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2017 DIGILAW 2361 (ALL)

Mithai Lal v. State of U. P.

2017-10-12

NEERAJ TIWARI, RANVIJAI SINGH

body2017
JUDGMENT : 1. We have heard Sri Shailesh Kumar Tripathi, learned counsel for the petitioner and the learned standing counsel for the respondents. 2. By means of this writ petition prayer has been made to issue a writ of certiorari quashing the charge sheet dated 10.7.2013 issued under the signatures of the Enquiry Officer and the Engineer in Chief (Design and Planning), Irrigation Department, U.P. Lucknow and the order dated 3.3.2014 passed by the Enquiry Officer by which the petitioner was directed to submit his reply. 3. The charge sheet has been challenged on number of grounds, one of the main grounds is that in view of Regulation 351-A of Civil Services Regulations, 1975 ( in short the CSR) the enquiry can be instituted in respect of an event which took place not more than four years before the institution of such proceedings. Here in this case, as per case of the petitioner he retired from service on 30.6.2009 and charge sheet was issued on 10.7.2013 beyond the period of four years, therefore, the charge sheet itself is without jurisdiction. 4. Considering the petitioner's submissions and the grounds raised in this writ petition, this Court while entertaining the writ petition on 30.4.2014 had passed the following order: "By means of this writ petition, the petitioner has challenged the Charge-sheet dated 10.7.2013 as served upon him initially on 11.7.2013 and thereafter again on 3.3.2014. The petitioner has retired from service on 30.6.2009. The main ground of challenge is that the proceedings have been initiated under Article 351-A of the Civil Services Regulation by issuance of the impugned Charge-sheet ignoring the fact that the incident on the basis of which the said Charge-sheet has been issued are of the period prior to 4 years from the date of issuance of such Charge-sheet and, therefore, the proceeding under Article 351-A could not have been initiated, the same being barred by the said provisions. We have perused the provisions of Article 351-A which have been quoted in paragraph No.15 of the writ petition. On a bare perusal of the said provisions, we find that initiation of the proceedings by issuing of charge-sheet at this belated stage is not permissible and the same is barred by Article 351-A. Prima facie, we are satisfied that the petitioner cannot be subjected to the said proceeding at this stage. On a bare perusal of the said provisions, we find that initiation of the proceedings by issuing of charge-sheet at this belated stage is not permissible and the same is barred by Article 351-A. Prima facie, we are satisfied that the petitioner cannot be subjected to the said proceeding at this stage. Accordingly, we stay all further proceedings in pursuance of the impugned Charge-sheet dated 10.7.2013. However, the Principal Secretary -Respondent No.1 shall show cause by the next date as to why the proceedings were not initiated against the petitioner earlier and the same has been initiated at such belated stage thereby giving a ground to the petitioner to challenge the same before this Court. The Principal Secretary shall indicate as to who are the official responsible for this delay. The aforesaid Affidavit shall be filed by the Principal Secretary within 3 weeks. List this case immediately thereafter." 5. Pursuant thereto counter affidavit has been filed by the State Government duly sworn by Sri A.K.Sharma, Superintending Engineer, Band Sagar Nahar Nirman Mandal-3, Mirzapur to which rejoinder affidavit has also been filed by the petitioner. In view of the fact that counter and rejoinder affidavits have been exchanged, with the consent of the learned counsel for the parties, the writ petition is taken up for final disposal. 6. The facts of the case, in brief, are that the petitioner was initially appointed as Assistant Engineer in the Irrigation Department on 26.3.1977. In due course, he was promoted to the post of Executive Engineer and thereafter on the post of Superintending Engineer. While working as Superintending Engineer, he had attained the age of superannuation on 30.6.2009. It is stated in paragraphs 10 and 11 of the writ petition that the charge sheet was signed on 10.7.2013 by the Enquiry Officer and Engineer in Chief and the same was served upon the petitioner by hand on 11.7.2013. The charge sheet was issued after more than four years since the date of superannuation, i.e. 30.6.2009. The reply of paragraph 10 of the writ petition has been given in paragraph 12 of the counter affidavit, which reads as under: "12. The charge sheet was issued after more than four years since the date of superannuation, i.e. 30.6.2009. The reply of paragraph 10 of the writ petition has been given in paragraph 12 of the counter affidavit, which reads as under: "12. That the contents of paragraph 10 of the writ petition are not admitted and in reply it is submitted that by means of letter dated 27.6.2013 issued at the level government, a direction was issued to institute a disciplinary proceeding against the petitioner and issued a charge sheet against him, which is well within four years from the date of occurrence of incident which is in consonance with the provisions of Regulation 351-A, C.S.R. and as such the disciplinary proceeding would be treated to have been instituted against the petitioner from 27.6.2013 and not from the date i.e. 10.7.2013 when the Enquiry Officer has provided charge sheet against the petitioner." 7. In response to paragraph 12 of the counter affidavit, the petitioner has filed rejoinder affidavit and in its paragraph 11 he has reiterated the contents of the writ petition specifically stating that the charge sheet was issued on 10.7.2013 after more than four years. It has also been stated that in view of Explanation (a) of Regulation 351-A of the CSR departmental proceedings shall be deemed to have been instituted when the charges framed against the petitioner are issued to him. In this regard reference has also been given to the judgment of the Hon'ble Apex Court. 8. Learned standing counsel appearing for the State has invited attention of the Court towards Annexure 2 to the counter affidavit and submitted that the charge sheet dated 10.7.2013 was approved on 27.6.2013 and was sent to the Engineer in Chief (Design and Planning), Irrigation Department, U.P. Lucknow for initiating disciplinary proceedings against the petitioner. It is submitted by the learned standing counsel that the date of approval of the charge sheet would amount to date of issue of the charge sheet as on that date State Government has framed charges against the petitioner and directed to initiate disciplinary proceeding against the petitioner. It is submitted by the learned standing counsel that the date of approval of the charge sheet would amount to date of issue of the charge sheet as on that date State Government has framed charges against the petitioner and directed to initiate disciplinary proceeding against the petitioner. For testing this argument we find it appropriate to reproduce Regulation 351-A of the CSR and Rule 7 (ii) and (v) of the U.P. Government Servant Discipline and Appeal) Rules, 1999 (in short the Rules, 1999) which read as under: "351–A The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement; 9. Provided that— (a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment— (i) shall not be instituted save with the sanction of the Governor, (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a), and (c) the Public Service Commission, U.P., shall be consulted before final orders are passed. (b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a), and (c) the Public Service Commission, U.P., shall be consulted before final orders are passed. Explanation—For the purposes of this article— (a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted : (i) in the case of criminal proceedings, on the date on which a complaint is made, or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a civil court." "7. Procedure for imposing major penalties.-- Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner: ... (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge sheet. The charge sheet shall be approved by the disciplinary authority: Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department. ..... (v) The charge-sheet along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge sheet could not be served in aforesaid manner, the charge sheet shall be served by publication in a daily newspaper having wide circulation." 10. From the bare reading of Regulation 351-A (a) (ii) of the CSR it transpires that a disciplinary proceeding in respect of an event can be instituted in respect of the matter which took place not more than four years before the institution of such proceedings. From the bare reading of Regulation 351-A (a) (ii) of the CSR it transpires that a disciplinary proceeding in respect of an event can be instituted in respect of the matter which took place not more than four years before the institution of such proceedings. Further Explanation (a) provides that the departmental proceedings shall be deemed to have been instituted when the charges framed against the petitioner, are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date. Whereas from the perusal of Sub-rule (ii) of Rule 7 of the Rules 1999 it transpires that before imposing major penalty to the Government employee the facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge sheet. The charge sheet shall be approved by the disciplinary authority. Further sub-rule (v) of Rule 7 provides that the charge-sheet along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. It further provides that in case the charge sheet could not be served in aforesaid manner, the charge sheet shall be served by publication in a daily newspaper having wide circulation. 11. Here in this case as would reveal from the perusal of the records of the writ petition and the counter affidavit that the charges were approved by the competent authority in view of the proviso of Rule 7(ii) of the Rules, 1999 on 27.6.2013, the question would be as to whether the date of approval of the charge sheet can be treated to be the date of issue of the charge sheet as required under Explanation (a) to Regulation 351-A of the CSR. 12. For testing this argument we would like to quote the meanings of 'approval' and 'issue': 13. The dictionary meaning of the word "approval" is as under: Webster's Third New Dictionary -Certificate as to acceptability; the act of approving; approve applies to a feeling or expression of commendation or of agreement with, but it may suggest any judicious attitude involved. Law Lexicon-By P.Ramanathan Aiyer To accept as good or sufficient for purpose intended; to confirm authoritatively. The dictionary meaning of the word "approval" is as under: Webster's Third New Dictionary -Certificate as to acceptability; the act of approving; approve applies to a feeling or expression of commendation or of agreement with, but it may suggest any judicious attitude involved. Law Lexicon-By P.Ramanathan Aiyer To accept as good or sufficient for purpose intended; to confirm authoritatively. Black's Law Dictionary -The act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another. " 14. The dictionary meaning of the word "issue" is as under: Concise Law Dictionary-By P.Ramanathan Aiyer : Issue notice does not always mean mere posting of notice. It refers sometimes to actual service of notice. New Oxford Dictionary; Issue means the act of supplying or making available things to people. Law Lexicon-By P.Ramanathan Aiyer : Issue notice does not always mean mere posting of notice. It refers sometimes to actual service of notice. 15. After going through the meaning of words "approval" and "issue" we find that the aforesaid two words bear different meaning and are used in different context. The word "approval" means act of confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another; whereas the word "issue" means sending of something to other person and that is why under sub-rule (ii) of Rule 7 of Rules 1999 and the explanation (a) to the Regulation 351-A of the Regulations the two words are used. The word "approval" means act of confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another; whereas the word "issue" means sending of something to other person and that is why under sub-rule (ii) of Rule 7 of Rules 1999 and the explanation (a) to the Regulation 351-A of the Regulations the two words are used. Under sub-rule (ii) of Rule 7 of Rules, 1999 the charge sheet is required to be approved by the disciplinary authority provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department and in Explanation (a) of Regulation 351-A of the Regulations the departmental proceeding shall be deemed to be instituted when the charges framed against the pensioner are issued to him, meaning thereby before initiation of the departmental proceeding against the government servant first of all the charge sheet has to be prepared and approved by the disciplinary authority and thereafter in view of sub-rule (v) of Rule 7 of the Rules, 1999 the charge sheet has to be served along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements personally or by registered post at the address mentioned in the official records and for that purpose after approval of the charge sheet unless it is issued and served to the delinquent employee it will be of no avail. 16. Learned standing counsel submitted that the date of approval of the charge sheet means the date of issue of the charge sheet, which in our considered opinion is misleading argument as we have discussed, herein above, that approval of the charge sheet is required under sub-rule (ii) of Rule 7 of Rules 1999 and its service is required under sub-rule (v) of Rule 7 of the Rules, 1999 and the charge sheet can not be served unless it is issued/sent to the delinquent employee, which is mandatory requirement. Therefore, the submission of the learned standing counsel that the date of approval of the charge sheet means the date of issue of the same, is misconceived. 17. The Apex Court in Coal India Ltd. vs. Saroj Kumar Mishra (2007) 9 SCC 625 has held that departmental proceeding is normally said to be initiated only when a charge sheet is issued. 18. 17. The Apex Court in Coal India Ltd. vs. Saroj Kumar Mishra (2007) 9 SCC 625 has held that departmental proceeding is normally said to be initiated only when a charge sheet is issued. 18. In another judgment in Coal India Ltd. vs. Ananta Saha (2011) 5 SCC 142 the Apex Court has held as under: "27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge sheet is issued o the delinquent employee (Vide Union of India vs. K.V. Jankiraman ( (1991) 4 SCC 109 )and UCO Bank vs. Rajinder Lal Capoor ((2007) 6 SCC 694)". 19. Taking note of that the Apex Court in Union of India and others vs. Anil Kumar Sarkar (2013) 4 SCC 161 ) has reiterated the law laid down by the Apex Court in Coal India Ltd.(supra) by observing that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued. 20. A Division Bench of this Court in Z.U.Ansari vs. State of U.P. and others ( 2014 (3) ADJ 67 ) has held that the departmental proceeding should be deemed to have been instituted on the date charge sheet is served upon the petitioner. 21. Here in this case, in view of the fact the petitioner had retired from service on 30.6.2009 and the charge sheet was issued on 10.7.2013 and served upon him on 11.7.2013, we are of the considered opinion that the charge sheet dated 10.7.2013 is without jurisdiction and on that basis the disciplinary proceeding could not be concluded. Therefore, the outcome of the disciplinary proceeding is nullity as issuance of the charge sheet itself was without jurisdiction. It is well settled that an order passed without jurisdiction is nullity and no legal consequences can flow with such orders. Reference may be made to the decisions of the Apex Court in Managing Director, Army Welfare Housing Organization vs. Sumangal Services Pvt. Ltd. (2004) 9 SCC 619 , Sarup Singh and Anr. vs. Union of India and Anr. (2011) 11 SCC 198 , Division Bench decision of this Court in the case of Committee of Management Shri Jawahar Inter College and Anr. vs. State of U.P. and Ors. vs. Union of India and Anr. (2011) 11 SCC 198 , Division Bench decision of this Court in the case of Committee of Management Shri Jawahar Inter College and Anr. vs. State of U.P. and Ors. in Special Appeal No. 164 of 2012 decided on 25.1.2012 and Rajesh Kumar Shukla vs. State of U.P. and Ors ( 2017 (7) ADJ 601 ). 22. In view of the foregoing discussions, we quash the charge sheet dated 10.7.2013 and the consequential order dated 3.3.2014 requiring the petitioner to submit his reply. The writ petition succeeds and is allowed with the observations aforesaid.