Uttarakhand High Court
WPSB/519/2022 on 3 May, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAKESH THAPLIYAL
03RD MAY, 2023
WRIT PETITION (S/B) No. 519 OF 2022
Between:
State of Uttarakhand and others.
...Petitioners
and
Atul Semwal.
...Respondents
Counsel for the petitioners. : Mr. Pradeep Joshi, learned Additional
Chief Standing Counsel for the State of
Uttarakhand.
Counsel for the respondent. : Mr. Sandeep Tiwari, learned counsel.
JUDGMENT : (per Sri Vipin Sanghi, C.J.)
The State has preferred the present Writ
Petition to assail the judgment and order dated
31.08.2021, passed by the Uttarakhand Public Services
Tribunal in Claim Petition No. 55/NB/DB/2019, preferred
by the respondent. The Tribunal has allowed the said
Claim Petition, and quashed the minor penalty imposed
upon the petitioner, upon his being found guilty of
misconduct in respect of one of the seven charges,
which were leveled against him, and further directed the
Disciplinary Authority to proceed in accordance with law.
The petitioners herein were also directed to open the
sealed cover envelope in relation to the consideration of
the respondent's case for promotion.
2. The respondent was issued a charge-sheet,
leveling seven charges against him. A major penalty
inquiry was held against him, and the Inquiry Officer
returned findings, finding him guilty in respect of Charge
Nos. 2, 4 and 5. The Disciplinary Authority gave an
opportunity to the respondent to respond to the Inquiry
Report, whereafter, the Disciplinary Authority proceeded
to pass the order of penalty. The penalty order passed
against the respondent, in its operative part, reads as
follows :-
"3& tkap vf/kdkjh }kjk miyC/k djk;h x;h tkap vk[;k] Jh vrqy
lseoky }kjk vius cpko esa fn;s x;s Li"Vhdj.k ,oa i=koyh esa
miyC/k leLr lk{;ksa @ vfHkys[kksa dk lE;d~ ijh{k.kksijkUr Jh vrqy
lseoky }kjk mDrkuqlkj dh x;h vfu;ferrkvksa ds lkis{k Jh vrqy
lseoky ij muds }kjk izHkkjh ftyk f'k{kk vf/kdkjh ¼ek0½ @ ftyk
ifj;kstuk vf/kdkjh ¼jelk½] tuin fVgjh x<~oky ds in ij jgrs gq,
lacaf/kr leUo;dksa dks eksckby Qksu fjpktZ vuqeU; u gksus ij Hkh
₹[email protected]& ds fjpktZ fd;s x;s gSa] ftlls jkT; ljdkj dks foRrh;
gkfu gqbZ gS] dk nks"k fl) gksuk ik;k x;k gSA
4& vr% mDr vfu;ferrkvksa gsrq Jh vrqy lseoky] gky&[k.M
f'k{kk vf/kdkjh] Fkjkyh] peksyh ¼rRdkyhu izHkkjh ftyk f'k{kk vf/kdkjh
¼ek0½ @ ftyk ifj;kstuk vf/kdkjh ¼jelk½] tuin fVgjh x<+oky½ dks
mRrjk[k.M ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh] 2003
¼;Fkk la'kksf/kr] 2010½ ds v/khu y?kq 'kkfLr ÞifjfuUnkß izfof"V iznku
djus ,oa ljdkj dks gqbZ vkfFkZd gkfu ₹[email protected]& dks Jh lseoky ds
osru ls iw.kZr% olwy fd;s tkus dh 'kkfLr vf/kjksfir fd;s tkus Jh
jkT;iky Lohd`fr iznku djrs gSaA"
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3. From the aforesaid, it would be seen that the
Disciplinary Authority was of the opinion that Charge
No.4, in relation to the respondent getting Mobile
Phones recharged by expending Rs. 7,000/- without
authority was found to have been established.
Consequently, he was subjected to minor penalty of
censure, and recovery of Rs. 7,000/- from him.
4. The Tribunal has set-aside the order of penalty
issued by the Disciplinary Authority on the ground that
the same is unreasoned. The explanation of the
respondent, in respect of the said charge, which has also
been captured in the order of penalty passed by the
Disciplinary Authority, has not been considered. The
stand of the respondent, in relation to Charge No. 4
before the Disciplinary Authority, was as follows :-
"vkjksi la[;k&4 dk izR;qRrj&
ifj;kstuk @ foHkkx ds fgr esa ftyk leUo;dksa dks ftys ds
lqpk: :i esa lapkyu ,oa lwpukvksa dk vfoyEc lek/kku gsrq miHkksx
ds mijkUr fcy izLrqr djus ij i=okyh esa fof/kor for vf/kdkjh dh
laLrqfr ds mijkUr fd;k x;kA Jh lseoky }kjk O;fDrxr :i ls
fnukad 24-06-2016 dks ;g Hkh voxr djk;k x;k gS fd ujsUnzuxj
fLFkr jelk dk;kZy; esa Qksu miyC/k ugha gksus ds dkj.k lwpuk
,df=r djus gsrq leUo;dkssa ds eksckby fjpktZ djk;s x;sA"
5. We have perused the impugned judgment
passed by the Tribunal, as well as the order passed by
the Disciplinary Authority, imposing minor penalty upon
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the respondent, and we agree with the findings returned
by the Tribunal, that the Disciplinary Authority has not
dealt with the explanation furnished by the respondent,
which was to the effect that he had obtained ex post
facto sanction for recharging the Mobile Phones, as the
phones in the office were not functioning, and the Mobile
Phones were got recharged so that the office could
function. Paragraph nos. 3 and 4 of the order passed by
the Disciplinary Authority are completely silent on this
aspect.
6. For the aforesaid reasons, we are not inclined
to interfere with the impugned order. The Tribunal has
already permitted the Disciplinary Authority to pass a
fresh order, after considering the response of the
respondent.
7. Counsel for the respondent submits that the
Tribunal had granted time to the Disciplinary Authority
till 30.11.2021 to pass a fresh order. That was not
done. Instead, this Writ Petition was preferred by the
State only in June, 2022. He, therefore, submits that
the Disciplinary Authority has lost the right to pass a
fresh order in the matter.
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8. We do not agree with this submission. Since
the State was contemplating filing this Writ Petition,
their inaction, in not passing a fresh order in the inquiry
proceedings, cannot come in their way. The time fixed
by the Tribunal for the said purpose does not have
statutory force.
9. We, therefore, grant the Disciplinary Authority
six weeks' time from today to pass a fresh order, after
considering the response of the respondent in respect of
Charge No. 4. The reasoned order shall be passed
within six weeks, and communicated to the respondent.
10. We, however, direct the petitioner to open the
sealed cover, as directed by the Tribunal, if not already
opened, positively within two weeks, and the same shall
be given effect to, irrespective of the fresh order that
the Disciplinary Authority may pass, since the penalty
that may be imposed upon the respondent in the fresh
order, cannot be greater than the one imposed earlier,
i.e. of censure, and recovery of Rs. 7,000/-. Even if the
respondent were to be censured, he would suffer non-
consideration of his case for promotion only for a period
of one year, and not thereafter. The petitioners should,
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therefore, open the sealed cover, and give effect to it
within the next four weeks.
11. The Writ Petition stands disposed of in the
aforesaid terms.
12. Consequently, pending applications, if any,
also stand disposed of accordingly.
________________
VIPIN SANGHI, C.J.
__________________
RAKESH THAPLIYAL, J.
Dt: 03rd May, 2023
Rahul
