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2023 DIGILAW 1445 (ALL)

State of U. P. v. Kamleshwar Kashyap

2023-05-25

DEVENDRA KUMAR UPADHYAYA, SYED QAMAR HASAN RIZVI

body2023
JUDGMENT : Heard learned State Counsel representing the petitioners/State authorities and Sri Jai Kumar, learned counsel representing the respondent No. 1-claimant and also perused the records. 2. By instituting these proceedings under Article 226 of the Constitution of India, the petitioners/State authorities have challenged the validity of an order dated 22.12.2021 passed by the State Public Services Tribunal in Claim Petition No. 2122 of 2019 filed by the respondent No. 1- claimant whereby the punishment order of censure dated 17.7.2018 and the appellate order dated 16.10.2019 have been quashed. 3. The only submission made by learned counsel for the petitioners/State authorities is that in case the learned Tribunal had found enquiry which was conducted against the respondent No. 1 - claimant to be flawed or vitiated, opportunity ought to have been given to the State authorities to conduct the enquiry afresh from the stage it was found flawed. 4. Sri Jai Kumar, learned counsel for the respondent No. 1 - claimant has opposed the writ petition and has submitted that it is not that the learned Tribunal has come to the conclusion about the punishment of censure being bad-in-law only on account of certain technical flaws in the enquiry; rather the case has been dealt with by the Tribunal on merits as well and hence the prayer made by learned State Counsel cannot be granted. In his submission, he thus urges that the writ petition may be dismissed. 5. We have considered the rival submissions made by learned counsel appearing for the respective parties and have also gone through the records available before us on this writ petition. The punishment order dated 17.7.2018 was passed against the petitioner by the Excise Commissioner on the charge that on inspection of certain liquor shops in district Jalaun, over rating by the license holders was found. By the show-cause notice dated 21.8.2017, the petitioner, who at the relevant point of time posted as Excise Inspector, was required to submit his explanation and thereafter various reminders were also given, however, the respondent No. 1 - claimant did not submit his explanation. After mentioning these facts, the Excise Commissioner while passing the order punishment of censure dated 17.7.2018 does not discuss any evidence or material available on record of the enquiry. He has not referred to even a single document or any other material while passing the order of punishment of censure. After mentioning these facts, the Excise Commissioner while passing the order punishment of censure dated 17.7.2018 does not discuss any evidence or material available on record of the enquiry. He has not referred to even a single document or any other material while passing the order of punishment of censure. Such an approach, in our consideration opinion, adopted by the disciplinary authority cannot be approved. 6. It is settled principle of law that even if in a departmental proceeding, the delinquent officer/employee does not submit his explanation to the charges or even if he does not participate in the enquiry, the Inquiry Officer/Disciplinary Authority are under legal obligation to record his findings either of guilt or of exoneration by mentioning and evaluating the documents and materials available on record. The Excise Commissioner in this case while passing the order punishment of censure dated 17.7.2018 has not discussed or even mention any document or any other evidence available on record available on the enquiry proceedings and hence the order on the face of it is unsustainable. 7. Learned Tribunal while considering the entire aspect of the matter has also recorded a finding that so far as the over rating indulged in by the license holders is concerned, the license holders were proceeded against and the matter was compounded by collecting the compounding charges. Learned Tribunal has also referred to the judgment of Hon'ble Supreme Court in the case of Kuldeep Singh v. Commissioner of Police, AIR 1999 SC 671 and has observed that punishing an employee has to be based on credible evidence available on record of the disciplinary proceedings. Learned Tribunal has also referred to another judgment of Hon'ble Supreme Court in the case of Union of India v. Z. Ahmad, AIR 1979 SC 1022 , wherein it has been observed by Hon'ble Supreme Court that there may be negligence in performance of duty or error of judgment in evaluating the developing situation and there may be negligence in discharge of duty, however, the same in itself would not constitute misconduct and such deficiencies would also not constitute misconduct. In the present case, the only allegation against the respondent No. 1- claimant was that he could not check the over rating indulged into by the license holders while selling the liquor. In the present case, the only allegation against the respondent No. 1- claimant was that he could not check the over rating indulged into by the license holders while selling the liquor. This at the most, in our opinion, can be said to be some negligence on the part of the respondent No. 1 - claimant and for such acts he did not deserve any punishment. 8. So far as the prayer made by learned counsel for the petitioners/State authorities for permitting the State authorities to initiate the proceedings afresh is concerned, we may only observe that it is settled principle of law that in case any enquiry is found to be lacking on some technical grounds and punishment order based on such enquiry is quashed by the Courts, the employer should be given an opportunity to hold the enquiry afresh. However, such dictum will have no application in case of minor penalty like censure, especially considering the facts of this case where at the most the respondent No. 1 - claimant can be said to be negligence. 9. For the reasons aforesaid, we are not inclined to entertain this writ petition, which is accordingly dismissed.