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2025 DIGILAW 699 (ALL)

Avesh v. U. P. Avas Evam Vikas Parishad

2025-04-29

RAJESH SINGH CHAUHAN

body2025
JUDGMENT : Rajesh Singh Chauhan, J. 1. Heard Sri Apoorva Tewari, learned counsel for the petitioner and Sri Rama Pati Shukla (R.P. Shukla), learned counsel for the opposite parties. 2. Sri R.P. Shukla, learned counsel for the opposite parties has filed counter affidavit, the same is taken on record and the rejoinder affidavit thereof has already been filed, which is on record. 3. By means of this writ petition, the petitioner has prayed for the following reliefs:- "(a) to issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 21.01.2025 passed by the Respondent No.2 as contained in Annexure No.1 to the writ petition; (b) to issue a writ, order or direction in the nature of certiorari to quash the impugned office order dated 22.02.2024 passed by the Respondent No.2, after summoning the original from the respondents; (c) to issue a writ, order or direction in the nature of mandamus commanding the Respondent No.2 to reinstate the petitioner in service and to pay full salary to the petitioner for the period the petitioner remained under suspension." 4. So far as the Prayer No.(b) of the writ petition is concerned, Sri R.P. Shukla has informed, on the basis of instructions, that by means of order dated 22.02.2024 only this much has been directed that in the present matter setting aside the first enquiry report, the denovo enquiry be conducted against the petitioner considering the representation of the complainant dated 09.01.2024, which has been filed as Annexure No.CA-1 to the counter affidavit. Though copy of order dated 22.02.2024 has not been enclosed with the counter affidavit. 5. This Court on the first date of admission i.e. 06.02.2025 passed the following order:- "Heard. Under challenge is the order dated 21.01.2025, a copy of which is annexure 1 to the writ petition whereby the petitioner has been placed suspension. Also under challenge is the office order dated 22.02.2024. Bereft of unnecessary details, the facts are that the petitioner claims to be working on the post of Executive Engineer. A complaint was submitted by a lady against the petitioner. In pursuance to the said complaint, the matter was referred to the committee as has been constituted in terms of the Sexual Harassment of. Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as "Act, 2013"). A complaint was submitted by a lady against the petitioner. In pursuance to the said complaint, the matter was referred to the committee as has been constituted in terms of the Sexual Harassment of. Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as "Act, 2013"). The committee submitted its report dated 16.05.2023, a copy of which is annexure 6 to the writ petition whereby the allegations were not proved against the petitioner. Subsequently, with the change in the committee, another report dated 30.08.2023, a copy of which is annexure 8 to the writ petition was submitted whereby the charges sheet have been found to be proved. Subsequent thereto, the petitioner was issued with a charge sheet dated 12.10.2023, a copy of which is annexure 9 to the writ petition. An inquiry report dated 23.01.2024, a copy of which is annexure 11 to the writ petition was submitted whereby the charges were not found proved against the petitioner. Subsequently, vide order dated 30.04.2024, a copy of which is annexure 12 to the writ petition, upon a complaint being submitted by the complainant/lady, a de-novo inquiry was directed. As per the averments made in paragraphh 21 of the writ petition, the inquiry report was submitted in which again the petitioner has been exonerated. It is also contended that by means of the order dated 22.02.2024, the first inquiry report had been set aside and a fresh inquiry had been directed. Now, by means of the order impugned dated 21.01.2025, upon a complaint being submitted by the complainant levelling various allegations against the petitioner in pursuance to the earlier complaint submitted by the complainant, the petitioner has been placed under suspension and the inquiry officer has been required to submit a fresh inquiry report after inquiring into the charges. Contention of learned counsel for the petitioner is that the service rules with which the petitioner is governed namely Uttar Pradesh Avas Evam Vikas Parishad (Condition of Service) Regulations, 1966 (hereinafter referred to as "Regulations, 1966) contains the complete procedure as prescribed under Rule 27 of the Regulations, 1966 which does not empower the disciplinary authority to direct for a fresh inquiry. Reliance has also been placed on the Constitution Bench judgment of the Apex Court in the case of K.R. Deb Vs. Reliance has also been placed on the Constitution Bench judgment of the Apex Court in the case of K.R. Deb Vs. Collector of Excise , (1971) 2 SCC 102 to contend that the Apex Court has held that the disciplinary authority cannot be permitted to hold one inquiry after the other till the charges are found proved against a delinquent employee. Sri Sampurna Nand Shukla, learned counsel for the respondents prays for and is granted a week's time to seek instructions in the matter and to indicate under which provisions of law more particularly considering the Regulations, 1966, has the disciplinary authority directed for a fresh inquiry into the allegations as levelled against the petitioner. List thereafter as fresh." 6. In the aforesaid order, the specific legal query of the Court was that as to whether there is any provision of law authorizing the Disciplinary Authority to direct a fresh denovo enquiry into the allegations wherein the enquiry has already been concluded. 7. In the counter affidavit, no such provision has been quoted or shown as neither any material nor any provision of law has been shown or enclosed to that effect. 8. Sri Apoorva Tewari has drawn attention of this Court towards Annexure No.2 of the writ petition, which is the U.P. Avas Evam Vikas Parishad (Conditions of Service) Regulations, 1996 (here-in-after referred to as the "Regulations, 1966"). Regulation 27 of the Regulations, 1966 provided the procedure for imposing major penalty. Perusal thereof reveals that the Regulation 27 is a complete code in respect of the procedure for imposing major penalty. The relevant regulation for the present controversy would be Regulation 27 (10), which reads as under:- "27 (10) (i) If the disciplinary authority, having regard to its findings on the charges is of the opinion that any of the penalties specified in clauses (e) to (g) of regulation 25 should be imposed it shall- (a) furnish to the officer or servant a copy of the report of the inquiring authority and where the disciplinary authority is not the inquiring authority a statement of the findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority; (b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action. (ii) The disciplinary authority shall consider the representation, if any made by the officer or servant in response to the notice under clause (i) and determine what penalty, if any, should be imposed on the officer or servant and pass appropriate orders in the case." 9. The Regulation 27 (10) (i) (a) of the Regulations, 1996 categorically provides that in case of disagreement on the findings of the enquiry report, the Disciplinary Authority may issue a show cause notice on such disagreement seeking explanation from the charge employee but this provision does not permit the Disciplinary Authority to direct for denovo enquiry. 10. In the present case, even if the representation of the complainant dated 09.01.2024 is considered as a reason to direct for denovo enquiry, which should have not been directed after completion of the enquiry as the enquiry concluded on 23.01.2024. The Disciplinary Authority could have asked the Inquiry Officer to consider such representation dated 09.01.2024 of the complainant while concluding the enquiry proceedings but after conclusion of the enquiry proceedings on 23.01.2024 issuing direction for denovo enquiry along with suspension order dated 21.01.2025 is not permissible under law. The aforesaid submission of Sri Apoorva Tewari finds strength in view of the dictum of the Constitution Bench of Apex Court rendered in the case in re: K.R. Deb vs. The Collector of Central Excise, Shillong, 1971 (2) SCC 102 . Paras- 11, 12 & 13 thereof have been referred by Sri Tewari, which read as under:- "11. Rule 15(1) of the Classification and Control Rules reads as follows: "(1) Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1950, no order imposing on a government servant any of the penalties specified in clauses (iv) to (vii) of Rule 13, shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided." Clause (2) of Rule 15 provides for framing of charges and communication in writing to the government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under clause (3) the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under clause (3) the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. Under clause (9) "the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Clause (10) provides for issue of show-cause notice. 12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. 13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant." 11. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant." 11. In para-12 of the aforesaid judgment of the Constitution Bench of the Apex Court has held that if the findings of the Enquiry Officer are not appropriate, the Disciplinary Authority may ask the Enquiry Officer to record further evidence but denovo enquiry may not be directed. 12. The aforesaid judgment in re: K.R. Deb (supra) has been considered and followed by the Apex Court in the subsequent judgment in re: Kanailal Bera vs. Union of India and others , (2007) 11 SCC 517 . The relevant para-6 thereof reads as under:- "6. The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 5.4.1995 of the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve Police Force Rules 1955 , inter alia, lays down the procedure for conducting a departmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the self same charges which could not be proved in the first inquiry." 13. Per contra, Sri R.P. Shukla, learned counsel for the opposite parties has placed reliance of the judgment of the Apex Court rendered in re: Union of India and others vs. P. Thayagarajan , 1998 Supp. 3 SCR 114, wherein para-12 of the judgment in re: K.R. Deb (supra) has been referred and the Apex Court has held that the Disciplinary Authority may direct for denovo enquiry if he is satisfied that the Enquiry Office has not conducted enquiry strictly in accordance with law. 3 SCR 114, wherein para-12 of the judgment in re: K.R. Deb (supra) has been referred and the Apex Court has held that the Disciplinary Authority may direct for denovo enquiry if he is satisfied that the Enquiry Office has not conducted enquiry strictly in accordance with law. The relevant portion of the aforesaid judgment reads as under:- "A careful reading of this passage will make it clear that this court notices that if in a particular case where there has been no proper enquiry because of some serious defect having crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined, the Disclpinary Authority may ask the Inquiry Officer to record further evidence but that provision would not enable the Disciplinary Authority to set aside the previous enquiries on the ground that the report of the Enquiry Officer does not appeal to the Disciplinary Authority. In the present case the basis upon which the Disciplinary Authority set aside the enquiry is that the procedure adopted by the Enquiry Officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand resuit in a miscarriage thereof. Therefore we are of the view that Rule 27(c) enables the Disciplinary Authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of present nature." 14. Therefore, Sri Shukla has stated, on the basis of aforesaid judgment, that the Disciplinary Authority may direct for denovo enquiry. 15. Therefore we are of the view that Rule 27(c) enables the Disciplinary Authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of present nature." 14. Therefore, Sri Shukla has stated, on the basis of aforesaid judgment, that the Disciplinary Authority may direct for denovo enquiry. 15. Having heard learned counsel for the parties and having perused the material available on the record, at the very outset, I would like to advert the dictum of Apex Court in re: Union of India and others vs. P. Thayagarajan (supra) wherein the relevant service rules of the Central Reserve Police Force Rules, 1955 were under consideration and under Rule 27 (c) of the Rules, 1966, there was a mandate to the effect that the Disciplinary Authority may direct for denovo enquiry if he is not satisfied with the findings of the Enquiry Officer, but in the present case, there is no such provision, rather, Regulation 27 (10) (i) (a) of the Regulations, 1966 clearly mandates that the Disciplinary Authority may issue show cause notice on disagreement if he disagrees from the findings of the Enquiry Officer and may pass any appropriate punishment order as he deems fit and proper considering the allegations and reply of the charge employee but denovo enquiry has not been mandated. Therefore, the judgment in re: Union of India and others vs. P. Thayagarajan (supra) would not be applicable in the present case. Besides, the judgment of the Constitution Bench of the Apex Court would have binding effect over the judgment of the Apex Court having quoram of two Hon'ble judges, and the aforesaid Constitution Bench judgment has been followed by the Apex Court in subsequent judgment in re: Kanailal Bera (supra). 16. Therefore, in the present case, the judgment of the Constitution Bench of the Apex Court rendered in re: K.R. Deb (supra) would be applicable. 17. Since there is no provisions of law authorizing the Disciplinary Authority to direct for denovo enquiry, therefore, the impugned order dated 21.01.2025 (Annexure No.1) is patently illegal and uncalled for. Besides, if denovo enquiry may not be directed in the present case so placing the petitioner under suspension pending that denovo enquiry would also be unwarranted and uncalled for. 17. Since there is no provisions of law authorizing the Disciplinary Authority to direct for denovo enquiry, therefore, the impugned order dated 21.01.2025 (Annexure No.1) is patently illegal and uncalled for. Besides, if denovo enquiry may not be directed in the present case so placing the petitioner under suspension pending that denovo enquiry would also be unwarranted and uncalled for. Though the order dated 22.02.2024 has not been produced or filed by the learned counsel for the opposite parties, but as per submission of Sri Shukla that by means of the aforesaid order the decision for conducting denovo enquiry had been taken by the Disciplinary Authority, setting aside the first enquiry report, which is not permissible under law, therefore, that impugned order dated22.02.2024 is also liable to be set aside. 18. Having considered the submissions of learned counsel for the parties and the case laws so cited, I find that the impugned order dated 21.01.2025 (Annexure No.1) passed by the opposite party No.1 and the order dated 22.02.2024 passed by the opposite party No.2 are hereby set aside/ quashed. The opposite party No.2 is directed to reinstate the petitioner in service and pay him salary as and when the same falls due as well as arrears of salary during the period of suspension. 19. It is needless to say that the Disciplinary Authority may pass appropriate order strictly in accordance with law and the Regulation 27 of the Regulations, 1966, if it is so required, in view of the facts and circumstances of the present case and the allegations so considered by him, but such order may pass with expedition, strictly in accordance with law. 20. In view of the aforesaid terms, the writ petition is allowed. 21. No order as to cost. (C.M. Application (IA) No. 04 of 2025) 22. Heard learned counsel for the applicant on the application for impleadment. 23. The applicant is a complainant, filed complaint against the petitioner and while considering the arguments of learned counsel for the parties such fact has been considered and the writ petition has been allowed giving liberty to the Disciplinary Authority to take appropriate steps strictly in accordance with law, to be more precise, under Regulation 27 of the Regulations, 1966, if it is so needed, then there is no need to allow this application. 24. Accordingly, the instant application is rejected.