Allahabad High Court
Shashi Bhushan Singh vs State Of U.P. Thru. Addl. Chief Secy. ... on 7 January, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:1273
Court No. - 6
Case :- WRIT - A No. - 11315 of 2024
Petitioner :- Shashi Bhushan Singh
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of State Tax U.P. Lko.
Counsel for Petitioner :- Shireesh Kumar,Utkarsh Kumar
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Shireesh Kumar, learned counsel for the petitioner as well as learned Standing Counsel for the respondents. With the consent of learned counsel for the parties the writ petition is heard and decided at admission stage itself.
2. By means of present writ petition the petitioner has challenged order of punishment dated 06.10.2024, passed by the Principal Secretary, Government of U.P. thereby inflicting punishment of Censure entry and withholding one increment of the petitioner permanently.
3. It has been submitted by learned counsel for the petitioner that petitioner is currently posted as Additional Commissioner (Grade-II), Lucknow, but in the year 2008-2009, he was posted as Assistant Commissioner, in district Ghaziabad.
4. It has been next submitted by learned counsel for the petitioner that when petitioner was posted at Ghaziabad, a charge sheet was issued to the petitioner on 23.04.2021, alleging that at the time when the petitioner was working as Assistant Commissioner at Ghaziabad, he had not scrutinized certain returns which were filed during July, 2006 till March, 2009, due to which the department has suffered financial loss and specially it was stated that the returns pertain to M/s Rakesh Steel Industries Pvt. Ltd. and they were not scrutinized by the petitioner.
5. It is further submitted by learned counsel for the petitioner that petitioner submitted reply to the aforesaid charge sheet on 16.03.2022, wherein he has specifically averred that the charges were extremely stale pertaining to 14 years back and on the basis of such stale charges, the inquiry cannot be conducted as the documents for the aforesaid period would not be readily available and hence the defense of the petitioner would be severely prejudiced.
6. Second ground raised by the petitioner was that at the relevant point of time as per circular which was invoked on 27.05.2008, it was provided that all amounts where returns were for more than Rs.50,000/- would be scrutinized by the Deputy Commissioner and the petitioner who was holding the post of Assistant Commissioner at that period of time, he cannot be held guilty for the dereliction in duty on the basis of aforesaid charges.
7. The Inquiry Officer after considering the reply of the petitioner, conducted inquiry and concluded the same on 26.09.2022. In the said inquiry he accepted the reply submitted by the petitioner and on both the charges returned his finding that charges are not proved, but despite recording finding that charges have not been proved, while concluding the inquiry he differed from his own finding and stated that the charges are proved and forwarded the inquiry report to the Disciplinary Authority who in the impugned order has reiterated the findings recorded by the inquiry officer and against both the charges it has been mentioned that charges are not proved, but the disciplinary authority has proceeded further and disagreed with the findings recorded by the inquiry officer and imposed punishment on the petitioner by means of impugned order dated 06.10.2024.
8. It is submitted by learned counsel for the petitioner that apart from the inquiry suffering from several infirmities which vitiate the inquiry, it is submitted that in case disciplinary authority disagreed with the findings of inquiry officer then, he was under mandate to give notice to the petitioner and follow the provisions of Rule 9(2) of the Rules, 1999, before imposing punishment upon the petitioner. The petitioner has followed the statutory provisions and therefore the inquiry proceedings deserve to be set aside at this stage.
9. Learned Standing Counsel on the other hand has received instructions and has opposed the writ petition, but could not dispute the aforesaid facts.
10. Heard learned counsel for the parties and perused the record.
11. The facts in the present case are not disputed, hence there is no need for their repetition.
12. The petitioner has assailed the punishment order dated 06.10.2024, issued by the Principal Secretary, Government of Uttar Pradesh, whereby a censure entry was recorded, and one increment was permanently withheld. The charges, pertaining to alleged dereliction of duty between 2006 and 2009 while the petitioner was posted as Assistant Commissioner, Ghaziabad, have been challenged on the grounds of being stale, procedurally irregular, and beyond the petitioner's responsibilities as per the provisions of a circular dated 27.05.2008. The Inquiry Officer initially concluded that the charges were not substantiated; however, the findings were subsequently contradicted. The Disciplinary Authority, disagreeing with the Inquiry Officer's initial conclusions, imposed the impugned punishment without issuing a notice of disagreement, thereby contravening Rule 9(2) of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999.
13. Learned counsel for the petitioner in support of his submissions has relied upon certain case laws, which are discussed herein below.
14. Hon'ble Supreme Court in the case of Anant R. Kulkarni v. Y.P. Education Society, (2013) 6 SCC 515, has held as under :-
"29. Therefore the Tribunal, as well as the learned Single Judge have both made it clear that the inquiry had not been conducted in accordance with the provisions of Rules 36 and 37 of the 1981 Rules. However, they themselves have dealt with each and every charge, and have recorded their findings on merit. The present case is certainly not one where a punishment has been set aside only on a technical ground, that the inquiry stood vitiated for want of a particular requirement. Thus, in the light of such a fact situation, the Division Bench has committed an error by giving liberty to the respondents to hold a fresh enquiry.
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31. The conclusion reached by the Division Bench that the Tribunal and the learned Single Judge had found that there was a defect in the manner in which the enquiry was held, and therefore there was no question of it recording a finding on merit to the effect that the charges levelled against the appellant were not proved, is also not sustainable in law. It is always open for the court in such a case, to examine the case on merits as well, and in case the court comes to the conclusion that there was in fact, no substance in the allegations, it may not permit the employer to hold a fresh enquiry. Such a course may be necessary to save the employee from harassment and humiliation.
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36. In the facts and circumstances of the case, as the Tribunal as well as the learned Single Judge have examined all the charges on merit and also found that the enquiry has not been conducted as per the 1981 Rules, it was not the cause of the Management Committee which had been prejudiced, rather it had been the other way around. In such a fact situation, it was not necessary for the Division Bench to permit the respondents to hold a fresh enquiry on the said charges and that too, after more than a decade of the retirement of the appellant."
15. In the case of P.V. Mahadevan v. Managing Director, T.N. Housing Board, (2005) 6 SCC 636, the Apex Court has observed hereinbelow :
"8. Our attention was also drawn to the counter-affidavit filed by the respondent Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter-affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-95.
9. Sections 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act 17 of 1961) read thus:
"118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year.
119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf."
10. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in 1994-95. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17 of 1961. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr R. Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay."
16. The Apex Court in the case of State of M.P. v. Bani Singh, 1990 Supp SCC 738, has made following observations :
"4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."
17. In the case of Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC 739, the Apex Court has made following observations :
"29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the disciplinary authority to disagree with the findings of the enquiring authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the "tentative" reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of "not guilty" already recorded by the enquiring authority was not liable to be interfered with.
31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution.
32. Applying the above principles to the facts of this case, it would be noticed that in the instant case the District Judge (enquiry officer) had recorded the findings that the charges were not proved. These findings were submitted to the Disciplinary Committee which disagreed with those findings and issued a notice to the appellant requiring him to show cause why he should not be dismissed from service. It is true that along with the show-cause notice, the reasons on the basis of which the Disciplinary Committee had disagreed with the findings of the District Judge were communicated to the appellant but the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. The Disciplinary Committee, in fact, had acted in accordance with the statutory provisions contained in Rule 9(4)(i)(a) and (b). He was called upon to show cause against the proposed punishment of dismissal as will be evident from the minutes of the Disciplinary Committee dated 21-6-1993 which provide as under:
"Decision
:
Discussed.
For the reasons recorded in Annexure 'A' hereto, the Committee disagrees with the finding of the enquiry officer and finds that the charges levelled against the delinquent judicial officer have been proved.
It was, therefore, tentatively decided to impose upon the judicial officer penalty of dismissal from service.
Let notice, therefore, issue to the delinquent judicial officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 should not be imposed upon him.
Show-cause notice will be accompanied by a copy of the report of the enquiring authority and the reasons recorded by this Committee."
These minutes were recorded after the Disciplinary Committee had considered the enquiry report and differed with the findings and recorded its final opinion in para 10 of its reasons as under:
"10. The Disciplinary Committee is of the opinion that the findings recorded by the enquiry officer on both the charges cannot be sustained. The Committee, after going through the oral and documentary evidence on record, is of the opinion that both the charges against the delinquent are proved. The delinquent is a judicial officer who has failed to maintain the absolute integrity in discharge of his judicial duties."
33. Pursuant to the above minutes, a notice dated 24-6-1993 was issued to the appellant which after reproducing the minutes of the meeting of the Disciplinary Committee proceeded to say as under:
"As required by the Disciplinary Committee I issue this notice calling upon you to show cause why the penalty of dismissal from service should not be imposed upon you in view of the charges held established. Time of 15 days, from the date of receipt of this notice, is given to you for submitting your reply, failing which it shall be presumed that you do not wish to make any representation regarding the penalty.
A copy of the report of the enquiry officer dated 21-12-1992 and a copy of Annexure 'A' are enclosed herewith for ready reference.
Yours faithfully,
sd/-
Registrar"
34. Along with the show-cause notice, a copy of the findings recorded by the enquiry officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.
35. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to the findings on the two charges framed against him, the principles of natural justice, as laid down by a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra [(1998) 7 SCC 84] referred to above, were violated."
18. In Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84, the Apex Court has observed as follows :
"17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case [AIR 1963 SC 1612 : (1964) 2 SCR 1 : (1963) 1 LLJ 295] quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."
19. In the case of K.P. Gupta v. University of Delhi, (2015) 16 SCC 525, the Supreme Court has made following observations :
"12. The matter should have been ended at that stage and, in our considered view, the disciplinary authority ought to have taken a course of action different from what was adopted. This is because the findings of the enquiry are wholly unrelated to the charges levelled. Yet, the disciplinary authority, holding all the charges levelled to be proved, imposed the punishment of removal from service with which the learned Single Judge [K.P. Gupta v. Vice-Chancellor, Delhi University, 2003 SCC OnLine Del 425 : (2003) 104 DLT 767] of the High Court refused to interfere. In appeal, the Division Bench of the High Court curiously found the enquiry held against the appellant to be vitiated for various reasons as set out in the impugned judgment [K.P. Gupta v. University of Delhi, 2013 SCC OnLine Del 4811 : (2013) 205 DLT 1] . The Division Bench, therefore, held Charges I and III levelled against the appellant were not proved. Yet, acting on the basis of the defence that the appellant had taken in the disciplinary enquiry, namely, that the computer was purchased by him and the same was kept in his residence, the Division Bench understood Charge II to have been admitted and it is on the basis of the said admission that Charge II was held to be proved and the punishment, as noticed, has been imposed.
13. If the charges levelled against the appellant are one of purchase from an unauthorised/non-existent dealer and the finding of the enquiry officer is that no such purchase was made, we do not see how the disciplinary authority could have held the charges to have been proved. In any event, if the disciplinary proceedings were vitiated, as held by the Division Bench, we do not see how Charge II could have been held to be proved and that too on the basis of the stand taken by the appellant in the disciplinary enquiry.
14. Viewed from any perspective, the conclusion with regard to guilt on any of the charges levelled is not sustainable. Both the conclusions i.e. the disciplinary authority as well as the Division Bench of the High Court suffer from inherent contradictions though for different reasons, as indicated above. We, therefore, set aside the order of the Division Bench and the punishment imposed and direct that all reliefs as due in law be now afforded to the appellant without any delay and in any case within three months from today."
20. Hon'ble Apex Court in the case of High Court of Patna v. Pandey Gajendra Prasad, (2012) 6 SCC 357, as held as under :-
"18. It is trite that the scope of judicial review, under Article 226 of the Constitution, of an order of punishment passed in departmental proceedings, is extremely limited. While exercising such jurisdiction, interference with the decision of the departmental authorities is permitted, if such authority has held the proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence on the merits of the case, or if the conclusion reached by the authority, on the face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above."
21. In the case of Ramesh Chandra v. Delhi University, (2015) 5 SCC 549, it has been held by the Apex Court :
"61. In the inquiry report, the background of appointment of the appellant since 1992 has been referred, though it had no connection with charges. No such fact or evidence brought regarding the background history of the appellant was mentioned in the (third) charge-sheet nor any such evidence is on record produced by the University. The enquiry officer noticed the letter of the Principal Secretary of the Governor of Uttar Pradesh (Chancellor, Bundelkhand University) dated 28-7-2005 confirming the removal of the appellant as the Vice-Chancellor of the University and the order dated 16-7-2005 passed by the Governor of U.P. in his capacity of Chancellor, Bundelkhand University though it was not part of the charges nor such evidence was cited in the imputed charges or list of evidence. Similarly, though the memorandum dated 2-11-2005 or allegation levelled therein was not the part of the third charge-sheet nor cited as evidence by the University, the same were also relied upon. Influenced by the aforesaid extraneous facts and consideration, which are not the part of the charge-sheet or the evidence cited by the University and without intimating such facts to the appellant the enquiry officer held the appellant guilty.
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71. For the reasons aforesaid, we hold that all the departmental enquiries conducted against the appellant were in violation of rules of natural justice. This apart, as the third inquiry report is based on extraneous facts and first part of the charge held to be proved in memorandum dated 26-3-2010 not being the part of the charges shown in the (third) charge-sheet, the order of punishment, including Resolution by memorandum dated 26-3-2010 cannot be upheld."
22. In the light of the facts and circumstances of the case and after due perusal of the above-mentioned case laws, this court is of the view that order dated 06.10.2024 is arbitrary and contradictory in itself. None of the charges were accompanied by statement of allegations or any other details and thereby remained unsubstantiated. Moreover, the delay in the departmental enquiry is also settled ground for quashing of the same.
23. In view of the above, the writ petition is allowed and impugned order dated 06.10.2024 is set aside.
Order Date :- 7.1.2025
A. Verma
(Alok Mathur, J.)
