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2024 DIGILAW 2159 (ALL)

Janardan Prasad Dwivedi v. State Of Uttar Pradesh

2024-09-30

J.J.MUNIR

body2024
JUDGMENT : (J.J. Munir, J.) 1. This writ petition is directed against an order of the State Government dated 19.06.2024 made by the Principal Secretary, Geology and Mining Department, Government of U.P., Lucknow, directing further inquiry against the petitioner under Rule 9 of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999 (for short, 'the Rules of 1999'). 2. The petitioner was suspended pending inquiry into charges, inter alia, about not presenting mining and transport files in time before the Officer concerned, not complying with the orders of the former District Magistrate promptly and being lax in securing execution of his orders, engaging in illegal mining, transport and amassing wealth by illegally collecting moneys with the connivance of close relatives and associates; and, above all, in conspiracy with active touts, permitting transport of minerals without the necessary MM Form 11, as also passage of overloaded transport vehicles. In course of time, a charge-sheet dated 30.08.2022/ 01.09.2022 was issued by the Inquiry Officer to the petitioner, to which he submitted a reply dated 07.10.2022. A supplementary charge-sheet dated 02.01.2023 was then issued by the Commissioner, Vindhyachal Division, Mirzapur. The petitioner submitted a reply dated 20.01.2023 to the charge-sheet dated 02.01.2023. It appears that an inquiry was held by the Inquiry Officer under Rule 7 of the Rules of 1999, who submitted a report dated 22.02.2023, exonerating the petitioner of all charges. 3. The inquiry report was placed before the State Government. The Secretary in the Department of Mines and Minerals, Government of Uttar Pradesh rejected the report of the Inquiry Officer and directed an inquiry de novo. On occasion, a new Inquiry Officer was appointed and this appointment was in favour of the Commissioner, Vindhyachal Division, Mirzapur. The petitioner challenged the order dated 11.05.2023 passed by the State Government on ground, inter alia, that reasons for disagreement with the findings of the Inquiry Officer were not recorded by the Disciplinary Authority, as mandated by Rule 9 of the Rules of 1999. The challenge aforesaid was laid by the petitioner by a writ petition instituted before this Court, being Writ-A No.12075 of 2023. 4. The writ petition aforesaid was heard and allowed vide order dated 20.11.2023, where the suspension order dated 28. The challenge aforesaid was laid by the petitioner by a writ petition instituted before this Court, being Writ-A No.12075 of 2023. 4. The writ petition aforesaid was heard and allowed vide order dated 20.11.2023, where the suspension order dated 28. 04.2022 was quashed, besides the order dated 11.05.2023, directing inquiry de novo and a further order dated 30.06.2023 passed by the newly appointed Inquiry Officer, the Commissioner, Vindhyachal Division, Mirzapur, asking the petitioner to appear before him. The State Government were, however, granted liberty to pass orders afresh in accordance with Rule 9 of the Rules of 1999, declining or accepting the report of the Inquiry Officer, by means of a reasoned and speaking order. 5. Now, by the impugned order dated 19.06.2024 passed by the Principal Secretary, Geology and Mining Department, Government of U.P., Lucknow, acting for the Government, has rejected the inquiry reports dated 22.03.2023 and 21.12.2022 (there appear to be two reports relating to the two inquiries) and directed inquiry de novo to be held into the charges. Reliance has been placed by the Principal Secretary on a Government Order dated 19.07.2022, which mentions the 'dos and don'ts' in a disciplinary inquiry. Finding a breach of the 'dos and don'ts' stipulated in paragraph Nos.9, 10 and 11 of the Government Order dated 19.07.2022, the inquiry reports have been rejected, recording the following reasons: “HINDI IMAGE” 6. A further remark in the impugned order founded the rejection of the inquiry report entirely on the edifice of the Government Order dated 19.07.2022 and that remark, which is the concluding one in the order impugned, reads: “HINDI IMAGE” 7. When the writ petition came up for admission, it was argued by the learned Counsel for the petitioner, Mr. Adarsh Bhushan, that the order of the Principal Secretary is in breach of this Court's order dated 20.11.2023 passed in Writ-A No.12075 of 2023. Accordingly, a notice of motion was issued on 09.08.2024 in terms of the following order: “Let the Principal Secretary (Geology and Mines), Government of U.P., Lucknow, who passed the impugned order dated 19.06.2024, show cause why he has recorded and repeated the same findings that were quashed by this Court vide judgment and order dated 20.12.2023. Accordingly, a notice of motion was issued on 09.08.2024 in terms of the following order: “Let the Principal Secretary (Geology and Mines), Government of U.P., Lucknow, who passed the impugned order dated 19.06.2024, show cause why he has recorded and repeated the same findings that were quashed by this Court vide judgment and order dated 20.12.2023. The Principal Secretary will be mindful of the fact that a finding or a reasoning that is quashed by a judgment if rewritten, apart from being a contumacious act, renders the order void. A judicially determined matter cannot be reiterated by the Principal Secretary while deciding afresh. The affidavit shall be filed by the Principal Secretary (Geology and Mines), Government of U.P., Lucknow on or before 22.08.2024. Lay as fresh on 22.08.2024. Till then no inquiry, pursuant to the impugned order dated 19.06.2014, passed by the Principal Secretary (Geology and Mines), Government of U.P., Lucknow, shall proceed. Let this order be communicated to the Principal Secretary (Geology and Mines), Government of U.P., Lucknow through the Chief Judicial Magistrate, Lucknow by the Registrar (Compliance) by Monday i.e. 12.08.2024.” 8. In compliance with the notice of motion, a personal affidavit has been filed by Anil Kumar-III, Principal Secretary, Geology and Mining, Anubhag Civil Secretariat, Government of U.P., Lucknow, which is taken on record. It shall be read as the counter affidavit. 9. The learned Additional Advocate General does not desire to file any further counter affidavit. 10. Mr. Adarsh Bhushan, learned counsel for the petitioner waives his right to file a rejoinder affidavit. 11. Parties have exchanged affidavits. 12. Admit. 13. Heard forthwith. 14. Heard Mr. Adarsh Bhushan, learned counsel for the petitioner, Mr. M.C. Chaturvedi, learned Additional Advocate General assisted by Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel on behalf of the State. 15. The question is if the order impugned passed by the Principal Secretary is one in violation of the findings recorded by this Court vide judgment and order dated 20.11.2023 passed in Writ-A No.12075 of 2023, earlier instituted by the petitioner. This Court notices that during the proceedings of Writ-A No.12075 of 2023, an order was passed on 29.08.2023, which is reproduced in the judgment and order dated 20.11.2023, in paragraph No.7 thereof. This Court notices that during the proceedings of Writ-A No.12075 of 2023, an order was passed on 29.08.2023, which is reproduced in the judgment and order dated 20.11.2023, in paragraph No.7 thereof. The order dated 29.08.2023 passed during course of proceedings of the writ petition last mentioned, we think, requires to be recorded and noted for every word of it here as well. The order dated 29.08.2023 passed in Writ-A No.12075 of 2023 reads: “Heard Sri Adarsh Bhushan, learned counsel for the petitioner and Sri M.C. Chaturvedi, learned Additional Advocate General assisted by Sri Ankit Gaur, learned Standing Counsel. Original records have been produced before the Court relating to departmental proceeding, particularly the departmental enquiry conducted by enquiry officer who happened to submit two enquiry reports; first on 30.08.2022 in respect of the first chargesheet issued on 28th April, 2022; and secondly on 2.1.2023 in respect of supplementary charge-sheet The records were summoned on the basis of argument advanced by learned counsel for the petitioner that in the matter of setting aside the enquiry report and remitting the matter for fresh enquiry by appointing a new enquiry officer, the authority has simply rejected the report observing that they were not conducted in accordance with Government Order dated 19th July, 2022. Except for this observation, there has been no further discussion as to why enquiry was bad. Upon perusal of the entire original records that have been produced before this Court, it transpires that certain notings were made in the matter of departmental enquiry report in question already submitted, on the basis of which fresh enquiry was suggested for holding previous two enquiry reports to be bad on account of non compliance of the procedure prescribed for under the Government Order dated 19.07.2022. Learned Additional Advocate General has emphasized upon notings made in paragraph 8(v) of the original records, according to which delinquent employee was not summoned to get recorded his statement nor, cross examined the departmental witnesses and no reason was assigned as to why that departmental witnesses were not asked to appear. On the contrary, from the perusal of the report, I find that date was fixed for oral enquiry to be held in respect of the petitioner and even departmental witnesses were also directed to appear before the enquiry officer. On the contrary, from the perusal of the report, I find that date was fixed for oral enquiry to be held in respect of the petitioner and even departmental witnesses were also directed to appear before the enquiry officer. All these witnesses including delinquent employee made statement before the enquiry officer on the basis of which deliberation took place. This deliberation and discussion were held and ultimately charges were not found proved. Prima facie the Court is of the view that the stand taken by respondents for ordering a fresh enquiry was totally uncalled for unless and until the reason assigned was supported by sufficient material available on record. It is further seen that nothing has been commented upon in the notings adverse to the enquiry officer if he was not complying with the procedure prescribed for under the Government Order. Upon a pointed querry being made to the learned Additional Advocate General he is not in a position to state as to whether any departmental proceeding has been initiated against enquiry officer who, as claimed, had deliberately flauted the procedure prescribed for, particularly in relation to departmental witnesses who were not examined by the enquiry officer and what kind of action the government proposes. Learned Additional Advocate General seeks further time to go through the entire records to meet the above points. The matter is accordingly adjourned on the request of learned Additional Advocate General. Put up this matter on 5th September, 2023 at 2:00 pm.” (emphasis by Court) 16. It is true that this was an interlocutory order, which would stand merged in the judgment passed in the aforesaid writ petition, but the final remarks in the judgment have to be understood in the foreshadow of the order dated 29.08.2023. The reason is that while this Court was hearing Writ-A No.12075 of 2023, the original records and proceedings of the inquiry were summoned, gone through meticulously and then the order dated 29.08.2023 was recorded. The conclusions and the final remarks of this Court carried in the judgment that was passed on 20.11.2023 cannot be read in isolation, therefore. The concluding remarks in the judgment and order of this Court dated 20.11.2023 read: “13. Recording of reasons for re-enquiry means the satisfaction of the Enquiry Officer is to be objective one looking to the charges and findings returned and procedure followed. The concluding remarks in the judgment and order of this Court dated 20.11.2023 read: “13. Recording of reasons for re-enquiry means the satisfaction of the Enquiry Officer is to be objective one looking to the charges and findings returned and procedure followed. If the proper procedure was not followed, the authority would indicate what kind of procedure was not followed. Furthermore, I may observe that the Government Order dated 19.07.2022 only lays down certain do's and don'ts as a guidelines. Whether do's and don'ts if not complied with resulted in holding an enquiry to be absolutely bad not in terms of the procedure prescribed under Rule 7 or whether even further such violation of the guidelines had resulted in perverse findings in the enquiry report to make it compulsory to hold enquiry afresh, is an issue that is always needed to be addressed. Merely by saying that enquiry was not in accordance with the Rules or guidelines is not sufficient. The power to order for enquiry afresh under Rule 9(1) of the Rules is not absolute one and therefore, the authority excercising such power has to exercise it reasonably.” 17. This Court has noticed for a fact, while going through the proceedings of the inquiry, that a date was fixed for oral inquiry to be held, where the department's witnesses were directed to appear before the Inquiry Officer. It is also noticed that all these witnesses, including the delinquent employee, made statements before the Inquiry Officer, on the basis of which, the Inquiry Officer reached his conclusions, exonerating the petitioner, so to speak. It is also remarked that the stand taken by the respondents in the order then impugned, were totally uncalled for, unless these were supported by sufficient material available on record, for which reasons were assigned. The learned Judge has further looked into the notings of the Disciplinary Authority regarding the proceedings before the Inquiry Officer and his conclusions. In that connection, it is remarked by the learned Judge that nothing has been commented upon in the notings 'adverse to the Inquiry Officer, if he was not complying with the procedure prescribed for under the Government Order'. In that connection, it is remarked by the learned Judge that nothing has been commented upon in the notings 'adverse to the Inquiry Officer, if he was not complying with the procedure prescribed for under the Government Order'. It is then remarked that upon a query being addressed to the learned Additional Advocate General, he was unable to say if any departmental proceedings had been initiated against the Inquiry Officer, who, as claimed, had deliberately flouted the mandatory procedure, particularly, in relation to department's witnesses, who were not examined by the Inquiry Officer and what action the Government proposed against him. 18. In the concluding remarks, which have already been reproduced, it is emphasized that if the Inquiry Officer had not followed the procedure prescribed, it was imperative for the Authority to indicate what kind of procedure was not followed. The most important remark in the judgment of this Court dated 20.11.2023 is that the Government Order dated 19.07.2022 lays down the 'dos and don'ts' alone. This Court has then remarked, “whether do's and don'ts if not complied with resulted in holding an enquiry to be absolutely bad not in terms of the procedure prescribed under Rule 7 or whether even further such violation of the guidelines had resulted in perverse findings in the enquiry report to make it compulsory to hold enquiry afresh, is an issue that is always needed to be addressed. Merely by saying that enquiry was not in accordance with the Rules or guidelines is not sufficient”. These remarks have been extracted twice in this judgment to emphasize what upon remand the Secretary was required to do. We find that the Government Order dated 19.07.2022, for a breach of the guidelines there, would not, of itself, vitiate the inquiry. It is different if there is a breach of Rule 7 of the Rules of 1999. That breach would go to the root of the matter and render the inquiry bad. The Government Order is, after all, nothing more than guidelines to hold the inquiry and not a violation of the law in the sense that by itself it would vitiate the outcome of the inquiry. Here, this Court may digress a little and remark that the employment of casual words, like 'do's and don'ts', do not measure up to the formality of a sovereign dispensation, like the Government. Here, this Court may digress a little and remark that the employment of casual words, like 'do's and don'ts', do not measure up to the formality of a sovereign dispensation, like the Government. These are words that are employed in the corporate world in going about their business of selling products and services. It is desirable that the employment or use of these casual words is eschewed by sovereign functionaries. 19. Now, turning to the order impugned, no doubt, the Secretary has attempted to give reasons for rejecting the inquiry report, but sadly, these do not carry out the directions of this Court in the judgment and order dated 20.11.2023 passed in Writ-A No.12075 of 2023. In the first paragraph, it is remarked, on the basis of paragraph No.9 of the Government Order dated 19.07.2022, that witnesses named in the charge-sheet have to be called for cross-examination and their examination-in-chief has to be recorded in the presence of the delinquent. It is then remarked that in the inquiry done here, the witnesses proposed to be examined in the charge-sheet, were not called for their cross-examination, nor their evidence recorded in the presence of the delinquent. It is also said that the Inquiry Officer has not given any reasons for not summoning the department's witnesses. Now, this Court had gone through the proceedings of the inquiry during the hearing of Writ-A No.12075 of 2023 and, in the order dated 29.08.2023, recorded the fact that upon a perusal of the inquiry report, where the entire original records were available, a date was fixed for holding the oral inquiry. It is also remarked that department's witnesses were also directed to appear before the Inquiry Officer. It is then said that all these witnesses, a reference to the department's witnesses, including the delinquent employee gave evidence before the Inquiry Officer, on the foot of which the Inquiry Officer, after analysis, reached a conclusion to exonerate the petitioner. It is difficult, therefore, to accept the remarks in paragraph No.1 of the reasons given by the Secretary that none of the department's witnesses mentioned in the charge-sheet were examined. It is difficult, therefore, to accept the remarks in paragraph No.1 of the reasons given by the Secretary that none of the department's witnesses mentioned in the charge-sheet were examined. At least if that kind of a finding is to be given, the names of witnesses, who were mentioned in the charge-sheet, but not examined, were required to be furnished in order to reach a conclusion, which cannot be different from us on the same material, but may be based on materials not gone into by this Court. If there is no further material relevant to the findings of this Court, or it has been gone into and then findings recorded, the State Government simply could not have recorded the findings in paragraph No.1 of the order impugned. 20. The finding recorded in paragraph No.2 is that the Government Order dated 19.07.2022 requires, vide paragraph No.10 thereof, the evidence of witnesses to be taken on oath, which was not administered to them by the Inquiry Officer. This has been held to vitiate the result; or so it seems. In our opinion, it does not. The requirement of administering an oath does not find mention in the Rules of 1999, in particular Rule 7, that govern the holding of an inquiry, which may lead to the imposition of a major penalty. A direction in the Government Order to administer oath to witnesses would not prevail over statutory rules that do not mandate it. At least, the Government Order cannot be read to be mandatory in that regard, so as to vitiate the result. If Rule 7 has been complied with, the added directions to administer oath to witnesses in the Government Order may be regarded as directory. The other part of the reasoning in paragraph No.2 is that the Inquiry Officer did not record evidence of the department's witnesses on oath in the presence of the delinquent, but instead recorded the evidence of some men/ employees, who were themselves charged at the inquiry. Now, if this is correct for a fact, it would certainly be a good ground to direct an inquiry de novo. Now, if this is correct for a fact, it would certainly be a good ground to direct an inquiry de novo. But, to hold it to be so, as done in the second part of paragraph No.2 of the reasoning carried in the impugned order, it is imperative that the names of those department's witnesses, who were mentioned in the charge-sheet, but not examined, be disclosed specifically in the order to record a sustainable finding of this kind. This has not been done at all. Instead, there is just a vague reference that evidence of witnesses, who were to testify for the department and mentioned in the charge-sheet, were never called and examined on oath. This is a vague finding, which cannot be sustained. 21. The last part of the finding in paragraph No.2 of the reasoning says that some persons/ employees, who were themselves facing charges, had their evidence recorded, which vitiated the inquiry. If this were the case, the Disciplinary Authority/ State Government would be obliged, again, to disclose in their findings the names of such persons, who testified, leading to the inquiry report exonerating the petitioner and were themselves delinquents alongside him. There is again, therefore, a vague finding that some witnesses were examined on behalf of the department, who were themselves delinquents facing charges in the inquiry along with the petitioner. 22. The last ground, on which the inquiry has been held bad is the fact that paragraph No.11 of the Government Order dated 19.07.2022 directs the regular maintenance of an order-sheet, which had not been done in this case. It is trite that in any proceedings of this kind, a regular order-sheet, date-wise and in seriatim, should be maintained, which this Court believes was not done. Even if the order-sheet was not maintained, as directed by the Government Order dated 19.07.2022, it would not vitiate the inquiry unless the result of non-adherence is shown positively to have resulted in some flawed conclusions. Apparently, there is nothing to show that non-maintenance of the order-sheet was anymore than an irregularity in this case. 23. In the circumstances and for reasons hereinabove given, the impugned order cannot be sustained. 24. This writ petition succeeds and is allowed in part. The impugned order dated 19.06.2024 passed by the Principal Secretary, Geology and Mining Department, Government of U.P., Lucknow is hereby quashed. 23. In the circumstances and for reasons hereinabove given, the impugned order cannot be sustained. 24. This writ petition succeeds and is allowed in part. The impugned order dated 19.06.2024 passed by the Principal Secretary, Geology and Mining Department, Government of U.P., Lucknow is hereby quashed. The matter stands remitted to the Principal Secretary, Geology and Mining Department, Civil Secretariat, Government of U.P., Lucknow to pass a fresh order in accordance with the guidance in this judgment. 25. There shall be no order as to costs.