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2024 DIGILAW 651 (ALL)

State of U. P. v. Sunny Yadav

2024-03-01

ASHWANI KUMAR MISHRA, SYED QAMAR HASAN RIZVI

body2024
JUDGMENT : In Ref: Delay Condonation Application 1. Reasons for delay in filing the special appeal have been satisfactorily explained. Delay Condonation Application is consequently allowed. 2. Office is directed to treat the appeal as having been filed within time. Regular Number would be allotted to the appeal. Order on Appeal 1. Heard Sri Ajit Kumar Singh, learned Additional Advocate General for the State and Sri Ashok Khare, learned Senior Counsel assisted by Sri Om Prakash Tripathi, learned counsel for the respondents. 2. This appeal is directed against the judgment and order passed by the learned Single Judge dated 22.3.2023 as corrected on 11.04.2023, whereby the punishment order dated 13.07.2020 against the petitioner has been set aside. Learned Single Judge has returned a finding that the procedure required to be followed for conduct of departmental enquiry i.e. U.P. Government Servant (Discipline and Appeal) Rules, 1999 has not been adhered to. The enquiry report has been perused by learned Single Judge and it is recorded that after considering petitioner's reply no oral or documentary evidence has been produced or taken note of, nor any such evidence has been proved. Learned Single Judge therefore has arrived at the conclusion that order of dismissal based upon such defective enquiry held in violation of the Rules of 1999 cannot be sustained. An opportunity has been given to the appellants to proceed against the petitioner, by holding a fresh enquiry, in accordance with applicable Rules. A further direction has been issued to pay subsistence allowance to the petitioner. The judgment has been corrected later and the petitioner has been held entitled to arrears of salary also in addition to the subsistence amount. 3. Sri Ajit Kumar Singh, learned Additional Advocate General for the State contends that the finding of the Writ Court with regard to non adherence to the procedure stipulated in Rule 7 of 1999 Rules is unsustainable inasmuch as enquiry has been conducted strictly as per law. It is also argued that since the Writ Court has granted liberty to the employer to hold a fresh enquiry. Therefore, the direction to release arrears of salary is impermissible. 4. Reliance is placed upon the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad and Others vs. B. Karunakar and Others, (1993) 4 SCC 727 . It is also argued that since the Writ Court has granted liberty to the employer to hold a fresh enquiry. Therefore, the direction to release arrears of salary is impermissible. 4. Reliance is placed upon the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad and Others vs. B. Karunakar and Others, (1993) 4 SCC 727 . It is urged that in the event punishment order was interfered with on the ground that procedure for enquiry has not been followed, the limited relief that could have been granted was to allow reinstatement for the purposes of holding of enquiry and option ought to have been given to place the employee under suspension for the purposes of holding of enquiry. Submission is that the course suggested by the Writ Court is completely at variance with the law laid down in Managing Director, ECIL, Hyderabad (supra), and therefore, the judgment of the learned Single Judge cannot be sustained. 5. Sri Ashok Khare, learned Senior Counsel assisted by Sri Om Prakash Tripathi, learned counsel for the respondents, on the other hand submits that the liberty granted by the Writ Court vide order dated 22.3.2023 has not been availed by the employer and in such circumstances this Court ought not to interfere in the order. It is further submitted that period of three months was sufficient to hold a fresh enquiry. It is also contended that the direction to release financial benefits is in accordance with law. It is also argued that the charges against the respondent petitioner are otherwise not serious enough so as to warrant any major punishment. 6. We have heard Sri Ajit Kumar Singh, learned Additional Advocate General for the State and Sri Ashok Khare, learned Senior Counsel assisted by Sri Om Prakash Tripathi, learned counsel for the respondents and perused the material available on record. 7. So far as the holding of departmental enquiry against the respondents is concerned, we find from a perusal of the enquiry report that after noticing the charges levelled against the employee concerned and his reply he has proceeded to return his findings. There is no reference in the enquiry report to any oral or documentary evidence furnished before the enquiry officer. The enquiry officer acts as a quasi-judicial authority and has to independently decide the issue of misconduct upon consideration of evidence led by either side. There is no reference in the enquiry report to any oral or documentary evidence furnished before the enquiry officer. The enquiry officer acts as a quasi-judicial authority and has to independently decide the issue of misconduct upon consideration of evidence led by either side. It is in this context that the procedure laid down in the Rules of 1999 has to be followed. In the event, enquiry officer is not satisfied with the reply submitted by the delinquent officer, the enquiry officer will have to proceed with the enquiry by fixing a date, time and place and conduct the enquiry. There is nothing on record to show that any date was fixed in the enquiry or any evidence was led, oral or documentary, before returning a finding of guilt against the delinquent employee. Whether the charges were serious enough so as to warrant any major punishment has also not been dealt with. 8. In such view of the matter, we find no error in the view taken by the learned Single Judge in allowing the writ petition on the ground of failure to adhere to the provision of the enquiry Rules. Challenge to the judgment of learned Single Judge on this ground fails. 9. The other part of appellants' submission is with regard to course of action which ought to have been made open for the appellants when the punishment order was interfered with on the ground that the enquiry has not been conducted in accordance with the procedure specified in the Rules. The issue with regard to the course available to the employer in the above circumstances has been elaborately laid down in Para 31 of the judgment of Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad and Others vs. B. Karunakar and Others, which is reproduced herein-below: “Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court! Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court. Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court. Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” 10. The judgment of the learned Single Judge would reveal that while extending the liberty to the employer to conduct a fresh enquiry a direction is simultaneously issued to release the arrears of salary also which was clearly impermissible in view of the observations made by the Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad (supra). 11. We are of the considered opinion that for the limited purposes of enabling the employer to conduct proper enquiry a direction ought to have been issued to reinstate the respondent-petitioner for the purposes of conduct of enquiry. In the event, charges were found serious, it would have to be left to the discretion of the employer either to take work from the employee concerned or to place him under suspension. The proceedings of enquiry would have to be restored to the stage from where it had gone bad. Question of paying arrears of salary ought to have been deferred to be decided on the basis of the fresh enquiry. Since such course has not been followed by the learned Single Judge, therefore to that extent, we are inclined to interfere in the judgment of the learned Single Judge and consequently the direction issued by the Writ Court stands modified to such extent. We are informed that subsistence allowance has already been paid to the respondent petitioner. We, therefore, provide that till conclusion of fresh enquiry in Rule 7, the appellant employer shall continue to pay subsistence allowance in case they opt to place the respondent petitioner under suspension. We also provide that the enquiry proceedings would be undertaken expeditiously and concluded within a period of four months from today. The respondent undertakes to co-operate in the enquiry. We also provide that the enquiry proceedings would be undertaken expeditiously and concluded within a period of four months from today. The respondent undertakes to co-operate in the enquiry. 12. In light of the above observations and subject to the modification made in the judgment of learned Single Judge, this special appeal stands disposed of. 13. Lastly we are informed that contempt proceedings have been initiated by the respondent for enforcement of the judgment of the Writ Court in which 4th March of 2024 is the date fixed for personal appearance of officers. Since we have modified the judgment of the learned Singe Judge it shall be open for the appellants to inform the contempt court about the order passed today and seek appropriate protection.