High Court · 2025

Judgment

1. Petitioner was initially appointed on post of Clerk at Nagar Panchayat, Jangipur, District Ghazipur on 25.03.1980. He was suspended by an order dated 24.02.1988 and was reinstated later on vide order dated 23.10.1989 passed by the District Magistrate, Ghazipur, however, despite a direction, he was not granted charge of Accountant and after much pursuance, he was finally reinstated along with his full backwages by an order dated

28.09.1995.

2. One Upendra Singh who was working as Accountant has approached this Court by way of filing Writ Petition No. 36299/1995 whereby order dated 28.09.1995 was stayed. Said Writ Petition was thereafter dismissed for want of prosecution on

04.12.1997 and interim order was vacated and accordingly petitioner was granted charge of Accountant in said Nagar Panchayat on 06.12.1997.

An FIR was lodge against some employees of said Nagar Panchayat in which petitioner was also named as an accused. Case Crime No. 217/2002 was registered at Police Station Jangipur under Sections 409, 419, 420, 467, 468, 471 IPC and petitioner was put under suspension by an order dated

29.10.2000. It is the case of petitioner that no inquiry was initiated and he remained suspended and meanwhile, petitioner retired from services on 21.07.2012. The petitioner thereafter approached before concerned respondents that he be paid subsistence allowance or salary. Some amount was paid in the year 2013 and despite matter remained pending before concerned respondents, above referred grievances were not satisfied.

4. In aforesaid circumstances, petitioner approached this Court by way of filing present writ petition on 22.05.2016. In this writ petition, respondents have filed a copy of a charge sheet dated

16.01.2002 on 14 charges of financial irregularities, counter affidavit on 22.08.2016 and for the first time, they have placed on record a copy of inquiry report dated 20.08.2016 as well as punishment order dated 01.04.2017 passed by the Disciplinary Authority whereby the petitioner was found guilty of financial embezzlement and order was passed to recover an amount of Rs. 10,37,175/- on all 14 proved charges.

5. Aforesaid circumstances led the petitioner to file an amendment application which was allowed and inquiry report dated 20.08.2016 and punishment order dated 01.04.2017 were challenged along with an earlier prayer of payment of arrears of salary from 29.10.2000 to 31.07.2012.

6. Sri Satish Chandra Sinha, learned counsel for petitioner has submitted that during service period of petitioner, neither any charge sheet was submitted nor inquiry was concluded and when the petitioner has filed this writ petition in the year 2016, aforesaid inquiry report and punishment order was passed. There 2 is no provision in the relevant legal provision applicable to Nagar Panchayat to initiate or continue any departmental inquiry against the petitioner after his retirement.

7. In support of his submissions, learned counsel has placed reliance upon a judgment of this Court in Mahendra Nath Sharma vs. State of U.P. and others, 2024:AHC:4407 as well as judgments of Supreme Court in Dev Prakash Tewari vs. U.P. Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 and Bhagirathi Jena vs. Board of Directors, OSFC and others, (1999) 3 SCC 666.

8. Per contra, Sri A.K. Malviya, learned counsel for respondents has submitted that petitioner was served with a charge sheet dated 16.01.2002 wherein a reply was sought on 14 issues or charges, however, petitioner has not submitted any reply, therefore, inquiry was concluded and later on, inquiry was conducted and since the petitioner has not submitted any reply, therefore, on basis of evidence available on record, the inquiry report dated 20.08.2016 was submitted, whereby all 14 charges were found proved. Subsequently, during pendency of present writ petition, a show cause notice dated 07.12.2017 was issued and at that stage, this Court has passed following order dated

20.02.2017 in present writ petition :- “Shri A.K. Malviya, learned counsel appearing for the respondent no. 5 submits that a show cause notice has been issued to the petitioner on 7.2.2017, but the petitioner has not submitted his reply. It is further submitted that there is serious allegation of embezzlement of more than Rs. 18 lacs against the petitioner, but somehow the petitioner is always avoiding from participating in the inquiry and, therefore, an ex-parte order has 3 been passed which has also been published in the newspaper. Learned counsel for the petitioner, however, submits that no notice was ever served upon the petitioner and no proceeding has been initiated against the petitioner. According to learned counsel for the respondents the inquiry was proceeded with prior to the retirement of the petitioner and now by passing a final order, a show cause notice has been issued to which the petitioner has also not replied. Learned counsel appearing for the petitioner submits that the petitioner may be handed over the copy of the show cause notice dated 7.2.2017 and the petitioner will furnish his reply to the said show cause notice within two weeks from today. In case the petitioner furnishes his reply within two weeks from today, appropriate orders be passed by the respondent no. 5 in accordance with law within two weeks thereafter and an affidavit be filed before this Court by the respondent no. 5 with regard to final orders that may be passed in accordance with law. List this case after four weeks.”

9. In compliance of aforesaid order, the petitioner submitted a reply dated 04.03.2017 to show cause notice, however, no substantial explanation was submitted and accordingly, impugned punishment order was passed.

10. Learned counsel for respondents has also submitted that at the stage when this Court has passed order dated 20.02.2017, no objection was taken that whether the inquiry was illegal or not since it was continued even after retirement. In the inquiry report, all 14 charges were found proved that petitioner has committed embezzlement of more than Rs. 18,00,000/-, however, 4 in the final order, recovery amount was reduced about Rs. 10,37,175/- on basis of final calculation.

11. Heard learned counsel for parties and perused the records.

12. In the present case, on basis of records and rival submissions, following dates and events are not in dispute. The petitioner was served with a charge sheet dated 16.01.2002, however, he has not made any reply to it. Respondents have not tried to conclude inquiry ex-parte expeditiously, in accordance with law, even in absence of any reply and it remained pending for more than a decade and meanwhile, petitioner reached at the of superannuation on 31.07.2012. Thereafter, when the petitioner approached this Court for relief of arrears of payment of salary, respondents have come up with a case that inquiry has been concluded and inquiry report dated 20.08.2016 was submitted and show cause notice was issued.

13. This Court has granted liberty to petitioner to submit reply to show cause notice which he availed also and finally impugned punishment order dated 01.04.2017 was passed and recovery of aforesaid amount of Rs. 10,37,175/- was imposed. Said order was placed on record, therefore, amendments were sought to challenge it and were allowed.

14. Now question before this Court is whether that once respondents have not proceeded and concluded departmental proceedings, even when no reply was submitted to charge sheet and it remained pending for about a decade when petitioner got retired and thereafter also for about 6 years when an inquiry report dated 20.08.2016 was submitted. From perusal of charge sheet and punishment order, all 14 charges were found proved as 5 the petitioner has not submitted any reply. The respondents have not brought on record any provision that inquiry though commenced before retirement could continue even after petitioner’s retirement. Inordinate delay in conclusion of departmental proceedings is an adverse factor against respondents.

15. From bare perusal of inquiry report, all 14 charges were found proved essentially on a ground that petitioner has not submitted any reply to charges. The Inquiry Officer has not taken pain to prove charges on basis of statement of witnesses or documents, therefore, inquiry is also vitiated being a case of no evidence. The petitioner has received charge sheet and has sought documents form the inquiry report and opted not to submit any reply, therefore, respondents could have proceeded to conclude disciplinary proceedings expeditiously much before petitioner reached age of superannuation to avoid legal impediment, however, respondents remained lethargic and concluded inquiry after 14 years.

16. Court also takes note of judgments placed by learned counsel for petitioner passed in Mahendra Nath Sharma, Dev Prakash Tewari and Bhagirathi Jena (supras) which also favour the petitioner’s case that in a case where there was no provision to continue a disciplinary proceedings after retirement though it commenced before retirement of delinquent, its outcome i.e. a punishment order could be set aside. Ratio of these judgments are squarely applicable in present case in favour of petitioner and against the respondents. The respondents have failed to show any provision to cross above referred legal impediment. 6

17. Accordingly, impugned punishment order dated 01.04.2017 is set aside and its legal consequence shall follow.

18. Writ petition stands disposed of with above observations. Order Date :- July 28, 2025 N. Sinha [Saurabh Shyam Shamshery, J.] NIRMAL SINHA High Court of Judicature at Allahabad 7

An FIR was lodge against some employees of said Nagar Panchayat in which petitioner was also named as an accused. Case Crime No. 217/2002 was registered at Police Station Jangipur under Sections 409, 419, 420, 467, 468, 471 IPC and petitioner was put under suspension by an order dated

29.10.2000. It is the case of petitioner that no inquiry was initiated and he remained suspended and meanwhile, petitioner retired from services on 21.07.2012. The petitioner thereafter approached before concerned respondents that he be paid subsistence allowance or salary. Some amount was paid in the year 2013 and despite matter remained pending before concerned respondents, above referred grievances were not satisfied.

4. In aforesaid circumstances, petitioner approached this Court by way of filing present writ petition on 22.05.2016. In this writ petition, respondents have filed a copy of a charge sheet dated

16.01.2002 on 14 charges of financial irregularities, counter affidavit on 22.08.2016 and for the first time, they have placed on record a copy of inquiry report dated 20.08.2016 as well as punishment order dated 01.04.2017 passed by the Disciplinary Authority whereby the petitioner was found guilty of financial embezzlement and order was passed to recover an amount of Rs. 10,37,175/- on all 14 proved charges.

5. Aforesaid circumstances led the petitioner to file an amendment application which was allowed and inquiry report dated 20.08.2016 and punishment order dated 01.04.2017 were challenged along with an earlier prayer of payment of arrears of salary from 29.10.2000 to 31.07.2012.

6. Sri Satish Chandra Sinha, learned counsel for petitioner has submitted that during service period of petitioner, neither any charge sheet was submitted nor inquiry was concluded and when the petitioner has filed this writ petition in the year 2016, aforesaid inquiry report and punishment order was passed. There 2 is no provision in the relevant legal provision applicable to Nagar Panchayat to initiate or continue any departmental inquiry against the petitioner after his retirement.

7. In support of his submissions, learned counsel has placed reliance upon a judgment of this Court in Mahendra Nath Sharma vs. State of U.P. and others, 2024:AHC:4407 as well as judgments of Supreme Court in Dev Prakash Tewari vs. U.P. Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 and Bhagirathi Jena vs. Board of Directors, OSFC and others, (1999) 3 SCC 666.

8. Per contra, Sri A.K. Malviya, learned counsel for respondents has submitted that petitioner was served with a charge sheet dated 16.01.2002 wherein a reply was sought on 14 issues or charges, however, petitioner has not submitted any reply, therefore, inquiry was concluded and later on, inquiry was conducted and since the petitioner has not submitted any reply, therefore, on basis of evidence available on record, the inquiry report dated 20.08.2016 was submitted, whereby all 14 charges were found proved. Subsequently, during pendency of present writ petition, a show cause notice dated 07.12.2017 was issued and at that stage, this Court has passed following order dated

20.02.2017 in present writ petition :- “Shri A.K. Malviya, learned counsel appearing for the respondent no. 5 submits that a show cause notice has been issued to the petitioner on 7.2.2017, but the petitioner has not submitted his reply. It is further submitted that there is serious allegation of embezzlement of more than Rs. 18 lacs against the petitioner, but somehow the petitioner is always avoiding from participating in the inquiry and, therefore, an ex-parte order has 3 been passed which has also been published in the newspaper. Learned counsel for the petitioner, however, submits that no notice was ever served upon the petitioner and no proceeding has been initiated against the petitioner. According to learned counsel for the respondents the inquiry was proceeded with prior to the retirement of the petitioner and now by passing a final order, a show cause notice has been issued to which the petitioner has also not replied. Learned counsel appearing for the petitioner submits that the petitioner may be handed over the copy of the show cause notice dated 7.2.2017 and the petitioner will furnish his reply to the said show cause notice within two weeks from today. In case the petitioner furnishes his reply within two weeks from today, appropriate orders be passed by the respondent no. 5 in accordance with law within two weeks thereafter and an affidavit be filed before this Court by the respondent no. 5 with regard to final orders that may be passed in accordance with law. List this case after four weeks.”

9. In compliance of aforesaid order, the petitioner submitted a reply dated 04.03.2017 to show cause notice, however, no substantial explanation was submitted and accordingly, impugned punishment order was passed.

10. Learned counsel for respondents has also submitted that at the stage when this Court has passed order dated 20.02.2017, no objection was taken that whether the inquiry was illegal or not since it was continued even after retirement. In the inquiry report, all 14 charges were found proved that petitioner has committed embezzlement of more than Rs. 18,00,000/-, however, 4 in the final order, recovery amount was reduced about Rs. 10,37,175/- on basis of final calculation.

11. Heard learned counsel for parties and perused the records.

12. In the present case, on basis of records and rival submissions, following dates and events are not in dispute. The petitioner was served with a charge sheet dated 16.01.2002, however, he has not made any reply to it. Respondents have not tried to conclude inquiry ex-parte expeditiously, in accordance with law, even in absence of any reply and it remained pending for more than a decade and meanwhile, petitioner reached at the of superannuation on 31.07.2012. Thereafter, when the petitioner approached this Court for relief of arrears of payment of salary, respondents have come up with a case that inquiry has been concluded and inquiry report dated 20.08.2016 was submitted and show cause notice was issued.

13. This Court has granted liberty to petitioner to submit reply to show cause notice which he availed also and finally impugned punishment order dated 01.04.2017 was passed and recovery of aforesaid amount of Rs. 10,37,175/- was imposed. Said order was placed on record, therefore, amendments were sought to challenge it and were allowed.

14. Now question before this Court is whether that once respondents have not proceeded and concluded departmental proceedings, even when no reply was submitted to charge sheet and it remained pending for about a decade when petitioner got retired and thereafter also for about 6 years when an inquiry report dated 20.08.2016 was submitted. From perusal of charge sheet and punishment order, all 14 charges were found proved as 5 the petitioner has not submitted any reply. The respondents have not brought on record any provision that inquiry though commenced before retirement could continue even after petitioner’s retirement. Inordinate delay in conclusion of departmental proceedings is an adverse factor against respondents.

15. From bare perusal of inquiry report, all 14 charges were found proved essentially on a ground that petitioner has not submitted any reply to charges. The Inquiry Officer has not taken pain to prove charges on basis of statement of witnesses or documents, therefore, inquiry is also vitiated being a case of no evidence. The petitioner has received charge sheet and has sought documents form the inquiry report and opted not to submit any reply, therefore, respondents could have proceeded to conclude disciplinary proceedings expeditiously much before petitioner reached age of superannuation to avoid legal impediment, however, respondents remained lethargic and concluded inquiry after 14 years.

16. Court also takes note of judgments placed by learned counsel for petitioner passed in Mahendra Nath Sharma, Dev Prakash Tewari and Bhagirathi Jena (supras) which also favour the petitioner’s case that in a case where there was no provision to continue a disciplinary proceedings after retirement though it commenced before retirement of delinquent, its outcome i.e. a punishment order could be set aside. Ratio of these judgments are squarely applicable in present case in favour of petitioner and against the respondents. The respondents have failed to show any provision to cross above referred legal impediment. 6

17. Accordingly, impugned punishment order dated 01.04.2017 is set aside and its legal consequence shall follow.

18. Writ petition stands disposed of with above observations. Order Date :- July 28, 2025 N. Sinha [Saurabh Shyam Shamshery, J.] NIRMAL SINHA High Court of Judicature at Allahabad 7