Rajendra Kumar Jain vs State Of U.P.Thru Secy. Irrigation ...
2025 Latest Caselaw 4287 ALL

Allahabad High Court

Rajendra Kumar Jain vs State Of U.P.Thru Secy. Irrigation ... on 7 August, 2025

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R
 
Neutral Citation No. - 2025:AHC-LKO:46278
 
Court No. - 8
 

 
Case :- WRIT - A No. - 5314 of 2002
 

 
Petitioner :- Rajendra Kumar Jain
 
Respondent :- State Of U.P.Thru Secy. Irrigation Deptt. Lucknow And Another
 
Counsel for Petitioner :- Alka Verma,Shivam Tiwari,Tanay Hazari,Vijay Kumar Azad
 
Counsel for Respondent :- C.S.C.,Prashant Singh Atal
 

 
connected with 
 

 
Case :- WRIT - A No. - 2007437 of 1992
 

 
Petitioner :- Rajendra Kumar Jain
 
Respondent :- State Of U.P.Through Secretary Irrigation And Another
 
Counsel for Petitioner :- Hemendra Pratap,Alka Verma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.
 

1. Heard Ms. Alka Verma, assisted by Mr. Tanay Hazari, learned counsel for petitioner and Mr. Sandeep Sharma, learned State counsel for opposite parties.

2. Writ Petition No.7437 (S/S) of 1992 has been filed challenging the punishment order dated 29.09.1992 whereby punishment of removal from service has been inflicted upon petitioner.

3. Writ-A No. 5314 of 2002 has been filed with regard to consequential benefits sought in case the petition of 1992 succeeds.

4. It has been submitted that earlier while in service, petitioner was issued a charge sheet dated 27.01.1976 thereby instituting the disciplinary proceedings against him whereafter an inquiry report was submitted holding petitioner guilty of charges levelled against him. On the basis of inquiry report, punishment order dated 02.12.1980 was passed against petitioner dismissing him from service. The said order was thereafter challenged by petitioner before the State Public Services Tribunal in Claim Petition No.173/F/iv of 1981.  The said claim petition was allowed by means of judgment and order dated 29.10.1983 primarily on the ground that punishment order had been passed without jurisdiction. Therefore, the matter was remanded for passing of orders afresh on the aspect of punishment while upholding the inquiry proceedings.  The said order was thereafter challenged before this Court by the State Government in Writ Petition No.1524 of (S/S) 1984 in which although initially an interim order was passed but was subsequently vacated and in pursuance of which petitioner was allowed to join duties w.e.f. 26.05.1990.  The judgment and order passed by Tribunal was also assailed by petitioner in Writ Petition No.2581 of (S/S)1994.

5. Supplementary affidavit filed today on behalf of petitioner, which is taken on record, brings on record the fact that both the aforesaid petitions were thereafter dismissed as infructuous in view of passing of subsequent order which is impugned in the present petition.

6. It has been submitted that the impugned order has been passed without complying with directions issued by the Tribunal inasmuch as no fresh show cause notice was ever served upon petitioner prior to passing the impugned order of removal, which was mandatory in terms of Rule 55 of Civil Services (Classification, Control and Appeal), Rules 1930 ,which were applicable at that time and which specifically provided that no order of punishment would be passed by the disciplinary authority until and unless an opportunity of hearing was provided to the delinquent employee.  It is submitted that during pendency of petition, petitioner passed away and has been substituted by his legal heirs.

7. Learned counsel for petitioner submits that since the said procedure has not been followed, the impugned order therefore is rendered vitiated.  She has placed reliance on judgment rendered by Hon'ble Supreme Court in the case of E.C.I.L. vs B Karunakar (1993) 4 SCC 727.

8. Learned State counsel has refuted submissions advanced by learned counsel for petitioner with the submission that once the Tribunal has clearly upheld findings recorded in the inquiry proceedings, the only aspect required was to consider inflicting punishment upon petitioner and has adverted to paragraph 28 of counter affidavit to submit that order of removal has been passed on the basis of entire material on record and inquiry report submitted by the Inquiry Officer. It is further submitted that there is no specific ground taken by petitioner in pleadings that he was not served with any show cause notice or was not provided any opportunity of hearing prior to passing of order of removal. It is further submitted that petitioner has also been unable to indicate any prejudice caused to him even if it is assumed, though not admitted, that he was not afforded any opportunity of hearing prior to passing of impugned order.

9. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident from a perusal of judgment and order passed by the Tribunal, particularly in paragraphs 6 and 7 thereof that the Tribunal did not find any lacuna in the inquiry proceedings and the punishment order challenged therein was set-aside only on the ground of lack of jurisdiction granting liberty to the opposite parties to commence from the stage after submission of inquiry report.  The Tribunal has also in paragraph 7 thereof clearly held that it is in accordance with settled law that prior to passing of final orders on the basis of inquiry report, a show cause notice is required to be issued to the delinquent employee and for providing a personal hearing prior to passing of such order.

10. It is also evident and admitted between the parties that judgment and order passed by Tribunal was thereafter assailed by the petitioner as well as by the State in writ petitions which were subsequently dismissed as having been rendered infructuous due to passing of present impugned order. The said aspect clearly indicates that findings recorded by the Tribunal pertaining to inquiry proceedings therefore attained finality since no lacuna in the inquiry proceedings was found by the Tribunal.

11. In such circumstances, the only question surviving for examination is the aspect whether petitioner was issued any show cause notice or provided any opportunity of personal hearing prior to passing of impugned order of removal. The aspect of prejudice being caused also requires examination.

12. Although there is no specific ground taken by petitioner in memorandum of petition with regard to show cause notice or opportunity of hearing not being provided to him prior to passing of punishment order but foundation for same has been made in ground nos.1 and 9 thereof specifically indicating therein that the impugned order is in violation of Rule 55 of CCA Rules as well as Article 311 of Constitution of India.

13. In such circumstances, this Court is of the considered opinion that since foundation for such a ground has already been raised in writ petition, the same can be adjudicated upon.

14. With regard to the aspect of issuance of a show cause notice prior to passing any order inflicting punishment upon the delinquent employee, the aspect has clearly been delineated by Hon'ble Supreme Court in the case of E.C.I.L (supra) in following manner:-

"(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached.

While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty- second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges.

* * * Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311(2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry.

Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."

15. For examination and applicability of aforesaid judgment in the present facts and circumstances of the case, particularly paragraph 28 of the counter affidavit, it is evident that neither any show cause notice was issued nor any opportunity of personal hearing was provided to petitioner prior to passing of the impugned order.

16. The aspect therefore which assumes importance is prejudice which is caused to the petitioner.

17. Hon'ble Supreme Court in the case E.C.I.L (supra) has clearly held that the disciplinary proceedings are in two stages with the first stage ending with submission of inquiry report and second stage when the disciplinary authority decides to impose penalty on the basis of its conclusion. It has also been held that the first right is the right conferred upon the delinquent employee to prove innocence and the second right is to plead for either no penalty or lesser penalty although conclusion regarding guilt is accepted.

18. The aspect which can be therefore culled out from the aforesaid judgment is that even after submission of inquiry report, at the first stage, it is the right of the delinquent employee to raise objections with regard to the manner of conduct of an inquiry and the findings recorded by the Inquiry Officer. It is only once such a grievance is addressed by the disciplinary authority that it can thereafter record a finding either agreeing with the inquiry report or disagreeing with the findings recorded by the Inquiry Officer. It is in case the disciplinary authority agrees with the finding recorded by the Inquiry Officer, the aspect of issuance of notice for purposes of imposition of punishment is required to be followed.

19. Thus, it is evident as held in aforesaid case of E.C.I.L (supra) that providing a copy of the inquiry report to the delinquent employee is mandatory. It can be seen that the aspect as to why supply of the inquiry report to the delinquent employee is mandatory is primarily for such a delinquent employee to raise objections either to conduct of inquiry proceedings or to raise objections to findings recorded by the Inquiry Officer.

20. This very purpose would stand frustrated in case a copy of the inquiry report is not supplied to delinquent employee. Therefore, in the considered opinion of this Court, after supplying of inquiry report, not only as per Rule 55 of CCA Rules but also in terms of Article 311 of Constitution of India, an objection is mandatorily required to be called for by the disciplinary authority from the delinquent employee not only for the purposes of imposition of punishment but also for providing an opportunity of hearing to the delinquent employee to prove his innocence before the disciplinary authority.

21. From the purpose of issuance of show cause notice subsequent to submission of the inquiry report, it is evident that the said procedure forms a substantive part of the entire disciplinary proceedings and is not merely a formality and therefore is required to be strictly adhered to.

22. In view of aforesaid discussions, it is thus evident that reason for issuance of notice prior to imposition of punishment upon the delinquent employee is not only for the purposes of punishment but also to give an opportunity to the delinquent employee to prove his innocence raising grievance against the inquiry proceedings as well as the findings recorded by the Inquiry Officer.  It is probably for this reason that Rule 55 of CCA Rules clearly stipulates in a mandatory notion that notice is required to be issued to the delinquent employee prior to imposition of punishment.

23. In the present facts and circumstances of the case, not only upon examination of impugned punishment order but also as per paragraph 28 of counter affidavit, it is evident that neither any notice was served upon petitioner nor any personal opportunity of hearing was provided to him prior to passing of impugned order. This also assumes significance in view of judgment rendered by the Tribunal specifically indicating that prior to passing of punishment order, the opposite parties were required to issue show cause notice to the delinquent employee.

24. In view of the fact that such mandatory procedure has not been followed by the opposite parties, renders the impugned order dated 29.09.1992 vitiated and is consequently quashed by issuing a writ in the nature of certiorai.

25. Although learned counsel for petitioner has submitted that once the impugned punishment order has been quashed, he would be entitled for backwages but this Court is disinclined to grant such relief, particularly in view of the fact that the inquiry report has specifically been upheld against the petitioner by the Tribunal with such findings having attained finality and it is only on a technical aspect that this petition is being allowed. Since the findings recorded by the Inquiry Officer are not being interfered with, this Court does not find any occasion to grant backwages.

26. Ordinarily, in such circumstances, the dispute is required to be remitted for consideration afresh but considering the fact that charge sheet pertains to the year 1976 and the petitioner in the meantime has also passed away, this Court does not find any occasion to remit the matter for consideration afresh.

27. Writ-A No.5314 of 2002 has been filed seeking a direction to opposite parties to treat petitioner in continued service and pay all the service benefits including selection grade and other revised pay scales as revised from time to time.

28. In view of the fact that impugned order of removal of petitioner stands quashed, the consequential benefits as sought for in subsequent Writ-A No.5314 of 2002 are also allowed to the petitioner.

29. Resultantly, both the petitions succeed and are allowed. Further writ in the nature of mandamus is issued commanding the opposite parties to treat petitioner in regular service throughout with consequential service benefits financially being provided to him on a notional basis.

Order Date :- 7.8.2025

Renu/-