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Allahabad High Court · body

2013 DIGILAW 1994 (ALL)

Arvind Kumar Pandey v. State of U. P. and Others

2013-08-01

RAJIV SHARMA, SATISH CHANDRA

body2013
By The Court— Heard learned Counsel for the parties. 2. Through the instant writ petition, the petitioner prays for quashing the Office Order dated 16.8.2010 passed by the opposite party No.1 against the petitioner penalizing him by giving minor penalty of Censure entry and major penalty by putting him in the lowest pay scale of the Pay Grade for violation of Rule 3 of the U.P. Government Servants' Conduct Rules, 1956, contained in Annexure No.1 to the writ petition. 3. Factual matrix of the case is that on 9.11.2001, the petitioner was directed by the Head Office to file counter-affidavit in one Civil Misc. Writ Petition No. 1577/2000, Gautam Chatterjee versus State of U.P. and others at Allahabad. Pursuant to this direction, the petitioner filed the counter-affidavit. Thereafter, in the said writ petition, the department was directed to decide the representation. The Department neither filed the appeal nor the Review Petition; instead, an appointment letter was issued. 4. Thereafter, disciplinary proceedings were initiated against the petitioner inter alia on the ground that he has filed a false counter-affidavit in the aforesaid Civil Misc. Writ Petition No.1577 of 2000 showing one vacancy in Physically Handicapped quota without ascertaining the correct fact causing serious embarrassment to the department. On 16.10.2004, the Head of Department informed the State Government that the averments made by him counter-affidavit filed were correct and he did not commit any mistake. When the matter was referred to the Uttar Pradesh Public Service Commission for its advice on the issue under Rule 16 of U.P. Government Servant (Disciplinary & Appeal) Rules, 1999[hereinafter referred to as 1999 Rules'], the Commission stated that the mistake of the petitioner does not warrant major punishment and 'censure entry' is sufficient enough. However, a charge sheet was served for violation of Rule 3 of the U.P. Government Servants Conduct Rules, 1956, to which reply was tendered denying the charges levelled against him. Subsequently, the petitioner was punished in gross violation of the 1999 Rules though the concurrence was not given by the Public Service Commission. 5. Learned Counsel for the petitioner submits that as per guidelines dated 31.12.1992, instead of obtaining approval from the Cabinet, the matter was again referred to the Commission for reconsideration of its view. The Commission sticks to its original view of awarding 'censure entry' as the proposed punishment is too harsh. 5. Learned Counsel for the petitioner submits that as per guidelines dated 31.12.1992, instead of obtaining approval from the Cabinet, the matter was again referred to the Commission for reconsideration of its view. The Commission sticks to its original view of awarding 'censure entry' as the proposed punishment is too harsh. According to him, no offence was committed by him. Further, no date, time and place has been fixed by the Enquiry Officer. In these circumstances, the impugned order is liable to be quashed. To strengthen his arguments, reliance has been placed upon the case laws of State of Gujarat v. R.G. Teredesai and another, [1969 (2) SCC 157], Union of India and others v. J. Ahmed,[ (1979) 2 SCC 286 ], Raj Kumar Mehrotra v. State of Bihar and others, [ (2005) 12 SCC 256 ], Vijay Singh v. State of U.P. and others. [ (2012) 5 SCC 242 ], Kamla Charan Mishra v. State of UP. and others, [2009 (27) LCD 130], Snravan Kumar Purwar v. Inspector General (Rajasthan) U.P. Allahabad and others. [(2007) 1 UPLBEC 444] and Raiendra Pratap Singh v. State of U.P. and others. [2011 (29) LCD 2417]. 6. A counter-affidavit has been filed by the State Government, wherein it has been stated that on 6.12.2005, the petitioner was informed that he wrongly informed the Court that one vacancy was lying vacant in physically handicapped quota. The opposite party No.4 found the petitioner's guilt to the effect that without specific verification about the vacancy, petitioner filed an affidavit before the Court at Allahabad. Therefore, the impugned order has rightly been passed and the writ petition is liable to be dismissed. 7. The Commission has also filed its counter-affidavit, mentioning that Sri Gautam Chatterjee was recommended for appointment for the post of Audit officer reserved for disabled category through Combined State Service (PCS) Examination, 1988 and he failed to join within time so his candidature was rejected. Subsequently, he had filed Civil Misc. Writ Petition No. 15771 of 2000. It is in this writ petition, the petitioner had filed an affidavit on behalf of the Department that one post of Audit Officer of disabled category is lying vacant. Subsequently, he had filed Civil Misc. Writ Petition No. 15771 of 2000. It is in this writ petition, the petitioner had filed an affidavit on behalf of the Department that one post of Audit Officer of disabled category is lying vacant. Though no such post was vacant on the said date, yet relying upon the averments made in the affidavit as also on the dictate of the order passed by the Principal Seat at Allahabad, the department was bound to give appointment to Gautam Chatterjee on the post of Audit Officer. As the charges levelled against the petitioner were found proved, the proposed punishment of censure entry and reduction of the petitioner on his initial pay scale was passed. 8. Considered the submissions made by the parties' counsel and perused the record including the impugned order. Admittedly, the petitioner while working as Regional Audit Officer, Allahabad was entrusted to file an affidavit in writ petition No. 1577 of 2000 (Gautam Chatterjee v. State of U.P. and others). Pursuant to the directions issued by the higher authorities, the petitioner filed an affidavit. The only dispute in this writ petition is that the petitioner without verifying the contents sworn and filed the affidavit. It is necessary to point out that the petitioner at the relevant time was working as Regional Audit Officer. On the instructions/narrative given by the Head of Department, the petitioner was authorized to file an affidavit. In compliance Of the directions of the higher ups, he filed the affidavit. Nothing has been brought on record to show that contrary to the directions issued by the Head of Department, the petitioner has filed the affidavit. When the department was bound to offer an appointment to Gautam Chatterjee, pursuant to the order passed by the Principal Seat at Allahabad, the petitioner was made an escape goat. The petitioner can be held guilty if he has made statements in the affidavit contrary to the para-wise narrative/point-wise summary given by the Department. Rather, the Head of the Department had himself took a stand that the petitioner is not guilty as whatever he has stated in the affidavit, the same was in accordance with the para-wise narrative. The petitioner can be held guilty if he has made statements in the affidavit contrary to the para-wise narrative/point-wise summary given by the Department. Rather, the Head of the Department had himself took a stand that the petitioner is not guilty as whatever he has stated in the affidavit, the same was in accordance with the para-wise narrative. Therefore, no fault can be attributed to the petitioner and it was incumbent upon the State Government to inquire into the matter to find out as to who was the person responsible for mentioning the incorrect facts in the narrative. Thus, the petitioner cannot be punished for the fault, if any of the others. It may be added that no remedial steps were taken by the State Government to correct the statement made in the affidavit sown by the petitioner. It also creates doubt in our mind. Moreover, the Enquiry Officer in the report also the proposed the punishment, which is highly illegal as it is well settled by number of decisions that it is not within the domain of the Enquiry Officer to propose punishment as doing so, prejudiced the mind of the Disciplinary Authority. 9. Not only this, during the course of enquiry, petitioner was not afforded opportunity of hearing, inasmuch as no document has been placed before us to show as to when he was intimated to appear before the Enquiry Officer to defend himself. Thus, the proceedings were conducted in breach of the principles of natural justice. 10. It is settled principle of law that if no date, time and place is fixed and communicated to the delinquent for conducting the inquiry after reply to the chargesheet is submitted, the entire disciplinary proceedings would be vitiated. (See: Awadhesh Kumar Rastogi v. State of U.P and others:2004 (22) LCD 1) and Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Limited:(2003 LCD page 610). 11. We would like to mention that if the element of motive behind any lapse and dereliction of duty is absent, then for that reason, no employee shall be punished or face disciplinary enquiry as has been laid down by the Apex Court in the case of Union of India and others v. J. Ahmed (supra). Here, in this case, the petitioner complied the directions of the authorities in its letter and spirit. Even then, he has been punished by the impugned order. 12. Here, in this case, the petitioner complied the directions of the authorities in its letter and spirit. Even then, he has been punished by the impugned order. 12. Further, the grounds raised by the petitioner in his reply to charge sheet have not been considered and in very mechanical ma the enquiry proceeded and the impugned order has been passed, which is against the legal proposition as has been held in the case of Raj Kumar Mehtora v. State of Bihar and others (supra). 13. Before inflicting major penalty, the department is bound to follow the procedure prescribed in the Rules. To explicit in clear terms, it is necessary to mention that neither date, time and place was fixed nor relevant papers have been furnished to the delinquent officer. Therefore, the case laws relied upon by the petitioner are applicable. In totality, the writ petition succeeds and the impugned order is liable to be quashed. 14. Accordingly, the writ petition is allowed and the impugned order dated 16.8.2010, contained in Annexure No.1 to the writ petition is quashed Consequences shall follow. _____________