This writ petition challenges the order dated 8.3.2002 ( Annexure - 15 to the writ petition), whereby following punishment have been imposed upon the petitioner;-
(i) Petitioner has been reverted to the minimum pay scale of senior clerk.
(ii) A sum of Rs. 1,60,375.75 paise was directed to be recovered from the petitioner at the rate of Rs. 891.87/- per month,over a period of 180 months.
(iii) Petitioner has also been awarded adverse entry.
The writ petition was entertained and the operation of the order dated 8.3.2002 had been stayed. The writ petition was thereafter disposed of on 29.3.2012, permitting the petitioner to challenge the impugned order by filing statutory appeal under the Rules of 1999. The order of this Court dated 29.3.2012, disposing of the matter on the ground of availability of alternative remedy was challenged by the petitioner by filing Special Appeal No. 739 of 2012. The Special Appeal has been allowed and the order dated 29.3.2012 has been set aside in the following terms:-
The petitioner was posted as Senior Clerk and was attached to the District Harijan Evam Samaj Kalyan Adhikari, Kanpur Nagar ( hereinafter referred to as the District Level Officer).It is alleged that a Writ Petition No.6174 of 1989 (Jai Govind Dwivedi Vs. State of U.P. and others) was filed and in the said writ petition, the District Level Officer was impleaded as respondent no.3 while Director and Additional Managing Director of the Department were impleaded as respondent no. 4 and 2 respectively. Notices of Writ Petition No. 6174 of 1989 were received by the office of the Chief Standing Counsel and information regarding filing of the writ petition was given to all the respondents including the then District Level Officer. The petitioner claims that a narrative/ draft, in reply to the allegation made in the writ petition was prepared by the then District Level Officer, which was also vetted and signed by the District Government Counsel (civil) Kanpur Nagar. The District Level Officer issued a letter dated 20.2.1990 to the Chief Standing Counsel, High Court, Allahabad, wherein, the addressee was informed that the petitioner was authorised and deputed to file counter affidavit on its behalf. The letter dated 20.2.1990 is on record of the writ petition as Annexure - 1. The narrative prepared for filing of the counter affidavit is also annexed as Annexure - 2 to the writ petition. The petitioner contends that in view of the letter sent by the District Level Officer, he contacted the office of the Chief Standing Counsel, Allahabad, and a counter affidavit was prepared, which was sworn by the petitioner. The counter affidavit is Annexure -3 to the writ petition. The petitioner has further brought on record a communication sent by the The District Level Officer, addressed to the Director of the department dated 8.3.1990, whereby, the Director has been informed in response to a communication received from the office of the Director that a counter affidavit to the writ petition, sworn by the petitioner has been got filed before the High Court, Allahabad, and copy of the counter affidavit was also enclosed and sent to the Director. The writ petition of Jai Govind Dwivedi was allowed by this Court vide judgment and order dated 6.4.1992. Pursuant to it, a sum of Rs. 1,60,375.75 paise was paid to Jai Govind Dwivedi, petitioner of Writ Petition No. 6174 of 1989.
It appears that disciplinary proceedings were initiated against the petitioner by the order of the Director, Samaj Kalyan, dated 12.11.1993 on the ground that the counter affidavit in writ petition No. 6174 of 1989 was required to be filed by the District Level Officer, whereas, the petitioner filed his own affidavit, without getting the counter affidavit approved from the head of the department.
The Deputy Director of Education, Samaj Kalyan, Jhansi region was appointed as an enquiry officer in the matter. The petitioner submitted reply, and by referring to the communication of the the District Level Officer contended that the filing of the counter affidavit by him was on account of the direction issued by the District Level Officer, which in turn was based on the basis of narrative prepared by the District Level Officer, and vetted by the District Government Counsel ( Civil). The petitioner also emphasised that the filing of the counter affidavit by the petitioner was within the knowledge of the Director, as was clear from the communication sent by the District Level Officer to the Director. The petitioner, therefore, denied the charge and submitted that he had only complied with the directions issued by his superior authority and there was no misconduct committed by him in filing of the counter affidavit. The enquiry officer considered the reply of the petitioner and came to the conclusion that before filing the counter affidavit, the contents of the counter affidavit were required to have been got approved from the departmental head and since this was not done, therefore, the charge levelled against the petitioner was held to be proved in the report of the enquiry officer dated 18.5.2000.
Subsequently, in respect of another allegation ( second charge), the petitioner was placed under suspension on 1.8.2000 on the ground that date of recognition of institution managed by the Samaj Kalyan Vibhag, namely Pandit Deen Dayal Upadhyay Shishu Mandir Maudaha, District Hamirpur, was incorrectly stated in the report of the petitioner, prepared for the purposes of securing grant in aid from the State. A charge-sheet dated 1.8.2000 was also issued substantiating the same allegations. The petitioner submitted his reply to the charge-sheet dated 1.8.2000, denying the allegations levelled against him and placing facts in his defence. In respect of charge-sheet dated 1.8.2000, the enquiry officer submitted his report whereby the enquiry officer came to the conclusion that charges levelled against the petitioner were not proved. The report of the enquiry officer dated 29.5.2001, in this regard, is on record of the writ petition.
A show cause notice was thereafter issued to the petitioner with the allegation that since he had unauthorisedly filed the counter affidavit, as a result whereof, the writ petition of Jai Govind Dwivedi was allowed an a sum of Rs. 1,60,397.70 paise was paid to the writ petitioner Jai Govind Dwivedi, therefore, the petitioner was found guilty of the financial loss caused to the State of the aforesaid amount. In respect of the second enquiry also, the allegations were treated to have been proved and, therefore, the disciplinary authority while issuing the show cause notice, observed that both the charges levelled against the petitioner have been found proved and consequently, notice was issued to the petitioner as to why he be not dismissed from service.
The petitioner replied to the show cause notice, by stating that he has not been supplied the documents demanded by him on 6.11.2001 and reiterated on 22.11.2001. He further submitted that so far as the first charge of unauthorized filing of counter affidavit was concerned, the petitioner contended that the filing of the counter affidavit by him was on account of the specific direction issued by the District Level Officer, which fact was also within the knowledge of the Director and mere fact that the writ petition was allowed, does not constitute any charge of misconduct against the petitioner, particularly, as at no point of time, any mistake in the counter affidavit was detected or pointed out. The petitioner further contended that he was under obligation to carry out the directions of his superiors and he cannot be punished for obeying the order of his superiors.
So far as the second charge was concerned, the petitioner contended that the enquiry officer himself has found the charges not to be proved. He also reiterated the contents of his reply submitted in response to the second charge. The petitioner, therefore, prayed that both the charges against him are liable to be dropped.
The disciplinary authority has observed that so far as the first charge is concerned, the petitioner was guilty of having filed the counter affidavit himself, instead of getting it filed through District Level Officer. So far as the second charge was concerned, it was observed, that although in the enquiry proceedings the charge against the petitioner has not been found to be proved, but the disciplinary authority observed that the recommendation for grant of aid to the institution, without satisfying the condition of recognition for 10 years was illegal and, therefore, the petitioner was guilty for the second charge as well. The disciplinary authority has proceeded to pass the order impugned imposing the three penalties mentioned therein.
I have heard Sri R.M. Saggi, learned counsel for the petitioner, learned Standing Counsel, appearing on behalf of the respondent State and have also examined the materials available on record.
The counsel for the petitioner Sri Saggi has challenged the impugned order on the following counts;
(I)it was contended that so far as the first charge levelled against the petitioner was concerned, the petitioner's act of filing counter affidavit in the writ petition, pursuant to the direction of the District Level Officer within the knowledge of the Director, on the basis of narrative prepared by the District Level Officer, does not constitute any act of misconduct, inasmuch as there was no allegation ever levelled that any false disclosure was made in the counter affidavit and merely because the department lost the case, the petitioner cannot be held liable for the same. Sri Saggi further contended that the petitioner was under obligation to have carried out the directions of the District Level Officer, under whom he was working and the filing of the counter affidavit was an act performed by him under the direction of his superior, for which act he cannot be penalised.
(II)So far as the second charge was concerned, the enquiry officer after consideration of the matter, had clearly exonerated the petitioner of the charge. Admittedly, the grant to the institution had not been approved and the mere submission of report of the petitioner, in the peculiar facts and circumstances, did not amount to any misconduct, and consequent punishment on the second charge also was not legal. It was also pointed out that before grant could be sanctioned for the institution, correct facts were brought to the notice of the authorities by the petitioner as a result whereof no grant was actually sanctioned. No loss, thus, was caused by the report, inadvertently submitted in the matter.
(III)It was then contended by the learned counsel for the petitioner that the enquiry officer in respect of the second charge had clearly exonerated the petitioner. In case the disciplinary authority disagreed with the report of the enquiry officer, he was under an obligation to have recorded reasons and afforded opportunity of hearing to the petitioner, which course was not followed and, therefore, the imposition of penalty on second charge was also illegal.
Learned Standing Counsel, however, has justified the order of punishment and the reasons contained in the matter have been pressed. It has been stated that counter affidavit itself could not have been filed without getting the contents thereof approved by the departmental head, which admittedly was not done and, therefore, the petitioner is guilty of first charge.
So far as the second charge was concerned, the learned standing counsel submitted, the disciplinary authority validly relied upon the observations contained in the report of the enquiry officer to hold the petitioner guilty of the second charge and no further opportunity in the matter was required to be given to the petitioner. Learned Standing Counsel further submits that the department has already taken a lenient view in the matter, which does not require any interference.
Having considered the respective submission of the counsel for the parties, I find that the impugned action of the State in punishing the petitioner, under the facts and circumstances, was wholly unjustified and cannot be sustained.
So far as the first charge levelled against the petitioner of having unauthorisedly filed the counter affidavit is concerned, it is not in dispute that the petitioner was actually working under the subordination of the District Level Officer. The said officer vide letter dated 20.2.1990 addressed to the Chief Standing Counsel, High Court, Allahabad, specifically deputed and authorised the petitioner to file counter affidavit in Writ Petition No. 5449 of 1989 ( Jai Govind Dwivedi Vs. State of U.P. and others). The copy of the said letter was marked to the petitioner with a direction to him to have the counter affidavit filed according to the advice of the Chief Standing Counsel. The preparation of departmental narrative for filing of the reply in the matter by the District Level Officer is also not disputed. In view of such a direction having been issued, it was incumbent upon the petitioner to have contacted the office of the Chief Standing Counsel and to have sworn the affidavit so prepared by the counsel. Further, on perusal of the letter dated 8.3.1990, it transpires that the director was also informed by the District Level Officer that the counter affidavit in the writ petition in question, had been got sweared and filed under the signature of the petitioner. Further communication also revealed that the department, at all point of time, was conscious of filing of the counter affidavit in the matter by the petitioner. The petitioner had merely carried out the direction of his superiors.
From the perusal of the record, it does not appear that the department ever contemplated any action against the District Level Officer or the Director for having got the counter affidavit sworn by the petitioner. The proceedings appear to have been initiated only because the writ petition was allowed by this Court. In such circumstances, I am of the considered opinion that imposition of punishment upon the petitioner, for the first charge in question, was wholly unjustified, arbitrary and cannot be sustained.
So for as the second charge is concerned, admittedly, the enquiry officer did not found the charge proved against the petitioner of having submitted a wrong report, for grant of financial approval to the institution, namely, Pandit Deen Dayal Upadhyay Shishu Mandir Maudaha, District Hamirpur. The petitioner had explained the facts and circumstances, on the basis of which, the enquiry officer found that the charge was not made out against the petitioner. The records further show that even before the institution could be taken on grant list, correct facts were ascertained, and the correct information was forwarded to the department, as a result whereof the institution was actually not taken on the grant-in-aid list.
The argument of the petitioner's counsel that in view of the report of the enquiry officer exonerating the petitioner, the disciplinary authority could not proceed to hold him guilty, unless the petitioner was informed of the reasons and given an opportunity on this count for such disagreement, the disciplinary authority could not proceed with the second charge, also has substance. The materials on record supports the contention of the petitioner's counsel and from the record, it is clear that the disciplinary authority did not record reasons for disagreement with the report of the enquiry officer nor such reasons were intimated to the petitioner. The petitioner also had no opportunity offered on this count. In the absence of such course having been followed, it was not open for the disciplinary authority to have discarded the report of the enquiry officer and proceed to hold the petitioner guilty of the second charge, and thereafter, inflict the punishment. The imposition of punishment upon the petitioner in the second charge also, therefore, cannot be sustained.
The Hon'ble Supreme Court in the case of S.P. Mehrotra Vs. Punjab National Bank and others, reported in (2013) 7 SCC, 251 has clarified the law in this regard. After considering the previous judgments operating in the field, the Apex Court held as under in paras 14 and 18 of the said judgment:-
"14. Kunj Behari Misra itself was the case where the disciplinary authority disagreed with the findings recorded by the enquiry officer on 12.12.1983 and passed the order on 15.12.1983 imposing the punishment and immediately thereafter, the delinquent officers therein stood superannuated on 31.12.1983. In Kunj Behari Misra this Court held as under: (SCC p. 97, para19).
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2).As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.
18. In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes prejudice to the delinquent and, therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL".
The action of the disciplinary authority in proceedings to try the second charge, presuming it to have been proved by the enquiry officer, against the petitioner also shows complete lack of application of mind on part of the disciplinary authority regarding the contents of the report of the enquiry officer.
This Court cannot approve the conduct of the respondents in victimizing the petitioner, on account of mere filing of counter affidavit, if the writ petition was allowed on merits by this Court. This Court while allowing the writ petition of Jai Govind Dwivedi did not adversely comment upon any officer of the State nor at any stage the contents of the counter affidavit were found to have contained any incorrect fact. The petitioner has also retired during the pendency of the writ petition.
In view of the above discussions, I find that the imposition of punishment upon the petitioner was wholly unjustified and is not sustainable in law. The order impugned dated 8.3.2002 is hereby quashed. The writ petition is allowed with costs which is assessed at Rs. 2500/-.
Order Date :- 11.2.2014 n.u.