Dismissed

State of U.P. Thru. Addl. Chief Secy. Deptt. of P.W.D. Govt. of U.P. Civil Secrt. Lko. and Another v. Rajendra Kumar Sonwani and Another

Allahabad HC7 Dec 2022/8233/2022

Case brief

AI extract

What is this about?

High Court dismissed State's Writ Petition challenging U.P. Public Service Tribunal order which set aside censure punishment. Court held minor punishment involved negligible misconduct and period elapsed was long, no interference warranted despite Tribunal opining lack of regular enquiry.

What did the court decide?

Writ petition dismissed; judgment and order of U.P. State Public Service Tribunal dated 07.10.2021 upheld.

State of U.P. Thru. Addl. Chief Secy. Deptt. of… — Service and Employment | Allahabad HC (2022)

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Court No. - 2

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Case :- WRIT - A No. - 8233 of 2022

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Petitioner :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of P.W.D. Govt. Of U.P. Civil Secrt. Lko. And Another Respondent :- Rajendra Kumar Sonwani And Another Counsel for Petitioner :- C.S.C.

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Counsel for Respondent :- Arjun Prasad Mishra,Shikhar Anand

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Saurabh Srivastava,J.

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(Per Saurabh Srivastava,J)

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Heard Shri V.P. Nag, learned Additional Chief Standing Counsel appearing on behalf of State-petitioners and Shri Arjun Prasad Mishra, learned counsel appearing on behalf of the respondent.

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By means of this petition filed under Article 226 of the Constitution of India, a challenge has been made to the judgment and order dated 7.10.2021 passed by U.P. State Public Service Tribunal, Indira Bhawan, Lucknow (in short Tribunal), in Claim Petition No.546 of 2018 (Rajendra Kumar Sonwani vs. State of U.P. and others), whereby the Tribunal has allowed the claim petition and quashed the order of punishment of censure, dated 22.12.2017 impugned therein.

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Factual matrix of the case, in brief, as stated by learned State counsel is that the claimant-respondent was initially appointed as Executive Engineer and while he was posted in Public Works Department at Etawah Division he allegedly misappropriated the funds sanctioned by the government while working on the post of Executive Engineer in Provincial Division during the period 9.7.2009 to 7.5.2012.

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A charge sheet was issued against the claimant respondent on 6.8.2013, to which, he submitted reply on 20.12.2013 denying charges. Thereafter, the Enquiry Officer conducted enquiry and submitted the enquiry report on 10.7.2014, whereupon show cause notice alongwith copy of enquiry report was issued to him which he replied on 4.3.2015. Thereafter order dated 22.12.2017 was passed awarding punishment of censure.

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Being aggrieved by the order of punishment dated 22.12.2017, the

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claimant-respondent filed Claim Petition No.546 of 2018 which has been allowed vide judgment and order dated 7.10.2021 setting aside punishment order dated 22.12.2017.

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Assailing the order passed by the Tribunal dated 7.10.2021, it is stated by Shri V.P. Nag, learned State counsel that in the present case, the Tribunal has allowed the claim petition after observing that proper opportunity was not provided to the charged official during enquiry, hence, the enquiry was vitiated and the Tribunal also recorded its own findings after re-appreciating the evidence/material on record which is legally not permissible. Hence, the judgment and order of the Tribunal dated 7.10.2021 is not justifiable as per law and is liable to be interfered with by this Court.

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It is further stated on behalf of the petitioner that on bare perusal of enquiry report and punishment order, it is crystal clear that during enquiry, proper opportunity including that of personal hearing was afforded to the claimant-respondent but he failed to prove her/his innocence and after considering material on record, charge(s) were found proved by the Enquiry Officer and after considering all the material available and applying his mind and discussing all aspects of the matter, the Disciplinary Authority passed the order of punishment, which has been rightly affirmed by the Appellate Authority and being so, orders impugned before the Tribunal ought not have been interfered by the Tribunal.

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Learned State counsel while challenging the impugned order dated 07.10.2021 passed by the Tribunal has also argued that for setting aside the order of punishment, the Tribunal was of the view that the order of punishment had been passed without holding proper "Regular Enquiry" then in that event the Tribunal should have remanded the matter back to the Authority concerned to decide the matter afresh from the stage it was found vitiated. In support of his arguments, he has placed reliance on the judgments of Hon'ble Supreme Court in the case of Union of India Vs.Y.S. Sandhu reported in (2008) 12 SCC 30 and Chairman LIC of India and others Vs. A. Masilamani, reported in (2013) 6 SCC 530.

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Accordingly, it is submitted by learned State counsel that impugned order dated 22.12.2017 passed by the Tribunal is liable to be set aside.

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Learned counsel for the claimant-respondent while rebutting the contention as raised by learned State counsel. submits that the Authority/Court before whom the order of punishment is under

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challenge, can see the said order on merit. His submission further is that remanding the matter to hold the enquiry afresh, if the order of punishment is vitiated on account of non-following the procedure prescribed under the relevant rules/regulation or for non-observance of principles of natural justice, depends upon the gravity of charges/delinquency involved, evidence in support of charges and magnitude of misconduct and in the present case the punishment imposed is minor and accordingly remand is not required and being so, the order impugned dated 22.12.2017 is not liable to be interfered with. Learned counsel for the respondent further submitted that all the cases relied upon by the counsel for the petitioner relate to major punishment and this case relates to minor punishment and as such also the order impugned dated 05.04.2022 of Tribunal is not liable to be interfered with.

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In this regard, he has also placed reliance on judgment reported in 2013 (32) LCD 30: (2013) 6 SCC 530 (Chairman, LIC of India and others Vs. A. Masilamani) . The learned counsel for the respondent also placed reliance on the judgment of Division Bench of this Court passed in Writ Petition No. 673 (S/B) of 2015 (State of U.P. Vs. Subodh Ranjan Saxena) on 07.10.2017 and stated that in the said case no Regular Enquiry was held and minor punishment was awarded and the Tribunal set-aside the order of punishment and this Court declined to interfere in the order of Tribunal.

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Considered the submissions made by the counsel for the parties and perused the record. Admittedly, this is a case related to holding of "Regular Departmental Enquiry against the claimant respondent under Rule 7 of U.P. Government Servant (Disciplinary and Appeal) Rules, 1999. The issue as to in what manner the "Regular Enquiry" should be conducted has already been settled by this Court in the judgment dated 28.11.2018 passed in Writ Petition No. 34093 (S/B) of 2018 (State of U.P. v. Deepak Kumar).

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It is now settled principle that the disciplinary proceedings are quasi-judicial proceedings and the authority exercising the quasijudicial power has to act in good faith, without bais and in a fair/reasonable/impartial manner. It is also settled principle that in enquiry proceedings the principles of natural justice are required to be adhered to/followed. Due/fair/reasonable opportunity of hearing should be given to the delinquent employee in the departmental proceedings. The enquiry report, orders of Punishing Authority and Appellate Authority, as the case may be, should be based on material evidence and should be reasoned.

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Now coming to the order impugned dated 07.10.2021, we find that the Tribunal interfered in the order dated 22.12.2017 impugned before it broadly on two grounds, namely (1) violation of principles of natural justice as opportunity of cross-examination was not given to the claimant-respondent and (2) that the impugned orders were non-speaking. Now the first question before us is as to whether the "Regular Departmental Enquiry", which admittedly was instituted against the claimant-respondent under Rule 7 of the Rules of 1999 was conducted as per the law enunciated.

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On the above question, we took note of the enquiry report dated 10.7.2014 in which charges were found proved. Thereafter show cause notice alongwith copy of enquiry report was issued to him, which he replied on 4.3.2015. Thereafter punishment order dated 22.12.2017 was passed by the disciplinary authority, awarding punishment of Censure.

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Now, the question is as to whether in not remanding the matter before the Disciplinary Authority to hold the enquiry afresh from the stage it was found vitiated, the Tribunal has committed an error. On this aspect we considered the above judgment of the Hon'ble Apex Court passed in the case of Chairman, LIC of India (supra) and from a conjoint reading of above quoted paras of the judgment of the Hon'ble Apex Court, it appears that if an Authority/Court sets aside the order of punishment on technical ground then the matter may be remanded to the Disciplinary Authority and employee should not be reinstated, however, whether or not the Disciplinary Authority should be given an opportunity to complete the enquiry afresh depends upon the gravity of delinquency involved. Thus, for coming to the conclusion the Authority/Court concerned must take into consideration all the relevant aspects and facts of the case including the charges and magnitude of misconduct alleged and examine the same.

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In the instant matter, from the perusal of the record the position which emerges is to the following effect:-

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(i) The "Regular Departmental Enquiry" under Rule 7 of the Rules of 1999 against the claimant-respondent was initiated vide order dated 06.08.2013.

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(ii) In departmental/disciplinary proceedings no Regular Enquiry was held,

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(iii) The department itself imposed minor punishment and,

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(iv) The Learned Tribunal after narrating relevant facts set-aside the order of punishment dated 07.10.2021 passed on the appeal preferred by the claimant-respondent without giving liberty to the department to hold the enquiry afresh.

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Looking into the facts and circumstances of the case, particularly the magnitude of the alleged misconduct, the punishment i.e. censure, which is minor punishment and was awarded to the respondent vide order dated 22.12.2017 passed by Disciplinary Authority as also the period elapsed since the date of institution of disciplinary proceedings against the claimant- respondent vide order dated 22.12.2017 i.e. about five years, we are not inclined to interfere with the order of the Tribunal dated 07.10.2021 on the aforesaid aspect of the case while exercising our jurisdiction of judicial review under Article 226. of the Constitution of India.

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For the foregoing reasons, the writ petition is dismissed .

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Order Date :- 7.12.2022 RS

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Digitally signed by :- RAKESH SINGH High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. Addl. Chief Secy. Deptt. of P.W.D. Govt. of U.P. Civil Secrt. Lko. and Another v. Rajendra Kumar Sonwani and Another

Case brief

What is this about?

What did the court decide?

State of U.P. Thru. Addl. Chief Secy. Deptt. of P.W.D. Govt. of U.P. Civil Secrt. Lko. and Another v. Rajendra Kumar Sonwani and Another

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