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2012 DIGILAW 2376 (ALL)

Suresh Kumar Shukla v. State of U. P. and Others

2012-10-09

DEVENDRA KUMAR UPADHYAYA

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Devendra Kumar Upadhyaya, J.— Since the affidavits in the case have been exchanged, with the consent of learned counsels for the parties, the Court proceeds to decide the matter finally. Heard Sri Uttam Kumar Srivastava, learned counsel for the petitioner, learned standing counsel appearing for the State and have gone through the material available on record. Under challenge in the instant case is the punishment inflicted on the petitioner by means of the order dated 29.12.2008, passed by the Sub Divisional Officer, Kaiserganj, District Bahraich, whereby in the departmental disciplinary proceedings, the petitioner has been reverted to the original scale of pay of his post i.e. the post of Lekhpal. The impugned order also states that the petitioner shall not be entitled to any amount except the subsistence allowance for the period he remained under suspension. It also states that the petitioner shall not be paid any amount for the period starting from the date of judgment by this Court in his earlier writ petition wherein the order of dismissal was challenged and the date of his reinstatement pursuant thereto, however, the said period will be counted for the purpose of pension etc. The impugned order also withholds three increments permanently which the petitioner otherwise would have been entitled to. The facts of the case giving rise to the instant writ petition are that by means of the order dated 29.11.2005, the petitioner was placed under suspension on the charge of changing the pages of the original Khatauni, thereby giving undue benefit to certain persons. The suspension order also states that the petitioner was suspended for the allegation of manipulating the government records and further that he did not discharge his duties properly. The petitioner was thereafter served with the charge sheet on 28.12.2005. The gist of the charges contained in the charge sheet is that the petitioner while posted at Sisai Haider during 1392 to 1397 Fasli years, unauthorizedly made certain changes in the Khatauni without there being any order of any competent authority or officer. The petitioner was required to furnish his reply within 15 days. Accordingly, he furnished his reply to the said charge sheet on 18.1.2006, wherein he denied the allegations made against him and further submitted that the manipulation and interpolation etc. in the Khatauni is not attributable to him; rather it is in the hand writing of his predecessor, Sri Brij Nandan Lal Srivastava. Accordingly, he furnished his reply to the said charge sheet on 18.1.2006, wherein he denied the allegations made against him and further submitted that the manipulation and interpolation etc. in the Khatauni is not attributable to him; rather it is in the hand writing of his predecessor, Sri Brij Nandan Lal Srivastava. He further stated that the fact that the relevant Khatauni was prepared by Sri Brij Nandan Lal Srivastava is apparent from the order passed by the Sub Divisional Officer in a case under Section 33/39 of U.P. Land Revenue Act on 20.10.2005. He stated that at relevant point of time, he was not in Government service, the relevant records were under the custody of Sri Brij Nandan Lal Srivastava and not in his custody. He also contended that Sri Srivastava died during service and after his death, relevant Khatauni was handed over in the charge of Sri Manohar Datt Srivastava, the then Lekhpal. It was also submitted by the petitioner that on the retirement of Sri Manohar Datt Srivastava, the charge of khatauni was taken over by Sri Ram Milan Srivastava and since then, it was in his custody. He further stated that during the period Khatauni was in the custody of three of his predecessors, on various occasions the higher officers had inspected the records and no illegality was found. The petitioner submitted that he took over the charge of the area in April, 1986 and he received the said Khatauni when he took over charge in April, 1986. He categorically submitted that the charge of manipulation is not attributable to him at all for the reason that at the relevant point of time, Sri Brij Nandan Lal Srivastava was incharge of ''Halka' and thereafter Khatauni was given in his charge by his successor, namely, Sri Ram Milan Srivastava, who was given charge of Khatauni by Sri Manohar Lal Srivastava, the immediate successor of Sri Brij Nandan Lal Srivastava. On submission of reply, an enquiry report was submitted by the Enquiry Officer on 28.2.2006, whereupon petitioner was given a show cause notice dated 6.3.2006 by the appointing authority annexing therewith a copy of the enquiry report and requiring him to show cause as to why punishment of stoppage of more than one increments permanently may not be inflicted on him. The petitioner appears to have submitted his reply to the said show cause notice on 7.5.2006. The petitioner appears to have submitted his reply to the said show cause notice on 7.5.2006. Thereafter, by means of punishment order dated 31.5.2006, the appointing authority inflicted punishment of dismissal from service on the petitioner. The said punishment of dismissal from service was challenged before this Court by the petitioner by means of writ petition No. 5491 (SS) of 2006, S.K. Shukla, Versus State of U.P. and others, which was finally disposed of by this Court by means of order dated 23.6.2006, whereby the impugned order of punishment of dismissal from service dated 31.5.2006 was quashed. However, this Court provided that it would be open to the authority concerned to issue a fresh show cause notice and initiate enquiry from the stage of submission of enquiry report. Thereafter, another explanation from the petitioner was called for by the Enquiry Officer, whereupon the petitioner submitted his reply on 27.10.2006. The Enquiry Officer in his report dated 28.11.2007, which is annexed as Annexure No. 12 to the writ petition, gave a finding that the Khatauni pertaining to the relevant Fasli years 1392F to 1397F was in the custody of predecessors of the petitioner, namely, Brij Nandan Lal Srivastava, Manohar Lal Srivastava and Ram Milan Srivastava. In the enquiry report, the Enquiry Officer categorically stated that only on the basis of doubts, the charges levelled against the petitioner cannot be said to be proved. However, Enquiry Officer stated in his report that the petitioner ought to have been more vigilant while preparing the new Khatauni. Thus, from a perusal of the enquiry report dated 28.11.2007, it is abundantly clear that the charge against the petitioner was not found proved. On the said enquiry report, the Sub Divisional Officer i.e. the appointing authority, passed an order and made endorsement to the Enquiry Officer, stating therein that the matter be re-enquired as enquiry report appears to be incomplete. He directed that a fresh report be submitted after enquiring as to who were the previous Lekhpals in whose custody the Khatauni pertaining to Fasli years 1392F to 1397F was kept. He also directed that their statements be also recorded along with statement of the then Revenue Inspector. The said order was passed by the appointing authority on 30.11.2007. He directed that a fresh report be submitted after enquiring as to who were the previous Lekhpals in whose custody the Khatauni pertaining to Fasli years 1392F to 1397F was kept. He also directed that their statements be also recorded along with statement of the then Revenue Inspector. The said order was passed by the appointing authority on 30.11.2007. Pursuant thereto, another enquiry report was submitted by the Enquiry Officer on 30.8.2008, wherein it has categorically been recorded that the allegation against the petitioner that he manipulated or interpolated the records, is not proved. The Enquiry Officer, however, only stated that the petitioner ought to have been more vigilant at the time of preparation of new Khatauni. On the said enquiry report, petitioner was issued a show cause notice on 16.9.2008, wherein the appointing authority stated that he is satisfied that the petitioner had acted with laxity in discharge of his official duties and that he had indulged in indiscipline and further that he was guilty of disobedience of orders passed by the superior officers. The petitioner submitted his reply to the said show cause notice on 5.11.2008 reiterating the stand taken by him earlier. The Sub Divisional Officer/appointing authority not being satisfied with the reply submitted by the petitioner to the show cause notice, passed the impugned order of punishment on 29.12.2008. It is this order of punishment which is under challenge in the instant writ petition. Learned counsel for the petitioner has vehemently argued that in the instant case, the disciplinary authority has acted in derogation of the provisions contained under Rule 9(2) of the U.P. Government Servants (Discipline and Appeal) Rules 1999, which specifically mandates that if the disciplinary authority disagrees with the finding of enquiry officer on any charge, he shall record its own finding thereof and will also record reasons for the same. He has further submitted that the procedure adopted by the disciplinary authority in the instant case is in direct conflict with the law enunciated by Hon'ble Supreme Court in the Case of Punjab National Bank and others Versus Kunj Behari Misra (1998) 7 Supreme Court Cases 84 and Yoginath D. Bagde Versus State of Maharashtra and another, (1999) 7 Supreme Court Cases 739. In support of his contention, he submitted that if the disciplinary authority decided to impose the penalty on the basis of his own conclusions, the principle of natural justice demanded that the disciplinary authority, who proposed to decide against the delinquent officer disagreeing with the findings of the enquiry officer, must have given opportunity of hearing to the petitioner. He further stated that in the case like the present one, the enquiry report is in favour of the petitioner but disciplinary authority proposed to disagree with such conclusion and hence, it was incumbent upon the disciplinary authority to have conveyed the petitioner his tentative reasons for disagreeing with the finding of the Enquiry Officer. He also argued that since the said procedure in the instant case was not followed by the disciplinary authority in as much as the reasons for his disagreement were never communicated to the petitioner, as such impugned order of punishment is not tenable. Per contra, learned counsel for the respondents has tried his best and made an endeavour to impress upon the Court that no procedural or otherwise illegality has been committed by the disciplinary authority and the impugned order is culmination of the procedure which was followed as per the provisions contained in U.P. Government Servants (Discipline and Appeal) Rules 1999. Hence, the impugned order of punishment does not suffer from any vices and the writ petition is absolutely misconceived and deserves to be dismissed. The question for consideration in the instant case which arises is as to whether the procedure adopted by the disciplinary authority is in consonance with the law laid down by the Hon'ble Apex Court in the cases of Punjab National Bank and others Versus Kunj Behari Misra (Supra) and Yoginath D. Bagde Versus State Of Maharashtra and another (supra). To arrive at the correct conclusion as to whether the procedure adopted by the disciplinary authority is in consonance with the judgment of Hon'ble Supreme Court rendered in the aforementioned two cases, the most crucial document on record is the show cause notice given to the petitioner by the appointing authority/disciplinary authority on 16.9.2008 wherein the disciplinary authority proposed punishment of stoppage of more than one increments on permanent/temporary basis or for dismissal or removal from service. A perusal of the said show cause notice dated 16.9.2008, which provided an opportunity to the petitioner to submit his reply and file objection to the enquiry report dated 30.8.2008 reveals that the said show cause notice does not disclose as to on what basis the disciplinary authority differs from the findings arrived at by the Enquiry Officer. It also does not disclose the reason of disagreement by disciplinary authority with the enquiry report wherein the charge of manipulation in the Khatauni was not found proved against the petitioner. The said show cause notice dated 16.9.2008 only records the chronology of events and says that the disciplinary authority is satisfied that the petitioner is guilty of certain charges. The show cause notice does not record any reason whatsoever of disagreement by him with the findings recorded by the enquiry officer. Another noticeable relevant aspect in the instant case is that the disciplinary authority was not satisfied with the earlier enquiry report dated 28.11.2007 and had thus directed the Enquiry Officer to enquire into certain missing aspects and then submit his report. However, on both the occasions, the Enquiry Officer has categorically given finding in regard to the allegations levelled against the petitioner that he cannot be held guilty and further that charges against the petitioner were not proved for the reason that the Khatauni had been in the custody of three of his predecessors and further that at relevant point of time Khatauni was in the custody of Sri Brij Nandan Lal Srivastava, the then Lekhpal. It is also noteworthy that the charge against the petitioner was not that of not being vigilant at the time of preparation of new Khatauni; rather from the perusal of charge sheet dated 28.12.2005, it is revealed that the charge was that he was guilty of certain interpolation and manipulation in the Khatauni pertaining to the Fasli years 1392F to 1397F. The charge sheet does not anywhere indicate that it contained charge against the petitioner of not being vigilant at the time of preparation of new Khatauni. The charge, in fact, is with regard to manipulation and interpolation in the Khatauni of Fasli years 1392F to 1397F. The charge sheet does not anywhere indicate that it contained charge against the petitioner of not being vigilant at the time of preparation of new Khatauni. The charge, in fact, is with regard to manipulation and interpolation in the Khatauni of Fasli years 1392F to 1397F. The Enquiry Officer has categorically given finding that during the period manipulation in the Khatauni took place, the original Khatauni was in the custody of Brij Nandan Lal Srivastava which was given after his death in the charge of Sri Manohar Lal Srivastava, on whose retirement, it was given in the custody of Sri Ram Milan Srivastava. It has also come in evidence that the petitioner took charge of the area only on 15.4.1986 and at the time of manipulation, he was not even in government service. Keeping in view the entire evidence on record and the facts and circumstances of the case, the Enquiry Officer appears to have concluded that the charge relating to manipulation or interpolation in the Khatauni was not proved against the petitioner. The Enquiry Officer only held that at the time of preparation of new Khatauni, the petitioner can not be said to be vigilant. However, as observed above, the disciplinary authority issued show cause notice based on the enquiry report dated 30.8.2008 but while doing so, he only proposed punishment and did not record any reason for his disagreement with the findings recorded by the Enquiry Officer. The procedure adopted by the disciplinary authority runs in contradiction with the legal principle propounded by Hon'ble Supreme Court in the cases of Punjab National Bank and others Versus Kunj Behari Misra (Supra) and Yoginath D. Bagde Versus State Of Maharashtra and another (supra). The reason of disagreement by disciplinary authority is missing in the show cause notice dated 16.9.2008. The petitioner was never confronted with the reason of disagreement, which as per the law laid down by Hon'ble Supreme Court discussed above, was mandatory. The submission of learned counsel appearing for the respondents that the procedure adopted by the disciplinary authority was legal is, thus, not tenable. The petitioner was never confronted with the reason of disagreement, which as per the law laid down by Hon'ble Supreme Court discussed above, was mandatory. The submission of learned counsel appearing for the respondents that the procedure adopted by the disciplinary authority was legal is, thus, not tenable. As a matter of fact, the court comes to the inescapable conclusion that the disciplinary authority has not followed the law as observed above whereby it was mandatory on his part to have given reason for his disagreement with the findings recorded by the Enquiry Officer and his tentative opinion about disagreement ought to have been communicated to the petitioner while inviting the reply from him. In the instant case though the show cause notice was served on the petitioner after second enquiry report was submitted by the Enquiry Officer on 30.8.2008 but the said show cause notice nowhere records any reason for disagreement by the disciplinary authority with the finding arrived at by the Enquiry Officer. In the light of above discussion, the court concludes that the procedure adopted by the disciplinary authority cannot be said to be in consonance with the legal principle mentioned above and hence, the impugned order of punishment based on the same is not sustainable. The next question for consideration is as to whether, keeping in view the facts and circumstances of the case, the matter needs to be remanded back to the disciplinary authority for his decision afresh. It is well settled principle of law as propounded by Hon'ble Supreme Court in the case of Yoginath D. Bagde Versus State Of Maharashtra and another (supra) that although the court cannot sit in appeal over the findings recorded by the disciplinary authority or the Enquiry Officer in a departmental proceeding but it does not mean that in no circumstances can the court interfere. In the said case, the Hon'ble Supreme Court further held that power of judicial review available to the High Court under the Constitution takes in its stride the domestic enquiry as well and the courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent person or the findings were perverse. The relevant extract enunciating the aforesaid principle of law can be found in para-51 of the judgment of Hon'ble Supreme Court in the case of Yoginath D. Bagde Versus State Of Maharashtra and another (supra), which runs as under:- "51. It was lastly contended by Mr. Harish N. Salve that this Court cannot reappraise the evidence which has already been scrutinised by the Enquiry Officer as also by the Disciplinary Committee. It is contended that the High Court or this Court cannot, in exercise of its jurisdiction under Article 226 or 32 of the Constitution, act as the Appellate Authority in the domestic enquiry or trial and it is not open to this Court to reappraise the evidence. The proposition as put forward by Mr. Salve is in very broad terms and cannot be accepted. The law is well-settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In Kuldeep Singh vs. The Commissioner of Police & Ors., JT 1998(8) SC 603 = (1999) 2 SCC 10 , this Court, relying upon the earlier decisions in Nand Kishore vs. State of Bihar AIR 1978 SC 1277 = (1978) 3 SCC 366 = (1978) 3 SCR 708 ; State of Andhra Pradesh vs. Sree Rama Rao AIR 1963 SC 1723 = (1964) 3 SCR 25 ; Central Bank of India vs. Prakash Chand Jain AIR 1969 SC 983 ; Bharat Iron Works v. Bhagubhai Balubhai Patel & Ors. AIR 1976 SC 98 = (1976) 2 SCR 280 = (1976) 1 SCC 518 as also Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) & Ors. AIR 1984 SC 1805 = (1985) 1 SCR 866 = (1984)4 SCC 635 , laid down that although the court cannot sit in appeal over the findings recorded by the Disciplinary Authority or the Enquiry Officer in a departmental enquiry, it does not mean that in no circumstance can the court interfere. AIR 1984 SC 1805 = (1985) 1 SCR 866 = (1984)4 SCC 635 , laid down that although the court cannot sit in appeal over the findings recorded by the Disciplinary Authority or the Enquiry Officer in a departmental enquiry, it does not mean that in no circumstance can the court interfere. It was observed that the power of judicial review available to a High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and the Courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse." When the evidence available on record in the instant case as discussed by the Enquiry Officer and the Disciplinary Authority is closely scrutinized, it is found that at the relevant point of time i.e. at the time when manipulation and interpolation in the Khatauni is said to have been made, the petitioner was not in government service. It has also come in evidence that at the relevant point of time Khatauni was in the custody of predecessor of the petitioner, namely, Brij Nandan Lal Srivastava. After the death of Brij Nandan Lal Srivastava, the same came in the custody of two more persons before it finally reached the petitioner. The Enquiry Officer has given categorical finding not once but twice that the petitioner cannot be said to be guilty of making manipulation/interpolation in the Khatauni as it was not in his custody. In the facts and circumstances of the case, the Court is of the opinion that remitting the matter back to the disciplinary authority will not serve any purpose and hence, there is no need of remanding it to the authorities below. In view of foregoing discussions made and reasons given, the Court is of the opinion that writ petition deserves to be allowed. Accordingly, impugned order of punishment dated 29.12.2008, passed by the Sub Divisional Officer, Kaiserganj, Bahraich, as contained in Annexure No.1 to the writ petition, is hereby quashed and the writ petition is allowed with all consequential benefits. The consequential benefits to the petitioner shall be made available within a period of three months from the date, a certified copy of this judgment is produced before the competent authority. The consequential benefits to the petitioner shall be made available within a period of three months from the date, a certified copy of this judgment is produced before the competent authority. However, there will no order as to cost. _____________