Allahabad High Court
Ramakant Singh vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 9 January, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:1574
Court No. - 6
Case :- WRIT - A No. - 12913 of 2024
Petitioner :- Ramakant Singh
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Revenue Lko. And 4 Others
Counsel for Petitioner :- Ram Achal Gupta,Anil Kishore,Jai Prakash Yadav
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Ram Achal Gupta along with Sri Jai Prakash Yadav for the petitioner as well as learned Standing counsel for the respondents.
2. It has been submitted that the petitioner was working on the post of Collection Amin when he was placed under suspension and an FIR under Section 409 IPC was lodged against him at Police Station Laharpur, District Sitapur. The allegations against the petitioner are serious and by not depositing an amount of Rs.55,000/- which was the revenue collected by him, in discharge of his official duties, departmental proceedings were initiated against the petitioner and a punishment order dated 26.5.2010 was passed thereby imposing punishment of reverting him to the minimum of the pay scale and also when he was reinstated no further financial benefit was given to him during the period of his suspension apart from the subsistence allowance which was paid to him during the said period.
3. Petitioner moved an application before respondent No.5 against the said punishment order, who duly considered the same and modified the order of punishment dated 26.5.2010 by his order dated 26.5.2017 and set aside the order of punishment. Accordingly, the disciplinary authority had reviewed its order and modified the order of punishment. The said fact came to the knowledge of the Board of Revenue which directed respondent No.4 to look into the matter and after reconsideration he has passed the impugned order dated 6th December, 2024. Reconsidering the entire fact and held that the order dated 23.5.2017 modifying the order of punishment was without jurisdiction and void ab initio and set aside the order thereby reviving the order of punishment dated 26.5.2010.
4. Learned counsel for the petitioner submits that the impugned order dated 6th December, 2024 is illegal and arbitrary and deserves to be set aside in as much as no opportunity of hearing was given to the petitioner prior to passing of the said order. He submits that any order exonerating the petitioner and re-imposing the punishment order necessarily has to be passed after giving due opportunity of hearing to the petitioner and in absence of which the order would be illegal and arbitrary and violative of Article 14 and 16 of the Constitution, therefore, deserves to be set aside.
5. Learned Standing counsel, on the other hand, has opposed the writ petition. He does not oppose the fact that from a bare perusal of the order dated 6th December, 2024 it cannot be said that opportunity of hearing was given to the petitioner before passing the said order. He has further submitted that even if the order dated 6.12.2024 is set aside, it would amount to revival of the order dated 23.5.2017 which was passed by the disciplinary authority himself reviewing his order of punishment which order, on the face of its, is illegal and arbitrary. He has further submitted that setting aside the order dated 6.12.2024 would result in revival of an illegal and arbitrary order and submits that there are catena of judgments that the discretion of the writ Court in exercise of its power under Article 226 cannot be exercised so as to revive an illegal order.
6. I have heard heard rival contentions and perused the record.
7. The facts in brief are that the petitioner was subjected to disciplinary proceedings and punishment order was passed on 26.5.2010 by Sub Divisional Magistrate, Laharpur, District Sitapur. Subsequent to passing the said order of punishment the petitioner moved an application assailing the said order before the disciplinary authority itself. It is on the representation of the petitioner that Sub Divisional Magistrate vide order dated 23.5.2017 modified the order of punishment and, in fact, exonerating the petitioner from the allegations leveled against him and passed the order dated 25.5.2017 which has been reviewed by respondent No.4 i.e. Additional District Magistrate, Laharpur, District Sitapur who has held the said order to be illegal and arbitrary and set aside the order dated 23.5.2017 thereby reviving the previous order of punishment dated 26.5.2010.
8. After due consideration of the rival contentions, we find force in the submission of learned Standing counsel that even though the order dated 26.12.2024 having been passed without giving opportunity of hearing to the petitioner and, therefore, would be illegal and arbitrary but quashing the order dated 6.12.2024 would result in revival of the order dated 26.5.2017 which itself was illegal and arbitrary and in excess of the jurisdiction vested in the Sub Divisional Magistrate, Laharpur, District Sitapur, in as much as, the disciplinary authority is denuded of any power to review the order of punishment passed by him. There is no doubt that the disciplinary authority becomes functus officio when an order of punishment is passed by him and the only remedy available is of setting aside the same in this regard by filing departmental appeal against the order of punishment or to challenge the said order either before the U.P. State Public Services Tribunal or before High Court.
9. Law is settled on this issue that this Court would not exercise its discretionary writ jurisdiction under Article 226 of the Constitution of India to pass such an order which would revive illegal situation. In this regard, Hon'ble Apex Court in the case of Bhartiya Seva Samaj Trust and Another Vs. Yogeshbhai Ambalal Patel and another, (2012) 9 SCC 310 has held as under:-
?14. It is a settled legal proposition that the court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that in such an eventuality the illegality would perpetuate and it would put a premium to the undeserving party/person. (Vide Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828] , Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar [(1999) 8 SCC 16 : AIR 1999 SC 3609] , Mallikarjuna Mudhagal Nagappa v. State of Karnataka [(2000) 7 SCC 238 : AIR 2000 SC 2976] , Chandra Singh v. State of Rajasthan [(2003) 6 SCC 545 : 2003 SCC (L&S) 951 : AIR 2003 SC 2889] and State of Uttaranchal v. Ajit Singh Bhola [(2004) 6 SCC 800] .)?
9. Aforesaid proposition has not been disputed by learned counsel for the petitioner. Accordingly, we are not persuaded to set aside the order dated 6th December, 2024. In the aforesaid facts, it is noticed that the order dated 6.12.2024 imposing punishment stands revived and the petitioner would have a liberty to assail the said order before the appellate authority. It has been fairly submitted that liberty may be given to the petitioner to file departmental appeal before opposite party No.3 i.e. District Magistrate, District Sitapur. It has further been submitted that during pendency of the petition the petitioner has already deposited the amount of Rs.55,000/- and considering the fact that the petitioner has already deposited an amount of Rs.55,000/- which has also been mentioned in the bail order dated 13.1.2010 in Bail No.259 of 2010, liberty is granted to the petitioner to file an appeal within next two weeks.
10. It is provided that in case appeal is filed, as directed by this Court, the appellate authority shall proceed to consider and decide the same, expeditiously, say within a period of three months thereafter after giving full opportunity of hearing to the petitioner in accordance with law.
11. The petitioner undertakes to cooperate in the said proceedings.
12. It is further provided that in case appeal is filed and waiting the decision by the appellate authority, the respondents shall not recover the outstanding amount in the meanwhile. The said recovery shall be subject to the order to be passed by the appellate authority.
13. With aforesaid observations and directions, the petition stands disposed of.
(Alok Mathur, J.)
Order Date :- 9.1.2025
RKM.
