Allahabad High Court
Gopal Singh vs State Of Up And Another on 10 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:5791
Court No. - 49 Reserved
A.F.R.
Case :- WRIT - A No. - 9166 of 2024
Petitioner :- Gopal Singh
Respondent :- State of U.P. and Another
Counsel for Petitioner :- Dinesh Mishra,Prabhakar Awasthi
Counsel for Respondent :- C.S.C.
Hon'ble J.J. Munir,J.
1. This writ petition is directed against an order passed by the State Government dated 24.05.2024, inflicting the petitioner with the penalty of censure after a show cause notice for an act of service misconduct.
2. The petitioner entered service of the Department of Irrigation and Water Resources as an Assistant Engineer way back on 10.02.1991. He was promoted to the post of an Executive Engineer on 19.04.2000 and then as a Superintending Engineer on 20.01.2009. Still later, on 01.06.2018, he was promoted as a Chief Engineer, Level-II. He got a further promotion to the position of Chief Engineer, Level-I on 30.06.2022. As appears from the record, one Chhatrapati Singh, Executive Engineer, Research and Planning Division-I, Sinchai Bhawan Annexe, Lucknow was directed to be given additional charge of the Executive Engineer, Irrigation Construction Division-II, Lalitpur by an order of the Engineer-in-Chief and Head of the Department, Irrigation and Water Resources Department, U.P. This charge was in addition to his duties at Lucknow and the arrangement was made for a period of six months until a regular incumbent was posted. The order was passed by the Engineer-in-Chief in the interest of government work. When the Engineer-in-Chief passed his orders dated 15.03.2023, these were duly circulated from the Principal Secretary, Irrigation and Water Resources, Government of U.P., Lucknow down to the Executive Engineer, Computer Centre, Irrigation and Water Resources Department, Lucknow, including other officials concerned.
3. At the time, when the order dated 15.03.2023 was passed by the Engineer-in-Chief, one Bhagirathi Singh was posted as the Executive Engineer, Irrigation Construction Division-I, Lalitpur. He had been given additional charge as Executive Engineer, Irrigation Construction Division-II, Lalitpur. This was, to all seeming, done by the Superintending Engineer, Irrigation Construction Circle, Jhansi, who is said to be the controlling authority and the immediate superior of the Executive Engineer, Irrigation Construction Divisions-I and II at Lalitpur. When Chhatrapati Singh proceeded to take charge as Executive Engineer, Construction Division-II in compliance with the order of the Engineer-in-Chief and contacted Bhagirathi Singh, holding additional charge, Bhagirathi Singh refused to handover charge to Chhatrapati Singh. Chhatrapati Singh wrote to the petitioner on 16.03.2023 that charge of Irrigation Construction Division-II, Lalitpur be directed to be handed over to him in compliance with the Engineer-in-Chief's order.
4. It is also the petitioner's case that this matter was brought to the notice of the Engineer-in-Chief, who instructed the petitioner to ensure compliance of his order dated 15.03.2023. In the circumstances, the petitioner passed an order dated 16.03.2023, directing charge of Irrigation Construction Division-II, Lalitpur to be handed over to Chhatrapati Singh in compliance with the Engineer-in-Chief's order. The petitioner has pleaded at this juncture that Bhagirathi Singh, the Executive Engineer, who was holding charge of Irrigation Construction Division-II was in collusion with Rajpal Singh, Chief Engineer, Level-II and the two, in order to ensure that Chhatrapati Singh was kept out of way, caused a manipulated complaint through six junior engineers and four assistant engineers to be made against Chhatrapati Singh on 17.07.2023. These facts have been asserted in paragraph No.8 of the writ petition and then there are further allegations of malice at work in paragraph No.9, where it is said that there existed all pervasive in-house politics against Chhatrapati Singh, which the petitioner noticed and wrote about in his favour on 28.07.2023, certifying his good work and the ill-doings of Bhagirathi Singh. The letter dated 28.07.2023 was addressed to the Engineer-in-Chief and Head of the Department, Irrigation and Water Resources, U.P.
5. Chhatrapati Singh was placed under suspension pending inquiry vide order dated 04.08.2023. He challenged the said order by means of Writ-A No.13224 of 2023. This Court vide order dated 29.08.2023 passed in the last mentioned writ petition stayed the suspension order dated 04.08.2023 and directed that Chhatrapati Singh will continue to serve on the post in the same manner as he did before the order impugned. The petitioner has pleaded by way of quotation in paragraph No.13 of the writ petition, paragraph No.11 of Writ-A No.13224 of 2023, instituted by Chhatrapati Singh against his suspension from service. Paragraph No.11 of Chhatrapati Singh's writ petition quoted as aforesaid reads:
"11. That on 28.07.2023 head of the department in the hierarchy wrote letter in favour of petitioner on the strength of 3 months performance. Photo copy of letter dated 28.07.2023 of respondent no.3 is being filed herewith and marked as ANNEXURE NO.-6 to this writ petition."
6. After the aforesaid stay order was granted by this Court on 29.08.2023, a notice was issued to the respondents, obliging them to file a counter affidavit. A narrative for the purpose had to be drawn up by the respondents' office. It was prepared by the respondents, but did not carry any reply to paragraph No.11 of Writ-A No.13224 of 2023, instituted by Chhatrapati Singh. The narrative as aforesaid was first signed by the Executive Engineer, then endorsed by the Superintending Engineer, next by the Chief Engineer, Level-II, thereafter the petitioner, and finally the Head of the Department, to wit, the Engineer-in-Chief.
7. It appears that on the basis of the order dated 16.03.2023 passed by the petitioner, whereby he directed Chhatrapati Singh to assume charge of Executive Engineer, Irrigation Construction Division-II, Lalitpur and the unanswered paragraph No.11 of Writ-A No.13224 of 2023 in the Department's narrative, a show cause notice was issued to the petitioner on 16.11.2023, proposing to proceed against him under Rule 10(2) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (for short, 'the Rules of 1999'). The petitioner submitted a prompt reply to the show cause on 04.12.2023, explaining his position in worthy detail. Shortly afterwards, the State Government passed the impugned order dated 24.05.2024, punishing the petitioner with the impugned censure.
8. Aggrieved by the order dated 24.05.2024, the present writ petition has been instituted.
9. In answer to the notice of motion issued on 08.07.2024, a counter affidavit has been filed on behalf of respondent Nos.1 and 2, to which the petitioner has filed a rejoinder.
10. When the petition came up on 23.07.2024, the parties having exchanged affidavits, it was admitted to hearing, which proceeded forthwith. Judgment was reserved.
11. Heard Mr. Prabhakar Awasthi, learned Counsel for the petitioner and Ms. Monika Arya, learned Additional Chief Standing Counsel, appearing on behalf of the respondents.
12. It is argued by Mr. Prabhakar Awasthi that there is absolutely no charge disclosed against the petitioner worth the name, on the foot of which he could be punished. He submits that there has to be some act, constituting misconduct, attributable to an employee, before he can be proceeded with against under the Rules of 1999 and then some tangible material or evidence in support of the charge of misconduct must exist, on the basis of which, the respondents may draw a possible inference about the employee's guilt. Mr. Awasthi urges that here is a case where the petitioner gave effect to the order dated 15.03.2023 passed by the Engineer-in-Chief and Head of the Department, Irrigation and Water Resources, U.P. to give additional charge of the position of Executive Engineer, Irrigation Construction Division-II, Lalitpur. He has drawn the Court's attention to the order of the Engineer-in-Chief, annexed as Annexure No.2 to the writ petition.
13. The next charge is about a non-traverse of paragraph No.11 of Writ-A No.13224 of 2023, filed by Chhatrapati Singh. Mr. Awasthi submits that the respondents' narrative was drawn up by the office and first signed by the Executive Engineer, followed by the Superintending Engineer, then by the Chief Engineer, Level-II, after which the petitioner signed it, and, it was finally signed by the Engineer-in-Chief. None of the other official's conduct in signing that narrative, which did not answer paragraph No.11 of the writ petition, has been found blameworthy. The petitioner has been singled out to be foisted with the charge of not answering paragraph No.11 of the writ petition filed by Chhatrapati Singh. He submits that the non-traverse in a narrative signed by five officers, three junior to the petitioner and one senior, hardly constitutes any kind of a misconduct. He further urges that for these non-existing acts or omissions of misconduct attributed to him, there is no material or evidence in support to infer a possible guilt for the petitioner. He castigates the order impugned as one that is perverse, founded on non-existing charges/ allegations of misconduct and one that proceeds in the absence of any material or evidence to infer guilt for the petitioner. In addition, it is argued by the learned Counsel for the petitioner that the order impugned is actuated by mala fides. He submits, referring to details of the seniority list of officers in the cadre of Chief Engineer Level-I, that he is amongst three officers, now eligible to be promoted as Engineer-in-Chief, to wit, Akhilesh Kumar Sachan, Sandeep Kumar and the petitioner himself. He urges that the impugned order has been passed deliberately in order to disqualify him from consideration for promotion, which he would otherwise surely earn. The petitioner is scheduled to retire on 31.03.2025 and the entire effort to castigate his conduct is actuated by mala fides.
14. Ms. Monika Arya, learned Additional Chief Standing Counsel has, on the other hand, argued that the charges against the petitioner are well-founded. She submits that Bhagirathi Singh, who was Executive Engineer, Irrigation Construction Division-I, Lalitpur, was given additional charge of Division-II as he was close at hand. This decision was taken by the Superintending Engineer, Irrigation Construction Circle, Jhansi, who is the Controlling Authority. She submits emphatically that Chhatrapati Singh neither contacted Bhagirathi Singh to take additional charge of the post of Executive Engineer, Irrigation Construction Division-II, Lalitpur in compliance with the Engineer-in-Chief's order dated 15.03.2023 nor apprised the Controlling Authority i.e. the Superintending Engineer, Irrigation Construction Circle, Jhansi. Instead, he approached the petitioner directly and made an application for handing over the additional charge to him. It is on the said application that the petitioner passed the order of 16th March, 2023, directing Chhatrapati Singh to assume additional charge of the Executive Engineer, Irrigation Construction Division-II, Lalitpur, without affording any opportunity to Bhagirathi Singh. She has invited the attention of the Court in this regard to paragraph No.5 of the counter affidavit, where this case is pleaded. She submits that the petitioner and Chhatrapati Singh were in collusion, as the latter was never refused additional charge of Executive Engineer, Irrigation Construction Division-II, Lalitpur nor any undue delay was there in carrying out the Engineer-in-Chief's order. The petitioner misused his official power, jumped the line of authority, bypassing the Superintending Engineer and himself directed Chhatrapati Singh, by his order of 16th March, 2023, to take additional charge of the Executive Engineer, Irrigation Construction Division-II, Lalitpur. Chhatrapati Singh misconducted himself in office and harassed his subordinate engineers, demanding bribes from them and threatening to spoil their ACRs, if they did not yield to his demand. This led the subordinate engineers to complain against Chhatrapati Singh to the Chief Engineer, Project Betwa, Irrigation and Water Resources Department, Jhansi through their representation dated 03.07.2023. It is signed by a number of assistant and junior engineers, at least ten, as the learned Additional Chief Standing Counsel points out. This paved way for Chatrapati Singh's suspension form service.
15. Now, when Chhatrapati Singh challenged his order of suspension and a notice was issued by this Court, in the narrative that was prepared, the petitioner was said to be grossly negligent in discharging his duties. He did not take care to answer paragraph No.11 of the writ petition. In collusion with Chhatrapati Singh, he signed the narrative and sent it to the learned Chief Standing Counsel's office for drafting a counter affidavit. This shows carelessness on the petitioner's part, for which he has been punished, in addition to the other misdemeanour. Ms. Arya argues that after due consideration of the petitioner's reply, he has been punished. It is not the province of this Court to reassess evidence and return a finding if the evidence was weighty enough to support the conclusions reached by the primary decision maker.
16. We have carefully considered the submissions advanced by learned Counsel for the parties and perused the record.
17. There are two charges, or so to speak, allegations, on the foot of which the petitioner has been punished. The petitioner says that these are non-allegations or acts or omissions that do not constitute any misconduct under the Uttar Pradesh Government Servant's Conduct Rules, 1956 (for short, 'the Rules of 1956') or any rule defining misconduct. The first charge or allegation, as already said in detail, is about the petitioner passing an order dated 16.03.2023, directing Chhatrapati Singh to take additional charge as the Executive Engineer, Irrigation Construction Division-II, Lalitpur. It is said that this is a misconduct, because the petitioner was not the Executive Engineer's Controlling Authority. It was the Superintending Engineer at Jhansi. The petitioner has been attributed some kind of a motive in jumping the line of authority or control and passing an order himself, directing Chhatrapati Singh to join in compliance with the Engineer-in-Chief's order dated 15.03.2023, ordering the additional charge of Executive Engineer, Irrigation Construction Division-II, Lalitpur to be given to Chhatrapati Singh.
18. There is no denial of the fact that the Engineer-in-Chief did pass an order, which is on record, dated 15.03.2023, directing the additional charge of the Executive Engineer, Irrigation Construction Division-II, Lalitpur to be given to Chhatrapati Singh, depriving Bhagirathi Singh of that charge. It is said that Chhatrapati Singh did not approach Bhagirathi Singh or the Superintending Engineer, and instead, directly approached the petitioner, who passed the offending order dated 16.03.2023. Gauging the conduct of parties and their relative positions as officials of the Department, there is no earthly reason for Chhatrapati Singh not to have asked Bhagirathi Singh to handover charge. Even if he did not ask Bhagirathi Singh to handover charge in compliance with the Engineer-in-Chief's order or did not approach the Superintending Engineer in the first instance, but the petitioner, who enforced the Engineer-in-Chief's order by his order of 16th March, 2023, it is no blameworthy conduct constituting any kind of service misconduct that may invite punishment for the petitioner.
19. At best for the respondents, it could be said that it was some kind of indiscretion. That too sometimes is difficult to say, in the nature of things, that obtain when official functions are discharged. Many things may come to the notice of a superior officer, which impels him to act in a particular way, that may look from the outside to an objective and non-partisan eye to be indiscreet or odd. But, a decision taken by a superior official to act in a particular way or pass an order in the discharge of his official functions, that is per se not illegal, would be no kind of misconduct. It is the decision of an officer in the discharge of his functions, who would have knowledge of many things to effectively discharge his duties as a superior official. Even if there is a slight overstep under such circumstances, it is no more than the innate byproduct of human fallibilities, when placed in a position of authority and charged with responsibility attached to the office. Every petty lapse or indiscretion done bona fide cannot be condemned as misconduct.
20. Perhaps, it is for the reason last mentioned that the respondents have urged that the order dated 16.03.2023 was passed by the petitioner in connivance with Chhatrapati Singh. There is, however, no material to show that there was any connivance. After all, the decision to give additional charge to Chhatrapati Singh was taken by the Engineer-in-Chief, whose conduct has not been found blameworthy at all. The order of the Engineer-in-Chief had to be implemented by one and all, including the Superintending Engineer at Jhansi or the Chief Engineer of the project. If the petitioner acted to enforce the said order, may be bypassing the Superintending Engineer, by the said fact alone, no inference of a collusion between Chhatrapti Singh and the petitioner can be drawn. The respondents' inference that there was some kind of a connivance between the petitioner and Chhatrapati Singh, indeed, appears to be based more on conjecture and some premeditation to penalize the petitioner.
21. There is another angle to understand, which the respondents have ignored, why the petitioner acted with seeming haste in enforcing the order of the Engineer-in-Chief dated 15.03.2023 himself. There is a specific case not only pleaded in paragraph No.22 of the writ, but also in the petitioner's reply to the show cause notice dated 04.12.2023. It reads:
"जब द्वैत कार्यभार हस्तांतरण से भी श्री भागीरथ अधिशासी अभियंता द्वारा स्पष्ट इनकार कर दिया गया तो यह प्रकरण प्रमुख अभियन्ता (विभागाध्यक्ष) के संज्ञान में आया और उन्होंने मुझे निर्देशित किया कि में तत्काल उनके आदेश दिनांक-15.03.2023 का अनुपालन सुनिश्चित करूं। ऐसी स्थिति में मैंने नियमानुसार द्वैत कार्यभार हस्तांतरण धारण (Assume) किए जाने हेतु आदेश कर दिए जो मेरा कर्तव्य था।"
22. This assertion by the petitioner in his reply to the show cause notice dated 04.12.2023, issued to him by the respondents, is quoted in paragraph No.22 of the writ petition, after setting forth its context. In paragraph No.8 of the counter affidavit, the assertion that the petitioner was directed by the Engineer-in-Chief to forthwith ensure enforcement of his order, when it came to the latter's notice that Bhagirathi Singh had refused to give Chhatrapati Singh additional charge of Executive Engineer, as ordered by the Engineer-in-Chief, has not been specifically denied by the respondents. This case of the petitioner set forth in his reply to the show cause notice has not been considered by the State Government while passing the impugned order. If, therefore, the petitioner really acted under directions of the Engineer-in-Chief to promptly enforce the latter's orders, there is not even an indiscretion about the petitioner, in any view of the matter, passing the order dated 16.03.2023, directing Chhatrapati Singh to take over charge of the Executive Engineer, Irrigation Construction Division-II, Lalitpur. The assertion that the petitioner was instructed/ directed by the Engineer-in-Chief to forthwith ensure enforcement of his order dated 15.03.2023, being neither denied by the respondents in their pleadings or inquired into, considered and rejected while passing the impugned order, must be accepted as the correct state of things.
23. The first part of the charge or imputation against the petitioner, condemning his conduct in ordering Chhatrapati Singh directly to be given charge of Executive Engineer, Irrigation Construction Division-II, Lalitpur, can hardly be called an act of misconduct. The inference of the State Government that it was an act of misconduct is clearly perverse, based on conjecture and ignorance of what may legitimately constitute an act of misconduct. So far as the angle of there being any kind of connivance or conspiracy between the petitioner and Chhatrapati Singh is concerned, which led the petitioner to ensure handing over of charge of the Executive Engineer, Irrigation Construction Division-II, Lalitpur, there is not the slightest of material on record, from which that inference could be drawn. Therefore, that inference to the extent that figures in the order impugned is one based on no material.
24. This takes us to the other limb of the charge or the allegation. This is about the petitioner signing a narrative in a casual manner without examining facts, where paragraph No.11 of Writ-A No.13224 of 2023 filed by Chhatrapati Singh against his suspension from service was not answered at all. There is no case, at any stage, urged by the respondents that it was the petitioner, who authored or drew up the narrative. It was obviously drawn up by the office of the Executive Engineer or at some other level, but by the office dealing with legal matters. It was signed by the Executive Engineer, who was the junior-most officer, followed by the Superintending Engineer, the Chief Engineer Level-II and then by the petitioner, before being finally signed by the Head of the Department, to wit, the Engineer-in-Chief. In this state of things, when none of the officer's conduct, besides that of the petitioner, was found blameworthy in missing out answering paragraph No.11 of Writ-A No.13224 of 2023 in the narrative jointly signed by them, the omission has to be viewed as an inadvertent mistake or lapse on the part of all the officers. Of whatever kind of lapse this omission is, it can certainly not be classed as any kind of a misconduct.
25. The other officers, who signed the narrative, have rightly not been proceeded with against for this lapse. As already remarked, in the thick of official business, if every slip or mistake by an officer were dubbed as misconduct, every member of the service would face the peril of disciplinary proceedings on the fall of pen at any official paper. A service misconduct certainly does not mean trivial lapses, mistakes, inadvertent omissions, incorrect decisions and the like done bona fide everyday by a government servant or official in the course of his duties. Now the impugned order says that in signing the narrative casually and without verifying facts, the petitioner has exhibited remissness and negligence. In the nature of things, that kind of a charge can hardly be laid against the petitioner.
26. There is no case and much less material to show that the petitioner deliberately managed to ensure that the narrative remains deficient. In the absence of that allegation supported by some material to show that it was the petitioner, who managed or caused paragraph No.11 of Chhatrapati Singh's writ petition to remain unanswered in the narrative, the impugned order, holding the petitioner guilty for the said lapse as an act of misconduct, is again perverse and one founded on no material. Though there is no tangible material as well to draw a conclusion of mala fides against the respondents, based on the fact that the impugned order was passed for the purpose of depriving the petitioner of his chance of promotion to the post of Engineer-in-Chief, the utter oddities, that we have noticed, have their lurking presence, which may create a suspicion of that kind. We say this because in the ordinary circumstances, acts that have been charged against the petitioner as misconduct, would have passed off without attention; just as they did in the case of four other officers, including the Engineer-in-Chief, who signed the narrative, like the petitioner. Nevertheless, since we do not necessarily have to go into that question to pronounce upon the validity of the impugned order, we refrain from expressing any opinion on the issue of mala fides urged by the learned Counsel for the petitioner. All the more so, because mala fides have not been urged against a definitive person with sufficient pleadings or the man impleaded eo nomine.
27. In view of what we have held above, the impugned order cannot be sustained and must perish.
28. In the result, this petition succeeds and is allowed. The impugned order dated 24.05.2024 passed by the State Government is hereby quashed.
29. There shall be no order as to costs.
30. Let a copy of this order be communicated to the Principal Secretary, Department of Irrigation and Water Resources, Government of U.P., Lucknow by the Registrar (Compliance).
Order Date :- 10.1.2025
Anoop
(J.J. Munir)
Judge
