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2013 DIGILAW 71 (UTT)

STATE OF U. P. v. KUNDAN SINGH

2013-02-28

Alok Singh, Barin Ghosh

body2013
JUDGMENT Hon’ble Barin Ghosh CJ (Oral). 1. Certain allegations were levelled against respondent no. 1, a U.P. State Government Employee, in respect whereof respondent no. 1 had written a letter. Subsequently, that letter was withdrawn. Soon thereafter, respondent no. 1 was charge-sheeted by the State of Uttar Pradesh. Respondent no. 1 denied the charge. Accordingly, an Inquiry Officer was appointed. The Inquiry Officer purported to conclude the inquiry solely on the basis of that letter. No witness was examined by the Inquiry Officer and, even if examined, no opportunity of cross examining them was given to respondent no. 1. Accepting the report of the Inquiry Officer, the Disciplinary Authority dismissed respondent no. 1 from service. On an approach made by respondent no. 1, the Public Services Tribunal, Uttar Pradesh set aside the order of dismissal and directed reinstatement with back wages. The State of Uttar Pradesh filed the present writ petition. The same was admitted, but prayer for stay of the whole order of the Tribunal was refused. The Hon’ble Allahabad High Court only stayed that part of the order of the Tribunal, which directed the payment of back wages. Subsequent thereto, the writ petition was transferred to this Court. A Division Bench of this Court on 2nd September, 2003 passed yet another interim order on the writ petition and directed the writ petitioners to reinstate respondent no. 1 with effect from 1st September, 2003. Aggrieved by the said interim order dated 2nd September, 2003, the State of Uttaranchal moved to Hon’ble Supreme Court but by the order dated 5th February 2007, the Hon’ble Supreme Court refused to interfere with the direction for reinstatement subject to the final outcome of the writ petition, but, at the same time, stayed the direction for payment of back wages until disposal of the writ petition. 2. Heard Mr. Vinay Kumar, learned Standing Counsel for the State of Uttarakhand. No one is appearing on behalf of respondent no. 1. 3. The question is, whether the order of Tribunal quashing the order of the Disciplinary Authority dismissing respondent no. 1 is interfereable or not? It is not in dispute that the letter, which purportedly contained admission, was withdrawn by respondent no. 1 even before the disciplinary proceeding was initiated by issuing the charge-sheet. Therefore, while there was a purported admission, there was also a withdrawal thereof. 1 is interfereable or not? It is not in dispute that the letter, which purportedly contained admission, was withdrawn by respondent no. 1 even before the disciplinary proceeding was initiated by issuing the charge-sheet. Therefore, while there was a purported admission, there was also a withdrawal thereof. In a circumstance of that nature, was it not necessary for the Inquiry Officer or the Disciplinary Authority to permit respondent no. 1 to substantiate that his withdrawal was sustainable? This opportunity having not been given, neither the Inquiry Officer nor the Disciplinary Authority could rely upon the said purported admission. In the event, the purported admission is taken away, there is nothing on record of the disciplinary proceeding, which would suggest that the charges levelled against respondent no. 1 stand otherwise proved. 4. In the circumstances, there is no scope of interference with the order of Tribunal, by which the disciplinary order dismissing respondent no. 1 was set aside. In the circumstance, the question is, whether respondent no. 1 was entitled to back wages? 5. The subject is dealt with by the Rules framed by the State of Uttar Pradesh applicable squarely to the State of Uttarakhand. Those are contained in Financial Handbook Volume II (Parts II to IV). Rule 54-A thereto provides that where dismissal is set aside by a court of law and the Government Servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government Servant shall be paid pay and allowances in accordance with the provisions of Sub-Rules 2 or 3 thereto subject to the directions, if any, of the Court. Sub Rule 2 deals with such dismissal, which has been set aside solely on the ground of non compliance with the requirements of Clauses 1 or 2 of Article 311 of the Constitution of India. In such cases, the Government Servant is not entitled to the whole amount of his back wages, but the Disciplinary Authority is required to determine the quantum of back wages the Government Servant will be entitled to receive. Sub Rule 3 provides, where the dismissal is set aside on the merits of the case, the Government Servant shall be entitled to the full back wages. 6. Sub Rule 3 provides, where the dismissal is set aside on the merits of the case, the Government Servant shall be entitled to the full back wages. 6. In the instant case, the dismissal order has not been set aside for non compliance of the requirements of Clauses 1 or 2 of Article 311 of the Constitution of India, but on the ground that the same was liable to be set aside on merits of the case. Therefore, there is also no scope of interference with order of the Tribunal directing payment of back wages. 7. We, accordingly, dismiss the writ petition.