Disposed

State of U.P.Thru.Prin.Secy.Public Works Deptt.Lucknow v. Mohd.Zaki Siddiqui and Anr.

Allahabad HC8 Feb 2023WRIA/34917/2019

Case brief

AI extract

What is this about?

The Court set aside the State Public Services Tribunal's order remanding a disciplinary case. It held that given the seriousness of the financial allegations, a fresh enquiry must be conducted by the State authorities within three months after providing the respondent full copies of documents and a proper oral hearing, and directed immediate payment of the respondent's retiral dues. Disposition: P

What did the court decide?

Writ petition disposed of; Tribunal order set aside; Case remanded for fresh enquiry within three months; Respondent directed to receive copies of documents and hold oral hearing; Retiral dues payment

State of U.P.Thru.Prin.Secy.Public Works… — Service and Employment | Allahabad HC (2023)

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Court No. - 1

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Case :- WRIT - A No. - 34917 of 2019

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Petitioner :- State Of U.P.Thru.Prin.Secy.Public Works Deptt.Lucknow Respondent :- Mohd.Zaki Siddiqui And Anr. Counsel for Petitioner :- C.S.C. Counsel for Respondent :- C.S.C.,Mukul Mishra,Ninnie Shrivastava

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Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.

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Heard Mr. Vivek Shukla, learned Standing Counsel appearing for the petitioner and Ms. Ninnie Srivastava, learned counsel for the respondents.

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By means of the instant writ petition, the petitioner-State of Uttar Pradesh has assailed the judgment and order dated 08.08.2018, passed by State Public Services Tribunal, Lucknow in Claim Petition No.1358 of 2011; Mohd. Zaki Siddiqui Vs. State of U.P. The aforesaid claim petition which has been filed by the claimant-respondent no.1 challenging the order dated 30.06.2011, whereby he had challenged the punishment order dated 30.06.2011 ordering recovery of fifty percent of Rs.42,92,550/- i.e. Rs.21,46,275/- from his retiral dues and a deduction of twenty percent of his pension amount.

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Briefly stated, the facts of the case are that the respondent no.1 was working as the Superintending Engineer, Lucknow Circle, Public Works Department, Lucknow. A preliminary enquiry was conducted regarding some irregularities committed in construction of eight lane bridge on river Gomti as a part of Lohia Path in which it was found that the respondent no.1 had not acted in a transparent manner in getting the earth work done, he had not called for tender by issuing notice in the newspapers and he had made payment at higher rates. On

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19.05.2008, an order was passed instituting regular disciplinary enquiry in the matter and the respondent no.1 was placed under suspension. On 30.06.2008 the respondent no.1 retired after attaining the age of superannuation and on 27.10.2008 a charge sheet was served upon him. The respondent no.1 submitted his reply denying the charges and on 06.07.2009 the Enquiry Officer submitted his report in which he found charge no.1 to have been proved partially and charge no.3 to have been proved fully. A show cause notice was issued to the respondent no.1 to which he submitted a reply and thereafter the punishment order dated 30.06.2011 was passed.

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The punishment order was challenged before the Public Service Tribunal and the learned Tribunal allowed the claim petition on the grounds that no date, time and place was fixed by the Enquiry Officer and the oral evidence of witnesses were not recorded and that the copies of the relevant documents were not provided to the respondent no.1.

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Mr. Vivek Shukla, learned Standing Counsel has submitted that the finding of the learned Tribunal that no date, time and place was fixed by the Enquiry Officer for conducting the enquiry is wrong. He has invited attention of the court to a copy of the enquiry report which contains narration that after a copy of the charge sheet was served upon the respondent no.1, he submitted his written explanation dated 05.12.2008, a supplementation written explanation dated 02.05.2009 and another written explanation dated 04.05.2009. The Enquiry Officer had issued a letter dated 15.04.2009 fixing 21.04.2009 for personal hearing in the disciplinary proceedings but on that date the respondent no.1 as also the Presenting Officer could not appear for personal hearing because of Parliament Elections.

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Again, a letter dated 20.04.2009 was issued fixing 02.05.2009 as a date for personal hearing, on which date the respondent no.1 is as also the Presenting Officer appeared along with the relevant records.

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Ms. Ninnie Srivastava, learned counsel for the respondents has submitted that even as per the narration made by the Enquiry Officer in the enquiry report, the respondent no.1 submitted his written explanation dated 04.05.2009, which was received by the Enqiry Officer on 15.05.2009 and no date has been fixed by the Enqiry Officer for affording personal hearing to the respondent no.1 after submission of his written explanation. She has submitted that occasion for personal hearing arose only after submission of the written explanation and as no date time and place was fixed for personal hearing after submission of written explanation, the enquiry stands vitiated.

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Ms. Ninnie Srivastava, learned counsel for the respondents further submitted that by means of a letter dated 18.11.2008, addressed to the Enquiry Officer, the respondent no.1 had demanded copies of certain documents mentioned in the letter and the Enquiry Officer had written a letter dated 28.11.2008 directing the Executive Engineer, Prantiya Khand, Public Works Department to send copies of documents demanded by the respondent no.1 through letter dated 18.11.2008, by sending the same to the address of the respondent no.1 mentioned in the letter dated 18.11.2008 and to submit the compliance report to the Enquiry Officer. She has further submitted that even after direction having been issued by the Enquiry Officer copies of requisite documents were not provided to the respondent no.1.

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The learned Standing Counsel appearing for the petitioner could not indicate from the records that the copies of the

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documents were provided to the respondent no.1 as per the directions of the Enquiry Officer issued by means of his letter dated 28.11.2008.

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While allowing the claim petition, the learned Tribunal has held that as the matter relates to the year 2007 and the respondent no.1 had retired in the year 2008, it would not be proper to pass an order for conducting the enquiry afresh.

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Mr. Vivek Shukla, learned Standing Counsel for the petitioner has placed reliance upon the judgment of Hon'ble the Supreme Court in the case of Chairman, Life Insurance Corporation of India and others Vs. A. Masilamani; (2013) 6 SCC 530 in which the Hon'ble Supreme Court has considered the following two questions:

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"15.1. When a court/tribunal sets aside the order of punishment imposed in a disciplinary proceeding on technical grounds, i.e., non-observance of statutory provisions, or for violation of the principles of natural justice, then whether the superior court, must provide opportunity to the disciplinary authority, to take up and complete the proceedings, from the point that they stood vitiated and;

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15.2. If the answer to question no.1 is, that such fresh opportunity should be given, then whether the same may be denied on the ground of delay in initiation, or in conclusion of the said disciplinary proceedings."

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The Hon'ble Supreme Court answered the aforesaid questions in the following words:

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"16. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: Managing Director, ECIL, Hyderabad etc.etc. v. B. Karunakar etc.etc. AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M.

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School for Girls & Ors., (2002) 10 SCC 293; U.P. State Spinning Co. Ltd. v. R.S. Pandey & Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex-Inspector AIR 2009 SC 161).

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17. The second question involved herein, is also no longer res integra. Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds."

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Per contra, Ms. Ninnie Srivastava, learned counsel for the respondents has placed reliance on a decision of the Hon'ble Supreme Court in the case of Anant R. Kulkarni Vs. Y.P. Education Society and others; (2013) 6 SCC 515 , wherein the Hon'ble Supreme Court has observed that "in case the court comes to the conclusion that there was in fact, no substance in the allegations, it may not permit the employer to hold a fresh enquiry. Such a course may be necessary to save the employee from harassment and humiliation." The aforesaid observation made by the Hon'ble Supreme Court indicates the factual backdrop of the case where the Hon'ble Supreme Court recorded that " there is no allegation of misappropriation/embezzlement or any charge which may cast a doubt upon the integrity of the appellant, or further, anything which may indicate even the slightest moral turpitude on the part of the employee. The charges relate to account and to the discharge of his functions as Headmaster of the school and the employee has provided satisfactory explanation for each of the allegations levelled against him. " Considering these facts, coupled with the fact that the employee had retired in the year 2002, the Hon'ble Supreme Court has came to the conclusion

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that "the question of holding any fresh enquiry on such vague charges is, therefore, unwarranted and uncalled for.

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As has been noticed above, allegations against the respondent no.1 are that he had not acted in a transparent manner in getting the earth work done, he had not called for tender by issuing notice in the newspapers and he had made payment at higher rates and the allegations are of serious nature and which involve allegations of financial irregularities. Therefore, the observations made by Hon'ble Apex Court in the case of Anant R. Kulkarni (supra) would not apply to the present case.

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As the punishment order has been set aside by learned Tribunal on the ground that no date, time and place was fixed by the Enquiry Officer for conducting oral hearing and that the copies of the relevant documents were not provided to the claimant in spite of the directions of the Enquiry Officer and no finding of fact has been recorded regarding innocence of the respondent no.1, it would be proper to give an opportunity to the petitioner-State of U.P. to hold an enquiry afresh and to pass suitable orders in accordance with law, after giving the respondent no.1 proper opportunity of hearing, after providing him copies of the relevant documents.

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At this stage, learned counsel for the respondent no.1 has submitted that although the respondent no.1 retired in the year 2008, his retiral dues have not been paid till date.

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The punishment order against the respondent no.1 directed recovery of certain amount from his retiral dues and there is no justification for non-payment of the amount which was in excess of the amount to be recovered from the respondent no.1 and undisputed amount ought to have been paid to the

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respondent no.1.

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In view of the aforesaid discussion, the judgment and order dated 08.08.2018, passed by State Public Services Tribunal, Lucknow in Claim Petition No.1358 of 2011; Mohd. Zaki Siddiqui Vs. State of U.P. is hereby set aside and modified by providing that the punishment order dated 30.06.2011, passed against the respondent no.1 is set aside and the State Authorities are directed to pass an order after providing the copies of the documents mentioned in his letter dated 18.11.2008 to the respondent no.1, as per the directions of the Enquiry Officer contained in his letter dated 28.11.2008 and to pass a fresh order in accordance with law after giving opportunity of oral hearing to the respondent no.1 after fixing date, time and place for same purpose. The aforesaid exercise shall be completed within a period of three months from today. Meanwhile, the petitioner-State is directed to make payment of the retiral dues payable to the respondent no.1, after withholding the sum mentioned in the punishment order dated 30.06.2011 and payment of the withheld amount shall be governed by the final outcome of the enquiry proceedings.

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With the aforesaid observations/directions, the writ petition stands disposed of .

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(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

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Order Date :- 8.2.2023 Ram.

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

State of U.P.Thru.Prin.Secy.Public Works Deptt.Lucknow v. Mohd.Zaki Siddiqui and Anr.

Case brief

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State of U.P.Thru.Prin.Secy.Public Works Deptt.Lucknow v. Mohd.Zaki Siddiqui and Anr.

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