Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1633 (ALL)

RADHEY SHYAM v. STATE OF U. P.

2018-07-26

DEVENDRA KUMAR ARORA, VIRENDRA KUMAR II

body2018
JUDGMENT By the Court.—Heard Mr. Anand Mani Tripathi, learned Counsel for the petitioners, learned Standing Counsel for the opposite party No. 1 and Mr. Ashok Kumar Verma, learned Counsel for the respondent Nos. 2 and 3. 2. Petitioners have approached this Court under Article 226 of the Constitution of India for a direction to the respondents to extend the benefit of promotion to next higher post i.e. Environment Engineer and Assistant Environment Engineer respectively by giving effect to the recommendation of Departmental Promotion Committee which met on 9.1.2017 by jointly considering their cases alongwith others and also by opening their sealed cover and also pass suitable orders with respect to their promotions forthwith. 3. The facts and circumstances giving rise to the present writ petition are as under : In respect of the brick kiln with the name and style as M/s KNS Brick Field situated at Village Sobaibandh, District Ballia, a dispute was earlier raised through PIL as well as by proprietor of the brick kiln. While hearing Civil Misc. Writ Petition No. 19652 of 2003, an order dated 11.8.2005 was passed by this Court, whereby the Chairman of the Central Pollution Control Board, was directed to appoint a High Power Committee to hold an inquiry into matter and in case anyone is prima facie found guilty, the Chairman, Uttar Pradesh Pollution Control Board, was directed to initiate disciplinary proceedings. Subsequently, vide order dated 22.2.2008, this Court directed the State Government to ensure appointment of an independent Inquiry Officer. 4. It appears that in pursuance to the aforesaid order, the High Power Committee was constituted and on the recommendation of the High Power Committee dated 16.2.2006, petitioner No. 1-Radhey Shyam, who was working as Regional Officer and petitioner No. 2-Jitendra Lal, who was working as Junior Engineer in the Regional Office, Azamgarh of the U.P. Pollution Control Board in the year 2005-2006, were placed under suspension in contemplation of the disciplinary inquiry proceeding vide order dated 17.2.2006. 5. vide order dated 22.3.2006, Shri N.K. Verma, the then Additional Director, Central Pollution Control Board was appointed as Inquiry Officer and was directed to frame charge-sheet against the petitioners. A charge-sheet dated 9.6.2006 was served upon the petitioners as well as other officers. Thereafter, the petitioner has submitted his reply to the charge-sheet. 5. vide order dated 22.3.2006, Shri N.K. Verma, the then Additional Director, Central Pollution Control Board was appointed as Inquiry Officer and was directed to frame charge-sheet against the petitioners. A charge-sheet dated 9.6.2006 was served upon the petitioners as well as other officers. Thereafter, the petitioner has submitted his reply to the charge-sheet. The Inquiry Officer submitted its report on 15.1.2007, pursuant to which punishment order dated 9.2.2007 was passed against the petitioners including Ram Kumar Singh and other officers. 6. Not being satisfied with the punishment order dated 9.2.2007 and inquiry report dated 15.1.2007, Ram Kumar Singh approached this Court by filing writ petition No. 231 (S/B) of 2007 : Ram Kumar Singh v. U.P. Pollution Control Board and others. This Court, vide order dated 20.11.2008, while allowing the writ petition, quashed the punishment order dated 9.2.2007 and the inquiry report dated 15.1.2007 and liberty was granted to the respondents to hold a fresh inquiry, in accordance with law, from the stage of submission of reply to the charge-sheet was submitted. 7. According to the petitioners, after the judgment and order dated 20.11.2008, the department, keeping in view that the inquiry report dated 18.1.2007 was quashed in its entirety, reinstated the petitioners alongwith other employees vide order dated 10.9.2010 with the stipulation that the Inquiry Officer will proceed with the inquiry from the stage of submission of reply to the charge-sheet. During service, petitioners were also extended the benefit of promotional pay-scale in the form of ACP vide order dated 12.3.2012 and 26.5.2017 in pursuance to the Government Order No. 4.1.2011 and 22.12.2011. 8. It has been averred in the writ petition that since the benefit of grant of ACP has been extended by the department after considering the suitability in the light of character rolls of the petitioners, therefore, the petitioners are also entitled for the benefit of further promotion for which the criteria is seniority subject to rejection of unfit. According to the petitioners, the Departmental Promotion Committee, which met on 9.11.2017, considered the feasibility and suitability of the petitioners but the recommendation of the Departmental Promotion Committee has been kept in a sealed cover. 9. Feeling aggrieved by the inaction of the respondents in keeping the recommendation of Departmental Promotion Committee in a sealed cover, petitioners have filed the present writ petition. 10. 9. Feeling aggrieved by the inaction of the respondents in keeping the recommendation of Departmental Promotion Committee in a sealed cover, petitioners have filed the present writ petition. 10. Submission of the learned Counsel for the petitioners is that petitioners, who are working on the post of Assistant Environmental Engineer and Junior Engineer, respectively, have been considered for promotion to the next higher post i.e. Environmental Engineer and Assistant Environmental Engineer by the Departmental Promotion Committee met on 9.11.2017 but the result of the Departmental Promotion Committee of the petitioners have been kept in a sealed cover on the ground that inquiry is pending against them. His submission is that the ground on which result has been kept in a sealed cover is not sustainable as petitioners have not approached this Court challenging the punishment order dated 9.2.2007, withholding of one increment for a period of one year. 11. Elaborating his submission, learned Counsel for the petitioners has submitted that on account of not challenging the punishment orders, the judgment and order dated 20.11.2008 passed in writ petition No. 231 (S/B) of 2007 are not applicable in the present case of the petitioners because they were neither party in the proceedings nor have challenged their punishment order by filing any writ petition and the said judgment and order dated 20.11.2008 is applicable only between the parties. 12. Learned Counsel for the petitioners has submitted that the department in pursuance of the judgment and order dated 20.11.2008 had extended all consequential service benefits and keeping in view the feasibility and suitability of the petitioners, the Departmental Promotion Committee has also considered the case of petitioners for promotion but the recommendations of the same have not been given effect to merely on the ground of sham pendency of inquiry for the last ten years which has not proceeded a bit. His submission is that the continuance of inquiry prolonging for last ten years has resulted into suffering of mental agony to the petitioners having no fault on their part especially in view of the fact that the department has referred the matter for inquiry to the higher authority which is prohibited under Rule 28 of the U.P. Pollution Control Board Service Regulations, 1995 read with Rule 7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999. 13. 13. It has been pointed out by the learned Counsel for the petitioners that during the period i.e. 2007 to 2017, all service benefits including increments, ACP as well as other service benefits have been awarded/given to the petitioners which also shows that there is nothing adverse against the petitioners. 14. To strengthen his submission, learned Counsel for the petitioner has placed reliance upon Mohhindra Singh Gill v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 , State of Madhya Pradesh v. Bani Singh and another, 1990 (Supp) SCC 738, State of A.P. v. N. Radhakishan, (1998) 4 SCC 154 , P.V. Mahadevan v. MD T.N. Housing Board, (2005) 6 SCC 636 and Chairman-cum-Managing Director, Coal India Limited and others v. Ananta Saha and others, (2011) 5 SCC 142 . 15. Refuting the submissions of the learned Counsel for the petitioners, learned Counsel for the respondents has submitted that a dispute has arisen with respect to the brick kiln with the name and style as M/s KNS Brick Field situated at Village Sobaibandh, District Balia. In this connection, Writ Petitions No. 55275 of 2000, 2659 of 2001 and 19652 of 2003 were simultaneously filed before this Court. He submits that while hearing Civil Miscellaneous Writ Petition No. 19652 of 2003, an order dated 11.8.2005 was passed by this Court, whereby the Chairman of the Central Pollution Control Board was directed to appoint a High Power Committee to hold an inquiry and in case anyone is prima facie found guilty, the Chairman, UPPCB was directed to take disciplinary proceedings. Subsequently, vide order dated 20.2.2006, this Court required from the State Government to ensure appointment of an independent Inquiry Officer. 16. Counsel for the respondents submits that in pursuance to the order dated 11.8.2005 and order dated 20.2.2006, the State Government appointed Sri N.K. Verma, Additional Director, Central Pollution Control Board as Inquiry Officer. A charge-sheet dated 9.6.2006 containing twelve charges was served upon the petitioners as well as other erring officers. After submission of the reply to the charge-sheet on the request of the Central Pollution Control Board, the Inquiry Officer was changed and Dr. A.B. Akolker was appointed as Inquiry Officer. An inquiry report dated 15.1.2007 was submitted by the Inquiry Officer. Thereafter, the punishment orders were passed against the petitioners as well as other erring officers. After submission of the reply to the charge-sheet on the request of the Central Pollution Control Board, the Inquiry Officer was changed and Dr. A.B. Akolker was appointed as Inquiry Officer. An inquiry report dated 15.1.2007 was submitted by the Inquiry Officer. Thereafter, the punishment orders were passed against the petitioners as well as other erring officers. Sri Ram Kumar Singh, who was also one of the employees involved in the same inquiry, filed writ petition No. 231 (S/B) of 2007 before this Court, which was allowed on 20.11.2008 by quashing the punishment order dated 9.2.2007 and inquiry report dated 15.1.2007 in respect of Ram Kumar Singh and liberty was granted to the respondents to hold a fresh inquiry in accordance with law from the stage the reply to the charge-sheet was submitted. 17. Learned Counsel for the respondents has further submitted that as the inquiry report dated 15.1.2007 having been quashed on the basis of which several employees were awarded punishments, the matter was referred to the State Government by the Uttar Pradesh Pollution Control Board for initiating fresh inquiry against Shri Ram Kumar Singh but vide letter dated 8.7.2010, the State Government directed to initiate the fresh inquiry from the stage of submission of the reply to charge-sheet against all erring officer through the Inquiry Officer Dr. A.B. Akolkar after rejecting the punishment orders. In response to the letter of the State Government, a decision was taken by the Uttar Pradesh Pollution Control Board for cancelling the punishment orders against the petitioners and other employees and further to initiate the departmental inquiry on 8.9.2010. The Member Secretary of Uttar Pradesh Pollution Control Board sent a letter dated 10.9.2010 to the Chairman of Central Pollution Control Board, informing about the decision of the State Government for initiation of fresh inquiry from the stage of submission of the reply to the charge-sheet to be initiated by the Inquiry Officer (Dr. A.B. Akolker). 18. Further submission of the learned Counsel for the respondents is that during the proceedings of holding of the Departmental Promotion Committee, it was found that the outcome of the fresh departmental inquiry is still awaited, therefore, after considering the candidature of the petitioner, sealed cover proceeding was adopted on 9.11.2007. 19. A.B. Akolker). 18. Further submission of the learned Counsel for the respondents is that during the proceedings of holding of the Departmental Promotion Committee, it was found that the outcome of the fresh departmental inquiry is still awaited, therefore, after considering the candidature of the petitioner, sealed cover proceeding was adopted on 9.11.2007. 19. Learned Counsel for the respondents has also submitted that through the letter dated 30.11.2017, a reminder was sent to Central Pollution Control Board in respect of the pendency of inquiry since long. In response thereof, the Central Pollution Control Board, vide letter dated 16.1.2018, informed the U.P. Pollution Control Board that as the earlier Inquiry Officer had retired, therefore, if U.P. Pollution Control Board wants to get the inquiry held, the same can be done by the retired officers with the assistance of State Government Officers at its own level. On receipt of the aforesaid letter dated 16.1.2018, the matter was referred to the State Government by the U.P. Pollution Control Board vide letter dated 15.2.2018. Thereafter, a reminder was sent to the State Government by the U.P. Pollution Control Board on 12.3.2018. Now, the State Government, vide letter dated 17.4.2018, appointed Sri Anil Kumar, Special Secretary, Department of Forest and Wild Life, as Inquiry Officer. In these backgrounds, his submission is that as the departmental inquiry is still pending against the petitioners, therefore, after considering the candidature of the petitioners for promotion, the decision has been kept under sealed cover in accordance with law. 20. We have examined the submissions of the learned Counsel for the parties and gone through the record. 21. From the pleadings and submission of the learned counsel for the petitioners, it comes out that in pursuance to the order passed by this Court dated 11.8.2005 (supra) in writ petition No. 19652 of 2003, a High Power Committee was constituted to hold an inquiry in respect of the brick kiln. The High Power Committee, after due inquiry, found petitioners as well as other officers of the U.P. Pollution Control Board guilty. Thereafter, an Inquiry Officer was appointed to inquire into the matter. A charge-sheet dated 9.6.2006 containing 12 charges was served upon the petitioners as well other erring officers. The Inquiry Officer submitted its report dated 15.1.2007. Thereafter, the punishment order dated 9.2.2007 was passed by the Disciplinary Authority against the petitioners, one Ram Kumar Singh and other officers. Thereafter, an Inquiry Officer was appointed to inquire into the matter. A charge-sheet dated 9.6.2006 containing 12 charges was served upon the petitioners as well other erring officers. The Inquiry Officer submitted its report dated 15.1.2007. Thereafter, the punishment order dated 9.2.2007 was passed by the Disciplinary Authority against the petitioners, one Ram Kumar Singh and other officers. The said punishment order dated 9.2.2007 was challenged by Ram Kumar Singh by filing writ petition No. 231 (S/B) of 2007 inter alia on the ground that no effort was made by the department to prove the charges levelled against the petitioners by leading any evidence and on the basis of the High Power Committee recommendation, an inquiry report dated 15.1.2007 was submitted by the Inquiry Officer on the basis of which the punishment order dated 9.2.2007 was passed, which was in violation of principle of natural justice. 22. According to the petitioners, while hearing writ petition No. 231 (S/B) of 2007, this Court, vide order dated 20.11.2008, on taking into consideration the law laid down by the Apex Court in Basudeo Tiwari v. Sido Kanhu University, 1998 (8) SCC 194 , allowed the writ petition and quashed the punishment order dated 9.2.2007 as well as inquiry report dated 15.1.2007. However, liberty was granted to the opposite parties to hold a fresh inquiry, in accordance with law, from the stage of submission of reply to the charge-sheet. 23. The contention of the petitioners is that though they are not party to the writ petition No. 231 (S/B) of 2007, therefore, observation made by this Court while allowing the writ petition vide judgment and order dated 20.11.2008 (supra) with respect to liberty granted to the opposite parties to hold a fresh inquiry in accordance with law from the stage of submission of reply to the charge-sheet, is not at all binding in respect of the petitioners. His further contention is that after the judgment and order dated 20.11.2008, petitioners have been reinstated and thereafter, petitioners were also extended the benefit of promotional pay-scale in the form of ACP by means of orders dated 12.3.2012 and 26.5.2017 pursuant to the Government Order No. 1550/55 dated 4.1.2011 and Government Order No. 22.12.2011. His further contention is that after the judgment and order dated 20.11.2008, petitioners have been reinstated and thereafter, petitioners were also extended the benefit of promotional pay-scale in the form of ACP by means of orders dated 12.3.2012 and 26.5.2017 pursuant to the Government Order No. 1550/55 dated 4.1.2011 and Government Order No. 22.12.2011. In these backgrounds, his contention is that once the benefit of ACP has been extended by the department after considering the suitability in the light of character rolls of the petitioners, therefore, keeping the recommendation of Departmental Promotion Committee in a sealed cover is unjustified and unwarranted. 24. While supporting the action of the opposite parties in keeping the Departmental Promotion Committee in a sealed cover, the stand of the opposite parties is that after the judgement and order dated 20.11.2008 (Supra), the matter was referred to the State Government by the UPPCB for initiating fresh inquiry against Sri R.K. Singh but the State Government, vide letter dated 8.7.2010, directed to initiate the fresh inquiry from the stage of submission of the reply against all erring officer through inquiry officer after canceling the punishment orders. In pursuance thereof, the UPPCB had cancelled the punishment orders imposed against the petitioners and other like employees and reinstated them on the post in question and further the petitioners and other erring employees were informed about the initiation of fresh inquiry in the matter. According to him, while submitting the papers before the DPC, it was found that the outcome of the fresh departmental inquiry is still awaited, therefore, the sealed cover procedure was adopted on 9.11.2017. 25. Appreciating the aforesaid pleadings and submissions of the learned counsel for the parties, we find that the petitioners were not party to the proceedings of writ petition No. 731 (S/B) of 2007 and the order dated 20.11.2018 passed in writ petition No. 731 (S/B) of 2007 only relates to Sri R.K. Singh (petitioner of that writ petition). More so, in the order of cancellation of the petitioners’ punishment, there is no whisper that their punishment would be cancelled in pursuance to the order dated 20.11.2018 passed in writ petition No. 731 (S/B) of 2007. More so, in the order of cancellation of the petitioners’ punishment, there is no whisper that their punishment would be cancelled in pursuance to the order dated 20.11.2018 passed in writ petition No. 731 (S/B) of 2007. Learned Counsel for the Pollution Control Board has failed to show any order which establishes that the order of initiation of fresh inquiry against the petitioners has been taken in pursuance to the order dated 20.11.2018 passed in writ petition No. 731 (S/B) of 2007. Therefore, we are of the view that in the writ petition No. 731 (S/B) of 2007 preferred by Ram Kumar Singh, this Court had given liberty to the opposite parties to hold fresh inquiry in accordance with law from the stage of submission of reply to the charge-sheet. This clearly establishes that the judgment and order dated 20.11.2018 is only applicable to Ram Kumar Singh and in pursuance to the liberty granted by this Court, the opposite parties could proceed against Ram Kumar Singh and not other officers. In the said case, after quashing of the punishment order dated 9.2.2007 and the enquiry report dated 15.1.2007 vide judgment and order dated 20.11.2008 (supra), the opposite parties have reinstated the petitioners and other erring officers including Ram Kumar Singh. But without assigning any reason/material/new facts in the case of the petitioners, the opposite parties have decided to initiate fresh inquiry against the petitioners in the year 2010, which is pending since then. It is also pertinent to mention that respondents have failed to bring on record any letter/order communicating the petitioners about re-initiation of inquiry. To arrive at a definite conclusion in this regard,we also summoned the record and failed to find out any decisin regarding initition of inquiry against the petitioners. 26. In State of Madhya Pradesh v. Bani Singh and another (supra), the Apex Court has held that normally, pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon his right to be considered. 26. In State of Madhya Pradesh v. Bani Singh and another (supra), the Apex Court has held that normally, pendency or contemplated initiation of disciplinary proceedings against a candidate must be considered to have absolutely no impact upon his right to be considered. If the departmental enquiry had reached the stage of framing of charges after a prima facie case has been made out, the normal procedure followed was ‘’sealed cover’ procedure but if the disciplinary proceedings had not reached that stage of framing of the charge after prima facie case is established the consideration for the promotion to a higher or selection grade cannot be withheld merely on the ground of pendency of such disciplinary proceedings. 27. The question is whether the disciplinary proceedings as a result of long delay are liable to be quashed. The fresh inquiry started against the petitioners in 2010, could not be completed even after more than seven and half years. Such long delay for which the delinquent is not responsible has not been accepted as a valid Justification -for keeping the proceedings pending. The Apex Court in the case of State of Andhra Pradhesh v. N. Radhakishan, 1998 (4) SCC 154 . has held as under : “It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be determined each case has to be examined on the fact and Circumstances in that case. The essence of the matter is that the Court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In Considering whether the delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. In Considering whether the delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative Justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats Justice. Delay causes prejudice to the charges officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.” 28. In P.V. Mahadevan v. Md. T.N. Housing Board (Supra), the Apex Court has held that The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. 29. From the facts stated hereinabove, it is clear that fresh inquiry has remained pending for more than seven and half years without any justification. It may be added that the petitioners were granted promotional pay-scale in the form of ACP vide order dated 12.3.2012. Since the opposite parties could not explain the long delay of more than seven and half years in failure to finalise the proceedings, prejudice is writ large on the face of it as held by the Apex Court. It may be added that the petitioners were granted promotional pay-scale in the form of ACP vide order dated 12.3.2012. Since the opposite parties could not explain the long delay of more than seven and half years in failure to finalise the proceedings, prejudice is writ large on the face of it as held by the Apex Court. The harassment, mental torture, humiliation and financial loss due to prolonged proceedings cannot be comprehended. 30. Considering the facts, it is more than clear that it would not be in interest of clean and honest administration to continue the disciplinary proceedings any further. The result of pendency of these proceedings has been constant physical and mental suffering together with financial loss as the petitioners have already suffered a lot and it is settled that the proceedings cannot be kept pending for an indefinite time. The entire proceedings as held by the Apex Court are vitiated. In absence of any explanation by the respondents, the prejudice is writ large on the face of the proceedings. If the conduct of the petitioners and department are compared, the blame squarely falls on the department. 31. For the aforesaid reason, the writ petition succeeds and is allowed. Opposite parties are directed to open the sealed cover envelope relating to petitioners and shall pass appropriate orders in accordance with the recommendation of the Departmental Promotion Committee. This exercise shall be completed within a period of one month from the date of receipt of a certified copy of this order. 32. Costs easy.