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2016 DIGILAW 3327 (ALL)

Virendra Kumar Srivastava v. State of U. P.

2016-09-28

RAJAN ROY

body2016
JUDGMENT Rajan Roy, J. Heard learned counsel for the parties. 2. The petitioner when he was working as Ahalmed in the office of Land Acquisition Officer, District Gonda was subjected to disciplinary proceedings. A charge sheet containing 11 charge was issued to him on 20.05.2003. He submitted his response on 03.12.2003. Categorical averments have been made in paragraph 9 and 18 of the writ petition that after submission of such reply the Inquiry Officer did not fix any date, time and place for inquiry nor did he intimate the petitioner about the same and without holding any inquiry worth the name the inquiry report was prepared and submitted to the Disciplinary Authority. 3. In response to the aforesaid paragraph of the writ petition the opposite parties in paragraph 9 of the counter affidavit has admitted that after submission of the reply to the charge sheet dated 20.05.2003 and after due consideration of the reply submitted by the petitioner the Inquiry Officer submitted the inquiry report to the Disciplinary Authority on 17.01.2005. There is no averment that any date, time and place for inquiry was fixed. The averments made in paragraph 9 in this regard have not been specifically and categorically denied by referring to any date, time and place having been fixed rather the contents have been admitted as is evident from the recital contained therein as noted hereinabove. Similarly, in paragraph 18 of the counter affidavit bald averments have been made which do not constitute any denial in the eye of law. There is no material annexed with the counter affidavit to indicate that any date, time and place was fixed. Needless to say that this was necessary as it was a regular full-fledged departmental inquiry for imposition of major punishment. 4. After the submission of inquiry report, the Disciplinary Authority issued a show cause notice to the petitioner on 10.03.2005 to which the petitioner submitted his reply on 27.05.2005. Thereafter the impugned order was passed by the Disciplinary Authority on 02.07.2005 imposing the punishment of reduction to the initial stage of the pay scale i.e. Rs.3050/- which is a major punishment under rule 3 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. Being aggrieved, the petitioner preferred an appeal which has been dismissed. 5. Thereafter the impugned order was passed by the Disciplinary Authority on 02.07.2005 imposing the punishment of reduction to the initial stage of the pay scale i.e. Rs.3050/- which is a major punishment under rule 3 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. Being aggrieved, the petitioner preferred an appeal which has been dismissed. 5. The learned standing counsel was not able to place before the Court any such averment or material to show that any date, time and place was fixed for holding inquiry as per law. The inquiry report reveals that after mentioning the charges and reply thereto a cryptic conclusion has been drawn that considering the objection of the Lekhpal and the material on record including the reply of the petitioner he along with two other officials i.e. Land Acquisition Officer and Sri Rama Kant who was holding the charge of Ahalmed are responsible for the lapses. The conclusions are bereft of any discussion of evidence and reasoning based thereon. This is so in respect of all 11 charges. Time and again this Court as well the Supreme Court has said that such a cryptic conclusion drawn by the Inquiry Officer or the Disciplinary Authority such as do not stand the test of reasonable and fair action nor the principle of natural justice. 6. Having perused the inquiry report the Court is of the view that the Inquiry Officer has prepared his inquiry report with his cryptic conclusion without specifically pointing out the misconduct on the part of the petitioner based on the allegations against him, the evidence on record, his reply to the charge sheet etc. The inquiry report merely contains conclusions which are not preceded by any decision based on the evidence on record or reply nor any reason which may have persuaded the Inquiry Officer to arrive at such conclusion. The inquiry report does not disclose any application of mind to the facts which are relevant to the matter nor to the reply submitted by the petitioner. The order of punishment is no better. It cursorily refers to the factum of issuance of charge sheet, submission of reply by the petitioner, submission of the inquiry report, issuance of show cause notice to the petitioner along with inquiry report, his reply thereto and thereafter records a cryptic observation that the Disciplinary Authority is in agreement with the inquiry report. It cursorily refers to the factum of issuance of charge sheet, submission of reply by the petitioner, submission of the inquiry report, issuance of show cause notice to the petitioner along with inquiry report, his reply thereto and thereafter records a cryptic observation that the Disciplinary Authority is in agreement with the inquiry report. The punishment order suffers from the same defect from which the inquiry report suffers. It is a non-speaking and unreasoned order which does not disclose due application of mind as is required by the Disciplinary Authority while passing a penal order. The order does not stand the test of principles of natural justice nor fairness of the action. 7. As far as the appellate order is concerned, though, after referring to the gist of 11 charges it states that after submission of report by the Amin the petitioner ought to have examined as to whether the compensation has been properly calculated or not before putting the file before the Land Acquisition Officer, it does not consider any of the pleas raised by the petitioner in his appeal just as the Disciplinary Authority did not consider any of the pleas raised either in the reply to the charge sheet or to the show cause notice issued to the petitioner especially considering the denial contained in his reply that it was not his duty to examine the file in fact this was the duty of Sri Rama Kant who was holding regular charge of the file who was not present during particular period and the petitioner was asked to look after his work. The appellate order does not disclose due and proper application of mind. Moreover this order can hardly remove the deficiency which have already been mentioned hereinabove at such a belated stage, therefore, the appellate order can also not be sustained. 8. on a perusal of the inquiry report the Court finds that the Inquiry Officer has presumed all the charges levelled against the petitioner to be proved instead of proving the same on the basis of evidence. 9. In view of the above discussion as there is gross violation of the U.P. Government servant (Discipline and Appeal) Rules, 1999 and the procedure prescribed therein for holding inquiry/disciplinary proceedings for imposition of major punishment and as there is also gross violation of Article 311 of the Constitution, the impugned orders are hereby quashed. 9. In view of the above discussion as there is gross violation of the U.P. Government servant (Discipline and Appeal) Rules, 1999 and the procedure prescribed therein for holding inquiry/disciplinary proceedings for imposition of major punishment and as there is also gross violation of Article 311 of the Constitution, the impugned orders are hereby quashed. Since the petitioner retired from service on 31.10.2014 and the opposite parties inspite of having an opportunity to hold an inquiry as per Rules did not do so, therefore, now at this belated stage, there is no reason for this Court to direct the opposite parties to hold inquiry afresh against the petitioner. Consequent to aforesaid quashing of the impugned orders the petitioner shall be entitled to all the monetory service benefits and post retiral benefits which have to be recalculated and the same shall be done within a period of three months from the date a certified copy of this order is produced before the authority concerned. 10. The writ petition is allowed.