1. Heard Sri Ashok Shukla, learned counsel for the petitioner and Sri Ram Ratan, learned counsel for the respondents.
2. By means of first writ petition i.e. Service Single No. 11867 of 2020, the petitioner has prayed following reliefs:-
"(i) issue a writ, order or direction in the nature of mandamus commanding the Uttar Pradesh Uttar Pradesh State Bridge Corporation, the Respondent No. 1 and its Managing Director, the Respondent No.2 to grant the promotion, with all consequential benefits, to the Petitioner with effect from 08.03.2019, the date on which the promotion was granted to his juniors on the post of Assistant Engineer (Civil).
(ii) issue a writ, order or direction in the nature of mandamus commanding the Uttar Pradesh State Bridge Corporation, the Respondent No. l and its Managing Director, the respondent no.2 to allow the benefit of 1st and 2nd ACP w.e.f. 2008 and 2014 respectively and consequently re-fix the pay of the petitioner and arrears of salary accrued as such be also paid with interest @ 18% per annum thereupon from due upto the date of actual payment.
(iii) issue a writ, order or direction in the nature of certiorari quashing the Enquiry Report dated 27.02.2020, show-cause notice dated 13.03.2020 and Charge-sheet dated 09.10.2015 contained as Annexure Nos. 1, 2 and 3 respectively to the writ petition.
(iv) issue a writ, order or direction in the nature of mandamus commanding the Managing Director, the respondent no.2 not to proceed against the petitioner on the basis of Enquiry Report dated 27.02.2020, show-cause notice dated 13.03.2020 and Charge-sheet dated 09.10.2015."
3. By means of second writ petition i.e. Service Single No. 12047 of 2021, the following prayers have been made:-
"(i) issue an order, direction or writ in the nature of certiorari quashing the impugned punishment order dated 02.06.2021 as contained in Annexure No.1 to the writ petition with all consequential benefits.
(ii) issue an order, direction or writ in the nature of mandamus commanding the opposite parties not to implement the impugned punishment order dated 02.06.2021 as contained in Annexure No.1 to the writ petition."
4. Since both the writ petitions are of the same petitioner and issues are interrelated, therefore, with the consent of respective parties I hereby dispose of both the writ petitions by this common judgment.
5. The questions to be considered in both the writ petitions are that as to whether the departmental enquiry can be conducted and concluded beyond the period so stipulated by the Court without taking leave in view of the decision of Full Bench of this Court in re:- Abhishek Prabhakar Awasthi vs. New India Assurance Company Limited and Others [reported in 2014 (6) ADJ 641]. Secondly, as to whether if any punishment order is awarded pursuant to the departmental enquiry so conducted and concluded beyond the period so stipulated by the Court without taking leave can be sustained in the eyes of law.
6. The brief facts of the case are that the petitioner was appointed on the post of Junior Engineer (Civil) in the U.P. State Bridge Corporation Ltd.
7. The disciplinary proceedings for the alleged shortcoming in the Central Store (Civil) at Bridge Construction Unit, Saidpur was instituted against the petitioner and a charge-sheet dated 09.10.2015 was issued and served upon the petitioner to which he has submitted reply on 31.10.2015 denying the charges levelled against him annexing therewith documentary evidence.
8. On 20.03.2016, the Presenting Officer has submitted the departmental comments on the reply of the petitioner dated 31.10.2015 to the Enquiry Officer. Thereafter, the Enquiry Officer has fixed a date for personal hearing on 23.04.2016 and submitted enquiry report on 09.11.2016.
9. Thereafter, on 30.11.2016 the disciplinary authority-respondent no.2 has issued show-cause notice to the petitioner annexing therewith the copy of the enquiry report dated 09.11.2016 reply thereof has been submitted by the petitioner on 13.12.2016.
10. During the pendency of the aforesaid enquiry, a notice dated 03.03.2017 was issued to the petitioner by the General Manager calling upon him to show cause as to why recovery of a sum of Rs.14,93,546/- may not be made from him for the same issue for which enquiry was pending reply thereof has been submitted by the petitioner on 23.03.2017.
11. When the petitioner came to know about the promotion of certain Junior Engineers on the post of Assistant Engineers who are junior to the petitioner, he moved an application to the respondent no.2 with a request to take decision in respect of promotion of the petitioner on the post of Assistant Engineer.
12. The disciplinary authority instead of taking any decision in the pending enquiry issued a show-cause notice (second) dated 25.06.2019 to the petitioner annexing therewith the copy of enquiry report dated 04.06.2019 to which the petitioner has submitted his reply on 10.07.2019 (Annexure No.16). Moreover, he had specifically mentioned in the reply that he had never been informed about the enquiry giving rise to enquiry report dated 04.06.2019.
13. The petitioner feeling aggrieved from the enquiry report dated 04.06.2019, show-cause notice dated 25.06.2019 as well as notice of recovery dated 03.03.2017 had preferred the Writ Petition No. 22962 (S/S) of 2019, impugning the same before this Court. The Court vide judgment and order dated 13.11.2019 disposed of the aforesaid writ petition setting aside the show-cause notice dated 25.06.2019, the enquiry report dated 04.06.2019 as well as the notice of recovery dated 03.03.2019 (it should be 03.03.2017). However, it was left open to the respondents to continue with departmental proceedings against the petitioner and taking the same to its logical end. Moreover, the Court had also commanded that as the departmental enquiry is pending against the petitioner since 2015, therefore, departmental enquiry shall be concluded and final order would be passed within a period of four months from the date of receipt of a certified copy of the judgment. The operative portion of the judgment and order dated 13.11.2019 is being reproduced hereinbelow:-
"The writ petition is accordingly disposed of after setting-aside the order dated 25.06.2019 and inquiry report dated 04.06.2019 as well as notice dated 03.03.2019 leaving it open for the respondents to continue with departmental proceedings against the petitioner and taking the same to their logical end. It is also provided as the departmental inquiry is pending against the petitioner since 2015, the said proceedings shall be concluded and final order would be passed within a period of four months from the date of receipt of a certified copy of this order. Needless to mention that the petitioner would cooperate in the inquiry."
14. On 19.11.2019, the certified copy of the judgment and order dated 13.11.2019 was sent by counsel for the petitioner through Speed Post to the Managing Director. A letter dated 23.12.2019 was issued by the Chief Project Manager (Complaint) addressing to the Chief Project Manager, (Ayodhya)/Enquiry Officer to complete the enquiry pending against the petitioner in the light of judgment and order dated 13.11.2019.
15. The Chief Project Manager (Ayodhya) vide letter dated 15.01.2020 intimated the petitioner that 24.01.2020 is the date fixed for the enquiry but the enquiry proceedings were not held on that date as the Enquiry Officer was busy in some other work. On 31.01.2020, the petitioner again appeared before the Enquiry Officer and the Enquiry Officer had submitted the enquiry report on 27.02.2020 to the Chief Project Manager. (Complaint).
16. Thereafter, on 13.03.2020 the disciplinary authority issued a show-cause notice to the petitioner annexing therewith the enquiry report dated 27.02.2020 and the reply thereof has been submitted by the petitioner on 30.03.2020 wherein he had specifically mentioned that no enquiry, whatsoever, has been conducted as per law and rules even after the judgment and order dated 13.11.2019. On the contrary the enquiry report dated 27.02.2020 itself reveals that the same is reproduction of the earlier enquiry report dated 04.06.2019 (which was set-aside vide judgment and order dated 13.11.2019).
17. Vide letter dated 6.6.2020, the General Manager (Complaint) asked the petitioner to submit his reply to the show-cause notice dated 13.03.2020 as he has not submitted the reply and the matter is being delayed. Thereafter, the petitioner in his letter dated 12.06.2020 informed the General Manager (Complaint) that he had already submitted his reply on 30.03.2020 to the show-cause notice dated 13.03.2020 through e-mail on 31.03.2020 to the office of the Managing Director.
18. In spite of lapse of time fixed by the Court vide judgment and order dated 13.11.2019, the respondents again kept the disciplinary proceedings pending and that too the detriment of the petitioner.
19. The petitioner, feeling aggrieved, by the illegal action of the respondents had again approached this Court through Writ Petition No. 11867 (S/S) of 2020. The Court vide order dated 29.7.2020 directed the counsel for the respondents to satisfy the Court as to why further time should be granted in a proceeding which is pending since 2012 i.e. for the past eight years keeping in mind the law laid down by the Full Bench of this Court. The Hon'ble Court further directed to produce the record of disciplinary proceedings or file an affidavit.
20. In view of the aforesaid facts and circumstances of the case, there is no dispute that the certified copy of the judgment and order dated 13.11.2019 was provided to the competent authority through registered post dated 19.11.2019 and the competent authority took cognizance of the said judgment and order vide letter dated 23.12.2019 (Annexure No.20 of the second writ petition). Therefore, the enquiry in question must have been concluded and final order must have been passed on or before 23.04.2020, the period of four months as stipulated vide judgment and order dated 13.11.2019. However, the certified copy of the judgment and order dated 13.11.2019 has been sent to the Managing Director through registered post on 19.11.2019 and if the five days period is counted for the service in that case the departmental enquiry must have been concluded and final order must have been passed on or before 24.03.2020 i.e. four months' period.
21. To be more precise, the maximum period of four months was provided to the disciplinary authority to pass final order taking the cognizance of the enquiry report but no final order was passed within a maximum period of four months as stipulated by this Court vide judgment and order dated 13.11.2019.
22. On being confronted the learned counsel for the opposite parties as to why the final order has not been passed within time stipulated by this Court vide judgment and order dated 13.11.2019, he could not explain the appropriate reason to this effect. On being further confronted learned counsel for the respondent as to why the Managing Director has not given reference of the judgment and order dated 13.11.2019 whereby the rider of four months have been imposed for passing final order, in the impugned order dated 02.06.2021, again the learned counsel for the respondents could not justify the inaction of the Managing Director. On a pinpoint query as to whether any leave was granted by the Court extending the time for passing final order, the learned counsel for the respondent has submitted that no such leave was granted. Then another pinpoint query was made from him seeking explanation that despite about fourteen months delay which has been caused in passing final order on 02.06.2021, the impugned order which is contained as Annexure no.1 to the second writ petition, neither any reason of such delay has been explained nor any plausible explanation has been given by the learned counsel for the respondents. Lastly, he has been asked as to why the enquiry of the year 2012 has been concluded after about nine years when the final order is passed on 02.06.2021, there was no cogent explanation with learned counsel for the respondent.
23. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that the impugned Office Memo dated 02.06.2021 passed by the Managing Director which is contained as Annexure no.1 to the second writ petition whereby the direction for making recovery of Rs.13,84,290/- with punishment of censure entry is apparently illegal, arbitrary, unwarranted and in violation of the decision of Full Bench of this Court in re:- Abhishek Prabhakar Awasthi (supra).
24. Before the Full Bench in re:- Abhishek Prabhakar Awasthi (supra) two questions were referred for adjudication which have been indicated in para 2 of the judgment as under:-
"2. The following questions have been referred in the order of the learned Single Judge for determination by the Full Bench:-
"(a) Whether if an inquiry proceeding is not concluded within a time frame fixed by a court and concluded thereafter, without seeking extension from the Court then on the said ground the entire inquiry proceeding as well as punishment order passed, is vitiated in view of the judgment in the case of P.N. Srivastava; and
(b) Whether the law as laid down by a Division Bench of this Court in the case of P.N. Srivastava that if an inquiry proceeding is not concluded within a time frame as fixed by a Court, it stands vitiated is still a good law in view of the judgment rendered by the Supreme Court in the case of Suresh Chandra as well as a judgment dated 27.07.2009 of a Division Bench of this Court in Writ Petition No. 1056 (SB) of 2009 (Union of India and others Vs. Satendra Kumar Sahai and another)."
25. The Full Bench in Para 19 was pleased to answer those questions as under:-
"19. In view of the above discussion, we now proceed to answer the questions which have been referred to the Full Bench.
(A) Question No. (a): We hold that if an enquiry is not concluded within the time which has been fixed by the Court, it is open to the employer to seek an extension of time by making an appropriate application to the court setting out the reasons for the delay in the conclusion of the enquiry. In such an event, it is for the court to consider whether time should be extended, based on the facts and circumstances of the case. However, where there is a stipulation of time by the Court, it will not be open to the employer to disregard that stipulation and an extension of time must be sought;
(B) Question No. (b): The judgment of the Supreme Court in the case of Suresh Chandra (supra) as well as the judgment of the Division Bench of this Court in the case of Satyendra Kumar Sahai (supra) clearly indicate that a mere delay on the part of the employer in concluding a disciplinary enquiry will not ipso facto nullify the entire proceedings in every case. The court which has fixed a stipulation of time has jurisdiction to extend the time and it is open to the court, while exercising that jurisdiction, to consider whether the delay has been satisfactorily explained. The court can suitably extend time for conclusion of the enquiry either in a proceeding instituted by the employee challenging the enquiry on the ground that it was not completed within the stipulated period or even upon an independent application moved by the employer. The court has the inherent jurisdiction to grant an extension of time, the original stipulation of time having been fixed by the court itself. Such an extension of time has to be considered in the interests of justice balancing both the need for expeditious conclusion of the enquiry in the interests of fairness and an honest administration. In an appropriate case, it would be open to the Court to extend time suo motu in order to ensure that a serious charge of misconduct does not go unpunished leading to a serious detriment to the public interest. The court has sufficient powers to grant an extension of time both before and after the period stipulated by the court has come to an end."
26. The crux of the decision of Full Bench of this Court is that where there is a stipulation of time by the Court, it will not be open to the employer to disregard that stipulation unless the time is extended by the Court itself on the application of the department. In the present case, admittedly, no such application for extension of time has been moved by the department and despite taking cognizance of the fact that this Court vide judgment and order dated 13.11.2019 has stipulated maximum period of four months to pass final order considering the enquiry report and such period of four months was being expired on 23.04.2020, if the letter of the Chief Project Manager is taken into account (Annexure no.20 to the second writ petition) or on 24.03.2020 if the date of registered post dated 19.11.2019 intimating the order dated 13.11.2019 is taken into account giving advantage of five days of service of the registered post. In any case, the final order must have been passed on or before 23.04.2020 after conclusion of the departmental enquiry but the final order has been passed on 02.06.2021 (Annexure No.1) awarding punishment of recovery and censure entry to the petitioner.
27. In view of what has been considered above, the impugned order dated 02.06.2021 passed by the Managing Director which is contained as Annexure No.1 to the writ petition is not sustainable in the eyes of law being illegal, arbitrary and unwarranted viz a viz violative of the direction being issued by the Full Bench of this Court in re:- Abhishek Prabhakar Awasthi (supra).
28. Accordingly, the second writ petition is hereby allowed.
29. Since the orders impugned in the first writ petition have been merged in the final order dated 02.06.2021 impugned in the second writ petition and the second writ petition has been allowed, therefore, the first writ petition shall be deemed to have been allowed in view of the aforesaid terms, accordingly, the first writ petition is allowed.
30. The writ in the nature of certiorari is issued quashing the Office Memo dated 02.06.2021 passed by the Managing Director, U.P. State Bridge Corporation Ltd., Lucknow which is contained as Annexure No.01 to the writ petition.
31. The writ of mandamus is issued commanding the opposite parties not to implement the punishment order dated 02.06.2021 against the petitioner as the same has been quashed thereby providing all consequential service benefit to the petitioner.
32. No order as to costs.
Order Date :- 27.08.2021/ Vikas