Dismissed

State of Uttarakhand v. Atul Semwal

Uttarakhand HC3 May 2023WPSB/519/2022

Case brief

AI extract

What is this about?

State of Uttarakhand challenged the Public Services Tribunal quashing a minor penalty for misconduct. The High Court dismissed the writ, held the State is not estopped by delay, and directed the Disciplinary Authority to reconsider the charge of unauthorised mobile recharge by examining the respondent's explanation. An order to open a sealed cover regarding promotion was also confirmed.

What did the court decide?

Disciplinary Authority granted six weeks to pass fresh order after considering respondent's response on Charge No. 4; petitioner directed to open sealed cover within next four weeks.

State of Uttarakhand Vs Atul Semwal — Pension and Retirement Benefits | Uttarakhand HC (2023)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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HON’BLE THE CHIEF JUSTICE SRI VIPIN SANGHI AND HON’BLE SRI JUSTICE RAKESH THAPLIYAL

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0 3 RD MAY, 2023

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WRIT PETITION (S/B) No. 519 OF 2022

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Between:

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State of Uttarakhand and others.

…Petitioners

and

Atul Semwal.

…Respondents

Counsel for the petitioners. : Mr. Pradeep Joshi, learned Additional Chief Standing Counsel for the State of Uttarakhand.

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Counsel for the respondent. : Mr. Sandeep Tiwari, learned counsel.

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JUDGMENT : ( per Sri Vipin Sanghi, C.J.)

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The State has preferred the present Writ

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Petition to assail the judgment and order dated 31.08.2021, passed by the Uttarakhand Public Services Tribunal in Claim Petition No. 55/NB/DB/2019, preferred by the respondent. The Tribunal has allowed the said Claim Petition, and quashed the minor penalty imposed upon the petitioner, upon his being found guilty of misconduct in respect of one of the seven charges, which were leveled against him, and further directed the Disciplinary Authority to proceed in accordance with law.

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The petitioners herein were also directed to open the sealed cover envelope in relation to the consideration of the respondent’s case for promotion.

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The respondent was issued a charge-sheet, leveling seven charges against him. A major penalty inquiry was held against him, and the Inquiry Officer returned findings, finding him guilty in respect of Charge Nos. 2, 4 and 5. The Disciplinary Authority gave an opportunity to the respondent to respond to the Inquiry Report, whereafter, the Disciplinary Authority proceeded to pass the order of penalty. The penalty order passed against the respondent, in its operative part, reads as follows :-

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“ 3& tkap vf/kdkjh }kjk miyC/k djk;h x;h tkap vk[;k] Jh vrqy lseoky }kjk vius cpko esa fn;s x;s Li"Vhdj.k ,oa i=koyh esa miyC/k leLr lk{;ksa @ vfHkys[kksa dk lE;d~ ijh{k.kksijkUr Jh vrqy lseoky }kjk mDrkuqlkj dh x;h vfu;ferrkvksa ds lkis{k Jh vrqy lseoky ij muds }kjk izHkkjh ftyk f'k{kk vf/kdkjh ¼ek0½ @ ftyk ifj;kstuk vf/kdkjh ¼jelk½] tuin fVgjh x<~oky ds in ij jgrs gq, lacaf/kr leUo;dksa dks eksckby Qksu fjpktZ vuqeU; u gksus ij Hkh ₹ 7000@& ds fjpktZ fd;s x;s gSa] ftlls jkT; ljdkj dks foRrh; gkfu gqbZ gS] dk nks"k fl) gksuk ik;k x;k gSA

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4& vr% mDr vfu;ferrkvksa gsrq Jh vrqy lseoky] gky&[k.M f'k{kk vf/kdkjh] Fkjkyh] peksyh ¼rRdkyhu izHkkjh ftyk f'k{kk vf/kdkjh ¼ek0½ @ ftyk ifj;kstuk vf/kdkjh ¼jelk½] tuin fVgjh x<+oky½ dks mRrjk[k.M ljdkjh lsod ¼vuq'kklu ,oa vihy½ fu;ekoyh] 2003 ¼;Fkk la'kksf/kr] 2010½ ds v/khu y?kq 'kkfLr ÞifjfuUnkß izfof"V iznku djus ,oa ljdkj dks gqbZ vkfFkZd gkfu ₹ 7000@& dks Jh lseoky ds osru ls iw.kZr% olwy fd;s tkus dh 'kkfLr vf/kjksfir fd;s tkus Jh jkT;iky Lohd`fr iznku djrs gSaA ”

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From the aforesaid, it would be seen that the Disciplinary Authority was of the opinion that Charge No.4, in relation to the respondent getting Mobile Phones recharged by expending Rs. 7,000/- without authority was found to have been established. Consequently, he was subjected to minor penalty of censure, and recovery of Rs. 7,000/- from him.

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The Tribunal has set-aside the order of penalty issued by the Disciplinary Authority on the ground that the same is unreasoned. The explanation of the respondent, in respect of the said charge, which has also been captured in the order of penalty passed by the Disciplinary Authority, has not been considered. The stand of the respondent, in relation to Charge No. 4 before the Disciplinary Authority, was as follows :-

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“ vkjki ls [;ka &4 dk izR;qRrj&

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ifj;kstuk @ foHkkx ds fgr esa ftyk leUo;dksa dks ftys ds lqpk: :i esa lapkyu ,oa lwpukvksa dk vfoyEc lek/kku gsrq miHkksx ds mijkUr fcy izLrqr djus ij i=okyh esa fof/kor for vf/kdkjh dh laLrqfr ds mijkUr fd;k x;kA Jh lseoky }kjk O;fDrxr :i ls fnukad 24-06-2016 dks ;g Hkh voxr djk;k x;k gS fd ujsUnzuxj fLFkr jelk dk;kZy; esa Qksu miyC/k ugha gksus ds dkj.k lwpuk ,df=r djus gsrq leUo;dka ds eksckby fjpktZ djk;s x;sA s ”

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5. We have perused the impugned judgment

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passed by the Tribunal, as well as the order passed by the Disciplinary Authority, imposing minor penalty upon

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the respondent, and we agree with the findings returned by the Tribunal, that the Disciplinary Authority has not dealt with the explanation furnished by the respondent, which was to the effect that he had obtained ex post facto sanction for recharging the Mobile Phones, as the phones in the office were not functioning, and the Mobile Phones were got recharged so that the office could function. Paragraph nos. 3 and 4 of the order passed by the Disciplinary Authority are completely silent on this aspect.

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For the aforesaid reasons, we are not inclined to interfere with the impugned order. The Tribunal has already permitted the Disciplinary Authority to pass a fresh order, after considering the response of the respondent.

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Counsel for the respondent submits that the Tribunal had granted time to the Disciplinary Authority till 30.11.2021 to pass a fresh order. That was not done. Instead, this Writ Petition was preferred by the State only in June, 2022. He, therefore, submits that the Disciplinary Authority has lost the right to pass a fresh order in the matter.

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We do not agree with this submission. Since the State was contemplating filing this Writ Petition, their inaction, in not passing a fresh order in the inquiry proceedings, cannot come in their way. The time fixed by the Tribunal for the said purpose does not have statutory force.

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We, therefore, grant the Disciplinary Authority six weeks’ time from today to pass a fresh order, after considering the response of the respondent in respect of Charge No. 4. The reasoned order shall be passed within six weeks, and communicated to the respondent.

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We, however, direct the petitioner to open the sealed cover, as directed by the Tribunal, if not already opened, positively within two weeks, and the same shall be given effect to, irrespective of the fresh order that the Disciplinary Authority may pass, since the penalty that may be imposed upon the respondent in the fresh order, cannot be greater than the one imposed earlier, i.e. of censure, and recovery of Rs. 7,000/-. Even if the respondent were to be censured, he would suffer nonconsideration of his case for promotion only for a period of one year, and not thereafter. The petitioners should,

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therefore, open the sealed cover, and give effect to it within the next four weeks.

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The Writ Petition stands disposed of in the

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aforesaid terms.

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Consequently, pending applications, if any,

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also stand disposed of accordingly.

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________________ VIPIN SANGHI, C.J.

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__________________ RAKESH THAPLIYAL, J.

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Dt: 03^rd May, 2023 Rahul

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State of Uttarakhand v. Atul Semwal

Case brief

What is this about?

What did the court decide?

State of Uttarakhand v. Atul Semwal

Case brief

What is this about?

What did the court decide?

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