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2021 DIGILAW 1141 (ALL)

Deo Mani Sharma v. State of U. P.

2021-09-29

RAJESH SINGH CHAUHAN

body2021
JUDGMENT : Rajesh Singh Chauhan, J. 1. Heard Sri Ajey Shanker Tewari, learned counsel for the petitioner and learned Standing Counsel for the State-respondents. By means of this petition, the petitioner has prayed following reliefs: ''(i) issue a writ, order or directions in the nature of certiorari quashing the impugned order dated 18.8.2020 passed by the opposite party No. 1, as contained in Annexure 1 to the Writ Petition. (ii) issue a writ, order or direction in the nature of certioari quashing the impugned charge-sheet dated 14.6.2013, passed by the opposite party No. 1 as contained in Annexure 2 to the Writ Petition. (iii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to consider the candidature of the petitioner for promotion on the post of Additional Commissioner Grade -II, Commercial Tax from the date the persons junior to the petitioner namely have been promoted on the said post of Additional Commissioner Grade-II, Commercial Tax with all consequential benefits such as arrears of salary etc. which have been denied on the basis of pending enquiry. (iv) to issue a writ, order or direction in the nature mandamus commending the opposite parties not to take into consideration the impugned orders i.e. Annexure 1 and 2 to this Writ Petition while considering the candidature of the petitioner promotion in ensuing departmental promotion committee. (v) issue a writ, order or direction in the nature which this Hon'ble High Court deems fit and proper in the circumstances of the case, in favour of the petitioner. (vi) Cost of the Writ Petition may be awarded in favour of the petitioner.'' 2. At the very outset, Sri Ajey Shanker Tewari, learned counsel for the petitioner has submitted that for one reason or another, the petitioner has been subjected to the departmental enquiry since 2013, to be more precise w.e.f. 14.6.2013 when the petitioner was placed under suspension. He has drawn attention of this Court towards the impugned order dated 18.8.2020 contained in Annexure 1 to the writ petition issued by the Special Secretary of the department whereby recital to this effect has been given that the petitioner was placed under suspension on 14.6.2013 and the petitioner has been assailing such mala fide exercise since then. 3. He has drawn attention of this Court towards the impugned order dated 18.8.2020 contained in Annexure 1 to the writ petition issued by the Special Secretary of the department whereby recital to this effect has been given that the petitioner was placed under suspension on 14.6.2013 and the petitioner has been assailing such mala fide exercise since then. 3. The present controversy is limited to the extent that the U.P. State Public Services Tribunal, Lucknow (hereinafter referred to as ''Tribunal'' in short) has passed a judgment and order dated 10.12.2019 in Claim Petition No. 1329 of 2019, whereby the petitioner had assailed the punishment order dated 16.5.2019 withholding three increments of the petitioner with cumulative effect. Operative portion of the aforesaid judgment and order dated 10.12.2019 reads as under: ''The claim petition is allowed. Impugned order of punishment dated 16-05-2019 (Annexure 1) is hereby quashed. However the opposite parties will be at liberty to make inquiry afresh from the stage of show-cause notice. If re-enquiry is initiated such enquiry shall be completed within a period of three months from date of receipt of a certified copy of this order. Petitioner shall co-operate with the enquiry. Entitlement of consequential service benefits denied to him due to impugned punishment order shall be decided by disciplinary authority according to final outcome of enquiry.'' 4. Perusal thereof clearly reveals that while quashing the punishment order dated 16.5.2019, the Tribunal granted liberty to the concerning authority to make fresh enquiry from the stage of show-cause notice within a period of three months. Learned counsel for the petitioner has submitted that the aforesaid period of three months was expired in the month of March, 2020 but the first order was passed by the Special Secretary of the Department on 18.8.2020, the impugned order, appointing one Additional Commissioner (Administration), Commercial Tax, U.P., Lucknow as an enquiry officer in the issue of the petitioner directing him to conduct and conclude the departmental enquiry against the petitioner. Pursuant thereto, the Additional Commissioner (Administration)/ Enquiry Officer has issued show-cause notice on 22.10.2020, which is contained in Annexure RA-1 to the rejoinder-affidavit. 5. Pursuant thereto, the Additional Commissioner (Administration)/ Enquiry Officer has issued show-cause notice on 22.10.2020, which is contained in Annexure RA-1 to the rejoinder-affidavit. 5. Learned counsel for the petitioner has submitted that in compliance of the order dated 10.12.2019 passed by the Tribunal, appropriate enquiry may be conducted against the petitioner from the stage of show-cause notice as this has been clearly observed in the order dated 10.12.2019 and such enquiry/exercise should be completed within three months. The petitioner being a Class-I Officer serving as Deputy Commissioner, Commercial Tax at that point of time and his appointing authority is the State Government, therefore, the State Government could have issued a show-cause notice against the petitioner in compliance of the order dated 10.12.2019 passed by the Tribunal. However, being conscious of the aforesaid fact, the impugned order dated 18.8.2020 has been issued by the State Government but it is not a show-cause notice, rather it is an order appointing one enquiry officer in the issue in question. Therefore, Sri Tewari has submitted that the Additional Commissioner (Administration), Commercial Tax may not issue show-cause notice against the petitioner as he is not the appointing authority of the petitioner and no enquiry against the petitioner could have been conducted and concluded after expiry of the stipulated period i.e. three months in view of the dictum of the Full Bench of this Court in Abhishek Prabhakar Awasthi vs. The New India Assurance Company Limited and Others, 2014(6) ADJ 641 (LB) (DB). 6. Therefore, the impugned order dated 18.8.2020 is liable to be quashed and the show-cause notice issued by the Additional Commissioner/Enquiry Officer dated 22.10.2020 is also liable to be quashed. Sri Tewari has submitted that promotion of the petitioner on the post of Additional Commissioner, Grade-II which has been kept in sealed cover may be directed to be opened as there was no cogent and legal reason for the authorities to keep the candidature of the petitioner under sealed cover. 7. Sri Tewari has drawn attention of this Court towards the interim order dated 17.12.2020 passed by this Court, which reads as under: ''Heard. List/put up on 7.1.2021 as fresh. In the meantime, as, clearly the disciplinary proceedings are beyond the time frame fixed by the Tribunal and without seeking its permission to continue the same any further, further proceedings in pursuance to the order dated 18.8.2020 are hereby stayed. List/put up on 7.1.2021 as fresh. In the meantime, as, clearly the disciplinary proceedings are beyond the time frame fixed by the Tribunal and without seeking its permission to continue the same any further, further proceedings in pursuance to the order dated 18.8.2020 are hereby stayed. Let the State file counter-affidavit in the matter, inter-alia, making out a case for extension before this Court in terms of the Full Bench decision as observed in earlier order of this Court dated 14.12.2020. Rejoinder-affidavit, if any, may be filed before the next date.'' 8. As per Sri Tewari, after the aforesaid interim order being granted by this Court on 17.12.2020, another Departmental Promotion Committee for making promotion on the post of Additional Commissioner, Grade-II was convened but the candidature of the petitioner was not considered for the reason that his matter has been kept under sealed cover. Per contra, learned Standing Counsel has tried to justify the impugned order dated 18.8.2020 and show-cause notice dated 22.10.2020 by submitting that considering the gravity of the charges levelled against the petitioner, it has been decided that a fresh enquiry should be conducted against him in terms of judgment and order dated 10.12.2019, therefore, the enquiry officer was appointed, who issued show-cause notice. On being confronted to learned Standing Counsel as to whether after lapse of stipulated time, any application has been filed before the Tribunal seeking extension of time, learned Standing Counsel has submitted that to the best of his information, no such application has been filed. On being further confronted as to whether after filing this writ petition in the month of August, 2020, any application has been filed before the Tribunal for seeking extension of time, learned Standing Counsel has submitted that no such application has been filed. 9. He has further submitted that in view of the decision of the Full Bench of this Court in re; Abhishek Prabhakar Awasthi (supra), if no such application is filed, the Court may suo motu extend the time considering gravity of the charges or direction may be issued to the authorities to file an appropriate application before the Tribunal for seeking extension of time but the petitioner may not be left scot free having serious charges against him. Therefore, learned Standing Counsel has submitted that the present writ petition may be disposed of finally giving liberty to the competent authority to file an appropriate application before the Tribunal seeking extension of time to conduct the departmental enquiry. 10. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that if any competent Court grants/allows time to conduct and conclude the departmental enquiry within stipulated time, such enquiry must be conducted and concluded within that stipulated time otherwise the majesty of law would be meaningless. In case such exercise could have not been carried out within time stipulated, may be for the compelling circumstances, then any appropriate application must have been filed before the competent Court seeking extension of time and if no such application has been filed, then it may be presumed that the authority competent has got no faith and respect towards the direction being issued by the Court of law. 11. In the present case, admittedly, the enquiry in question has not been concluded in terms of judgment and order dated 10.12.2019 and the impugned order dated 18.8.2020 has been passed after the lapse of stipulated time. The impugned order has been assailed by the petitioner by filing the present writ petition on 24.8.2020 taking specific ground that before filing any application before the Tribunal for seeking extension of time, the impugned order dated 18.8.2020 has been passed after the lapse of stipulated time and this Court has called upon the reply from the authorities but when no suitable reply was given, an interim order has been passed on 17.12.2020. It means the interim order has been granted by this Court after about four months from the date of filing of the instant writ petition but the authority concerned has not filed any application before the Tribunal in the aforesaid interregnum period. The authority concerned could have filed an appropriate application before the Tribunal seeking extension of time immediately after filing of the present writ petition in the month of August, 2020 but no such exercise has been carried out. Therefore, it appears that the concerning authority has taken the judgment and order dated 10.12.2019 of the Tribunal for granted. The authority concerned could have filed an appropriate application before the Tribunal seeking extension of time immediately after filing of the present writ petition in the month of August, 2020 but no such exercise has been carried out. Therefore, it appears that the concerning authority has taken the judgment and order dated 10.12.2019 of the Tribunal for granted. Therefore, the statement of learned Standing Counsel at the time of final hearing of the case that the authority may be directed to file an appropriate application before the Tribunal for seeking extension of time is misconceived inasmuch as such application should have been filed immediately after expiry of stipulated period or at least after filing of this writ petition in the month of August, 2020 but no such exercise has been carried out, therefore, at the time of final hearing, this liberty may not be granted. 12. It appears that the petitioner is facing the departmental enquiry w.e.f. 2013 and it has not been concluded strictly in accordance with law. Even the punishment order dated 16.5.2019 was passed without following the due procedure of law, therefore, it was quashed by the Tribunal vide judgment and order dated 10.12.2019 granting liberty to the authorities concerned to make enquiry from the stage of show-cause notice. The height of carelessness and negligence is that the show-cause notice against Class-I Officer has been issued by the Additional Commissioner, who is not the appointing authority inasmuch as the show-cause notice could have been issued by the appointing authority. 13. The Full Bench of this Court in re; Abhishek Prabhakar Awasthi (supra) has considered two questions, which are as under: ''2. The following questions have been referred in the order of the learned Single Judge for determination by the 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. (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 27.7.2009 of a Division Bench of this Court in Writ Petition No. 1056 (SB) of 2009 (Union of India vs. Satendra Kumar Sahai).'' The answer thereof has been given in para-19, both the answers are as under: ''19.................... (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 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. 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.'' 14. The answer 'A' clearly mandates that if the enquiry has not been concluded within time stipulated, an appropriate application for extension of time may be filed and in that event, it is for the Court to consider whether time should be extended, based on facts and circumstances of the case. The Full Bench has further directed that the employer may not disregard the direction of the Court and he must file an application for extension of time. In the present case, no such application has been filed by the employer and the impugned order dated 18.8.2020 has been passed after the lapse of stipulated time, therefore, it is clear cut disregard of the direction of the Court of law. 15. Since no application for extension of time has been filed, therefore, there was no occasion for the Court concerned to consider as to whether the application for extension of time should be allowed or not. To me, after lapse of about two years w.e.f. 10.12.2019 granting liberty to the employer to file an appropriate application before the Court concerned would be unwarranted and against the interest of justice inasmuch as when the employer was not conscious about filing an application before the competent Court within a period of about two years, even after knowing such fact and ground taken in the present writ petition, which has been filed in the month of August, 2020, no such liberty can be extended to the employer. Therefore, considering the aforesaid rival submissions of learned counsel for the parties, I hereby allow the present writ petition. 16. Therefore, considering the aforesaid rival submissions of learned counsel for the parties, I hereby allow the present writ petition. 16. A writ in the nature of certiorari is issued quashing the order dated 18.8.2020 passed by opposite party No. 1, which is contained as Annexure 1 to the writ petition. A writ in the nature of mandamus is issued commanding the opposite parties to consider the candidature of the petitioner for promotion on the post of Additional Commissioner, Grade-II, Commercial Tax w.e.f. the date junior to the petitioner has been promoted on such post. Consequences to follow. No order as to costs.