Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 2134 (ALL)

Ashok Kumar v. U. P. Power Corporation Ltd.

2024-09-25

AJIT KUMAR

body2024
JUDGMENT : Hon'ble Ajit Kumar, J.-Heard Mr. Manu Mishra, learned counsel for the petitioner, Mr. Abshishek Srivastava, learned counsel for respondent Nos. 1, 2, 4 and 5 and Mr. Brajesh Pratap Singh, learned counsel for respondent No. 3. 2. By means of this petition filed under article 226 of the constitution, petitioner has questioned two orders passed by competent authority of respondent-Corporation; first, the order dated 9th May, 2024 passed by respondent No. 2 placing the petitioner under suspension after reinstating him in compliance of earlier order of this Court dated 27th February, 2024 passed in Writ-A No. 1783 of 2024 and also the order dated 7th September, 2024 passed by respondent No. 4 whereby he has been directed to participate in the enquiry. 3. Two fold submissions have been advanced by learned counsel for the petitioner, firstly, certified copy of the order of this Court dated 27th February, 2024 was duly served in the Office of respondent No. 2 on 5th of March, 2024 and yet no action was taken to reinstate petitioner immediately and the order came to be passed only on 9th of May, 2024 reinstating him and then placing him again under suspension taking aid of direction given by this Court under its order dated 27th February, 2024 to reinstate petitioner or even suspend petitioner in the discretion of the respondents during the pendency of enquiry, whereas according to Mr. Mishra, enquiry ought to have been concluded in all circumstances by 4th of April, 2024. Mishra, enquiry ought to have been concluded in all circumstances by 4th of April, 2024. In support of his submission, he has placed reliance upon full Bench judgment of this Court in the case of Abhishek Prabhakar Awasthi v. New India Assurance Company Limited; 2014(6) ADJ 641 , wherein the Court framed two questions as to whether once enquiry was directed to be concluded within a time frame fixed by the Court then it was open for the respondents to continue with the enquiry beyond prescribed period of time without seeking extension of time from the Court and, secondly; whether the law laid down by the Division Bench of this Court in the case of P.N. Srivastava to the effect that if the enquiry was not concluded within the time frame fixed by the Court it stands vitiated, to be still a good law in the light of the judgment of Supreme Court in the case of Suresh Chandra as well as a judgment of Division Bench of this Court dated 27.7.2009 in Civil Misc. Writ Petition No. 1056 (SB) of 2009; Union of India and others v. Satndra Kumar Sahai and another, wherein the Court while answering the second question, observed that it all depends upon the facts of each case and it is in the discretion of Court to extend time for conclusion of enquiry. Counsel for the petitioner submitted that second order directing petitioner to participate in the enquiry is, therefore, also bad. 4. Meeting the arguments advanced by learned counsel for the petitioner, Mr. Srivastava submits that once the Court has granted discretion to the authorities to place petitioner under suspension during enquiry, which was to be conducted under the orders of the Court, petitioner cannot complain of being placed under suspension by the order dated 9.5.2024. He submitted that as a matter of fact, petitioner was not responding to the call made to him to appear before Enquiry Officer so that enquiry could be completed within the time frame as prescribed by the Court. He further submitted that the delay has been caused because of some correspondence taking place between Western DISCOM and the Corporation at Lucknow. It is argued that it all happened due to inadvertence and not with any deliberate intention to hash petitioner. Mr. He further submitted that the delay has been caused because of some correspondence taking place between Western DISCOM and the Corporation at Lucknow. It is argued that it all happened due to inadvertence and not with any deliberate intention to hash petitioner. Mr. Srivastava has also placed reliance upon the observations made by the full Bench of this Court in the case of Abhishek Prabhakar Awasthi (Supra) to assert that while answering both the questions, the Court had clearly observed that just for delay in conclusion of enquiry within the time frame provided by the Court, entire disciplinary proceedings cannot ipso facto rendered illegal or void and discretion also vested with the Court to extend period of time which was earlier prescribed by it. He submits further that the authority can seek extension of time before the Court concerned that had passed the order fixing time limit or even can pray for extension of time, if challenge is laid to suspension order afresh by the delinquent employee on the ground of delayed or prolonged enquiry. 5. Having considered the rival submissions advanced by learned counsel for the respective parties and having perused the record as well as having gone through the judgment of this Court, I find merit in the submissions advanced by learned counsel for the respondents that merely because of delayed or prolonged enquiry, just for the fact that earlier the Court had directed to conclude the enquiry within a time bound period will ipso facto not result in holding the enquiry void or otherwise bad. It is relevant to mention here the observations? made by the Court while answering question No. A & B vide paragraph-18 of Full Bench judgment (Supra) which reads as under : ''18. In view of the above discussion, we no proceed to answer the questions which have been referred to the Full Bench. (A) Question No. (a): We hold that if any 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. 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 as well as the judgment of the Division Bench of this Court in the case of Satyendra Kumar Sahai 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. 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 extent 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.'' 6. Thus, in view of the above, I do not find any good ground to interfere with the order passed by the authority dated 7.9.2024 asking petitioner to appear before Enquiry Officer so that enquiry could be concluded. 7. Thus, in view of the above, I do not find any good ground to interfere with the order passed by the authority dated 7.9.2024 asking petitioner to appear before Enquiry Officer so that enquiry could be concluded. 7. Insofar as order of suspension dated 9.5.2024 is concerned, I find, even though certified copy of the order of this Court dated 27th February, 2024 was served in the Office of respondent No. 2 on 5th of March, 2024, pleading in respect thereof has been raised in paragraph-16 of the writ petition, no explanation is seen in the order dated 9.5.2024 as to why delay was caused at the end of respondent No. 2 in complying with the direction of this Court. As a matter of fact petitioner remained suspended without enquiry being progressed and that too, as claimed, without receiving subsistence allowance for a pretty long period of two months just for negligence on the part of respondent No. 2 and, therefore, in these circumstances there appears to be no justification to continue him under suspension provided of course, petitioner renders full cooperation in the matter of domestic enquiry which is going on. 8. Accordingly, writ petition is partly allowed. The order dated 9.5.2024 passed by respondent No. 2, filed as annexure-1 to the writ petition, is quashed to the extent it places petitioner under suspension. However, domestic enquiry which is already going on, as is reflected from subsequent order dated 27.9.2024, shall continue and shall be concluded in all circumstances within next two months' time provided of course, petitioner cooperates and participates in the enquiry and to show his bona fide he will be appearing before respondent No. 4 on or before 4th October, 2024. 9. It is clarified that in the event petitioner does not cooperate and does not appear subsequently in the enquiry before the Enquiry Officer, it will remain open for respondents to get the enquiry concluded in accordance with law and so also conclude the disciplinary proceedings within the period prescribed hereinabove. 10. It is further provided that petitioner shall be entitled to be paid current salary. However, payment of arrears of salary claimed by the petitioner and also payment of subsistence allowance w.e.f. 9.5.2024, if not already paid, shall depend upon the outcome of disciplinary proceedings. 11. There will be no order as to cost.