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2007 DIGILAW 2276 (ALL)

S P SINGH v. STATE OF U P

2007-09-03

ARUN TANDON, B.S.CHAUHAN

body2007
B. S. CHAUHAN, J. The petitioner was employed as an Assistant Excise Commissioner in the Excise Department in the State of U. P. In respect of his posting at Raebareilly in the year 2002-2003, he was served with a charge-sheet dated 25. 2. 2003 containing two charges. The petitioner submitted reply to the charge-sheet and denied the allegations made therein. After conclusion of departmental enquiry, report was submitted to the disciplinary authority. The disciplinary authority, in turn, issued noticed dated 5. 4. 2004 calling upon the petitioner to show cause as to why appropriate punishment be not imposed. A copy of the inquiry report was also forwarded to the petitioner. After reply was submitted by the petitioner to the said show cause notice, the disciplinary authority in terms of Rules 16 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, (hereinafter called the Rules of 1999), read with Uttar Pradesh Public Service Commission (Limitation of Function) Regulations, 1954 (hereinafter called the Regulation of 1954) forwarded the relevant documents for consultation with the Uttar Pradesh Public Service Commission (hereinafter called the commission) qua the punishment proposed. It appears that the Commission in the facts of the case, opined that punishment of withholding of two annual increments with cumulative effect and a censure entry would suffice. The State Government, not being satisfied with the consultation so made by the Commission, by means of its letter dated 4. 8. 2004 requested the Commission to reconsider the proposal of punishment of dismissal from service as was proposed by the authority. The Commission second time also did not agree with the proposal of dismissal from service and recommended that the punishment of withholding the three annual increments with cumulative effect in the facts of the case would be justified. 2. The State Government was not satisfied with the opinion of the Commission, therefore, in exercise of powers under Rule 51 of the U. P. Sachivalay Anudesh, 1982, decided to place the matter before the Cabinet of Ministers for consideration of the final punishment to be inflicted upon the petitioner. The Cabinet in its meeting held on 13. 1. 2006, approved the punishment of dismissal from service. Accordingly, the petitioner was served with an order dated 23. 1. 2006, issued by the Principal Secretary (Excise) dismissing him from service. It is against this order that the present petition has been filed. 3. The Cabinet in its meeting held on 13. 1. 2006, approved the punishment of dismissal from service. Accordingly, the petitioner was served with an order dated 23. 1. 2006, issued by the Principal Secretary (Excise) dismissing him from service. It is against this order that the present petition has been filed. 3. This Court while entertaining the present writ petition on 31. 1. 2006, passed an interim order whereby the operation of the order of punishment was stayed. 4. The State of U. P. not being satisfied with the interim order of this Court preferred a special leave to appeal before the Honble Supreme Court which was converted into Civil Appeal No. 5006 of 2006. The said civil appeal was decided by the Honble Supreme Court vide judgment and order dated 19. 7. 2007. The interim order earlier passed by the Honble Supreme Court was made absolute and the Division Bench of this Court was requested to decide the writ petition itself possibly within three months. In view of the said judgment, the State respondents, instead of filing the counter-affidavit, produced the original records pertaining to the disciplinary action taken against the petitioner. 5. We have heard learned counsel for the petitioner and the learned standing counsel and have examined the records of the writ petition as well as the original records pertaining to punishment inflicted upon the petitioner. 6. Shri R. N. Singh, learned senior counsel assisted by Shri H. R. Mishra appearing for the petitioner submitted that in the facts and circumstances of the case, charge No. 1 was found to be proved, while charge No. 2 was found partially proved in the departmental inquiry. So far as charge No. 1 is concerned, it is stated that only allegation against the petitioner was that excise Revenue to the tune of Rs. 83,75,596 could not be recovered from the excise contractors in respect of excise shops and that only a part of the security required to be deposited under the Uttar Pradesh (Settlement of licences for Retail Sale of Country Liquor) Rules, 2002 (hereinafter called the rules of 2002) had been got deposited in respect of certain number of other shops. 83,75,596 could not be recovered from the excise contractors in respect of excise shops and that only a part of the security required to be deposited under the Uttar Pradesh (Settlement of licences for Retail Sale of Country Liquor) Rules, 2002 (hereinafter called the rules of 2002) had been got deposited in respect of certain number of other shops. He submits that so far as recovery of the excise dues payable to the State Government are concerned, the same are to be recovered in accordance with Section 39 of the U. P. Excise Act by the Collector of the District as arrears of land revenue and the Deputy Excise Commissioner is only required to intimate the outstanding revenue to the Collector concerned. It is for the Collector to take effective steps for recovery. So far as non-deposit of security amount is concerned, reference has been made to the Rule 12 of Rules, 2002, which provides that in case security money is not deposited within time, no settlement shall take effect, and whatever money has been deposited by the prospective licensee, the same shall stand forfeited in favour of the Government. He therefore, submits that no misconduct can be attributed to the petitioner in view of the aforesaid statutory provisions in case security money has not been deposited. Lastly, it is contended that there are arrears in respect of excise revenue in practically all the districts in the State of U. P. and no other district, a disciplinary action has been taken against the Deputy Excise Commissioner on the charge that the arrears have not been recovered. The petitioner has only been singled out for disciplinary action. 7. Shri R. N. Singh, learned senior counsel further pointed out that in view of the judgment of the Honble Supreme Court in the case of Union of India v. T. V. Patel, (2007) 4 SCO 785: 2007 (6) AWC 6182 (SC), if the Service Rules contemplate consultation with the Commission, it has to be an effective consultation and further if the State Government does not agree with the opinion of the Commission on the punishment to be inflicted, the matter has to be placed before the Cabinet alongwith the reasons for such disagreement with the opinion expressed by the Commission. While deciding the said case reliance was placed upon the judgments in State of U. P. v. Manbodhan Lal Srlvastava, AIR 1957 SC 912 Ram Copal Chaturvedi v. State ofm. P. , AIR 1970 SC 158 and State Bank of India v. D. C. Aggarwal, AIR 1993 SC 1197 . It is clarified that the consultation with the Public Service Commission has been made mandatory under the Rules of 1999. 8. Standing counsel on the contrary submits that statutory requirement of consultation with Commission has been complied with and decision has been taken by the Cabinet of Minister thereafter. The order of punishment is justified in the facts of the case. 9. We have heard counsel for the parties. 10. As already noticed above. Rule 16 of the Rules of 1999 contemplates consultation with the Commission before any order of major penalty is passed by the Governor under the said Rules. The procedure to be followed in respect of such consultation has been provided for under Regulation 8 of the Regulation, 1954, as amended vide notification dated 31. 12. 1982 read with Clause 51 (7) of U. P. Sachivalaya Anudesh, 1982 (hereinafter called the Anudesh, 1982 ). 11. For appreciating the controversy raised, it is worthwhile to reproduce Rule 16 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. " 16. Before any order is passed by the Governor under these rules, the Commission, as required under the Uttar Pradesh Public Service Commission (Limitation of Function) Regulations, 1954 as amended from time to time, shall also be consulted. " 12. Clause 51 (7) of Anudesh, 1982, provides that in case the Government is not in a position to agree with the recommendation of the Public Service Commission, it will take into consideration the opinion of the administration and reconsider the whole case, and in case it takes a decision not to agree with the opinion of the Commission and to proceed according to its own original decision the matter shall be placed before the Cabinet for approval. However, it shall be placed alongwith the reasons for not agreeing with the opinion of the Commission. 13. However, it shall be placed alongwith the reasons for not agreeing with the opinion of the Commission. 13. From the original records as have been produced by the learned standing counsel, it is apparent that after the second opinion was expressed by the Commission proposing the punishment of withholding of three annual increments with cumulative effect, a office note was prepared by the Principal Secretary of Excise Department dated 9. 1. 2006. On the notice so put up by the Chief Secretary, the Cabinet of Ministers took a decision to inflict the punishment of dismissal from service upon the petitioner. From the note dated 9. 1. 2006, it is apparently clear that except for recording the facts which have led to the opinion submitted by the Commission and the desire of the disciplinary authority to inflict the major penalty of dismissal of service, no reasons have been mentioned for disagreement with the opinion expressed by the Public Service Commission. As already noticed above, Clause 51 (7) of the Regulation of 1954 read with Anudesh, 1982, provides that if the State Government disagrees with the opinion of the Public Service Commission, the reasons for such disagreement have to be recorded and it is only thereafter that the matter can be placed before the Cabinet. In our. opinion, the reasons for such disagreement have not been recorded, therefore, there has been non-compliance of the requirements of the provisions noticed hereinabove. 14. The contention of the petitioner to the effect that under the Section 39 of the U. P. Excise Act, recovery of excise dues have to be effected by the Collector as arrears of land revenue and in such recovery, the District Excise Officer has no role to play. Similarly, the issue that under the Rules of 2002, if security money is not deposited by the applicant within the time specified, no concluded contract comes into play and State Government is at liberty to forfeit whatever money has been deposited by the applicant. In view of the aforesaid statutory provisions, it is to be seen as to whether any misconduct can be attributed to the petitioner on the ground that a prospective applicant did not deposit the requisite security money within the time prescribed. 15. In the totality of the circumstances as noticed- herein above, we are satisfied that the order of punishment dated 23. 1. 15. In the totality of the circumstances as noticed- herein above, we are satisfied that the order of punishment dated 23. 1. 2006 is not in accordance with law and is liable to be quashed. 16. Petition succeeds and is allowed. The punishment order dated 23. 1. 2006 is hereby quashed. Let the competent authority take a decision in the matter in accordance with law as indicated above, preferably within a period of four weeks from the date of filing a certified copy of the order before him. 17. Till the decision is taken by the respondent authority the petitioner shall be deemed to be under suspension and shall be entitled to subsistence allowance as per law alongwith arrears thereof till fresh orders are passed as directed above. .