High Court
Case Details
Court No. - 30 Case :- WRIT - A No. - 7645 of 2018 Petitioner :- Brijesh Patel Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Ashok Khare Counsel for Respondent :- C.S.C. Hon'ble Rajiv Joshi,J.
Legal Reasoning
Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel for the State respondents. The present petition under Article 226 of the Constitution of India has been filed for the following reliefs:-
Decision
"(i) a writ order or direction in the nature of certiorari quashing the order dated 05.09.2017 passed by the State Government (Annexure 8 to the writ petition). (ii) a writ order or direction of a suitable naturecommanding the respondents to disburse to the petitioner his regular monthly salary inclusive of the withheld increments and non-practicing allowance, regularly every month." This Court vide order dated 12.03.2018 called for a counter affidavit from the State and stayed the operation of the impugned order dated 05.09.2017 (Annexure 8 to the writ petition). The said order is quoted as under:- "Heard Sri Ashok Khare, Senior Counsel for the petitioner. The argument is that there is no evidence to prove the charge levelled against the petitioner and no time and date was fixed for holding the inquiry so as to allow opportunity to adduce evidence. List after two weeks along with the record of Writ -A No.5932 of 2018 and Writ -A No.5853 of 2018. In the meantime Standing Counsel may seek instructions and file counter affidavit, if necessary. Until further orders of this court, operation of the impugned order dated 05.09.2017 annexure-8 to the writ petition shall remain in abeyance" But till date no counter affidavit has been filed by the learned Standing Counsel. Brief facts of the case are that the petitioner was appointed in Provincial Medical Service in the year 1994 and he has been working ever since then without there being any adverse entry in his service record. On 5.4.2007 an Office Memorandum was issued alleging that thirty one Doctors were found to be doing private practice and thus, it was proposed that disciplinary proceeding be initiated against them under the provisions of U.P. Government Servant (Discipline & Appeal) Rules, 1999. In pursuance of the said, an inquiry was got conducted. Despite there being no material against the petitioner, a charge-sheet was issued on 20.1.2011 alleging that the petitioner was engaged in private practice and was also availing non practicing allowance, which was a grave misconduct. Surprisingly, in support of the said charge-sheet, two documents firstly, the report of the CMO identifying the practicing doctors and secondly, the order dated 5.4.2007 instituting departmental proceedings against the Medical Officers were relied upon. The petitioner submitted a detailed reply to the said charge-sheet denying the allegations and thereafter, without affording any opportunity of hearing the order dated 05.09.2017 came to be passed. A perusal of the said order records that in the inquiry report nothing was found against the petitioner and there was no material against the petitioner to substantiate the charges levelled against him, however, a decision was taken that the petitioner was guilty of availing non practicing allowance and, thus, was given punishment of stopping of two increments permanently, stopping of payment of NPA and awarding censor entry. Learned Counsel for the petitioner states that the said order does not reveal that any opportunity of hearing was granted and once the impugned order itself records that no material was found against the petitioner so as to establish the charges levelled against him, the imposition of the penalty, as has been done, is clearly not sustainable. Learned Counsel for the petitioner further submits that this Court vide order dated 17.09.2021 passed in Writ-A No.2357 of 2021 (Devendra Kumar Singh vs. State of U.P. and 4 Others) has already decided the similar controversy, which has been affirmed in Special Appeal Defective No.164 of 2022 vide order dated 30.01.2023. The relevant portion of the judgement dated 30.01.2023 passed in Special Appeal Defective No.164 of 2022 is quoted hereunder:- "Heard Sri Pankaj Rai, Additional Chief Standing Counsel, for the appellants and Sri C.K. Rai for the respondent. The respondent (Dr. Devendra Kumar Singh) filed Writ A No. 2357 of 2021 for quashing the order of the first respondent (Secretary, Chikitsha Anubhag III, Govt. of U.P., Lucknow) dated 13.08.2020 whereby a punishment of stopping two increments permanently, stoppage of non-practicing allowance and censure was awarded on the ground that the writ petitioner had claimed non-practicing allowance even though his name figured in the list of persons who were found practicing. In the writ petition, the writ petitioner had taken a specific plea that he had not indulged in private practice during the period he received non-practicing allowance and the allegations to the contrary are incorrect. It was stated that the charges were denied yet, no oral enquiry was conducted by the Enquiry Officer; and that no date, time and place for enquiry was fixed by the Enquiry Officer therefore, the enquiry report is in the teeth of the provisions of U.P. Government Servants (Discipline and Appeal) Rules, 1999 (for short 1999 Rules). The learned Single Judge noticed that on three occasions time was allowed to the learned Standing Counsel representing the opposite parties (appellants herein) yet no counter-affidavit was filed. The learned Single Judge consequently proceeded to decide the petition on the basis of averments made in the writ petition. Upon consideration of the averments made in the writ petition, the learned Single Judge found that there was no proper enquiry to hold that the petitioner had indulged in private practice and despite indulging in private practice claimed non practicing allowance. The writ petition was therefore allowed and the order impugned was set aside with a direction that the petitioner shall be entitled to all allowances including non practicing allowance. When this appeal was entertained on 05.09.2022, the learned counsel for the State was given time to produce the enquiry file. In response to the said order, an affidavit has been filed by District Health Education and Information Officer in the office of Chief Medical Officer, Jaunpur placing on record the enquiry documents duly attested by the Chief Medical Officer, Jaunpur as Annexure 1 to the affidavit. We have perused the documents which have been placed before us. A perusal whereof does not reflect that any oral enquiry as contemplated by Rule 7 of the 1999 Rules was held. It further appears from the record that the writ petitioner had specifically denied the charges and had claimed that he has not indulged in private practice yet, no oral enquiry was held and the enquiry report was submitted by placing blind reliance on some previous reports/list wherein the name of the writ petitioner figured as one of the persons who had indulged in private practice. As the writ petitioner had specifically denied indulging in private practice, the minimum that was required for the Department was to prove the charge by leading evidence that the petitioner had indulged in private practice. Thereafter, the Department could have awarded punishment, if required. However, as there was no enquiry held and the enquiry report is only on the basis of the list by observing that the writ petitioner had not led any evidence to challenge the list, we are of the view that the order impugned in the writ petition was rightly set aside by the learned Single Judge. At this stage, the learned Additional Chief Standing Counsel submitted that if the learned Single Judge was of the view that the enquiry was not conducted in accordance with the provisions of the 1999 Rules then the Court should have left open for the Department to hold the enquiry as per 1999 Rules. We find substance in the submission of the learned Additional Chief Standing Counsel that if the order of punishment had been set aside on ground of there being no proper enquiry, it should have been left open for the Department to hold an enquiry as per the Rules. We, therefore, dispose off this appeal by observing that though we do not interfere with the order passed by the learned Single Judge to the extent it sets aside the order of punishment imposed by the appellants upon the writ petitioner but we leave it open to the Department to pass a fresh order after holding an enquiry in accordance with the law, if they so deem it necessary. The appeal stands disposed off in terms above." Learned Standing Counsel representing the State respondents submits that once the controversy involved in this writ petition has already been decided by the aforesaid decision, he does not propose to file any counter affidavit and this writ petition may also be decided in the same terms. In view of the fact that the similar controversy has already been decided by this Court, the impugned order dated 05.09.2017 cannot be sustained and is hereby set aside, with a direction that the petitioner shall be entitled to all consequential allowances including non practicing allowance. The arrears of non practicing allowance and other benefits which are to be accrued in favour of the petitioner by virtue of this order shall be paid to the petitioner within a period of three months. However, this Court leaves it open to the Department to pass a fresh order after holding an enquiry in accordance with the law, if they so deem it necessary. The writ petition is allowed in terms of above directions. Order Date :- 21.2.2023 S.P. Digitally signed by :- SANJAY PURI High Court of Judicature at Allahabad