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2025 DIGILAW 1027 (ALL)

Yogesh Kumar Sharma v. State of U. P.

2025-08-07

SAURABH SHYAM SHAMSHERY

body2025
JUDGMENT : Saurabh Shyam Shamshery, J. 1. Heard Sri Ashok Khare,learned Senior Counsel assisted by Sri Pradeep Kumar Upadhyay, learned counsel for the petitioner, Sri M.C.Chaturvedi, learned Additional Advocate General assisted by Sri Aditya Bhushan Singhal, learned counsel for the respondents. 2. Petitioner was initially appointed as Junior Engineer (Civil) in 1984 in U.P Jal Nigam. 3. Petitioner was promoted as Assistant Engineer in the year 2003 and was accommodated as Executive Engineer in April 2016.Later on, he was accorded promotion on the post of Superintending Engineer on 3.3.2023 and he retired on 30.4.2023 as Superintending Engineer. 4. On 30.6.2024, an occurrence took place and a recently constructed water tank at Krishna Vihar, Colony, Mathura having a capacity of 2500 Litres fell down, which resulted into death of two women and 11 persons were injured also. 5. The aforesaid occurrence was taken note of and an inquiry was conducted by a four member committee and its report dated 24.7.2024 was submitted and on basis of its outcome, disciplinary proceedings were initiated against the petitioner after his retirement since it was found that petitioner was incharge and was looking after the construction of water tank between 7. 10.2020 to 8.6.2022 and at least 45% of work was completed during his tenure though according to the petitioner, only 25% of work was done under his tenure which includes construction of Top Dome (Top Cover), Pipe Fitting & Fixture, Painting, Testing and Commissioning. Disciplinary Proceedings were initiated against other employees also. 6. A decision was also taken to lodge an F.I.R and accordingly an F.I.R was also lodged on 1.7.2024 under Sections 304 and 338 of I.P.C. against construction companies and unnamed officials. 7. Petitioner was already retired therefore, Prabandh Nideshak/ Nideshak Mandal in terms of amended Rules 3(1) and 3(2) of U.P. Sarkari Karmchari Acharan Niyamavali-1956, with a permission of Chairman, U.P. Jal Nigam (Urban) Lucknow took a decision to initiate inquiry against the petitioner, under Rule 351 (a) of CCS Rules and an Inquiry Officer was appointed. This communication was in anticipation of permission from Nideshak Mandal of U.P. Jal Nigam (Urban) Lucknow). For reference order dated 9.8.2024 is reproduced hereinafter: 8. In the aforesaid circumstances a charge-sheet dated 23.8.2001 was served upon the petitioner on 2 charges. For reference details of Charges No.1 and 2 are reproduced hereinafter: 9. This communication was in anticipation of permission from Nideshak Mandal of U.P. Jal Nigam (Urban) Lucknow). For reference order dated 9.8.2024 is reproduced hereinafter: 8. In the aforesaid circumstances a charge-sheet dated 23.8.2001 was served upon the petitioner on 2 charges. For reference details of Charges No.1 and 2 are reproduced hereinafter: 9. In the present Writ Petition, the petitioner has challenged above referred charge-sheet and further proceedings, mainly on a ground that a decision to initiate inquiry after retirement was without following due process as required under Rule 351 (a) of the CCS Rules. 10. Petitioner is also aggrieved that gratuity and leave encashment was illegally withheld being against the provisions of law. 11. The permission to initiate departmental proceedings vide Office Memo dated 9.8.2024 is not under challenge. 12. Court also takes note of para 24 of Rejoinder Affidavit that, it is not the case that petitioner was not aware about the aforesaid Office Memo dated 9.8.2024, when present Writ Petition was filed nor any prayer was made to amend the prayers. 13. Sri Ashok Khare, learner Senior Counsel has argued at length that procedure to initiate departmental inquiry, after petitioner’s retirement was illegal. The appropriate authority to grant such permission was the Hon’ble Governor and it could not be delegated to the Board of Directors of U.P. Jal Nigam. 14. Learned Senior Counsel also submitted that the Office Memo dated 9.8.2024 was placed before the Board of Directors for consideration. The Board in its meeting dated 22.10.2024, delegation was objected and it was directed to take a fresh opinion from the State. Details of relevant part of agenda and decision are mentioned hereinafter: 15. Learned Senior Counsel further argued that once sanction to initiate proceedings was itself vitiated, consequently the charge-sheet becomes void-ab-initio. 16. Learned Senior Counsel also stated that there is no adverse order against the petitioner, therefore, to withhold gratuity and leave encashment amount is also illegal. 17. Learned Senior Counsel also stated that construction of Water Tank was almost complete when the petitioner has joined as only 25% work was left. 18. Per contra, Sri M.C. Chaturvedi, learned Additional Advocate General has referred following paragraphs of counter affidavit that due process was followed by making Office Memorandum power to grant sanction was duly delegated to Board of Directors. Paragraphs Nos.14, 19 and 20 of counter affidavit are reproduced hereinafter: “14. 18. Per contra, Sri M.C. Chaturvedi, learned Additional Advocate General has referred following paragraphs of counter affidavit that due process was followed by making Office Memorandum power to grant sanction was duly delegated to Board of Directors. Paragraphs Nos.14, 19 and 20 of counter affidavit are reproduced hereinafter: “14. That the contents of paragraphs no.15,16,17 & 18 of the writ petition are misleading and misconceived as stated, hence denied. In reply it is submitted that when cases of serious misconduct committed during service, or financial loss caused to the department, come to light against retired employees of the department, disciplinary proceedings are initiated against them under Rule 351 (A) of the Civil Services Regulations (CSR) after obtaining approval from the Board of Directors, U.P. Jal Nigam (Uran). As per the decision taken in Item No.163.11 of the 183th Meeting of the Board of Directors of the erstwhile U.P. Jal Nigam dated 05.07.2014, the authority to initiate proceedings against referred public servants of U.P. Jal Nigam under Rule 351 (A) of CSR has been delegated to the Chairman, U.P. Jal Nigam, subject to post facto approval being obtained in the next meeting of the Board of Directors. True copy of the decision dated 05.07.2014 circulated vide letter dated 28.08.2024 is being annexed herewith and marked as Annexure No.CA-2 to this affidavit. Accordingly, with the permission of the respondent No. 2 i.e. Chairman, Uttar Pradesh Jal Nigam (Urban), departmental proceedings were initiated under Rule 351(A) through Memorandum dated 09.08.2024, in accordance with the prescribed rules, and the respondent No.5 was appointed as the Inquiry Officer to conduct an investigation into the charges. True copy of Memorandum dt. 09.08.2024 is being annexed herewith and marked as Annexure No. CA-3 to this affidavit. The proposal placed under Item No.138.08 of the 138th Meeting of the Board of Directors of Uttar Pradesh Jal Nigam dated 22.01.2003 was approved by the Board of Directors. Accordingly, the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, issued under Notification No.13/9/98-Ka-1-99 dated 09 June, 1999, shall be deemed applicable to public servants employed in the Uttar Pradesh Water Corporation, subject to the following modifications: (i) Wherever the words "Governor" or "State Government" occur in the said Rules, the words "Corporation" and "Board of Directors" shall be deemed to be substituted in their place. Accordingly, the powers conferred on His Excellency the Governor or the State Government under the aforementioned Rules shall be exercised by the "Board of Directors of the Corporation" in the case of public servants of the Uttar Pradesh Jal Nigam. (ii) Further as per the order issued under Office Memorandum No.1845/P-1/JN/35/137/2002 dated 13.11.2002, while invoking Rules 13, 14, and 15 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999, it shall not be necessary to comply with Rule 16 of the said Rules. True copy of the extract of the 138th Board Meeting dated 22.01.2003 circulated vide letter dated 03.02.2003 being annexed herewith and marked as Annexure No. CA-4 to this affidavit. In addition to the foregoing, the following decision has been taken with regard to the delegation of powers under Rule 351-A of the CSR vide Letter dated 08 October, 2001 issued by Urban Development Section-3, Government of Uttar Pradesh, to the Board of Directors of the Uttar Pradesh Jal Nigam: "That from 09.06.1996, the U.P. Government Servant (Discipline and Appeal) Rules, 1999 have been in force, and Rules 7 to 9 therein prescribe the procedure for imposing major penalties, including dismissal. Therefore, the inquiry in the present matter must be conducted strictly in accordance with the procedure laid down in the aforesaid Rules of 1999. In the said Rules as well as in Article 351-A, wherever the words "Governor" or "State Government" appear, they shall be construed to mean "Corporation" in the present case. Accordingly, the powers conferred on the Governor or the State Government in the said Rules shall be exercised by the "Corporation" in matters concerning officers/employees of U.P. Jal Nigam. True copy of the letter dated 08.10.2001 issued by the State Govt. is being annexed herewith and marked as Annexure No. CA-5 to this affidavit. In the instant case, the Corporation itself is competent to initiate departmental proceedings against retired personnel. The approval of the Governor or the State Government is not required. 19. That the contents of paragraph no. 27 of the writ petition so far as it relates to the Minutes of Meeting dated 22.10.2024 is a matter of record, rest of the averments as stated in paragraph under reply are not admitted, hence denied. The approval of the Governor or the State Government is not required. 19. That the contents of paragraph no. 27 of the writ petition so far as it relates to the Minutes of Meeting dated 22.10.2024 is a matter of record, rest of the averments as stated in paragraph under reply are not admitted, hence denied. In reply it is submitted that vide Office Memorandum No.630 dated 09.08.2024, a proposal for ex post facto approval of the departmental proceedings initiated against the petitioner under Rule 351-A of the CSR was duly placed before the Board of Directors of the Uttar Pradesh Jal Nigam (Urban) under Agenda Item No.7.10 in its meeting held on 22.10.2024. The operative portion of the decision taken in that meeting is reproduced below for ready reference: During the discussion on this agenda item, it was brought to the attention of the Board that Rule 351-A of the CSR provides for obtaining permission from His Excellency the Governor before taking action against retired departmental employees. It was argued that the earlier resolution of the Board empowering itself as the competent authority in such matters was inconsistent with legal provisions. However, in view of the special status of the Water Corporation (Urban)-in particular, the fact that employees do not receive pension from the State Treasury-this argument was prima facie not found acceptable. Nevertheless, it was resolved that the matter be subjected to further legal examination and that the opinion of the Government be obtained." That from the above decision, it is manifest that the argument raised against the authority of the Board of Directors was not accepted by the Board of Directors. The Uttar Pradesh Jal Nigam (Urban) is a utility-based statutory body, and the status of its employees is not equivalent to that of State Government employees. In pursuance of the above, the legal opinion of the departmental legal consultant was obtained, and the relevant portion thereof is extracted as follows: "Perused the noting as well as letter dated 08.10.2001 issued by the Government. It is crystal clear that since Jal Nigam has adopted Regulation 351-A with the prior approval of the State Government, by means of which the Board of Directors has been substituted in place of the Governor, the competent authority in respect of 351-A proceedings will be the Board of Directors, U.P. Jal Nigam, without a doubt. 20. It is crystal clear that since Jal Nigam has adopted Regulation 351-A with the prior approval of the State Government, by means of which the Board of Directors has been substituted in place of the Governor, the competent authority in respect of 351-A proceedings will be the Board of Directors, U.P. Jal Nigam, without a doubt. 20. That from the above, it is evident that the authority under Rule 351-A of the CSR to initiate departmental proceedings against retired personnel vests with the Board of Directors, Uttar Pradesh Jal Nigam/Uttar Pradesh Jal Nigam (Urban). Accordingly, disciplinary proceedings against the petitioner were lawfully instituted vide letter dated 09.08.2024, strictly in accordance with Rule 351-A of the CSR.” 19. Learned Additional Advocate General also submitted that in departmental proceedings, no interference be caused at a very initial stage. 20. Heard learned counsel for the parties and perused the records. 21. On basis of available records, it is not much under dispute that a newly constructed Water Tank (under Amrit Programme) fell down, which resulted into death of two women and 11 persons were injured also. 22. A Four Member Committee was constituted which gave its report dated 25.7.2024. The Committee recorded statements of residents, living nearby the Water Tank. Unfortunately, petitioner has not annexed complete copy of report. Similarly, respondents have also not filed completely copy. Details of Executive Engineers connected with the project are missing. Therefore, the Court takes note of earlier report dated 30.6.2024, submitted by the 2 officials, that the petitioner was appointed in the concerned region from 7.10.2020 to 8.6.2021, when construction of water tank was going on and it was complete on 28.8.2021. According to Reports, during his tenure around 45% of construction took place. 23. The petitioner has disputed percentage of construction during his tenure i.e. according to him, it was only 25%, however, such dispute would not have any material effect, since admittedly final construction work was undertaken during petitioner’s tenure and he had opportunity to check standard of construction, however, he failed to do so. 24. Now the issue is who is the Appropriate Authority to grant sanction to initiate proceedings under Section 351 (a) of CCS Rules. 24. Now the issue is who is the Appropriate Authority to grant sanction to initiate proceedings under Section 351 (a) of CCS Rules. Chairman, U.P.Jal Nigam has issued an Office Memo dated 3.2.2003, whereby a decision taken by Board of Directors, U.P.Jal Nigam in its 138 th meeting dated 22.1.2003 was communicated, whereby provision of U.P. Government Service Servant (Discipline and Appeal) Rules, 1999 were adopted with an amendment that word ‘Governor’ or ‘State Government’ be read as ‘Nigam/Board of Directors’. For reference, Office Memo dated 3.2.2003 is reproduced hereinafter: 25. Aforesaid Office Memo dated 3.2.2003 still hold’s good and it has never interfered, therefore, a doubt created in 7 th meeting of Board of Directors has no legal value, since, above referred decision dated 22.12.2003 is completely applicable upon respondents also. 26. Otherwise also, later on a legal opinion was also communicated and till date no contrary decision is taken by Board of Directors. 27. The Office Memo dated 28.8.2024 of the respondents also grants permission to take ex-post facto permission or decision to initiate proceedings under above referred Rules from Board of Directors preferably in its next meeting, which was accordingly placed and legal impediment was also removed. 28. In the aforesaid circumstances, there is no legal error in initiating proceedings against the petitioner after retirement since Board of Directors decision was duly taken under aforesaid provisions. 29. Writ Petition being sans merit, is accordingly dismissed.