Court No. - 33
Case :- WRIT - A No. - 14331 of 2020 Petitioner :- Banne Singh Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Om Prakash Ojha,Rabindra Nath Ojha Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Facts, as are relevant for the present purposes has already been noticed in an earlier petition filed by the petitioner i.e. Writ Petition No. 1241 of 2020 which came to be disposed of vide following orders passed on 4.2.2020:-
"It appears that an order dated 17.1.2005 was passed by the respondent no.3 reinstating the petitioner in service. This order was modified on 24.8.2005 and major punishment was imposed upon the petitioner. Aggrieved against two orders petitioner preferred an appeal, which was decided by the Director vide order dated 6.5.2010. The order dated 24.8.2005 was set aside by the appellate authority on the ground that the procedure for major punishment has not been followed. However, in last line punishment order dated 17.1.2005 has been maintained.
According to petitioner, the order passed in appeal contained inadvertent error inasmuch order dated 17.1.2005 had already been modified on 24.8.2005, and therefore, the question of maintaining the order dated 17.1.2005 was misconceived since the order dated 17.1.2005 independently did not exist at all and it had already been modified on 24.8.2005. An application is stated to have been moved before the appellate authority, which is yet to examine the matter.
Learned Standing Counsel submits that the grievance of the petitioner can be examined by the competent authority, at the first instance.
In view of what has been observed above, it would be appropriate to permit the petitioner to represent his grievance before respondent no.2 for necessary correction/clarification in the order dated 6.5.2010, in light of the facts noticed above. The Director shall call for necessary records and shall pass appropriate orders within a period of four months from the date of presentation of certified copy of this order.
With the aforesaid observations/directions, this writ petition stands disposed of".
The appellate authority has rejected petitioner's application by subsequent order dated 12.6.2020, which is impugned in this writ petition.
Learned counsel for the petitioner states that since the order to withhold increment with cumulative effect is an order imposing major punishment, therefore, the appellate authority has erred in maintaining the first order dated 17.1.2005 and despite appropriate application filed, the said application has not been considered.
Writ petition is opposed by the learned Standing Counsel. Since facts are not in issue and relevant orders are already on record, therefore, with the consent of the counsel for the parties, this petition is disposed of at this stage itself.
It is admitted that in the relevant applicable rules that the order of withholding increment with cumulative effect is an order of major punishment. There are two orders passed by the Deputy Director, Horticulture dated 17.1.2005 and 24.8.2005. In the first order dated 17.1.2005, petitioner's single increment with cumulative effect has been stopped. By the subsequent modified order dated 24.8.2005, instead of stopping one annual increment, petitioner's three increments have been stopped. Appeal has been preferred against these two orders which has been allowed on 6.5.2020. A categorical observation is made in the order to the effect that the procedure for passing the order of major punishment, as per rules, has not been followed. Once that was so, the direction to withhold increment with cumulative effect could not have been passed. In such circumstances, while allowing the appeal, appellate authority ought to have quashed both these orders in so far as major punishment was imposed upon the petitioner. The petitioner rightly moved an application for necessary amendment in the order of appellate authority but the Director Horticulture appears to have completely lost track of the issue. The appellate order runs into three pages but shows complete non application of mind on relevant aspect.
Since the procedure for passing an order of major punishment has not been followed, as was clearly noticed in the appellate order itself, the appellate authority ought to have set aside both the orders in so far as the major punishment was imposed upon the petitioners. The order impugned in so far as they fail to examine this aspect of the matter therefore cannot be sustained.
Writ petition succeeds and is allowed. Impugned orders dated 9.9.2019 and 12.6.2019 passed by the respondent nos. 1 and 2 are modified to the extent that major punishment of withholding of annual increment with cumulative effect stands set aside. The punishment imposed on 17.1.2005 and 24.8.2005 to that extent stands quashed.
The concerned Authority/Official shall verify the authenticity of computerized copy of this order from the official website of High Court Allahabad and shall act accordingly without waiting for submission of the certified copy of this order.
Order Date :- 7.1.2021 n.u.