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2012 DIGILAW 987 (ALL)

RAJVEER SINGH JUREL v. STATE OF U. P.

2012-04-26

ASHOK BHUSHAN, PRAKASH KRISHNA

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JUDGMENT By the Court.—Heard Shri Anil Kumar Srivastava, learned counsel for the petitioner and Shri V.K. Chandel, learned Standing Counsel appearing for the respondents. Counter-affidavit, supplementary counter-affidavit as well as rejoinder-affidavit have been exchanged between the parties and with the consent of the learned counsel for the parties, the writ petition is being finally disposed of. 2. By this writ petition, the petitioner has prayed for quashing the order dated 15.4.2010 issued by the State Government reducing pension of the petitioner exercising power under Section 351-A of Civil Services Regulations. The petitioner has further prayed to issue a writ, order or direction in the nature of mandamus commanding the respondents not to recover any amount from the pension of the petitioner, in pursuance of the impugned order. 3. Brief facts of the case as emerged from the pleadings of the parties are : The petitioner who was working as Chief Engineer, Minor Irrigation Department retired on 31.8.2007. Two days before the superannuation he was placed under suspension on the basis of several allegations. A charge-sheet was issued on 31.8.2007 i.e. on the last day of the retirement of the petitioner levelling three charges against the petitioner. 4. One Hariminder Raj Singh, Principal Secretary (Agriculture) was appointed as an inquiry officer vide order dated 10.12.2007. An inquiry report was submitted on 29.2.2008 exonerating the petitioner from all the charges. The said inquiry report was considered by the State Government and the State Government issued a notice. An order was issued on 15.7.2008 opining that charge No. 1 appears to be fully proved. The copy of the inquiry report was forwarded to the petitioner requesting him to submit his representation, if any within 15 days. After receiving the show-cause notice dated 15.7.2008 raising various pleas and giving facts, the petitioner disproved the charge No. 1. 5. After receipt of the representation dated 7.8.2008, the State Government did not take any decision in the matter rather issued a letter to the inquiry officer asking the inquiry officer to submit a detailed report with regard to charge No. 1. The State Government requested to the inquiry officer to submit a clear opinion with regard to charge No. 1 and if any evidence is required in this context the same may be obtained from Irrigation Department. The said letter has been filed as Annexure SCA-3 to the supplementary counter-affidavit. 6. The State Government requested to the inquiry officer to submit a clear opinion with regard to charge No. 1 and if any evidence is required in this context the same may be obtained from Irrigation Department. The said letter has been filed as Annexure SCA-3 to the supplementary counter-affidavit. 6. The inquiry officer after receipt of the said letter of the Government dated 4.3.2009 submitted another report dated 1.10.2009 again giving finding that charge No. 1 is not proved on the petitioner. The State Government after receiving the report dated 1.10.2009 from the inquiry officer straightway passed the order impugned reducing 30% pension of the petitioner against which order this writ petition has been filed. 7. The learned counsel for the petitioner challenging the order contended that the impugned order dated 15.4.2010 is based on misconception that charge No. 1 has been found proved by the inquiry officer whereas the inquiry officer in both his reports i.e. inquiry report dated 29.2.2008 and the supplementary inquiry report dated 1.10.2009 has categorically held that charge No. 1 has not been proved. It has been further submitted that after receipt of the supplementary inquiry report, no notice or opportunity was given to the petitioner which is in violation of statutory provision of U.P. Government Servant (Discipline and Appeal) Rules, 1999. 8. Shri Chandel, learned counsel appearing for the State submitted that from the materials on the record, charge was fully proved against the petitioner. He further submits that since the show-cause notice was already issued to the petitioner after receipt of the enquiry report dated 29.2.2008, it was not necessary to issue a notice again to the petitioner subsequent to receipt of the supplementary inquiry report on 1.10.2009. 9. We have considered the submissions of the learned counsel for the parties and perused the record. 10. The conduct of inquiry against the Government servant is regulated by U.P. Government Servant (Discipline and Appeal) Rules, 1999. Rule 9 of the Rules provides for Action on Inquiry Report. Rule 9 is quoted as below : 9. Action on Inquiry Report.—(1) The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. Rule 9 of the Rules provides for Action on Inquiry Report. Rule 9 is quoted as below : 9. Action on Inquiry Report.—(1) The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7. (2) The Disciplinary Authority shall, if it disagree with the findings of the Inquiry Officer on any charge, record its own findings thereon for reasons to be recorded. (3) In case the charges are not proved, the charged Government Servant shall exonerated the Disciplinary Authority of the charges and informed him accordingly. (4) If the Disciplinary Authority, having regard to its finding on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government Servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government Servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government Servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules, and communicate the same to the charged Government Servant. 11. The Disciplinary Authority according to Rule 9 is empowered to remit the re-inquiry for the reasons to be recorded or any other Inquiry Officer may be appointed. The Rule 9 of Rule (2) provides that if Disciplinary Authority disagrees with the findings of the Inquiry Officer on any charge, it shall record its own finding for reasons to be recorded and under Rule 9(4) penalty specified in Rule 3 should be imposed after having regard to its findings on all or any of charges. 12. In the present case, the Inquiry Officer submitted the report dated 29.2.2008 exonerating the petitioner from all the charges. After receipt of the inquiry report, show-cause notice was issued on 15.7.2008. 13. 12. In the present case, the Inquiry Officer submitted the report dated 29.2.2008 exonerating the petitioner from all the charges. After receipt of the inquiry report, show-cause notice was issued on 15.7.2008. 13. The learned Standing Counsel states that after considering the inquiry report at the State level, it has been found that charge No. 1 is proved. It was stated that the petitioner being Head of the Department, it was his duty to determine and calculate the applicability of reservation on the backlog vacancies as per the rule. One Shri Rajendra Singh, Superintending Engineer was authorised to hold selection. 14. After receipt of the notice, a detailed representation has been submitted by the petitioner on 7.8.2008 which has been brought on the record by the State and filed as Annexure SCA-2. In detailed representation, the petitioner has given reasons for refuting the observation in the notice that charge No. 1 is proved. After the petitioner submitted his representation, the State Government issued a letter to Inquiry Officer on 25.3.2009 asking the Inquiry Officer to submit a clear report on charge No. 1. The said letter has been filed as Annexure SCA-4. The letter further indicates that it may be informed that the posts created were of which level and who was the appointing authority of the said posts. Subsequent to letter dated 25.3.2009, the Inquiry Officer submitted his supplementary inquiry report on 1.10.2009 which has been filed as Annexure-CA-2 to the counter-affidavit. The Inquiry Officer again after considering the entire material concluded that charge No. 1 is not proved against the petitioner. It has been held by the Inquiry Officer that there are Government Orders by which 44 supernumerary posts were created by filling the back log reserved vacancies. The posts were of which level are not clear. 15. The explanation of the petitioner was found satisfactory. The supplementary inquiry report thus again exonerated the petitioner. The petitioner submits that after receipt of the supplementary inquiry report without any opportunity or any notice to the petitioner, the order has been passed. The order which has been passed by the State Government, is impugned in the writ petition wherein it has been held that charge No. 1 has been found to be proved. The petitioner submits that after receipt of the supplementary inquiry report without any opportunity or any notice to the petitioner, the order has been passed. The order which has been passed by the State Government, is impugned in the writ petition wherein it has been held that charge No. 1 has been found to be proved. The State Government again observed in the order that post was found to be the State level and petitioner being Head of the Department and was required to send the select list to the appointing authorities. 16. A perusal of the order dated 15.4.2010 clearly indicates that the Government has disagreed with the finding of the Inquiry Officer. Here the disagreement is with regard to both the inquiries i.e. inquiry report dated 29.2.2008 and supplementary inquiry report dated 1.10.2009. When the State Government disagreed with the supplementary inquiry report, there has to be recording of reasons and communication to the delinquent employee as required by the Rule 9(4). 17. After the receipt of the supplementary inquiry report, no notice or opportunity was given to the petitioner nor his reply was called for. The present is a case where the Disciplinary Authority proceeded to hold inquiry in accordance with the U.P. Government Servant (Discipline and Appeal) Rules, 1999 which proceedings were initiated prior to superannuation of the petitioner. The Disciplinary Authority was thus required to follow the statutory provisions. In the supplementary counter-affidavit filed by the State in paragraph 9, the following averments have been made : “9. That it submitted before this Hon’ble Court that as the enquiry report was submitted by the enquiry officer on 29.2.2008 and only with regard to charge No. 1, a clarification/opinion was sought from the enquiry officer, which was received from him through his subsequent letter dated 1.10.2009, the department was of the view that this letter dated 1.10.2009 is only a clarification/opinion regarding one of the charges and not a fresh enquiry report. That is why no show-cause notice was again given to the petitioner after 1.10.2009. It is humbly submitted before this Hon’ble Court that since the petitioner had already replied through his representation dated 7.8.2008 issued as per provisions of Rule 9(4) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, no fresh notice was needed to be given to him after 1.10.2009. 18. It is humbly submitted before this Hon’ble Court that since the petitioner had already replied through his representation dated 7.8.2008 issued as per provisions of Rule 9(4) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, no fresh notice was needed to be given to him after 1.10.2009. 18. The submission made in paragraph-9 of the supplementary counter-affidavit makes it clear that no show-cause notice was given after 1.10.2009 to the petitioner. Moreover, the Inquiry Officer in his inquiry report as well as in supplementary inquiry report has held that charge is not proved and the State was also to give cogent reasons for disagreeing with the findings of the Inquiry Officer. The order dated 15.4.2010 does not record sufficient reasons within the meaning of Rule 9 except the conclusion that the inquiry report was examined and it has been found that the charge is proved. 19. In the facts and circumstances of the case, there has been violation of the statutory provisions of 1999 Rules and there being no sufficient reasons for holding the charge proved by the State Government in the impugned order, the impugned order dated 15.4.2010 deserves to be set aside, and is, therefore, set aside. 20. In the result, the writ petition succeeds and is allowed. ——————