1. Heard Sri Vivek Raj Singh, learned Senior Advocate assisted by Sri Rajendra Kumar, learned counsel for the petitioner and Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel for the State-respondents.
2. The order under challenge is an order dated 02.06.2020 passed by the Under Secretary, Department of Vigilance, Anubhag-3, Government of U.P., Civil Secretariat, Lucknow, which is contained as Annexure No.1 to the writ petition, initiating an open vigilance enquiry against the petitioner on the allegation of corruption having disproportionate assets beyond known source of income.
3. The petitioner has however not assailed the Annexure No.2, which is a letter dated 13.04.2018 preferred by the Joint Secretary, Department of Appointment, Anubhag-7, Government of U.P. addressing to the Under Secretary, Vigilance, Anubhag-3, Government of U.P., whereby the permission/ consent was granted for conducting vigilance enquiry against the petitioner.
4. The brief facts of the case are that the petitioner was erstwhile member of Provincial Civil Services and promoted in the year 2007. On 31.07.2016, the petitioner retired from the post of Vice-Chairman, Ayodhya Vikas Pradhikaran, Ayodhya.
5. The disciplinary proceeding was initiated against the petitioner on 16.09.2016 and the charge-sheet was served upon him on 30.09.2016. He submitted his defence reply to the charge-sheet on 24.11.2016. The enquiry concluded against the petitioner on 05.12.2017 and Enquiry Officer found Charge No.2 is partially proved. On 16.01.2018, the petitioner was served a show cause notice providing him findings of enquiry report and the petitioner submitted his reply to the show cause notice on 24.01.2018.
6. On 20.02.2018, the Disciplinary Authority completely exonerated the petitioner, however, in the meantime, vide order dated 12.01.2018 issued by the Under Secretary, Vigilance Department, Anubhag-3, Government of U.P., the vigilance enquiry against the petitioner started on the allegation that the petitioner has acquired disproportionate assets by corruption. On 07.03.2018, the Under Secretary, Department of Vigilance has issued a letter to the Joint Secretary, Department of Appointment, Government of U.P., making request that the details of the assets of the petitioner, so furnished to the department, be provided for conducting vigilance enquiury. In the aforesaid letter dated 07.03.2018, it has been categorically indicated that there are serious allegations against the petitioner regarding disproportionate assets indicating the details of some assets of the petitioner.
7. Replying to the aforesaid letter dated 07.03.2018 the Joint Secretary of the Department of Appointment apprised the Under Secretary of Vigilance Department that after being promoted in the year 2007 the petitioner has not furnished the property details to the department. Further, if any vigilance enquiry is conducted against the petitioner, the government shall have no objection to that effect.
8. Pursuant to the aforesaid correspondences an open vigilance enquiry has been initiated against the petitioner by means of impugned order dated 02.06.2020.
9. The sole ground to assail the aforesaid order dated 02.06.2020 is that an open vigilance enquiry has been initiated on the same set of facts, which have already been considered by the Disciplinary Authority so the same may not be permitted to be conducted. The petitioner has however not assailed the order dated 13.04.2018 whereby the permission to conduct open vigilance enquiry has been granted.
10. Sri V. R. Singh, learned Senior Advocate for the petitioner has submitted that the State Government is reversing its own decisioin taken in the disciplinary proceedings against the petitioner which has attained finality. Therefore, it is a futile and punitive exercise just to harass and humiliate the petitioner for no cogent reason.
11. Sri V.R. Singh has placed reliance of the judgment of the Division Bench of this Court rendered in re: Writ Petition No.112 (S/B) of 2004; Dr. Dinesh Chandra Mishra vs. State of U.P. & others by submitting that in the identical circumstances the Division Bench of this Court considering the decision of Hon'ble Apex Court rendered in re: The State of Assam and another vs. J.N. Roy Biswas reported in AIR 1975 SC, 2277 has held that if the departmental enquiry has been concluded against an employee, the said employee may not be subjected to further enquiry in the same issue unless there is some fresh or new material is found out of which no enquiry has been conducted.
12. Sri V. R. Singh, learned Senior Advocate has further submitted that the aforesaid decision of the Division Bench in re: Dr. Dinesh Chandra Misra (supra) has attained its finality inasmuch as the Hon'ble Apex Court has rejected the appeal as well as the review of the State Government.
13. Sri V. R. Singh, learned Senior Advocate has also placed reliance upon the decisions of Hon'ble Apex Court rendered in re: Union of India and another vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28, Radhey Shyam Kejriwal vs. State of West Bengal and another reported in (2011) SCC OnLine SC 363 and Ashoo Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI and another reported in (2020) 9 SCC 636 supporting this aforesaid contention that if the departmental enquiry has already concluded, the employee should not be subjected to further enquiry on the same charges.
14. Sri V. R. Singh, learned Senior Advocate has referred para-18 of Kunisetty Satyanarayana (supra), which reads as under:-
"18. We agree with the learned counsel for the respondent that if the charge which has been levelled under the memo dated 23.12.2003 had earlier been eqnuired into in a regular enquiry by a competent authority, and if the respondent had been exonerated on that very charge, a second enquiry would not be maintainable. However, in the present case, we are of the opinion that the charges levelled against the respondent under the charge memo dated 23.12.2003, had not been enquired into by any authority and he had not been exonerated on those charges. Hence, we are of the opinion that it is not a case of double jeopardy."
15. In the case of Radheshyam Kejriwal (supra), para-38 has been referred, which reads as under:-
"38. The ratio which can be culled out from these decisions can broadly be stated as follows :-
(i) Adjudication proceeding and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceeding is not necessary before initiating criminal prosecution;
(iii) Adjudication proceeding and criminal proceeding are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to continue underlying principle being the higher standard of proof in criminal cases."
16. Sri V. R. Singh, learned Senior Advocate has submitted that in the case of Ashoo Surendra Nath Tewari (supra), the Hon'ble Apex Court has followed the dictum of Radheshyam Kejriwal (supra) referring paras-13, 14 & 15, which read as under:-
"13. It finally concluded: (Radheshyam Kejriwal case, SCC p.598, para 39).
"39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."
14. From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated.
15. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22.12.2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code."
17. Per contra, Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel has submitted that by means of this writ petition the petitioner has assailed the order dated 02.06.2020 by which a decision has been taken by the State Government to initiate an open enquiry against the petitioner. An open enquiry is more or less a fact finding inquiry to collect the relevant informations from the employee strictly in terms of the modalities indicated under Section 3 of U.P. Vigilance Establishment Act, 1965 (here-in-after referred to as the "Act, 1965") read with notification issued on 29.08.1977. For convenience, Section 3 of the Act, 1965 is being reproduced here-in-below:-
"3. Offences to be investigated by the Vigilance Establishment.
The State Government may, by notification in the Gazette, specify the offences or clauses of offences which are to be investigated by the Uttar Pradesh Vigilance Establishment."
18. In exercise of powers confer by sub-section (2) of sub-section (3) of Section 2 and sub-section (1) of Section 4 of the Act, 1965, the Governor was pleased to issue the notification dated 29.08.1977 regulating the working and conduct of inquiries by the U.P. Vigilance Establishment. Clause 2 of the aforesaid notification describes functions of the Vigilance Establishment. For brevity, clause 2 is being reproduced here-in-below:-
"2. Functions- The Vigilance Establishment shall perform the following functions:
(a) Keep the Government informed of all the cases of corruption, bribery, misconduct, misbehavior and other malpractice involving public servants that come to its notice;
(b) Collect intelligence on its own initiative or on the orders of Government in the Vigilance Department relating to corruption of any individual public servant or public servants belonging to a department, class or category;
(c) Make inquiries, secret or open, and investigations into cases of corruption, bribery, misconduct, misbehavior or other malpractices, that may be referred to it from time to time by the Government in the Vigilance Department. This condition shall not apply to trap cases against non-gazetted government servants and public servants of similar rank covered by *order No.UPA-7/65-Order/76 (Fifth), dated August 16, 1976;
Provided that -
20. Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel has further submitted that the allegation of the petitioner that open vigilance enquiry initiated against the petitioner is the second enquiry in the same charges which have already been adjudicated under the departmental trial is misconceived inasmuch as the departmental trial/ proceedings were instituted against the petitioner by issuing the charge-sheet wherein only two charges were levelled, first the petitioner has allegedly exploited one Computer Operator Sri Ashok Kumar and compelled him to recharge his personal Mobile Phone and make payment of his house tax, electricity charges and other miscellaneous domestic expenses. The second charge reads that one Sri Halim Pappu and Sri Manoj Jaiswal made complaint against the petitioner that petitioner has accumulated money by making corruption and the said allegation may be verified from the Saving Bank Accounts, the details thereof has been given in such complaint. The enquiry was conducted and as per the findings of the Enquiry Officer, charge No.1 could not be proved, however, in respect of charge No.2 this much has been proved that family members/ Co-account Holders have made transactions, therefore, the petitioner should have taken care of such transactions made by the family members and Co-account Holders.
21. Sri Shukla has also submitted that the wife and children of the petitioner were the Co-account Holders with the petitioner. The Disciplinary Authority has passed the final order on 20.02.2018 whereby despite taking cognizance of the fact that charge No.2 was partially proved against the petitioner but the departmental enquiry was finalized without awarding any punishment to the petitioner.
22. Sri Shukla has submitted that the aforesaid order dated 20.02.2018 passed by the Disciplinary Authority is in violation of Rule 9 (2) of the Government Servant (Discipline & Appeal) Rules, 1999 which categorically provides that the Disciplinary Authority shall, if disagreed with the findings of the Enquiry Officer on any charge, records its own findings thereof for the reasons to be recorded. Therefore, he has submitted that despite the Charge No.2, which was serious in nature, having been proved partially, the Disciplinary Authority if was not in agreement with the findings of the Enquiry Officer, he must have recorded the reasons in the order finalizing the departmental proceedings without awarding any punishment. Since unexplained transaction was made in the accounts wherein either the wife or the children of the petitioner were Co-account Holders, therefore, either the petitioner should have been called fresh explanation to that effect considering the seriousness of the charge or any appropriate punishment should have been awarded to the petitioner. Even if the Disciplinary Authority was of the view that despite the aforesaid facts and circumstances no punishment would be awarded to the petitioner, the specific reasons should be indicated in the final order in terms of Rule 9 (2) of the Rules, 1999.
23. Sri Shukla has further referred Rule 9, sub-rule 3 of the Rules, 1999 which provides that the government servant may be exonerated in case the charges are not proved, but in the present case, one serious charge was partially proved against the petitioner, therefore, the petitioner could have not been exonerated from the charge.
24. Sri Shukla has further drawn attention of this Court towards the letter dated 12.01.2018 preferred by the Vigilante Department addressing to the Additional Chief Secretary, Department of Appointment seeking approval/ consent for conducting vigilance enquiry against the petitioner. Further, the letter dated 07.03.2018 was issued by the Vigilance Department to the Secretary of the Appointment Department seeking the details of the petitioner regarding his movable and immovable properties. As per the information, so received to the Vigilance Department, the petitioner had accumulated huge properties at Lucknow having three storied house casting about crores, he is having six Bank Accounts with his wife and children having deposited huge amount, he has purchased one Flat at NOIDA having its value in crores after selling out, one property at Faizabad and he is having one CRETA Car worth Rs.15:00 lakhs in the name of his wife.
25. As per Sri Shukla learned Additional Chief Standing Counsel, the aforesaid four charges are entirely different from the charge in which the departmental enquiry was conducted against the petitioner wherein he was exonerated by the Disciplinary Authority despite the second charge having been proved against him partially.
26. Sri Shukla has lastly submitted that initiation of vigilant enquiry is well within the forecorners of law and the said enquiry being the fact finding enquiry, therefore, only after completion of the aforesaid fact finding enquiry it will be ascertained and decided that whether any formal / regular enquiry is necessary to be initiated against the petitioner or not. Referring the dictum of Hon'ble Apex Court in re: Tata Cellular vs. Union of India reported in (1994) 6 SCC 651 has submitted that the scope of judicial review into administrative decision is not permitted. The Hon'ble Apex Court has held that the Court does not sit as a Court of appeal but merely reviewed the manner in which the administrative decision was made. The Court does not have expertise to correct the administrative decision. If the review of administrative decision is permitted, it will be substituting its own decision, without the necessary expertise which itself may be fallible.
27. Sri Shukla has therefore submitted that in the given circumstances, as submitted above, there is no infirmity or illegality in the impugned order dated 02.06.2020, so the writ petition may be dismissed with cost.
28. Having heard learned counsel for the parties and having perused the material available on the record as well as the case laws, so cited by the respective parties, I am of the considered opinion that initiation of open vigilance enquiry vide order dated 02.06.2020 has been made in terms of the provisions of the Act, 1965 read with notification dated 29.08.1977.
29. I have noted that the departmental enquiry was conducted and concluded against the petitioner for two charges, as considered above, and both the charges are different from the allegations levelled against the petitioner, for which, the open vigilance enquiry has been initiated. For sake of repetition, the enquiry against the petitioner was conducted for examining two charges. First charge is that the petitioner had exploited one Computer Operator serving in Ayodhya-Faizabad Development Authority when the petitioner was serving as Vice-Chairman, Ayodhya-Faozabad Development Authority. As per the complaint of the said Computer Operator, the petitioner has compelled such employee to deposit the house tax, electricity charges, personal and domestic expenses, recharge the Mobile Phone, to make payment of other miscellaneous expenses of the petitioner etc. Whereas the second charge is based on the complaint of Sri Halim Pappu and Sri Manoj Jaiswal whereby both the persons apprised the department that the petitioner has accumulated huge property by making corruption, the details of Saving Banks Accounts were also provided. The Enquiry Officer after conducting enquiry found that the second charge is partially proved inasmuch as the petitioner could not explain the reasons as to how his joint accounts with his family members have been operated/ transacted without his information. However, the Disciplinary Authority despite taking cognizance of the aforesaid facts indicated by the Enquiry Officer exonerated the petitioner from the said charge without assigning specific reasons in violation of Rule 9 (2) (3) of the Rules, 1999. The aforesaid rules categorically provide that the employee can be exonerated if the charges are not proved and in case the charge is proved then while exonerating such employee the Disciplinary Authority shall assign specific reason as to why he is exonerating the employee concerned. In the exoneration order dated 20.02.2018 (Annexure No.8) no reasons of any kind whatsoever have been assigned, therefore, to that extent the final order dated 20.02.2018 is unwarranted and uncalled for.
30. I have also noted that the material available with the Vigilance Department, pursuant to which the open vigilance enquiry has been initiated, is entirely different from the charges which have been examined through the departmental trial. The open vigilance enquiry has been initiated to investigate mainly four charges, first, the petitioner has got three storied big house at Lucknow having value of one crores. Second, the petitioner has got six Bank Accounts, of which, the Joint Account Holders are either his wife or his children wherein huge amount has been deposited and transacted. Third, the petitioner has purchased one Flat at NOIDA of the value of crores after selling out his property at Village-Asarafpur Gangrela, Tehsil-Rudauli, District-Faizabad in 52 lakhs. Fourth, the petitioner has purchased one CRETA Car worth Rs.15:00 lakhs in the name of his wife. All the aforesaid four charges are absolutely different from the charges inquired by the Enquiry Officer through the departmental trial.
31. Therefore, in view of the above, the sole ground to assail the impugned order dated 02.06.2020 that the vigilance enquiry has been initiated on the same set of fact which has been inquired into vide a detailed departmental enquiry is not sustainable in the eyes of law, rather, the aforesaid ground is misconceived. The case laws so cited by the learned counsel for the petitioner would not be applicable in the present case inasmuch as the facts and circumstances of the present case are entirely different from the cases so cited by the learned counsel for the petitioner. Not only the above, the petitioner has enclosed the Annexure No.13 with the writ petition, which is the judgment and order dated 11.09.2008 passed by the Division Bench of this Court in re: Dr. Dinesh Chandra Misra vs. State of U.P. & others (supra) by submitting that in the identical facts and circumstances this Court had quashed the order dated 20.01.2004 whereby the vigilance enquiry was initiated against that petitioner to conduct the enquiry regarding disproportionate assets. The aforesaid judgment and order dated 11.09.2008 was challenged before the Hon'ble Apex Court by filing Special Leave to Appeal (Civil) No(s). 30044 of 2008 and the said appeal was rejected by the Hon'ble Apex Court vide order dated 27.04.2009, therefore, as per learned counsel for the petitioner, the judgment and order dated 11.09.2008 has attained its finality. So as to appreciate the ratio of the judgment of the Division Bench of this Court rendered in Dr. Dinesh Chandra Misra (supra), the last paragraphs thereof are being reproduced here-in-below:-
"Learned counsel for the petitioner further relying upon the provisions of the Uttar Pradesh Vigilance Establishment Act, 1965 contended that there is absolutely no provision for holding an enquiry on the subject on which an enquiry has already been held.
Learned counsel for the respondents submitted that the employer has right to hold an enquiry and the order holding enquiry that to say enquiry by Vigilance Establishment is justified and the writ petition is liable to be dismissed.
So far as the proposition of right to hold the enquiry is concerned, we are not disputing that proposition, but as held in the case of State of Assam (supra), the enquiry having come to its logical ends by either resulted into the punishment of the employee concerned or exoneration, the matter should come to an end and unless there is some fresh or new material no enquiry should be held because ultimately that will affect the functioning of the government servant and efficiency in performing the government work.
In this view of the matter since nothing has been brought to the notice of this Court except what has been submitted before us by learned counsel for the parties, this writ petition therefore succeeds and is allowed. The impugned order dated 20.01.2004 Annexure-'12' to the writ petition is quashed. It is further directed that no enquiry shall be conducted by the respondents, unless there is some fresh materials against the petitioner. Needless to say that pendency of the writ petition without affect the petitioner's right, if any, of promotion to the higher post."
32. In the aforesaid judgment, the submission of learned counsel for the petitioner was that no vigilance enquiry should be conducted on the subject on which an enquiry has already been held. However, the submission of the respondents before the Division Bench was that the employer has right to hold an enquiry and the order holding that to say enquiry by the Vigilance Establishment is justified. The Division Bench has categorically observed that in view of the decision of Hon'ble Apex Court in re: State of Assam and another vs. J.N. Roy Biswas AIR 1975 SC 2277, the enquiry having come to its logical ends by either resulted into the punishment of the employee concerned or exoneration, the matter should come to an end unless there is some fresh or new material no enquiry should be held because ultimately that will affect the functioning of the government servant and efficiency in performing the government work. Therefore, it is very much clear perusing the judgment of the Division Bench in re: Dr. Dinesh Chandra Misra (supra) that in case there are some fresh or new material with the Government/ Vigilance Department, the enquiry may be initiated.
33. In the present case, there is no dispute that all the four allegations pursuant to which the open vigilance enquiry has been initiated are altogether different from two charges of which the departmental enquiry has been conducted. Besides, despite the second charge having been proved partially the Disciplinary Authority has exonerated the petitioner without assigning any reason to that effect, therefore, such exoneration order dated 20.02.2018 is not only unwarranted and uncalled for but the same is violative of Rule 9 (2) (3) of the Rules, 1999.
34. In view of what has been considered above, I do not find any infirmity or illegality in the order dated 02.06.2020 passed by the Vigilance Department initiating the open vigilance enquiry against the petitioner, which is contained as Annexure No.1 to the writ petition. However, it is needless to say that while conducting the open vigilance enquiry the authority concerned shall follow the due procedure of law. The petitioner shall be afforded an opportunity of hearing strictly in accordance with law and no prejudice shall be caused to the petitioner for the reason that he has approached this Court assailing the order dated 02.06.2020.
35. Accordingly, the writ petition is devoid of merits, deserves to be dismissed, and is hereby dismissed.
36. No order as to costs.
Order Date :- August 19, 2021.
Suresh/-