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2023 DIGILAW 975 (ALL)

Chandi Prasad v. State of U. P.

2023-04-10

KARUNESH SINGH PAWAR

body2023
JUDGMENT Karunesh Singh Pawar, J. Heard Sri Santosh Kumar Gupta, learned counsel for the petitioner and Sri Sanjeev Singh, learned Standing Counsel for the State-respondent. 2. Brief facts of the case are that the petitioner was appointed on the post of Chainman in Tehsil-Utraula, District-Balrampur. He, after attaining the age of superannuation, retired on 30.05.2004. During his service period, certain irregularities were found against him and disciplinary proceedings were initiated and finally vide punishment order dated 24.02.1993 disciplinary proceedings were concluded and petitioner was awarded following punishments:- "1. Petitioner was reverted on the basic pay scale. 2. Petitioner was held entitled in suspension allowance and adverse entry was made in his character roll." 3. This punishment order was not acted upon and only on 21.05.2003 when the fact of the punishment given to the petitioner came in the knowledge of the authorities, the pay fixation was determined in view of the aforesaid punishment order and the petitioner was retired on 30.05.2004 and excess amount paid to him was recovered from his gratuity. After the delay of 11 years, against the aforesaid punishment order, an appeal was preferred by the petitioner before the Commissioner on 20.02.2004. The appellate authority vide order dated 12.06.2014 was of the view that non-serving of a process, which was the charge on the petitioner, is not a serious charge and the punishment awarded to the petitioner is disproportionate to his charge and hence remanded the matter back to the District Magistrate with a direction to pass appropriate orders. In purported compliance of the appellate order, the impugned punishment order dated 25.08.2014 has been passed whereby the disciplinary authority has reduced the punishment and has stopped the two annual increments payable to the petitioner at that time with cumulative effect. The remaining punishment remained the same. 4. Learned counsel for the petitioner has assailed the impugned orders on the ground that impugned orders are de hors the Rule 15 of the U. P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as, "the Rules, 1999"). He submits that while passing the impugned orders the authorities have not followed the Rule 9(4) of the Rules, 1999. Lastly, it is submitted that the impugned orders are de hors of the principles of natural justice. 5. Sri Sanjeev Singh, learned Standing Counsel has opposed the petition. He submits that while passing the impugned orders the authorities have not followed the Rule 9(4) of the Rules, 1999. Lastly, it is submitted that the impugned orders are de hors of the principles of natural justice. 5. Sri Sanjeev Singh, learned Standing Counsel has opposed the petition. He submits that charge-sheet was served on 01.09.1992 and the punishment order of reversion was passed on 24.02.1993 however, the appeal was filed against the punishment order on 20.02.2004 which was highly belated and should have been dismissed out-rightly and summarily by the appellate authority under Rule 11 (4) of the Rules, 1999 however, instead of dismissing the appeal summarily, the appeal was considered and the matter was remanded to the disciplinary authority by giving a sympathetic consideration. He submits that contention of the petitioner that opportunity of hearing is must in view of Rule 9 (4) of the Rules, 1999 is fallacious. He submits that now the stage has gone from the stage of Rule 9 of the Rules, 1999. The order has been passed after the appellate stage and therefore, no opportunity is required. He further submits that it was not directed that punishment be enhanced however, only fresh orders were required to be passed by the disciplinary authority by giving the petitioner a lesser punishment and therefore, for these reasons, there was no need to provide opportunity of hearing before awarding this penalty. 6. The aforesaid Rule 9 of the Rules, 1999 has reproduced as under:- "9. Action on Inquiry Report-(1) The Disciplinary authority may, for reason to be recorded in writing, remit the case for reenquiry to the same or any other Inquiry Officer under intimation to the charged Government Servant. the Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7. (2) The Disciplinary Authority shall, if it disagrees with the finding of the Inquiry Officer on any charge, record its own finding thereon for reasons to be recorded. (3) In case the charges are not proved, the charged Government Servant shall be exonerated by the Disciplinary Authority of the charges and inform him accordingly. (2) The Disciplinary Authority shall, if it disagrees with the finding of the Inquiry Officer on any charge, record its own finding thereon for reasons to be recorded. (3) In case the charges are not proved, the charged Government Servant shall be exonerated by the Disciplinary Authority of the charges and inform him accordingly. (4) If the Disciplinary Authority, having regard to its finding on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charge Government Servant, he shall give a copy of the inquiry report and his finding recorded under sub-rule (2) to the charged Government Servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall having regard to all the relevant records relating to the inquiry and representation of the charge Government Servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these and communicate the same to the charged Government Servant." 7. A perusal of the Rule 3 of the Rules, 1999 shows that withholding of increments with cumulative effect is one of the major penalties. Rule 9 of the Rules, 1999 provides decision to be taken by the disciplinary authority upon receiving the inquiry report. Rule 9 (4) provides that disciplinary authority is of the opinion that any penalty specified under Rule 3 should be imposed on the charged government servant. He shall give a copy of the inquiry report and his findings recorded under sub rule (2) to the charged government servant and requiring him to submit his representation, if he so desires within a reasoned specified time. This admittedly has not been done. 8. A perusal of the appellate order dated 12.06.2014 shows that the matter of the petitioner after making some observations by the appellate authority was remanded to the District Magistrate who was directed to proceed in accordance with law and take further action. This admittedly has not been done. 8. A perusal of the appellate order dated 12.06.2014 shows that the matter of the petitioner after making some observations by the appellate authority was remanded to the District Magistrate who was directed to proceed in accordance with law and take further action. The relevant part of the appellate order is extracted below:- ^^mijksDr fLFkfr ds n`f"Vxr eSa bl fu"d"kZ ij igqapk gwa fd Jh panh izlkn lsokfuo`Rr psueSu rglhy mrjkSyk tuin cyjkeiqj }kjk ek= dfri; ekeyks esa rkehyk u fd;k tkuk bruk cMk xEHkhj vkjksi ugha gS fd deZpkjh dks ewy osru ij izR;kofrZr djus lEcU/kh n.M fn;k tk;A mDr fLFkfr essa ftykf/kdkjh dks funsZf'kr fd;k tkrk gS fd Jh panh izlkn lsokfuo`Rr psueSu rglhy mrjkSyk tuin cyjkeiqj ds lsok lEcU/kh izdj.k esa fu;ekuqlkj vfxze dk;Zokgh lqfuf'pr djk;saA** 9. The disciplinary authority ought to have given the copy of the inquiry report and his findings recorded under sub-rule (2) of Rule 9 to the charged government servant and he should have been required to submit his representation within a specified time. This admittedly has not been done in this case. The law in this regard has been settled way back in the case of Union of India & Ors. v. Mohd. Ramzan Khan reported in [ (1991) 1 SCC 588 ] which is as under:- "18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter." 10. The Supreme Court in the case of Allahabad Bank & Ors. v. Avtar Bhushan Bhartiya reported in [2022 (40) LCD 1631] while dealing with the challenge of major penalty has considered the effect of non-supply of inquiry report in the case of dismissal from service and has held it not valid and violative to the procedure laid down under the relevant rules. The relevant paragraph of the case of Allahabad Bank (supra) are extracted below:- "16. The relevant paragraph of the case of Allahabad Bank (supra) are extracted below:- "16. In the statutory appeal filed by the Officer-employee, he raised a specific contention that the enquiry report was not furnished. Despite recording a finding that the copy of the enquiry report was not even enclosed to the final order of penalty, the Appellate Authority attempted to overcome the same on the ground that after the appeal was filed, the copy of enquiry report was sent by post and that the same returned undelivered. The relevant portion of the order of the Appellate Authority reads as follows: "Also, a copy of the Enquiry Officer's report/findings, although not enclosed with the Disciplinary Authority's Order, has been subsequently provided to the appellant. However, the same, which was sent at the recorded address of the appellant on 2.6.1989, has been returned undelivered by the Post Office with the remark : "Pane wale bar bar jane par nahi milte, intezar ke bad wapas." 17. At the time when the final order of penalty dated 31.03.1989 was passed and at the time when the appeal was dismissed by the order dated 28.02.1990, the law in this regard was actually in a state of flux. After the decision of the Constitution Bench of this Court in Union of India and Another v. Tulsiram Patel, (1985) 3 SCC 398 , a two member Bench doubted its authenticity or applicability to cases where a copy of the enquiry report was not supplied. Therefore, in Union of India And Others v. E. Bashyan, AIR 1988 SC 1000 , a reference was made, which led to the decision in Union of India and Others v. Mohd. Ramzan Khan, (1991) 1 SCC 588 . The position became very clear after the decision in Managing Director, ECIL, Hyderabad v. B. Karunakar, 1994 SCC Supp.(2) 391. 26. It is not as though the High Court proceeded solely on the basis of the failure of the Management to supply the copy of the enquiry report. The High Court found that the charges related to a Government sponsored Scheme and that the beneficiaries were identified and were shortlisted by a Government agency, namely the District Rural Development Agency. The High Court also found that no bad motive was either attributed to the employee nor proved in the departmental proceedings." 11. The High Court found that the charges related to a Government sponsored Scheme and that the beneficiaries were identified and were shortlisted by a Government agency, namely the District Rural Development Agency. The High Court also found that no bad motive was either attributed to the employee nor proved in the departmental proceedings." 11. Submission of learned Standing Counsel that impugned order has been passed after the appellate stage and therefore, stage of Rule 9 of the Rules, 1999 has gone, hence no opportunity of hearing was required, is misconceived for the reason that the matter was remanded by the appellate authority to pass fresh order. The impugned order has been passed under Rule 9 of the Rules, 1999, hence, if the disciplinary authority was of the view that some penalty has to be given he should have followed the procedure mentioned under Rule 9 (4) of the Rules, 1999 which admittedly has not been done, therefore, the impugned order cannot be sustained. 12. In view of above, the writ petition is allowed. The impugned order as contained in Annexure No.1 dated 25.08.2014 is set aside. The matter is remanded back to the disciplinary authority i.e. opposite party No.3-District Magistrate, Balrampur to pass a fresh order strictly in accordance with Rule 9 of the Rules, 1999 within a period of three months from the date of receipt of a certified copy of this order.