1. Heard Sri Subhash Chandra Sinha, learned counsel for the petitioner, Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State-respondents and Sri Ashok Shukla, learned counsel has put in appearance on behalf of U.P. Public Service Commission, Prayagraj.
2. The petitioner has impeached the inaction and victimization of the petitioner whereby he was being harassed with effect from the year 1998 for no plausible reasons and despite the specific order being passed in the mater of the petitioner by the Division Bench of this Court at Allahabad on 14.09.2005 in Civil Misc. Writ Petition No.22317 of 2003; Gopal Chandra Sinha vs. State of U.P. & others, the same is rported in 2005 3 UPLBEC 2929, whereby this Court was pleased to quash the disciplinary proceedings pending against the petitioner from the stage of submission of reply of the charge-sheet including the final order of punishment awarded to him on 05.04.2003 permitting the Competent Authority to pass appropriate consequential orders to that effect with further direction that in case the authority comes to the conclusion that any fresh departmental enquiry is still required to be held against the petitioner such fresh enquiry shall be completed within further period of three months, but the Competent Authority did not conduct and conclude the departmental enquiry within the aforesaid stipulated time after issuing a letter dated 13.01.2006 (Annexure No.1 to the writ petition) apprising to the petitioner that the Enquiry Officer has been appointed and the enquiry against him shall be conducted pursuant to the earlier order dated 08.05.1998 and the petitioner was to submit defence reply to earlier charge-sheet dated 08.05.1998. Therefore, the petitioner has assailed the aforesaid orders dated 13.01.2006, 08.05.1998 and the charge-sheet dated 08.05.1998 on the ground that the issue is pending for more than twenty years and the aforesaid exercise has been carried out in violation of the judgment and order dated 14.09.2005 (supra) inasmuch as vide order dated 14.09.2005 the authorities were permitted to complete the departmental proceedings against the petitioner within a period of three months, but the letter dated 13.01.2006 has been issued after about four months, which shows that the Competent Authority has got no respect towards the orders of the Court.
3. Learned counsel for the petitioner has submitted that on account of pendency of the departmental proceedings, as aforesaid, the petitioner has not been paid his consequential benefits.
4. This case has got chequered history, as the brief facts of the case as demonstrated by the learned counsel for the petitioner, are that the petitioner was selected by U.P. Public Service Commission and initially appointed on the post of Forest Ranger in the year 1980. Thereafter, the petitioner was promoted on the post of Assistant Conservator of Forest on 17.07.1997.
5. On 13.06.1998, a charge-sheet dated 08.05.1998 was issued against the petitioner but the relied upon the documents were not enclosed with the charge-sheet and despite the petitioner having demanded the copies of the relied upon documents and other relevant documents but those documents were not provided to the petitioner and the petitioner was compelled to file reply to the charge-sheet.
6. As per learned counsel for the petitioner, absolutely a faulty departmental enquiry was conducted against the petitioner strictly de-horse the rules and the punishment order dated 05.04.2003 was passed by the State Government whereby the petitioner was reverted back from the post of Sub-Divisional Officer Forest to the post of Forest Ranger, which was his original post in the initial pay-scale of the post and recovery of Rs.3,55,321/- sought to be made against him.
7. Feeling aggrieved out of the aforesaid order dated 05.04.2003, the petitioner filed Civil Misc. Writ Petition No.22317 of 2013 before this Court at Allahabad and the same was finally decided by this Court vide judgment and order dated 14.09.2005. Paras-62 and 63 are the operative portion of the judgment and order, the same are being reproduced here-in-below for convenience:-
"62. It is again necessary to mention here that since we have already quashed the disciplinary proceeding pending against the petitioner from the stage of submission of reply of the charge-sheet including the final order of punishment awarded to him, therefore, as a consequence of which the petitioner shall be deemed to be reinstated in service on the post upon which he was working prior to date of impugned order dated 05.04.2003 passed against him. The reinstatement of the petitioner would be for a limited purpose for holding an enquiry if at all desirable in given facts and circumstances of the case as observed. Since in the instant case the petitioner was neither dismissed nor removed from the service as a result of impugned disciplinary proceeding held against him rather he was reverted from the post of Sub-Divisional Officer (Forest) to his original initial post of Forest Ranger and he is still continuing on the aforesaid post of Forest Ranger, therefore, if the Disciplinary Authority proposes to hold further fresh inquiry against the petitioner as indicated here-in-before it is not necessary to place him under suspension unless it is warranted having regard to the facts and circumstances of the case. In case the petitioner is not required to be placed under suspension it is needless to say that he will be permitted to continue on the post of Sub-Divisional Officer (Forest) and also be entitled for the salary on the aforesaid post during the pendency of such fresh disciplinary inquiry to be held against him. In such fresh disciplinary inquiry if the petitioner succeeds and is reinstated the authority shall be at liberty to decide according to law how it will treat the period from the date of reversion till the date of reinstatement and what benefit if any extent of benefit he will be entitled.
63. The petitioner is directed to produce a certified copy fo the order passed by this Court before the Principal Secretary (Forest), Government of U.P., Lucknow along with a copy of Writ Petition with enclosures appended thereto within a period of 15 days from today, the respondent No.1 is directed to pass appropriate and reasoned order within a further period of 2 months from the date of production of a certified copy of the order passed by this Court before it. In case the authority comes to the conclusion that any fresh disciplinary inquiry is still required tobe held against the petitioner such fresh inquiry shall be completed within a further period of 3 months in which the petitioner shall also co-operate."
8. In compliance of the aforesaid order, the opposite parties might have conducted and concluded the departmental proceedings against the petitioner, if it was at all required from the stage of submission of the charge-sheet but the same must have been concluded within the period of three months.
9. Admittedly, in compliance of the order dated 14.09.2005, no requisite exercise for conducting denovo departmental enquiry has been carried out within the stipulated time but after lapse of about four months period the letter dated 13.01.2006 has been issued by the Conservator of Forest, Meerut Circle, Meerut (Annexure No.1 to the writ petition) apprising the petitioner that he has been appointed as an Enquiry Officer and he shall conduct the departmental enquiry against the petitioner. Along with the aforesaid letter dated 13.01.2006, the copy of earlier order dated 08.05.1998 and the charge-sheet dated 08.05.1998 was enclosed directing the petitioner to submit his defence reply within a period of seven days.
10. There is no averment in the order dated 13.01.2006 and also in the counter affidavit filed by the opposite parties that any appliction for seeking extension of time was filed before this Court at Allahabad for the reason that the time, so granted by this Court, had already been expired on 12.12.2005 (three months period), therefore, in view of the above, the order dated 13.01.2006 (Annexure No.1 to the writ petition) is per se illegal.
11. As per learned counsel for the petitioner, just after receiving the letter dated 13.01.2006 the petitioner submitted his reply on 22.01.2006. It is relevant to mentioned here that prior to issuance of the impugned letter dated 13.01.2006, the office memo dated 02.01.2006 was issued apprising the petitioner that the enquiry had already been concluded in the matter of the petitioner, therefore, he may submit his explanation, failing which, the petitioner shall be provided the same punishment which was provided to him vide order dated 05.04.2003 which was quashed by the Division Bench of this Court on 14.09.2005. The aforesaid inaction on the part of the opposite parties is nothing but colourable exercise of powers whereby the petitioner was not afforded an appropriate opportunity of hearing in compliance of the judgment and order dated 14.09.2005 and earlier punishment was proposed.
12. The petitioner submitted his reply on 24.02.2006 in respect of the charge-sheet showing his bonafide explaining the reasons as to why the charges levelled against the petitioner are misconceived and the petitioner may not be held liable for any of the charges. Therefore, the petitioner requested that the proposed punishment against the petitioner may be dropped. Not only the above, the petitioner preferred a letter dated 28.11.2006 to the Conservator of Forest, Meerut Circle, Meerut ventilating his grievance apprising that the pendency of the departmental enquiry against the petitioner is violative of judgment and order being passed by this Court on 14.09.2005 making further request that the matter be closed and the petitioner be paid his consequential benefits.
13. As per learned counsel for the petitioner, the re-enquiry report has been finalized by the Enquiry Officer on 25.01.2008 but the copy whereof has not been provided to the petitioner. Since in the meanwhile four increments of the petitioner were withheld without any final order being passed, the petitioner filed a complaint on 30.01.2009 to the Principal Chief Conservator of Forest.
14. Thereafter, the petitioner came to know that the enquiry report dated 25.01.2008, which was not served upon the petitioner, has been withdrawn and the order of re-enquiry was directed in the month of July, 2009. On the third enquiry in a manner as indicated above the petitioner was again directed to co-operate, then the petitioner declined to co-operate for the reason that even the enquiry in compliance of order dated 14.09.2005 has not been concluded strictly in accordance with law and without taking prior leave from the Court, this third enquiry is absolutely unwarranted and uncalled for. The petitioner has preferred his detailed representation on 30.09.2009 to that effect but without considering the aforesaid request of the petitioner the opposite party No.3 vide order dated 01.02.2010 took a decision to serve the charge-sheet upon the petitioner. However, the Principal Chief Conservator of Forest, U.P. has taken decision to complete the enquiry on previously served upon the charge-sheet.
15. The perusal of the aforesaid facts and circumstances categorically reveals that the authorities have been harassing the petitioner for no cogent reasons by flouting the judgment and order dated 14.09.2005.
16. On 07.10.2011, the duly constituted Comittee has scrutinized the rejected enquiry report dated 25.01.2008 and revived the said enquiry report for affirming the charges proved against the petitioner with lesser amount of damages/loss ignoring the direction being issued by this Court vide judgment and order dated 14.09.2005.
17. On 01.05.2012, the opposite party No.3 sought explanation from the petitioner on scrutiny report dated 07.10.2011 without rectifying the points raised by this Court vide judgment and order dated 14.09.2005. Lastly, the petitioner submitted his explanation / representation dated 19.05.2012 condemning the enqiry report being time barred and third enquiry in the matter being violative of judgment and order dated 14.09.2005.
18. When no decision has been taken by the authority despite the representation/ explanation of the petitioner dated 19.05.2012 and despite the fact that the petitioner approached the authorities concerned for couple of times preferring some more representations, the petitioner filed the present writ petition. Admittedly, no final decision was taken by the authority concerned till the filing of the present writ petition, which was filed on 26.10.2017.
19. The State-respondents has filed the counter affidavit but no plausible explanation has been given in the entire counter affidavit as to why the judgment and order dated 14.09.2005 (supra) passed by this Court in the matter of the petitioner has been flouted. It has no where been explained as to why the impugned letter dated 13.01.2006 has been issued after about four months when the specific and categoric direction of this Court was that to conclude the departmental enquiry against the petitioner, if so required, within a period of three months. Instead of completing the enquiry within a period of three months, the authority concerned in a sheer malicious manner issued a letter dated 13.01.2006 apprising the petitioner that now the departmental enquiry against the petitioner would be conducted and this order has admittedly been issued without filing any application before this Court for seeking extension of time for conducting the departmental enquiry as the same had been time barred. In the entire counter affidavit no plausible reason has been given as to why the third enquiry was initiated against the petitioner in defiance of the judgment and order dated 14.09.2005 and as to why no final decision has been taken by the authorities when the petitioner has submitted his last representation / explanation on 19.05.2012. As a matter of fact, the entire counter affidavit is unable to justify the callous and colourable exercise of powers being executed by the authorities even in derogation and defiance of the judgment and order dated 14.09.2005 passed in the matter of the petitioner.
20. Since the pleadings were complete in the matter, therefore on 01.04.2019, this Court proposed to hear the matter finally. On 01.09.2019, the learned Additional Chief Standing Counsel has apprised the Court that the final decision in the matter of the petitioner has been taken by the Competent Authority by the department in the month of January, 2017 and the said decision has been forwarded to the Public Service Commission, U.P. for its approval on 31.01.2017.
21. On being asked as to why the Public Service Commission, U.P. has not given approval, no proper reply could be given by the counsel for the Commission.
22. On 01.04.2019, this Court has passed a detailed order, which is being reproduced here-in-below for convenience:-
"Heard Sri Subhash Chandra Sinha, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents.
This case has been taken up on the mention being made in the morning and information to that effect has been provided to the learned counsel for all the opposite parties in writing. Despite the aforesaid information being provided to all the counsel for the opposite parties except Additional Chief Standing Counsel no other counsel be of Public Service Commission or be of Union of India is present.
Learned counsel for the petitioner has submitted that he is being harassed by the Department for no cogent reasons and he is running from pillar to post since 2005. Learned counsel for the petitioner has drawn attention of this Court towards a reported judgment passed in his matter which is contained as Annexure no. 2 to the writ petition in the name of Gopal Chandra Sinha vs. State of U.P. and others reported in (2005) 3 UPPLBEC 2929 and the date of judgment is 14.9.2005. The operative portion of the judgment is as under:
"63. The petitioner is directed to produce a certified copy of the order passed by this Court before the Principle Secretary (Forest), Govt. of U.P., Lucknow along with a copy of Writ Petition with enclosures appended thereto within a period of 15 days from today, the respondent No. 1 is directed to pass appropriate and reasoned order within a further period of 2 months from the date of production of a certified copy of the order passed by this Court before it. In case the authority comes to the conclusion that any fresh disciplinary inquiry is still required to be held against the petitioner such fresh inquiry shall be completed within a further period of 3 months in which the petitioner shall also co-operate."
As per learned counsel for the petitioner after the aforesaid judgment being passed the authorities have, however, reinstated the petitioner in service but again started departmental inquiry against him and lastly issued show cause notice on 8.5.2012 which is contained as Annexure no. 24 to the writ petition. Learned counsel for the petitioner has submitted that he has filed reply to the aforesaid show cause notice on 18/19-5-2012, which is contained as Annexure no. 25 to the writ petition, the recital to the effect has been given in para 35 of the writ petition but no proper reply thereto has been given in para 29 of the counter affidavit.
As per learned counsel for the petitioner he is going to retire on 30.4.2019 and no decision has been taken by the Principal Secretary, Department of Forest, w.e.f.18/19-5-2012 when the petitioner has submitted reply / explanation to the show cause notice resultant thereof the petitioner has not been paid his consequential service benefit till date as prayed in prayer nos. (ii) to (v) of the writ petition.
On being confronted the learned Additional Chief Standing Counsel, has drawn attention towards para 11 of the counter affidavit which provides that a letter dated 31.1.2017 has been issued to the Public Service Commission by the Government but no decision has been taken by the Public Service Commission till date and four reminders have also been issued.
The entire counter affidavit does not clarify as to why appropriate decision has not been taken by the Principal Secretary, Forest since 2012 till the end of 2016. Further, the delay of about five years have not been explained in the counter affidavit.
Prima-facie, it appears that this is a case of harassment of employee which this Court cannot tolerate.
List this petition on 10.4.2019. On the said date the Principal Secretary, Department of Forest, U.P., Civil Secretariat, Lucknow shall appear in person to explain as to why no appropriate decision has been taken in the matter of petitioner w.e.f. 18/19-5-2012 when the petitioner has filed reply / explanation to the show cause notice.
It is clarified that if no suitable explanation is given by the Principal Secretary, Forest on the date fixed, appropriate orders may be passed against him. While Principal Secretary shall appear before the Court he shall bring complete record of the matter for the perusal of the Court.
Since the appropriate decision has also been not taken by the Public Service Commission since 31.1.2017, as submitted by the learned Additional Chief Standing Counsel and, therefore, on the next date this Court may fix any date requiring the presence of Secretary, Public Service Commission, U.P., Allahabad but after being satisfied on the explanation of Principal Secretary, Forest.
Since counsel for the Public Service Commission is not present today, therefore, learned counsel for the petitioner shall intimate the counsel for the Public Service Commission in writing about this order."
23. Vide order dated 01.04.2019, the next date was fiexed for 10.04.2019 for appearance of the Principal Secretary, Department of Forest to assist the Court and to explain as to why no appropriate decision has been taken in the matter of the petitioner with effect from 19.05.2012. On 10.04.2019, the Principal Secretary, Department of Forest appeared in person and filed her personal affidavit enclosing therewith the copy of order dated 08.04.2019 whereby the punishment order has been passed against the petitioner. The punishment order dated 08.04.2019 reveals that the Public Service Commission has given approval on the punishment of the petitioner on 05.04.2019, meaning thereby after intervention of this Court vide order dated 01.04.2019 (supra), the Public Service Commission woke-up and the department passed the punishment order dated 08.04.2019.
24. Since the reason of delay about two years at the end of the Public Service Commission was not explained properly, therefore, vide order dated 10.04.2019 the case was listed for 17.04.2019 directing the counsel for the Public Service Commission to file personal affidavit of the officer of the Commission to explain the delay. However, the affidavit of Principal Secretary of the Forest Department could not justify the inordinate delay in taking final decision in the matter of the petitioner. Not only the above, neither earlier counter affidavit nor the personal affidavit of the Principal Secretary of the Department of Forest could justify the delay as well as illegality on the part of the department regarding keeping pending the matter for substantial long period despite the specific direction of this Court vide judgment and order dated 14.09.2005. On 10.04.2019, the Court again passed the detailed order, which is being reproduced here-in-below for convenience:-
"Heard Shri Subhash Chandra Sinha, learned counsel for the petitioner, Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State- respondents, Shri Ashok Shukla, learned counsel for the U.P. Public Service Commission and Shri Vaibhav Krishna holding brief of Shri Deepak Mishra, learned counsel for Union of India.
Dr. Udai Veer Singh, learned Additional Chief Standing Counsel has filed personal affidavit of Ms. Kalpana Awasthi, Principal Secretary, Government of U.P., Environment, Forest & Climate Change, Civil Secretariat, Lucknow, who is present in person. The personal affidavit is taken on record.
The learned Additional Chief Standing Counsel has also filed a Supplementary Counter Affidavit on behalf of opposite party nos. 2, 3 and 4, the same is also taken on record.
In the personal affidavit of the Principal Secretary, the order dated 8.4.2019, which is a punishment order passed against the petitioner has been enclosed as Annexure No.P.A.2.
I have perused the punishment order dated 8.04.2019. Prima facie it appears that the issue of the petitioner has not been taken properly, strictly in accordance with law, inasmuch as, no proper explanation as has been asked vide order dated 1.04.2019 has been given in that order dated 8.4.2019.
I have also perused the original record, which also indicates that there is undue and unexplained delay in taking proper decision in the matter of petitioner for no cogent reason to that effect. The original papers reveal that on 8.10.2013, the decision was taken that if the petitioner, who had filed his representation dated 18/19.05.2012 in English did not submit his representation in Hindi, he would provided one more opportunity and an appropriate order be passed in a week thereafter.
I have noted from the original file that the petitioner had received the letter from the department, wherein he was asked to submit his explanation in Hindi and in reply thereto he had categorically submitted that he is unable to submit his stand/explanation in Hindi. He has also taken aid of the provision of Article 350 of the Constitution, which categorically provide that every person shall be entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be.
It has also been noted that no decision has been taken in the matter of the petitioner, thereafter the matter was sent to the Law Department of the State of U.P. and as per view of the Law Department dated 19.5.2014, which is available in the record that since the petitioner had taken aid to Article 350 of the Constitution and he has shown his inability to submit his representation in Hindi, therefore, any appropriate decision in the matter may be taken. Despite the aforesaid specific opinion of the Legal Department on 19.5.2014, no decision has been taken in the matter of the petitioner which is visible in the impugned order itself. The Chief Conservator of Forest was called his comments vide letter dated 27.8.2014. The perusal of the para 6 of the punishment order reveals that the authority concerned has admitted that the petitioner has submitted his explanation on 18/19.5.2012, thereafter no exercise carried out by the Department and on 27.08.2014, i.e., after two years comments from Chief Conservator of Forest was called and thereafter comments were provided on 30.8.2016 again after two years. These developments, which are available in the punishment order itself reveals that the matter of the petitioner has not been taken up strictly in accordance with law.
In the said personal affidavit, Annexure PA-1 is a letter dated 5.04.2019 preferred by the U.P. Public Service Commission to the Department giving approval on the proposed punishment of the petitioner. The aforesaid letter reveals that the U.P. Public Service Commission has received a letter from the Department on 8.12.2017 and approval has been accorded on 5.04.2019 i.e. more than one year and five months. I find that the Public Service Commission may not keep the matter pending with it without having any cogent reason to that effect, therefore, the Secretary, U.P. Public Service Commission, Prayagraj shall file his personal affidavit indicating the reason as to why one year and five months period has been taken in granting approval on the punishment of the petitioner.
Be that as it may, firstly the State of U.P. has kept the matter pending w.e.f. 18/19.5.2012 in taking decision in the matter and thereafter one year five months period has been consumed by the Public Service Commission in granting approval, I find that both the authorities have not discharged their duties strictly in accordance with law and also in conformity with legal provision, particularly in this case wherein the petitioner has been running from pillar to post w.e.f. 2005.
List this petition on 17.04.2019 at 2.15 P.M to enable Sri Ashok Shukla, learned counsel for the U.P. Public Service Commission to file personal affidavit of the Secretary of the Commission as directed above.
The learned counsel for the petitioner may also file a reply to the supplementary counter affidavit if it is so warranted.
The Officer, who is present in person need not appear in person again on the next date unless called for by the specific order of this Court."
25. In compliance of the aforesaid order, Sri Ashok Shukla, learned counsel for the Commission filed the personal affidavit of Secretary, Public Service Commission, U.P. dated 15.04.2019 and tried to justify the delay in giving approval in respect of the proposal of the State Government, whereby the major punishment has been proposed against the petitioner submitting that the Commission has received a letter dated 08.12.2017 from the State Government seeking approval of the proposed punishment of the petitioner, but prompt decision could not be taken for the reason that in the month of March, 2017 the government was changed and thereafter the Central Bureau of Investigation (C.B.I.) enquiry was initiated in some matters wherein the Commission was to co-operate. Sri Shukla has also submitted that there was shortage of members in the Commission and there were some more administrative works to discharge, therefore, the Commission was over burdened because of which the decision could not be taken well in time. The Secretary of the Commission has stated in the affidavit that the aforesaid delay is bonafide, therefore, the same may be excused and the Secretary has tendered his unconditional apology for the delay caused in granting approval. The aforesaid explanation was not worth accepting for the reason that the Commission was well aware that if the proposed punishment of any employee is not approved with the promptness, he /she shall suffer inasmuch as the Disciplinary Authority would not pass any final order. Therefore, if any employee has suffered for the delay in taking appropriate decision by the Disciplinary Authority, the culpability of the Commission may not be overlooked in the given circumstances. Therefore, I strongly reprimand the callous approach of the Commission keeping the matter pending of the petitioner for approval for more than one year and four months with effect from 08.12.2017 when the approval was sought.
26. Likewise, the inaction on the part of the Disciplinary Authority is strongly reprimanded inasmuch as the Disciplinary Authority has taken for granted the specific direction of this Court being given vide judgment and order dated 14.09.2005 in the matter of the petitioner, even the same judgment has not been assailed by the opposite parties.
27. The perusal of para-63 of the judgment and order dated 14.09.2005 reveals that this Court had given liberty to the opposite parties/ authorities that in any case they come to the conclusion that any stage fresh disciplinary enquiry is still required to be held against the petitioner, such fresh enquiry shall be completed within further period of three months, in which the petitioner shall also co-operate. Admittedly, the enquiry was not concluded within a period of three months and the same has been concluded in the month of May, 2012, thereby a show cause notice dated 08.05.2012 was issued against the petitioner. Admittedly, the petitioner submitted his defense reply to the show cause notice on 18/19.05.2012 but no decision has been taken till 05.04.2019.
28. In this case, it has been noted that for taking appropriate decision the opinion from the law department of the State Government was sought and the law department has given opinion for taking appropriate decision on 19.05.2014 but the punishment against the petitioner was proposed on 31.01.2017 when the letter of proposed punishment was provided to the Commission. However, the Commission is disputing this date as 31.01.2017 saying that approval was sought on 08.12.2017. Be that as it may, about three years period have lapsed in taking the decision. In all the affidavits filed by the opposite parties, no proper explanation has been given.
29. Considering rival submissions of learned counsel for the respective parties, perusing the relevant materials available on record and also perusing the dictum of Hon'ble Apex Court, I am of the considered view that the impugned action of the State Government in not taking appropriate decision in the matter of the petitioner since 2005 and no decision has been taken after the petitioner having submitted his explanation on 19.05.2012 and even no decision has been taken after about three years with effect from the date i.e. 19.05.2014 when the law department of the State of U.P. has given its opinion to take appropriate decision in the matter, is illegal, arbitrary and unwarranted and the same is the harassment of the petitioner. So far as not according approval by the Commission with effect from January, 2017 or 08.12.2017, as the case may be, till April, 2019 is also absolutely unwarranted and uncalled for and the Commission is also instrumental with the State Government for harassing the petitioner for no cogent reason to that effect.
30. The Full Bench of this Court has given its dictum on two issues, which are relevant for the adjudication of the present issue. The Hon'ble Full Bench in re: Abhishek Prabhakar Awasthi vs. The New India Assurance Company Limited and others reported in [2014 (32) LCD 405] has answered the questions in reference. Vide para-2, the question so referred before the Full Bench have been indicated 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)."
31. This Court has answered the aforesaid question vide para-19 of the judgment, which is being reproduced here-in-below:-
"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."
32. In the light of the aforesaid judgment of Hon'ble Full Bench of this Court, I am of the considered view that since the Disciplinary Authority has not filed any application before this Court seeking extension of time, which was granted vide judgment and order dated 14.09.2005, therefore, conducting the enquiry against the petitioner in defiance of the judgment and order dated 14.09.2005, is per se illegal and void ab initio. Had any appropriate application been filed before this Court for seeking extension of time, the Court could have considered and decided the same but this occasion did not come before the Court for the reason that no such application was filed and the Disciplinary Authority has taken the dictum of this Court for granted, which shall not be permissible in any circumstances. No one can be permitted to take the judgment and order of the Courts for granted. Since vide answer No.B, the Full Bench of this Court was of the view that this Court may grant suo-motu extension if the charges are so serious, but in the peculiar facts and circumstances of the issue in question, such suo-motu extension of time cannot be granted for the reason that instead of three months period to conclude the enquiry against the petitioner with effect from 14.09.2005, the final order has been passed on 08.04.2019, i.e. after about thirteen years and seven months.
33. Since I am of the view that initiation of the departmental enquiry pursuant to the letter dated 13.01.2006 and the banking upon the charge-sheet dated 08.05.1998 is not only an illegal exercise but also the same is void ab initio being in definace of the judgment and order dated 14.09.2005 passed by this Court in the matter of the petitioner (supra), therefore, I hereby quash the punishment order dated 08.04.2019 passed by the Principal Secretary, Department of Environment Forest and Climatic Changes, Government of U.P., Civil Secretariat, Lucknow thereby the petitioner has been punished with recovery of Rs.91602=00 and reversion of the petitioner from the post of Assistant Conservator of Forest to the post of Forest Ranger on his basic pay of Forest Ranger on the basis of legal maxim 'SUBLATO FUNDAMENTO CADIT OPUS', which means that if the foundation is removed, the super structure falls.
34. The Hon'ble Apex Court in re: State of Punjab vs. Davinder Pal Singh Bhullar and others connected with Sumedh Singh Saini vs. Davinder Pal Singh Bhullar and others reported in (2011) 14 SCC 770 has considered the aforesaid maxim in paras-107 to 111, which are being reproduced here-in-below:-
"107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case.
108. In Badrinath v. State of Tamil Nadu & others, AIR 2000 SC 3243; and State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr,, (2001) 10 SCC 191, this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle is applicable to judicial, quasi-judicial and administrative proceedings equally.
109.. Similarly in Mangal Prasad Tamoli (dead) by Lrs. v. Narvadeshwar Mishra (dead) by Lrs. & Ors., (2005) 3 SCC 422, this Court held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside.
110. In C. Albert Morris v. K. Chandrasekaran & Ors, (2006) 1 SCC 228, this Court held that a right in law exists only and only when it has a lawful origin. (See also: Upen Chandra Gogoi vs. State of Assam & Ors.,, (1998) 3 SCC 381; Satchidananda Misra v. State of Orissa & Ors.,, (2004) 8 SCC 599; Regional Manager, SBI v. Rakesh Kumar Tewari,, (2006) 1 SCC 530; and Ritesh Tewari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823).
111.. Thus, in view of the above, we are of the considered opinion that the orders impugned being a nullity, cannot be sustained. As a consequence, subsequent proceedings/ orders/ FIR/ investigation stand automatically vitiated and are liable to be declared non est.
35. Therefore, considering the facts and circumstances of the issue, perusing the material available on record and dictum of the Hon'ble Apex Court in re: Davinder Pal Singh Bhullar (supra), I am of the considered view that the order of initiation of the disciplinary proceedings against the petitioner vide order/ letter dated 13.01.2006 passed by the Conservator of Forest/ Regional Director, Meerut Circle, Meerut, which was depending upon the charge-sheet dated 08.05.1998 being nullity, illegal, arbitrary and uncalled for, cannot be sustained . As a consequence, the subsequent and consequential order dated 08.04.2019, the punishment order stands automatically vitiated in view of the legal maxim 'SUBLATO FUNDAMENTO CADIT OPUS', and is liable to be declared nonest.
(i) Accordingly, the writ in the nature of certiorari is issued thereby the disciplinary proceedings initiated vide order dated 13.01.2006 on the basis of earlier orders dated 08.05.1998 and the charge-sheet dated 08.05.1998 issued by and on behalf of opposite party No.3, which are contained as Annexure No.1 to the writ petition collectively, are hereby quashed.
(ii) A writ, in the nature of certiorari is also issued quashing the order dated 08.04.2019 passed by the Principal Secretary, Government of U.P., Environment, Forest and Climatic Change, Civil Secretariat, Lucknow, thereby the petitioner has been punished directing for recovery of Rs.91,602/- and reversion of the petitioner from the post of Assistant Conservator of Forest to the post of Forest Ranger on the basic pay of Forest Ranger, which is contained as Annexure No.SCA-2 with the supplementary counter affidavit dated 10.04.2019.
(iii) A writ in the nature of mandamus is issued commanding the opposite parties to make payment of salary to the petitioner including the benefits of withheld increments, withheld ACPs under 5th, 6th and 7th pay commission with salary of 57 months pending since 01.03.1999 on the basis of charge-sheet dated 08.05.1998, which has been quashed by this order.
(iv) A writ of mandamus is also issued commanding the opposite parties to provide him all consequential service benefits treating him as Assistant Conservator of Forest, the post on which, the petitioner has been discharging his duties with effect from his promotion, which made on 17.07.1997.
(v) Since the colourable exercise of the powers has been noticed by this Court inasmuch as the judgment and order dated 14.09.2005 passed in the case of the petitioner has been deliberately and intentionally ignored and the said judgment has not been obeyed in its letter and spirit and undue, unexplained and in ordinate delay has been committed by the opposite parties in concluding the issue in question by passing the order dated 08.04.2019 after about more than thirteen years and seven months, therefore, in lieu of imposing exemplary cost upon the opposite party Nos. 3 & 4 while allowing this writ petition, I hereby direct the opposite party No.3 to make payment of interest at the rate of 12% per annum to the petition on his all consequential service benefits with effect from the date when those benefits were due, till the date of its actual payment.
(vi) The opposite parties are directed to make compliance of the aforesaid order within a period of two months from the date of production of a certified copy of this order, failing which, the petitioner shall be entitled for the interest on the arrears of service benefits at the rate of 18% per annum.
36. Accordingly, the writ petition is allowed.
37. No order as to costs.
Order Date :- 25.4.2019 SHF/Suresh [Rajesh Singh Chauhan,J.]