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2017 DIGILAW 120 (ALL)

State of U. P through Principal Secretary, Department of Home, v. Vinod Kumar Tripathi

2017-01-10

RAVINDRA NATH MISHRA II, SUDHIR AGARWAL

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JUDGMENT 1. Heard learned Standing Counsel for petitioners and perused the record. 2. The writ petition under Article 226 has come up assailing the judgment and order dated 18.05.2016 passed by State Public Service Tribunal, Lucknow (hereinafter referred to as "Tribunal") allowing claimant-respondent, Vinod Kumar Tripathi's Claim Petition No. 1062 of 2014 wherein order of punishment of reduction in pay scale for three years has been quashed and Tribunal has also directed that for the period of suspension, claimant-respondent shall be paid full salary and the said period shall be treated to be on duty. The operative part of judgment reads as under: "This claim petitioner is hereby allowed. Impugned order dated 11.11.2013 (Annexure no.1), appellate order dated 26.08.2014 (Annexure no.13) and order dated Jan. 2015 (Annexure no.14) are hereby quashed. Opp. parties are directed to pay the subsistence allowance for the period 07.11.2000 to 30.09.2002 and 07.02.2012 to 11.11.2013 and treat his absence period from duty i.e. 30.08.1997 to 06.11.2000 as on duty. The opp. parties are further directed to take decision on the back wages for the dismissal period of the petitioner in the light of the Hon'ble Allahabad High Court ruling held in Special Appeal no. 98/2016 Dharmendra Singh Vs. State of U.P. and others. The whole judgment shall be complied with within a period of three months from the date when a certified copy of this order is served upon the opp. parties." 3. Learned Standing Counsel said that though in the earlier proceedings when punishment order was set aside on the ground of violation of principles of natural justice, time period was given within which petitioners were supposed to complete enquiry, which they could not, but that by itself would not be a ground for setting aside punishment order and relied on a full Bench judgment of this Court dated 04.12.2013 in Writ Petition (Service Single) No. 7179 of 2009 (Abhishek Prabhakar Awasthi Vs. New India Assurance Company Limited and others) wherein following questions were referred for the opinion of Full Bench: "(a) Whether if an inquiry proceeding is not concluded within a time frame fixed by a court and concluded thereafter, without seeking extension from the Court then on the said ground the entire inquiry proceeding as well as punishment order passed, is vitiated in view of the judgment in the case of P.N. Srivastava; and (b) Whether the law as laid down by a Division Bench of this Court in the case of P.N. Srivastava that if an inquiry proceeding is not concluded within a time frame as fixed by a Court, it stands vitiated is still a good law in view of the judgment rendered by the Supreme Court in the case of Suresh Chandra as well as a judgment dated 27.07.2009 of a Division Bench of this Court in Writ Petition No. 1056 (SB) of 2009 (Union of India and others Vs. Satendra Kumar Sahai and another)." 4. The said questions were answered as under: "(A) Question No. (a): We hold that if an enquiry is not concluded within the time which has been fixed by the Court, it is open to the employer to seek an extension of time by making an appropriate application to the court setting out the reasons for the delay in the conclusion of the enquiry. In such an event, it is for the court to consider whether time should be extended, based on the facts and circumstances of the case. However, where there is a stipulation of time by the Court, it will not be open to the employer to disregard that stipulation and an extension of time must be sought; (B) Question No. (b): The judgment of the Supreme Court in the case of Suresh Chandra (supra) as well as the judgment of the Division Bench of this Court in the case of Satyendra Kumar Sahai (supra) clearly indicate that a mere delay on the part of the employer in concluding a disciplinary enquiry will not ipso facto nullify the entire proceedings in every case. The court which has fixed a stipulation of time has jurisdiction to extend the time and it is open to the court, while exercising that jurisdiction, to consider whether the delay has been satisfactorily explained. The court which has fixed a stipulation of time has jurisdiction to extend the time and it is open to the court, while exercising that jurisdiction, to consider whether the delay has been satisfactorily explained. The court can suitably extend time for conclusion of the enquiry either in a proceeding instituted by the employee challenging the enquiry on the ground that it was not completed within the stipulated period or even upon an independent application moved by the employer. The court has the inherent jurisdiction to grant an extension of time, the original stipulation of time having been fixed by the court itself. Such an extension of time has to be considered in the interests of justice balancing both the need for expeditious conclusion of the enquiry in the interests of fairness and an honest administration. In an appropriate case, it would be open to the Court to extend time suo motu in order to ensure that a serious charge of misconduct does not go unpunished leading to a serious detriment to the public interest. The court has sufficient powers to grant an extension of time both before and after the period stipulated by the court has come to an end." 5. In the present case, we find that it is not necessary to look into this question for the reason that Court below has not set aside the impugned order of punishment merely on the ground that time period directed by the Court was not adhered to but there is a substantial ground on which impugned order has been set aside, i.e., denial of adequate opportunity by not supplying relied on documents to claimant-respondent. Admittedly charge sheet was issued to claimant-respondent on 16.07.2001 but along with that all the relied on documents were not supplied and one relied document is preliminary enquiry report. In the list of witnesses, petitioners also mentioned six names, which included name of one Parmeshwar Rai, Deputy Superintendent of Police, Railway-II, Lucknow, who was a witness to prove preliminary enquiry report. Meaning thereby, it was an important document, but, admittedly the said document was not supplied to delinquent employee during the course of oral enquiry. Learned Standing Counsel stated that after receiving enquiry report, the said report along with show cause notice was supplied, but that will not cure substantial defect already occurred in proceedings which have effect of denial of opportunity of defense. 6. Learned Standing Counsel stated that after receiving enquiry report, the said report along with show cause notice was supplied, but that will not cure substantial defect already occurred in proceedings which have effect of denial of opportunity of defense. 6. In Kashinath Dikshita vs Union Of India and others AIR 1986 SC 2118 , Court has held that documents relied on in support of charge-sheet are to be supplied to delinquent employee and this requirement is mandatory. 7. Following Kashinath Dikshita (supra) in State of U.P. Vs. Shatrughan Lal & Anr. (1998) 6 SCC 651 , Court said that when charge sheet is issued and documents are proposed to be utilized against the employee concerned, if he is required to submit reply without furnishing documents relied by the Department it would amount to denial of effective opportunity of defence. 8. This Court has also taken same view in Writ Petition (Writ-A) No. 1019 of 2002 (Shant Deo Tripathi Vs. Dy. General Manager/Appellate Authority S.B.I. & Others) decided on 16.09.2011. 9. Further with regard to denial of salary for the period of suspension and others, learned Standing Counsel could not dispute that it is not one of the punishment prescribed under Rules, and, at the best, authorities could have passed appropriate order under Fundamental Rule 54B, but no such order was admittedly passed following the procedure prescribed under the said provision. 10. In view of discussion made hereinabove, it cannot be said that Tribunal has committed any manifest error in setting aside punishment order. No interference, therefore, is called for. 11. The writ petition lacks merits. Dismissed. 12. Interim order, if any, stands vacated.