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2015 DIGILAW 1736 (ALL)

State of U. P. v. Virendra Kumar Srivastava

2015-07-03

DEVENDRA KUMAR UPADHYAYA, SHABIHUL HASNAIN

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JUDGMENT Heard Sri Amitabh Rai, learned Standing Counsel for the petitioners. 2. This writ petition challenges the order dated 18.11.2014, passed by the U.P.Public Services Tribunal, whereby the claim petition filed by the respondent no.1 against the punishment order was allowed. 3. The principal submission made by the learned Standing Counsel appearing for the petitioners while impeaching the impugned judgment and order passed by the Tribunal is that if the Tribunal was of the view that there was some lacuna in the inquiry and if the said lacuna is the sole basis of the impugned judgment and order, it was incumbent upon the Tribunal to have remitted the matter back to the Inquiry Officer/Disciplinary Authority to take the proceedings afresh from the stage it was found to be vitiated. In support of his submission he has placed reliance on a Division Bench judgment of this Court dated 16.4.2015 in the case of State of U.P. v. Dr. Mumtaz Arshi and another [Writ Petition No.494 (S/B) of 2015]. 4. Placing reliance on the aforesaid judgment it has been submitted by the learned counsel for petitioners that if no date, time and place was fixed in the inquiry, while setting aside the punishment order, the Tribunal ought to have required the proceedings to be conducted afresh by permitting the State to conduct the inquiry proceedings in accordance with law and in accordance with the observations which could have been made by the Tribunal. 5. The respondent no.1 was inflicted with the punishment of some recovery and stoppage of three annual increments on permanent basis by means of order dated 23.2.2007. It is the admitted case of the State-Petitioners that after issuing the charge sheet and after receipt of the reply to the charge sheet from the respondent no.1, no inquiry into the allegations levelled against the respondent no.1 was held; rather the Inquiry Officer submitted his report on the basis of the allegations contained in the charge sheet which were supported by certain documents and also by taking into account the reply submitted by the respondent no.1 to the charge sheet. 6. 6. The specific case taken by the respondent no.1 in the Claim Petition before the Tribunal was that after submission of the charge sheet, no inquiry at all was held by the Inquiry Officer and in view of the judgment rendered by this Court in the case of Yog Narain Dubey v. Managing Director (DB)(LB), reported in 2011 (29) LCD 2024 , based on such disciplinary proceedings, no punishment order can be inflicted on any chargesheeted employee/officer. 7. The State, which is the petitioner herein, filed written statement to the averments made in the Claim Petition by the respondent no.1 before the Tribunal wherein no specific denial was made to the assertion made by respondent no.1 that after submission of the reply to the charge sheet, no reply of any kind was held by the Inquiry Officer and that the punishment order is based solely on the inquiry report, which was submitted only on the basis of reply submitted by the respondent no.1 without conducting any inquiry or without fixing any date, time and place for the said purpose. 8. In view of the aforesaid admitted fact, the Tribunal has come to the conclusion that the punishment order, where no inquiry at all was held, was vitiated and has thus quashed the punishment order. 9. The submission made by the learned counsel appearing for the petitioners to the effect that it was incumbent upon the Tribunal to have remitted back the matter for taking up disciplinary proceedings afresh from the stage it was found to be vitiated, is misplaced in the facts and circumstances of the case. 10. So far as the proposition of law propounded by learned Standing Counsel is concerned, there cannot be any quarrel. However, it is to be seen as to whether the facts and circumstances of a particular case require remittance of the matter back for taking up the disciplinary proceedings afresh or not ? In case of any irregularity in the inquiry, or mistake or any lacuna, which is barely procedural in nature, it may be that the courts while examining the disciplinary proceedings, may be persuaded to remand the matter to the disciplinary authority/inquiry officer. However, the aforesaid principle, in our considered opinion, would have no application in a case where punishment order is based on no inquiry at all. However, the aforesaid principle, in our considered opinion, would have no application in a case where punishment order is based on no inquiry at all. The distinction between a case of no inquiry and a case of some irregularity during the course of inquiry, has to be borne in mind. 11. The judgment relied upon by the learned counsel appearing for the State on the case of Dr. Mumtaz Arshi (supra) was a case where reliance was placed on a judgment of Hon'ble the Supreme Court in the case of Chairman, Life Insurance Corporation of India and others v. A Masilamani, (2013) 6 SCC 530 , wherein the Hon'ble Supreme Court had set aside the order of punishment on the ground that inquiry was not properly conducted. 12. As observed above, the instant case is a case of no inquiry and not a case of improper inquiry. 13. Further, we may also note that the respondent no.1 has retired in the year 2007, which fact also dissuades us to accept the submissions which have been advanced on behalf of the State-Petitioners by the learned Standing Counsel and to interfere in the impugned judgment and order passed by the Public Services Tribunal. 14. Accordingly, we are not inclined to interfere with the impugned judgment and order passed by the Public Services Tribunal. 15. The writ petition is, thus, hereby dismissed.