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2024 DIGILAW 2499 (ALL)

Rakesh Chandra Jauhari v. State of U. P.

2024-12-11

J.J.MUNIR

body2024
JUDGMENT : (J.J. Munir, J.) This writ petition is directed against an order of the Chief General Manager, Pradeshik Cooperative Dairy Federation Limited, Lucknow dated 10.3.2016, punishing the petitioner with reduction to his basic scale, after disciplinary proceedings. 2. The petitioner is a retired employee of the Pradeshik Cooperative Dairy Federation (for short, 'PCDF'), which is a State Government undertaking, funded and supported by the Government in the Ministry of Dairy Development. The petitioner appears to have joined the PCDF in the year 1985 on the post of an Accounts Assistant at District Varanasi as a regular employee. He put in more than thirty years' service before superannuating on 31.8.2017. At the time of his retirement, he was posted as an Accounts Assistant with the Cattle Feed Factory, PCDF, Ram Nagar, Varanasi. The petitioner says that he had an unblemished career until the fateful proceedings. Disciplinary proceedings were instituted against the petitioner on the 12th of August, 2013. He was suspended from service pending inquiry. An Inquiry Officer was appointed. The Inquiry Officer served the petitioner with a charge-sheet, carrying a total of seven charges. The charge-sheet is one dated 9.11.2013 and comes up with allegations regarding financial irregularities in the organization, issuing a cheque on 20.6.2013, drawing on a bank account, where there were insufficient funds, as well as a charge about forging the signatures of the General Manager, Dairy Production Federation, Raibareli to pay off dues etc., leading to the petitioner's integrity not being certified and two increments withheld for two years. 3. The petitioner submitted a reply to the charge-sheet. He denied the charges, coming up with defence pleas. The Inquiry Officer, the petitioner alleges, without holding an inquiry in accordance with salutary procedure, submitted a report dated 30.1.2015, holding the charges proved. Amongst others, it is averred that no oral inquiry was held in the sense that no evidence of witnesses for the establishment was recorded in support of the charges. It is also alleged that the mandatory provisions of the Uttar Pradesh Cooperative Dairy Federation Employees Service Regulations, 2010 (for short, 'the Regulations of 2010') were observed in breach, as also the Uttar Pradesh Cooperative Societies Employees Service Regulations, 1985 (for short, 'the Regulations of 1985'). 4. The petitioner was served with a show-cause notice dated 16.3.2015, which he answered by means of his reply dated 6.5.2015. 4. The petitioner was served with a show-cause notice dated 16.3.2015, which he answered by means of his reply dated 6.5.2015. The Chief General Manager, PCDF by his order dated 10.3.2016 proceeded to punish the petitioner, reducing him to the basic scale. For the period of suspension, he was denied salary, except the subsistence allowance, that he had received, but granted continuity in service. The petitioner says that due to incorrect advice, he submitted a representation/departmental appeal to the Managing Director, PCDF Limited, Lucknow, which does not lie for the class of penalty awarded to him under Regulation 88 read with Regulation 85(1) of the Regulations of 2010. It is also urged that the order impugned could not have been passed by the Chief General Manager, the Appointing Authority, without the prior approval of the Registrar, Cooperative Societies in view of the embargo carried in Regulation 88 of the Regulations of 2010. 5. A notice of motion was issued on 6.11.2024, in answer to which a counter-affidavit was filed on 27.11.2024. This counter-affidavit was filed on behalf of the Chief General Manager, PCDF by the Managing Director. 6. Parties having exchanged affidavits, the petition was admitted to hearing, which proceeded forthwith. Orders were reserved. 7. Heard Mr. Ashutosh Tripathi, learned Counsel for the petitioner, Mr. G.D. Mishra, learned Counsel appearing on behalf of respondent No. 2 and Mr. S.C. Upadhyay, learned Standing Counsel appearing on behalf of respondent No. 1. 8. Upon hearing learned Counsel for the parties, what is evident is that the penalty imposed is one of reduction to the basic pay-scale in perpetuity. This is a penalty, which under the Regulations of 2010 cannot be imposed upon an employee of the PCDF, without the issue of a charge-sheet and holding disciplinary proceedings. Apparently, this is a major penalty. In order to appreciate the nature of penalties and their classification, according to gravity, and a fortiori the procedure to be adopted and the remedies of appeal against various classes of penalties available to various Appellate Authorities, the provisions of Regulations 85-91 may be quoted with profit: ''85. Apparently, this is a major penalty. In order to appreciate the nature of penalties and their classification, according to gravity, and a fortiori the procedure to be adopted and the remedies of appeal against various classes of penalties available to various Appellate Authorities, the provisions of Regulations 85-91 may be quoted with profit: ''85. Penalties.-(1) Without prejudice to the provisions contained in any other regulation, an employee who commits a breach of duty enjoined upon him or has been convicted for criminal offence or an offence under Section 103 of the Act or does anything prohibited by these regulations shall be liable to be punished by anyone of the following penalties- (a) censure, (b) withholding of increment, (c) fine on an employee of Category IV (Peon, Chaukidar etc.), (d) withhold pay whole or part for the suspension period, (e) recovery from pay or security deposit to compensate in whole or in part for any pecuniary loss caused to the institution by the employee's conduct, (f) reduction in rank or grade held substantively by the employee, (g) removal from service, or (h) dismissal from service. (2) It shall be unlawful to impose more than one penalty. Copy of order of the punishment shall invariably be given to the employee concerned and entry to this effect shall be made in the service record of the employee. (3) No penalty except censure shall be imposed unless a show-cause notice has been given to the employee and he has either failed to reply within the specified time or his reply has been found to be unsatisfactory by the punishing authority. (4)(a) The charge-sheeted employee shall be awarded punishment by the appropriate authority according to the seriousness of the offence: Provided that no penalty under sub-clause (e), (f) or (h) of clause (1) shall be imposed without recourse to disciplinary proceedings. (b) No employee shall be removed or dismissed by an authority other than by which he was appointed unless the appointing authority has made prior delegation of such authority to such other person or authority in writing. (5) The appointing authority or person authorized by him while passing orders for stoppage of increments shall state the period for which it is stopped and whether it shall have effect of postponing future increments or promotion. 86. (5) The appointing authority or person authorized by him while passing orders for stoppage of increments shall state the period for which it is stopped and whether it shall have effect of postponing future increments or promotion. 86. Disciplinary proceedings.-(1) The disciplinary proceedings against an employee shall be conducted by the Inquiry Officer with due observance of the principles of natural justice for which it shall be necessary that- (a) the employee shall be served with a charge-sheet containing specific charge and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charge within reasonable time which shall not be less than fifteen years; (b) such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses to his defence and shall also be given an opportunity of being heard in person, if he so desires; (c) if no explanation in respect of charge-sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary. (2)(a) Where an employee is dismissed or removed from service on the ground of conduct which has led to his conviction on a criminal charge; or (b) Where the employee has absconded and his whereabouts are not known to Federation/Milk Union for more than three months; or (c) Where the employee refuses or fails without sufficient cause to appear before the Inquiring Officer when specifically called upon in writing to appear; or (d) Where it is otherwise (for reasons to be recorded) not possible to communicate with him. The competent authority may award appropriate punishment without taking or continuing disciplinary proceedings. (3) Disciplinary proceedings shall be taken by the Federation/Milk Federation against the employee on a report made to this effect by the inspecting authority or an officer of the Federation/Milk Union under whose control the employee is working. (4) The Inquiring Officer shall be appointed by the appointing authority for the purpose by the appointing authority: Provided that the officer at whose instance disciplinary action was started shall not be appointed as an Inquiring Officer nor shall the Inquiring Officer be the appellate authority. (4) The Inquiring Officer shall be appointed by the appointing authority for the purpose by the appointing authority: Provided that the officer at whose instance disciplinary action was started shall not be appointed as an Inquiring Officer nor shall the Inquiring Officer be the appellate authority. (5) In the case of an erring-employee falling in clause (4) of Regulation No. 7 the Competent Authority if so provided in the bye-laws shall draw up a duplicate charge-sheet against the employee and the same shall be communicated to the authorized officer who shall, if prima facie case has been made out by the reporting authority, withdraw him from the Federation/Milk Union and take disciplinary action against him. (6) An employee other than one referred to in clause (5) may be placed under suspension in the following circumstances by the appointing authority or any other officer authorized for the purpose- (a) when the said authority is satisfied that a prima facie case exists, which is likely to result in the removal, dismissal or reduction in rank of the employee. (b) when an enquiry into his conduct is immediately contemplated or is pending and his further continuance on his post is considered detrimental to the interest of the Federation/Milk Union. (c) when a complaint against him of any criminal offence is under police investigation for which he has been arrested or he is undergoing trial in a Court of law for offence under the Indian Penal Code, U.P. Cooperative Societies Act, 1965 or any other Act or charges have been framed against him by the Criminal Court: Provided that suspension shall be obligatory where it is called for in terms of clause (1) of Regulation No. 88. (7)(a) An employee under suspension shall be entitled to a subsistence allowance as per relevant rules applicable to State Government employee from time to time: Provided that an employee who is under suspension on the date of coming into force of these regulations shall continue to draw such portion of pay and such allowance as he was allowed to draw for the period of suspension: Provided further that a payment of the subsistence allowance shall be made unless the employee has furnished a certificate, and the authority passing the order of suspension is satisfied that the employee was not engaged in any other employment, business, profession, or vocation and had not earned remuneration therefore during the period under suspension. (b)(1) When an employee is reinstated, the authority competent to order the reinstatement shall make specific order regarding pay and allowance to be paid for the period of suspension whether or not the said period shall be treated as a period spent on duty: Provided that where the authority passing the order of reinstatement is of the opinion that the employee has been fully exonerated or the suspension was wholly unjustified, the employee shall be given the full pay and allowances to which he would have been entitled had he not been suspended. (2) In cases not covered by the proviso to foregoing sub-clause (1) the employee shall be given such proportion of pay and allowance as the Competent Authority may order. (c) In case falling under proviso to sub-clause (b)(1) the period of suspension shall be treated as a period spent on duty for all purposes. (d) In case falling under sub-clause (b)(2) the period of suspension shall not be treated as a period spent on duty, unless the Competent Authority specifically directs that it shall be so treated. (e) The order of suspension shall not take retrospective effect. (f) Leave shall not be granted to an employee under suspension. (d) In case falling under sub-clause (b)(2) the period of suspension shall not be treated as a period spent on duty, unless the Competent Authority specifically directs that it shall be so treated. (e) The order of suspension shall not take retrospective effect. (f) Leave shall not be granted to an employee under suspension. (g) An employee against whom proceedings have been taken either for his arrest for debt or a criminal charge or who is detained under any law for preventive detention shall be considered as under suspension for the period during which he is so detained in custody or is undergoing imprisonment and not be allowed any pay and allowance other than the subsistence allowance admissible under sub-clauses (a) and (b) for such period until the termination of the proceedings taken against him or until he is relaxed from detention and allowed to rejoin duty as the case may be. (h) A subsistence allowance shall be payable to the family of an employee who is detained in jail on the basis of report of the superintendent of the concerned jail even if there is no certificate under regulations. (i) A suspended employee shall remain at the place of attachment and in contact of the Investigation Officer during the period of suspension and shall intimate his address of residence and telephone number in writing to the concerned employer, place of attachment and Investigation Officer. (8) In case of fine it shall be deducted from his pay in monthly instalment, each such instalment not exceeding one-fourth of his monthly salary. (9) The order of suspension may be revoked by- (a) the authority which passed the orders, or (b) the appointing authority, if there are sufficient reasons for revocation and the same shall be recorded in the order of revocation. 87. Appeal.-Orders imposing penalty under sub-clause (a) to (d) of Clause (1) of Regulation No. 85 shall be appeasable to the authorities as mentioned in Appendix 'D'. 88. (a) Order imposing penalty under sub-clause (a) to (d) of Clause (1) of Regulation No. 85 shall not be passed except with the prior concurrence of the Appointing Authority and under sub-clause (e) to (g) except prior approval of the Registrar. 88. (a) Order imposing penalty under sub-clause (a) to (d) of Clause (1) of Regulation No. 85 shall not be passed except with the prior concurrence of the Appointing Authority and under sub-clause (e) to (g) except prior approval of the Registrar. (b) An appeal against imposed penalties of sub-clause (a) to (d) of Clause (1) of Regulation 85 may to the following- Nature of penalty Class of the penalised employee Authority imposing penalty Appellate Authority 1 2 3 4 Censure Class 3 Any Class I Officer be authorised by the appointing authority Appointing Authority Class 3 and Class 4 1. Appointing Authority 2. Any officer authorised by the appointing authority Registrar Committee of Management Fine Class 4 1. Appointing Authority 2. Any Class 1 or Class 2 Officer so authorised for this purpose by the appointing authority Registrar Appointing Authority Recovery of financial leave pay or rereimburse Class 3 and 4 1. Appointing Authority 2. Any first class officer so authorised for this purpose by the appointing authority Chairperson Appointing Authority 89. Every appeal shall comply with the following requirements- (a) It shall be couched in polite and respectful language. (b) It shall contain all material facts and argument and shall be complete in itself. (c) It shall be accompanied by an attested copy of the impugned order. (d) It shall specify the relief desired. (e) It shall be submitted through proper channel within 30 days from the date of receipt of order imposing the penalty. 90. An appeal preferred through proper channel under sub-clause (e) of Regulation No. 86 shall be forwarded without undue delay to the appellate authority with the comments of the authority through which it is submitted. 91. Save as provided in these regulations, no appeal shall be addressed or endorsed to or bear recommendations of other authorities or persons. A defiance of this regulation as well as any attempt to influence or canvass the appellate authority shall be deemed as breach of discipline, rendering the appeal liable to rejection and the employee to action for breach of discipline.'' 9. A perusal of Regulation 85(1) shows that various classes of penalties, or so to speak grades of them, are envisaged under sub-clauses (a) to (h) of Regulation 85(1) of the Regulations of 2010. A perusal of Regulation 85(1) shows that various classes of penalties, or so to speak grades of them, are envisaged under sub-clauses (a) to (h) of Regulation 85(1) of the Regulations of 2010. A comparison of clauses (1), (3) and (4) of Regulation 85 would show that for the more serious penalties envisaged under sub-clauses (e), (f) or (h) of clause (1) of Regulation 85, the procedure for holding disciplinary proceedings has been made mandatory. Clause (4)(a) of Regulation 85 would show that for serious misconduct, a charge-sheet has to be issued. Clause (3) says that except for censure, other penalties, which would include those enumerated in sub-clauses (b), (c) and (d) of clause (1) of Regulation 85, a show-cause notice is mandatory. No charge-sheet or disciplinary proceeding is envisaged. This would lead to the inescapable conclusion that the punishment of reduction to the basic pay-scale, which is apparently covered by clause (f), that speaks about reduction in rank or grade held substantively by the employee, is regarded as a major punishment to be awarded after regular disciplinary proceedings. 10. Now, having regard to the Regulations of 2010 and the salutary procedure to hold disciplinary proceedings, it is essential that in the departmental inquiry, the Inquiry Officer must convene himself into an Inquiry Tribunal, detached from the Establishment, of which he might otherwise be a part. He must not sit with the assumption that the charges are true and it is the employee, who is required to dispel the charges, that come with proof of themselves. He must require the Establishment to prove the charges by producing evidence through a Presenting Officer, particularly oral evidence or witnesses to prove the charges in a case, where a major penalty may be imposed. Even if the inquiry proceeds ex parte, it is the duty of the Inquiry Officer to require the Establishment to prove the charges in the employee's absence. A default in filing a reply or offering his defence, would not lead to Establishment of the charges ipso facto. The petitioner has averred in paragraph No. 12 of the writ petition that no inquiry was held or the statement of witnesses recorded in support of the charges. A default in filing a reply or offering his defence, would not lead to Establishment of the charges ipso facto. The petitioner has averred in paragraph No. 12 of the writ petition that no inquiry was held or the statement of witnesses recorded in support of the charges. The facts that no witnesses were examined by the Establishment and the Inquiry Officer opined merely on the basis of idle papers annexed to the charge-sheet, with no evidence being led on behalf of the Establishment and findings of guilt recorded, are admitted to the respondents. In this connection, a part of paragraph No. 9 of the counter-affidavit filed by respondent No. 2 is very relevant. It reads: ''9. That in reply to the contents of para 12 of the writ petition, it is stated that the charges were based upon the document, as such the enquiry officer considered the document and the reply of the petitioner and held the petitioner guilty. .....'' 11. A perusal of the Inquiry Officer's report removes all iota of doubt that an inquiry in the sense understood in a major penalty matter was ever held. There was a fundamental breach of salutary procedure. No evidence whatsoever was produced, particularly, witnesses in support of the charges by the Establishment to prove them. The Inquiry Officer sat with a closed mind, shuffled through the charge-sheet and the petitioner's reply besides idle papers, and cursorily held the charges proved. The fact that the petitioner was given opportunity before the Disciplinary Authority to appear in person and explain himself, does not absolve the Establishment of their burden to prove the charges at the inquiry. The entire approach of the respondents is one of regarding the charges as proof of themselves with burden upon the petitioner, the charge-sheeted employee, to dispel the charge. This approach of the respondents is fundamentally flawed and vitiates the findings of the Inquiry Officer as also the resultant order of punishment. The entire approach of the respondents is one of regarding the charges as proof of themselves with burden upon the petitioner, the charge-sheeted employee, to dispel the charge. This approach of the respondents is fundamentally flawed and vitiates the findings of the Inquiry Officer as also the resultant order of punishment. The law in this regard is well-settled as held by the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772 , Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 , State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236 and the Bench decisions of this Court in State of U.P. and another v. Kishori Lal and another, 2018(9) ADJ 397 (DB) (LB), Smt. Karuna Jaiswal v. State of U.P., 2018(9) ADJ 107 (DB) (LB) and State of U.P. v. Aditya Prasad Srivastava and another, 2017(2) ADJ 554 (DB) (LB). 12. The position of the law in this regard that has withstood the test of time has been recently endorsed by the Supreme Court in Satyendra Singh v. State of U.P. and another, 2024 SCC OnLine SC 3325, where it has been held: ''12. Learned counsel for the State was ad idem to the submissions of the appellant's counsel that no witness whatsoever was examined during the course of the inquiry proceedings. On a minute appraisal of the Inquiry Report, it is evident that other than referring to the documents pursuant to the so-called irregular transactions constituting the basis of the inquiry, the Inquiry Officer failed to record the evidence of even a single witness in order to establish the charges against the appellant. 13. This Court in a catena of judgments has held that the recording of evidence in a disciplinary proceeding proposing charges of a major punishment is mandatory. Reference in this regard may be held to Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 and Nirmala J. Jhala v. State of Gujarat, (2013) 4 SCC 301 . 13. Apart from the other issues, it is also true that in view of Regulation 88, the impugned order imposing the punishment of reduction to basic pay-scale could not have been awarded without the prior approval of the Registrar, Cooperative Societies. 13. Apart from the other issues, it is also true that in view of Regulation 88, the impugned order imposing the punishment of reduction to basic pay-scale could not have been awarded without the prior approval of the Registrar, Cooperative Societies. Nevertheless, since this Court is of opinion that the impugned order is vitiated more fundamentally by a flawed inquiry, it would not matter much because the order impugned has to be quashed with liberty to the respondents, if they so elect to proceed afresh from the stage of the charge-sheet. 14. There is still a further grievance that the petitioner makes and more relief that he seeks. The petitioner has retired from service way back on 31.8.2017. It is the petitioner's case that he has not been paid his gratuity, employees provident fund, group insurance and dues on account of leave encashment. Even if the respondents elect to proceed afresh against the petitioner, they would not be at liberty to impose a punishment higher than that awarded by the order impugned. This would not result in any kind of terminal punishment against the petitioner or an order for recovery of the loss occasioned. Therefore, while the respondents may consider the issue of awarding gratuity to the petitioner, they would have to ensure payment of the employee's provident fund, group insurance and dues on account of leave encashment, irrespective of the outcome of the inquiry de novo, if any, undertaken against the petitioner. 15. In the result, this petition succeeds and is allowed. The impugned order dated 10.3.2016 passed by the Chief General Manager, PCDF is hereby quashed. It will be open to the respondents to proceed against the petitioner afresh from the stage of the charge-sheet in the manner indicated in this judgment. If the respondents elect to proceed afresh against the petitioner, the award of gratuity would await the outcome of disciplinary proceedings taken de novo. The employee's provident fund, group insurance and dues on account of leave encashment shall be paid to the petitioner forthwith, irrespective of the fact, if fresh proceedings are taken against the petitioner or not. If no fresh proceedings are taken against the petitioner, the gratuity due shall also be paid on the basis of the pay-scale, to which the petitioner was entitled prior to the order impugned. 16. If no fresh proceedings are taken against the petitioner, the gratuity due shall also be paid on the basis of the pay-scale, to which the petitioner was entitled prior to the order impugned. 16. In the event, the respondents elect to pursue fresh proceedings, the same shall be expedited and concluded within a period of four months next. In the event of fresh proceedings being taken, it will not be open to the respondents to impose a penalty, higher than that awarded by the impugned order dated 10.3.2016, since quashed by this judgment. 17. There shall be no order as to costs. 18. Let this order be communicated to the Chief General Manager, Pradeshik Cooperative Dairy Federation Limited, Lucknow and the Managing Director, Pradeshik Cooperative Dairy Federation Limited, Lucknow through the learned Civil Judge (Sr. Div.), Lucknow by the Registrar (Compliance).