Allahabad High Court
Puran Kumar vs State Of U.P. And 3 Others on 31 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:100635
RESERVED
A.F.R.
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
***
WRIT - A NO. 17113 OF 2023
Puran Kumar ....Petitioner
Versus
State of Uttar Pradesh and others ....Respondents
Appearance :-
For Petitioner : Mr. Sanjeev Singh, Advocate
Mr. Pramod Kumar Srivastava, Advocate
For Respondents : Mr. Mahesh Chandra Chaturvedi, Additional Advocate General with
Mr. Suresh Singh, Additional Chief Standing Counsel for respondents Nos. 1 and 2
Mr. Suresh C. Dwivedi, Advocate for respondents Nos. 3 and 4
HON'BLE J.J. MUNIR, J.
This writ petition is directed against the order dated 08.08.2023 passed by the Additional Chief Secretary, Department of Housing and Urban Planning, Government of U.P., Lucknow, punishing the petitioner with the withholding of two increments with cumulative effect and awarding a censure after disciplinary proceedings.
2. The facts giving rise to this writ petition are these :
The petitioner was appointed an Assistant Engineer by the respondents vide office order dated 25.08.1987 pursuant to the recommendations of a Selection Committee, along with thirteen others. He was regularised vide Office Order dated 20.11.2001, along with ten others. The State Government is the petitioner's appointing and disciplinary authority. The petitioner had worked as an Assistant Engineer in various development authorities and his services are governed by the Uttar Pradesh Development Authorities Centralised Service Rules, 19851. The eligibility for promotion from the post of Executive Engineer to Superintending Engineer is by way of 100% promotion. Thus, the cadre of Executive Engineers in the service governed by the Rules constitutes the feeding cadre for the cadre of the Superintending Engineers. The promotion to the post of a Superintending Engineer is based upon seniority subject to rejection of unfit with satisfactory service of a total period of 12 years, out of which, 5 years have to be put in on the post of an Executive Engineer. The petitioner was promoted from the post of an Assistant Engineer to that of an Executive Engineer vide Order No. 479 dated 12.05.2015 and posted as such since July, 2017 with the Agra Development Authority2. By an office order dated 16.01.2020, disciplinary proceedings were drawn against the petitioner under Rule 33 of the Rules of 1985 read with Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 19993, charging him prima facie of misconduct. By the aforesaid office order, the Commissioner, Agra Division, Agra was appointed the Inquiry Officer.
3. A charge-sheet dated 03.02.2020 was served by the Inquiry Officer, carrying four articles of charges and to prove the same, no witnesses were cited. Documents alone were relied upon. The petitioner submitted a reply to the charge-sheet. The reply was dated 26.12.2020. The petitioner denied the charges with details of his defence regarding all imputations carried in the charges. It was a detailed defence.
4. In his reply, the petitioner has segregated Charge No. 1 into Charges Nos. 1A to 1D for the sake of convenience and urged that he is not responsible, even remotely, for any dereliction and indifference towards his duty. It was emphasized that he is the supervising authority and for the work allegedly not completed, the responsibility rests, in the first instance, with subordinates like the Assistant Engineer and the Junior Engineer, who had not even been called upon to explain. The petitioner also pleaded in denial of Charges Nos. 2 and 3, that were again segregated into Charges Nos. 2A to 2D to 3A to 3D for felicity of defence.
5. In paragraph No. 14 of the writ petition, it is averred that no date, time and place was fixed for holding the inquiry by the Commissioner and in between, several incumbents changed in the Office of the Commissioner. This led to an interruption of the inquiry. It is also averred that no witness on behalf of the respondents was examined in support of the charges, nor was the petitioner called upon to examine himself in defence. The inquiry concluded, as it is alleged, in violation of the Rules of 1999 and the Inquiry Report dated 12.04.2021 was submitted by the Inquiry Officer to the State Government, who, on its basis, issued a show-cause notice dated 07.10.2021, requiring the petitioner to submit his reply. The Inquiry Officer found Charges Nos. 1 and 4 not proved whereas Charge No. 2 was found proved. Charge No. 3 was found partly proved. The petitioner submitted his reply dated 03.11.2021 to the State Government, which consisted of, again, substantial comments, running into 12 pages, together with 32 annexures.
6. It is averred in paragraph No. 17 that in his reply to the show-cause or the second show-cause, as it is called, the petitioner raised a plea that no oral inquiry was held in the sense that no witness was examined by the Establishment whom the petitioner could cross-examine before the Inquiry Officer. The Additional Chief Secretary, Department of Housing and Urban Planning, Government of U.P., Lucknow, who acted for the State Government under the Rules of Business, taking cognizance of the petitioner's plea that no oral inquiry was held, issued a memo dated 31.12.2021 to the petitioner, asking him to appear in the Secretary's office on 06.01.2022 at 04:00 p.m. for personal/oral hearing.
7. It is averred in paragraph No. 19 that being satisfied that no personal hearing and oral inquiry was held by the Commissioner, and in its absence, the inquiry report dated 12.04.2021 was bad, the first respondent issued a letter to the Vice Chairman of the Development Authority, directing that the principles of natural justice ought to be followed and the petitioner allowed to cross-examine the Assistant Engineer as well as the Junior Engineer by getting their statements recorded, after which, the inquiry report be submitted by the Vice Chairman to the Secretary. The petitioner asserts that the Commissioner was not directed to undertake a fresh inquiry, who had held the inquiry earlier, but now, it was entrusted to the Vice Chancellor, pointing out the deficiency in the earlier proceedings.
8. It is the petitioner's case at this stage that there being a procedural lapse in the inquiry, the State Government ought not to have switched Inquiry Officers midway and entrusted it to the Vice Chairman for the Commissioner. In compliance with the order of the Secretary, the Vice Chairman held an inquiry into the matter again and after recording the statement of the two junior officers i.e. the Assistant Engineer and the Junior Engineer, submitted his report dated 18.02.2022, exonerating the petitioner of Charges nos. 2 and 3 as well, of which he was earlier found guilty and partly guilty. The Charges Nos. 1 and 4, as it appears, of which he was exonerated, no finding was recorded, treating the earlier report to be subsisting and valid. After submission of the report by the Vice Chairman, no order upon the same was passed. Rather, on the basis of the findings in the inquiry report dated 18.02.2022, explanations were sought from the Assistant Engineer and the Junior Engineer vide memos dated 27.12.2022. The petitioner, apprehending foul play, as his promotion was due to the post of Superintending Engineer, where the DPC was to be held shortly, and there were only two sanctioned posts in the entire cadre of centralized services, raised a grievance in the matter, saying that he would be deprived of his consideration for the post of Superintending Engineer.
9. The Additional Chief Secretary, by the order dated 08.08.2023, proceeded to award the petitioner the major penalty of stoppage of his annual increments, besides the award of a censure. It is the petitioner's case that the impugned order takes note of the show-cause notice dated 07.10.2021 issued to the petitioner along with the inquiry report dated 12.04.2021, to which the petitioner had submitted a show-cause on 03.11.2021 as also the fact that he was afforded a personal hearing on 06.01.2022, but ignored the later development of the direction dated 09.02.2022 to hold a re-inquiry addressed to the Vice-Chairman of the Development Authority and a further inquiry report dated 18.02.2022, which exonerated the petitioner of all charges. No cognizance of this report has at all been taken. The petitioner pleads that the Additional Chief Secretary has erred in ignoring the relevant inquiry report, which was called by himself on the petitioner's plea that the earlier inquiry report's findings where he was found guilty of one charge and partly on the other, was one in violation of the principles of natural justice, which required a re-inquiry to be held. It is also pleaded that this is not a case where the Disciplinary Authority disagreed with the findings of the Inquiry Officer recorded in the later report dated 18.02.2022 submitted by the Chairman of the Development Authority. It is pleaded that if it were so, he would have caused a notice to be served framing issues of disagreement, and after hearing the petitioner, passed appropriate orders.
10. Aggrieved by the impugned order dated 08.08.2023, the instant writ petition has been instituted by the petitioner.
11. A notice of motion was issued on 11.10.2023. A counter affidavit was filed on behalf of respondent No. 1 on 29.11.2023, to which, the petitioner has filed a rejoinder. Another counter affidavit dated 17.10.2023 has been filed on behalf of respondentd Nos. 3 and 4 jointly, and still another, on behalf of respondent No. 2, the Divisional Commissioner. The parties having exchanged affidavits, when the matter came up on 14.12.2023, it was admitted to hearing, which proceeded forthwith to conclusion. Judgment was reserved.
12. Heard Mr. Sanjeev Singh and Mr. Pramod Kumar Srivastava, learned Counsel for the petitioner in support of this petition, Mr. Mahesh Chandra Chaturvedi, learned Additional Advocate General assisted by Mr. Suresh Singh, learned Additional Chief Standing Counsel appearing on behalf of respondents Nos. 1 and 2, and Mr. Suresh C. Dwivedi, learned Counsel appearing on behalf of respondents Nos. 3 and 4, the Vice Chairman and the Secretary of the Development Authority.
13. We have carefully considered the submissions advanced by learned Counsel for the parties.
14. At the hearing, much was made of the issue by Mr. Sanjeev Singh, learned Counsel for the petitioner that the two inquiry reports, the one dated 12.04.2021 submitted by the Commissioner of the Division to the Additional Chief Secretary, and the other dated 18.02.2022 submitted by the Vice Chairman upon the direction of the State Government to record the statements of the Assistant Engineer and the Junior Engineer by the Vice Chairman of the Development Authority, when read together, exonerate the petitioner of all the four charges and, therefore, the Additional Chief Secretary, acting on behalf of the Government, could not punish the petitioner without recording reasons of disagreement with the two inquiry reports and putting the petitioner to notice. We do not think that this is a matter where both the inquiry reports ought to be acted upon. In fact, the Additional Chief Secretary has taken cognizance of the inquiry report dated 12.04.2021 submitted by the Commissioner of the Division, who was initially appointed the Inquiry Officer, and not the later one submitted by the Chairman of the Development Authority dated 18.02.2022, in compliance with the Secretary's direction dated 09.02.2022 to record the statement of the Assistant Engineer and the Executive Engineer.
15. We think that the direction of the Additional Chief Secretary carried in his memo dated 09.02.2022 addressed to the Vice Chairman of the Development Authority, upon the petitioner's answer to the show-cause notice issued to him along with a copy of the inquiry report submitted by the Inquiry Officer, the Commissioner of the Division is entirely ill-founded. It is ill-founded for two reasons. One, that if any further inquiry had to be directed, because of a fundamental flaw in procedure, the matter had to be sent back to the Commissioner, who was already the appointed Inquiry Officer and had submitted a report in the matter, on which the show-cause was issued; and the other is that the directions given to remove the anomaly by the Additional Chief Secretary to the Vice Chairman, even if these were given to the Commissioner, are entirely inappropriate. The material part of the order dated 09.02.2022 passed by the State Government, that is to say, the Additional Chief Secretary and notified on his behalf by the Deputy Secretary, reads in its material part as follows :
2- इस सम्बन्ध में श्री पूरन कुमार, अधिशासी अभियंता (वि०यॉ०), आगरा विकास प्राधिकरण, आगरा के पत्र दिनांक 06.01.2022 की छायाप्रति संलग्न कर प्रेषित करते हुए 2- मुझे यह कहने का निदेश हुआ है कि कृपया नैसर्गिक न्याय के दृष्टिगत निम्नवत सूचना शीर्ष प्राथमिकता के आधार पर शासन को उपलब्ध करान्याय व दृष्टिगत निम्नवत सूचना कष्ट करें :-
(1) प्रकरण अपचारी अभियन्ता जिन अवर अभियन्ता, सहायक अभियन्ता आदि का बयान दर्ज कराना चाहता है, उनका बयान उक्त पत्र दिनांक 06.01.2022 में किये गये अनुरोधानुसार दर्ज कराकर उपलब्ध करायें।
(2) प्रकरण में अवर अभियन्ता व सहायक अभियन्ता का उत्तरदायित्व निर्धारित, किये 2 बिना सीधे अधिशासी अभियन्ता (2) को आरोपित करने के संबंध में उक्त पत्र दिनांक 06.01.2022 में अपचारी अभियन्ता द्वारा की गयी आपत्ति के दृष्टिगत स्थिति स्पष्ट कर उपलब्ध करायें।
16. Clearly, as already observed, the inquiry in this case had been concluded by the Commissioner of the Division acting as the Inquiry Officer appointed by the State Government. If the Additional Chief Secretary thought that statement of the Assistant Engineer or the Junior Engineer was required to be recorded during this inquiry, the jurisdiction would be that of the Inquiry Officer, who was the Divisional Commissioner, and not the Chairman of the Development Authority. The other direction in the order dated 09.02.2022 was that the Development Authority may clarify how in the absence of the Junior Engineer and the Assistant Engineer's responsibility being fixed, the Executive Engineer could be charged, as objected to by the Executive Engineer, the charge-sheeted employee, vide his memo dated 06.01.2022. Now, this was not a matter to be clarified, at the stage where proceedings stood, by the Chairman of the Development Authority. The Commissioner of the Division had already submitted his inquiry report and the State Government was the Disciplinary Authority. The Additional Chief Secretary was acting on behalf of the State Government to decide the disciplinary matter. If he thought, on the basis of the inquiry report submitted, that proceedings against the petitioner could not be taken without charging the Assistant Engineer and the Junior Engineer along with the Executive Engineer (the petitioner) or it was the Junior Engineer and the Assistant Engineer alone, who were to be charged, he could have issued appropriate orders, directing a fresh charge-sheet to be issued to the Assistant Engineer and the Junior Engineer as well, and the matter ordered to be determined afresh by the Inquiry Officer against the petitioner as well as the Assistant Engineer and the Junior Engineer, or else, the Additional Chief Secretary could have held that the petitioner was not liable to be proceeded with against, exonerated him and ordered the Junior Engineer and the Assistant Engineer to be suitably charge-sheeted and proceeded with.
17. The direction issued by the Additional Chief Secretary to the Chairman of the Development Authority to record the statements of the Assistant Engineer and the Junior Engineer was a course of action that is utterly illegal. The Chairman of the Development Authority was not the Inquiry Officer and he could not, in the circumstances, have just recorded the statements of the two officers and and sent in his own report to the State Government. It is for this reason perhaps that the Additional Chief Secretary has not looked into or taken cognizance of the Vice Chairman's report dated 18.02.2022, exonerating the petitioner of Charges Nos. 3 and 4. This does not do any credit to the Additional Chief Secretary, because it is he who is responsible for causing this anomalous report by the Vice Chairman to figure on the records.
18. So far as the validity of the impugned order passed by the State Government against the petitioner is concerned, we do not think that it can be sustained. The reason is that in answer to the assertion in paragraph No. 14 of the writ petition that no date, time and place was fixed for oral inquiry by the Commissioner and also that the petitioner could not cross-examine any witness of the Establishment, despite his request, apparently because none was produced by the Establishment, all that is said in paragraph No. 16 of the counter affidavit filed on behalf of the Commissioner is as follows :
16. That the averments contained in Paragraph No. 14 of the Writ Petition are misconceived and misleading. In reply thereto, it is submitted that personal/oral hearing of the Petitioner was held on 06.01.2022 before the Chief Secretary, Avas Evam Vikas Shakhri Niyojan Department, Lucknow.
19. One is left to wonder what a personal hearing of the petitioner before the Additional Chief Secretary has to do with the obligation of the Establishment to produce witnesses and lead other evidence before the Inquiry Officer to prove the charges. It is too well settled for a salutary principle, which is also the mandate of Rule 7 of the Rules of 1999, that in any disciplinary matter involving the possible imposition of a major penalty, it is imperative for the Establishment to prove the charges by leading before the Inquiry Officer evidence, both documentary and oral. Hearing the petitioner personally, either by the Inquiry Officer or by the Disciplinary Authority, would not, at all, satisfy the fundamental requirements of a fair of procedure, where the Establishment have to prove charges, starting from scratch, before the Inquiry Officer, by leading evidence, both documentary and oral, that is to say, by examining witnesses.
20. A perusal of the inquiry report dated 12.04.2021 submitted by the Commissioner, Agra Division, Agra shows that the Officer has thrown the procedure to hold a major penalty to the winds, or he does not understand the elementaries about it. He has held the charges proved in a disciplinary matter involving the possible imposition of a major penalty by going through the charge-sheet and the petitioner's reply and papers annexed to the charge-sheet and reply to it. He has never convened himself as an Inquiry Tribunal, which must be done by virtue of Rule 7 of the Rules of 1999 and also by salutary principles to hold such an inquiry. The mandate of Rule 7 as well as the requirement of salutary procedure in all matters involving the possible imposition of a major penalty is that the Inquiry Officer must distance himself from the Establishment and sit as an impartial arbiter. He must assume the charges to be not at all proved to begin with, and just no more than a set of allegations. He must require the Establishment to come forth and produce evidence through a Presenting Officer, both documentary and oral, to prove the charges. It is also imperative that in cases of possible major penalty, witnesses ought to be examined. After the Presenting Officer leads evidence, introducing documents and proving them through appropriate witnesses, which, in certain cases, can be the Presenting Officer himself, the witnesses for the Establishment have to be offered for cross-examination to the charge-sheeted employee. It is after the evidence of the Establishment is over that the charge-sheeted employee has to be given opportunity to lead his evidence, which, again, can be both documentary and oral. If the charge-sheeted employee leads oral evidence, that is to say, produces witnesses, his witnesses can be cross-examined by the Establishment. These propositions are well settled by a catena of decisions by the Supreme Court and this Court, a reference to some of which may suffice. In this connection, reference may be made to the holding of the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha4, Roop Singh Negi v. Punjab National Bank and others5, State of Uttaranchal and others v. Kharak Singh6 and the Bench decisions of this Court in State of U.P. and another v. Kishori Lal and another7, Smt. Karuna Jaiswal v. State of U.P.8 and State of U.P. v. Aditya Prasad Srivastava and another9.
21. Now, the inquiry report, that has been submitted in this case by the Commissioner is based upon, as already remarked, the Inquiry Officer gleaning through idle papers annexed to the charge-sheet and the petitioner's reply. The papers annexed to the charge-sheet and the petitioner's reply could not have been regarded as evidence. These would turn into evidence once they were properly introduced by a Presenting Officer before the Inquiry Officer and proved by witnesses or otherwise, indicating their relevance to each charge. The Inquiry Officer cannot identify himself with the Establishment and assume the charges to be proof of themselves. This is one trap that every Administrative Officer holding a departmental inquiry, at whatever position or rank he might be, invariably falls into.
22. We are constrained to say that after a string of decisions that we have noticed hereinabove, the repeat lapse by Administrative Officers serving as Inquiry Officers in major penalty matters, writing inquiry reports in breach of Rule 7 of the Rules of 1999, and otherwise also, the salutary principle regarding proof of the charges by the Establishment in a formal inquiry, producing both documentary evidence and witnesses, ought not to happen. The Additional Chief Secretary, in passing the order of punishment, has committed the same mistake as the Commissioner, apparently because both officers seem to think small of the law. Both the Commissioner and the Additional Chief Secretary must understand that once we have laid down the law, about how a particular matter is to be dealt with and the same also has imprimatur of the Supreme Court, it has to be followed and there cannot be any breach. If this breach is not remedied for the future by a suitable understanding and adherence to the law that we have declared, the immense wastage of public resource in consequence of the result of inquiries being nullified for a flawed procedure will have to be remedied by imposition of exemplary costs recoverable from the Inquiry Officers and Disciplinary Authorities; not the public exchequer.
23. In the result, this petition succeeds and stands allowed. The impugned order dated 08.08.2023 passed by the Additional Chief Secretary, Department of Housing and Urban Planning, Government of U.P., Lucknow is hereby quashed. The Disciplinary Authority will be at liberty to proceed with the inquiry afresh from the stage of the charge-sheet, if he so elects, bearing in mind the remarks of this Court and guidance in this judgment. In case, the Disciplinary Authority elects to pursue fresh proceedings, he will not impose a punishment higher than that awarded by the order impugned and since quashed by this judgment.
24. There shall be no order is to costs.
25. The Registrar (Compliance) is directed to communicate a copy of this order to the Additional Chief Secretary, Department of Housing and Urban Planning, Government of U.P., Lucknow. In addition, a copy of this order shall also be communicated to Nitin Ramesh Gokarn, the Additional Chief Secretary, Department of Housing and Urban Planning, Government of U.P., Lucknow, wherever he might be posted, if he is not holding charge in that department, and Amit Gupta, the then Commissioner, Agra Division, Agra, wherever he might be posted, by the Registrar (Compliance) through the Additional Chief Secretary (Personnel), Government of U.P., Lucknow and a report regarding service shall be submitted by the Additional Chief Secretary (Personnel), Government of U.P., Lucknow to the learned Registrar General of this Court, which shall be placed on record.
Allahabad
May 31, 2024
I. Batabyal / Anoop
(J.J. MUNIR, J.)
