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2017 DIGILAW 242 (ALL)

YOGENDRA GIRI v. STATE OF U. P.

2017-01-18

NARAYAN SHUKLA, SHEO KUMAR SINGH I

body2017
JUDGMENT By the Court.—Counter-affidavit filed today is taken on record. 2. As per the directions of this Court, Shri R.K.Chaudhary, learned counsel appearing for the Uttar Pradesh Rajya Nirman Sahkari Sangh Limited, Lucknow has submitted that the letter No. 6397 dated 28.11.2016 was issued by the Chief Engineer to the Executive Engineer to call for explanation from the concerned Assistant Engineers and Junior Engineers and send those alongwith his comments. It is not like that the petitioner himself was called upon to submit his explanation, therefore, the petitioner may not be prejudiced with the letter No. 6397 dated 28.11.2016. The aforesaid submission is recorded. 3. In so far as, the letter dated 28.11.2016 titled as “Gopinaya” is concerned, it has been submitted by Shri R.K.Chaudhay, learned counsel appearing for the department that this is a purely Preliminary Inquiry Report conducted by the Chief Engineer pursuant to the order dated 4.10.2016. A bare perusal of the letter dated 4.10.2016 shows that the Managing Director of the Corporation on the basis of an inquiry report dated 27.7.2016 took a decision for further inquiry which has been termed as a “Preliminary Inquiry”. The Chief Engineer conducted the inquiry and submitted the report dated 28.11.2016. As per averments of the learned counsel for the respondent, we treat it as a Preliminary Inquiry Report which can be made the basis for initiation of disciplinary proceedings but this may not be the basis to take any punitive action. 4. At this stage Shri Anil Kumar Tiwari, learned Senior Advocate appearing for the petitioner has invited attention of this Court towards the decision of the Hon’ble Supreme Court in the case of Somesh Tiwari v. Union of India, (2009) 1 SCC (L & S) 411, in which Hon’ble Supreme Court has directed that no transfer order can be passed in lieu of the punishments. He has urged that the petitioner‘s transfer impugned was issued on the basis of Preliminary Inquiry Report, whereas, the disciplinary proceedings is yet to be commenced, therefore, it being punitive is unsustainable. 5. In reply, Shri R.K.Chaudhary, learned counsel has urged that the Deputy General Manager (Administration), U.P.R.N.S.S, HQ, Lucknow has been appointed as Inquiry Officer on the basis of said Preliminary Inquiry Report and the department has proposed to issue the charge-sheet as early as possible. 6. Mr. 5. In reply, Shri R.K.Chaudhary, learned counsel has urged that the Deputy General Manager (Administration), U.P.R.N.S.S, HQ, Lucknow has been appointed as Inquiry Officer on the basis of said Preliminary Inquiry Report and the department has proposed to issue the charge-sheet as early as possible. 6. Mr. Karla, learned counsel for the newly impleded opposite party has appeard and submitted that the Deputy General Manager (Administration), U.P.R.N.S.S, HQ, Lucknow has filed an affidavit before the Court in writ petition No. 14070 (SB) of 2016 whereby he had brought on record the transfer order alongwith impugned transfer order and the Court was informed that since the Inquiry had been concluded the writ petition has rendered infructous. 7. The Court had been pleased to dismiss the writ petition as rendered infructous without taking notice of the transfer order impugned as there is no observations with regard to the transfer order. Since, it has been impugned at the very first time before this Court. 8. The letter dated 28.11.2016 has been termed as “confidential letter”, therefore, we give liberty to the department to treat it as an evidence in the disciplinary proceedings initiated vide order dated 3.1.2017. However, since the Preliminary Inquiry Report cannot be made basis for any punitive action, in view of law laid down by Hon’ble the Supreme Court in Somesh Tiwari`s case (Supra) we are of the view that till final out come of disciplinary proceedings there would be no occasion to transfer the petitioner which is termed as punitive. 9. Therefore, we hereby quash the operative portion of the inquiry report dated 28.11.2016 which has been termed “Gopinaya” whereby the petitioner has been proposed to be transferred. At this stage, we are informed that pursuant to the aforesaid proposal the petitioner has been transferred to Faizabad on 8.12.2016. Since we do not appreciate any punitive action on the basis of Preliminary Inquiry Report, we hereby provide that the status of the petitioner`s service as it was before the date of transfer order impugned i.e. 2.12.2016 shall be maintained by the respondent forthwith. 10. With aforesaid observations, the writ petition stands disposed of finally.