1. Heard Sri H.G.S. Parihar, learned Senior Advocate assisted by Ms. Meenakshi Singh Parihar, learned counsel for the petitioner, Sri Manjive Shukla, learned Additional Chief Standing Counsel for the State-respondent and Sri R.K. Upadhyay, learned counsel for respondent no.4.
2. In the proposed order, notices to opposite party nos. 5 and 6 are dispensed with as no prejudice is caused to respondent nos. 5 & 6 by means of the impugned order.
3. The order under challenge is a punishment order dated 01.10.2020 passed by the Additional Chief Secretary, Cooperative Department, Government of U.P., Lucknow awarding major punishment to the petitioner reverting him from the post of Additional Commissioner/Additional Registrar to the post of Joint Commissioner/Joint Registrar in the minimum pay scale withholding two increments with cumulative effect.
4. Counter affidavit and rejoinder affidavit have been exchanged, but Sri Manjive Shukla, learned Additional Chief Standing Counsel has submitted that for the redressal of his grievance the present petitioner has got two alternative remedies and before exhausting those two remedies his writ petition under Article 226 of the Constitution of India may not be entertained.
5. As per Sri Manjive Shukla, since the order impugned has been passed after due approval from the Governor, therefore, the petitioner may very well file either revision under Rule 13 or review under Rule 14 of UP Government Servant (Discipline & Appeal) Rules, 1999. Secondly, the alternative remedy to approach the UP State Public Services Tribunal, Lucknow is also available to the petitioner. As per Sri Manjive Shukla, both the aforesaid grounds have been taken in the counter affidavit.
6. I am also of the considered opinion that the alternative statutory remedy may not be circumvented and the person/employee concerned should first avail the alternative statutory remedy only then he should approach this Court under Article 226 of the Constitution of India.
7. In the present case, Sri H.G.S. Parihar, learned Senior Advocate has submitted that the petitioner has been discriminated from the very beginning i.e. from the date when the petitioner was placed under suspension on 04.10.2018. Despite the orders being passed by this Court neither the inquiry was concluded within time nor the final order has been passed well in time, therefore, this Court passed the order dated 29.04.2019 allowing the Writ Petition No. 9754 (S/S) of 2019 (Rabi Kant Singh vs. State of U.P. and others) setting aside the suspension order permitting the competent authority to take final decision in the matter.
8. Sri Parihar has submitted that the law is settled that if the competent authority has decided to award major punishment to the employee, the full fledged departmental inquiry should be conducted and concluded strictly in accordance with law by affording an ample opportunity of hearing in two stages. First stage is at the stage of inquiry proceedings wherein after receiving the defence reply to the charge-sheet the date, time and place shall be fixed for oral inquiry and the onus would be upon the authority to prove the charges following the principles of preponderance of the probabilities. The Hon'ble Apex Court in catena of cases has held that no major punishment order can be passed on the basis of defence reply or supplementary defence reply to the charge-sheet but the same can be passed after conducting the oral inquiry to prove the charge by fixing date, time and place. The second stage would be, the incumbent employee shall be provided the copy of the inquiry report and explanation shall be called apprising to subjective satisfaction of the disciplinary authority regarding the proposed punishment and the incumbent may file his explanation showing his bona fide. After considering the aforesaid explanation, the disciplinary authority may pass appropriate orders.
9. In the present case, the learned counsel for the petitioner has drawn the attention of this Court towards para 26 & 27 of the writ petition wherein he has categorically indicated that after submitting the defence reply to the charge-sheet no date, time and place was fixed to conduct oral inquiry, however, one letter dated 26.12.2018 was issued seeking representation of the petitioner on any working day and the petitioner submitted his explanation on 31.12.2018 personally to the Inquiry Officer. Those documents have been enclosed as Annexure nos. 15 & 16 to the writ petition. By means of explanation dated 31.12.2018, the petitioner has again categorically denied the charges levelled against him and submitted his bona fide enclosing therewith some documents on that Sri Parihar has rightly submitted that the aforesaid reply may be treated at best as supplementary defence reply but this letter dated 31.12.2018 of the petitioner may not be treated as if he appeared before the Inquiry Officer to examine/cross-examine the material/person if any. Since, the date, time and place for oral inquiry is fixed to examine/cross-examine the relevant material and person, however, said exercise has not been carried out by the Inquiry Officer.
10. Sri Manjive Shukla has drawn the attention of this Court towards para 24 of the counter affidavit wherein the recital has been given that the Inquiry Officer has wrote a letter dated 26.12.2018 to the petitioner fixing date for 31.12.2018 and the petitioner appeared before the Inquiry Officer but did not make any request for producing any material/witness. However, no such date has been fixed for the petitioner to appear before the Inquiry Officer, as considered above.
11. I am of the considered opinion that the letter dated 26.12.2018 may not be treated as if any date, time and place was fixed for oral inquiry and preferring the representation by the petitioner dated 31.12.2018 on the letter dated 26.12.2018 may not be sufficient to treat as the date for oral inquiry. Therefore, for all practical purposes no date, time and place was fixed to conduct oral inquiry. Therefore, in view of the above instead of relegating the matter to the Public Service Tribunal for filing reference petition as it would be a futile exercise, I hereby set-aside/quash the order dated 01.10.2020 remanding back the issue before the disciplinary authority to direct the Inquiry Officer to conduct the inquiry from the stage of defect in terms of para 09 of the judgment of Hon'ble Apex Court rendered in re:- Chairman, LIC of India & others vs. A. Masilamani [reported in (2013) 6 SCC 530] which reads as under:-
"9. It is a settled legal proposition, that once the Court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the Court cannot reinstate the employee. It must remit the concerned case to the disciplinary authority, for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide: Managing Director, ECIL, Hyderabad etc.etc. v. B. Karunakar etc.etc., AIR 1994 SC 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls & Ors., (2002) 10 SCC 293; U.P. State Spinning C. Ltd. v. R.S. Pandey & Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex- Inspector, AIR 2009 SC 161)."
12. It is further directed that in case the departmental inquiry is conducted against the petitioner from the stage of defect in terms of the judgment of Hon'ble Supreme Court in re:- Chairman, LIC of India (supra), the same shall be conducted and concluded strictly in accordance with law by affording him ample opportunity of hearing subject to proper cooperation of the petitioner with the inquiry proceedings, inasmuch as, no inquiry proceedings/departmental proceedings may be concluded to its logical conclusion unless the employee cooperates with the inquiry proceedings. The inquiry shall be concluded within a period of four months. Thereafter, the disciplinary authority may pass appropriate orders strictly in accordance with law as directed above with expedition without keeping the issue pending for unlimited period.
13. Consequences to follow.
14. The writ petition is, accordingly, allowed. No order as to costs.
Order Date :- 16.8.2021 Vikas/-
[Rajesh Singh Chauhan,J.]