High Court
Case Details
Neutral Citation No. - 2023:AHC:107741 Court No. - 38 Case :- WRIT - A No. - 8163 of 2023 Petitioner :- Manoj Kumar Trivedi Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Harshit Chandra,Sr. Advocate Counsel for Respondent :- C.S.C,Sunil Kumar Misra
Legal Reasoning
Hon'ble Saurabh Srivastava,J. 1. Heard Sri Sameer Sharma, learned Senior Advocate assisted by Sri Harshit Chandra, learned counsel for the petitioner and Sri Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel for the State-respondents as well as Sri Sunil Kumar Mishra, learned counsel appearing on behalf of the respondent nos.2 to 5. 2. The present petition has been filed seeking the following relief:- "i. Issue a writ, order or direction in the nature of certiorari quashing the letter dated 11.01.2022 (Annexure No.19 to the petition) appointing the Inquiry Officer to conduct the departmental enquiry against the petitioner. ii. Issue a writ, order or direction in the nature of mandamus restraining the respondent Corporation from proceeding any further against the petitioner pursuant to the charge sheet dated 04.01.2012. iii. Issue a writ, order or direction in the nature of mandamus directing the respondent Corporation to immediately consider and accord the benefit of promotion to the petitioner from the date juniors to him were granted promotion and pay to him arrears of salary accordingly of the promotional post. iv. Issue a writ, order or direction in the nature of mandamus directing the respondent Corporation to consider and grant the 3rd ACP benefits to the petitioner, and to pay the arrears alongiwht 10% interest, forthwith." 3. It is the case of the petitioner that in pursuance of the chargesheet dated 04.01.2012 wherein the inquiry is still pending, the petitioner has been called for participating in the inquiry vide order dated 21.01.2023. In pursuance of the same, the petitioner put his appearance on dated 27.01.2023 before the Inquiry Officer and the same is still under progress. 4. While challenging the disciplinary proceedings in shape of inquiry, the present petition has been preferred by the petitioner on the ground that after a lapse of more than a decade, the inquiry is still under progress which is hampering the legitimate right of the petitioner for receiving certain increments along with promotion in shape of ACP specifically. 5. Per contra, learned counsel appearing on behalf of the Corporation vehemently opposed the prayer as made in the petition on the ground that due to change of certain Inquiry Officer, the same has been delayed. 6. For substantiating his arguments as raised by learned Senior Advocate appearing on behalf of the petitioner, he relied upon a judgment passed by a coordinate Bench of this Court in Mahesh Chandra Upadhyay Vs. State of U.P. and others (S.S. No.29892 of 2016, decided on 20.12.2016), operative portion of the said judgment is quoted hereinbelow:- "Be that as it may, the Enquiry Officer ignored this objection, as also the letter of the petitioner dated 11.7.2016 and it is said that he submitted his inquiry report on 14.7.2016, although according to the petitioner no inquiry was held in his presence, nor any inquiry report was served upon him, even though the proceedings which were initiated for imposition of a major punishment. In view of the law laid down by this Court in the case of Kamla Charan Misra Versus State of U.P. And Others 2009 (27) LCD 130, it was necessary to do so, even if ultimately a minor punishment has been imposed. The fact of the matter is, ultimately the impugned order was passed on 29.7.2016 imposing a minor punishment of censure ignoring the objection of the petitioner referred hereinabove. In this regard as per instructions sent by the Director Local Bodies, he was not aware of the said objection and judgments referred therein. Be that as it may, considering the Full Bench decision no permission was taken from the Tribunal or from the High Court for continuing the proceedings after the expiry of four months' period which expired on 1.2.2016. The respondents could not continue the proceedings thereafter without seeking such permission.
Decision
Accordingly, the entire proceedings held thereafter is void. Further more, the Court finds from the charge alleged against the petitioner and also the fact based on the said charge, the punishment imposed is only that of censure. Therefore, in the facts of the case, there is no justification for allowing the respondents to hold a fresh inquiry or sustaining the punishment order at this stage. Specially as the petitioner has already been considered for promotion, the recommendation relating to him had been kept in sealed cover. For the reasons aforesaid the impugned order being in-violation of the Full Bench decision referred hereinabove, is hereby quashed. However, the petitioner shall ensure that in future he shall not commit the same misdemeanor as is alleged to have been committed by him. This observation shall not be treated as an adverse material for his service career, as it is only by way of counseling. In view of the above, the sealed cover relating to the petitioner shall be opened within a period of three weeks and consequences shall follow accordingly as per law. Needless to say if he has been found fit, he shall be granted promotion, from the date juniors to him, who had been considered in the same D.P.C., have been promoted earlier. The writ petition is allowed. " 7. By bare perusal of the conclusion as drawn by the coordinate Bench by way of recording the reasoning that if the time has already been fixed and framed by concluding the inquiry and the same has not been proceeded according to the same, further process of inquiry/disciplinary proceedings shall be void without seeking further permission of extension of time and as such, there is no justification to allow the respondents to hold a fresh inquiry. 8. By bare perusal of the letter dated 11.01.2022 which is under challenge in the present petition and notice dated 21.01.2023, it is crystal clear that no fresh inquiry has been initiated against the petitioner, whereas in continuation to the charges as levelled against the petitioner through chargesheet dated 04.01.2012, the inquiry which is pending against the petitioner has been initiated by way of appointing the Inquiry Officer and the same has been only intimated to the petitioner. The judgment in the case of Mahesh Chandra Upadhyay (supra) is slightly different to the instant matter wherein the inquiry is proceeding in pursuance of the charges levelled against the petitioner way back in the year 2012 itself but the inquiry is still pending and could not finalize even after the indulgence as drawn by the U.P. State Public Service Tribunal and after expiry of the specified period as granted vide order dated 25.08.2021 in pursuance of the letter dated 21.01.2023, it has only been intimated to the petitioner with regard to appointment of subsequent Inquiry Officer. 9. It is the admitted case of the petitioner that he has already been participated in the inquiry and as such, the respondent no.3 is hereby directed to conclude the disciplinary proceedings as initiated against the petitioner which is still pending to be finalized for more than a decade by way of issuing a formal orders to the Inquiry Officer after affording proper opportunity of hearing to the petitioner. 10. However, it is made clear that the petitioner shall extend his entire support to the Inquiry Officer as well as Disciplinary Authority for arriving over the directions as passed above. 11. The entire exercise shall be finalized within a period of four months from the date of presentation of certified copy of this order before the respondent no.3. 12. With the aforesaid direction, the instant petition stands disposed of. Order Date :- 17.5.2023 Vivek Kr. Digitally signed by :- Digitally signed by :- VIVEK KUMAR VIVEK KUMAR High Court of Judicature at Allahabad High Court of Judicature at Allahabad