Allowed

Dr. Rakesh Kumar Lal v. State of U.P. and 6 Others

Allahabad HC1 Feb 2023WRIA/5036/2019

Case brief

AI extract

What is this about?

Division Bench quashed a State Government order dismissing a retired doctor from service. The order was set aside for relying on a superseded enquiry report and ignoring a recent finding that charges were not proved. Petitioner directed to claim benefits with interest.

What did the court decide?

The impugned order dated 27.02.2019 is quashed. Petitioner shall be entitled to consequential benefits and service dues with interest at the rate of 6% per annum.

Dr. Rakesh Kumar Lal Vs State of U.P. and… — Pension and Retirement Benefits | Allahabad HC (2023)

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Court No. - 33

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Case :- WRIT - A No. - 5036 of 2019

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Petitioner :- Dr. Rakesh Kumar Lal Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.

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Hon'ble Jaspreet Singh,J.

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Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare, learned counsel for the petitioner as well as learned Standing Counsel for the State-respondents.

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The instant petition has been filed by the petitioner seeking quashing of the order dated 27.02.2019 with further relief in the nature of mandamus commanding the respondents to disburse all the arrears of salary to the petitioner from the date of his suspension till the date of his retirement i.e. 31.12.2016 along with such rate of interest as may be determined by the Court. Further, prayer has been made to direct the respondents to sanction monthly pension of the petitioner with effect from July, 01 of 2017 which may also be cleared along with all the arrears and they may be directed to continue to make the payment regularly every month.

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In order to appreciate the controversy involved in the present petition, certain facts giving rise to the instant petition are being noticed hereinafter.

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The petitioner was appointed as Medical Officer in the Medical and Health Department of the Uttar Pradesh in October, 1985 and he continued to remain in continuous service and was even promoted as a Senior Specialist. The petitioner was posted at different posts, however, the controversy arose while the petitioner was posted as Senior Specialist at Navin Prathmik Swasthya, Kirihanpur, Ballia in the year 2005.

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While the petitioner was so posted at Navin Prathmik Swasthya, Kirihanpur, Ballia he had moved application dated 13.07.2005 seeking sanction of casual leave from 13.07.2005 to 16.07.2005, the said application was duly sanctioned by the Deputy Chief Medical OfficerII,Rasra, Ballia.

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That the petitioner was to resume his duties on 17.07.2005, however, on the ground of illness he could not join and thereafter he applied for medical leave.

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It is during the period of his absence from 17.07.2005 to 23.07.2005 for which the petitioner had applied for medical leave, inspection was made on 21.07.2005 where the petitioner was found absent for the last 10 days. It is on account of this fact that the Departmental Proceedings were initiated against the petitioner and he was placed under suspension on 21.09.2005. The charge-sheet was also issued to the petitioner which was duly responded by the petitioner by filing his reply on 15.12.2005.

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Consequently, the Enquiry Officer has submitted his report on 27.06.2006 concluding that the allegations levelled against the petitioner were wholly misconceived and unfounded, and recommendation for his reinstatement was made. Despite the submission of the Enquiry Officer, no final orders were passed by the State Government imposing any penalty on the petitioner or exonerating him even though, the petitioner filed representations before the authority for revocation of his suspension and even for release of his subsistence allowance.

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In the aforesaid backdrop the petitioner took shelter of this Court by

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filing Writ Petition NO. 5408 of 2011 (Dr. Rakesh Kumar Lal Vs. State of UP and others) wherein a Division Bench of this Court on 24.02.2011 passed an order dated 24.02.2011 directing that the petitioner be paid his subsistence allowance which had not been paid with effect from July, 2008 in accordance with the Rules and the entire arrears was directed to be paid within one month. It is only when the petitioner served the copy of the order passed by the Division Bench of this Court dated 24.02.2011, that the respondent authorities swung into action and issued a show cause notice dated 08.04.2011 calling upon the petitioner to submit his reply within 15 days.

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In response to the show cause notice, the petitioner had submitted his reply, however, on 15.05.2012 the State Government passed the order dismissing the petitioner from service with effect from 31.12.2005. This order of dismissal was assailed by the petitioner in Writ ‘A’ No. 31705 of 2012 which also came to be connected with the earlier writ filed by the petitioner i.e. Writ ‘A’ No. 8405 of 2011 . Both the writ petitions came to be decided by the common judgment dated 27.04.2017. The punishment order dated 15.05.2012 was quashed and the matter was remitted for proceedings afresh from the stage of charge-sheet and further a direction was issued that the State Government may consider as to whether to proceed and conduct enquiry afresh or not and the enquiry was to be conducted and a final decision to be taken within a period of 4 months from the date of production of certified copy of the order which was clarified that the reinstatement of the petitioner will depend on the enquiry and the final decision taken by the respondents.

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In furtherance of the order passed by the Division Bench dated 27.04.2017, the State Government passed the order on 27.11.2017 whereby it recalled its earlier order dated 15.05.2012 and a fresh enquiry was to be held.

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In furtherance thereof, an order was issued by the State Government referring to the charge-sheet dated 21.09.2005 and it requires the petitioner to submit his reply within a week. In furtherance thereof, the petitioner submitted his reply and by means of letter dated 13.02.2018, the Additional Director informed the State Government that none of the charges have been proved against the petitioner. Since no follow up action was taken on the reply of the petitioner by the Additional Director dated 13.02.2018, the petitioner made certain representations which remained unattentive and this compelled the petitioner to institute Contempt Application (Civil) No. 4027 of 2018.

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The Contempt Court by means of its order dated 20^th of September, 2018 disposed off the contempt petition granting further 2 months time to the State to comply with the judgment passed by the Division Bench dated 27.04.2017.

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Despite, the said direction of the Contempt Court yet the proceedings did not culminate in a final order, as a result the contempt petition was taken up again on 12.03.2019, on which date the State Government had furnished the instructions and along with the said instructions a copy of the order dated 27^th February of 2019 was also placed on record and the Contempt Court found that, since the order of the writ Court stood complied with, the contempt petition was consigned to record.

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It is in view of the aforesaid that the petitioner assailed the fresh order dated 27^th February of 2019 by means of the instant petition. In the order dated 27.02.2019 the earlier order dated 15.05.2012 was reiterated and in the said order it was indicated that there is reason to take a different view or to deviate from the order dated 15.05.2012. It is this order which is under challenge on the ground that once the earlier order of dismissal had already been set quashed by the Division Bench of this Court, there was no occasion for the respondent authorities to have relied upon the said order and it clearly indicates non application of mind and the deliberate attempt to harass the petitioner.

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The State Government has filed its counter affidavit wherein a stand has been taken that the petitioner was absent without any information. It was found that the petitioner was indulging in private practice and after serving a charge-sheet and complying with the principles of natural justice adequate opportunity was granted to the petitioner and thereafter the impugned order has been passed.

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It is urged that in a writ petition this Court may not enter into questions of fact and since the findings have been recorded which are supported by proper reasons therefore, there was no justification for deviating from the earlier decision dated 15.05.2012 and it is in this context that the fresh order dated 27.02.2019 came to be passed and accordingly the writ petition deserves to be dismissed.

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The Court has heard the learned counsel for the parties and also perused the material on record.

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At the very outset, this Court finds that in the first round of litigation where the petitioner had assailed the actions of the respondents in not paying the subsistence allowance and subsequently when the punishment order of dismissal dated 15.05.2012 was passed the same came to be assailed in Writ ‘A’ No. 31705 of 2012. The Division Bench of this Court while allowing the writ petition No. 31705 of 2012 quashed the punishment order dated 15.05.2012 and it will be relevant to notice the extract of the judgment of this Court dated 22.04.2017 in Writ ‘A’ No. 31705 of 2012 which reads as under:-

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“16. Accordingly, Writ-A No. 31705 of 2012 is allowed and punishment order dated 15.05.2012, (Annexure No. 20 to the writ petition) is quashed.

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17. The matter is remitted back for proceeding afresh from the stage of the charge-sheet. We also provide that the State Government may consider as to whether to proceed and conduct enquiry afresh or not. We further provide that enquiry may be concluded and final decision may be taken within a period of four months, from the date of production of certified copy of this order, if decision is taken to proceed and conduct the enquiry afresh.

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18. Reinstatement of the petitioner will depend upon the enquiry and final decision taken by the respondents. Accordingly, Writ-A No. 8405 of 2011 is disposed of. “

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On perusal of the aforesaid extract of the judgment, it is crystal clear

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that the punishment order dated 15.05.2012 was quashed meaning thereby in legal parlance it did not survive any more. Another important aspect which required consideration was that while the matter was remitted to proceed afresh from the stage of the charge-sheet it was also left open for the State Government to consider as to whether to proceed with the enquiry afresh or not. The fact remains that once the proceedings were to start from the stage of charge-sheet, thus, it is also incumbent that evidence had to be

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led afresh. The State was at liberty to take a decision whether to continue with the enquiry or not, however, that was the subject matter for the State to take a conscious decision whether to proceed with the enquiry or not.

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In furtherance thereof, once the Additional Director of Medical Health and Family Welfare was authorized to proceed with the enquiry in pursuance of the charge-sheet which was issued by the petitioner on 21.09.2009, the Additional Director of Medical Health and Family Welfare, Azamgarh had written to the State Government on 13.02.2018 clearly opining that in absence of any cogent evidence the charges levelled against the petitioner are not proved. A copy of the said letter is on record as Annexure No. 26. At this stage, it will be relevant to notice that the State along with its counter affidavit have not brought any material to the contrary on record than what has been filed by the petitioner along with its writ petition.

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Accordingly, there does not appear to be any reason to disbelieve the letter dated 13.02.2018 which is on record as Annexure No. 26. It is in this context if the impugned order dated 27^th February, 2019 is seen, it would be evident that in the initial part of the impugned order it narrates the chronology of facts leading up to the enquiry. It then refers to the report dated 13.02.2018 wherein the Enquiry Officer did not find the charges levelled against the petitioner to have been proved but the State while passing the impugned order taking note of the earlier order dated 15.05.2012 which was set aside by the Division Bench of this Court, recorded that the Enquiry Officer has merely held the enquiry in a cursory manner and therefore the reply given by the petitioner in response to the

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show cause was not found adequate.

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The petitioner has vehemently opposed the report dated 04.04.2011 urging that it suffers from gross and fundamental irregularities. The allegations in the enquiry report were patently baseless and in any case as the said enquiry had proceeded ex-parte and consequential punishment order has set aside thus, there was no occasion for the respondent authorities to have relied upon the enquiry report dated 04.04.2011 whereas the fresh considerations ought to have been noticed as recorded in the report dated 13.02.2018. The contention is that once the judgment of the Division Bench dated 27.04.2017 had set aside the earlier punishment order and directed for a fresh enquiry from the stage of charge-sheet then the earlier enquiry report stood effaced and thus, it could not be taken note whereas the impugned order clearly reflects that earlier enquiry report has been relied upon which has vitiated the impugned order of punishment.

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The Learned Standing Counsel could not dispute the fact that once the Division Bench of this Court in its order dated 27.04.2017 had quashed the punishment order dated 15.05.2012 the same in law did not exist nor it could have been taken note of in subsequent stage. That in the aforesaid backdrop once the impugned order is seen, it would be clear that the same is vitiated on account of the fact that it refers to the earlier order and it cannot be said that earlier proceedings did not influence the judicial reasoning while passing the impugned punishment order dated 27.02.2019.

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There was no cogent explanation as to why the report dated 13.02.2018 was brushed aside as there was no new convincing material to over shadow the finding of Additional Director/ Enquiry Officer and such

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material has been brought on record by the Learned Standing Counsel with the counter affidavit hence it only gives credence to the averments as well as the submission made by the Learned Senior Counsel for the petitioner that the petitioner is being harassed.

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In view of the aforesaid, coupled with the fact noticing that the petitioner had already retired on 31.12.2016, accordingly, the impugned order dated 27.02.2019 is quashed and set aside the petitioner shall be entitled to all consequential benefits in accordance with the Rules. The petitioner is permitted to move a representation claiming his service benefits/ post retiral dues within a period of 2 weeks by making the fresh representation to the respondent authorities who shall consider and decide the same and release all the dues of the petitioner along with interest at the rate of 6% per annum to be paid to the petitioner within a period of 8 weeks from the date of representation made by the petitioner.

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With the aforesaid, the petition is allowed . In the facts and circumstances, there shall be no order as to costs.

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Order Date :- 01.02.2023 Aditya Gautam/Asheesh

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad

Dr. Rakesh Kumar Lal v. State of U.P. and 6 Others

Case brief

What is this about?

What did the court decide?

Dr. Rakesh Kumar Lal v. State of U.P. and 6 Others

Case brief

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What did the court decide?

What the court decided

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