
" It may be observed that the expression " sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Shri R.A. Vashist, ex. CVI/Northen Railway, New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ext. P-1 referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the appellant, which is a neutral fact. The enquiry officer examined the the charged but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the enquiry officer shows no more than his working ealier to his re-engagement during the period between May 1978 and November, 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is , in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective as such the judgment and order of the High Court and the order of the disciplinary authority, under challenge, cannot be sustained, they are accordingly set aside."
25. From perusal of the aforesaid, it is clear that the findings recorded by the Inquiry Officer was absolutely perverse and against the material on record but shocks the judicial conciseness of this Court.
26. Apart from the same, when the reply was submitted by the petitioner in response to the aforesaid charges, the same was not at all taken into the consideration by the Disciplinary Authority and only after noting down the facts as has been narrated by the Inquiry Officer and without dealing with the reply submitted by the petitioner, the order of punishment has been passed.
27. When the statutory appeal was filed by the petitioner, again the order of punishment was passed and the appeal was rejected by the respondent No.2 by a non-speaking order. It is settled law that the appellate authority should pass an order after recording cogent findings but insofar the present case is concerned, the appeal filed by the petitioner was rejected without giving any reasons and without applying judicial mind. Law in this connection is well settled by the Hon'ble Supreme Court in the case of Apparel Export Promotion Council Vs. A.K. Chopra 1999 (1) SCC 759. It is observed by the Hon'ble Apex Court in aforesaid case that the Appellate Authority was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The relevant paragraphs of the aforesaid case is reproducd hereinbelow:-
"34. In Apparel Export Promotion Council s. A.K. Chopra 1999(1)SCC 759, which has heavily been relied upon by Mr Gupta, this Court stated:
"The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authority." (emphasis supplied)
35. The appellate authority, therefore, could not ignore to exercise the said power.
36. The order of appellate authority demonstrates total non-application of mind. The appellate authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression "consider" is of some significance. In the context of the rules, the appellate authority was required to see as to whether (i) the procedure laid down in the rules was complied with; (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive."
28. In place of remitting the matter back to the authorities to take a fresh decision in the matter, since no material was found by the authorities against the petitioner for the punishment awarded to her, the court is of the opinion that in the special facts and circumstances of the case this is not a fit case to remand the matter to the authorities.
29. In this view of the matter, both the orders, i.e., order dated 15.9.2015 passed by the respondent no.3/Director, Bal Vikas Seva Evam Pushtahar, Lucknow & order dated 17.01.2019 passed by the respondent No.2/Special Secretary, Mahila Evam Bal Vikas Government of U.P. Lucknow are liable to be set aside and the same are hereby set aside. Since the orders have been set aside, the petitioner is entitled for all consequential benefits and the necessary orders be passed in this regard by the respondent No.3 within a period of four weeks from the date of production of certified copy of this order.
30. Insofar as the payment of salary for the period of 01.12.2015 to 04.12.2015 for 4 days and 05.12.2015 to 14.12.2016 of 72 days and for the period of 24.04.2017 to 30.04.2017 of 7 days total 132 days is concerned, it is stated in paragraph 28-A and 28-B of the petition that since the petitioner became seriously ill due to abdominal Hysterectomy, as such the petitioner moved an application for leave on 3.12.2015 to the respondent no. 6/District Programme Officer, Aligarh and the same was allowed. It is further stated that since the petitioner was admitted in AIIMS, New Delhi on 5.12.2015 and operated on 11.12.2015 and remained there till 2.1.2016, thereafter, the petitioner discharged on 3.1.2016 and joined her services on 15.2.2016 and submitted medical fitness certificate before the respondent no. 6 but wholly illegally the salary of the aforesaid period had been withheld.
31. In reply to the aforesaid paragraph, it is stated in paragraph 11 of the counter affidavit that though the application was submitted by the petitioner by giving information that she was admitted in AIIMS on 05.12.2015 and thereafter she joined her services on 15.02.2016. Since the leave was not sanctioned as per Rule 81B(2) of the Leave Ruls, the payment of salary for the aforesaid period was not paid due to unauthorised absence from the office.
32. In response to the paragraph 11 of the counter affidavit, facts as has been mentioned in paragraph 28 of the petition has been reiterated in paragraph 10 of the rejoinder affidavit i.e., the application for leave for the aforesaid period was duly submitted by her.
33. In this view of the matter, the respondents are directed to consider the grievance of the petitioner for payment of salary for the aforesaid period afresh after taking into consideration of the application submitted by the petitioner for leave/medical leave. In case, it is found that such an application was submitted by the petitioner, the necessary orders regarding payment of salary in favour of the petitioner be made within a period of six weeks from the date of production of certified copy of this order.
34. With the aforesaid observations, the writ petition is allowed.
Order Date :- 31.05.2024
Swati/saqlain
