(1) Heard Sri S.K. Kalia, learned Senior Advocate, assisted by learned Advocates Sri Srideep Chatterjee and Sri Sameer Kalia, for the petitioner and learned State Counsel for the respondents.
(2) The present writ petition has been preferred for issuing a direction to declare the continuance of disciplinary proceeding against the petitioner a nullity in the eyes of law and further to direct the respondents to open the sealed cover of the selection of the petitioner and grant him regular promotion on the post of Additional Director of Agriculture in pursuance of recommendation of the Departmental Promotion Committee held on 28.05.2020 and with a further direction to consider the case of the petitioner for regular promotion on the post of Director of Agriculture.
(3) Learned counsel for the petitioner has submitted that vide order dated 16.11.2018, the petitioner was placed under suspension and by a separate order of the same date a departmental enquiry was initiated against him. Against the suspension order dated 16.11.2018, the petitioner preferred a Writ Petition No.3609 (S/S) of 2018 (Dr. Pankaj Tripathi vs. State of U.P. and others). The said writ petition has finally been decided by this Court vide its judgement and order dated 31.1. 2019, and directed the respondents to conclude the disciplinary proceedings initiated against the petitioner by passing the final order within a period of three months from the date of production of a certified copy of the order. The petitioner had served the copy of the order and judgement dated 31.01.2019 upon the respondent on 6.2.2019. As from the date of service of judgement, three months period expired on 6.5.2019 but by that time neither the enquiry was concluded nor any order was passed by the Disciplinary Authority as directed by this Court. So disciplinary proceeding after the expiry of three months of period, could not proceed further, without extension of time by the Court to conclude the enquiry as per the Full Bench decision of this Court in the Case of Abhishek Prabhakar Awasthi vs. New India Assurance Company Ltd. and other, passed in Writ Petition No.7179 (S/S) of 2009 decided on 4.12.2013 and the decision of Hon'ble the Supreme Court in the case of Suresh Chandra Vs. State of M.P.
(4) It is further submitted that after the expiry of the aforesaid period respondents are duty bound to open the sealed cover of the recommendation of the Departmental Promotion Committee held on 28.05.2020 for regular promotion of the petitioner on the post of Additional Director and thereafter consider for regular promotion on the post of Director.
(5) On the other hand, learned counsel for the State has submitted that by the Full Bench decision it has been provided that the court considering the nature and complexity of the charge; the efforts which have been made for conclusion of the enquiry; the reasons for the delay and the conduct of the parties in the course of disciplinary proceedings can suo motu extend the time for completion of disciplinary proceedings. It is further submitted that the delay was caused due to Covid 19 Pandemic, as a result of which the offices were closed from last week of March, 2020 till 1st May, 2020 and secondly, that a show cause notice dated 27.10.2020 has been served upon the petitioner alongwith the enquiry report but the same has not been replied by the petitioner till date. So the delay caused is beyond the control of the Disciplinary Authority and looking into the seriousness of the charges, this Court may suo motu extend the period for concluding the enquiry.
(6) After hearing the learned counsel for the respective parties, it is found that both the parties placed reliance on the Full Bench decision (Supra). Full Bench decision lays down mainly two propositions, firstly, that an application for extension of time must be moved by the employer after the expiry of period stipulated by the High court and, secondly, the High Court can also suo motu extend the period after assessing the nature and complexity of charges; conduct of the parties in the departmental proceedings. The petitioner relied on the first proposition and the State relied on the second proposition.
(7) In the case in hand, this Court vide its judgment dated 31.01.2019 had granted three months time for concluding the enquiry and passing of final order by the Disciplinary Authority. Admittedly, three months period expired on 6/7.05.2019, enquiry report was submitted on 11.09.2019 i.e. after 4 months. Show cause notice was issued on 27.10.2020 after more than one year from the date of submission of enquiry report. The respondent/ employer had neither challenged the judgement dated 31.01.2019 nor moved any application for extension of time at any stage. Hence, in absence of application for extension of time, any proceedings thereafter is illegal and invalid.
(8) As far as contention of State Counsel relying upon the Full Bench decision that this Court can itself suo motu extend the period is correct but the Court would examine the complexity of charges and efforts made by the authorities to conclude the enquiry. The present case does not fall within those parameters as this Court in its judgement dated 31.01.2019 after the perusal of records has given a specific findings about the charges in paragraphs number 30 & 34 which are quoted hereinbelow.
"30: On perusal of the material on record, it is established that there is no allegation against the petitioner that he has embezzled certain amount of the department. It is also not the case of the respondents that certain financial irregularity has been done to embezzle the amount. The only allegation against the petitioner is that he approved the rate submitted by the Aligarh region in regard to the invited tender to the proposed firm by the regional office. For this, the respondent No.2, Director of Agriculture was empowered to grant approval to the proposal submitted by the regional office, thus, the only allegation is that he has usurped the power of the Director in grant of approval to the proposal submitted by the Aligarh region.
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34: Neither in the counter affidavit nor in the record produced before this Court, there is any allegation against the petitioner, which is so serious in nature which amounts to impose major penalty to the petitioner."
(9) The said findings have never been challenged by the respondents and this Court does not find any reason to differ from the same. The respondents have not disputed the same even in the counter affidavit filed in the present case, hence, the reliance placed by the learned State Counsel on Para 13 of the Full Bench decision that the period of time can be extended, suo motu by this Court on plea that the charges are of serious nature is not attracted in the present case.
(10) As far as the conduct of the parties in concluding the departmental proceedings is concerned, it is clear from the record the petitioner had not caused any delay rather made representation for expeditious conclusion of the departmental enquiry and when no efforts were made by the respondents, the petitioner preferred the present writ petition on 12.10.2020. The respondents in their counter affidavit very vaguely have made an averment that due to Covid 19 Pandemic the offices were closed from March, 2020 to May 2020 i.e. about three months period. The enquiry report was submitted in September, 2019. The Offices were closed due to Covid-19 pandemic from March, 2020, so there were five months period in between. The offices were opened in May, 2020, whereas the show cause notice was issued after five months of the opening of the offices and for that no explanation is given. In the counter affidavit, from the date of service till the service of show cause notice dated 28.10.2020, the total period is of 20 months and there is of an explanation for delay only for a period of three months, which shows that neither any endeavor nor efforts made by the respondents to conclude the departmental proceedings and pass final order as per direction of this Court vide its judement dated 31.01.2019. So the explanation of delay as stated is also not acceptable.
(11) Under these circumstances, this court finds that neither the enquiry was concluded, nor any order was passed by the Disciplinary Authority, as directed by this Court vide its judgement dated 31.01.2019 within a period of three months, which had already expired on 6.5.2019. No application was ever made in the court at any stage of proceeding by the State praying for extension of time. Hence, further proceedings after 6.5.2019 are not lawful and valid as per the decision of this Court (Supra).
(12) In view of discussion held above, the disciplinary proceedings against the petitioner are quashed. The respondents are directed to open sealed cover of the petitioner and accordingly implement the recommendation of Departmental Promotion Committee held on 28.05.2020 for regular promotion on the post of Additional Director and further consider the case of the petitioner for regular promotion on the post of Director, if found eligible for the same. The aforesaid exercise shall be completed within a period of four weeks from the date of a certified copy of this order is served on the Respondents.
(13) With the directions made hereinabove, the writ petition is allowed.
Order Date :- 29.1.2021 S. Kumar